Detailed Notes on Legal Studies

Resource Description

 

 A law is a special type of rule that has been made by a person or institution that has the authority to make laws

 

This is referred to as ‘sovereign power’ 

 

In democratic countries such as Australia, Britain and the US, the sovereign power is Parliament. Society elects Members of Parliament to make laws on their behalf

 

Laws made by Parliament are known as ‘Statute Law’ 

 

Australia has a type of legal system known as ‘common law’. This allows for laws also to be made by judges when there is lack of statute law 

 

The most important feature of law is that it is universal. This means that the law applies constantly and consistently. In other words, the law is always in effect. E.g. the law states that at a stop sign a car must come to a full stop. This law applies even if there are no cars around

 

Individuals do not have the authority to decide if they need to comply with the law; instead, society expects them to stop at the sign every time regardless of the circumstances 

 

DEFINITION: 

 

Anarchy: A state of society without government or law 

 

Tyranny: Unrestrained exercise of power; abuse of authority 

 

Customs: A repeated practice; the usual way of acting in given circumstances 

 

Rules: A principle or regulation governing conduct, action, procedure, arrangement

 

Law: The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and polices recognised and enforced by judicial decision 

 

Fairness: The state, condition, or quality of being fair, or free from bias or injustice

 

Equality: The state or quality of being equal; correspondence in quantity, degree, value, rank, or ability 

 

Access: The ability, right, or permission to approach, enter, speak with, or use

 

Justice: The quality of being just; righteousness, equitableness, or moral rightness 

 

Values: Relative worth, merit, or importance 

 

Ethics: Moral principles that govern a person’s behaviour or the conducting of an activity 

 

Why is law necessary? It serves as a norm of conduct for citizens. 

 

Law is… 

 

Reflective of:  

• Morals, Values, and Ethics —> Changing Definition of Marriage –> Legalisation of Certain Drugs –> Removal of Death Penalty 
• Beliefs and Attitudes –> may be based off culture + religion 
• Reflective of Society as it changes 

 

Created by: 

• Government or Parliament (Statute Law) 
• The Court (common law) –> created by precedent 
• Constitution –> requires a referendum to change –>highest level 

 

Necessary for: 

• Structure/Order in Society 
• Safety 
• To Prevent Anarchy 
• Protection of Rights (education, property, environment) 

 

Enforced by: 

• Police 
• The Courts 

 

 

Natural Justice/Procedural Fairness: 

1. A person’s right to know what is alleged against them, and the right to answer the allegation 
2. The right to be heard by a court that is not biased 

 

The nature of Justice

 

Equality –> Equality of Outcomes/Equity                   Affirmative Action: A form of positive discrimination 

Fairness                                                                             that attempts to address structural inequality 

Access

 

Formal Equality

• Treating everyone exactly the same 

Equality of outcomes/Equity

• Providing positive discrimination to these who require it in order to address structured inequalities in society 

Fairness

• This is an ideal of Justice
• Decisions should be made free from bias or prejudice i.e. racism and sexism 
• It is an abstract or subjective concept
• It cannot be simply about treating people equally as this may be inherently unfair 

 

Access 

• Obtaining access to the legal system requires legal representation in the courts. This can be a costly and time consuming affair and for many the option of proceeding with taking a case to court is beyond their financial means or it just may not be worth the time required 
• This is particularly the case for minority groups such as Aboriginal and Torres Strait Islanders, migrants and those from a law socio-economic background 

 

Anarchy 

• This is the state of affairs that arises when there is no law and individual is completely free to determine their destiny

 

Tyranny

• When there is no review or system of accountability for those in power. They are in a position of complete control

 

 

Statutory Law: 

Statutory Law is composed and made by government to deliver an apparent need to manage or illuminate legalities connected with the capacity of government, criminal activity, business practice or individual conduct. This law is made by an administrative or official body such as Parliament or Congress

 

How is Statue Law Made?

Step 1: First reading: A bill (proposed law) is introduced to Parliament

Step 2: Second reading: Reasons for the introduction of the bill are given stating the intensions of the bill 

Step 3: Committee stage: The bill is considered in detail and may be debated. Amendments to the bill may be made 

Step 4: Third reading: Involves the formal reading of the bill and it is then voted on 

Step 5: Other house: Bill is sent to the other house for review

Step 6: Royal assent: If the house accepts the bill, the Governor-General signs it

Step 7: The bill becomes an Act of Parliament 

Step 8: Act becomes law