Flashcards
Law Test
Cards in this deck (51)
- 1LibertySomething you are free to do
- 2RSomething you can enforce against someone else
Legal right is a claim the law will enforce
If you have a legal right, someone else owes you a duty
Law must enforce a right
Citizen = right - 3DutySomething you must do/not do
A duty is an obligation the law will enforce
The law must enforce a duty
Citizen = duty - 4MoralityYou should think about others
Society makes rules
Recognised by members of society
Don't have to obey
Isn't enforceable by government
Breach = social shaming - 5Law"The enforceable body of rules that govern a society"
You must do something
Rules made by recognised lawmakers
Society recognises as a whole
Must obey
Is enforceable by government
Breach = clearly defined penalties - 6Should the law impose morality?Liberalism - only to prevent harm to others
Paternalism - to prevent harm to the actor/protect society
Does every law have a moral element? - 7What does the Law do?Guidance (certainty)
Enforcement of rights and duties
Resolving duties
Compensation
Punishment
Deterrence
Reflect values of society - 8What is a Law?Positivist approach:
- made by a lawmaker
- recognised by a community
- binding
-enforceable - 9Nuremberg Laws Germany 1935Excluded German Jews from German citizenship
Prohibited them from marrying Germans
Were not allowed to:
Vote, hold public office, enforce property rights
Were these laws? - 10Natural Law ApproachProper laws cannot go against "nature"
Is universal - not specific to a particular community/time
Leads to universal human rights - 11Soft LawGuidelines, policy declarations, codes of conduct
Legally significant
Not legally enforceable - 12Law and Social ChangeLaw can:
Precede, stimulate, respond to
Social change - 13Who can change the law?Legislature (Parliament) makes "acts" (statutes)
Judiciary (courts) decides cases which develop law - 14Source of LawCustoms
Courts
Statutes
Codes - 15Evolution of LawCustoms (Unwritten) to Laws (Written)
Codes and Statutes
Court Decisions - 16English Common LawBefore 1066CE, numerous customary systems in England
After Norman conquest, move to centralised legal system
Eventually law 'common' to the whole country developed - 17NZ Common LawNZ colony imported English law subject to local conditions
Some English statutes still apply in NZ
NZ is developing its own common law but still based on English
Borrows from other common law systems - 18Historical ProblemsKey remedy damages
What if you want someone to do something/stop doing something?
Recognised legal ownership only
What if you hold property for the benefit of someone else? - 19Beneficial PropertyParent entrusts property to trusted person or child
Trusted person cannot entrust property back to child - 20EquityResponse to lack of remedies under common law
Court of Chancery developed to provide different remedies
Concept of trusts recognised beneficial ownership
Two different courts systems developed in the UK - NZ courts provide common law - 21Common LawOriginal - English Customary Laws
Where - English-speaking countries
Court decisions
Courts follow previous decisions
Law can be haphazard based on historical accident - 22Civilian LawOriginal source - Roman codes/German law
Where - Europe, S America, Asia
In one document
All courts follow the code
Law can be systematic - 23Civilian Judicial SystemPre-trial - Judge directs
Trial method - Inquisitorial
Key role - Finding the truth
Who decides - Judge, Appeals - Normal
Appeal Courts - Normally unanimous
Law - codified
Previous decisions - less important - 24Common Judicial SystemPre-trial - Judge has no role
Trial Method - Adversarial
Key role - Ensure fair trial
Who decides - Jury, Appeals - Restricted
Appeal courts - minority opinions common
Law - Case law important
Previous decisions - highly important - 25Advantages of Common LawDevelops organically from custom/practice
Flexible
Can adapt to local circumstances
Members of family can borrow from each other
Minimises government intervention
Facilitates individual freedom and commerce - 26ColonialismStrong adherence to colonial law
Weak adherence to colonial law
Start again - import best law - 27Postcolonial Legal SystemsStrong - Aus, Canada, HK, NZ, Singapore, SA
Weak - Malaysia, Indonesia
Start again - Japan, China, Turkey - 28Strong - IndiaCommon Law systems based on the English model
Separate personal law codes apply to Muslims, Christians, Hindu
Judicial review of legislative act (influence of US and Ireland) - 29Weak - MalaysiaMixed system of:
English common law
Islamic law
Customary law - 30Start again - ChinaCivilian law
Influence of Japanese law
Increasing Anglo-American influence - 31Common Law and Tikanga MaoriSome accommodation in early years of settlement
Mostly ignored by settlers
Modern courts may consider claims of custom
Always overrides by statute - 32Statute Law and Tikanga MaoriSome recognition of communal land ownership
Rangatahi Court for youth offenders
Resource Management Act 1991
Te Urewera Act 2014 - 33Rules of LawForm - The shape of the law - must be made in that shape - Act of Parliament
Doctrine - legal principles - compliance with lawmaking rules - law made by Parliament
Substance - content of law - balance between individual and society - Provisions of Act - 34Formal AspectsRule by law
Law or rules
But is that enough? - 35Doctrinal AspectsRequirements for making a law
Lon Fuller's "morality of law"
Examples: apply to everyone, published, easily understood, certain, etc. - 36Substantive AspectsRespect for fundamental human rights
Respect for human dignity - 37Rule of LawEveryone
Is bound/benefits
Publicly made
Covers future acts only
Courts decide disputes - 38Accessibility of LawShould be:
Accessible
Intelligible
Clear
Predictable
Statute Law
Judge-made Law - 39Law not DiscretionRights/Liabilities decided by:
application of law decides
not individual's judgement
- Government officials do exercise discretion but at subject to judicial review - 40Equality before LawLaws should apply equally to everyone
Objective difference allows different treatment - 41Human rightsLaw must provide protections for basic human rights
e.g. non-discrimination - 42Exercise of PowerPower holders must act:
Honestly
Fairly
For the purpose of the power conferred - 43Dispute ResolutionShould not be prevented by cost or delay
- 44Fair TrialDispute resolution must be fair (not only in the courts)
- 45Natural JusticeNo one may be a judge in their own cause
- Nemo iudex in causa sua
The other side must be heard
- Audi alteram partern - 46Guidelines for a Fair Process 1Take a complaint seriously and act on it
Maintain confidentiality
Give problem resolution procedure priority and respond in a timely manner
Inform the respondent of the allegations
Give respondent opportunity to respond
Do not ask irrelevant questions
Keep parties informed about progress - 47Guidelines for a Fair Process 2Ensure parties' safety is protected
Give parties opportunity to see/respond to evidence
Consider all evidence and weigh it carefully before deciding substance
Provide parties with a copy of decision/reasons and options - Ensure disciplinary action appropriate/Appeal - 48International Legal OrderGovernment must comply with their international legal obligations
- 49Rule of Law in PracticeNo one is above the law
Parliament must behave accordingly
Laws should not cover future conduct
Laws should be publicly accessible and clear
Everyone has access to courts
Judges are independent - 50Not Rule of ManNo one's power is absolute
Powers granted according to rules
Exercise of power can be review - 51—
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- Flashcards on Law Test, created by Olivia Haslemore on 19/04/2016.
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- Olivia Haslemore
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