1. Why did common law become so rigid and inflexible? Answer: By the reign of henry II, the practice of sending the royal justice throughout the country “on circuit” began to result in fairly uniform body of law developing around the country- the common law. The judges were assisted in finding an agreement among them by keeping records known as plea rolls. They set out not only the facts of each case and judgement, but often the reasoning behind the judgement, in much the same way as the modern law reports does. During the reign of henry II writs came into wide use.
They were purchased from the king’s clerks of chancery and stated the complaint, ordering the name person either to right the wrong or to show the king’s justices why they should not. The issuing of new writs to cover new wrongs meant that the common law was fairly flexible at this time, because it could easily adapt to meet changing conditions. However the passing of the provisions of oxford in 1258 resulted in the common law losing much of its flexibility by providing, among other thing, that if the facts in issue did not fit the standard form of wit, the action could fail. 2. In what ways equity differs from common law?
Answer: the differences between common law and equity are: Common law: a. Is a comprehensive system. b. Remedies are not discretionary. c. Common law rights are enforceable at any time subjected to the operation of a state or territory’s statute of limitations. d. Common la rights are valid against the whole world. Equity: a. Not a comprehensive system- for example, never had a criminal jurisdiction. b. Remedies are discretionary. c. Remedies must be applied for promptly or they may not be enforceable. d. Equitable rights are valid only against those persons specified by the court.
e. It follows the common law, it will not override it. f. It acts only against the individual (i. e. in the personam), not property. 3. What are the main differences between the common law and statute law? Answer: Common law: common law is the law created through the reported decisions of judges in the higher courts. It is non- statutory law as it is law made by the courts Statute law: statute laws are made by federal state parliament in form of statute law or legislation or other government bodies in form of by- laws, orders rules and regulations and known as delegated legislation.
4. In the 21st century, what problems does business face under a federation model such as exists in Australia? Answer: the Australian constitution establishes the basic rules for the operation of the federation and sets out the powers of the federal parliament to make laws. Any action, including legislative action, must be in accord with the constitution or, if it is challenged, the high court will declare it invalid. The constitution provides the federal parliament with limited powers to govern the conduct of business and business relationship in Australia.
For example, the corporation act 2001cth regulates companies. The securities law regulated the sale and trading of shares issued by companies. The competition and consumer act 2010cth, formerly known as the trade practices act 1974 cth , is perhaps the most important piece of business legislation in Australia today. It provides a uniform national consumer law( found in schedule 2 of the at and known as the Australian consumer law or ACL) for persons engaged in business by discouraging unfair trading practices and encouraging fair-trading between business and the consumer.
By the start of this century it was becoming apparent to commonwealth, state and territory governments (business already knew) that if Australia was to remain economically competitive, a seamless national economy was needed. Business regulation could o longer remain and it came in the state and territory, or even be shared with the community. All these problems business faces under the federation model of this age. 5. Law is something that all people ought to obey. Explain Answer: law is basically a device to regulate the economic and social behaviour of society.
Generally laws are created by people to maintain harmony in the society and the country. As people have to follow the certain rules of the country or society, there is a sense of responsibility people feel. If people lived in complete isolation and didn’t carry on any economic activity or recognise any superior authority, there would be no need for laws to exist because there would be nothing to regulate or control. However, the reality is otherwise. People don’t live in complete isolation and economic activity is carried on.
The law, as regulatory device, provides the mechanism for society to function by prioritising needs and desires through tools such as legislation. All these laws are made by the superiors at the higher stages. Even the people establishing these laws have to follow the same laws so it has to be made regarding the needs of the people. The people creating laws have the power to organise all these laws and should be pass the law according to the demand of time and the need of the people. All the other tests cannot be ignored as law because they at some stages describe law.
But somehow other statements are less effective. Like, law is not only a command by a political superiors because all kinds of law are not commanded by political superiors or inferiors. It could be family law commanded by the eldest person of the family or a community law commanded by a group of responsible people in a community. Law could be a rule established by people who have control of organised power but laws are established according to the need of the people and can be changed according to the requirement. Law cannot be only what court says as it could be the sets of rule created in community or in a family.
6. Why should an act of parliament override the common law in the event of conflict between the two? Discuss. Answer: Common law is generally the law passed at courts according to the decision of the judges. It is an unenacted law or a case law which is derived from case law and statute. But the parliament is the main body which enforces the law in the country. The law made by federal and state parliament are statute law which is also known as legislation. It is an enacted law and hence in the event of conflict between statue law and common law, statute law override. 7.
Are law and justice the same thing? Discuss. Answer: law are basically the sets of rule whereas justice is a decision made after following the law. Justice is generally a decision passed from courts or any other law enforcing place but law are generally a set of rule to be followed. Justice is the concept that imagines a situation in which everyone gets what they deserve, whether they like it or not. Law is the concept that certain behaviours can be forbidden or compelled by one authority, howsoever derived, that covers the people within a specific geographic area. 8.
Briefly explain the main source of Australian law. Answer: The main source of law in Australian law are: The Australian constitution: and State and territory constitution The Australian constitution: establishes the basic rules for the operation of the federation and stets out the powers of the federal parliament to make laws. Any action, including legislative must be in accord with the constitution or, if it challenged, the high court will declare it invalid. The constitution provides the federal parliament with limited powers to govern the conduct of business and business relationship in Australia.
For example, the corporation act 2001 cth regulates companies,. The security laws regulate the sale and trading of shares issued by companies. The competition and consumer act 2010 cth formerly known as the trade practice act 1974 cth is perhaps the most important piece of business legislation in Australia today. It provides a uniform national consumer law for persons engaged in business by discouraging unfair trading and encouraging fair trading practices between business and the consumer.
State and territory constitution also have power to make law under their respective constitutions, subject to few exceptions, such as the ability to impose customs and excise duties(s 90) and raise defence forces (s114), the Australian constitution doesn’t restrict the areas about which the states can make laws. 9. Explain the main differences between a common law system and a civil law system. Answer: Civil law, is derived from Roman law, it is complete code of written laws those primary source of law is legislation.
It is inquisitorial in form and forms the basis of legal system of the legal system of most western European countries, japan and he former colonies of France, Spain, and Portugal in Latin America, the near east Indonesia, Thailand, Vietnam and parts of Africa. Common law, is derived from case law and statute, it is accusatorial in form with an emphasis on remedies. It forms the basis of English law and can be found in the USA, as well as in commonwealth nations including Canada, Singapore, Malaysia, Australia, New Zealand, parts of Africa, India and Pakistan.