Study Guides (299,519)
AUS (8,319)
ACU (113)
LAWP (14)
Final

LAWS104 Study Guide - Final Guide: Feminist Legal Theory, Legal Positivism, Australia Act 1986

12 pages94 viewsSummer 2019

Department
LAWS
Course Code
LAWS104
Professor
Michael Longo
Study Guide
Final

This preview shows pages 1-3. to view the full 12 pages of the document.
LAWS104 NOTES
WEEK ONE:
The origins of our laws and legal system
Sources of law
Rule of Law
Separation of powers
Role of Parliament
What is the law.
Purpose of the law to establish order within society and avoid a state of chaos or the
uprising of anarchy.
Legal theory and scholarship have contributed to the understanding of law
Natural law
Legal positivism
Legal formalism
Critical Legal Scholarship (e.g. feminist legal theory
The Australian Legal System:
. Australia find their roots not in the tradition of native inhabitants, but in the traditions of a
colonial power which imported its understanding of law and social organisation with
the landing of the first white settlers in 1788.~
Timeline of key constitutional documents:
11th Century - Norman conquest 1066
13th Century - Magna Carta 1215
17th Century - Bill of Rights 1689
18th Century Act of Settlement 1701
Together, the 1689 and 1701 Acts delivered a constitutional settlement
19th Century - Colonial Empires, moves towards Federation
20th Century Federation; growth of international law
The Roots of English law
Year 1066, the conquest of England by William, the duke of Normandy was a sentimental
event which resulted in Australia and other British colonies sharing the same distinct legal
tradition which is referred to as common law.
However the issue is that pre-conquest legal system lacked commonality and the Anglo
Saxon laws were based upon local customs. Furthermore, although England was a unified
political entity, there was no single set of rules and norms which could apply to society as a
whole.
You're Reading a Preview

Unlock to view full version

Only half of the first page are available for preview. Some parts have been intentionally blurred.

William maintained Anglo-Saxon law, but built on the pre-existing social structure to
establish an administrative framework which enabled a new legal system to develop and
flourish.
Feudalism
- Was a system of land ownership based upon the formal social hierarchy. And further
a system of economic and social development which previously existed in England
however refined by the Normans
- At the top was the king who had dominion over all lands in the kingdom.
- Under the kings sat land owning nobles who were more well known as tenants in
chief as they held title to their lands by direct grant from the crown
Birth of the common law
One of the prime responsibilities of the monarch at this time was to hear complaints from
subjects.
- The monarchs travelled the land and ‘held court’ and received petitions from the
people
- petitioners complained of acts of injustice by local officials, or of general
unfairness in local administration.
- These petitions were dealt with on the basis that like cases should be treated alike,
which led to the foundation of the system of Stare decisis, a legal principle by which
courts are obliged to respect the principles established by prior decisions.
What led to the success of common law it was the means of avoiding the arbitrariness so
often complained of in the local courts that led to the common law's success.
Another attraction of the new system was that the kings decrees were paramount and
had force throughout England
Over time, a body of royal rulings built up, dealing with petitions for justice. What
developed as a corollary to the king’s need to establish and maintain peace and order
throughout the newly conquered territories contained the seed of the system of private
dispute resolution known as the common law
Finally, the term “common” was reflective of the fact that the kings rule applied throughout
the land and to all English people regardless of the custom in their own country.
The Kings Court
- Curia Regis functioned as a general advisory body, providing the king with counsel
and advice before he made decisions.
- •The king gathered around him a body of trusted advisers known as the Curia Regis.
- •In addition to the Curia Regis the king began to appoint officials called Justiciars.
- Both the curia regis and justiciars were a vital step in transforming the common law
from personal instrument of the kings to an apparatus of governments.
You're Reading a Preview

Unlock to view full version

Only half of the first page are available for preview. Some parts have been intentionally blurred.

- Even more significant was the appointment, beginning in the 12th century, ofJustices
in Eyre (travelling justices, not necessarily members of the C11ria Regis), who
carried the king's commission to hear and resolve disputes in all parts of the country.
For the purposes of these itinerant commissions, England was divided into a series of
regions, or 'circuits', which formed a basis of legal administration until the 1970s.
- As the Curia regis started to become busy it was divided into specialised bodies, one
of which, made up of professional judges, heard disputes bet,vel'n (or 'the pleas of')
commoners. This body became known as the Court of Common Pleas.
- Another specialist body of financial advisers heard dispute and was known as the
“court of exchequer”, this was because the table was a chequered pattern.
Furthermore, in addition to the common pleas and the exchequers remained a group of
advisers who travelled with the king ad overtime was divided into two group:
- Those whose task it was to advise on (or carry out in the king's name) the
resolution of individual disputes, and those whose job it was to advise on more
general questions of policy.
- Coram rege known as the “kings bench” had a monopoly on those disputes
involving the king himself or touching upon royal interests.
- The three dispute resolving institutions common pleas, the exchequer and the
kings bench are together known as the Common law courts and it is through
their work that the common law system flourished.
The Writ System
- The curia regis was divided into three common law courts known as the common
pleas, the exchequer and the kings bench. In an attempt to cope ith the demand of
centralised governments. However they still struggled the number of cases that
flocked them.
- In response to this, the procedures were made more formal and regular.
- Chief means of organisations was known as the Writ System, which was a command
from the king to a sheriff that a person whom a claim had been made against must be
brought before a court to answer the allegations.
- However this formalisation failed to stem the demand for the kings justice and the
common law system continued to expand as more cases were brought before the kings
court which led to the multiplication of the different types of writs.
- In 1258, nobles extracted a promise by the king known as the “provision of Oxford”
stating that no new writs could issues without the express authorization of the council.
- However not long after the nobles were forced to allow new writs to be created in
order to accommodate the popular demand for court hearing where new forms of
writs were not available.
- Led to use of Legal Friction which is me of fabricated facts, to enable new types
of cases to be brought within the existing writ.
- •In Courts today, in order to sue, the person bringing the action must be able to
establish a ‘Cause of Action’.
You're Reading a Preview

Unlock to view full version


Loved by over 2.2 million students

Over 90% improved by at least one letter grade.