legal prelim course study notes

Topics: Law, Common law, Jurisdiction Pages: 15 (4156 words) Published: April 26, 2014
Legal Studies
Meaning of Law
Law can be defined as a set of enforceable rules of conduct which set down guidelines for relationships between people and organisations of society. Australia has a type of legal system known as ‘common law’. This system allows for laws to be made by judges when there is a lack of statute law (laws made by parliament). Parliament can also give authority to make laws to other bodies. Laws made by these bodies are known as ‘delegated legislation’ the most important feature of law is that it is universal. Customs

Customs are established patterns of behaviour among people in a society group. Customary law refers to established patterns of behaviour that are accepted within a particular social or commercial setting and that are of sufficient importance to be enforced. Rules

Generally refer to prescribed directions of conduct. (What is allowed and what is prohibited). Example: There may not be a law about wearing school uniform, but there is often a rule. Laws
There are several reasons why we need laws:
Laws regulate society by telling us what we can do and when we can do it. (3.00pm lock out of pubs and clubs in the CBD) Enforce values that society considers to be important. (Laws to protect private property) Provides a venue for finding a resolution.

When rights have been violated, the law provides a means of enforcing rights and gaining compensation. Values & Ethics
The values that society holds are a reflection of the things that are considered important. These values are often reflected in the law. For example, our society values the concept of private property and for this reason there are many laws designed to protect property. Ethics are defined as those things that a society considers to be right or wrong. For example, if we find a wallet in the park with $200 in it and take the wallet to the police station, you are acting ethically. Just Law

It is equal. A just law is one that treats everyone the same. Applying the law equally, however, does not mean that the outcome of the law will necessarily be equal. ‘John is a pensioner living on $180 a week and Sarah is an executive who earns $2200 a week. Both Sarah and John are fined $180 for speeding. The fine is the same but the impact will be very different for both John and Sarah’

Based on widely held values.
It is utilitarian, meaning it ensures that the actions achieve the greatest good for the greatest number of people. It aims to redress inequalities.
Resolve disputes as soon as possible and practical.
It must not be retrospective. The law must be made for the future or now. Retrospective means laws that are backward-looking. Laws must be known before they can be enforced. Changes to laws are also advertised through media, especially those laws that affect many people, such as traffic laws. Examples Include:

School zones
Double Demerits
No mobile phone while driving

Nature of Justice: Equality
Justice requires laws that do not discriminate and that are applied equally to all people. The enforcement of the law must also be equal. Fairness
Fairness is another feature of justice. Key factors associated with fairness include ensuring the law does not have a particular harsh effect on an individual. Access
Individuals must have an ability to access the law in order for justice to be achieved. They should have access to legal information and assistance and be able to understand the law. Physical access: That is where the courts and legal aid offices are located Procedural Fairness (Principles of Nature)

Refers to the idea that there must be fairness in the processes that resolve disputes. It is closely linked to the concept of natural justice. Two main principals of Natural Justice
the right to be heard
the right to have a decision made by an unbiased decision maker Rule of Law (Key Features)
The principal that no one is above the law.
An independent judiciary. The court should not be influenced by the parliament....
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