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Define "Law"
A set of rules, developed over a long period of time regulating peoples interactions with each other and which sets standards of conduct between individuals and individuals and the government and which are enforceable through sanction.
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An effective legal system must contain (4 points):
- 1) Certainty
- 2) Flexibility
- 3) Fairness
- 4) Accessibility
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Explain "Certainty" in relation to an aspect that an effective legal system must contain
A law that is uncertain provides inconsistancy and unpredictability
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Explain "Flexibility" in relation to an aspect that an effective legal system must contain
A law that is incapable of reflecting changing moral and social values cannot provide just outcomes
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Explain "Fairness" in relation to an aspect that an effective legal system must contain
A law that is not fair cannot be impartial or just
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Explain "Accessibility" in relation to an aspect that an effective legal system must contain
A law that is inaccessible cannot provide fair & just outcomes
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3 examples of "common" law:
- 1) Legal System
- 2) Source of Law
- 3) Division of Law
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Explain "Common Law" as a legal system
Derived from case law (or precident) and statute, accusatorial in form with an emphasis on remidies. Found in Commonwealth nations (as opposed to Civil Law legal systems and others).
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Explain "Common Law" as a source of law
Created through reported decisions of judges in superior courts and usually includes the law of equity (as opposed to Legislation).
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Explain "Common Law" as a division of law
Civil Law & Criminal Law are 2 classifications under Common Law as a division of law (opposed to equity).
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2 exampled of "Civil Law""
- 1) Legal System
- 2) Classification under Common Law
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Explain "Civil Law" as a legal system
Derived from Roman Law, it is a complete code of written laws whose primary source of law is legislation. It is inquisitorial in form and forms the basis in Western European Countries, Japan, etc.
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Explain "Civil Law" as a classification under "Common Law":
Action brought by one individual against another where the mode of precedent is accusatorial and emphasis is on remidies, which are often awards of damages.
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What is the "standard of proof" in a common law system in "Criminal Law":
Defendant must be found guilty beyond reasonable doubt.
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What is the "standard of proof" in a common law system in "Civil Law":
Defendant may be found guilty on the "balance of probability".
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Definition of "terra nullius":
That the land belonged to no one.
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What is International Law:
Law concerned with regulating conduct between nation states.
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What is Municipal Law?:
Local Law, eg. Australia.
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What is Public Law:
Organisation of government and its relationship with the people.
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What is Private law:
Deals with disputes between individuals or organisations.
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What is Equity?:
Judge made law which developed as a result of growing inflexibility and rigidity of the common law. Supplementary/non complete legal system. Does not apply to all Civil disputes and has no application in criminal law.
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Which prevails in the event of a conflict:
Equity or Common Law
Equity
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As Australia was considered terra nullius, English law was to apply as per ____ of ____.
Doctrine of Reception
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In "Mabo", High Court found that Aust. had not been terra nullius, but had been aquired by ____. Indigenous people had rights to ____ ____ under the common law.
Settlement; Native Title
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