week 1 Flashcards
theories of law (names)
natural law theory
vs
legal positivism
critical legal theory
feminist jurisprudence
economic jurisprudence
Natural Law Theory
a theory asserting that the correct law is the one that human ethics, morality and principles of justice
critical legal theory
First strand: legal materials (such as statutes and case law) do not completely determine the outcome of legal disputes, there are constraints and influences on those in power, which will influence.
Second strand: all law is politics, law and politics are mutually intertwined.
Third strand: the law tends to serve the wealthy and powerful by protecting them against the demands of the poor and minorities for greater justice.
Fourth strand: questions the notion of the autonomous individual as people are determined in large part by social and political structures that surround them
feminist jurisprudence
examines how laws are encased with a masculine perspective , dominance and privilege questioning if laws truly represent universality and equality
Sometimes the law treats men and women differently when they should be treated the same and sometimes the same when they should be treated differently
legal positivism eg people
“command theory”
law is human creation set out by those in power (sovereign) supported by the threat of penalty’s or a promise of reward
eg Bentham Austin and Hart
What did Hart say?
laws are recognized if they have gone through an established procedure
Economic Jurisprudence
good law reflects good economics
Legislation can improve market conditions not justice or morality
Utilitarianism
idea that the goal of society should be to bring about the greatest happiness for the greatest number of people
Virtue Ethics
A theory that focuses on the development of morally good character.
Rule of Law
No one is above the law
government cannot exercise power unless it can point to a specific rule of law which authorizes it to do so
Representative Government
a system by which people elect members to act on their behalf
Responsible Government
cabinet is responsible to the people/ accountable
Separation of powers
-Parliament creates the law
-judiciary judicates the law then enforces through the police force
-executive administers law
pal sovereignty
- pal can legislate on any subject matter
- no parliament can bind a later parliament
- no court or other person can override legislation
Australian courts act
1828 UK
affirmed that English law now prevailed in the colonies of Australia
pal not able to make laws against UK law at all
Colonial laws validity act
1865 (UK)
states free to alter received UK law
BUT only within the state
not on statutes of “paramount force”
applied when Aust federated.
federation when? what act? benefits? but?
1901
commonwealth of Australia act 1900 (imp)
central federal government with state pal
free state trade SECTION 92
defense
GOV STILL SUBJECT TO CLVA
Statute of Westminster
1931 UK
commonwealth pal full legislative freedom
restrictions on pal removed.
BUT still can legislate fore States and appeals to privy council.
Australia acts
1986 BOTH UK AND Cth
severed last links with uk
abolished privy council appeals.
constitution what outlines x6
central federal government with state pal
separation of powers
outlines area of law for each pal
concurrent - sec 51
exclusive - s 52
residual -not in s51
responsible government
no bill of rights
double majority referendum
Victorian Charter of Human Rights and Responsibilities
2006
not consitutionally entrenched can be altered by any gov
lists 20 bascic human rights
eg presumption of innocence
Victorian Charter of Human Rights and Responsibilities s36 (2)
Law is against fundemental human rights then SCV can declare inconsistent interpretation
BUT No teeth cannot strike out legislation totally b/c it infringes rights
Momcilovic v The Queen
2011
drugs poison and controlled substances act
a person has to prove to the court that they were not in possession of drugs
goes agist the presumption of innocence.
SCV
could not find a rights favorable interpretation.
first declaration of inconstant interpretation
BUT could not strike out leg
1967 Referendum
remove 127 —>include Aboriginal people in the census.
alter s51 —>laws for Aboriginal people now concurrent
90.77% of people voted for this change - the highest YES vote ever recorded in its field.
Mabo v Queensland
overturned the doctrine of terra nullius and established the legal doctrine of native title in Australian law.
Lead to the creation of the Native Title Act 1993 (Cth).
3 ways to acquire territory
ceded-> given through treaty both legal systems continue with modification
conquered-> won as a result of a war
settled -> no pre-existing legal system
Aust was settled hence English legal system fills void
“terra nullius”-Latin term
->empty land ->didn’t see framing and land ownership -> therefore English law can prevail and settle an ‘‘empty’’ land
remained till 1992 in common law until Marbo case
Justinian Code
Roman empire law but law lost rediscovered in 11 century and became basis of European civil legal system
A collection of laws that reflected Christian values
Napoleon code
Principles still part of modern day European civil law
incorporated the civil French code, the code of criminal procedure, penal code and commercial code
court of equity
its principles developed early common law
lord chancellor decided the matter on fairness rather than rules or procedures
less formal fixing innate wrongs
court of common law
strict procedures had to have cases involving a particular right eg trial by battle
judicature act 1875
joined Court of common law and court of equity to form supreme court of 2 parts.
Common Law System
judge-made law and legislation.
Adversarial procedure
incorporates rights of the accused and the victim
based on the doctrine of precedent
eg Britain us Aust nz India
Adversarial system (common law system)
- party control over litigation
2.evidence given through witnesses
3.judge acts as umpire - one continuous hearing
5.compliance enforced only at request of other party
if parties are unequal then this can effectively access justice
maintains impartiality
civil law system
based on codification
Inquisitorial system judges can ask questions
hearings have various stages
available to more people
eg France Spain Portugal most of Europe
inquisitorial system (civil law system)
judge plays a more active role
different hearings
more informal
only works when both parties are equally represented
Case of Prohibitions del Roy (1607
Preventing the King from being personally involved in Common Law Courts.
when was the magna carta signed
1215
barrister
self-employed not able to be a part of a firm
Advocate for client in court
Need to be admitted to the bar roll
cab rank rule applies
Solicitor
Instructions to a barrister
general advice
Prepare litigation paperwork
resolve disputes
mainly gives General legal advice and general conflict resolution
Need to hold a practicing certificate and engage in at least 10 hours of professional development activities each year
Legal Profession Act regulates
Borrowing of client’s money
Conflicts of interest
How a person may be admitted to practice
lawers are…
People who have been admitted to legal practice in Victoria
the bar roll was introduced
in 1902
legal practitioners are…
lawyers Wich hold a current Australian practicing certificate
