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Saturday, October 9, 2010

Topic One: Law and Justice

Topic One: Law and Justice

Essential influences on law:
  • The rule of law concept:
    • A law will have the characteristics of being publicly available and enforceable. Contexts of divine, invariable rships, powerful behaviour and ‘the law’.
    • In western demo legal systems RoL sees requirement of law to be known and applicable to all citizens – no-one is above the law.
    • Safeguards to make sure above happens include right to fair trial and be heard w/o state interfere, independ judic, legal aid, police monitor.
    • EXAMPLE: SAF ending apartheid and thus discontinuing enabling of police and military atrocities à greater adherence to RoL.

·                                                       Influences on RoL:
    • POLI: issues likely to inf voters are addressed, any topic to get support.
    • ECO: growing inf, changed laws re: fin. and markets.
    • CULTURAL: relig, philos, military societies will reflect in law.
    • SOCIAL: moral, cult and intel ideals, concepts evolve from discuss.
    • MORAL: intrinsic, personal, law altered as moral views shift.

  • Devel of law reflecting past society:
    • Mixed military/penal/civil of penal colonization to the inheritance of English law in our principles (precedent), personnel and jargon.  Doc of Reception implemented due to “terra nullius”. 
      • “Letters Patent” à making govt.
      • “NSW Govt” Act 1855 à made a Const.
      • “Cwth of Aust Const” Act 1900 à divided state/fed powers.
      • “Statute of Westminster 31 à Brit can’t pass laws for us.
o  Present society in devel of law seen in multiculturalism and geog as well as secular ways.
§  Water, fire restrictions.
§  Views on sexuality, drugs depend, religion.
§  “Aust (Request & Consent) Act à now no links to Privy.
§  “Aust” Act 86 UK à cleared WM issue of dominion laws.

·      Different law systems:
o   CUSTOM: oral, not codified, localised, can become entrenched. E.g., ATSI, int cusom law (ship oncoming turning right).
o   CIVIL: Euro, adversarial, judges, court is inquisitorial, Roman natural law basis w/modern idea of equality. E.g., Napoleonic era.
o   COMMON: use of precedent, mainly from states/parli, democratic with independ judic.

·           The doctrine of natural justice is idea that logical reasoning can result in just process of legal proceeds, esp w/admin law.  Procedural fairness:
o    No bias of decision maker and only to consider relevant things.
o    Fair to all parties.

·      The purposes of diff types of law:
o   MUNICIPAL: control citizens.
o   INT: guide (obliging) nations, regulating behaviour b/t them.
o   PUBLIC: guides govern admin and law making bodies.
o   PRIVATE: guides indivs, interaction b/t, torts and contracts.
o   CIVIL: defn right of public in terms of civil wrongs, non-crim.
o   CRIM: defns crim behaviour and aims to protect society.
o   CONTRACT: governs legal obliges and promises b/t citizens. àCarlill v. Carbolic Smoke Ball Co: broke promise of product.
o   TORT: for non-contractual civil breaches (trespass, negligence).àDonoghue v. Stevenson: snail in jug and sick.
o   PROP: buy/ use of real (homes etc) personal prop.  Action/possess.
o   ATSI: law devel in indigo comms, recog in some crim and native.

NATURE OF JUSTICE just law = eq treatment, ethical basis, utilitarian, w/o delay.
  • Concepts of:
    • ACCESS: depends on cost, knowledge, speed of settle, legal aid aims to minimise barriers as does ADR.
    • EQUITY: principles to bypass rigid com law that doesn’t always have the desired just outcome, mends drawbacks of systemised law.
    • FAIRNESS: w/both eq and justice, fair result reached by going around principles of justice e.g., abused wife acquitted for husb murder.
    • EQUALITY: law treats all the same, in opportunity (emp, services) and before the law (sentencing). Precedents aim for equal outcomes.
© Michael Atteya

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