Readings for Chapter 1

As members of the community, we are subject to a range of rules, legal and nonlegal, which determine our relationship with other members of society.. Within our families we are bound by

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READINGS FOR TOPIC 1 STATE AND LAW

1 GENERAL DESCRIPTION 1

Law is also essential Every society of which we have any historical record has had some system of laws Naturally, the systems have varied enormously

An extraordinary example of a detailed written law comes from the Visigoths, a nomadic European people who overran much of present-day France and Spain during the fifth and sixth centuries A.D Their code admirably required judges to be "quick of perception, clear in judgment, and lenient in the infliction of penalties." It detailed dozens

of crimes For example, a freeman who kidnapped the slave of another had to repay the owner with four slaves and suffer 100 lashes If he did not have four slaves to give, the kidnapper was himself reduced to slavery Sadly, the code explicitly permitted torture of slaves and lower-class freemen, while prohibiting it for nobles.' The Iroquois Native Americans, disregarded by many historians, in fact played a role in the creation of our own government Five major nations made up the Iroquois group: the Mohawk, Cayuga, Oneida, Onondaga, and Seneca Each nation governed itself regarding domestic issues But each nation also elected "sachems" to a League of the Iroquois The league had authority over any matters that were common to all, such as relations with outsiders

Thus, by the fifteenth century, the Iroquois had solved the problem off ederalism: how to

have two levels of government, each with specified powers Their system impressed Benjamin Franklin and others and influenced the drafting of our Constitution, with its powers divided between state and federal governments? As European nations today seek

to create a more united Europe, they struggle with the same problem

The greatest of all Chinese lawgivers disliked written law altogether Confucius, who lived from 551 to 479 R.C.E., understood law within a broader social perspective

He considered good rulers, strong family ties, and an enlightened nobility to be the surest methods to a good society "As a judge, I decide disputes, for that is my duty; but the best thing that could happen would be, to eliminate the causes for litigation!" Although he spoke 2,500 years ago, the distinction Confucius described is still critically important in our society: Which do we trust more—a written law or the people who enforce it?

The law is a big part of our lives, and it is wise to know something about it Within

a few weeks, you will probably find yourself following legal events in the news with keener interest and deeper understanding In this chapter, we develop the background for

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The reading for topic 1 is extracted from the book: Jules Aldous, Making and Breaking the Law and the book: Jeffrey F Beatty, Susan S Samuelson, Legal Environment, South-Western Cengage Learning

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our study, We look at where law comes from: its history and its present-day institutions

In the section on jurisprudence, we examine different theories about what "law" really means And finally we see how courts—and students—analyze a case

1.1 RULES AND LAWS

The Oxford Dictionary defines a law as 'a rule established among a community

and enjoining or prohibiting certain action; the system made up of these things; any rule

of procedure' Law, therefore, consists of rules that establish modes of behaviour and procedures However, not all rules are Laws As members of the community, we are subject to a range of rules, legal and nonlegal, which determine our relationship with other members of society Not all the rules which govern our actions have the same effect, importance or repercussions

The distinction between rules and laws is easier to understand if we look at a specific example:

Joe S is 16 and lives at home His father is a keen shooter and keeps an air rifle locked in a cabinet in the house Joe's parents have made it a rule that Joe is not to touch the air rifle or unlock the cabinet One day Joe has some friends around when his parents are out He tells them about the rifle Keen to impress his friends, he finds the key to the cabinet and takes out the air rifle The boys decide to set up some old cans in the backyard as shooting targets A neighbour in an upstairs flat next door sees the boys with the rifle and rings the police When the police arrive, they find Joe taking aim at the cans, configcate the air rifle and take Joe to the police station

Joe is now in a lot of trouble He has broken a number of rules Firstly he has broken the rule set by his parents He has taken the air rifle out of the cabinet This is a non-legal rule It affects the members of Joe's family but not society in general The repercussions of breaking this rule may be that Joe is grounded or not allowed to have friends around while his parents are out Although these punishments may have a significant impact on Joe, the matter will be settled between Joe and his parents

