70115: Perspectives on Law - Law, Economics and Development



UTS: Law70115: Perspectives on LawClass NotesJohanan OttensooserSpring 2009Contents TOC \o "1-2" \h \z \u Introduction PAGEREF _Toc246217455 \h 4Seminar 2 – Learning and Assessment Skills: thinking critically and analytically, legal problem solving, life-long learning, seminar participation PAGEREF _Toc246217456 \h 4Seminar 3 – Ethical Perspective: what is it and what to do? PAGEREF _Toc246217457 \h 7Seminar 4 – Learning and Assessment Skills (c): Legal Writing and Referencing PAGEREF _Toc246217458 \h 10Perspectives (A) Philosophy and Culture (i) Philosophy PAGEREF _Toc246217459 \h 12Seminar 5 – Philosophical Perspective (Jurisprudence) (a): traditional approaches PAGEREF _Toc246217460 \h 12Seminar 6 – Cross Cultural Perspective (a): common law – not the only legal system PAGEREF _Toc246217461 \h 15Perspectives (B) History (i) England PAGEREF _Toc246217462 \h 18Seminar 7 – English (Legal) Historical Perspective (A): setting up the common law shop PAGEREF _Toc246217463 \h 18Seminar 8 – English (Legal) Historical Perspective (B): equity, the new kid on the block PAGEREF _Toc246217464 \h 21Seminar 9 – English (Constitutional) Historical Perspective (A): Magna Carta and Distortion PAGEREF _Toc246217465 \h 23Seminar 10 – English (Constitutional) Historical Perspective (B): What was passed on? PAGEREF _Toc246217466 \h 25Perspectives (B) History (ii) Australia PAGEREF _Toc246217467 \h 30Seminar 11 – Australian (Legal) Historical Perspective (A): A clash of historical perspectives – British colonisation/invasion of NSW PAGEREF _Toc246217468 \h 30Seminar 12 – Australian (Legal) Historical Perspective (B): Setting up the legal shop in NSW PAGEREF _Toc246217469 \h 31Seminar 13 – Australian (Legal) Historical Perspective (C): Reception and Repugnancy PAGEREF _Toc246217470 \h 33Seminar 14 – Australian (Constitutional) Historical Perspective (D): the Federation and Independence Journeys PAGEREF _Toc246217471 \h 34Seminar 15 – Australian Constitutional Perspective: Getting to know the Australian Constitution PAGEREF _Toc246217472 \h 35Perspectives (A) Philosophy and Culture (ii) Aborigines and Immigrants PAGEREF _Toc246217473 \h 37Seminar 16 – Cross Cultural Perspective (B): recognition of Indigenous customary laws PAGEREF _Toc246217474 \h 37Seminar 17 – Cross Cultural Perspective (C): what access and for whom? PAGEREF _Toc246217475 \h 38Seminar 18 – Social Justice Perspective: Moving to a wider view (re: Aboriginal people) PAGEREF _Toc246217476 \h 39Perspectives (C) the Legal Profession PAGEREF _Toc246217477 \h 40Seminar 19 – Legal Players’ Perspective (A) – looking from the Inside (Judge and Jury) PAGEREF _Toc246217478 \h 40Seminar 20 – Legal Players’ Perspective (B) – looking from the Inside (Jury and the legal practitioner) PAGEREF _Toc246217479 \h 42Perspectives (D) International Law PAGEREF _Toc246217480 \h 43Seminar 21 – International Perspective: international law knocking on Australia’s door PAGEREF _Toc246217481 \h 43Perspectives (A) Philosophy and Culture (iii) other frames PAGEREF _Toc246217482 \h 45Seminar 22 – Philosophical Perspective (B): criticism and beyond PAGEREF _Toc246217483 \h 45Seminar 23 – Law and Culture PAGEREF _Toc246217484 \h 46Bibliography PAGEREF _Toc246217485 \h 47To Print:ThisWebsiteJurisprudenceBLE on const.Graduate attributesIntroductionSeminar 2 – Learning and Assessment Skills: thinking critically and analytically, legal problem solving, life-long learning, seminar participation29th July 2009Page 7-16NB: Consequentialism, non-Consequentialism and the framework of ethical analysisActivities and Discussion QuestionsRe: Study planStudy plan as fluid, to plan is a little too optimistic. However, for the Wednesday class, I do have Tuesday off to prepare. For the Monday class, I have Friday (and, if the work is too much for a day, the weekend).Create a compulsion (e.g. my website)Re: Seminar ParticipationDo the readingsCome with arguments/potential answers for discussions planned (with references)Respect the opinions of othersActive Listening XE "Graduate Attributes:Active Listening" engaging specifically with the discussion topic (bringing in external sources)see subject outlineWhat do you think critical thinking XE "Graduate Attributes:Critical Thinking" and reading involves (Re: Robb Watt)?Critical thinking and reading involves the selective gathering, interpretation, synthesis and analysis of information with the aim of extracting an argument or pattern.Involves a balance of cynicism and pragmatism.Re: Cereal e.g.This claim does not provide sufficient information to come up to scrutiny. Firstly, recommended requirement for whom, how do you know who I am? Secondly, does this bowl of cereal include milk? Thirdly, how did they come up with the numbers? Finally, standard bowl? %age of other dietary bits and pieces? Who is making the claim?The accompanying visual image should be taken with a grain of salt, since the statement aforementioned is so fluffy.Nb: Daily dietary requirements are a government standardRe: Wikipedia XE "Sources:Wikipedia" Wikipedia is a wonderful first resource, however, since it can be edited by anyone, it is not accurate or quality controlled enough to be of reference. However, it can provide an interesting summary of a topic, as well as links to further, accurate and peer-reviewed references.It is wonderful for first reference.Rob Watt“That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society”The quote above does not create a right to privacy. However, it provides a clear, succinct and morally sound argument for the creation of rights, thus allowing for the subsequent common law creation of the right to privacy. Whilst the quote in and of itself is quite powerful, the fact that it was an Associate Justice does lend it some greater weight, since it was born out of an intimate knowledge of law, and the philosophy and morality of law.Rob WattJulius Caesar, whilst highly educated (for the time) was also not a zoologist in any way. His speciality was not in this field, and, thus, his treatise on Elks should not be taken too seriously.However, it is an interesting analysis of his background, specifically his knowledge of animals, and his observation of traditional practices (which, too, should be verified).It does not, however, sound like he witnessed these events first-hands, but, rather, has heard of the hunting practices, rather than observed them, further reducing the relevance of this text.Re: Sean Connery “Independence Day not far off for Scottish bravehearts”This article, whilst seemingly informed, is heavily biased by the fact that the author is a proud Scottish nationalist. Furthermore, he’s not a journalist, and, thus, might not have the research integrity which is expected of published articles.Re: Defn analytical thinking XE "Graduate Attributes:Analytical Thinking" Critical thinking is purposeful and reflective judgment about what to believe or what to do in response to observations.Cynical synthesis of sources in decision makingDefn: IRAC XE "IRAC" Identify Issues and relevant facts, Research or review, Application, Conclusion (conclusion = zone for HD)A bit too fluffy, not profound. Basic.Re: Doggy(1) A dog that is in a public place?must be under the effective control of some competent person by means of an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person – Companion Animals Act 1998 (NSW) TA \l "Companion Animals Act 1998 (NSW)" \s "Companion Animals Act 1998 (NSW)" \c 2 No? because it functioned as a leadYes? Because it is a public place, and not an “adequate chain, cord or leash”Is it still a public place?Does effective control relate to dog temperament?