Week 2 Lecture Flashcards
In the Western legal tradition (common law) what is a key source of law?
Cases and Legislation.
Origins: UK
Strong influence of Christianity
- but can be vague – strong role of judiciary
What is the origin of the western legal tradition (common law)?
UK
Does the western legal influence have a strong influence of christianity?
Yes
What has the central role in the western legal influence?
Central role of the Monarch as source of law and justice.
What are the benefits of the Western Legal tradition (common law)?
Inherently flexible and adaptable.
What are the disadvantages of the Western legal tradition?
It can be vague.
Because the Western legal tradition is vague, what does it often require?
Strong role of the judiciary.
What are the three major sources of law in a common law system?
Judicial Decisions, parliament and private treaty.
What is a minor source of law?
Statutory instruments (regulation).
Why is common law an adversial process?
Individuals best placed to bring disputes before a court
and law centrally placed to regulate conflict
What role do judges play in common law proceedings?
Limited role
What do judges do in common law proceedings?
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
In civil law, what is the key source of law?
Codes.
Inherently prescriptive and clear, can struggle to adapt – strong role for legislature
What are the origins of civil law?
Napoleonic occupation of Europe
What is civil law heavily influenced by?
Roman principles.
Does civil law have a strong influence of political philosophy?
Yes, especially rights.
What is the role of the state in civil law?
Central role of the State as source of law and justice
What are the advantages of civil law?
Inherently prescriptive and clear.
Can civil law struggle to adopt?
Yes.
What is civil law heavily based on?
Codification of law
In civil law, what is the most authoritative statement of law?
Codes.
In civil law, is the need for judicial interpretation more or less than common law?
Less.
Does civil law compared to common law have a heavier role of defined terms?
Yes.
What role do judges play in common law?
Judges play an more active role in investigation and determination of facts
In what kind of law do judges engage in a fact finding mission, assisted by the advocates?
Judges engage in a “fact finding” mission, assisted by the advocates.
What is the ecclesiastic legal tradition have as a source of law?
Revelation and Church Edict as Source of Law.
What are the origins of the ecclesiastic source of law?
Canon law, heavily influenced by Roman Catholic Church and Roman law.
What law has a strong influence of divine law?
ecclesiastic law
What is the role of scripture in ecclesiastic law>?
Central, source of law and justice.
In ecclesiastic law, what is the judicial system?
Inquistorial.
What is procedural law compared to?
Substantive law.
What is public law compared to?
Private law.
What is civil law compared to?
Criminal law.
What is domestic law compared to?
Foreign law.
What kind of rules does substantive law have?
Specific rules.
What does substantive law do?
Creates, defines and regulates people’s rights, duties, powers and liabilities
What is substantive law based on?
Legislative and common law principles
What is an example of substantive law?
Eg. Killing a human being is unlawful unless authorised, justified or excused by law: Criminal Code 1899 (Qld) s291
What does procedural law do?
Enforcing rights and duties
What does procedural law prescribe?
Prescribes manner, form and order which matters may be dealt with and enforced in a judicial forum
What is an example of procedural law?
Eg. when a person is committed for trial, their charged must be reduced to writing: Criminal Code 1899 (Qld) s560
Who does public law apply to?
Applies to every person within a geographic location.
What does public law govern?
It governs the relationship between people and the state.
Does public law require consent?
No, it applies to ALL without consent.
Does public law apply to the government?
Yes, it applies to the government and its people.
What are examples of public law?
Crime; Constitutional law; Taxation; Social security; Land Tenure
What does private law apply to?
Applies to specific parties to a transaction.
Is private law restricted by boundaries?
No.
What does private law govern?
Governs the relationship between those parties.
What does private law apply to?
Parties.
What are examples of private law?
Trade and commerce; personal injury; succession; contract; family law.
What does criminal law provide punishment for?
Punishment for crimes the State declares wrong.
Who does the state prosecute on behalf of in criminal law?
The victim.
What are penalties in criminal law?
imprisonment, fines, community service etc.
What does criminal law often mirror?
Society’s moral position.
Does criminal law differ between jurisidications?
Yes.
In criminal law, how do we have to prove things?
“Beyond reasonable doubt”
In civil law, what is being governed?
Individual rights and disputes
What occurs in civil law?
Plaintiff seeks remedy for personal wrong
What is a common remedy in civil law?
Compensation
How do we prove things in civil law?
“On the balance of probabilities”
What are examples of civil law?
Eg. family law, tort law, contract law, commercial law etc.
Is domestic law jurisidctional?
yes
What does domestic law include?
Commonwealth and State
What is domestic law based of?
Legislation and Case law
What is public international law?
Rights and obligations of sovereign nations
Private international law:
What is private international law?
Transactions between private persons crossing national boundaries
Why is international law important?
Increasing globalisation
Incorporation into domestic law