However, Joe has also broken legal rules This can be seen as having more serious consequencas as it may involve police action, enforcement through the courts and the

imposition of a sanction such as a fine Under Section 29(3) of the Firearms Act it is an

offence under the age of 18 to have in your possession a firearm, air gun or air rifle

1.2 NON-LEGAL RULES

As we have seen in the example above, different types of regulations govern our relationships within society at different levels Within our families we are bound by rules

of behaviour that set out the individual rights and responsibilities of the individual members At school we are subject to another set of regulations that govern the rights and

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responsibilities of students and teachers In the workplace we are subject to rules that govern how we relate to our fellow workers These regulations are not found in the law They are established by norms or rules For example, a school will have formal rules that make clear the behaviour expected of students These will often be found in a written code In a family the rules are clearly communicated, but not usually written

These rules provide us with a guide to our interaction with other members of our society The nature of the rules will alter from group to group In many cases rules are not formally stated or formally learnt They are instilled in us by conditioning For example, there is no single law stating that we must respect our parents; however, most of us do

We have learned to behave in this manner since we were young The value has been instilled in us by verbal messages from our families and perhaps from our religious beliefs

Many aspects of our behaviour are governed by an expectation that people will behave in a certain manner These expectations are referred to as norms of behaviour Norms do not have the same force as legal rules If we violate a norm, we will not be imprisoned or fined However, if we ignore the norms of behaviour, we do risk not being accepted by other members of society The norms that set out our eating habits or table manners are known as the rules of etiquette

These rules are not written laws and may vary from group to group As children

we learn these rules of etiquette from our families One such rule of etiquette is to eat food from your own plate If we went to a restaurant and started eating food from the plates of other guests at the table, we would probably be shunned by our friends In many instances, the disapproval shown for a violation of society's norms can have as great an impact on the individual as more formal punishment

1.3 LEGAL RULES

Legal rules are known as laws These laws set out our rights as members of the community For instance, the Equal Opportunity Act establishes the right of all

individuals to be treated equally regardless of sex The law also establishes our responsibilities to other members of the community or to the community as a whole For example, the law regulating the use of firearms in the community imposes responsibilities

on owners of firearms

In any society it is inevitable that conflicts arise and the questions of an individual's rights and responsibilities are disputed The law provides a means of settling such disputes peacefully

For laws to be established in a community the authority of those rules must be recognised This recognition is derived from the ability of the law to reflect the collective

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needs and values of society In Australia, the individual is encouraged to take an active role in the development of the legal system through a number of democratic processes These processes include the electoral system, the provision of representative and responsible government, and the use of the jury system

In summary, the basic features of a law are:

 the statement of a particular type of behaviour (this usually takes the form of prohibiting certain types of behaviour)

 the provision of a sanction or remedy against anyone who violates the law

 the formation of the rule by an authority recognised by the community

For example, the criminal law establishes expected behaviour by prohibiting certain actions The criminal law is made by Parliament, which is recognised by the community as having the authority to make the law for the community as a whole If a person does something that has been prohibited by the criminal law they will be punished

by either having their liberty restricted or a fine imposed

1.4 RULES AND RITES

Not all rules are legal Non-legal rules govern many aspects of our behaviour, including our conduct as members of a school or a club, or our daily behaviour

2 A LEGAL SYSTEM

Legal rules differ from non-legal rules in that legal rules apply to the community

as a whole However, law consists of more than just a set of rules It also includes the

legal system which establishes procedures and institutions to make, administer, adjudicate

and enforce the law in the community

In our legal system law-making is primarily the responsibility of the Commonwealth Parliament and the state parliaments Courts (judges and magistrates) are responsible for interpreting the meaning of the law and resolving disputes when it is claimed that the law has been broken (adjudicating)

A variety of bodies has been established to enforce the law For instance, the police have the power to impose on-the-spot fines while the Department of Justice is a government department responsible for the administration of justice Because our legal system is complex, individuals may require assistance Solicitors and barristers act as legal advisers and representatives for individuals in their dealings with the legal system

