The Legal System Questions & Answers

meaning of law - ANSWERSthe system of rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties customs - ANSWERStraditional or widely accepted way of behaving or doing something that is specific to a particular society, place or time. not written down and there is no legal penalty rules - ANSWERSguides or principles for conduct or action established to ensure the smooth operation of society, written down or through use of symbols,, penalties are sometimes used. laws - ANSWERStype of rule that has been created by a person or institution that had the authority to make laws-referred to as sovereign power values - ANSWERSimportant and lasting beliefs or ideals. The values society hold is a reflection of the things that are considered important ethics - ANSWERSmoral principles that govern a persons behaviour or conduct characteristics of just laws - ANSWERSequal, based on widely held views held by most of society, utilitarian (ensuring greatest good for greatest number of people), aims to redress inequalities, must minimise delay, must not be retrospective (looking back on or dealing with past events or situations), and it must be known nature of justice - ANSWERSconcept of fair treatment before the law. combination of equality (laws don't discriminate and are applied equally to everyone), fairness (law doesn't have a harsh effect on someone, and the right to appeal a decision) and access (have ability to access the law to achieve justice and have access to legal assistance) procedural fairness - ANSWERSright to participate in a legal proceeding in which they have an interest, right of defendant to know accusation made against them, right of defendant to have a hearing where they can present evidence, the right to have a matter heard in an unbiased court, right to test evidence presented in a case, right of accused to not have previous convictions brought up during trial rule of law - ANSWERSkey principle in democratic legal systems, use of arbitrary power is eliminated. key features: independent judiciary (courts not influenced by parliament), controls placed on enforcement agencies, legal defence for accused must be free to operate without interference from prosecution, criminal laws must never be retrospective, accused must be informed of allegations, governments bund by constitution, human rights are protected arbitrary power - ANSWERSunrestrained use of power-making decisions without any reference to the law anarchy - ANSWERSwhen society is left without an effective legal system, anarchy can emerge, common after times of war or natural disaster, when there is no enforcement of law, the fear of consequences is removed and anarchy can emerge. tyranny - ANSWERSopposite to anarchy. occurs when there is no check on power if lawmakers and enforcers. Countries where tyranny exist are known as police states. Law enforcers act arbitrarily and without fear of consequence. Rule of law is absent and not applied. common law - ANSWERScollection of legal principles and rules that is derived from the decisions of judges in higher courts. Also used to differentiate between law that is developed by judges and law that is imposed by parliaments. Judges can use common law when no statute law exists stare decisis - ANSWERSlegal process of following precedent aims of doctrine of precedent - ANSWERSto ensure that people will be treated equally and fairly in their dealing with the legal system, gives everyone the assurance that certain rules and procedures exist that make it possible to predict the likely outcome of a dispute and the doctrine limits the power of the judge to make new rulings when a decision about a similar case has already been made. binding precedent - ANSWERScourt must follow the precedent already set, whether it believes the decision is correct or not. a precedent is binding when it has been set by a higher court. a precedent set by another court in another jurisdiction would not be binding persuasive precedent - ANSWERSprecedent may influence a decision but a court is not bound to follow it. how persuasive a precedent is will depend on the judge and the court. the higher the court, the more persuasive the precedent will be and a court will more likely take into account a precedent set by an influential judge. principles of equity law - ANSWERSto modify a remedy in common law that is deficient, or to create a new remedy, to develop remedies for wrongs that the common law does not recognise precedent - ANSWERSa judgement made by a court that established a point of law forms of making a precedent - ANSWERSprecedent is created when a judge arrives at a decision in a case when there is no existing common or statute law or precedent can be created by the way judges interpret legislation ratio decidendi - ANSWERSstatement by the judge about the reason for their decision. it creates a precedent that lower courts must follow obiter dicta - ANSWERSother statements made by judges, such as personal opinions. create no immediate precedent, but can be used later to justify a precedent adversarial system of trial - ANSWERSthere is 2 opposing sides in each case, each side will introduce own evidence and witnesses, opposing side may test opposition evidence through cross examination, judge or jury will not test validity of the evidence jurisdiction - ANSWERSarea over which certain powers and laws lie local court - ANSWERScriminal jurisdiction-all summary offences, eg. drink driving and shoplifting and committal proceedings(prelim hearings for more indictable offences) civil jurisdiction- hears only minor civil maters, eg. debt claims, and only matters involving up to $100,000 coroners court - ANSWERSinvestigates unexplained fires and deaths childrens court - ANSWERSany summary or indictable offence involving persons under age of 18 land and environment court - ANSWERSmatters involving environmental planning and land compensation, and any appeals in relation to local council decisions district court - ANSWERScriminal jurisdiction- majority of indictable offences, eg. robbery and assault civil jurisdiction- civil matters involving between $100,000 and $750,000 and any involving compensation for motor vehicle accidents appellate jurisdiction- hear appeal from inferior courts supreme court - ANSWERShighest court in state hierarchy hears most serious cases the supreme court of each state is a court of record (its decisions create precedent and therefore is important in establishment of common law) criminal jurisdiction- most serious indictable offence, eg. murder, serious assault and kidnapping civil jurisdiction- no upper limit on civil matters, minimum is $750,000 appellate jurisdiction- court of appeal hears appeals to the supreme court