Resource: Year 11 Basic Legal Notions Notes (1 Viewer)

[goan_crazy]

It didnt let me attach so i copied and pasted...

Basic legal notions
- Anarchy, custom, rules, law, fairness, equality and justice, values and ethics
- Relationship between rules, laws and custom

Anarchy- society that has no laws or ruling body
Custom- traditions that have been developed by a society over a long period of time e.g. taking husbands last name.
Rules- controlling commands which have the authority of a super power. Apply to only groups of people.
Law- rule of conduct for people that are enforced legally and apply to everyone e.g. crimes Act
Fairness- no bias or prejudice, honesty and in accordance with the law. E.g. Tax rules
Equality- everyone is treated the same e.g. laws are the same for everyone
Justice- a just decision is good and fair. Justice can also refer to vengeance

Sources of Contemporary Australian Law
- Common law and the different uses of the term ‘common law’
- The system of precedent
- Statute law and delegated legislation
- The constitution
- Criminal Law and Civil Law

Sources and framework of International Law
- Origins and sources of International Law: treaties, customs, legal decisions, and legal writings
- Principal International oganisations: United Nations (UN), International Court of Justice (ICJ)


Statute Law- law made by parliament, has (Act) after it
Common Law- Law made in the courts of the law inherited from the UK
Domestic law- the law of a nation (municipal law)
International Law- governs interactions between nations or states
Customary Law- law established over long periods of time, based on traditions and customs

Picture 1

Common law
Advantages
- Deals directly with the issues raised by the parties
- Is generally more acceptable to people who have legal problems
- Provides and immediate response to a legal problem
Disadvantages
- Is bound by precedent (inflexible)
- Is subordinate to the law made by parliament
- Only deals with issues brought before it by parties (not able to affect general legal problems at the outer boundaries of a dispute)
- Costly and time consuming
- Is generally conservative in nature


Statute Law
Advantages
- May be altered at any time
- Is not bound by precedent
- Is made by the elected representatives of the Australian people
- Is higher than Common Law and may over ride a judicial decision
Disadvantages
- May be sallow to attack the question of law that have strong moral or ethical aspects
- Is not bound by precedent (therefore can be changed more easily)
- Is made with a large body of people with different interests and may therefore be a compromise law which does not effectively solve certain problems in society
- Is general in nature and sometimes fails to answer the specific problems of individual citizens


Equity Law- body of laws that forms an addition to the common law, and which lessens the harshness of some common law decisions. Based on fairness and good conscience
-Equity will not suffer a wrong without a remedy
- Will depart from law to find a remedy where the common law is deficient
- Must not have breached any laws
- Equity assists the diligent and not the tardy



Criminal law- is the area of public law that is directed to the actions of individuals in society, enforced by police. Involves offences by the community punishable by the state e.g. murder, assault
Civil law- the area of private law that deals with disputes between private individuals e.g. trespassing, negligence (not involving police)



International Law
- Is the law that governs the interactions between nations or states as they are known in the international sphere

Sources of international law
- Customary International Law
- Treaties
- Conventions
- Agreements between nations
- UN resolution

How to recognise International Law
- Declaration
- UN resolution
- Treaty
- Convention

Constitution- document that sets out the powers of the government
Two types
- Commonwealth (powers called exclusive)
- State (powers called residual)

















Doctrine of Precedent- a group of rules that attempt to ensure consistency between judicial decisions by limiting the ability of a judge to be creative when a decision about a similar case (precedent) has previously been made

Ratio decidedi- the reason for the decision. Is binding for future cases
Obiter Dicta- judges opinion of the person, not binding

 

[isoonsui]

thanks, joe

 

[roro]

ah thank you so much.

 

[goan_crazy]

isnt it ratio decendi (or something like that?)

lol good old yr 11 legal!

ratio decicendi-reason for decision and obiter dicta
<3 legal
miss yr11 legal!

 

[LaraB]

Common law
Advantages
- Deals directly with the issues raised by the parties
- Is generally more acceptable to people who have legal problems
- Provides and immediate response to a legal problem
Disadvantages
- Is bound by precedent (inflexible)
- Is subordinate to the law made by parliament
- Only deals with issues brought before it by parties (not able to affect general legal problems at the outer boundaries of a dispute)
- Costly and time consuming
- Is generally conservative in nature

Statute Law
Advantages
- May be altered at any time
- Is not bound by precedent
- Is made by the elected representatives of the Australian people
- Is higher than Common Law and may over ride a judicial decision
Disadvantages
- May be sallow to attack the question of law that have strong moral or ethical aspects
- Is not bound by precedent (therefore can be changed more easily)
- Is made with a large body of people with different interests and may therefore be a compromise law which does not effectively solve certain problems in society
- Is general in nature and sometimes fails to answer the specific problems of individual citizens