2.1 TYPES OF LAW

The types of laws that we have in our society can be classified in a number of different ways Whatever method we use to classify the law it is necessary to remember that, in a developed society such as ours, the law is complex and constantly changing

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New areas of law develop which may not neatly fit into existing categories No one method of classification can cover all aspects of our law

The law establishes the rights of the individual in two ways The law regulates the relationship between the individual and the state It also regulates rights between one individual and another Laws that regulate the relationship between the individual and the state include:

 rules that govern the way in which we make rules (administrative laws)

 laws that set out the political rights of the individual in relation to the state

(constitutional law)

 offences against the state that impose obligations on the individual (criminal law)

 the rights and obligations of employers and employees (industrial law)

 the economic rights and responsibilities between the individual and the state

(taxation law)

Laws concerned with the regulation of rights between one individual and another cover a wide range of human behaviour including:

 the rights of individuals in making agreements (contract law) Contract law recognises that, in certain conditions, agreements made by individuals will be legally binding and thus establishes the rights and responsibilities of the individuals who enter agreements

 the rights of the individual to recover the losses that result from the violation of

their individual rights (law of torts) Under the law of torts a person who suffers a

damage or loss as a result of the violation of their rights may be compensated

 the rights and responsibilities of individuals within a marriage are established by

the family law Where a marriage ends in divorce, the law sets out the

responsibilities and rights of the parents and children

 the rights of individuals to inherit property are set out in the laws of succession

 the responsibilities of those who act in positions of trust for other individuals are

set out in the law of trusts

In some cases, a wrongful act may involve more than one area of law It may involve both the rights of individuals and the relationship between the individual and the state This is frequently the case in car accidents For instance, a speeding driver who fails to stop at a red light is guilty of a criminal offence This behaviour constitutes a danger to the community as a whole While driving through the red light the driver collides with another car As a result of the collision, the second car has been damaged and the owner has suffered personal injuries The rights of the owner of the second car have been infringed The driver of the second car could recover this loss through the civil law by suing the other driver

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By looking at the different ways of classifying the law we can start to appreciate the complexity of our legal system The methods used to classify our laws include:

 statute or common law (sources of law)

 criminal or civil law (type of behaviour)

The method that we choose to classify the law will reflect the purpose for which the classification is needed For example, in Unit 3 we will be looking at the law-making process For the purpose of our study in this section we might want to classify the law according to the different processes used to make the law (or sources of law) In Unit 4

we will be looking at dispute settlement processes and procedures, and so may want to classify the law according to the different processes used to resolve disputes The dispute settlement processes and procedures differ according to whether they are for criminal or civil cases (or according to type of behaviour)

2.1.1 Statute or Common Law

 Parliaments

Parliaments are responsible for making statute law Statute law is also referred to

as legislation or acts of parliament Parliaments may also delegate their law-making

powers to other bodies known as subordinate authorities The rules made by these laws are known as regulations, orders-in-council and local laws

Most new law is statutory law Statutes affect each of us every day, in our business, professional, and personal lives When the system works correctly, this is the one part of the law over which we the people have control We elect the local legislators who pass state statutes; we vote for the senators and representatives who create federal statutes If we understand the system, we can affect the largest source of contemporary law If we live in ignorance of its strengths and pitfalls, we delude ourselves that we participate in a democracy

As we see in US, there are many systems of government operating in the United States: a national government and 50 state governments Each level of government has a legislative body In Washington, D.C., Congress is our national legislature Congress passes the statutes that govern the nation In addition, each state has a legislature, which passes statutes for that state only In this section we look at how Congress does its work creating statutes State legislatures operate similarly, but the work of Congress is better documented and obviously of national importance

 Courts of law

Courts of law also have responsibility for the development of the law, either through the process of interpreting the meaning of statutes as they apply to individual cases or through the declaration of common law

