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Title: An Introduction to the Law and its Sources


1
An Introduction to the Law and its Sources
  • Susan Carter

2
  • Legal sense v Common sense
  • Pepper Finance Corporation v Williams 2008
    NSWSC 4
  • Law v Politics
  • Judges are bound by legal texts and their own
    prior precedents to a degree that political
    actors are not. And crucially, judges have an
    obligation to explain their results as the
    product of legal judgement.
  • Michael C. Dorf

3
To remember
  • Law is both a body of knowledge and a way of
    thinking about that knowledge it is important to
    master both.
  • You are expected to know not just what the law
    is, but why. Anytime you think about the answer
    to a legal question ask yourself, why do I know
    that this is the answer? What is my legal source
    or authority?
  • You may disagree with some or indeed all of the
    substantive law which you are studying. But you
    cannot change it simply by disagreeing with it.
    If you want to change the law that is turn your
    policy into law you need to understand the law
    and its processes first.

4
Law v Policy
  • Courts and judges are not meant to have
    agendas, and judges are not meant to seek
    popularity. They are expected to administer
    justice according to law, regardless of the
    consequences for their approval ratings. A
    judicial decision that pleases one side or the
    other of a partisan conflict will always attract
    applause or blame from some of the partisans, but
    people expect judges to attend to the task of
    administering justice and to leave politics to
    politicians.
  • Gleeson CJ, speech to the Judiciary of the
    Commonwealth of the Bahamas

5
Law v Politics
  • Behind the legal issues that the Court must
    decide there often are intensely political
    concerns. Yet the Court is expected to resolve
    those issues according to law, and adhering to
    legal methodology. We expect judges to decide
    issues after hearing argument in specific cases.
  • Gleeson CJ

6
Legal approach v personal opinion
  • In Australia, one of the responsibilities of
    the High Court is to decide the constitutional
    validity of federal or State legislation. The
    public would be outraged if the Justices
    advanced, as a reason for holding legislation to
    be valid or invalid, their approval or
    disapproval of the policy of the legislation.
  • Gleeson CJ

7
Latham CJ, First Uniform Tax case
  • "The controversy before the Court is a legal
    controversy, not a political controversy. It is
    not for this or any court to prescribe policy or
    to seek to give effect to any views or opinions
    upon policy. We have nothing to do with the
    wisdom or expediency of legislation. Such
    questions are for Parliaments and the people ...
    The Court must consider and deal with ... the
    legal contention. But the Court is not authorized
    to consider whether the Acts are fair and just as
    between States - whether some States are being
    forced, by a political combination against them,
    to pay an undue share of Commonwealth expenditure
    or to provide money which other States ought
    fairly to provide. These are arguments to be used
    in Parliament and before the people. They raise
  • questions of policy which it is not for the
    Court to determine or even to consider."

8
Statute Law and Case Law
9
Sources of law
  • Statute laws made by Parliament
  • Case law laws made by judges

10
Statutes v Case law
  • Statutes operate from the general to the
    particular, whereas cases operate from the
    particular to the general.

11
CITATION OF STATUTES
  • Statutes are always cited
  • Title/Year/(Jurisdiction)
  • Flags Act 1953 (Cth)
  • Parramatta Methodist Cemetery Act 1951 (NSW) s3
  • Offshore Minerals Act 1994 (Cth) s26(2)(b)

12
STRUCTURE OF AN ACT
  • NUMBER
  • DATE
  • LONG TITLE
  • SHORT TITLE
  • PREAMBLE (OR PURPOSE CLAUSES INSTEAD OF A
    PREAMBLE)
  • Preamble always starts with Whereas
  • TABLE OF CONTENTS
  • PARTS OR CHAPTERS, DIVISIONS AND HEADINGS

13
  • SYDNEY TURF CLUB ACT 1943
  • As at 13 November 2007
  • Act 22 of 1943 TABLE OF PROVISIONS
  • Long Title
  • An Act to constitute and incorporate a Sydney
    Turf Club and to declare its objects, functions
    and powers to provide for the acquisition by
    that club of certain racecourses and the
    equipment thereof to provide for the
    discontinuance of the licences of certain
    racecourses to provide for the establishment of
    a Racing Compensation Fund in the Treasury to
    amend the Gaming and Betting Act 1912 and certain
    other Acts and for purposes connected therewith.
  • PART 1 - PRELIMINARY
  • 1 Name of Act and commencement
  • (1) This Act may be cited as the Sydney Turf
    Club Act 1943 .
  • (2) This Act shall commence on a day to be
    appointed by the Governor and notified by
    proclamation published in the Gazette.