Equity Law- body of laws that forms an addition to the common law, and which lessens the harshness of some common law decisions. Based on fairness and good conscience
-Equity will not suffer a wrong without a remedy
- Will depart from law to find a remedy where the common law is deficient
- Must not have breached any laws
- Equity assists the diligent and not the tardy

Criminal law- is the area of public law that is directed to the actions of individuals in society, enforced by police. Involves offences by the community punishable by the state e.g. murder, assault
Civil law- the area of private law that deals with disputes between private individuals e.g. trespassing, negligence (not involving police)

International Law
- Is the law that governs the interactions between nations or states as they are known in the international sphere

Sources of international law
- Customary International Law
- Treaties
- Conventions
- Agreements between nations
- UN resolution

How to recognise International Law
- Declaration
- UN resolution
- Treaty
- Convention

Constitution- document that sets out the powers of the government
Two types
- Commonwealth (powers called exclusive)
- State (powers called residual)

Doctrine of Precedent- a group of rules that attempt to ensure consistency between judicial decisions by limiting the ability of a judge to be creative when a decision about a similar case (precedent) has previously been made

Ratio decidedi- the reason for the decision. Is binding for future cases
Obiter Dicta- judges opinion of the person, not binding

Common law
Advantages
- Provides an immediate response to a legal problem ---- altho keep in mind the appeal process and the extremely lengthy waiting period before your trial is actually heard and the fact that time i taken until payments from actions are reached
Disadvantages
- Is bound by precedent (inflexible) --- this is often seen as an advantage as it prevents whimsical change - ie there has to be a good reason for change and the law can only be changed if its found to be incorrect/inappropriate.
- Only deals with issues brought before it by parties (not able to affect general legal problems at the outer boundaries of a dispute) --- however thru the doctrine of precednt, it establishes binding principles.


Statute Law
Advantages
- May be altered at any time ---- not true - bills must be raised and passed - often a lengthy process and generally must be due cause for it or MPs wont votefor the amendment etc. not necessarily an advantage - this means politicians can in effect make decisions on whim whereas the courts cannot and this is so personal bias doesnt show thru so it may ebe a disadvantage.
- Is not bound by precedent ---- unless the high court finds that the act is not able to be made as parliament does not have the power to pass such a law or if the statute is found to be unconstitutional
- Is higher than Common Law and may over ride a judicial decision --- except in the case where the judicial decision of the high court finds (the above point)
Disadvantages
- Is made with a large body of people with different interests and may therefore be a compromise law which does not effectively solve certain problems in society --- compromise is not usually seen as a disadvantage as that's the point in a democractic system - the government cant just have its say so, the opposition and otehr parties can put forward points so that a greater majority of people's needs are met by the law.


*Equity law exists to remedy circumstances that are not remedied under common law. Does not necessarily lessen the harshness of common law decisions. Keep in mind that there are now unliek in teh past, equity divisions within ordinary common law courts, so it isnt as separate in all states as it used to be

[Constitution- document that sets out the powers of the government
Two types
- Commonwealth (powers called exclusive)
- State (powers called residual)]
Also there are concurrent powers. The Commonwealth constitution sets out commonwealth powers and also the powers it delegates to lower levels and teh state sets out each respective states powers - these may be concurrent and it depends on each state as to which powers are and these are written into the constitution. Concurrent include trade powers.


Doctrine of Precedent- the doctrine inherited by australia through the doctrined of reception from England, which requires that courts of lower standing are required to follow an established decision set by a higehr court in instances in which the facts are the case are undistinguishable( the same). A precedent may be overturned or ignored if a judge distinguishes the case from the precedent ie teh facts are different. or if the court at hand is of an equal or higher level (if same level, must be equal or greater number of judges presiding to overturn precedent).

Its not as simple as ratio = reason for decision, obiter =judges opinion of thye person. Its actually quitue complicated to disscern one from the other, but put simply - Ratio = the judges answer to the legal issues he/she was asked to consider. Obiter = everything else. Isnt just the judges opinion o the perosn, say a case is about a woman who killed her infant child, if the judge starts on about how she shoulda got an abortion earlier and starts talking about how abortions are moral/immoral etc that too is ratio as it doesnt provide a solution to teh speciic legal issue at hand.

yes the answers quoted are correct

but there are also more factors to account for. Most teachers won't expect you to elaborate on things like the fact that precedent;s infleixbility isnt' necessarily a bad thing as although opportunities for change are small, it is good as it espouses the very ideals of a predictable and consistent legal system.... but if you do it'll boost your marks upa notch or 2 and show that you dont just learn what you're told but you actually think about the subject matter practically and have your own kinda... understanding of how it works in practice compared to how it works in theory..

thats what makes you stand out from the avge/good student comes in handy for HSC essays coz if you show knowledge of teh way the law works in reality as compared t how a text book says it works in theory it shows you undertsand the basic concepts better