Basic Legal Concepts

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The Meaning of Law

The law evolves 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 organizations 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 attempts to keep pace with our ever-changing society.

As groups of people formed societies and cultural groups within these societies, they established and enforced rules about the conduct of relationships. Laws today are imposed by the administrative institutions that govern a society; they cover all members of society and there are consequences if they are breached.

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Customs

Customs have established patterns of behaviour among people in a society or group. Customs vary depending on the culture, religion, and history of a group of people, society or country.

Where a custom is followed by most of the population, it may become part of the laws of that society. Because of differences between societies, not all customs become law.

The customary law refers to established patterns of behaviour that are accepted within a particular social or commercial setting and are of sufficient importance to be enforced. These principles and procedures developed through general usage according to the customs of a people, state or group of states.

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.

Most customary law is never written down, as is the case with Indigenous Australian customary law. In other societies, customary law is eventually recorded and transferred into written law in formal legal systems.

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Rules

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

Rules often vary between groups and are not enforceable by the state. If rules are broken, there is some form of punishment attached, enforceable by those involved in the making of the rules (e.g. suspension or detention for breaking a school rule).

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

Rules form the basis of laws. However, rules can be changed quite quickly with the agreement of those involved. Laws are more difficult to change and punishment is not always a simple process.

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Law

The law is made up of the formal rules of society, they have been agreed upon by the majority of those in the group, and govern their behaviour and activities.

Laws have certain characteristics that make them different from rules:

Laws are binding on the whole community.

Laws can be enforced.

Laws are officially recognized.

Laws are accessible.

Laws relate to public interest.

Laws reflect rights and duties.

In Australia, the laws are mainly decided by elected government officials at local, state or federal government levels.

Judges also have the power to make laws in certain cases when they set a precedent (common law)

It is expected that the law will look after all members of the group and, therefore, that any laws made will be fair, just and equitable. It is also expected that they will reflect traditional and current ethics and values.

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Characteristics of a Just Law

The concept of justice involves the fair and impartial treatment of all persons

Justice can be seen as the continued effort to do the right thing by everyone.

justice involves consulting the people and carrying out the decisions of the majority while ensuring that the minority has the opportunity to put forward their point of view.

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

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Differences between laws and rules

Laws

To be obeyed by all citizens of a society

Made by a law-making body

Enforced through the courts

A breach results in a prescribed sanction imposed by the courts

Rules

To be obeyed by specific individuals or groups

Made by individuals or groups

Enforced by leaders of a group

Consequences of a breach at the discretion of the leader of a group

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The relation ship between Customs, Rules, and Laws

As people have joined together in communities, a relationship has developed between rules, laws, and customs:

Whenever people have lived together in groups, they have developed rules to govern their behaviour and thus maintain the smooth running of activities.

These rules were based on the traditions, customs, and values of the group.

These rules have penalties attached if members of the group fail to follow them.

Groups usually put someone, or a small group, in charge to enforce these rules and the associated penalties. In modern times, this became the government.

Over time, these rules became formalized laws, known in society as ‘the law’.

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Values and Ethics

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

It is very difficult to make rules and laws about everyone’s values, as there are often groups in society that have differing standards of what is morally right or wrong.

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. for example:

The Mardi Gras (Sydney) – an internationally recognized annual event celebrating same-sex relationships. It started off as a protest march against the treatment of same-sex couples by the legal system and the lack of protection afforded to their relationships.

In 2015, protests were held around Australia by a group called ‘reclaim Australia’ to highlight concerns about the loss of Australian values and the increasing acceptance of religion-based law such as sharia law. In response to this, another group who claimed to be against racism rallied in protest as well. In Melbourne, when both groups met, violent clashes occurred. Protests such as these aim at getting the government to review current laws (or lack of them) and make appropriate changes.

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Equality

All people 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.

our society tolerates many levels of equality and inequality. For example, depending on the situation, a 10-year-old child will be treated differently from a 17-year-old teenager or a 40-year-old adult

The law takes into account people’s different capacities (such as maturity) and recognises that some people are more vulnerable than others and so 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.

Doli incapax. For example- 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.

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Fairness

The difference between fairness and justice is that the term ‘fairness’ applies to everyday life, whereas ‘justice’ has more legal connotations. People may have different opinions about what is fair.

For example, suppose one team wins a sports competition because all of its players, randomly selected, happen to be taller than those on the other team. If the rules of the competition do not specify that both teams must have players of the same size, it may seem unfair to the losing team, but there is no ‘fact of the matter’. If Ann places a bet on the team she knows has the taller players, and none of the other people who placed bets knows anything about the teams or how tall the players are, Ann’s winning of the bet may also be regarded as unfair – as a result of her having knowledge the others lacked.

There is no single social mechanism for deciding what is fair or ensuring fairness.

It is expected that laws will be fair to all members of society. Justice is more specific than fairness, as the term is applied to situations covered by the law, which tries to ensure that everyone has the same opportunities.

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Access

Protecting the rights of all citizens is the ultimate goal of the law.

all people must have the same level of access to the institutions and agencies of the law.

Access refers to the ability to obtain or make use of something. The concept of justice suggests that everyone who is covered by a legal system and its laws should have equal access to that system.

However, the legal system is not accessible to everybody in an equal way. For example

women

financially disadvantaged people

people from non-English speaking backgrounds

people living with a disability

Aboriginal and Torres Strait Islander peoples

those who are institutionalised

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Procedural Fairness and Natural Justice

Procedural fairness: The idea that there must be fairness in the processes that resolve disputes.

Natural justice: 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.

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The Rule of Law

No one is above the law, including those who make the law.

groups and individuals who are involved in the legal system – such as the legislators and judges who make, administer and interpret the laws; the police who enforce the law; and the lawyers who represent and advise people on the law – are all answerable to the same laws as every other citizen.

Obvious breaches of the rule of law occur when officials make favourable decisions for relatives and friends but apply the law fully for everyone else.

Why do people obey the law?

Laws help each person to feel a sense of security

Laws help to reinforce the values of most members of society

Laws function to protect all members of society,

Laws outline what actions are allowed and those that 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

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Anarchy

The word ‘anarchy’ is derived from anarchia (the Greek word for ‘without a ruler’)

Anarchy is a state of chaos and disorder resulting from the absence of rules and laws.

A state of anarchy may break out during a revolution or after a natural disaster because the law enforcement agencies no longer exist or are unable to enforce the laws of a society

Violence and widespread looting are two early indicators that a society or group is on the verge of anarchy.

Anarchy does not imply chaos, but rather a ruler-free society with voluntary social harmony.

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Tyranny

If anarchy is the absence of laws and law enforcement agencies, then tyranny is the opposite.

A tyrant is a single leader who has unlimited power over the people in a country or state.

Tyrannical power involves severe punishment for any infringements of the law.

Some examples of tyrannical power in action include Saddam Hussein’s rule in Iraq prior to his arrest in 2003, Bashar Al-Assad's presidency in Syria and Robert Mugabe’s control of power in Zimbabwe