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.
It is utilitarian –
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)
It leaves people free –
This only applies to the law abiding. Those who have broken the law may face penalties including gaol. However this characteristic is also flawed. A person may be held in remand for a long period of time, even though they are innocent until proven guilty. Therefore the law has taken them to gaol for nothing, rather than leaving them free. However people would also say that this can be a good thing, due to the nature of some people who are held in remand. If a convicted child sex offender was let back into the public while waiting their trial, and during that time committed a sex crime, the outcry from the public would be enormous. This would violate another characteristic of a just law or judicial decision – “It is utilitarian”. This is an example of the sacrifices that are made to sustain the notion of utilitarianism.
It takes account of limitations in material resources –
Society has limited amount of resources such as money, water, energy, employment etc. Increasingly, laws have to be made with these limitations in mind. An example of this is the current review of the Victims’ Compensation Scheme (VCS) where victims of crime are compensated monetarily. Although this seems a good idea, eventually the government will find it is struggling to find the money for compensation payouts, and will have to raise taxes to gain the revenue needed. Limitations will be placed upon the scheme to restrict the level of payouts and the types of claims that may be made.
It can be invoked without undue delay –
A just law should deal with a legal problem or dispute as soon as possible. This is because people’s memories fade and so their evidence becomes less reliable as time passes. Similarly, in criminal matters, an accused person’s freedom may be restricted while they are waiting in remand for their trial. This violates the “It leaves people free” characteristic of a just law. The time take for a trial to commence can be quite lengthy for a number of reasons. One being the availability of legal assistance. It is a right of the accused to have legal representation, and some people can’t afford legal representation yet are too wealthy for legal aid. This creates a situation where it takes a long time to pay the lawyer, and therefore a long time before the case will be heard.
4.
The law aims to be equitable, fair and just. However this is not always the case. It is impossible to be fair to everyone, and it is impossible for everyone to think that a decision is just.
Equity is something that has to be aimed for when making a law, and although common law does a reasonable job at this, it doesn’t cover key areas of the law in which mitigating circumstances are involved. This is where equity law is introduced. Equity law is designed to cover areas of common law which may seem unfair given the circumstances. An example of this is ‘battered wives syndrome.’ Under common law, if a woman kills her husband, she will go to gaol. However with equity law, the decision can be based on mitigating factors such as the presence of assault against the woman, which may have lead to her killing her husband. Equity law will then result in a lessor penalty than what common law would’ve given.
Fairness is something else that although the law aims to achieve, in some areas is falls short. Legal representation is a key area in which fairness isn’t provided. Although our rights state we have the right to legal representation, this is restricted as many people can’t afford legal representation. To cover for this, the government has set up legal aid, which gives legal representation to people of a lower income for a low cost. However the waiting list for legal aid is high and there are problems with who is able to receive legal aid. If the threshold is $15,000 pa. then does that mean that someone who earns $15,100 pa. is able to afford legal representation? This is an obvious example of where the law isn’t fair. Another example is in the trial process. The state (the prosecution) has access to all possible resources, and has a large supply of money from the government. The defendant can only have what they afford; in some cases this doesn’t even include legal representation.
One of the key characteristics of a just law is that it is utilitarian. This means that the law aims to achieve happiness for the greatest number of people possible. Unfortunately, by definition this means that although the large majority of people think a law is just, there is a smaller population which think the law is unjust. An example of this would be laws on the use of recreational drugs. The large majority of people believe that recreational drugs are harmful, and are happy that they are illegal to purchase, traffic and use. However there is a small population of people that believe that recreational drugs only harm the user, and therefore they should not be outlawed. This is an example of utilitarianism is an area in which it is hard to improve upon. It is impossible to achieve happiness for everyone in regards to a just law, as people have different opinions and beliefs. In most cases, the law tries to be utilitarian, and tries to be just for the largest number of people possible.
However on the other side of this argument is the point that some laws are made in favour of the law maker, rather than the public and the idea of justice. An example of this is the re-zoning of the voting areas in Sydney. The voting areas have been changed by the state government, which coincidentally results in favourable voting patterns in favour of the current state government, which is currently under criticism and in danger of losing the next election. It could be said that this law was not made in the idea of justice, but to favour the current state government only. This is an example of how the law is not just; as voters we are instating our trust upon people to make laws for us, and we hope that they provide us with just laws and fair decisions, rather than for them to abuse their power and create laws to favour themselves.
