LEG100 EXAM QUESTIONS AND VERIFIED ANSWERS
what is law:
Law draws a line between different types of unacceptable behaviour, and sets
boundaries between competing interests (such as if your neighbour starts running
power tools late at night while you are sleeping at home)
The main legal strands for legal theory;
Natural Law and Legal Positivism
Natural law theory
- moral code that exists in nature, and is universal
- is often linked with divine law - laws of nature as reflected in a deity
- • Aquinas: 'good is to be done and promoted, evil is to be avoided' - people should aim
to preserve human life, procreate, educate offspring, live in society, and avoid offending
those whom we live with.'
humans are born with a moral compass that guides how they should behave - good is to
done and evil is to avoided
• Legal positivism
law only exists when it is 'posited', meaning declared by an authority with the power to
do so - for example, a legislature or a court.
• Some legal positivists see law as a type of command.
• Cf, natural law (moral law) v legal positivism (declared).
How do we know something is law:
Positivism says that law and morality are two separate things, specifically, morality is
not the test for the validity of law
• The question of whether something is law or not is different to whether it is moral, or
meets a certain standard - even if it is unjust, inefficient, unwise ... it does not mean it is
not law if it has been made by the official authority
• For example, in Australia, if the Legislature and the Governor follow a valid procedural
process to make a law, we say it is valid. If a Court furnishes a legal ruling within its
jurisdictional power, we say it is a lawful ruling
Two Treatises of Government
Locke and the social contract:
,• Natural rights cannot be taken away
• Social contract agreement between the people and the King; did not extinguish natural
rights (for example, life, liberty, and property)
• Ownership (of land) is most important right • Separation of powers (further developed
by Montesquieu)
• Most important right is property Male landowners should be in parliament, and have
the right to vote The King is not an absolute ruler (limits). Compare this to the Leviathan.
If a ruler failed to respect natural rights, the ruler can be removed
Montesquieu and the separation of powers:
Spirit of the Laws
• Note, 'Laws' is plural, and 'the Laws' suggests preformed existence
• Starting point: In the 'state of nature', people are scared and timid, not generally violent
• Search for food, and survival make people form societies - they become violent
because they lost their sense of weakness - the need for an adequate governance
structure.
• State of war leads to establishment of laws and government
• Believed in separation of powers - executive, legislative, judicial - as best form of
government, with each branch exercises checks and balances on the others. He
opposed absolute rule which united the powers in one entity/person.
Rousseau - The Social Contract and the general will
People in the 'state of nature' were free, kind, happy, and equal, but ...
• The ownership of property can lead to war, inequality, and violence.
• Some argue that wealthy classes steal land, and deceive people into accepting a
social contract establishing a King.
• Instead, the people should form a social contract, relinquishing their rights to 'the
whole people' rather than to a King - the people were to be the sovereign.
• Law would be made through direct democracy (no separation of powers), and people
are obliged to obey the law because it is the product of the 'general will'.
• This may be ideal for small societies, such as Rousseau's small town in Switzerland
classification of law:
Ways to classify law:
- National and international law
- Types of legal system (common law and civil law)
- Private and public law
- Criminal and civil law
- Common law and equity
,International law:
Sometimes referred to as the 'rules-based order' in international relations
• How States relate to each other in the framework of rules International Law is a branch
of law that 'governs the rights and responsibilities of States' (towards each other, and
other entities)
what does international law relate to
• Rights and duties of States (which are equal; or are they?). Eg, the Arbitral Tribunal
determination between The Philippines and China
• Economy, military, trade, nuclear weapons, status, etc
• 'Facilitating' interaction between States, such as showing them how to make binding
treaties (see also law of diplomatic relations) - procedures
• Increasingly, other entities (Greenpeace, Amnesty International): international
organisations like the United Nations (UN), international civil society, non-State armed
groups (armed militant coups); individuals and corporations (crimes)
Main sources of international law:
1. International Conventions or Treaties - bilateral, multi-lateral (for example, trade,
conduct/rules of war, human rights, environment)
2. Customary International Law (CIL) - laws accepted by States through their consistent
practice (State Practice) - what States do
3. 'General principles recognised by civilised nations' - such as 'good faith' in entering
into a Treaty or Convention, binding themselves
4. Judicial decisions and writings of 'the most qualified publicists [i.e. scholars]' (does
not count as a source of law itself, but can be evidence of a rule of international law in
