Basic Legal Concepts

Question 1

The meaning of the law

Answer 1

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

• A set of rules imposed on all members of the community
• Officially recognised, they are binding on all people and they can be enforced in the courts
• Reflects rights and obligations of people in the community
• Provides penalties for those who do not obey it and remedies for people who have been wronged
• The system of law is applied and enforced by the courts

Question 2

Customs

Answer 2

Patters of behaviours among people in a society or group

• they are habits and traditions that have developed over time in that group
• they are not enforceable, but over time some customs might develop into formal laws

Question 3

Rules

Answer 3

Made by individuals or a group to maintain conduct in certain situations

• only apply to people in that group and can vary depending on the event or situation they are used in
• they can have consequences in the group for being broken

Question 4

Values

Answer 4

A reflection of the things that are considered important, often reflected in the law
- eg private property

Question 5

Ethics

Answer 5

Those things that a society considers to be right and wrong

Question 6

Changing laws

Answer 6

Change in values + ethics = change in laws

Question 7

The Characteristics of Just Laws

Answer 7

• It is equal; treats every person the same
• Based on widely held values
• It is utilitarian (ensuring an action achieves the greatest good for the greatest number of people)
• Aims to reduce inqeualities
• Must minimalise delay
• Must not be retrospective
• The law must be known

Question 8

Justice

Answer 8

The fair and impartial treatment of all people under the law

Question 9

Equality

Answer 9

All people are treated the same way, without unfair advantage or disadvantage

Question 10

Fairness

Answer 10

The legal system is free from bias, dishonesty or injustice

Question 11

Access

Answer 11

The right or opportunity to make use of something, particularly access to the legal system

Question 12

Two essential features of a fair and just process

Answer 12

• the right to be heard

- the right to have a decision made by an unbiased decision maker

Question 13

THE RULE OF LAW

Answer 13

• Requires that NO ONE IS ABOVE THE LAW (including people who make the law and enforce the law)

Question 14

Anarchy

Answer 14

The absence of laws and government

Question 15

Tyranny

Answer 15

Where one person holds absolute power over the citizens in their country

Question 16

Adversarial system

Answer 16

Parties to a court case are opponents who must prove their version of events to “win” the case; the judge is only an impartial observer

Question 17

Inquisitorial system

Answer 17

The judge is actively involved in asking questions, calling evidence and determining the case

Question 18

Ratio Decidendi

Answer 18

The (legal) reason for the judge’s decision

Question 19

Obiter dicta

Answer 19

Remarks made by a judge in a case that are not legally binding

Question 20

Stare decisis

Answer 20

The doctrine of precedent - “the decision stands”ie the decision must be followed by all other lower courts

Question 21

Binding precedent

Answer 21

Applies when the loewr court has to follow decisions made by higher courts, but only follows the ratio decidendi and cannot use the obiter dicta

Question 22

Persuasive precedent

Answer 22

The higher courts can use the ratio decidendi or obiter dicta to make decisions as they are not legally binding, however they do now have to.