14
  • (Repealed)
  • Definitions
  • 3A. Notes
  • PART 2 - SYDNEY TURF CLUB Division 1 -
    Incorporation and constitution
  • 4. Constitution etc
  • 5. Application of income etc
  • 6. First members, directors and auditors

15
  • Division 2 - Objects, functions and powers
  • 7. Objects and functions of Club
  • 8. Acting secretary
  • Division 3 - Financial
  • 9. Temporary accommodation
  • 10. Power to borrow
  • 11. Insurance, and payments out of funds
  • Division 4 - (Repealed) None
  • PART 3 - RACING COMPENSATION FUND 15-18.
    (Repealed)

16
PART 4 - GENERAL 19. Members defaulting in
payment of bets not eligible to continue as
members 20. Rights of member personal 21.
By-laws 22. Commencement of by-laws 23. Public
notification of by-laws 24. Offences etc 25.
Exclusion of undesirable persons 26. Directors
may fix tolls and charges 27. Power to let lands,
buildings or tolls 28. Inspection
17
  • 29. Club to repair etc
  • 30. Indemnity
  • 31. (Repealed)
  • 32. Regulations
  • SCHEDULE 1
  • Schedule 2 (Repealed)
  • SCHEDULE 3

18
Three good sites for finding legislation
  • http//www.comlaw.gov.au
  • http//www.austlii.edu.au
  • www.legislation.nsw.gov.au

19
The Section is the most important part of an Act
  • Sections are sub-divided into
  • SECTION s1
  • SUB-SECTION (2)
  • PARAGRAPH (a)
  • SUB-PARAGRAPH (v)

20
TRADE PRACTICES ACT 1974 - SECT 52
  • Misleading or deceptive conduct             
  • (1)  A corporation shall not, in trade or
    commerce, engage in conduct that is misleading or
    deceptive or is likely to mislead or deceive.

21
Elements of s52(1)
  • Corporation
  • Trade or commerce
  • Engage in conduct
  • Misleading or deceptive

22
Case law
  • Decision relevant only to the parties
  • Ratio decidendi
  • reason for decision
  • this answers the legal question
    for decision
  • creates the binding law

23
CASE CITATION
  • PLAINTIFFS NAME v DEFENDANTS NAME (Civil
    case)
  • OR
  • R v PERSON CHARGED WITH OFFENCE/DEFENDANT OR
    ACCUSED
  • (Criminal case)
  • THEN

24
  • YEAR in which the case was decided (in square or
    round brackets depending on the reporting system
    used)
  • VOLUME in which the case has been reported
  • ABBREVIATION of the particular report
  • PAGE NUMBER at which the report begins, and
  • PAGE NUMBER from which you are quoting (and name
    of judge)

25
Examples
  • Behrens v Bertram Mills Circus Ltd 1957 2QB 1
  • Australian Broadcasting Corporation v Lenah Game
    Meats Pty Ltd (2002) 208 CLR 199
  • R v Brown 1994 1 AC 212

26
Structure of a case
  • Headnote
  • Note as to argument of the parties
  • Judgement itself
  • Either single, or multiple depending on how
    many judges sat in the matter
  • The decision and any orders

27
Vocabulary
  • Ratio decidendi
  • Rationes decidendi
  • Obiter dicta
  • Obiter dictum

28
Mary v Tom
  • Mary and Tom are neighbours. Mary erects a
    dividing fence between the properties made out of
    cedar inlaid with ivory. She then seeks to
    recover half of the cost of the fence from her
    neighbour Tom pursuant to the Dividing Fences
    Act. Tom declines to pay, as he didnt want a
    fence at all, certainly not a cedar fence as it
    clashes with his Tuscan landscaping, and doesnt
    want to pay for the ivory inlays as they are all
    on Marys side. Mary sues Tom. Tom defends the
    suit claiming that the fence Mary erected is not
    a dividing fence within the meaning of the Act.

29
DIVIDING FENCES ACT 1991 - SECT 6
  • (1) An adjoining owner is liable, in respect of
    adjoining lands where there is no sufficient
    dividing fence, to contribute to the carrying out
    of fencing work that results or would result in
    the provision of a dividing fence of a standard
    not greater than the standard for a sufficient
    dividing fence.
  • (2) This section applies whether or not a
    dividing fence already separates the adjoining
    lands.