1-3, above)
International law and the separation of powers:
No 'legislature' - UN(united nations) General Assembly (GA) provide 'Resolutions' - but
they are not 'binding' (but UN Security Council Resolutions are binding)
• UNSC deals with specific or defined issues
• No executive/police - UN Peacekeeping forces - need the consent of the State in
which they are deployed, UNSC mandate - cf, domestic police
• No Courts with compulsory jurisdiction - International Court of Justice (ICJ) (with the
consent of the States concerned, and limit to matters that can be heard; Nicaragua v
United States 1986)
• Similar to national legal systems, the international legal system has its positives and
weaknesses
Private international law
, (conflict of laws) - addresses questions of applicable law when there is a cross-national
dimension - civil, commercial, family matters, or between individuals or businesses
public international law
- law governing the relations between States, through CIL, Treaties, Conventions, and
general principles - this is usually what people mean when they say 'international law'
national vs international- national law
• Defines and enforces the legal rights and obligations of natural (human) and legal
(corporate) persons;
• Within a single 'body politic' (legal jurisdiction)
international law primarily
Defines and enforces the legal rights and obligations of States
• Interacting with each other
Families of Law/Legal Tradition: Common and Civil Law
Each country has its own legal system, but those systems fall into broad 'families' or
'traditions' of law. Most Western legal systems derive either from common law or civil
law.
• Other legal traditions may be based in religious law or customary law; in some
countries, customary and/or religious law may exist alongside a Western-derived legal
tradition.
Comparison of civil and common law systems:
Main source of law in common law are judicial decisions; in civil law, it is legislation -
civil law judges apply/interpret rules rather than creating them
• In common law systems, judicial decisions are binding on courts deciding later cases,
which is not the case in the civil law
• Civil law countries have inquisitorial systems of justice, and common law countries
have adversarial systems - in civil law litigation/prosecution, the judge runs the case,
whereas in common law, the parties run the case (oversimplification, but broadly
correct)
• Varying role of the judge
• 'Common law judge looks at the past, civil law jurist looks at the future'
Branches of law:
By subject matter - criminal, constitutional, employment, international ...
Substantive/procedural law - substantive law (rules regarding actions, and prohibited
what is law:
Law draws a line between different types of unacceptable behaviour, and sets
boundaries between competing interests (such as if your neighbour starts running
power tools late at night while you are sleeping at home)
The main legal strands for legal theory;
Natural Law and Legal Positivism
Natural law theory
- moral code that exists in nature, and is universal
- is often linked with divine law - laws of nature as reflected in a deity
- • Aquinas: 'good is to be done and promoted, evil is to be avoided' - people should aim
to preserve human life, procreate, educate offspring, live in society, and avoid offending
those whom we live with.'
humans are born with a moral compass that guides how they should behave - good is to
done and evil is to avoided
• Legal positivism
law only exists when it is 'posited', meaning declared by an authority with the power to
do so - for example, a legislature or a court.
• Some legal positivists see law as a type of command.
• Cf, natural law (moral law) v legal positivism (declared).
How do we know something is law:
Positivism says that law and morality are two separate things, specifically, morality is
not the test for the validity of law
• The question of whether something is law or not is different to whether it is moral, or
meets a certain standard - even if it is unjust, inefficient, unwise ... it does not mean it is
not law if it has been made by the official authority
• For example, in Australia, if the Legislature and the Governor follow a valid procedural
process to make a law, we say it is valid. If a Court furnishes a legal ruling within its
jurisdictional power, we say it is a lawful ruling
Two Treatises of Government
Locke and the social contract:
,• Natural rights cannot be taken away
• Social contract agreement between the people and the King; did not extinguish natural
rights (for example, life, liberty, and property)
• Ownership (of land) is most important right • Separation of powers (further developed
by Montesquieu)
• Most important right is property Male landowners should be in parliament, and have
the right to vote The King is not an absolute ruler (limits). Compare this to the Leviathan.
If a ruler failed to respect natural rights, the ruler can be removed
Montesquieu and the separation of powers:
Spirit of the Laws
• Note, 'Laws' is plural, and 'the Laws' suggests preformed existence
• Starting point: In the 'state of nature', people are scared and timid, not generally violent
• Search for food, and survival make people form societies - they become violent
because they lost their sense of weakness - the need for an adequate governance
structure.
