3 legal foundations

Question 1

define social cohesion

Answer 1

the willingness of society members to cooperate with each other to survive and prosper

Question 2

role of individuals

Answer 2

• ensure that they are aware of the laws, and abide by them
• respect human rights, and not act in a way that is contrary to those rights

Question 3

role of laws

Answer 3

• set expectations about the way individuals should behave

rule of law: principle that everyone in society is bound by law and must obey the law, and that laws should be fair and clear, so people are willing and able to obey them

Question 4

role of the legal system

Answer 4

applying and enforcing the law are two of the roles that help to achieve social cohesion and protect the rights of individuals when
a dispute arises

Question 5

principles of justice

Answer 5

• fairness
• equality
• access

Question 6

define and examples of fairness

Answer 6

impartial processes and hearing – parties should have an opportunity to know the facts of the case and present their side of events

examples:

• given evidence against you to prepare your case
• case heard in timely manner
• fair and unbiased judge, use of a jury (if applicable)
• exercise certain rights

Question 7

define and examples of equality

Answer 7

equal before the law and have an equal opportunity to present their case like anyone else, w/o advantage or disadvantage

examples:

• engage legal representation
• jury selected at random
• call witnesses

Question 8

define and examples of access

Answer 8

understand their legal rights and pursue their case

examples:

• receiving evidence
• right to appeal
• legal representation

Question 9

characteristics of an effective law

Answer 9

• reflect society’s values
• enforceable
• clear and understood
• known by the community
• stable

Question 10

define statute law

Answer 10

laws made by parliament AKA Acts of Parliament or legislation

Question 11

define common law

Answer 11

laws made by judges through decisions made in cases AKA case or judge-made law

• statutory interpretation
• precedent

Question 12

define statutory interpretation

Answer 12

judges give meaning to words and phrases in an Act of Parliament so it can be applied to resolve cases

Question 13

define precedent

Answer 13

(when a decision that is the first of its kind) principle established is followed by courts in cases where the material facts are similar

• binding
• persuasive

Question 14

explain binding precedent

Answer 14

• higher court decision that must be followed by lower courts in the same jurisdiction
• material facts are similar

Question 15

explain persuasive precedent

Answer 15

lower court decision within the same or different jurisdiction that may be relevant and therefore a source of influence even though it is not binding

Question 16

ratio decidendi and stare decisis

Answer 16

ratio decidendi: reason for the decision

stare decisis: to stand by what has been decided

• lower courts in the same court hierarchy will follow the ratio decidendi in similar or like cases

Question 17

Four main ways courts can develop or avoid earlier precedents

Answer 17

1. distinguish the material facts in the present case from those in the previous case and make a different decision
2. overruled by a higher court in a different case
3. reversed when the same case is taken to a higher court on appeal
4. disapproval of or disagreement with the
   precedent

Question 18

Five main features of the relationship between parliament and courts

Answer 18

• interpretation of statutes by courts
• supremacy of parliament
• abrogation of common law
• ability of courts to influence parliament
• codification of common law

Question 19

define criminal law
and crime

Answer 19

an area of law that define the behaviours and conduct that are prohibited and outlines sanctions for people who commit them

crime: an act or omission that is against an existing law, harmful to an individual or society, and punishable by law

Question 20

define civil law

Answer 20

an area of law that defines the rights and responsibilities of society and regulates privates disputes

Question 21

Aim of criminal and civil law

Answer 21

criminal: to protect society and sanction offenders

civil: to regulate conduct between parties and to remedy a wrong that has occurred

Question 22

Consequences of criminal and civil law

Answer 22

criminal: sanction

civil: remedy

Question 23

Party with the burden of proof of criminal and civil law

Answer 23

criminal: prosecution (state)

civil: plaintiff

Question 24

Party defending the action of criminal and civil law

Answer 24

criminal: accused

civil: defendant

Question 25

Victorian Court Hierarchy

Answer 25

Magistrates’ Court > County Court > Supreme Court (Trial Division and Court of Appeal)

Question 26

Four main reasons for court hierarchy

Answer 26

Appeals: a person who believes that an error has been made in the lower court can appeal to a higher court for the higher court to review that decision

Specialisation: courts develop expertise in dealing with the cases that come before them

Administrative convenience: allows smaller and minor cases to be heard in the Magistrates’ Court, and larger and complex cases to be heard in the County Court and the Supreme Court, for efficiency or convenience with the way that cases are heard.

Doctrine of precedent: the process of law-making through courts depends on a higher court decision binding on lower courts