Basic_Legal_Concepts

Basic Legal Concepts The law is a complex system of rules that aim to maintain order in our chaotic society. It establishes and enforces rules on the way individuals in a society conduct themselves and outline punishments for those that do not follow the law. A country’s social values and customs are sanctified in its laws. As these values and customs change so do the laws. The basic legal concepts are the fundamental principles of law that are essential for the proper functioning of society. The law as we know it has evolved from centuries of customs and values. In earlier history people tended to band together to form societies in order to survive. Overtime, these societies had developed customs and values. Values are ethical beliefs on what is morally right or wrong. Directly influenced by these values, people developed habitual practices and rituals known as customs. Traditions are the handing down of these customs from generation to generation. As more people in a society began to follow these customs and traditions, they became rules of that society. These rules of society are collectively known as customary law. Customary laws are generally unwritten or oral laws that consist of acceptable behaviour within a particular cultural or social group. Different cultures have different customs and values and evidently different customary laws dictating their lives. (Dictionary.com, 2011) (Paul, Daryl, Kate, Tim, & Phil, 2010) (Aninssimov, 2011) (Customs (Law), 2011) The English customary laws were the basis of common law in Australia. Before the 11th century in England, disputes and punishments were decided on the basis of local customs and traditions. However during the 12th century a system of travelling judges began to be used. These judges would apply a common set of laws and similar cases would be treated similarly. The decision the judges made set the standard for future similar cases. This is referred to as precedents. This idea of precedent ensured that everyone was treated fairly and that people committing similar crimes received similar punishments. These judicial decisions created a uniform set of laws across England which collectively became known as common law. (Essert, 2011) (Paul, Daryl, Kate, Tim, & Phil, 2010) (Essert, Legal studies notbook, 2011) Equity came into being as faults were found in common law. Equity deals with the injustice of common law using Christian principles and fairness as its core elements. Unlike common law, equity has non-financial remedies such as injunction. For example, the court may order someone to do what they had promised to do but had failed to do so. During the 1870’s equity merged with common law which allowed judges to apply equity to common law. (Paul, Daryl, Kate, Tim, & Phil, 2010) (Essert, Legal studies notbook, 2011) In Australia today, we have a similar legal system to that of England; however it has been adapted to suit the modern Australian society. Some aspects of Indigenous customary law, for instance, mediation, have been incorporated into contemporary Australian law. Apart from common law, Australia also has statute law. These are laws made by legislature or parliament. Although made by different sources, both areas of law aim to create a secure and a safe society by upholding justice. (Paul, Daryl, Kate, Tim, & Phil, 2010) (Essert, 2011) Justice can best be described as the quality of rightfulness or lawfulness. Justice is a legal concept of upholding rights while enforcing responsibilities. A just law ensures that all members of society receive the same treatment while respecting the rights of individuals. However for justice to actually be meaningful, equality, fairness and access are three other concepts that should be exercised. (Paul, Daryl, Kate, Tim, & Phil, 2010) Equality refers to the notion that everyone is treated the same, regardless of gender, age, religion race or beliefs. Although we would like everyone to be treated equally, there are some instances where this may not be the case. For example, in a divorce case it is more likely that the mother will have custody of the children as it socially accepted that the mother will care more for her children than the father will. Sometimes the law may also take into account a person’s capabilities. For instance, if a mentally challenged person or a child has been charged with committing a crime, the courts may hold their capabilities in consideration and may make exceptions. (Paul, Daryl, Kate, Tim, & Phil, 2010) Access is another important concept in upholding justice. Access is the ‘right or ability to approach, enter or speak’. For the legal system to be just, all persons must have equal access to the legal system including courts and law institutions. Access not only refers to being able to go to court but also to be aware of the laws and understand their legal rights and responsibilities. However there people who do not have complete access to the laws. These people include the Indigenous people, people who speak a different language, financially disadvantaged people among others. (Paul, Daryl, Kate, Tim, & Phil, 2010) (Dictionary.com, 2011) Another principle of justice is fairness. Fairness is being free from ‘bias, dishonesty and injustice.’ Although it is closely related to justice, fairness relates to our everyday life while justice is associated with law. Everyone will have a different opinion on what is fair. There is no one set manner that determines what is fair and what is unfair. When rules and laws are made they are expected to be fair and cover all members of society. (Paul, Daryl, Kate, Tim, & Phil, 2010) (Essert, 2011) Two ideas that are closely related to fairness are procedural fairness or natural justice and the rule of law. Procedural fairness refers to the fact that there should be fairness in legal procedures while natural justice is a notion that states that everyone should treated fairly in courts. Basically its main principles are that everyone should have a right to present their case, the decision making authorities must be unbiased and the decision must be based on logical and relevant evidence. (Paul, Daryl, Kate, Tim, & Phil, 2010) (Ombud, 2009) The rule of law is the notion that states that no one is above the law and everyone, including those involved in the legal system such as lawmakers, the police who enforce the law and lawyers who advise people about the law are answerable to the same law. This idea ensures that everyone gets the same treatment when committing crime, regardless of whether they are a judge making and interpreting the law or a normal citizen following the law. (Essert, Legal studies notbook, 2011) (Paul, Daryl, Kate, Tim, & Phil, 2010) However, when the concept of the rule of law no longer has meaning, two situations can result; anarchy where everyone is above the law and tyranny where one person or a group of people are above the law. Anarchy is the absence of laws. If a country is in a state of anarchy there is no law or government governing them resulting in order and chaos. Anarchy usually results after a natural disaster or revolution as lawmakers and law enforcers no longer exist or are unable to maintain order. Tyranny is the opposite of anarchy where one person or a group of people have absolute power. Tyrants are according to Plato and Aristotle, “one who rules without law, looks to his own advantage rather than that of his subjects, and uses extreme and cruel tactics -- against his own people as well as others.” Some examples of tyrants are Hosni Mubarak before the revolutionary protests in Egypt and Muammar Gaddafi in Libya. Without laws a state of anarchy can emerge, while too much laws or power can result in tyranny. This is why the rule of law is a very important concept that should be accepted by all countries. (Paul, Daryl, Kate, Tim, & Phil, 2010) (Essert, 2011) (Wikipedia, 2010) Quite simply laws are needed to maintain order and peace. They regulate our behaviour and provide a sense of security. Laws are important as they are very clear on what is right or wrong. Our laws are reflective of our customs and values and although very slow, it changes as our customs change.