“adequate” -> re: mischief rule to define (able to stop the dog from running off) Furthermore, the presence of a ranger or other people does not lessen the illegalityIf it was not her dog, and therefore she did not know her as well, I would not recommend this action, since she is not aware of the dog’s temperament or strength…? Perhaps irrelevant to advice…Lightly illegal, no one would care/convictIRAC methodI – Is the restraint sufficient?R – Companion Animals Act, section 13,(1) and maybe (2)A – Is it effective, is it adequate, is the dog dangerous?C –Could but wouldn’t?Re: Lifelong Learning XE "Graduate Attributes:Lifelong Learning" With constantly developing and changing law, it is critical to keep up to date, on changing morality, technology, law, attitudes and practicesVia: journals, newspapers, etc.Seminar 3 – Ethical Perspective: what is it and what to do?3rd August 2009Discussion StartersWhat do you think ethics XE "Ethics" means? What does acting/thinking ethically XE "Ethics:acting/thinking ethically" mean?Ethics are the amalgamation of generally accepted moral principles in society/a profession.Thinking/acting ethically means acting/thinking within the guidelines of the appropriate ethical frames, with individual discretion to soften the rigidity of ethical rules.Or, thinking with a knowledge and appreciation of that which is generally accepted, and weighing the action against these accepted principles and your own morality.Extremely based on individual casesWhy Study Ethics XE "Ethics:Why Study Ethics " ?Considering our future profession enforces legislated societal ethics, an appreciation of the roots and causes for these laws, as well as their aim, is necessary in their application.Evade lawsuits via ethical code as deterrent (person v company)Teach via Socratic methodRe: “A Time to Live and a Time to Die”YesTwo criteriaI do not consider the other twin truly aliveIt is stated that she had a dying brain, no heart or lungs etc.She was parasitic off the other twinIt is impossible to save both of their lives, and, in this case, the possibility of one whole life outweighs the short life that both twins have w/out surgerySelf defence, necessity, life support, reasons given by judges in rulings.YesI think it is the moral choice, 1 life > 0Yes, since it is the court’s role to preserve the rights of the child who could survive.I.e. child abuse casesThe parents? Their opinions are, however … questionable because of their fragile emotional state… Can be thought of like court taking away an abused child to care for its rights … hard but right...?Re: “Fine way to raise money” Yes, since it provides the dual purpose of reducing speeding (as given by evidence) and raising fundsNo, since they target low risk high occurrence areasRe: “The Case of the Speluncean Explorers”I believe that they acted unethically, but morally … that is, in a way which is contrary to the norm, but for the preservation of human life.Yes, a consequentialist view would pardon the explorers, a purely non-consequentialist view would not excuse their actions.Consequentialism XE "Ethics:Consequentialism" looks at actions in the light of their situation and causal linksNon-Consequentialism XE "Ethics:Non-Consequentialism" rejects the above and states that ethics are concrete, and that actions are moral or immoral, regardless of their consequencesAsk for advice and didn’t get it therefore cant prosecuteRe: customsRE: Diplomat case study (torturing a criminal to save a life)I’d like to say I think it is immoral, but I actually think that in this case, the ends do justify the means… I know this is not the legal way of thinking, and it is morally relativistic, but you can also say that a criminal forfeits his rights when committing a crime, and that in saving an innocent life, the act is justified.The fact that it works makes it justifiable...?Yes, as aboveRe: Hypocrisy of defending someone you disagree with (Newlawyer and alcohol)Via “Ethical Decision-making Framework”Framework XE "Ethics:Framework for Ethical Analysis" : awareness, application of standards and principles, practical implementation I think that it is her role as a lawyer to defend the client in the best way legally possible, disregarding personal moral inclination. A lawyer should only back out if he thinks that his moral differences will impede on the quality of his work, especially in criminal work.NoThe limitations of the adversarial approach come as aboveRe: Expansion of Adversarial Approach XE "Ethics:Adversarial Approach" to other forms of ethical decision makingNB: Defn. an “amoral” approach to law, whereby the lawyer isolate himself from his own morality in defending the lawyerNo … i.e. NuremburgIt would only work in very specific casesRe: Plagiarism XE "Graduate Attributes:Plagiarism" They should both be penalized, since one is guilty of plagiarism and the other is stupid for giving his/her work out before the due dateHowever, the plagiarist should be penalised more…Prisoners dilemma situation occursVia frameworkIssues: plagiarism, actors: students, universityApplication of standard: personal , industry-wide and universityPractical implementation: implementation of formal disciplinary procedures, failing, possible future effectsRe: Legal EthicsLawyers should be subject to universal ethical standards as well as a higher set of standards considering that they are society’s agents for the preservation of ethics…?History (pure theory of law, social contract)Different industry’s different rolesLooser because of advocacyLaw for lawyers PluralityWiki-ethicsKafka?Seminar 4 – Learning and Assessment Skills (c): Legal Writing and Referencing5th August 2009Re: soul theft (plagiarism in Jewish Law), academic standardsDiscussion StartersWhat makes a good legal essay?What elements do you think make a good academic essay? How well does your opinion match up with the criteria indicated in the “assignment feedback sheet”?I believe the key elements in a good academic essay are:ReadabilityRelevance (answering the question, no red herrings, etc.)Structure (logical, arguing the point by laying the foundation, outlining the evidence and drawing relevant conclusions)EvidenceBrevityReferencingThe criteria given by marking outline:A sustained argumentKnowledge of the topicIdentification of the issuesCritical analysisDevelopment of argumentBackground readingStructureStyleThe criteria seemed to divide structure, evidence and relevance into IRACRe: Plain language XE "Essay Skills:Plain language" . What is this? What are its advantages?Writing with the audience in mind, seeking brevity, ease of readability of both language and concept (breaking complex concepts down into their simple elements). “The practice of writing … in a clear and simple style”, “with the needs of the reader foremost in mind”.Its advantages are wider reader base, increased trust, etc.Re: Kafka’s “the Trial”ReferencingWhat are the functions of footnotes XE "Essay Skills:Footnotes" ? The faculty has adopted the referencing style set out in the Australian Guide to Legal Citation (2nd ed, 2002). Rewrite the following set of footnotes to comply with the faculty’s preferred style:Footnotes serve to provide reference to sources without disrupting the flow of the text, as well ad providing addition non-essential information or clarifications.What is the purpose of a bibliography XE "Essay Skills:Bibliography" ? What works can be included in a bibliography? Rewrite the following according to AGLC.Bibliography’s serve as a tool both for extra reading, and to show which books/sources have contributed to the work, allowing for an analysis of reliability.Outline in clear terms the rules against plagiarism XE "Essay Skills:Plagiarism" . What is the rationale for these rules?Don’t plagiarise or you will get 0 and have formal disciplinary measures taken which can affect your whole legal career.Plagiarism dilutes the degree.Assess plagiarism in the following extracts:This is classic plagiarism This is not plagiarism, since it was referenced (assuming this amount of quoting is allowed)Not plagiarism, referenced incorrectlySince the quote is of a primary source in a secondary source, but consists only of the primary source, I’d reference the primary source.This is still plagiarism, even though basic words were changedThis is borderline, i.e. the phrase “imperial shackles” in the context of the sentenceThis is not plagiarismRe: 3.9. How would these assignments be dealt with under the UTS University Rules? What consequence might befall these students in terms of their future legal careers?No clueNot pass bar?Re: Plagiarism in exam.It still is plagiarism. If the author is mentioned in paraphrasing then it should be finePutting it altogetherMark the sample essay with commentsI’d fail the student with 4 out of 10 because it is inconsistent, mostly irrelevant and badly written.0 because of extensive plagiarismWhere to from here?“The impact of plagiarism on admission to the bar” ADDIN EN.CITE <EndNote><Cite><RecNum>3</RecNum><record><rec-number>3</rec-number><foreign-keys><key app="EN" db-id="zrea95sre9va98exv915v027pastaxerawfa">3</key></foreign-keys><ref-type name="Case (Reported)">7</ref-type><contributors></contributors><titles><title>Re Liveri</title><secondary-title>QCA</secondary-title><alt-title>The impact of plagiarism on admission to the bar</alt-title></titles><pages>152</pages><section>2006</section><dates></dates><label>C</label><urls></urls></record></Cite></EndNote> Re Liveri [2006] Plagiarism can hurt your chances at achieving the bar.They look atthe seriousness of the plagiarism;the number of times that plagiarism had occurred;the age of the applicant; andthe applicant’s unwillingness to acknowledge the seriousness of her misconductPerspectives (A) Philosophy and Culture (i) PhilosophySeminar 5 – Philosophical Perspective (Jurisprudence) (a): traditional approaches10 August 2009Discussion Starters What is Jurisprud XE "Jurisprudence" ence?The study of the philosophy of law, the relationship between law, ethics and morality and the study of the legal ideal; what it should seek to do and how.As apposed to substantive law (and procedural law), what law is nowDialogue behind which substantive law is createdWhere does law fit into society/our lives?Thought processes and histories behind effected procedure/current legal zeitgeistWhy study jurisprudence? (via student and professional)For a student to understand the application of law, he must understand its roots and aims, one of the primary goals of jurisprudenceFurthermore, it “plays a key role in inculcating these [use, analysis and criticism of law] and related abilities [to the law student]” ADDIN EN.CITE <EndNote><Cite><Author>Meyerson</Author><Year>2006</Year><RecNum>15</RecNum><record><rec-number>15</rec-number><foreign-keys><key app="EN" db-id="zrea95sre9va98exv915v027pastaxerawfa">15</key></foreign-keys><ref-type name="Book Chapter">5</ref-type><contributors><authors><author>Denise Meyerson</author></authors></contributors><titles><title>Introduction: &quot;What is Jurisprudence?