1. Basic legal concepts
Meaning of law
In general terms, the law can be defined as a set of enforceable rules of conduct which set down guidelines for relationships between people and organisations in society.
Why do we have laws?
We have laws so that society can work effectively, to make sure that people or organisations are not able to use power, money or strength to take advantage of others or to make things better for themselves.
We have laws to make sure that everyone understands their rights and obligations, and the rights and obligations of others.
What is a legal system?
The legal system is a broad term that describes the laws we have, the process for making those laws, and the processes for making sure the laws are followed.
Customs are traditional ways of behaving. They develop when behaviour in a particular situation becomes so common that members of the community expect it to occur all the time.
Customs may create an expectation that certain events will happen – such as receiving gifts on a birthday
Customs are not recorded in written form
Those who do not follow customs of their community are likely to be socially excluded
Rules tell us what is allowed and what is prohibited
They may relate to a particular area, such as a park OR a situation, such as rules for a sporting game.
They are different from customs because they are recorded either in written form or symbols
Rules are enforced differently than customs. Penalties are used to ensure rules are obeyed and may range from a fine to expulsion from a particular area
Laws are made by a sovereign power – and apply to everyone equally in the area that they control
A sovereign power is a person or institutions that has the authority to make laws
In Australia this includes: the courts, parliament and organisations to which parliaments have delegated lawmaking power.
Laws are LEGALLY BINDING
Values and Ethics
Values reflect society’s judgement about the importance of different things
If we consider something to be important, we expect the law to protect it.
Ethics define what we consider to be right and wrong way to behave.
Most people think it is unethical to take advantage of another person.
We expect the law to force people to act in an ethical manner
The values and ethics of society are constantly changing
It is important that the law is reformed and mended.
Characteristics of just laws
In order to be valid, the law needs to be just.
It is equal: applying the law equally does not mean the outcome of the law will be equal
It is based on widely held values
It is utilitarian: it achieves the greatest good for the great number of people
It aims to reduce inequality
It must minimise delay
The law must be made for the future
The law must be known: recorded in government gazettes, advertised in media
Nature of Justice
Equality means that all people are entitled to enjoy the same rights and opportunities and that no one should be privileged or disadvantaged
People should be treated in the same manner, they should have equal opportunities
E.g. a 12 yr old would be charged differently than a 40 yr old.
Fairness is about achieving equal outcomes for people
Often the easiest way to do this is to treat people equally, which is why fairness and equality are closely linked.
However, treating people the same way does not guarantee equal outcomes
Sometimes we need to treat people unequally to achieve a fair result
A judge may take into account the offenders background in a trial before deciding on punishment.
This means to have the capacity to seek and obtain justice from the legal system
Legal aid (means, merit, jurisdiction)
Cost-efficient alternatives to the courts
Main barrier to access is cost of legal representation and knowledge of how the legal system operates.
EQUALITY: how the law is applied
FAIRNESS: the outcome of the law that is applied
Procedural fairness (NATURAL JUSTICE)
Idea that there must be