the legal system Flashcards
what are customs, rules, laws, values, and ethics
Customs: customs are patterns of behaviour among people in a society or group. Customs vary depending on the culture, religion and history of a group of people, society or country.
Rules: directions for conduct in certain situations. Rules are generally made by groups and only affect people within those groups. Not enforceable by the state.
Laws: made up of the formal rules of society. These ‘legal rules’ have been agreed upon by the majority of those in the group, and govern their behaviour and activities.
Values: Values are what we try to live by, and living according to our ethics means that we do things that we consider to be morally right. As a result of this, law-makers try to incorporate these values and ethics into laws
describe nature of justice
Natural justice refers to the fact that everyone should be treated fairly in legal situations. There are two main principles of natural justice. These are:
The right to be heard
The right to have a decision made by an unbiased decision maker
The three rules of procedural justice are appropriate hearings, evidence to support, and lack of bias.
equality, fairness, and access
Equality: means that all people in society are treated with respect to political, social and civil rights and opportunities; law considers people’s different capacities (such as maturity level) recognises that some people are more vulnerable than others and provides protection for them.
Fairness: justice and fairness usually correlate to each other, the difference is that ‘fairness’ applies to everyday life, and ‘justice’ has more legal connotations. When a rule is translated into law, it is excepted to be fair to all members of society, which ensures that everyone has the same opportunity.
Access: access refers to the ability to obtain or make use of something. The concept of justice suggests everyone who is covered by the legal system and its laws should have equal access to agencies and institutions of law. This includes ensuring that citizens are aware of the laws that affect them and understand their rights and responsibilities under these laws.
The legal system is not accessible to everyone i.e financially disadvantaged people, people who suffer from disabilities, non-English speaking backgrounds, aboriginal and torres strait islander people.
Charcertiscs of just law and nature of justice
The concept of justice involves the fair and impartial treatment of all persons, especially under the law. In simple terms, justice can be seen as the continued effort to do the right thing by everyone.
A just law is one that allows everyone to receive fair treatment and outcomes, and ensures that human rights are recognised and respected.
In general terms, people within a society like to have rules and laws because they create order. Laws help each person to feel a sense of security – the law is clear about what is expected of them as citizens and what they can expect from others.
procedural fairness
the body of principles used to ensure the fairness and justice of the decision-making procedures of courts; in Australia, it generally refers to the right to know the case against you and to present your case, the right to freedom from bias by decision-makers and the right to a decision based on relevant evidence.
the rule of law
The principle of rule of law: no one is above the law, including those who make the laws. Groups and individuals who are involved in the legal system are all answerable to the same laws as every other citizen.
describe anarchy
Anarchy
Definition: the absence of law or government
A state of anarchy may break out during a revolution or after a natural disaster, because the law enforcement agencies no longer exist or are unable to enforce the laws of a society. Violence and widespread looting are two early indicators that a society or group is on the verge of anarchy
describe tyranny
Definition: rule by a single leader holding absolute power in a state
By definition, a tyrant is a single leader who has unlimited power over the people in a country or state. Generally, tyrannical power involves severe punishment for any infringements of the law.
difference between house of representatives and the senate
house of representatives (lower house)
- make new news and amend existing ones
senate (upper house)
- represent each of six states and two territories
- has equal law-making powers as house representatives, but not allowed to introduce or amend money bills
- can also request to change bills before passing
desribe constittion and process
Constitution: legal document which establishes the rules in how a country runs and determines the area in
which each level of government has the power to make laws.
Legislative (the parliament):
the parliament makes and amends the law
Executive (minister, governor general):
executive puts the law into action
The judiciary (the courts):
make judgement about the law
what is doctrine of precedent
Precdent: a judgement made by a court that establishes a point of law. A judge who is following precedent aims to resolve in a certain way because a similar situation has been resolved like this in the past. The aim of the doctrine of precedent is to ensure that people are treated equally and fairly in dealings with their legal system.
what are the rules of precedent
Binding precedent: where binding precedent occurs a court must follow the precedent already set, whether it belives the decision is correct or not. In NSW a precedent is binding when has been set by a higher court, for example, New South Wales District Court follows rulings of the New South Wales Supreme Court.
Persuasive precedent:
This is a precdent that a judge may wish to follow but is not required to. Examples include precedents set in different jurisdictions and by lower courts
