Topic 1 Introduction and overview

Question 1

What is the meaning of natural law theory?

Answer 1

• Is rooted in human nature.
• Human nature is constant between different people and does not change over time.
• There is a set of standards outside of the law that humans have written in books. One that is inherent in human nature.
• Natural law governs the actions of humans with or without those laws being written down. They are inherent in human nature.

According to natural law theory, human made laws are only just and authoritative only as long as they are derivable from natural law.

Question 2

Where does natural law come from?

Answer 2

Answer 1
- Divine will
- Natural conditions of human life which ensure our survival as a species
- Self-evident values and practical reason

Answer 2 (John Finnis)
- Life
- Knowledge
- Play
- Beauty
- Friendship
- Practical reasonableness
- Religion
A person is thought to be acting morally when their actions do not harm these basic goods.

Question 3

Definition of law according to Jeremy Bentham.

Answer 3

Law is merely a human creation and is a general declaration of the will of a sovereign that is supported by the threat of a penalty or a promise of reward.

John Austin’s ‘command theory’ is pretty much the same thing. The law is a wish expressed by a sovereign that requires people to behave in a certain way and if those wishes are not followed then there will be sanctions in the form of punishment.

Question 4

What is legal positivism?

Answer 4

Viewing the law as it is, not as it ought to be. There is no connection between law and morality based on legal positivism, and legal practitioners must simply follow what they are told to by the law.

Question 5

What is Hans Kelsen’s definition of law?

Answer 5

Law is a statement about how people ought to behave, based on a ‘norm’ and backed up by the threat of a sanction.

Question 6

What does HLA Hart say?

Answer 6

Law has to be more than a ‘command’ to obey a wish that is ‘backed up by the threat of a sanction’, otherwise laws can be created arbitrarily.

HLA Hart states that a law is recognised only if it has passed through an ‘established procedure’ that everyone agrees on.

Question 7

What is feminist jurisprudence?

Answer 7

An examination of how male dominance is embodied in law.

It argues that masculine perspective and privilege is entrenched in the law itself.

Question 8

What is liberal feminism?

Answer 8

An argument that law sometimes treats men and women differently when it should be the same.

An argument that sometimes law treats men and women the same when it should treat them differently.

Question 9

Sameness feminism and cultural feminism. What are they?

Answer 9

Sameness feminism states that the differences between men and women have been used to discriminate women such as rejecting them from employment because of the false assumption that they are weaker. We need to discredit the false differences between men and women which are being used to deny opportunities for women.

Cultural feminism states that law is shaped based on masculine views of the world and that female perspectives need to be better accounted for.

Question 10

Catherine MacKinnon. What are her opinions?

Answer 10

It is irrelevant whether men and women are the same or if they are different. The point is that there is a power imbalance between men and women which must be addressed.

Law is shaped based on masculine views of the world and that female perspectives need to be better accounted for.

Question 11

Economic analysis of law. What is it?

Answer 11

A way of analysing law based on its efficiency.

Based on the assumption that we want to maximise our satisfaction and will attempt to do so by the most efficient method.

Question 12

What are the key questions of critical legal theory?

What are some of the criticisms of law under the critical legal theory?

Answer 12

• How do we think about law?
• Is law detached from its social, political economic, cultural and historic context or whether law is actually embedded in its context.
• Is the law neutral or does it reflect power relations within a particular society.

According to the critical legal theory, all law is politics. Law and politics are mutually intertwined.

According to the critical legal theory, the law tends to serve the wealthy and powerful by protecting them against the demands of the poor and minorities.

According to the critical legal theory, what the law says and what it actually does are two different things. E.g. it might say that it serves the interests of the poor, but actually serves the interests of the elites.

According to the critical legal theory, people are tied to their communities, their gender, race, socio-economic class and overall surroundings which deprive them of autonomy. Their circumstances limit and determine the choices presented to them. People are not free, they are determined in large part by social and political structures that surround them.

