TOPIC 1: BASIC LEGAL NOTIONS
o Anarchy, custom, rules, law, fairness, equality + justice, values and ethics
Anarchy: The situation that exists in a society that does not have laws or state rule
Custom: The collective habits, or traditions, that have been developed by a society over a long period of time
Rules: The authoritative regulation of behaviour
Fairness: The legitimate and proper conduct in the performance of an act or duty
Equality: Suggests that everyone is treated the same. Formal equality occurs when the law provides that, in certain define circumstances, everyone is treated equally regardless of their background, social and economic status
Justice: May refer to the philosophical notion of a ‘just’ decision I.e. that is good and fair
Values and ethics: People or group opinion of what they believe to be morally right etc.
o Relationship between rules, laws and customs
The relationship between rules, laws and customs is that laws are legally put in place by the government and must be followed. People obey the law to conform and the fear of facing punishment if they don’t. People also follow law because they take pride in being “law-abiding” citizens or they think it is morally wrong to break the law. When rules are used for long periods of time those rules may then become a custom. These customs are recognised by a sovereign and then may become a law.
TOPIC 2: SOURCES OF LAW
o The spiritual nature of Aboriginal customary law and Torres Strait Islander customary law
These customary laws are those rules of society and family which indigenous peoples developed over the tens of thousands of years of their occupancy in Australia.
*Customary Law is based on: unwritten laws, kinship ties and relationships with law, ritual traditions, sacred and secular laws and clan consensus.
o Diversity of Aboriginal law and Torres Strait Islander societies
Because of the many tribes within these cultures most of the laws may be said to have similar bases or consequences. Each clan had their own area and customary law. Law, rules, morals, religion and social behaviour were all part of one law with roots in tradition and custom.
o Ritual and oral traditions within Aboriginal and Torres Strait Islander societies
Oral and ritual traditions were strong due to lack of written history. Social customs, religion and spirituality, land management techniques, family ties, initiation rites etc were all recorded by the members of the different tribes.
o Conciliation and mediation within Aboriginal and Torres Strait Islander societies
Small tribal groups meant that conciliation and mediation (forms of settling disputes) were the favoured methods. Conciliation was largely controlled by the elders and was the primary method of resolving conflicts
o Enforcement and sanction within Aboriginal and Torres Strait Islander societies
Aboriginal and Torres Strait Islander peoples used many different methods of solving disputes:
Consensus, talking, argument, ritual/ordeal, inquest, mediation and conciliation. Punishments includes revenge, social ridicule, insulting, isolating, ‘pay-back’ method, trials by ordeal and death.
o The significance of land and bodies of water to Aboriginal and Torres Strait Islander societies
Aboriginal and Torres Strait Islander people having strong connections to their land “The Aboriginal would speak of the ‘earth’ and use the word in a richly symbolic way to mean his ‘shoulder’ or his ‘side’.” - Nathan and Japunangka’s Settle Down Country. The land contained a spiritual or religious element to indigenous peoples.
o Common law and the different uses of the term ‘common law’
Common law has a few meanings. It could denote the system of law a country uses. Common law may also be used to refer to the law that comes from the decisions of the courts and may also be used as a reference to the law that was traditionally developed by the courts of common law.