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As we have seen, the common law originated in England as lawyers began to record decisions and urge judges to follow earlier cases As judges started to do that, the

earlier cases, called precedent, took on steadily greater importance Eventually, judges

were obligated to follow precedent The principle that precedent is binding on later

cases is stare decisis, which means "let the decision stand." Stare decisis makes the

law predictable, and this in turn enables businesses and private citizens to plan intelligently

Jason and the toddler present a classic legal puzzle: What, if anything, must a bystander do when he sees someone in danger? We will examine this issue to see how the common law works

The common law is judge-made law It is the sum total of all the cases decided

by appellate courts The common law of Pennsylvania consists of all cases decided by appellate courts in that state The Illinois common law of bystander liability is all the cases on that subject decided by Illinois appellate courts Two hundred years ago, almost all law was common law Today, most new law is statutory But common law still predominates in tort, contract, and agency law, and it is very important in property, employment, and some other areas

We focus on appellate courts because they are the only ones to make rulings of law In a bystander case, it is the job of the state's highest court to say what legal

obligations, if any, a bystander has The trial court, on the other hand, must decide fiats:

Was this defendant able to see what was happening? Was the plaintiff really in trouble? Could the defendant have assisted without peril to himself?

Stare Decisis

Nothing perks up a course like Latin Stare decisis means "let the decision stand."

It isthe essence of the common law The phrase indicates that once a court has decided a particular issue, it will generally apply the same rule in future cases Suppose the highest court of Arizona must decide whether a contract for a new car, signed by a 16-year-old,

can be enforced against him The court will look to see if there is precedent, that is,

whether the high court of Arizona has already decided a similar case The Arizona court looks and finds several earlier cases, all holding that such contracts may not be enforced against a minor The court will apply that precedent and refuse to enforce the contract in

this case Courts do not always follow precedent, but they generally do: stare decisis

Two words explain why the common law is never as easy as we might like:

predictability and flexibility The law is trying to accommodate both goals The need for predictability is apparent: people must know what the law is If contract law changed daily, an entrepreneur who leased factory space and then started buying machinery would

be uncertain if the factory would actually be available when she was ready to move in

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Will the landlord slip out of the lease? Will the machinery be ready on time? The need for predictability created the doctrine of stare decisis

Yet there must also be flexibility in the law, some means to respond to new

problems and changing social mores In this new millennium, we cannot be encumbered

by ironclad rules established before electricity was discovered These two ideas may be obvious but they also conflict: the more flexibility we permit, the less predictability we enjoy We will watch the conflict play out in the bystander cases

Equity

Principles of equity, created by the Chancellor in England, traveled to the colonies along with the common-law rules All states permit courts to use equitable powers An

example of a contemporary equitable power is an injunction, a court order that someone

stop doing something Suppose a music company is about to issue a new compact disc by

a well-known singer, but a composer claims that the recording artist has stolen his song The composer, claiming copyright violation, could seek an injunction to prevent the company from issuing the compact disc Every state has a trial court that can issue injunctions and carry out other equitable relief As was true in medieval England, there is

no jury in an equity case

2.1.2 Criminal or Civil Law

Laws can be classified as being either criminal or civil Criminal law is concerned

with behaviour that affects not only the individuals directly involved but also the welfare

of the society as a whole The criminal law aims to regulate the behaviour of individuals

as members of the community and to protect the interests of society Civil law is

concerned with behaviour between one individual and another individual This area of law includes contract law and the law of torts Criminal law is generally concerned with behaviour that is disruptive to the society as a whole

Criminal law includes:

 offences against the person: these offences relate to action that results in some form of personal injury such as murder, assault, rape or kidnapping

 offences against property: these offences involve conduct that results in damage to

or loss of property, such as theft, robbery or acts of vandalism

 offences against morality: these offences are concerned with maintaining certain values in our society and are primarily concerned with personal relationships and sexuality—these offences include incest, street prostitution and bigamy

 offences against the legal system: these offences aim to reinforce our responsibility to participate as responsible citizens in the administration of justice—offences such as perjury or failure to appear for jury service

