BLAW10002 Lecture Notes - Lecture 2: Common Law, Corporate Law, Private Law
14 May 2018
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The Legal System
The purpose of the legal system (p.9)
•Law regulates the behaviour of individuals to benefit the greater community
•Laws may restrict, prohibit, punish, permit or reward specified behaviour
-Law generally restricts the use of force by individuals
-Some laws prohibit and punish particular kinds of behaviour
-Other laws permit or reward particular behaviour that the government thinks is desirable
•The law provides for the creation of rights and duties that can be enforced by an individual in
court.
Different kinds of law
•Natural law: rules of conduct that accord with our realised experiences of the physical world
•Moral and religious laws: rules of conduct derived from belief systems. Obeyed as a matter of
individual conscience.
•Custom: rules of conduct established by long usage. Obeyed because of peer pressure or
convenience.
•National Law: rules of conduct that the government of a country recognises and enforces as
law. Some overlap between national law and other kinds of law.
Taxonomy of law
•International law: agreements between different sovereign states (i.e. treaties, conventions,
etc)
•National law: the law as recognised and applied within a particular nation state
•Public law: law of general application to the relationship between citizens and the state
-Constitutional law: laws determining how government works
-Administrative law: body of law regulating government decision making
-Criminal law: the body of law prohibiting certain types of conduct and which is enforced
through punishment by the state
-Regulation: Authorities that enforce standards
•Private law (civil law): laws which regulate relations between individuals
-Tort law: liability for harm caused by one person to another (e.g. defamation, negligence)
-Contract law: the recognition and enforcement of private agreements
-Property law: the law governing the ownership of property
-Corporations law: the law regarding the creation, organisation and administration of
companies
History of Law
•Relationship between law and justice is complex
-Laws ought to to aim to achieve fair and just outcomes
-Governments do not always make and enforce just laws
•Law is most useful when rules are clear and their application predictable.
-Sometimes justice and predictability conflict
-Varies case-by-case, but don’t want too many unpredictable outcomes
•Laws of different countries are similar due to sharing common origin
-Roman law: foundation for Europe and some counties outside
-English law: England decided to not adopt the Roman law, Australia’s foundation is
English law
-In Australia, English law was adapted and expanded alongside indigenous custom and law
•Britain initially governed Australia, but in the 1800s, the colonies were allowed to make laws
for “peace welfare and good government” as long as it was consistent with Britain
Types of legal systems
•Common law systems: legal systems which focus on case law (or the system of judge made
law known as common law)
-The common law system relies on the doctrine of precedent
-Ensures consistency and fairness in similar vases
-Everyone is treated equally before the law
-Inflexible - presidents may be out of touch with current values/morals
-Judge diversity - reduces unconscious bias
-AdversarialzF process (argument)
•Civil law systems: legal systems which focus on statute/codes as the source of law
-Judge active role in the process
Sources of Law
•International law: must be incorporated into domestic law by legislation
•Constitutional law: defines the powers of the executive/legislative/judicial arms of government
and the relationship between them
•Statute/legislation: the law made by the legislative arm of government (prevails over the
common law)
•Common law: law made by the courts (doctrine of precedent is central)
-Equity - can provide remedies where common law is inadequate
-e.g. injunction (this can restrain free speech)
•Australia is a federation - Commonwealth of Australia Constitution Act 1900 (UK)
-Prior to federation, the colonies were self-governed
-Each state retained power to govern within their own borders
-Specified powers for national importance given to the Commonwealth
•A constitution consists of the rules by which a state is formed and governed
•Australian constitutions are formally enacted as law
•The Commonwealth, the states and the self-governing territories (NT and ACT) each have
their own constitution
•Australia is a constitutional monarchy - each state has a governor and the territories are
governed by the Commonwealth
•Australian governments are representative democracies, with governments elected
periodically.
•Multiple levels of government in Australia, each with different powers and responsibilities
-Federal (Commonwealth): Federal parliament and federal courts (system of government
set out in Cth Constitution)
-State: state parliaments and state courts (system of government set out in state
constitutions)
-Local!
Document Summary
The purpose of the legal system (p. 9: law regulates the behaviour of individuals to bene t the greater community, laws may restrict, prohibit, punish, permit or reward speci ed behaviour. Law generally restricts the use of force by individuals. Some laws prohibit and punish particular kinds of behaviour. Other laws permit or reward particular behaviour that the government thinks is desirable: the law provides for the creation of rights and duties that can be enforced by an individual in court. Different kinds of law: natural law: rules of conduct that accord with our realised experiences of the physical world, moral and religious laws: rules of conduct derived from belief systems. Obeyed as a matter of individual conscience: custom: rules of conduct established by long usage. Obeyed because of peer pressure or convenience: national law: rules of conduct that the government of a country recognises and enforces as law. Some overlap between national law and other kinds of law.