&quot; and &quot;What is the point of studying Jurisprudence?&quot;</title><secondary-title>Essential Jurisprudence</secondary-title></titles><pages>1-2, 6-8</pages><dates><year>2006</year></dates><pub-location>Cavendish</pub-location><publisher>Portledge</publisher><label>A</label><urls></urls></record></Cite></EndNote>.For the professional, it allows for a deep critical understanding of the law.Put the law before your client?What is ‘morality’ XE "morality" ? And can we talk about a ‘community morality’ (ethics?) or an ‘Australian morality’?My definition of morality involves the personal, individuated set of codes which define the actions of an individualMcCoubrey and White’s Textbook on Jurisprudence ADDIN EN.CITE <EndNote><Cite><Author>White</Author><Year>1999</Year><RecNum>16</RecNum><record><rec-number>16</rec-number><foreign-keys><key app="EN" db-id="zrea95sre9va98exv915v027pastaxerawfa">16</key></foreign-keys><ref-type name="Book Chapter">5</ref-type><contributors><authors><author>Hilaire McCoubrey and Nigel D White</author></authors></contributors><titles><title>The enforcement of morality: Hart and Devlin</title><secondary-title>Textbook on Jurisprudence</secondary-title></titles><edition>3rd edition</edition><dates><year>1999</year></dates><label>A</label><urls></urls></record></Cite></EndNote> outline’s community morality via Hart and Devlin’s XE "Jurisprudence:Hart and Devlin" debateDevlin’s modelDerived from Millsian’s “Harm principle” and Mill’s rebuttal to positivism, which declares the morality of laws paramountDepends on the morality of the “average man”, utilitarianConsists of the following three principles:Maximum freedom compatible with social integrityLaw not changing with every ‘subversion’ of moralityPrivacy held as paramountHart’s model: Libertarian: that laws must not only prevent harm, but defend the liberties of its subjectsRebuts “average” morality with the defence of minorities ADDIN EN.CITE <EndNote><Cite><Author>White</Author><Year>1999</Year><RecNum>16</RecNum><record><rec-number>16</rec-number><foreign-keys><key app="EN" db-id="zrea95sre9va98exv915v027pastaxerawfa">16</key></foreign-keys><ref-type name="Book Chapter">5</ref-type><contributors><authors><author>Hilaire McCoubrey and Nigel D White</author></authors></contributors><titles><title>The enforcement of morality: Hart and Devlin</title><secondary-title>Textbook on Jurisprudence</secondary-title></titles><edition>3rd edition</edition><dates><year>1999</year></dates><label>A</label><urls></urls></record></Cite></EndNote>Theories:Australian morality would be harder to defineStolen generation utilitarianism, domination of minoritiesHart style, “salad bowl”Morality v ethics re: impositionTo what extent do you think law overlaps with morality? Can you think of examples of laws that reflect morality? What about examples of laws that might be considered to be ‘morally neutral’? And can you think of any examples of moral principles which have not found expression in our law?Law is created to protect the rights, and prevent the harm of its subject. Its subjects have individual, societal, religious, etc, moral sets. Thus, since the law represents these subjects, it will often reflect the morality of the zeitgeist in which it was created.Social contractSame sex marriage, German Sunday labour restrictions, Christmas holidays, transfer payments and minimum wageParking fines? Citizenship?Honesty, being altruistic, friendship, love,What jurisprudential question is highlighted by the Grudge Informer cases XE "Jurisprudence:Grudge Informer Cases" ? Can you point to more modern examples where this issue has been played out? Compare and contrast the way in which a natural law thinker would resolve this issue compared with a legal rmers prosecuted?Intent Given that the law is not equally enforced, is it still valid?Secret lawIs a law that is enforced immorally still ok?KafkaWater restrictions, dobbing. Noise complaints, etc.Natural law vs. Positivism XE "Jurisprudence:Natural law vs. Positivism" DefinitionsNatural law XE "Jurisprudence:Natural law" is law that derives its authority from a higher power or greater sense of ethical responsibilityPositivism XE "Jurisprudence:Positivism" looks at the law as written, and to its congruencyA natural lawyer would say that since the laws aren’t enforced equally they aren’t just, and are invalidA positivist would say that administrative difficulties make it impossible to indict everyone, and since those dobbed on are guilty of the crime as written, they should be held as suchUnless perhaps there is a statement in the constitution on justness?Do you think the criminal law should be used to enforce morality? Compare and contrast the view expressed on this question by the Wolfenden Committee in ’57, Professor Hart and Lord Devlin. We often hear about ‘victimless crimes’, what does this mean? Can you think of any examples?No, since morality differs between people and law is meant to be egalitarianSmall scale counterfeiting, some scammingDo you think there are any situations where you are justified in disobeying the law? If so, on what ground?Yes; legali.e. Nuremburg law is not a defencewhen obeying the law will break morals and disobeying will not increase social disorder re: St Thomas AquinasWhat do you think a judge should do when confronted with an immoral or otherwise unpalatable law? Analyse in the light of the Berlei 4 XE "Jurisprudence:Berlei 4" case.Raise the issue in judgement, perhaps refer the law to the high court/parliamentRe: bra ad defacementNot an immoral law, an immoral example perhaps? There were better ways of doing thisTo what extent (if any) do you think the law shapes morality? Can you point to any examples?Yes, since morality is often personal, and a lot of personal respect is given to lawRe: resale of digital waresRe: Speluncean explorers. Are they guilty? Which argument do you agree with?They are guilty of the law as written, however, the jurisdiction is arguable and the case for the executive action is quite strongI agree with the principles set out in 1, the rebuttal is interesting posed in judge 2, and the third ruling, I believe, is the strongest ethically.In my moral ethic, huge differences, re: application to lawSee 5b, BLEthicsSeminar 6 – Cross Cultural Perspective (a): common law – not the only legal systemFor 12th August 2009Discussion StartersAustralia belongs to a family of legal systems known as the common law legal system. Can you identify four other common law countries? Now, identify five civil law mon law XE "Legal Systems:Common Law Countries" AustraliaUnited States of AmericaCanadaEnglandNigeria*Civil Law XE "Legal Systems:Civil Law Countries" IsraelGermanyFranceThe NetherlandsItaly?Compare and contrast the common law legal system with the civil law legal system in the following matters: XE "Legal Systems:Common and Civil law comparison" Common LawCivil LawHistoryMedieval EnglandKing’s court/judgesEqual punishments for equal crimes18th C FranceBased on Roman/French civil codesSources of lawLegislation and PrecedentCodesAttitude to precedentSacrosanctRelatively irrelevantMethod of trialClearly delineated pre and during trial All trial as oneRole of the judgeMediatorOn points of lawOn which evidence can be heardInquisitorCan call and question witnessesCan lead investigationTraining and education of judgesThrough the legal system, electedFurther training in universityAnything else?Each witness has their own lawyerThere is often a panel of judges questioningEach case shapes the codesIn what ways does the Australian legal system differ from the common law legal system?Inquisitorial family courtsReference to international precedenceAcceptance of international treatisesHigh court acceptance of different argumentsOver the years, we have borrowed certain aspects from the civil law legal system. Can you find any examples of these “borrowings”? Do you think there may be a limit to how much we can borrow from the civil law legal system? Give reasons.We have codified several of our common laws:Patent Act Crimes Act We can/should only borrow slightly from the civil law system to preserve the sanctity of precedent …?Apart from the common law legal system and the civil law legal system, are there any other families of legal systems? Give an example of where each of these operates. Briefly consider some of their distinguishing characteristics.Legal FamilyLocationDistinguishing CharacteristicsSocialistFormer USSRBased on Romano-German lawFocusing on Marxist-Leninist ideals, such as collectivised productionFar EasternChinaPurpose of law is different, much less used, similar to JapanMuslim, Hindu and JewishNigeria, Saudi ArabiaBased on “natural law” agreed upon by religious hierarchyBlack AfricanMadagascarPrinciple goal is the maintenance of harmony rather than the adherence to the lawDistinguish between a legal system and a legal tradition.A legal system is the structure within an the manner of practice within a nationA legal tradition is the historical and political dialogue behind the legal systemWhat are the key characteristics of the western legal tradition XE "Legal Systems:Western Legal Tradition" ?The egalitarian ideal of lawThe aim at justiceThe separation of church and stateThe provision of rightsAutonomy of lawCentralityMoral authorityHow may these key characteristics be used to distinguish the western legal tradition from other legal traditions?Under the socialist tradition of law, the party is above the lawUnder the black African tradition, the aim is at cohesion, not justiceUnder the Muslim tradition, law and religion are inexorably linkedUnder the far eastern tradition, the provision of rights is not central to the law, rather, the control of the populace is more centralThus far in your studies you would have encountered several meanings of the term “common law”, what are these? Similarly, you would have encountered more than one meaning of “civil law”, what are these?Common lawJudge-made lawThe common law (British based) legal systemCivil lawCivil cases, (suing, person v person)Civil law system (Continental European)Perspectives (B) History (i) EnglandSeminar 7 – English (Legal) Historical Perspective (A): setting up the common law shopFor 17th August 2009Psychopathic cabbieLocal court to king’s court via writ and general EyreOther NotesThe Provisions of Oxford (1258) TA \l "The Provisions of Oxford (1258)" \s "The Provisions of Oxford (1258)" \c 2 XE "History:England:Common Law:Writ:Provisions of Oxford" : The barons limited the King’s ability to write new writs in order to limit the power of the common law and reduce the redistribution of court fees to the king.Replaced with the Provisions of Westminster XE "History:England:Common Law:Writ:Provisions of Westminster" Overturned by a Papal Bull and the “Dictum of Kenilworth”Statute of Marlborough TA \l "Statute of Marlborough" \s "Statute of Marlborough" \c 2 (1267): XE "History:England:Common Law:Writ:Statute of Marlborough" Prevented citizens from recovering damages in any means but through the court systemDiscussion StartersRe: First Year Law Student. What does history have to do with law? How will history help me further an understanding of the Australian legal system? What are the challenges in teaching legal history XE "History:Why Study Legal History" ? See readings p116Common law, and, thus, Australian law, has developed over the centuries, rather than being spontaneously created. Knowledge of the history of legal tradition allows the law student to understand the dialogue behind the current legal system.This will further an understanding of the legal system with an understanding of historical “accretions” which otherwise seem baseless.Ensuring a chronological understanding which also highlights the development of the current system rather than focusing on irrelevant detailsRe: English HistorySame as AustralianHistory re: critical analysisThe Norman Conquest in 1066 has been described as a “cataclysm of the first magnitude” in English legal and constitutional history. Why? XE "History:England:Common Law:Norman Conquests" The accretion and centralisation of lawThe idea of common law rather than local lawLocal rulers given power via feudal systemWhat is feudalism? What was its significance for legal and constitutional development in England? XE "History:England:Common Law:Feudalism" Feudalism is a set of delegated siesin’sThe epitome of the social contractUsage of land for tithes, duties and fealty (economic and social connection between lord and tenant/serf)Each level is dependent on a higher one until the king Beginning of land ownership, rights and royal dominionDefn: curia Regis, general EyreBefore:St AugustineFamily What was the writ system XE "History:England:Common Law:Writ" ? What were the forms of action? What impact did these have on the development of common law? Why are actions on the case considered to be such important actions in the development of the English Common law? (re: XE "History:England:Common Law:Writ:Provisions of Oxford" provisions of oxford) Henry gave this power to the courts. Function changed to summonsThe writ system was a system of formalised legal actions to bring forward an action in the royal court.The forms of action were formal and complex forms written by the Royal court through which an action might be broughtThese instituted the formal writ system into the common law, and, therefore, ?limited and organised the actions brought? re: provisions of oxford, power of the king v power of the barons, allowed for the development of equity, are still used as summonses, allowed actions to skip local court and law and go straight to the royal court appeals processes?What were the older customary modes of proof XE "History:England:Common Law:Historical Proofs" ? If you were a litigant in that time, would you be content with those modes of proof? Define: CompurgationOath, compurgation and ordealsYes, as that was what, at the time, was considered binding, as oaths had more weight &ct.Trial by jury is seen as quintessentially English: is it? Assess the contributions of the following:No, there were many influencesThe Development of the Jury SystemThe Franks XE "History:The development of the Jury System" Under the Frankish Kings, higher society members were tried by the king’s court, in a jury-like system – the “germ of trial by jury” whereby a “peculiarly Frankish” tradition was “transplanted to England, where it flourished”The NormansA method of inquest used in the trial of higher peoples (dukes, kings etc.)King Henry II“the originator of the jury as a regular judicial instrument, first in Normandy and later in England. It was only after Henry came to the English Throne that what had been a royal monopoly became a part of the common law”King JohnMagna Carta (after the disputes with the barons) clauses 17-22, “that peers should try their people” Medieval English litigantsFrom Anglo Saxon kingsThe Fourth Lateran CouncilCannon 18 of the fourth Lateran Council forbade all clergy from participating in ordeals, opening the door for jury-based systems and non-religious trials, “Neither shall anyone in judicial tests or ordeals by hot or cold water or hot iron bestow any blessing; the earlier prohibitions … remain in force”Ancient GreeceRe: jury a la Socrates’ trial, where he was judged by male citizens as a juryAncient RomeThe Roman Fisc, meaning basket, of in which ballots of guilt where castGermanic legal tradition (in the medieval time)The Vehmic, Jury based court system, jury made up of professional “lay-judges”Does Henry II deserve to be remembered as the father of the English common law XE "History:England:Common Law:HenryII" ?Nope, if anything, a Mormon polygamist half-parent of the jury systemHave jury’s had a major effect on the English common law?Involvement of the public from hierarchical to common, with the involvement of the people cementing the egalitarian ideal of the lawWhy did English law develop so differently to continental law?Not so different, see footnote 27Seminar 8 – English (Legal) Historical Perspective (B): equity, the new kid on the blockFor 19th AugustNB: Look up cases re: Marlborough and OxfordOther Notes ADDIN EN.CITE <EndNote><Cite><Author>Hildegarde</Author><Year>2001</Year><RecNum>33</RecNum><record><rec-number>33</rec-number><foreign-keys><key app="EN" db-id="zrea95sre9va98exv915v027pastaxerawfa">33</key></foreign-keys><ref-type name="Electronic Article">43</ref-type><contributors><authors><author>Xavier Hildegarde</author></authors></contributors><titles><title>New transaltion of Magna Carta of Great Britain, 1215</title></titles><dates><year>2001</year><pub-dates><date>23/08/2009</date></pub-dates></dates><label>Article / Book / Report&#xD;</label><urls><related-urls><url> of