chapter 1: the legal system Flashcards
what are the three basic legal concepts?
meaning of law, customs rules & law, and values and ethics
what is meaning of law?
the meaning of law refers to the body of legal rules, which include all members of a community. they are officially recognised & they bind on all people & can be enforced in the courts. those who don’t obey the laws result in penalties. it has 3 CHARACTERISTICS - it has to be acceptable, discoverable & enforceable. the PURPOSE of the law is to protect the general safety of the public & ensure the rights of citizens
what are customs, rules & law?
customs are traditions that are not enforceable by law. they are patterns of behaviour among people within a society/group. overtime, customs might develop into laws
what are rules?
rules are made by individuals/groups to maintain conduct that only apply to certain places/situations & certain people within a group. rules can have consequences for being broken, i.e. wearing black leather shoes to school & consequence for not wearing them is detention
what is the law?
the law is a set of rules imposed on all members of society that are officially recognised & legally enforceable by police & courts.
what are values & ethics?
values are moral standards considered in a society. ethics is doing the right thing, deciding & making judgement on what is the best thing to do within a situation & what the wrong thing to do is. laws are only able to cover ethical values that are common to majority of a community.
what is just law?
just laws should be adjusted for all members of a society & officially recognised & enforced by the legal system. they should protect the benefits of members of society. just law carries characteristics/nature i.e. equality, fairness & equal access.
what is equality under the nature of justice?
all people in the law members of society should be treated the same way with respect to political & social rights
what is fairness under the nature of justice?
the law needs to hold to honesty & integrity. if the laws are not fair they can be changed - hence the constant need for law reform & referendum.
what is access under the nature of justice?
equal access refers to the laws that can affect us & provides us an understanding of what our rights & responsibilities are under those laws i.e. children, non-English speaking backgrounds, disabilities, Aboriginal & Torres Strait Islander peoples.
what is procedural fairness? (principles of natural justice)
for justice to be achieved, there must be fairness in the processes used to resolve disputes. there are 2 essential features of a fair & just process: including the right to be heard & the right to have a decision made by an unbiased decision maker.
what is the rule of law?
the rule of law is a legal tradition in Australian society that NO ONE IS ABOVE THE LAW. therefore, the law is applied equally and fairly. (refer to table)
what is anarchy?
the absence of laws & government - it can break out after major disaster i.e. war. it can be both negative & positive. Positive as there are no restrictions on the different rights & responsibilities of society & negative as there is an absence of leaders & corrupt government
what is tyranny?
ruled by a single leader who is holding the absolute power in a nation. tyranny power usually imposes severe penalties for violations against the law. i.e. Saddam Hussein in Iraq.
what is common law/court made law?
common law developed in England by judges administering a common set of laws throughout the kingdom. courts continue to create it by recording the outcome & reasoning of each judgement, aka. ‘precedent’. it belongs to the Commonwealth
what is equity? (common law)
judges have to apply the principle of fairness
what is a precedent?
the judgement is authority for a legal principal to provide guidance for deciding cases that have similar facts. i.e. if person A committed a crime that has never happened before & when it comes to the court, they will use statue law to decide. this decision will impact other cases with similar facts. this process this known as ‘judge-made law’.
what is the adversarial system of trial?
Australia uses the adversarial system - where the burden of proof lies on the prosecution in criminal cases. however in CIVIL LAW it is the plaintiff.
what is presumption of innocence?
the defendant in a criminal trial doesn’t need to prove anything as the burden of proof lies on the prosecution
which court in AUSTRALIA is the highest?
The Supreme Court
what is statue law?
created by parliament by a group of elective representatives - the law must past the house of representatives & the senate
