TOPIC 7 : WHO DECIDES LAW AND JUSTICE ISSUES ? Flashcards
The Common Law System
A common law system is the system of jurisprudence that is based on the doctrine of judicial precedent, the principle under which the lower courts must follow the decisions of the higher courts, rather than on statutory laws. English system of law.
Countries: UK, US, COMMONWEALTH, SOUTH PACIFIC
The Burden of Proof: Beyond reasonable doubt
Parties: The State (Prosecution) -v- Defendant
The Civil Law System
In a civil system of law, civil lawyers and judges get together to decide how to apply the codified law to the facts. This makes judges much more powerful and tends to “institutionalize” the law.
Countries: CONTINENTAL EUROPEAN LAW: EUROPEAN UNION
The Burden of proof: Balance of probabilities
Parties: Plantiff vs Defendant
Sources of Law in the Pacific
- Constitution
- Court Decisions (Common law)
- Legislation
- Subsidiary legislation
- Customary law
Constitution
o The foundation law of a country
o Establishes main institutions of a country
o Describes legal system
o Usually contains a Bill of Rights – which all laws in the country must follow
Court decisions (common law)
o When no law exists courts can decide what the law is
o These court decisions are a source of law
- Define Legislation ?
- Who Makes Legislation?
- What other ways can legislation be made?
- Law enacted by a legislative body or the act of making or enacting laws. Written statutes or Acts,
- Usually made by Parliament
- Can come from/be made in other ways including:
Adopted from imperial countries (such as England or New Zealand)
Adopted from colonial authorities (laws made during colonial times that have been continued in after Independence)
Military governments may pass Decrees or Promulgations in the absence of Parliament
- Define Subsidiary Legislation ?
- Who makes subsidiary legislation?
- How is it made?
o Legislation may allow Ministers to pass Regulations or Ministerial Orders. This is a delegated legislative power – Parliament has delegated, or given, some of its power to make laws on specific subject matter to a particular individual.
- Such laws are known as delegated legislation or subsidiary legislation.
- They are part of the larger body of legislation.
Customary law
o Law commonly used or practiced in accordance with custom and the beliefs of an indigenous society
Many (not all) Pacific Island Constitutions include customary law as a source of law in the formal legal system
Functions of a court
- Determine validity of legislation
- Can declare it void
- Can restrict an act’s interpretation
protect civil liberties by ensuring that legislation doesn’t infringe upon the Bill of Rights (Constitution) - interpret (liberal & purposive) and apply legislation
- determine how changes in legislation has affected rights and responsibilities
- arbitrate disputes between private parties
State Sovereignty
State sovereignty is the concept that states are in complete and exclusive control of all the people and property within their territory. State sovereignty also includes the idea that all states are equal as states.
Sovereign and Power: Past
Historically in the British tradition, sovereignty used to reside with the king and queen as Gods representatives on Earth.
Sovereignty and Power: Present
Changes began with Magna Carta in 1215, a British legal document that says parliament had the sovereign right in making laws.
Making of future laws required the approval of parliament and that ordinary people had legal rights that the sovereign could not take away, without parliaments approval.