Oxford’s Case21 ER 486 at 486 (1615) TA \l "Earl of Oxford’s Case (1615) 21 ER 486 at 486" \s "Earl of Oxford’s Case (1615)" \c 1 XE "History:England:Equity:The Earl of Oxford’s Case" :There was a case of fraud that was locked in stalemate in between the commons and equitySir Francis Bacon found Equity to prevail over the common law, in accordance with the wishes of King James IDiscussion StartersWhat problems did a litigant face in bringing an action in the Royal Courts of Common Law in England at the end of the medieval period (taken as the beginning of the Tudorian Period) XE "History:England:Equity:Flaws of Common Law System" ?After the Provisions of Oxford (explain) XE "History:England:Common Law:Writ:Provisions of Oxford" , the writs allowed were limited quite harshly, limiting the forms of actions which can be put before the court. Therefore, the system was seen as overly rigidFurthermore, the results were limited to punishments for criminal cases and damages for civil casesOther ends and other actions might need to be assessed, through which equity was bornSee BLE notesTrace the history of the courts of chancery from its emergence at the end of the 14th c down to the Judicature Acts (UK) 1873-1875 TA \l "Judicature Acts (UK) 1873-1875" \s "Judicature Acts (UK) 1873-1875" \c 2 . XE "History:England:Equity:Emergence and Development of Equity" XE "History:England:Equity:Judicature Acts" Originally, the king heard appeals in the name of justice.Then, with the increasing volume, the king could not answer all of the pleas, and, therefore, turned to the lord chancellor, and, later created the chancery to hear the other cases of equity. XE "History:England:Equity:Lord Chanccellor and The Courts of Chancery" At the same time, the provisions of oxford limited the actions and remedies availableSo the courts of equity had to hear all cases outside of these actions or seeking other remedies XE "History:England:Equity:Equitable Remedies" These were heard by the courts of chancery, in which the judges were originally trained as clergyEquity was chosen as superior to Common Law in the Earl of Oxford’s Case (1615) . XE "History:England:Equity:The Earl of Oxford’s Case" 1670-1830 Precedent was added to the court of chanceryJudicature acts 1873-1875 (UK) fused two into one court Equitable maxims, see handoutWhat were the philosophical underpinnings of the jurisdiction of the court of chancery? Re: Christopher St Germain XE "History:England:Equity:Christopher St Germain" Regression?Appeal to greater good/against miscarriages of justiceReligious baseChosen as superior to common law XE "History:England: Norman Conquests" XE "History:England: Norman Conquests" Christopher St Germain’s Doctor and Student (1531) “thus in some cases it is good and even necessary to leave the words of the law and to follow what reason and justice requires and, to that intent equity is ordained… to temper and mitigate the rigour of the law”What is the relationship between common law and equity and how was this settled XE "History:England:Equity:Conflict Between Equity and Common Law" ?They were equalThere were abuses of jurisdiction, which lead to friction between the court of the king’s bench and the lord chancellorEquity was chosen as superior in the Earl of Oxford’s Case (1615) XE "History:England:Equity:The Earl of Oxford’s Case" Judicature acts 1873-1875 (UK) fused the two courts together XE "History:England:Equity:Judicature Acts" Re: John Seldon’s quote in Table Talk: law is structured, equity is based on the conscience of the chancellor, and therefore “roguish”In 1500 this was trueIn 1825, equity was more structured?Baker on “the greater part of the land in England was held in use”. What was the attitude to the medieval use of the court of chancery compared with common law? How did the crown respond?Use was with regard to the land being held and used by someone who isn’t the ownerUnder common law these tenants were not afforded rights, though in the chancery they did receive some considerationCompare and contrast the workings of the Court of Chancery with the Royal Courts of Common Law at the turn of the 19th century.Nb: this was before the judicature acts, therefore separate courts XE "History:England:Equity:Equity and Common Law" Royal Courts of the Common LawCourt of ChanceryRemedies availableDamagesSpecific Action, injunction, rescission, estoppel, etc.Re: forms of actionStrict adhesion to writsFlexible, focus on equity, not formalityMoralityAs by the lawLaw + equitable maximsWhat were the main effects of the judicature acts 1873-1875 (UK) XE "History:England:Equity:Judicature Acts" ?Fuse the courtsPrecedent?Enshrine the equitable maxims?Only in oz 1973ishSeminar 9 – English (Constitutional) Historical Perspective (A): Magna Carta and DistortionFor 24th AugustAchievementsLimitationsPeople increased in power because Barons had Veto Power re: S61Power was not directly transferred to the people, but to the barons (who’s interests were, at the time, aligned) S61King swore an oath of fealty to his people via the barons: S61Tax limitation weren’t cemented, since the king was allowed “reasonable” taxes w/o question/affirmation S12Began the Idea of Habeas Corpus S29No principle of the separation of powerLack of enforceability for most clausesOther NotesPrisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622Re: applicability of Magna Carta in NSW courtsHeld: yes, applicableBut in this case (re: condoms in prisons) irrelevant TA \l "Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622" \s "Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622" \c 1 Discussion StartersWhy was Magna Carta conceded in 1215 XE "History:England:Magna Carta" ?Before King John, Richard the Lionhearted (lots of territory lost by John)Before: King and Pope hated, egged French king onThere was a civil war in England, with the French king, Dauphin, and the Scottish king, Alexander II, marching into LondonBecause of the King’s high taxes, the people of London and their barons supported this rebellionKing John was to sign the Magna Carta in order to receive these Barons’ oaths of fealtyLater reneged, and caused the civil war (of the barons) Pope InnocentRe: Cromwell?Explore the accuracy of the following claims:Claim - That Magna Carta: XE "History:England:Magna Carta: Myth v. Reality" Reality:Guaranteed trial by juryDid secure right to a free common law action requiring a prison to rationalise why it held someone “or” S29 in 1297Re: villainsRights were afforded to certain people depending on their feudal statureCreated parliament in EnglandDidn’tNo, king sworn in 1100 something?Guaranteed no tax without parliamentary consentYes with regards to the king’s forest and compulsory acquisitions clause 12 “no … aid is to be levied … unless it is … reasonable” Provided a means to overrule the right of the kingThis is true, the King, in clause 61 “The Security Clause”, swears an oath of fealty to a committee of barons, who could overrule him through “distrain and distress”.How has the myth of Magna Carta interacted with its legal authority?It has almost no legal weight (having been repealed over the centuries)But some still remains, i.e. habeas corpusThen in isle: then in Bill of Rights (irrel. To name) then ILLEGAL GUANTANAMO XE "History:England:Magna Carta:Habeas Corpus" Its symbolic weight as a first point of human rights and constitutional limitation of power is immenseDoes McKechnie reflect Lyon?McKechnie is revisionist (and states the anachronism of juries and Magna Carta)Lyon praises both perspectivesWhy has Magna Carta played the role it has in English legal and constitutional history?Real MC the habeas, taxes &ctThe idea of MC 1700’s, ideas of democracy, etcWhat was the claim based on Magna Carta in Prisoners A-XX Inclusive v State of New South Wales (1995)? Was it successful? If not, why not?Based on S29 Not successfulLaw was applicable (if not weighty) but the action was not in breach of this lawOutline briefly the emergence of Parliament in England and Especially the representative element. What role, if any, did Magna Carta play?Parliament existed before and after the Magna Carta, and was used in order to swear in the kings of England. After Magna Carta, there was a band of barons which served as an ad-hoc parliament. A real parliament would only get instituted when voting, and, therefore, responsible governance came into effect (with the Reform Acts of 1832, 1867, and 1884).Magna Carta served as a symbol for the limitation of authoritarianism, as well as the power of determined groups to make change, which would inevitably be reflected in true democracy.Seminar 10 – English (Constitutional) Historical Perspective (B): What was passed on?For 31st AugustDiscussion StartersWhat do you understand by the term, ‘rule of law’ XE "Jurisprudence:rule of law" ? Compare with other definitions. What contribution, if any, do you think Magna Carta played in the emergence and establishment of the Rule of Law in England?I understand the rule of law to be a societal acceptance, enforcement and following of justly made laws.Dicey defines the rule of law as the independence of parliament as law-making body, that these laws are “enforced by the courts”The absolute supremacy of regular law as opposed to the arbitrary abuse of powerThat no one is outside the law or able to compromise the lawRaz states that the rule of law is a political ideal, and is not synonymous with democracy, justice, equality, etc.