Law, Society, and Customs

Basic Legal Concepts: Law

• Law is a set of officially recognized, binding, and enforceable rules imposed on a community.
• These rules reflect societal values, principles, and standards.
• Law provides guidelines for relationships and impartial treatment, with punishments for non-adherence.
• The law evolves to keep pace with changes in societal norms and values.
• Marriage laws are an example of legal evolution.
• GDPR is an example of a new law, designed to protect digital privacy.

Society

• Society is a group linked by mutual interests, relationships, shared institutions, and common culture.
• People formed societies for basic survival, agreeing to rules that protected life and property.

Customs

• Customs are established patterns of behavior within a society or group, varying by culture, religion, and history.
• Customs can become laws if widely followed over time.
• Customary law refers to established behavior patterns of sufficient importance to be enforced.
• Customary law develops through general usage and customs.

Three Types of Customary Law Influencing Australia

• Aboriginal and Torres Strait Islander customary law involves traditional laws and practices.
• English customary law is the foundation for many Australian legal principles, derived from the British system.
• International customary law consists of practices and norms accepted as legally binding between states.
• Customary law may not be written down.

Rules

• Rules are prescribed directions for conduct in specific situations.
• Groups make rules, which affect individuals within those groups.
• Rules are not always enforceable by the state.
• Consequences for breaking rules are typically minor.
• Rules can be altered quickly by those involved.
• Rules form the foundation of laws.

Laws

• Laws are formal rules agreed upon by the majority that govern behavior and activities.
• Laws are more difficult to change than rules.
• Penalties are not always a simple process.
• Failure to follow laws incurs penalties like fines or imprisonment.

Characteristics Distinguishing Laws from Rules

• Laws are binding on the whole community.
• Laws can be enforced with established penalties.
• Laws relate to public interest.
• Laws are officially recognized by governments and courts.
• Laws are accessible or discoverable.
• Laws reflect rights and duties.
• Laws are decided by elected government officials and judges.

Relationship Between Customs, Rules, and Laws

• Rules govern behavior and maintain smooth activity.
• Rules are based on traditions, customs, and values.
• Rules have penalties for failure to comply.
• Enforcement of rules typically falls to the government.
• Rules become formalized into laws.

Values and Ethics

• Lawmakers attempt to incorporate values and ethics into laws.
• Laws can only cover ethical values common to the majority or dominant group.
• Groups voice their values and ethics to influence the law.

Examples of Groups Voicing Values and Ethics

• School Strike 4 Climate demanded political action on climate change.
• Abortion Law Reform Act 2019 (NSW) legalized abortion after advocacy efforts.
• Anti-vaccination and lockdown campaigns protested government restrictions during the COVID-19 pandemic.
• Indigenous Voice of the Nation rallies debated changes to the Australian Constitution.

Ethical Behaviour

• Ethics involves doing the right thing and making judgments about the best course of action.
• Ethical behaviour impacts integrity and how we are viewed.
• Laws do not need to be established to ensure ethical behaviour.

Characteristics of Just Laws

• Justice involves upholding rights and enforcing responsibilities, ensuring equal outcomes.
• It balances the consensus of the populace and executing the decisions of the majority while ensuring that minority viewpoints are heard and considered.
• A just law ensures fair treatment, acknowledges, and respects human rights.

The Nature of Justice

• The legal system interprets and enforces laws through courts and related professionals.
• The legal system must ensure equal access to the law, providing equality, fairness, and justice.

Equality

• Equality means equal treatment concerning opportunities and political, social, and civil rights.
• Society tolerates different levels of equality and inequality based on capacity and vulnerability.
• Doli incapax: children under 10 years of age cannot be held legally accountable for their actions and therefore cannot be convicted of a criminal offence.

Fairness

• Fairness applies to everyday life, while justice has legal implications.
• Fairness is subjective, whereas justice applies to situations governed by law.
• Justice ensures that everyone has the same opportunities.

Access

• Access is the right to make use of something and is fundamental in a democratic society.
• Equal access to legal institutions and agencies is essential.
• Access includes awareness of laws and understanding rights/responsibilities.
• Income, education, and language proficiency impact access to the law.
• Women, the disadvantaged, non-English speakers, the disabled, First Nations peoples, and the institutionalized may face challenges.

Procedural Fairness and the Principles of Natural Justice

• Procedural fairness ensures fairness in dispute resolution processes.
• It is closely linked to natural justice.
• Natural justice asserts everyone should be treated fairly in legal situations.

Two Main Principles of Natural Justice

• The right to be heard includes the right to a fair hearing.
• The decision-maker should be unbiased.
• Even the appearance of bias is sufficient to constitute a breach of natural justice.

Rule of Law

• The rule of law dictates that no one is above the law, including lawmakers.
• All groups and individuals involved – legislators, judges, police officers, lawyers -- are subject to the same laws.
• Everyone is accountable to the same legal standards.

Why People Obey the Law

• Laws create order and a sense of security.
• Laws reinforce societal values.
• Laws protect all members by delineating permissible and impermissible actions.
• Laws impose sanctions on those found guilty of an offence.
• Laws facilitate dispute resolution.

Reasons for Non-Compliance

• Disagreement with rules or feeling disconnected from them.
• Perception of inadequate penalties.
• Belief that the law does not apply to them.

Anarchy and Tyranny

• Rules and laws regulate behavior to meet common expectations.
• Absence of laws or unfair application can lead to states of anarchy or tyranny.

Anarchy

• Anarchy is the absence of rules and laws, resulting in chaos and disorder.
• It is a state erupting during revolution or after natural disaster.
• Has Greek origins, meaning without a ruler.

Tyranny

• Tyranny is rule by a single leader with absolute power.
• A tyrant possesses unlimited authority and inflicts severe punishment for violations.