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LAWS1111 – LAW, CONFLICT AND CHANGE Week 1 What is law? -

Cambridge Dictionary • a rule, usually made by a government, that is used to order the way in which a society behaves • the system of rules of a particular country, group, or area of activity Turner et al, Concise Australian Commercial Law (2nd ed, 2013) 4 • “body of principles [or rules] made by parliaments and the courts that regulates the way we live” Elizabeth Ellis, Principles and Practice of Australian Law (3rd ed, 2013) 1 • “Law is a means of ordering society and resolving disputes. Law is also a form of narrative or story”

Sources of law in Australia

Common law Branches of law -

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Criminal vs civil – civil is “concerned with regulating relations between individuals, the creation of rights and liberties in particular situations and the consequences of their breach” criminal is concerned with punishment of offenders by the state. E.g. law of contract, law of tort Public vs private law - Public law has been defined as: “The assemblage of rules, principles, canons, maxims, customs, usages, and manners that condition, sustain and regulate the activity of governing.” (Martin Loughlin, The Idea of Public Law (OUP, 2003), 115), private law concerned with relationship between cictizens, deals with commercial matters, accident claims, disputed wills and property

What is a legal system (basic requirements) -

body of laws – legislation and statute law and common law (law made by judges) source with the power necessary to create and alter those laws institution or process with authority to administer and enforce laws

What is relationship between Law and Society? -

Socio-legal studies – interrelationship between law and society Legal Studies – theories and philosophies related to law Sociology of Law – law as the whole of legal norms in society Empirical Studies in Law – examine the practice of law Jurisprudence – theory and philosophy of law

Dynamic relationship

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Law has an effect on society Society has an effect on law

Law does not exist outside society -

It is a system within society – But is autonomous It runs itself as a closed system

Niklas luhmann -

Law is a sub-system, each subsystem has its own function Law has a particular relationship with its surrounding environment The law is not politics and not the economy, not religion and not education; it produces no works of art, cures no illnesses and disseminates no news… (Luhmann, 1989) Particularity maintained by its ‘self-referential closedness’. Self-regulating - Only the law can say what is lawful and what is unlawful, and in deciding this question it must always refer to the results of its own operations and to the consequences for the system’s future operations. (Luhmann, 1989)

More on the relationship -

The evolution, stabilisation, function and justification of forms of social control The nature of legal thought and reasoning and impact on particular social, political, economic setting How law’s nature, operation and impact are legitimated within society The role played by law staff in social control and who they might include How legal reasoning is identified and entrenched as ‘correct’ How the individual is subject to law How law provides freedoms and restrictions Law reflects and impacts on (and lies within) society – main relationship

Bottomley and Bronitt, 2012, -

an understanding of legislation does not begin with a Bill’s first reading in Parliament nor end with its Proclamation

legal systems -

civil law common law – Aus Muslim law customary law mixed system

Civil law systems history -

Originates in C6th Roman law of Justinian Rejuvenated through C19 Napoleonic Civil Code and impact on Continental European Civil Codes Spread through Spanish, Portuguese, French, Dutch, Ottoman empires Decodification and growth of judgemade law in some areas e.g. torts and consumer protection in France and Germany

Law making

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Function of the legislature Sources of law: legislation and regulations

Judges -

Implements legal rules contained mainly in codes, statutes and regulations Investigative and inquisitorial role Don’t make the law like common law

Common law legal system history -

Anglo-Saxon system Product of constitutional evolution and check on Stuart absolutism Spread through British and American imperial power

Law making -

Based on cases establishing binding precedent

Judges -

Discovers principles of law relevant to case under consideration and renders judicial decisions consistent with existing principles in the law Neutral arbiter between two opposing parties

Islamic law systems -

Legal system linked to the State and religion Based on religious principles of human conduct – Qu’ran, the Sunnah, consensus of traditional Islamic scholars, and analogical reasoning

Indigenous legal systems -

Indigenous legal systems are shaped by Indigenous worldviews. Diversity – Indigenous legal systems in Australia, Oceania, Americas, Southern Africa, Circumpolar region… – Some commonalities for some groups Defined by Indigenous peoples

Described by the Kimberley Aboriginal Law and Culture Centre ‘KALACC’ (2006, p16) as: -

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a complex system of governance which regulates people’s social, political and economic lives…it also defines the kinship structures, cultural traditions and spiritual beliefs of all Kimberley peoples and governs the restricted esoteric practices of its initiated members…(it) provides the basis for traditional medicine, education and specialised training. This knowledge is encoded within the Dreaming stories, ceremonies, song cycles, cultural activities and dances of all language groups in the region.

Other legal traditions -

Hindu Confucian + Marxist Talmudic Canon

Mixed Legal Traditions

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Mixed civil + common law - Philippines, Seychelles, South Africa Mixed civil law and Islamic law - Iran, Syria, Egypt Mixed common law and Islamic law - Pakistan, Singapore

More civil law in existence than common law

Does it make a difference? -

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Rwanda transitioning from civil towards common law German and Belgian colonial legacy Shift from Francophone to Anglophone elite as a result of Tutsi exile in East Africa

Joined Commonwealth, 2009 Desire to improve legal flexibility Boost international investment

The AGLC4 – Australian guide to legal citation Why and when do we reference -

Acknowledge ideas of others Show markers you have read widely and relevant literature, have authority for yout argument and avoid plagiarism Reference any ideas that aren’t your own apart from common knowledge

Referencing -

End of every souce – superscript number – insert footnote on word, Footnotes listed at bottom of page, Bibliography at end Uwa library referencing guide - https://guides.library.uwa.edu.au/AGLC4 Download the PDF version - https://law.unimelb.edu.au/mulr/aglc/about What if my source doesn’t match any of the available templates? Find reference type that adapts most to your source and adapt to AGLC...