“That the government shall be ruled by the law and subject to it” “That people should obey the law and be ruled by it”Magna Carta (through the security clause s26) was the first time that the Monarch was legally bound by any rules. However, this was soon rescinded, and the “rule of law” thus revoked. When can we say that Parliament emerged as the supreme lawmaker in England: 1215, 1536, 1628, or 1688? At some other time?1215 – Magna CartaA “council of barons” given power of veto and of enforcement of law over this kingThis was short livedThis was not “parliament”, and definitely not elected/representative parliament1536 – Henry VIII, the Church of England and the PopeHenry VIII splits church from Pope and oft goes to warWar required assent from Parliament for fundsRe: Henry VIIAct in Restrain of Appeals to Rome 1533Preventing appeal to Rome re: validity of English decisionsAct in Absolute Restraint of Annates 1534Stopped English Churches from paying dues to RomeAct of Supremacy 1534Henry VII “Supreme Head in Earth of the Church of England”Shift not only from Rome to UK but from Church as power to Church as limited by the Constitution and the Rule of LawTo achieve this, Henry VIII required the assent of ParliamentThis created “overriding supremacy of laws made by parliament and receiving the royal assent”1628 – Petition of Right –King James I and Charles I (from 1625) – Crown V. Parliament V. CourtsPetition of RightRights which the King was not allowed to InfringeWrit of Habeas CorpusFunds only Via ParliamentNo martial law in times of peaceCrown V. ParliamentKing James I – from Scotland – believed in Monarchy as divine right, with a “descending” view of gov’t (king made laws, was not bound by them)In contrast w “ascending” which stated that power was based on a social contract – popular in other parts of Europe.Parliament was as before, summoned and dismissed by the king because of its “exceptional money-raising authority [and] power to legislate”Parliament began to find a backbone in the Tudorian period (Elizabeth, James, etc.)Form of Apology and Satisfaction of 1604 ADDIN EN.CITE <EndNote><Cite><Year>1604</Year><RecNum>103</RecNum><record><rec-number>103</rec-number><foreign-keys><key app="EN" db-id="zrea95sre9va98exv915v027pastaxerawfa">103</key></foreign-keys><ref-type name="Statute">31</ref-type><contributors></contributors><titles><title>Form of Aplology and Satisfaction</title></titles><volume>2 Jac. 1</volume><dates><year>1604</year></dates><pub-location>England</pub-location><label>S</label><urls></urls></record></Cite></EndNote>Parliament as RIGHT not as the King’s grace“our right ... no less than our very lands and goods”“cannot be withheld from us”The “voice of the people ... as the voice of god”1649 – Dissolution of parliamentKing had to find money elsewhereTensions between King and Parliament led to civil warCrown V. Common LawSince King was the source of power of the Common Law courts, he thought that he should be able to dispense justice at will.V. Coke (Chief Justice of Common Peers)Case of Prohibitions (1607)Coke’s first open clash w the King re: Royal power to decide cases“The King should not be under man, but under God and the Laws” – BractonArtificial reason of the Courts V. Natural reason of the King (Coke’s argument)Case of Proclamations (1611)King cannot create criminal offencesThese cases and others began a system of separation of powers (i.e. King and Courts separated)Common Law V. ParliamentWhilst sovereignty of Parliament had been established, Courts interpreted widelyFulmerston v Steward (c. 1554)Where unjust, legislation might be ignoredCoke declared that courts had the power to declare invalid acts if they were contrary to reasonCoke said that the courts were a protection against the “Tyranny of the Majority”1649 – Trial of King Charles I and Civil War Warm upRebellion in Scotland due to religionAsked parliament to raise an armyThey did not allow because of other grievancesEspecially fiscal abusesScots invadedHe had to, therefore get parliamentary approvalThey said yes, under the conditions of the following acts:Triennial Act 1641Regular parliamentary termsAct to Continue the Existing Parliament 1641Stopped king from dissolving parliament (he now needed parliamentary assent to dissolve parliament)Act Abolishing Prerogative Courts 1641Abolished special courtsSupremacy of common lawBy 1642, became civil warKing V. Majority of the house of commonsHouse controlled funds and therefore was powerfulHouse allied w the Scots (Solemn League and Covenant 1643)Made law through Ordinances which did not require Royal AssentCreated a professional military forceRoyalists defeated in 1646King Charles I tried and executed in 1649First power taken over King legallyBecame a Republic for a whileWould not call fair electionsArmy disbanded parliament in 16531660 Charles II crowned1688 – Glorious RevolutionOverthrow of King James II by parliamentarians etcBill of RightsCircumscribed Monarch’s powersWhat is Dicey’s Doctrine of Parliamentary Sovereignty? Can it be reconciled with the rule of law?Individual power of Parliament to write and make laws without interference“there was not law that Parliament could not make or unmake”V. ConstitutionRule of law as a consequence of sovereignty, they are interdependent conceptsWhat is the Doctrine of Separation of Powers? What is its underlying rationale?Splitting power so as to not have a monopoly of power, and therefore, reduce the ease of corruptionMontesquieuAn essential element of the Rule of Law is an independent judiciary. Why and how was this shaped by 7th C England? What guarantees of independent judiciary arose?To ensure separation of powerGuarantees – fixed payAct of SettlementWhat is involved in the idea of Due Process of Law? Where can we find the seeds of this concept?Habeas CorpusThe right to a fair trialRemoving punishment without proofThe Hallmark of the Westminster system of Gov’t is responsible gov’t. What is it? What are its essential elements? When did it emerge in England? When and where did women first get to vote? Should prisoners be able to vote?Responsible gov’t is where gov’t is accountable and representativeIt emerged in England with the popular votes (increasing, first with the emergence of parliament, then with the emergence of votes for all men, and then finally, with universal suffrage).In New Zealand 1893Only if it is a petty crimeWhat is a constitutional Monarchy?A system of gov’t whose hallmark is a monarch with powers limited by the constitutionWhat are the basic tenets of liberalism?General acceptanceRelevant because of Protestant acceptance of other religions delineated in the Toleration actsShould Australia have a bill of rights?YesNot constitutional, but, rather, a standard piece of legislationPerspectives (B) History (ii) AustraliaSeminar 11 – Australian (Legal) Historical Perspective (A): A clash of historical perspectives – British colonisation/invasion of NSWDiscussion StartersOutline and explain the international and common law principles which underpinned the acquisition by the British of sovereignty over New South Wales.The ways in which a colony could be established:Colonisation (invading laws from outset)Invasion (local laws slowly replaced by invading laws)NSW was declared Terra Nullius, so it was colonisationAssess the impact of British Colonisation on the indigenous populations of NSW.Negative impactDisease, disruption of culture and way of lifeSome sources suggest genocideWhat did the High Court decide in Mabo v Queensland (no 2) (1992)? Do you think the significance is overstated?Australia was/is not terra nulliusAboriginal people had native title to the landWhat is “history”? What role does it play?Stories recording the pastCreating the futureAboriginal histories were more figurativeHistory Wars?Revisionist V. Classical historyNb: treatment of aboriginalsWhite and someoneHistory as a lens to create truthYesi.e. Hitler’s excavations during WWII to extend the Reich because of historical claimSeminar 12 – Australian (Legal) Historical Perspective (B): Setting up the legal shop in NSWDiscussion StartersEstablishment of Courts in NSWThe First Charter of Justice established a Court of Civil Jurisdiction for NSW. The first case before this court was brought by Henry and