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foundations of law > week 1 > Flashcards

week 1 Flashcards

1
Q

theories of law (names)

A

natural law theory

vs

legal positivism

critical legal theory

feminist jurisprudence

economic jurisprudence

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2
Q

Natural Law Theory

A

a theory asserting that the correct law is the one that human ethics, morality and principles of justice

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3
Q

critical legal theory

A

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

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4
Q

feminist jurisprudence

A

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

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5
Q

legal positivism eg people

A

“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

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6
Q

What did Hart say?

A

laws are recognized if they have gone through an established procedure

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7
Q

Economic Jurisprudence

A

good law reflects good economics

Legislation can improve market conditions not justice or morality

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8
Q

Utilitarianism

A

idea that the goal of society should be to bring about the greatest happiness for the greatest number of people

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9
Q

Virtue Ethics

A

A theory that focuses on the development of morally good character.

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10
Q

Rule of Law

A

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

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11
Q

Representative Government

A

a system by which people elect members to act on their behalf

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12
Q

Responsible Government

A

cabinet is responsible to the people/ accountable

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13
Q

Separation of powers

A

-Parliament creates the law

-judiciary judicates the law then enforces through the police force

-executive administers law

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14
Q

pal sovereignty

A
  1. pal can legislate on any subject matter
  2. no parliament can bind a later parliament
  3. no court or other person can override legislation
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15
Q

Australian courts act

A

1828 UK

affirmed that English law now prevailed in the colonies of Australia

pal not able to make laws against UK law at all

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16
Q

Colonial laws validity act

A

1865 (UK)

states free to alter received UK law

BUT only within the state
not on statutes of “paramount force”

applied when Aust federated.

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17
Q

federation when? what act? benefits? but?

A

1901

commonwealth of Australia act 1900 (imp)

central federal government with state pal

free state trade SECTION 92
defense

GOV STILL SUBJECT TO CLVA

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18
Q

Statute of Westminster

A

1931 UK

commonwealth pal full legislative freedom

restrictions on pal removed.

BUT still can legislate fore States and appeals to privy council.

19
Q

Australia acts

A

1986 BOTH UK AND Cth

severed last links with uk

abolished privy council appeals.

20
Q

constitution what outlines x6

A

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

21
Q

Victorian Charter of Human Rights and Responsibilities

A

2006

not consitutionally entrenched can be altered by any gov

lists 20 bascic human rights
eg presumption of innocence

22
Q

Victorian Charter of Human Rights and Responsibilities s36 (2)

A

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

23
Q

Momcilovic v The Queen

A

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

24
Q

1967 Referendum

A

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.

25
Q

Mabo v Queensland

A

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).

26
Q

3 ways to acquire territory

A

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

27
Q

Justinian Code

A

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

28
Q

Napoleon code

A

Principles still part of modern day European civil law

incorporated the civil French code, the code of criminal procedure, penal code and commercial code

29
Q

court of equity

A

its principles developed early common law

lord chancellor decided the matter on fairness rather than rules or procedures

less formal fixing innate wrongs

30
Q

court of common law

A

strict procedures had to have cases involving a particular right eg trial by battle

31
Q

judicature act 1875

A

joined Court of common law and court of equity to form supreme court of 2 parts.

32
Q

Common Law System

A

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

33
Q

Adversarial system (common law system)

A
  1. party control over litigation
    2.evidence given through witnesses
    3.judge acts as umpire
  2. one continuous hearing
    5.compliance enforced only at request of other party

if parties are unequal then this can effectively access justice

maintains impartiality

34
Q

civil law system

A

based on codification

Inquisitorial system judges can ask questions

hearings have various stages

available to more people

eg France Spain Portugal most of Europe

35
Q

inquisitorial system (civil law system)

A

judge plays a more active role

different hearings

more informal

only works when both parties are equally represented

36
Q

Case of Prohibitions del Roy (1607

A

Preventing the King from being personally involved in Common Law Courts.

37
Q

when was the magna carta signed

A

1215

38
Q

barrister

A

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

39
Q

Solicitor

A

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

40
Q

Legal Profession Act regulates

A

Borrowing of client’s money

Conflicts of interest

How a person may be admitted to practice

41
Q

lawers are…

A

People who have been admitted to legal practice in Victoria

42
Q

the bar roll was introduced

A

in 1902

43
Q

legal practitioners are…

A

lawyers Wich hold a current Australian practicing certificate

foundations of law (4 decks)

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