Introduction to Law Definitions Common law = the law made by judges in the exercise of both common law and equitable jurisdiction Statute law = the law made by the Commonwealth, State and Territory Parliaments Equity = equity in human transactions is that which is founded on justice, honesty and right Parliamentary sovereignty = parliament has the right to make, amend or repeal any law—within the limits of the Constitution = Parliament cannot make a law that a future parliament cannot change = parliament takes priority over the executive and judicial arms of government Responsible government = parliamentary accountability = responsive to public opinion Alternative Dispute Resolution / Non-Adversarial Justice = the ways in which disputes are resolved without litigation = negotiation, arbitration, or mediation Law reports = published volumes of the decisions of courts = widen the base of legal knowledge and to prevent two differing decisions on identical facts The crown = the Queen of the UK Legal aid = legal assistance provided by the government = provide vulnerable and disadvantaged Australians with access to justice Judicial independence = separation of powers doctrine = in interpreting and applying the law, judicial officers act independently and without interference from the parliament or the executive Theories of Law Jurisprudence = the study, knowledge or science of law Natural Law Theory = our laws should be based on morality, goodness, and what is inherently correct Legal Positivism = law is a human creation = based on a norm = expressed by a sovereign (aka the Command Theory) Feminist Jurisprudence = male dominance is embodied in law Economic Analysis Theory = if we want to maximise our satisfaction, we will attempt to do so via the simplest and most effective solution = economy ought to guide the law Critical legal theory = law and politics are mutually intertwined = law serves the interests of the powerful The Legal Profession Legal Practitioner = holds a current practicing certificate Barrister = advocacy = bound by the Conduct Barristers’ Rules 2015 = e.g., one must become a member of the Victorian Bar to practice (pass exam, complete Reader’s course, serve pupillage) Solicitor = general advice, some advocacy in lower courts, bound by the Legal Prof Uniform Law Application Act 2014 Ethical Approaches Kantian/deontological = Immanuel Kant = one must follow the law, regardless of the outcome Consequential/utilitarian = Jeremy Bentham = maximising the public good Virtue ethics = If the actor is good, the act is too = judges a person by his/her character rather than an action Law Systems Common Law System Civil Law System - Based on precedent - Based on codes which distinguish between different categories - Adversarial procedures (role of of law: substantive law establishes which acts are subject to the judge is to preside, burden criminal or civil prosecution, procedural law establishes how to of proof is on the crown, determine whether a particular action constitutes a criminal act, accused has many rights (e.g., and penal law establishes the appropriate penalty to remain silent) - Inquisitorial procedures (judge can ask questions, burden of - Rights for the accused proof may lie on the accused, accused has limited rights) - One cont. hearing - Aspires to deliver justice - Incorporates judge-made law - Hearing at various stages - UK, Aus, NZ, India - Portugal, Spain, France Development of the common law system o In 1066, William the Duke of Normandy conquers England, introducing feudalism (a hierarchical system of social and political organisation based upon land ownership with the Crown at the top) → royal rulings replace local customary laws → system of courts estab . First = the Curia Regis/Kings Court/Kings Council = the Kings advisory body Next = divided into the Court of the Kings Bench, the Court of Exchequer and the Court of Common Pleas ˙ The courts struggled to manage the volume of disputes → introduced the writ system = complainants applied to the court for the most applicable writ to be sent to the wrongdoer, which ordered him (under royal authority) to attend a royal court = application; to sue, the plaintiff must estab a ‘cause of action’ o In the 12th century, King Henry II estab a system to resolve land disputes using juries (comprised of 12 free men who were charged with uncovering the facts of the case on their own) → in 1215, trial by jury became a fairly explicit right in the Magna Carta o In the 15th century, increased complaints of injustice in the courts led to the creation of the Court of Chancery = the chancellors were trained as priests = they grounded their judgements in Christian precepts = the body of law was applied according to the notion of fairness = equity . The chancellors and the common law judges were rivals → in the early 1600s, King James recommended that in the case of conflict, equity should prevail → in 1873, the Judicature Act provided that the courts of common law and those of equity should be merged Development of the civil law system o Roots are in Roman law = origins are found in the compilation of Roman law commissioned by Emperor Justinian (i.e., Corpus Juris Civilis) in the 6th century CE → roman law ceased in the Dark Ages (when Roman Empire declined) but re-emerged in 11th century Italy → principles of Roman law adapted to contemporary needs in Europe e.g., the Code Napoleon of 1804 (France’s Civil Code) Development of Modern Constitutionalism In 1215, a group of nobles forced King John to sign the Magna Carta (63 clauses) which restricted the King’s power (e.g., could only appoint justices and sheriffs who were learned in law, could not deny a person’s right to justice) In 1265, the first assembly was summoned (i.e., Parliament) by the noble, Simon de Montfort = included the nobility, senior churchmen, two knights from each county and two burgesses (officials) from each of the major towns o Same scheme adopted by King Edward I in 1295 = known as the Model parliament Edward III came to the throne in 1327, and from that point the representatives of the counties (knights of the shire) and of the towns (burgesses) became a permanent part of Parliament o After 1332 they sat together in one chamber and were known as the House of Commons In 1414, the Commons successfully insisted to Henry V that the King and Lords should not change the wording of any of the Bills submitted by the Commons without its agreement and that no Bill should become an Act (that is, become statute), without their assent In 1534, when the Pope refused to approve the annulment of King Henry V’s marriage, Henry established the Church of England → Henry agreed to grant parliament greater involvement to secure their cooperation In 1607, the Case of Prohibitions del Roy dictated that the King could no longer be personally involved in common law courts = wrested supremacy from the King in favour of the courts = confirmed the sovereignty of parliament In 1611, the Case of Proclamations dictated that without the approval of Parliament, the King did not have the authority to change any part of common law or to create, by his proclamation, an offence that had not been an offence before In 1646, parliamentary forces defeated the royalists → the monarchy and House of Lords were abolished, and the House of Commons was dismissed → however, in 1660, Parliament invited Charles II to assume the throne In 1688, the Glorious Revolution saw the shift from an absolute monarchy to a constitutional monarchy In 1689, the Bill of Rights dictated that parliament was to be summoned regularly and that the Crown had no power to suspend the operation of law In 1701, the Act of Settlement dictated security of tenure for judges (previously, they had served at the King’s pleasure = susceptible to pressure) Constitutional Principles Rule of law = every person is subject to the laws of the land regardless of their status = it requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency o Separation of powers = in order to prevent oppressive government, the three powers of government should be held by separate bodies— Parliament (makes the laws), the Executive (administers the laws) and the Judiciary (adjudicates on the laws) —which can act as checks and balances on each other = the parliament MAKES the laws, the executive ADMINISTERS the laws, and the judiciary ADJUDICATES on the laws Types of Law Criminal Law Civil Law - Wrongs against the community - Private matters - Standard of proof = beyond - Standard of proof = preponderance of the evidence/balance of reasonable doubt probabilities (the case that is the more probable should - Burden of proof = rests with the succeed) State - Burden of proof = rests with the plaintiff The Australian Legal System Introduction to the Australian Legal System Arrival of Common Law in Australia In 1717, the Transportation Act was passed, establishing a regulated system to transport criminals to colonies In 1770, Captain Cook discovers Australia In 1788, the First Fleet of convicts arrived in NSW → Australia deemed to have been settled (international law dictated that there were 3 means to acquire new territory = conquest, settlement, cession) as was considered uninhabited = Terra Nullius; land belonging to