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Civil law includes both contract law and the law of torts Contract law is concerned with legally enforceable agreements made between individuals Torts are

concerned with the wrongful actions of one individual against another individual

It is a crime to embezzle money from a bank, to steal a car, to sell cocaine

Criminal law concerns behavior so threatening that society outlaws it altogether

Most criminal laws arc statutes, passed by Congress or a state legislature The government itself prosecutes the wrongdoer, regardless of what the bank president or car owner wants A district attorney, paid by the government, brings the case to court The injured party—for example, the owner of the stolen car—is not in charge of the case, although she may appear as a witness The government will seek to punish the defendant with a prison sentence, a fine, or both If there is a fine, the money goes to the state, not

to the injured party

Civil law is different, and most of this book is about civil law The civil law

regulates the rights and duties between parties Tracy agrees in writing to lease you a

30,000-square-foot store in her shopping mall She now has a legal duty to make the

space available But then another tenant offers her more money, and she refuses to let you move in Tracy has violated her duty, but she has not committed a crime The government will not prosecute the case It is up to you to file a civil lawsuit Your case will be based

on the common law of contract You will also seek equitable relief, namely, an injunction ordering Tracy not to lease to anyone else You should win the suit, and you will get your injunction and some money damages But Tracy will not go to jail

Some conduct involves both civil and criminal law Suppose Tracy is so upset over losing the court case that she becomes drunk and causes a serious car accident She has committed the crime of driving while intoxicated, and the state will prosecute Tracy may be fined or imprisoned She has also committed negligence, and the injured party will file a lawsuit against her, seeking money We will again see civil and criminal law

joined together when we return to the Pith Zone case, later in the chapter

2.1.3 Substantive and Procedural Law

We saw the distinction between substantive and procedural law in The Oculist's

Case, and it remains important today Substantive law defines the rights of people

Substantive law requires that a landlord who has signed a lease must deliver the store to

her tenant Most of this book concerns substantive law Procedural law establishes the

processes for settling disputes Procedural law requires that to get an injunction against

Tracy, you must first notify her in writing of your claims and the time and place of the hearing on the injunction

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2.1.4 Public and Private Law

Public law refers to the rights and obligations of governments as they deal with

the nation's citizens For example, when the Federal Trade Commission prohibits

deceptive advertising, that is public law Private law regulates the duties between

individuals Landlord-tenant law is private law

2.2 PARLIAMENT AS LAW-MAKER

Britain, such as Canada, India and New Zealand, Australia adopted the British parliamentary system This system is known as the Westminster system, after the city in London where the British Parliament is located The Commonwealth Parliament and the Victorian Parliament are both based on the British Parliament The structure of Australia's Commonwealth Parliament is formally set out in the Australian Constitution Many practices of parliament are based on conventions that evolved in Britain over previous centuries A convention is a rule or usual practice that is followed, although it is not written as a law

To fully understand the structure and the functioning of our parliaments, it is necessary to understand the historical origins of the Westminster model

2.2.1 HISTORY OF THE BRITISH PARLIAMENT

Parliament in Britain developed as a series of concessions of power from the monarchs to the people At the time of the Norman invasion in 1066, the monarchs had unlimited power The first attempt to limit the power of the monarch occurred in 1215 when King John signed Magna Carta, a document drawn up by a group of rebellious bishops and knights

Magna Carta was an agreement between those powerful men and the king It aimed at limiting the monarch's power to impose taxation By signing Magna Carta, the king's power was

limited by a council of bishops and knights who advised him It was not designed by the bishops and knights to be a bill of rights or a constitution

In 1295, the first British Parliament was formed It was divided into two houses or councils These two houses or councils represented only the wealthy and the powerful members of society Parliament advised the king, who still retained unlimited power Parliament was called to sit only to grant the monarch the right to raise money by imposing taxes By the 1400s parliament consisted of two houses who would debate and pass law They were known as the House of Tennants-in-Chief (later to be known as the House of Lords) and the House of Elected Knights and Citizens (later to be known as the

House of Commons) Parliament began producing statutes A statute is a written law