• State of war leads to establishment of laws and government
• Believed in separation of powers - executive, legislative, judicial - as best form of
government, with each branch exercises checks and balances on the others. He
opposed absolute rule which united the powers in one entity/person.
Rousseau - The Social Contract and the general will
People in the 'state of nature' were free, kind, happy, and equal, but ...
• The ownership of property can lead to war, inequality, and violence.
• Some argue that wealthy classes steal land, and deceive people into accepting a
social contract establishing a King.
• Instead, the people should form a social contract, relinquishing their rights to 'the
whole people' rather than to a King - the people were to be the sovereign.
• Law would be made through direct democracy (no separation of powers), and people
are obliged to obey the law because it is the product of the 'general will'.
• This may be ideal for small societies, such as Rousseau's small town in Switzerland
classification of law:
Ways to classify law:
- National and international law
- Types of legal system (common law and civil law)
- Private and public law
- Criminal and civil law
- Common law and equity
,International law:
Sometimes referred to as the 'rules-based order' in international relations
• How States relate to each other in the framework of rules International Law is a branch
of law that 'governs the rights and responsibilities of States' (towards each other, and
other entities)
what does international law relate to
• Rights and duties of States (which are equal; or are they?). Eg, the Arbitral Tribunal
determination between The Philippines and China
• Economy, military, trade, nuclear weapons, status, etc
• 'Facilitating' interaction between States, such as showing them how to make binding
treaties (see also law of diplomatic relations) - procedures
• Increasingly, other entities (Greenpeace, Amnesty International): international
organisations like the United Nations (UN), international civil society, non-State armed
groups (armed militant coups); individuals and corporations (crimes)
Main sources of international law:
1. International Conventions or Treaties - bilateral, multi-lateral (for example, trade,
conduct/rules of war, human rights, environment)
2. Customary International Law (CIL) - laws accepted by States through their consistent
practice (State Practice) - what States do
3. 'General principles recognised by civilised nations' - such as 'good faith' in entering
into a Treaty or Convention, binding themselves
4. Judicial decisions and writings of 'the most qualified publicists [i.e. scholars]' (does
not count as a source of law itself, but can be evidence of a rule of international law in
1-3, above)
International law and the separation of powers:
No 'legislature' - UN(united nations) General Assembly (GA) provide 'Resolutions' - but
they are not 'binding' (but UN Security Council Resolutions are binding)
• UNSC deals with specific or defined issues
• No executive/police - UN Peacekeeping forces - need the consent of the State in
which they are deployed, UNSC mandate - cf, domestic police
• No Courts with compulsory jurisdiction - International Court of Justice (ICJ) (with the
consent of the States concerned, and limit to matters that can be heard; Nicaragua v
United States 1986)
• Similar to national legal systems, the international legal system has its positives and
weaknesses
Private international law
, (conflict of laws) - addresses questions of applicable law when there is a cross-national
dimension - civil, commercial, family matters, or between individuals or businesses
public international law
- law governing the relations between States, through CIL, Treaties, Conventions, and
general principles - this is usually what people mean when they say 'international law'
national vs international- national law
• Defines and enforces the legal rights and obligations of natural (human) and legal
(corporate) persons;
• Within a single 'body politic' (legal jurisdiction)
international law primarily
Defines and enforces the legal rights and obligations of States
• Interacting with each other
Families of Law/Legal Tradition: Common and Civil Law
Each country has its own legal system, but those systems fall into broad 'families' or
'traditions' of law. Most Western legal systems derive either from common law or civil
law.
• Other legal traditions may be based in religious law or customary law; in some
countries, customary and/or religious law may exist alongside a Western-derived legal
tradition.
Comparison of civil and common law systems:
Main source of law in common law are judicial decisions; in civil law, it is legislation -
civil law judges apply/interpret rules rather than creating them
• In common law systems, judicial decisions are binding on courts deciding later cases,
which is not the case in the civil law
• Civil law countries have inquisitorial systems of justice, and common law countries
have adversarial systems - in civil law litigation/prosecution, the judge runs the case,
whereas in common law, the parties run the case (oversimplification, but broadly
correct)
• Varying role of the judge
• 'Common law judge looks at the past, civil law jurist looks at the future'
Branches of law:
By subject matter - criminal, constitutional, employment, international ...
Substantive/procedural law - substantive law (rules regarding actions, and prohibited
