Week 1: Nature and function of law Flashcards
What do we define law as? What are some non-legal rules? Does non-legal rules work better in smaller groups and communities? What about tin larger groups?
We define law as rules of conduct or organization that are recognized, applied and enforced by the power of the state. Non-legal rules are rules of conduct or organization that are enforced by things such as peer pressure, a need to co-operation, feelings of goodwill or convenience
Non-legal rules are derived from a variety of sources,e.g:
- Moral or philosophical beliefs
- Religious beliefs
- The laws of nature
- Social values
- Rules hat have become customary in a community
Non-legal rules work well enough in smaller groups and communities
In larger groups, non-legal rules become inadequate. Rules enforced by the state are common in all larger societies as a necessary means of regulating conduct
Who makes law? Are there procedures and processes for making laws in legislatures?
The main agencies of law-making at federal, state and territory level in Australia are:
- Elected legislatures
- And the courts
There are recognized procedures and processes for making law in legislatures, just as how there are rules for judges in making law
List some laws used in everyday context
- Criminal law
- Contract law
- Tort law: imposes liablility for misconduct
- Property law
- Agency law
- Corporations law
- Constitutional law
- Administrative law
- National and international law
What is important to note about each specific context of law?
It is important to note that each area of law is concerned with particular types of conduct or situations Dividing legal rules into areas helps to clarify the nature and structure of the law
More on law in everyday context
- If you take examples of particular situations or events, you should be able to identity the relevant area of law
- For example if a person is arrested for deliberately setting fire to a building, the facts suggest that the criminal law is relevant, because this conduct is prohibited and punished by the state
What is important to note about each specific context of law?
It is important to note that each area of law is concerned with particular types of conduct or situations Dividing legal rules into areas helps to clarify the nature and structure of the law
More on law in everyday context
- If you take examples of particular situations or events, you should be able to identity the relevant area of law
- For example if a person is arrested for deliberately setting fire to a building, the facts suggest that the criminal law is relevant, because this conduct is prohibited and punished by the state
What are some examples of business law?
- contract law
- tort law
- corporations and taxation law
- consumer law
- Plus, selected topics form other traditional divisions of law
Why learn business law?
Knowledge of business law is important because it enables a person to:
- Recognize the legal aspect of typical business situations and understand the legal rules involved
- Know the extent to which they can rely on legal rights and duties
- Know how to use the law constructively to achieve desired outcomes For example, it is useful to know:
- How enforceable agreements for goods and services can be created
- You might be able to be compensated if a person doesn’t fulfil their obligations to you in an agreement
- How to advertise goods and services in a way that does not mislead customers under consumer protection law
- How to delegate responsibilities and discretion to certain employees
What is the anatomy of law?
The law: All the rules of organization and conduct recognized and enforced by the government of a state Examples: Australian law, English law and Malaysian law
Areas of law: Categories of convenience used to group together the rules of law that are considered to be related in some way Example: Contract law, Property law, Tort law and Business law
Concepts: The broad ideas which determine the nature and scope of an area of law and which, when organized appropriately, provide a coherent framework and sequence of ideas Example: Contract, Contract formation, Consensus, Offer, Acceptance, Intention, Consideration and Contract obligations
Principles: The fundamental and non negotiable components of concept. Principles serve to demarcate concepts and indicate their nature, scope and content
Examples:
Contracts are created only when the parties to an agreement intend to be bound legally
An intention to be legally bound is ascertained objectively rather than subjectively
Rules: The detailed mechanisms designed to give effect to particular legal principles. Rules delimit and qualify principles in specific ways and cater for specific situations that may fall under a particular principle. Rules can be changed without destroying the underlying principle.
Example: an intention to be legally bound is to be inferred form the known circumstances at the time of an agreement
Meaning: The sense in which concepts, principles rules and words are to be understood. Meaning may be assisted by definition, interpretation and context
Example:
The word consideration when used in contract formation means something given by one party in exchange for what is being promised by the other
What is the anatomy of law?
The law: All the rules of organization and conduct recognized and enforced by the government of a state Examples: Australian law, English law and Malaysian law
Areas of law: Categories of convenience used to group together the rules of law that are considered to be related in some way Example: Contract law, Property law, Tort law and Business law
Concepts: The broad ideas which determine the nature and scope of an area of law and which, when organized appropriately, provide a coherent framework and sequence of ideas Example: Contract, Contract formation, Consensus, Offer, Acceptance, Intention, Consideration and Contract obligations
Principles: The fundamental and non negotiable components of concept. Principles serve to demarcate concepts and indicate their nature, scope and content
Examples:
Contracts are created only when the parties to an agreement intend to be bound legally
An intention to be legally bound is ascertained objectively rather than subjectively
Rules: The detailed mechanisms designed to give effect to particular legal principles. Rules delimit and qualify principles in specific ways and cater for specific situations that may fall under a particular principle. Rules can be changed without destroying the underlying principle.
Example: an intention to be legally bound is to be inferred form the known circumstances at the time of an agreement
Meaning: The sense in which concepts, principles rules and words are to be understood. Meaning may be assisted by definition, interpretation and context
Example:
The word consideration when used in contract formation means something given by one party in exchange for what is being promised by the other
