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Preliminary Legal Studies: Basic Legal Concepts

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matt bingham

on 10 February 2015

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Transcript of Preliminary Legal Studies: Basic Legal Concepts

Preliminary Legal Studies: Basic Legal Concepts
1.1.2 Customs, Rules and Laws
Customs are established patterns of behaviour among people in a society or group.

Because of differences between societies, not all customs become law.

1.1.3 Values and Ethics
We all have values by which we try to live.

Living according to our ethics means that we do things that we consider to be morally right.

Law-makers try to incorporate these values and ethics into laws. However, it is very difficult to make rules, and thus laws, about everyone’s values, especially as there are often groups in society that have differing standards of what is morally right or wrong.

When a new law is passed or an old law is amended (changed), the public must be notified, usually through advertising campaigns and newspaper notices.

This ensures that all people can be informed about of the law.

1.1.1 The Meaning of Law
The law is a dynamic thing – a complex mechanism, evolving from hundreds of years of tradition, culture and values.

The law can be defined as a set of enforceable rules of conduct which set down guidelines for relationships between people and organisations in a society.

The law provides methods for ensuring the impartial treatment of people, and outlines punishments for those who do not follow the agreed rules of conduct.

The law, as we know it, is made up of the formal rules of society.

These ‘legal rules’ have been agreed upon by the majority of those in in the group, and govern their behaviour and activities.

Laws allow and prohibit a whole variety of activities, from where rubbish should be placed to how we should treat fellow human beings.

1.1.4 Characteristics of Just Laws
The concept of justice involves the fair and impartial treatment of all persons, especially under the law.

Laws have certain characteristics that make them different from rules:

Laws are binding on the whole community. This means that they apply to all members of society.
Laws can be enforced. This means that penalties apply if a law is broken.
Laws are officially recognised. This means that governments and courts recognise laws and enforce them.

For example, in Australia it is customary for a man to shake hands when greeting a friend, whereas in Europe this greeting may be in the form of a kiss on each cheek.
Three types of customary law that have influenced the Australian legal system are:
Aboriginal and Torres Strait Islander customary law
English customary law
international customary law.

Generally, rules refer to prescribed directions for conduct in certain situations. Rules are generally made by groups and only affect people within those groups.

These rules often vary between groups and are not enforceable by the state.

Rules can also be altered by these people in order to deal with changes in situations. This usually happens after consultation with the group members involved.

The law, as we know it, is made up of the formal rules of society.

These ‘legal rules’ have been agreed upon by the majority of those in in the group, and govern their behaviour and activities.

Laws allow and prohibit a whole variety of activities, from where rubbish should be placed to how we should treat fellow human beings.
Laws are accessible (or discoverable). This means that people can find out which law applies to a particular situation.

Laws relate to public interest. This means that laws exist for things that concern the whole of society, and that interest is considered to outweigh the costs or drawbacks of the government’s involvement in enforcing them.

Laws reflect rights and duties. This means that everyone in society has responsibilities to others, such as the duty to drive safely, and that everyone has the right to be treated in the same way by others.
For this reason laws will only cover those ethical values that are common to the majority or the dominant group. Over the past three decades many groups have voiced their values and ethics in a public manner in an attempt to influence the law and the legal system.

In simple terms, justice can be seen as the continued effort to do the right thing by everyone.

A just law is one that allows everyone to receive fair treatment and outcomes, and ensures that human rights are recognised and respected.

1.1.5 Nature of Justice
The system of courts, prosecutors and police in a country is often called the legal system.

It is the task of the legal system to ensure that all citizens have equal access to the law and that the law provides equality, fairness and justice to all members of society.

However, if all citizens do not have full and equal access to the legal system, equality, fairness and justice are just empty concepts.
Equality means that all people in a society are treated in the same way with respect to political, social and civil rights and opportunities; no one enjoys unfair advantage or suffers unfair disadvantage.

While the law strives for equality, it also takes into account people’s different capacities, such as maturity, recognises that some people are more vulnerable than others, and provides protection for them.

For example, children under 10 years of age cannot be held legally accountable for their actions and therefore cannot be convicted of a criminal offence.
This presumption is known as doli incapax. In the case of 10–14-year-olds, the court will make an assessment as to whether the child can tell the difference between right and wrong, and this will influence the way in which the matter is handled.
Fairness and justice are usually associated with each other. The difference is that the term ‘fairness’ applies to everyday life, whereas ‘justice’ has more legal connotations. People may have different opinions about what is fair.
Access refers to the ability to obtain or make use of something.
The legal system can only fulfill this goal if all people have equal access to the agencies and institutions of the law.
However, in reality, the legal system is not accessible to everybody equally;
Financially disadvantaged people,
Disabled people,
People from non-English speaking backgrounds,
Aboriginal and Torres Strait Islander peoples,
and those who are institutionalised may experience particular difficulties.
1.1.6 Procedural Fairness
Procedural fairness refers to the idea that there must be fairness in the processes that resolve disputes.

It is closely linked to the concept of natural justice; the two terms are often used interchangeably.
1.1.7 Rule of Law
In principle, the law embodies the concept that what each individual believes is important has the same importance to the larger group.
1.1.6 Procedural Fairness
Natural justice refers to the fact that everyone should be treated fairly in legal situations.
There are two main principles of natural justice. These are:

• The right to be heard – this includes the right to a fair hearing
• The right to have a decision made by an unbiased decision-maker – even an appearance of bias is enough to constitute a breach of natural justice.
Laws also function to protect all members of society. They tell society what actions are and are not permitted.
Laws apply sanctions to those found guilty of a crime, and may act as a deterrent to those who might otherwise commit a crime.
Laws enable people to resolve disputes, as they empower the police force and the courts to enforce and administer the law.

People will not follow rules if they do not agree with them or feel that the rules have no connection to them. This is especially so if the penalty attached to the rule is seen as inadequate.
As would be expected, however, laws against more serious offences carry a range of stricter penalties, which are intended to make people think seriously about the consequences before breaking the law.
1.1.8 Anarchy
In a situation of anarchy, social order breaks down. People need laws to keep relationships between them reasonably harmonious. In order to maintain an orderly society, law has several functions:

1.1.9 Tyranny
In many ways tyranny is the complete opposite of anarchy.
Anarchy & Tyranny
Recognition of values and ethics – reflect the values and ethics of society eg moral, economic, spiritual, personal, emotional, community etc
Establishment of patterns of conduct – establish ways of behaving that are acceptable and that encourage the smooth running of society. This is done by establishing explicit rules to forbid certain conduct
Provision of dispute resolution – settle disputes between people and the state when the person is accused of moving beyond the acceptable rules of conduct established by the law.
Adaption to change – laws need to change as society changes, however this needs to be consistent so that people have confidence in the law.

Laws change so that they are appropriate to society eg homosexuality decriminalised in NSW in 1984 and in 1997 in Tasmania, recent changes to gun and firearms laws etc.
Constitutions (if existing) are ignored.
As a result, there is no Rule of Law.
These countries are often referred to as 'police states'
There is no distinction between law makers,
law enforcers or the courts!
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