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LAW101 > Week 2 Lecture > Flashcards

Week 2 Lecture Flashcards

1
Q

In the Western legal tradition (common law) what is a key source of law?

A

Cases and Legislation.
Origins: UK
Strong influence of Christianity
- but can be vague – strong role of judiciary

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2
Q

What is the origin of the western legal tradition (common law)?

A

UK

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3
Q

Does the western legal influence have a strong influence of christianity?

A

Yes

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4
Q

What has the central role in the western legal influence?

A

Central role of the Monarch as source of law and justice.

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5
Q

What are the benefits of the Western Legal tradition (common law)?

A

Inherently flexible and adaptable.

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6
Q

What are the disadvantages of the Western legal tradition?

A

It can be vague.

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7
Q

Because the Western legal tradition is vague, what does it often require?

A

Strong role of the judiciary.

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8
Q

What are the three major sources of law in a common law system?

A

Judicial Decisions, parliament and private treaty.

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9
Q

What is a minor source of law?

A

Statutory instruments (regulation).

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10
Q

Why is common law an adversial process?

A

Individuals best placed to bring disputes before a court

and law centrally placed to regulate conflict

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11
Q

What role do judges play in common law proceedings?

A

Limited role

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12
Q

What do judges do in common law proceedings?

A

Determine questions of law
Facilitate the case as presented by the parties
Juries determine questions of fact
Judges interpret the law
Cultural / legal expectations on the role of a fair and impartial process

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13
Q

In civil law, what is the key source of law?

A

Codes.

Inherently prescriptive and clear, can struggle to adapt – strong role for legislature

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14
Q

What are the origins of civil law?

A

Napoleonic occupation of Europe

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15
Q

What is civil law heavily influenced by?

A

Roman principles.

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16
Q

Does civil law have a strong influence of political philosophy?

A

Yes, especially rights.

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17
Q

What is the role of the state in civil law?

A

Central role of the State as source of law and justice

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18
Q

What are the advantages of civil law?

A

Inherently prescriptive and clear.

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19
Q

Can civil law struggle to adopt?

A

Yes.

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20
Q

What is civil law heavily based on?

A

Codification of law

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21
Q

In civil law, what is the most authoritative statement of law?

A

Codes.

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22
Q

In civil law, is the need for judicial interpretation more or less than common law?

A

Less.

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23
Q

Does civil law compared to common law have a heavier role of defined terms?

A

Yes.

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24
Q

What role do judges play in common law?

A

Judges play an more active role in investigation and determination of facts

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25
Q

In what kind of law do judges engage in a fact finding mission, assisted by the advocates?

A

Judges engage in a “fact finding” mission, assisted by the advocates.

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26
Q

What is the ecclesiastic legal tradition have as a source of law?

A

Revelation and Church Edict as Source of Law.

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27
Q

What are the origins of the ecclesiastic source of law?

A

Canon law, heavily influenced by Roman Catholic Church and Roman law.

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28
Q

What law has a strong influence of divine law?

A

ecclesiastic law

29
Q

What is the role of scripture in ecclesiastic law>?

A

Central, source of law and justice.

30
Q

In ecclesiastic law, what is the judicial system?

A

Inquistorial.

31
Q

What is procedural law compared to?

A

Substantive law.

32
Q

What is public law compared to?

A

Private law.

33
Q

What is civil law compared to?

A

Criminal law.

34
Q

What is domestic law compared to?

A

Foreign law.

35
Q

What kind of rules does substantive law have?

A

Specific rules.

36
Q

What does substantive law do?

A

Creates, defines and regulates people’s rights, duties, powers and liabilities

37
Q

What is substantive law based on?

A

Legislative and common law principles

38
Q

What is an example of substantive law?

A

Eg. Killing a human being is unlawful unless authorised, justified or excused by law: Criminal Code 1899 (Qld) s291

39
Q

What does procedural law do?

A

Enforcing rights and duties

40
Q

What does procedural law prescribe?

A

Prescribes manner, form and order which matters may be dealt with and enforced in a judicial forum

41
Q

What is an example of procedural law?

A

Eg. when a person is committed for trial, their charged must be reduced to writing: Criminal Code 1899 (Qld) s560

42
Q

Who does public law apply to?

A

Applies to every person within a geographic location.

43
Q

What does public law govern?

A

It governs the relationship between people and the state.

44
Q

Does public law require consent?

A

No, it applies to ALL without consent.

45
Q

Does public law apply to the government?

A

Yes, it applies to the government and its people.

46
Q

What are examples of public law?

A

Crime; Constitutional law; Taxation; Social security; Land Tenure

47
Q

What does private law apply to?

A

Applies to specific parties to a transaction.

48
Q

Is private law restricted by boundaries?

A

No.

49
Q

What does private law govern?

A

Governs the relationship between those parties.

50
Q

What does private law apply to?

A

Parties.

51
Q

What are examples of private law?

A

Trade and commerce; personal injury; succession; contract; family law.

52
Q

What does criminal law provide punishment for?

A

Punishment for crimes the State declares wrong.

53
Q

Who does the state prosecute on behalf of in criminal law?

A

The victim.

54
Q

What are penalties in criminal law?

A

imprisonment, fines, community service etc.

55
Q

What does criminal law often mirror?

A

Society’s moral position.

56
Q

Does criminal law differ between jurisidications?

A

Yes.

57
Q

In criminal law, how do we have to prove things?

A

“Beyond reasonable doubt”

58
Q

In civil law, what is being governed?

A

Individual rights and disputes

59
Q

What occurs in civil law?

A

Plaintiff seeks remedy for personal wrong

60
Q

What is a common remedy in civil law?

A

Compensation

61
Q

How do we prove things in civil law?

A

“On the balance of probabilities”

62
Q

What are examples of civil law?

A

Eg. family law, tort law, contract law, commercial law etc.

63
Q

Is domestic law jurisidctional?

A

yes

64
Q

What does domestic law include?

A

Commonwealth and State

65
Q

What is domestic law based of?

A

Legislation and Case law

66
Q

What is public international law?

A

Rights and obligations of sovereign nations

Private international law:

67
Q

What is private international law?

A

Transactions between private persons crossing national boundaries

68
Q

Why is international law important?

A

Increasing globalisation

Incorporation into domestic law

LAW101 (13 decks)

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