Susannah Kable (two convicts). Briefly describe the faces of this case and what was decided. Is it remarkable? Convicts sued for property lostWas put on boatWas lost before arrivalThey wonThis was remarkable because they were convicts, and, yet, were still able to use the civil law to their advantage (the principle of equality as opposed to the “doctrine of attainder”)Compare the role played by the Judge-Advocate in England and in New South Wales between 1788 and 1823. Do you think that the criticism directed to the role played by the NSW Judge-Advocate is justified?In Australia – Committing magistrate, Public Prosecutor and JudgePresented evidence and judged itMilitary officer who was both to judge and to follow ordersWhat were the main criticisms of the arrangements put in place by the First Charter of Justice for the administration of justice in NSW?Established courts (crim.)Crit. Inadequate legal practitioners and increasing demand for civil litigationCritically evaluate David Neal’s assertion that: “the courts served as de-facto parliament”.No other way to legislatePrecedent created local lawPeople went to court for what parliament would usually deal withWhen was the current Supreme Court of NSW established and by what means? To what extent were opportunities provided for innovation in the early years of the NSW Supreme Court squandered?New South Wales Act 1823 (courts began)Australian Courts Act 1828 (supreme court)Establishment of trial by JuryWhen and by what means was trial by jury established in NSW?1823. Australian courts act, a judge could order a trial by jury1833 Gov. Bourke est. Use of civilian juries in crim. CasesDavid Neal: “But important as juries may have been in guaranteeing the independence of the courts, trial by jury took on an additional dimension in NSW”. Discuss.Yes. Because of the political nature trials took on after juries were establishedEstablishment of Representative and Responsible gov’t in NSWWhat is representative and responsible gov’t?Representative voted and reflecting the opinions of the electors i.e. universal suffrageResponsible independently and as a group responsible for actions in ParliamentRe: voting in again, crim. Etc.The governor was an “autocrat” during the period 1788-1823 in NSW. Do you agree?Yes in powerNo in action, the governor appeased the populace and the crownLooking at the roadmap set out in “journey to ...”, when would you say NSW achieved representative gov’t and by what means? When did NSW achieve responsible govt?W aboriginal and women vote 1949 w Chifley, when all people with a state vote had a federal voteNSW act 1823Gov. Darling 1825Australian Courts act 1828Australian Constitutions act 1842“ #2 1580Constitution statute/act 1855Constitution Act 1901Responsible with courts act and constitution?Seminar 13 – Australian (Legal) Historical Perspective (C): Reception and RepugnancyDiscussion StartersReception of English LawExplain the English common law principle relating to the reception of English law. Terra Nullius, therefore reception is complete and instantInsofar as Blackstone “only so much of the English law, as is applicable to their own situation and the condition of an infant colony”Whether new laws should applyAttorney General v. Stewart (1817)“a law of local adapted solely to the country it was made” – if England specifically, then not received25 July 1828Last law receivedImperial Acts application actSee other printoutMagna Carta?SomeSee PrisonersRepugnancy explainedAll acts prior to 1828Nothing afterUntill 1865 w the Colonial laws validity actOnly with paramount forceAnd Imperial Acts Application Act 1969Specified laws to be broughtSeminar 14 – Australian (Constitutional) Historical Perspective (D): the Federation and Independence JourneysSee printout.au/library/pubs/chron/1999-2000/2000chr01.htm Discussion StartersJourney to federationReasons for?Rail gaugeXenophobiaGerman/Dutch presence in nearbyDefn: federal?Centralisation of administration, some decision making, etcThree milestones?See printout highlightsIssues to be resolved?Free trade?Representation of states?Rich v poor (re: support)Big v little (re: representation ... i.e. upper v lower house)Constitution as amalgam?YesDiff states, UK, US and CanadaJourney to independence from UKSee printoutSeminar 15 – Australian Constitutional Perspective: Getting to know the Australian ConstitutionDiscussion StartersDefn: Constitution and function. Controlled v uncontrolledGuiding documents for nationBinding above the lawReq. Referendum if controlledHallmarks of federal system?Central gov’tLayers of gov’tEconomies of scaleDiluted voteLook at constitutionOkLooks goodOld fashioned (i.e. telecommunications) but interpretation keeps it modernA) legislative power B) executive C) judicialParliamentExecutive (govgen as guided by the Cabinet and Prime Minister)Courts (independent)Power divided?S 109 supremacy.S 51Knowledge of 51HECK YES!Re: S71 and high court as keystoneYes as federal court binding in all statesYes as balance to legislature and executiveRe: no separation of powersThere is a separationLess defined since they are interwovenJudicial independenceYes since no taking away a judge’s salaryRe: responsible and representativeNo prime ministerNo cabinedVia cases and interpretationRe: voting and impeachment (reserve powers)Head of state?GovgenAmending constitution?ReferendumSpecial majorityPeople and statesNot manyRights protected?ImplicitlyMore through common lawIneffective at preserving state rightsHas been trend to increase federal power, but states still relevantConstitution dead?No, living document because it is constantly being reinterpretedFor/against republic?ForIndependenceIndependent foreign policyRespect aboriginesAgainstNo pointKeep heritageFoster international goodwill (commonwealth)Perspectives (A) Philosophy and Culture (ii) Aborigines and ImmigrantsSeminar 16 – Cross Cultural Perspective (B): recognition of Indigenous customary lawsSee pg 99 of booklet 2Discussion StartersDescribe the nature of Indigenous customary lawsFamilial (aka pre Norman Conquest English law)“circle sentencing”Based on mythologiesWhat did Mabo v Queensland (1992) decide about the recognition of Indigenous customary law?Acceptance of traditional land ownershipWhat was the significance of Walker v NSW (1994)??What extent has Indigenous law been integrated?Native titleCircle sentencing (NSW) based on NT precedent, so far so goodFor/againstSee pg 99Myths?Equality will be brokenActual V. Functional equalitySexism/sexual abuseCan be mitigated with partnership of common lawShould other ethnic groups’ laws be recognised?NoUnequalNot satisfying minimal human rights (i.e. Shariah law and Nigeria)Formal V. Substantial equalityRe: positive discrimination affirmative actionLevelling playing fieldAgainst Friedman ideal of “freedom before equality”Seminar 17 – Cross Cultural Perspective (C): what access and for whom?Discussion StartersDifficulties highlighted by “Muslims in the Dock” (1997)Despite goodwillTranslation is ineffectiveDefendant only gets interpreter for their own speech (i.e. as in to service the court) not for the duration of their defenceHere, 2 levels of interpretation Chinese whispers effectRight to interpreter?YesDuring the whole caseTo allow for co-ordinated defence, equality before the lawBird and McDonell “We understand the ability of cultural construction ... to shape our reality”Changing cultural frames shaping view on reality and, therefore, actionsExamine A) “legal knowledge is portrayed as objective ... den[ying] the reality of class, or gender, or race” B) “although the [court people] are people of good will ... their monocultural outlook will impede the delivery of justice” C) “Cultural essentialism ... discriminate[s] against ... “other[s]”IdealChanging (for the negative)?Re: aboriginesChildrenWomen (i.e. custody)Law as establishment of status quoNon-consequentialistNon-cultural relativismYes, but in the name of equality and justiceBird and McDonell before 9/11 – is it still relevant?Yes, in the same flawed way as beforeTo promote discussion to highlight flaws and ways to growPerils of unrepresented?Non-legal backgroundInadequateDefendant thinks he is acting in best interest, but isn’t Even lawyers don’t represent themselvesProblems w unrepresented? Should be allowed?Knowledge of protocol (e.g. evidence) and legal problem solving Representation should be compulsory unless you have legal trainingShould court be televised?Yes, for transparency of justice (especially high court)Internet?Also yes, better because undistorted (whole case can be shown w/o commentary)Seminar 18 – Social Justice Perspective: Moving to a wider view (re: Aboriginal people)Discussion Starters1967 Referendum: Separating Myth from realityWhat did 1967 referendum achieve?Aboriginal in censusNot vote (that was earlier, 1901 ish ... 