Topics 5-6 for Law and Society PDF

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Lecture 5Disputes ‘In Utopia, civil disputes would never arise’ Tom Bingham; The Rule of Law  We live in a sub-utopian world where differences arise  Disputes inevitably arise in society Stages in the development of disputes Law & Society Review  Naming  identifying a particular experien...

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Lecture 5 Disputes 1. ‘In Utopia, civil disputes would never arise’ Tom Bingham; The Rule of Law  We live in a sub-utopian world where differences arise  Disputes inevitably arise in society 2. Stages in the development of disputes Law & Society Review  Naming  identifying a particular experience that is injurious  Blaming  attributing the injury to the fault of an individual or society entity  Claiming  claiming remedy 3. Legal disputes  Takes place in private law, public law and international law Courts 1. Courts around the world  PRC Supreme People’s Courts  enabled by Article 127  USA Supreme Court  enabled by Article III of the Constitution  UK Supreme Court 2. International courts are present 3. There is a hierarchy  enabled by the Basic Law Article 81  Superior courts > intermediate courts > local courts  Court of Final Appeal > Court of Appeal > High Court > District Court > Local Magistracie > Others (Family Court, Lands Tribunal, Labour Tribunal, Small Claims Tribunal, Coroner’s Court etc) 4. There is supporting personnel  Judges, court clerks, lawyers (officers of the court), bailiff, jury 5. Social function  ‘The Court is expected to determine the victor in the specific lawsuit before it, but also to provide standards to guide lower courts in disposing of similar controversies that may arise in the future’  stare decisis Earl Maltz 6. Political function  The court is a political institution Maeva Marcus  Executive action is subject to judicial review Council on Civil Service Unions o Where the authority concerned is guilty of an error of law in its action o Where it exercises a power in so unreasonable a manner that the exercise becomes open to review o Where it has acted contrary to ‘principles of natural justice’  Non-intervention principle: courts recognise the exclusive authority of the legislature Leung Kwok Hung 7. Educational function  Public interest; an educational body Eugene Rostow  E.g. it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful R v Brown 8. The court’s symbolic power  ‘Justice seen must be justice done’

o Lady Justice; blindfolded, scales, divine power  Theatrical performance – jury  Judicial rituals – oaths, gown, wig, procedures  Judicial architecture, spatial arrangement, courtroom design 9. Court’s impact on society  Bush v Gore o Some votes were not detected by machines o Gore asked Florida Supreme Court to order manual recount o Bush challenged it in the US Supreme Court o The court’s decision impacted the presidential election  Q v Commissioner of Registration o Court required full sex re-assignment surgery prior to amending the sex entry on permanent identity card o Court considered potential consequences: emergency situations, inpatient services, sports, schooling 10. Court’s impact on our lives  Freedom of expression, e.g. defamation  Freedom of assembly, e.g. preventive justice  Powers of law enforcement officers – right to silence, arrest, bail etc  Human rights; torture, slavery, right to life, right to liberty and security, freedom of religion, no punishment without law Justice 1. Administration of justice  Court procedure, written in the Rules of the High Court o Cubersome and complicated  Interlocutory hearings  Service of court documents, pleadings, summary and default judgment  Rules of evidence Evidence Ordinance  Admissibility, e.g. hearsay evidence 2. Result  Judgment/court decision with a binding force  Non-compliance will face contempt of the court  Hardly a win-win situation  always a winner and loser  Appeals 3. Cost of justice – very high 4. The judge’s role  Impartiality could be compromised Jones v National Coal Board  Open justice is a constitutional principle Cape International Holdings  Prevents a fair trial from occurring o The right to a fair trial is a cardinal requirement of the rule of law Tom Bingham; The Rule of Law 5. Law reform  Lord Woolf’s Reforms to the civil justice system  Access to Justice – Civil Procedure Rules  Civil Justice Reform in Hong Kong… Lecture 6

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