Professional Documents
Culture Documents
Legal Systems_________________________________________________________________ Australia is a common law country as opposed to a civil law country
all laws (substantive + procedural) contained in documents called codes developed via. deduction from the principles in the codes H common law principles emerge via. inductive process (cases decided in courts)
History of Law Roman code Corpus Juris Civilis carried throughout the empire
influenced by various Greek/Christian principles collected and organised by Emperor Justinian found in Italy, late 11C came to form basis for contemporary civil law complemented + sometimes replaced inadequate traditional/customary laws civil: via. Roman law principles + custom, canon law, local law usages and royal decrees (Code Napoleon Europe countries drafted own codes) common: via. procedure, methods and decisions of the English courts H both also influenced by theory of natural law considered superior until 18C controversial H belief in the concept = basis of American/French revolutions t results in much of our current understanding about the nature of democratic government eg. We hold these truths to be self-evident (American Declaration of Independence) doctrine of natural law
Empire fell Roman law ceased + written records lost during the Dark Ages
H
Natural law
Legal globalisation/convergence globalisation convergence in procedural/substantive law in many jurisdictions SUBSTANTIVE LAW: branch of law which creates, defines and regulates peoples
rights, duties, powers and liability actual rules and principles administered by the courts t legislative + common law principles PROCEDURAL LAW: body of rules prescribing manner, form and order matters may be dealt with and enforced in a judicial forum formal steps to be taken in an action (eg. pleading, evidence etc)
FEUDALISM
system of land ownership based on a formal social hierarchy 1. King dominion over all lands in the kingdom 2. Tenants-in-chief land-owning nobles held title to the land via. direct grant from the Crown 3. Sub-tenants descending levels hold land via. grant from the next higher level lowest order land-holding freeman
Underlying premise mutual promise (loyalty + oath of allegiance to the lord) Formed the basis of English property law until 1921
Legal History_________________________________________________________________ Formalisation of legal structures: Itinerant justice + growth of the courts
Curia Regis (kings court) group of trusted advisors general advisory body provided king with advice/counsel before he made decisions H gradually some decisions were left to members of the CR later divided into specialised bodies Court of Common Pleas body of professional judges which heard disputes between commoners remained in a fixed place instead of travelling with king Court of Exchequer specialist body of financial advisers heard disputes involving royal revenue group of advisors continued to travel with the king Council - advise on general questions of policy Kings Bench (Coram Rege) advise (or carry out in the kings name) the resolution of individual disputes H diff. from CCP b/c can hear disputes involving the king himself/touching upon royal interests King also appointed officials called justiciars form of viceroy in the kings absence CR + justiciars made seeking royal justice easier king was often absent delegates could act in his absence and make decisions in his name Justices in Eyre travelling justices not necessarily members of CR carried the kings commission to hear/resolve disputes all over the land b/c of this, England was divided into regions (circuits) formed a basis of legal administration there until the 1970s
new forms of writ not available legal fictions fabricated facts used to bring new kinds of cases within existing writs
Writ system highlight importance of procedure historically, ability to bring a suit in the kings court depended on being able to find a form of action modern plaintiffs still have to establish a cause of action
Equity
Common law became obsessed with form People began to complain about injustice in the courts King responded himself or via. Council originally H soon delegated the job to the Chancellor Equity - body of Chancellor-made, Christianity-based law Court of Chancery body set up by the Chancellor to hear equitable claims Chancellors trained as priests t took a different approach from common law judges not confined by judicial precedent looked beyond the form grounded judgements in Christian precepts Equity is a discretionary system of justice Chancellor could choose not to grant remedy if he thought the plaintiff was morally undeserving (he/she who seeks equity must do equity) E/CL initially co-existed equity tempered the harshness of the law Chancellors + CL judges cooperated H two systems became rivals In the case of conflict between the two equity should prevail