Question 13

The concept that natural laws are available to be known through the ‘natural light of reason’ was originally stated by:

a.
Jeremy Bentham

b.
HLA Hart

c.
St Thomas Aquinas

d.
Catharine McKinnon

Answer 13

C: St Thomas Aquinas

Bentham stated that laws are wishes made by the sovereign that are backed by punishment.

Hart stated that there needs to be an established procedure that a law goes through before becoming law.

McKinnon was an advocate for feminist jurisprudence and argued that it doesn’t matter if men and women are different, the fact is that there is a power imbalance that must be addressed.

Question 14

John Austin is well known for:

a.
The ‘command theory’ of law, which states that law is a wish expressed by a sovereign requiring people to behave in a certain way

b.
Being the founder of British utilitarianism

c.
His theory that gender inequality is fundamentally a political question

d.
Viewing laws ‘goodness or ‘badness’ as a question of economic efficiency

Answer 14

A: John Austin is known for the ‘command theory’ of law, which states that law is a wish expressed by a sovereign requiring people to behave in a certain way.

John Austin –> Command theory –> Same as Bentham’s view.

Sovereign makes a wish.

People must follow or there is punishment.

Command.

Question 15

3 ways to acquire land

Answer 15

Conquer - In this case pre-existing law would be in force, subject to modification or replacement by the crown.

Cede - Legally treated the same as conquered land.

Settle - Implies that there was no previous indigenous legal system.

Australian land was not ceded as there was no treaty between the Europeans and the indigenous.

Cook thought that as there was no crops or livestock and evidence of civilisation, he regarded aboriginals as wild beasts who moved from place to place, not having a particular part of the land which they owned.

British regarded ownership of land as being defined as the exploitation of land for cultivation.

For some 40,000 years before cook arrived in Australia, the aboriginals had a legal system of their own.

Question 16

What does terra nullius mean?

Answer 16

Empty land

Question 17

Captain Cook had been given Secret Instructions. What did the instructions tell him to do if he discovered the Country was inhabited?

a.
To cultivate friendship and alliances with the local inhabitants. Then to conquer the land by declaring, and winning a war in the name of the King of Britain

b.
To take possession of the convenient situations in the country in the name of the King of Britain with the consent of the local inhabitants

c.
With the consent of the local inhabitants, to take possession by immediately establishing a colony in a convenient situation in the name of the King of Britain

d.
To purchase the land in the name of the King of Britain from any local inhabitants at a reasonable price

Answer 17

B: To take possession of the convenient situations in the country in the name of the King of Britain with the consent of the local inhabitants

Question 18

In what year was British law received?

Answer 18

1788 in NSW

But it was in 1828 when the Australian Courts Act (UK) was introduced, when the reception of British law into Australia was formally stated.

The colony in NSW divided and the governance shifted from dictatorship to responsible government where each colony had its own bicameral parliament.

Question 19

What was the colonial laws validity Act 1865 (UK)

Answer 19

An Act that allowed Victorian parlliament and courts to alter received UK law.

However, it could not enact laws extending beyong Victoria and it could not alter or repeal UK statutes that applied specifically to Victoria.

Question 20

When was federation

Answer 20

1901

Question 21

When was the Australia Act

Answer 21

1986

Severed Australia’s legislative links with the UK and abolished privy council appeals.

Question 22

When was the magna carta signed? What is it?

Answer 22

The magna carta was signed in 1215

It was a peace treaty that the king signed with barons that required him to consult with the king’s council (the precursor to modern parliament).

It was the first document to put into writing the principle that the king and his government was not above the law.

Question 23

What was the roman law?

Answer 23

The roman law spread with the conquest of the roman empire.

Emperor Justinian collected and organised the sources and principles of law which became known as the Justinian code.

The Justinian code was lost along with the fall of the roman empire, but was rediscovered later on and formed the basis of European legal systems known as the civil law.

The civil code was an extensive set of written laws drawn up by Napoleon in the 1800s. It was applied to all of France. The civil code, code of criminal procedure, commercial code and penal code were together known as the code Napoleon.