1949 with Chifley)The Stolen GenerationsNB: Stolen Generation as Genocide p 175Why so long for sorry? K Rudd V. Brendan NelsonAdmit fault opens up lines for legal suitsK) ApologeticBN) V. Understanding and not forgettingImpact of sorry?Law suitsGrowth of feeling “Australian”Removal of guilt inactionBringing them Home Report (1997) compensationExpensiveV. RIGHT TO COMPENSATION Trevorrow v State of South Australia (no 5) [2007] <500000V. Recommended in legislation, much lowerOnly for directly affectedWhat’s next?Bridging the gap by breaking the poverty cyclePerspectives (C) the Legal ProfessionSeminar 19 – Legal Players’ Perspective (A) – looking from the Inside (Judge and Jury)Discussion StartersThe Judge (and magistracy)Compare and contrast the roles of judge and juryReferee and decisions on lawDecisions on factAdversarial V inquisitorialRefereePlayer (calls witnesses, asks questions)Who is the CJ HC? The others? CJ NSW Supreme? Pres. NSW appeal?Chief Justice FrenchOthersGummowHayneHeydonCrennanKiefelBellDon’t careAttributes for judge?MoralOpen mindedSharpFluent in the lawLifelong LearnerQualification for judge A)HC B)NSWSCHigh Court of Australia Act 1979 s7A judge of fed. Or state court orBarrister of the high court for 5 yearsSupreme Court Act 1970 NSW s26Gov appoint anyone “qualified”Qualified ifJudicial officeLawyer of 7 yearsProcedure for appointmentVia bar assoc.Wig/Robe?ChoiceTic to heritageSombreWhat is the judicial commission of NSW?Independent part of judicial arm of govtUnder Judicial Officers Act 1986 FunctionAssist in consistency in sentencingContinuing education of judgesExamine complaintsThe JuryAdvantages of representative jury?Balance of powerTrustEducation (Japanese model)TransparencyRe: location inequityUnanimous?No, majority Less than oneLong time and court satisfactionSeminar 20 – Legal Players’ Perspective (B) – looking from the Inside (Jury and the legal practitioner)Discussion StartersThe JuryFor/against?ForAgainsteducationNo knowledge of lawChecks and balancesRe: est. Legal professionHistoricityexpensiveTransparency The Legal PractitionerRole of legal practitionerRepresentation of clients’ best interestRole of Law Society and Bar AssociationRepresent lawyersChecks of qualityNominate judgesn/askills for legal professionalSee grad. AttributesDeserve bad rep?No, represent those in needWork within a different moral set (i.e. cab rank)n/a“barriers”Boys clubElitismPerspectives (D) International LawSeminar 21 – International Perspective: international law knocking on Australia’s doorDiscussion StartersDefn: international Law? Re: models?System of applied international treatisesModels:Consequentialist (re: diplomacy)PositivistInt’ll law V domestic law? Priv. V. Public?Externally ratified laws v domestic only lawsBetween peoples, between nationsSources?TreatiesOrganisations (i.e. UN)Australia conventions?KyotoAPECAUSFTAANZ Close economic cooperationEtc.Int’ll V domesticRe: constitution and democracyRe: enforceabilityRe: who’s best interestMain institutions?World BankWTOUN (ICJ, ICC)APECASEANNATORe: nigger case in sport stand AustraliaCommittee on the elimination of Racial Discrimination (Comm. No 26/2002: CERD/C/62/D/26/2002)Strengths and weaknessesDiplomacy V. JusticeInterestsInt’ll to domestic?Only if ratified and enactedConst.S51(29) allows federal to enact int’ll treatiesCharlesworth Aus Int’ll law as “Janus”NoVery int’llRe: HDI as Australia V. interconnectedCharlesworth “impoverished” unless more receptiveReception is goodBut not at the cost of Australia’s wellbeing/int’ll standing (e.g. Durban II)Why aware of int’ll?GrowingLegally bindingSee Minister for Immigration v Teoh (1995) (laws taken to be inline w int’ll treatises)Perspectives (A) Philosophy and Culture (iii) other framesSeminar 22 – Philosophical Perspective (B): criticism and beyondDiscussion StartersRe: one armed swimmerNon-consequentialistAbsurd result: re “golden rule”A) legal realism B) critical legal studies C) legal feminismDescriptivistSee JurisprudenceDevelopmentalAi)Law as self contained, by specialist knowledgeNo, as framed by language (Derrida)No, as framed by culture (crit. Legal studies)As framed by reality (judge biases, etc) see “American realism”No ... politics of the lawNo ... serves the wealthyNo ... contradictory“ gender (legal feminism)Yes (formalism)Law as exactly “form” re: executioner in US caseRealist?No, since ABCLaw is objective and value free?Yes ideallyNo in practiceCLSNo because Bi-ivLaw is neutral and impartialDoesn’t claim to be (re: affirmative action, maternity leave, etc)Fem.NoShould be see: Jurisprudence on JusticeDefn equality:Re: affirmative action V. FriedmanLegal philosophy V. Real lawAre connected, see law reports and advice to gov’tRe: appointmentMan clubNepotisticNot recognising Woman Law ClubSeminar 23 – Law and CultureDiscussion StartersCulture and law (together, separate or mutually constructive)C because both ways, “bad” things illegal (i.e. dog poop, graffiti) and illegal things shape reaction Why law and culture?Properly understand the ramifications of the law/cases/etc.Should 2nd life be regulated?Yes since moneyBibliography ADDIN EN.REFLIST Dicey, A. V., Introduction to the law of the Constitution (9 ed, 1945) 39-40.Minister for Immigration v Teoh (1995) 183 CLR 273.Brandeis, Warren &, 'Right to Privacy' (1890) 4 Harvard Law Review.Connery, Sean, 'Independance Day not far off for Scottish bravehearts', Sydney Morning Herald (Sydney), 10 April 2008, 1.Council, National Health and Medical Research, Dietary Guidelines for Australian Adults (2003) Australian Government <; at 8/08/2009 2009.Danks, Katherine, 'Fine way to raise money', Sydney Morning Herald (Sydney), 6 January 2008.Evans, Christine Parker and Adrian, 'Introduction, The Ethical Decision Making Framework', Inside Lawyers Ethics (2007) 3-6, 10-17.Fuller, Lon L., 'The Case of the Speluncean Explorers' (1949) 62(4) The Harvard Law Review Association.Jowitt, Anita, 'The Impact of Plagiarism on Admission to the Bar: RE LIVERY [2006] QCA 152' (2007) 11(2) Journal of South Pacific Law 213-217.Meyerson, Denise, 'Introduction: "What is Jurisprudence?" and "What is the point of studying Jurisprudence?"', Essential Jurisprudence (2006) 1-2, 6-8.Parkinson, Patrick, Tradition and Change In Australian Law (Third Edition ed, 1994).Preston, Noel, 'Ethical Theory: An Overview', Understanding Ethics (3rd Edition ed, 2007) 35-43.Raz, Joseph, 'The rule of law and it's virtue' (1977) 93 Law Quarterly Review 195-202.'A Time to Live, and a Time to Die', Sydney Morning Herald (Sydney), 25 September 2000.Watt, Rob The Development of Critical Analytic Skills 2006).White, Hilaire McCoubrey and Nigel D, 'The enforcement of morality: Hart and Devlin', Textbook on Jurisprudence (3rd edition ed, 1999).Asprey, Michele M, 'What is Plain Language?', Plain Language for Lawyers (3 ed, 2003) 11-15, mission, Australian Law Reform, Review of the Adversarial System of Litigation, Issues Paper No 20 (1997).David, Rene and Brierley, John EC, Major Legal Systems - The World Today (3 ed, 1985).Baker, J H, An Introduction to English Legal History (4 ed, 2002).Frederic William Maitland, Herbert Albert Laurens Fisher, The constitutional history of England: a course of lectures delivered (2001) <; at 19/08/2009.Hildegarde, Xavier, 'New transaltion of Magna Carta of Great Britain, 1215' (2001) <; at 23/08/2009.History, Faculty of Legal, 'The Trial of Socrates' (2007) <; at 19/08/2009.IV, Twelfth Ecumenical Council: Lateran, 'The Canons of the Fourth Lateran Council' (1215) <; at 19/08/2009.Plato, Phaedo (360 BC) <; at 19/08/2009.Turner, Ralph V., 'The Origins of the Medieval English Jury: Frankish, English, or Scandinavian?' (May, 1968) 7(2) The Journal of British Studies 1-10.Case of Proclamations (1611) 77 ER 1352.Case of Prohibitions (1607) 77 ER 1342.Fulmerston v Steward (c. 1554) 75 ER 160.Mabo v Queensland (no 2) (1992) 175 CLR 1.Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222.Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622.Re Liveri [2006] QCA 152 ('The impact of plagiarism on admission to the bar').Walker v New South Wales (1994) 182 CLR 45.Earl of Oxford's Case (1615) 21 ER 486 at 486.Crimes Act 1900 (NSW).Patents Act 1990 (Cth).The Solemn League and Covenant, The House of Commons, England; Scotland.Act Abolishing Prerogative Courts 1641 17 Caro. 1.Act in Absolute Restraint of Annates 1534 26 Hen. 8.An Act in Restrain of Appeals to Rome 1533 25 Hen. 8.Act of Supremacy 1534 26 Hen. 8.Act to Continue the Existing Parliament 1641 17 Caro. panion Animals Act 1998 (NSW).Form of Aplology and Satisfaction 1604 2 Jac. 1.Magna Carta 1215 (England) 16 Jon I.Triennial Act 1641 17 Caro. 1.American Bar Assosciation Division for Public Education, 'Dialogue on the American Jury, Part I: The History of Trial by Jury' (2005) <, Glenn, The Reform Acts (2007) <; at 6 Sep 2009. ................
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