12 equitable maxims 1. equity will not suffer a wrong to be without a remedy 2. equity follows the law 3. he/she whos first takes precedence (first come, first serve) 4. where equities are equal, the law prevails 5. equity assists the diligent, not the tardy 6. equity is equality 7. equity looks at intent rather than form 8. equity looks on that as done which ought to be done 9. equity imputes an intention to fulfil an obligation 10. equity acts in personam 11. he/she who seeks equity must do equity 12. he/she must come with clean hands
Foundations of Constitutionalism
King appointed more delegated officials
developed a separate body of rules regulating boundaries among various delegates Constitutional Law
James I believed in divine right of kings compared kings to gods created conflict in a society used to being consulted 1607 King wanted to involve himself in the conduct of cases before the common law courts H Judges decided it was inappropriate later conflict king cant make new crimes via. royal proclamation only the parliament can 1642 open civil war; Parliament vs. King Charles I parliamentary forced defeated the Royalists (1646) monarchy + House of Lords abolished England Commonwealth House of Commons dismissed
Constitutional Principles
Rule of Law
Magna Carta 1215 represents universal legal principle exercise of power by government must be shared with the people t cannot be concentrated in the ruler absolute supremacy of government by law government can operate only if they have specific legal authority to do so person can be punished only for breach of the law, and not otherwise executive no inherent authority to impose taxation, interfere with private property or take punitive action against members of the public key element: principle of legality t governments must find lawful authority for each action they take common law legislation Crowns authority came to be divided between: legislature (made laws) executive (applied laws) judiciary (adjudicated on disputes about meaning of laws)
Separation of Powers
prevents concentration of public power in one individual/institution safeguards against abuse of power institutions must be independent of ea. other + limited in the roles they perform
Statutes
Statutes used to be royal decrees Early years of parliamentary development little to distinguish b/w statute + judgement 13C Monarch consulted/sought consent of others H Henry VIII bills passed by both houses + given to the Crown for approval
17C Glorious Revolution Parliament is supreme statute became an instrument of Parliament
Creation of an Australian Court System___________________________________________ Legislation passed to create a crim. law court
letters patent also issued for civil law court H mostly staffed + run by military officers
Conciliar courts
originally popular b/c of simple, straight-forward procedures sometimes used inquisitorial approach (judges active in seeking out the truth) H became disliked + feared b/c monarchs used them for more overt political ends (eg. to get rid of enemies via. criminal law) t Councils right to exercise court-like powers abolished by statute in 1641 became a political advisory body abolition of judicial powers limited to England still had jurisdiction over colonies became popular b/c free of local prejudice petitions sent to PC passed to group of sen. judges workload became too much process systemised Judicial Committee Act created formal JCPC to hear appeals from the colonies mostly judicial members of the house of lords issues advice to the Queen about whether appeal should be allowed/denied (rather than making a decision) free from local bias H expensive + not really a colonial court (mainly staffed by British judges) t Australian Constitutional Bill drafted late 19C tried to limit PC appeals limited on questions of constitutional law H other matters maintained
appeals later eliminated in three steps: appeals on federal matters abolished appeals from the High Court on matters of state law abolished possibility of appeals from state courts directly to PC abolished
Federation Movement
Federal Council of Australasia Act 1885
provided for Federal Council with limited legislative power in areas of common concern due to fear of German/French expansionism in the South Pacific didnt prosper b/c NSW didnt join and SAs membership only lasted 2 years H momentum for union maintained 1891 draft Bill for a federal constitution
Treaty of Versailles
Australia and Canada were allowed to sign the treaty themselves
Statute of Westminster
Balfour Declaration committed to statutory form (the Statute of Westminster)
S4 British Parliament wouldnt pass legislation applying to any of the dominions unless at the dominions request S2 repealed the repugnancy doctrine S3 gave dominion parliaments power to make laws of extra-territorial application H political difficulties in Aus. limited the Acts practical effect Statute of Westminster Adoption Act into effect 11 years later