The principles that formed the code Napoleon are still part of the civil law system in Europe today.

Civil law is based on codifications which are intended to be complete, coherent and clear, and thus is less discretionary for judges.

Question 24

What was stated by the Case of Prohibitions del Roy 1607

Answer 24

The king himself may not judge a criminal or civil case. He may sit in the kings bench but only the court gives judgement.

Question 25

Who uses the common law system?

Answer 25

Australia, UK, and other countries formally colonised by the UK.

The common law has its origins in the Norman Conquest of England

Question 26

Rule of law

Answer 26

The government cannot exercise power unless it can point to a specific rule of law which authorises it to do so.

No man or woman is above the law.

Question 27

What is parliamentary sovereignty in the UK?

Answer 27

Parliament can legislate on any subject matter

No parliament can bind a later parliament

No court or other person can override legislation once legislated.

Differences in Aus
- the constitution makes it so that parliament cannot just legislation on any subject matter with no restrictions
- the High court can overrule parliament legislation if they think it is unconstitutional

Question 28

What is the doctrine of separation of powers?

Answer 28

The three branches of government, the parliament, judiciary and executive should not mix their functions.

Parliament makes laws

Executive administers the laws

The judiciary adjudicates the laws

The separation of powers was made by Montesquieu

Our ministers of government in Australia are drawn from the parliament, so there is an overlap between executive and parliament.

Question 29

What standard of proof is required in criminal and civil law?

Answer 29

Criminal: defendant must be proved guilty beyond reasonable doubt

It is better to let a guilty person go free than to convict an innocent individual.

Civil: defendant must be proved guilty on a balance of probabilities.

Question 30

What is the cab rank rule?

Answer 30

In English law, the cab-rank rule is the obligation of a barrister to accept any work in a field in which they profess themselves competent to practice, at a court at which they normally appear, and at their usual rates.

Question 31

Australian lawyer vs Australian legal practitioner.

Answer 31

Australian lawyer: a person who is admitted to the Australian legal profession

Australian legal practitioner: an Australian lawyer who holds a current Australian practicing certificate.

Question 32

What are the roles of a solicitor.

Answer 32

Their roles are diverse and varied.
- Provide general advice
- Resolve disputes
- Prepare paperwork for litigation
- Engage in advocacy in lower courts
- Handle transactional work such as the sale of property, the incorporation of companies, leases and contracts.

Question 33

How are solicitors regulated?

Answer 33

Legal profession uniform law application Act 2014 (Uniform Law)

Australian solicitors conduct rules

Question 34

Solicitors are required to keep up with changes in the law and procedure in order to continue to practice. This means:

a.
They must engage in at least 10 hours of continuing professional development activities each year.

b.
They need to pass the Bar Exam every year they wish to continue to practice

c.
They must engage in at least 10 hours of pro bono work each year

d.
They must renew their law degree every 10 years

Answer 34

a.
They must engage in at least 10 hours of continuing professional development activities each year.

Question 35

The Bar as we know it today was finalised in 1902 when

a.
The “Bar Roll” was introduced

b.
Continuing professional development requirements were first introduced

c.
The Legal Profession Act was first enacted

d.
The highest rank of the profession, the sergeant was replaced with the QC

Answer 35

a.
The “Bar Roll” was introduced

Question 36

In the Victorian legal profession, “legal practitioners” are:

a.
Only people who have signed the Bar roll

b.
Anyone who has been admitted to legal practice anywhere in Australia

c.
People who have been admitted to legal practice in Victoria

d.
Everyone who has obtained a Bachelor of Laws

Answer 36

c.
People who have been admitted to legal practice in Victoria

Question 37

Which of the following does the Legal Profession Act NOT regulate:

a.
Borrowing of client’s money

b.
Conflicts of interest

c.
How a person may be admitted to practice

d.
Appropriate dress code for court appearances

Answer 37

d.
Appropriate dress code for court appearances