Preliminary Legal Studies - Basic Concepts

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Legal Studies Revision
Law:
1.A set of rules imposed on all members of a community
2.Officially recognised, bound and enforced by persons or organisations like the police / courts 3.We need laws in society because there is a need to keep people safe and sort out disputes

Customs:
1.Collective habits/traditions.
2.Developed in a society over a long period of time.
3.Example: walking on the left hand side.

Rules:
1.Regulations or principles governing procedure or controlling conduct. Example: School rules.

Equality:
The state or quality of being equal
Having the same rights or status
1.On the surface – means that people should be treated equally 2.On a deeper level – means to be fair and just; you may need to treat people differently to be fair. e.g. consider their circumstances (wealth, background, age)

Values:
1.The principles and qualities considered worthwhile in a community. Example: laws to do with same sex marriage.

Fairness:
1.Free from bias, dishonesty or injustice.

Access:
The right or opportunity to make use of something
Example:
1.Legal representation
2.Be heard in court
3.Defending yourself if accused

Procedural Fairness:
The body or principles used to ensure the fairness and justice of the decision making procedures of courts Refers to
1.The right to present your case
2.The right to freedom from bias by decision makers
3.The right to a decision based on logically relevant evidence

Rule of law:
The principle that no one is above the law
Includes government bodies like the prime minister and police members

Anarchy:
The absence of laws and government

Tyranny:
Ruled by a single leader holding absolute power in a nation-state Example: Muammar Gaddafi – tyrant of Libya

Common Law:
Law made by courts
Historically; law common to England
1.English legal system – used in many countries like Australia, New Zealand, USA, Canada 2.Describes laws made by judges in trials (Precedents)

Origin of Common Law:
William the conqueror took power in England in 1066
Judges were sent out on circuits visiting villages and hearing cases From time to time, the judges would meet and discuss the cases they heard The idea of precedents developed
Judges should be consistent when hearing similar cases; this is seen as just and fair. In the 14th Century
1.Another court was set up to hear people’s appeals who thought that their original judge had made an unjust decision 2.Called the courts of chancellery
3.Established the idea of equity
The two systems; common law and equity worked side by side till 1873 when they merged together.

Development of the common law:
The system was brought over by the first fleet
Gradually developed its own legal system based on its statute law and common law. Some principles have been retained in the Australian system 1.Principles of natural justice

Natural Justice / Procedural Fairness:
Involving the legal system being followed thought correct steps when dealing with people Example:
1.Being told of the charge when arrested
2.Right to be heard
3.Free from bias
4.Fair trial
5.Not to be searched without a warrant
6.Denied access to a lawyer

Characteristics of just law:
1.Be known
2.Be just
3.Reflect community values / standards
4.Not be retrospective
5.Be flexible
6.Be utilitarian (greatest happiness for the greater number of people)

Nature of justice:
Legal system attempts to be just.
This is the ideal; it is aimed for however not always achieved. Innocent people can go to jail and guilty people can be found not guilty. Stare Decisis:
1.Latin term
2.‘the decision stands’
3.The doctrine that a decision must be followed by lower courts

Ratio Decidendi:
1.Latin term
2.The legal reason for a judge’s decision

Obiter Dicta:
1.Latin term
2.Comments from a judge in a case that are not directly relevant to the case 3.Not legally binding

Adversarial...
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