30
Issue?
  • What does sufficient dividing fence mean,
    within the Dividing Fences Act 1991?
  • Decision?
  • Tom must pay Mary for half the fence

31
Ratio decidendi
  • Ratio
  • The reason for the decision
  • The answer to the question or issue of law raised
    by the facts put before the court
  • The most important part of the case (cf section
    in legislation.)

32
Fact or law?
  • The best way to tell the difference is to ask
    yourself, could a witness give evidence to answer
    this question?
  • If yes it is an issue of fact.
  • If no it is an issue of law.

33
Multiple rationes
  • The ratio is the answer to each issue of law
    before the court
  • Some cases raise multiple issues, and therefore
    stand as authority for more than one proposition.

34
How do we use the ratio?
  • The common law is built on the concept that the
    same answer to the same legal question even if
    it arises in the context of a different set of
    facts can be applied to solve that question.
  • The ratio from one case is applied to solve the
    same issue when it arises in different contexts.

35
Case reading exercises
  • Merritt v Merritt 1970 2 All ER 760
  • Thornton v Shoe Lane Parking 1971 2QB 163
  • Pepper Finance Corporation v Williams 2008
    NSWSC 4

36
Case notes
  • Case notes save time and help you refresh your
    memory
  • Serve different purposes
  • The case reading questions are a good guide to
    analyse a case and you can build your case note
    based on these questions

37
  • 1.2 What is law?
  • The Scope of Jurisprudence

38
What is law?
  • Osborns Concise Law Dictionary tells us that
    law means
  • an obligatory rule of conduct. The commands of
    him or them that have coercive power (Hobbes). A
    law is a rule of conduct imposed and enforced by
    the Sovereign (Austin). But the law is the body
    of principles recognised and applied by the State
    in the administration of justice (Salmond).
    Blackstone, however, maintained that a rule of
    law made on a pre-existing custom exists as
    positive law apart from the legislator or judge

39
Four answers
  • NATURAL LAW
  • POSITIVISM
  • COMMON LAW
  • LEGAL REALISM

40
NATURAL LAW
  • Aristotle
  • Cicero
  • St Thomas Aquinas
  • Finnis
  • Dominated Western thought until the 18th Century
  • Assertions about natural law were often the basis
    of the argument for individual or human rights
    and for imposing limitations on government
  • Groundwork for the principles of international
    law

41
Cicero, De Re Publica
True law is right reason in agreement with
nature it is of universal application,
unchanging and everlasting. It summons to duty by
its commands, and averts from wrongdoing by its
prohibitions.It is a sin to try to alter this
law, nor is it allowable to repeal any part of
it, and it is impossible to abolish it
entirely.We cannot be freed from its obligations
by Senate or people, and we need not look outside
ourselves for an expounder or interpreter of it.
And there will not be different laws at Rome and
at Athens, or different laws now and in the
future, but one eternal and unchangeable law will
be valid for all nations and all times, and there
will be one master and ruler, that is, God, over
us all, for he is the author of this law, its
promulgator, and its enforcing judge. Whoever is
disobedient is fleeing from himself and denying
his human nature, and by reason of this very fact
he will suffer the worst penalties, even if he
escapes what is commonly considered punishment
42
Thomas Aquinas 4 types of law
  • The Eternal Gods plan for the universe
  • The Natural- that part of the eternal law which
    is discoverable by reason and which is to be
    found in the human mind
  • The Human - the law created by humans on the
    basis of natural reason, (or positive law) and
  • The Divine that law revealed in scripture.

43
The problem of unjust laws
  • Lex iniusta non est lex an unjust law is not a
    law
  • A just law
  • is consistent with the requirements of natural
    law
  • Does not exceed the authority of the law maker
  • Imposes burdens on citizens fairly.

44
Finnis basic goods
  • life (and health)
  • knowledge
  • play
  • aesthetic experience
  • sociability (friendship)
  • practical reasonableness
  • religion

45
POSITIVISM
  • Jeremy Bentham
  • John Austin
  • HLA Hart
  • Very influential over last 200 years and in
    current legal thinking a critique of common law
    and natural law thinking

46
Positivism
  • Is and ought or is and should are separate
    questions.
  • The existence of law is one thing its merit or
    demerit is another. Whether it be or be not is
    one enquiry whether it be or be not conformable
    to an assumed standard, is a different enquiry.
    A law, which actually exists, is a law, though we
    happen to dislike it, or though it vary from the
    text, by which we regulate our approbation and
    disapprobation. John Austin

47
Positivism
  • Legal systems are created by (posited) by people
    rather than having some natural or metaphysical
    existence.

