a) There are two main aspects of the rule of law: firstly, that it is known and applicable to all citizens. This means that the law has to be accessible for people to see, so that they understand the law. The second aspect being that it is applied equally. An example of this would be that a person of middle-eastern descent would be viewed in the same light as a Caucasian person in the eyes of the law. b) Natural justice includes the notion of procedural fairness and may include the following: 1 A person accuse of a crime, or at risk of some form of loss, should be given adequate notice about proceedings (including any charges)
2 A person making a decision should declare any personal interest they may have in the proceedings 3 A person who makes a decision should be unbiased and act in good faith 4 Proceedings should be conducted so that they are fair to all parties 5 Each party to a proceeding is entitled to hear all that the other side has tot say to the decision maker 6 Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party 7 A decision maker should not take into account irrelevant considerations
8 A decision maker should take into account relevant considerations 9 Not only should justice be done, but it should be seen to be done. c) State sovereignty is the ability of a nation to govern itself, and make laws for itself. Under international law, a state must also have a permanent population, a defined territory, a government and a capacity to enter relations with other states. An example of this is Australia, who before 1901 (Federation) were still under the control of Britain, therefore making them a colony, rather than a state.
Since that time, the Commonwealth of Australia Act 1900 (UK) and the Statute of Westminster 1931 (UK) have been passed, which allow Australia to govern and make laws for itself. 2. a) The two main differences between civil and criminal law are whom they aim to protect, and what punishments can result from them. The aim of civil law is to protect the rights of the individual, whereas criminal law aims to protect society. The punishments, or outcomes, are also very different. The outcome of civil law is usually a financial loss, (damages) an injunction or fulfilment of a contract against the defendant.
The outcome of criminal law can be as simple as a fine, or can be as severe as the loss of liberty, eg. Gaol. Other differences are the burden of proof, the standard of proof, the procedure in court, and the crimes covered by the law. b) Public law is constitutional law, administrative law and criminal law. Constitutional law and administrative law governs the government's law making ability and jurisdiction, and criminal law effects private citizens, and sets boundaries concerning their behaviour.
Private law only effects private citizens, and is comprised of contract law and tort law. Private law evolves from the interactions of private citizens. Private law is closely related to civil law. c) The customary law system is different to both the civil and criminal system in that the laws are not usually documented, rather passed down through generations. Customary law is most commonly used by indigenous peoples in their communities such as aboriginals. The civil law system is different to common law mainly in the course of the trial.
In the civil law system the judge is more active, asking witnesses question and gives the verdict, rather than the jury as in the common law system. Common law can be divided into three separate meanings. It may describe the system of law that was derived from England and is now used in countries such as Australia. It can also be the law which comes from the decisions of the courts. It may also be a reference to the law that was traditionally developed by the courts of common law, and may be contrasted with other areas of law that come from specialist courts.
The common law system is different to the civil law in the trial process especially, with the judge having a much less active role, with the jury making the final decision. d) Domestic law applies only to the people of a nation-state, whereas international law is the guidance of nation-states. Domestic law is designed to regulate the behaviour of people of the state eg. Australia. Its sources are Commonwealth and Federal laws and those created by the states eg. NSW. International law has the United Nations as one of its sources. 3. It treats all people equally –
The law aims to treat all people equally, despite race, religion etc. However this is obviously untrue, as people with prior convictions, or even people with prior charges but no convictions are viewed differently to someone with a perfect record in the eyes of the law. It is based on generally held religious ethical precepts – The common law legal system is based mainly around the Christian bible, specifically the Ten Commandments (thou shalt not steal etc. ) However there has been a trend in recent times for laws to be based more on ethics and morals rather than religion.
Utilitarianism is the theory which suggest that laws and decisions should be based on the idea of ensuring the greatest possible happiness for the greatest possible number of people. However by definition this means that although the majority of people are 'happy', there is another group of people who are unhappy due to the law or judicial decision, which inturn does not result in equality. It stresses consensus and social cohesion above all – Many western societies have adopted the democratic process of determining a leader of their country, and inturn the creator of their laws.
This is opposed by the communist system used by China, Russia etc. In theory, this gives the people of the state the ability to change laws, and decide on laws which they approve of. However, in practice, this simply doesn't work, as the people are voting in someone purely on what they have said they will do, and are then hoping that their elected member will fulfil their pre-stated policies and law reforms. History has told us that this often is not the case, with many politicians acting within their own best interests, rather than the interests of the people which have voted them into power.
This means that the people really have little say when it comes to changing laws, except in the case of constitutional change, where a referendum needs to be passed or denied to achieve law reform. The only other way for people to have a say in law reform is to protest, such as with the South Sydney Rabbitohs case, where there was enough pressure from the public to readmit the team, that the case was heard in the high court and the team was then ruled to be able to rejoin the competition.
Although the public didn't directly make the decision, their outcries lead to the change in decision. It allows for general principles to be mitigated in individual cases – Common law aims to treat people equally. However in some situations, this can actually result in inequality. For example, a homeless person and a millionaire are fined an equal amount for theft. Although the penalty is equal in dollar value, the penalty would be felt a lot harder by the homeless person.
This is where the law has the ability to be changed, or precedent excused, due to mitigating circumstances. It aims to redress inequalities – Some laws aim to redress inequalities that some minority groups face. Although this sounds as though it would address inequality, in fact it creates more inequality. If an aboriginal man receives a lesser penalty than a Caucasian man for the same crime, due to previous discrimination he has faced, then this creates inequality for the Caucasian man, which violates one of the characteristics of law (treats all people equally)