48
Law as a command Austin
  • Features of a command
  • a wish or desire of one rational being directed
    to another
  • this intention is communicated
  • if the command is not obeyed a punishment of some
    sort will result

49
Command theory
  • Austin A law is a general command made by a
    sovereign
  • Problem how could sovereigns who make commands
    be subject to the rule of law.
  • Rejected by HLA Hart

50
HLA Hart
  • Laws exist in two groups
  • primary rules (substantive law eg road rules)
  • Secondary rules (rules about rules eg
    constitutions, procedural rules.)
  • rule of recognition.

51
COMMON LAW
  • Not necessarily what we think of as common law
    today, but the foundational ideas of much of
    common law thought.
  • Common law theory flowered in 16-18th centuries.
  • Coke
  • Blackstone
  • Hale
  • Predominantly English

52
Common Law
  • Law is not something made either by king,
    parliament or judges, but rather is the
    expression of a deeper reality which is merely
    discovered and publicly declared by them. (cf
    Trigwells case)
  • Precedent
  • Written record, or reporting of law
  • Judges declare law, they do not make law
  • Individual judge is unimportant oracle of the
    law
  • Law as artificial reason which must be learned

53
Blackstone
  • judgesare the depositaries of the law the
    living oracles, who must decide in all cases of
    doubt, and who are bound by an oath to decide
    according to the law of the land. Their
    knowledge of that law is derived from experience
    and studyand from being long personally
    accustomed to the judicial decisions of their
    predecessors. And indeed these judicial
    decisions are the principal and most
    authoritative evidence.The judgement itself is
    carefully registered and preserved, under the
    name of records, in public repositories set apart
    for that particular purpose and to them frequent
    recourse is had, when any critical question
    arises, in the determination of which former
    precedents may give light or assistanceFor it is
    an established rule to abide by former
    precedents, where the same points come again in
    litigation as well to keep the scale of justice
    even and steady, and not liable to waver with
    every new judges opinion

54
Prohibitions del Roy Coke
  • A controversy of land between parties was
    heard by the King, and sentence given, which was
    repealed, for this, that it did belong to the
    common law then the King said, that he thought
    the law was founded upon reason, and that he and
    others had reason, as well as the Judges to
    which it was answered by me, that true it was,
    that God had endowed his Majesty with excellent
    science, and great endowments of nature but his
    Majesty was not learned in the laws of his realm
    of England, and causes which concern the life, or
    inheritance, or goods, or fortunes of his
    subjects, are not to be decided by natural law
    reason, but by the artificial reason and
    judgement of law, which law is an act which
    requires long study and experience, before that a
    man can attain to the cognizance of it and that
    the law was the golden met-wand and measure to
    try the causes of the subjects and which
    protected his Majesty in safety and peace with
    which the King was greatly offended and said,
    that then he should be under the law, which was
    treason to affirm, as he said to which I said,
    that Bracton saith, quod Rex non debet esse sub
    homine, sed sub Deo et lege that the King is
    under no man, but under God and the law.

55
Common Law
  • Change is possible through the incremental
    development of the common law by accumulated
    decisions, but a law which has stood the test of
    time is to be preferred to one which has simply
    been devised in a particular era.
  • Law organically connected to the people it serves
    through custom and tradition

56
LEGAL REALISM
  • Oliver Wendell Holmes (laid groundwork)
  • The prophecies of what the courts will do in
    fact, and nothing more pretentious, are what I
    mean by law (This is the question which the bad
    man wants answered.)
  • John Dewey (Dewey decimal system)
  • Karl Llewellyn
  • Jerome Frank
  • 20th Century

57
Legal Realism
  • The life of the law does not exist in the
    application of pre-existing rules to concrete
    cases, but rather in the development through
    experience of legal principles.
  • The law then, is what the courts do, not what
    they did two centuries ago (except insofar as it
    is a guide to what they will do now), or an
    abstract set of doctrines.
  • For realists, law is an inherently practical
    activity, which must be associated with the real
    world, as it is something which has a practical
    effect in the concrete world, and is not merely a
    body of abstract rules and doctrines.

58
Karl Llewellyn
  • They view rules, they view law, as means to
    ends as only means to ends as having meaning
    only insofar as they are means to ends. They
    suspect, with law moving slowly and the life
    around them moving fast, that some law may have
    gotten out of joint with life.
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