In most areas the law aims to be equitable, fair and just. However it is impossible to be fair to everyone at all times, and there will be occasions where people feel as though the law is biased against them. The law must aim to be utilitarian, and on most occasions, it is achieving this.
5.
The notion of equality can be divided into four parts; Formal equality, equality of opportunity, equality before the law and equality of outcomes. Each is important in the aim to achieve equality in terms of law and judicial decisions. Together, the four parts are supposed to bring equality to all situations in society. However this is not the case. There are times when the notion of equality is impractical, and therefore does not always bring equality.
The first part of the notion of equality is formal equality. This occurs when the law provides that, in certain defined circumstances, everyone should be treated equally regardless of background, social or economic status, or person beliefs. Basically this means that people should be treated the same as everyone else, despite their differences. This can be through legislation, judicial decisions and government policies. An example where formal equality is not reached is in the case of homosexuals who wish to marry. In Australia, homosexual couples are not allowed to marry or have children, which says they are not equal to heterosexual people.
Equality of opportunity refers to the equal treatment of people in terms of their access to employment and other services. This provides that a person should be given the same opportunity when applying for a job despite their race, religion etc. However the main problem with this is that simply saying that equality should be achieved doesn’t mean that it will. If a white man and an aboriginal man apply for the same position, have the same qualifications etc. what is to stop the employer hiring the white Australian simply because they don’t like aboriginals? This could even go to the extent of hiring someone who is less qualified simply to avoid hiring someone of a particular group that is not welcomed by the employer. Although this is illegal, there is no way of tracking it, and there is no way to prove that there was any breach in the notion of equality.
Equality before the law implies that everyone is treated equally in their dealings with the law. This includes race, religion. Socio-economic factors etc. In theory this also sounds like a good idea. However in practice it is incompatible in some situations. If a homeless person is fines $500 for stealing food and a millionaire is given the same fine (which under the notion of equality is correct) – the homeless person would obviously feel the penalty to be much harsher than what the millionaire would feel. People believe that the outcome of sentence / law should be a factor in equality before the law. There may be mitigating circumstances which makes equality before the law impractical.
Equality of outcomes is another part of the notion of equality. This is where that despite any differences in culture, race, socio-economic background etc. between people, the result will always be the same and there will always be equality. However there are programs in our society which favour the less fortunate or previously discriminated (aboriginals). 43% of sentences handed down to aborigines are lower than that handed to a white Australian. This obviously doesn’t create equality. Domestically, Affirmative Actions are taken, such as the Affirmative Action (equal opportunity for women) Act 1986 (Cth) This act was created to make more positions available for women in the workforce, and to attempt to reduce the ‘glass ceiling’ theory. However in practice this isn’t effective, as women who are not as deserving as men are hired purely because of the above act. This situation is currently taking place with new legislation being passed in an attempt to get more men to become teachers by providing them with scholarships to university. On an international scale, in South Africa, the cricket team is comprised of all white men based on skill, and by government legislation at least one black man has to be in the team. Not only was this a disadvantage to the team, as he was not the most deserving man of the position, but he also was subject to sledging from opposition teams, due to his undeserving place in the team. This is another example of how Affirmative Actions are not always effective.
In theory, the notion of equality and the four different parts which comprise the notion of equality sound as though they would make a positive impact on society. However factors such as the lack of control on the notion, people’s willingness to remain discriminative, as well as mitigating factors which make the notion of equality impractical, the notion can at times create problems, rather than solve them, and does not always result in equality.
Section B –
6.
A)
(i) In mid-2003, a man was fired from his office occupation because he chose to take 15mins per day to pray, as was part of his Muslim religion. Apart from this he was a model employee. The main problem was that people are allowed 30mins per day to take smoking breaks, whereas he was fired for taking 15mins to pray. The man unofficially appealed, taking his complaint to the media.
(ii) Section 116 of the constitution gives the right to freedom of religious belief. This right was broken, as he was fired because of his willingness to express his religious belief.
(iii) The law didn’t need to be involved in this case, because once the story had been printed in national newspapers and was broadcast on various TV channels, the firm unsurprisingly re-hired the man, and has since allowed him to take 15mins to pray each day. However if the law was needed, the man could sue the firm under civil law for unfair dismissal.
B)
(i) One of the men release from Guantanamo Bay said through his lawyer that he was subject to “inhumane conditions” as he was beaten, interrogated at gunpoint for periods up to 12 hours at gunpoint (without a lawyer present obviously) and has been emotionally scarred by the incidents. Mr Dergoul claims he was subject to “botched medical treatment, interrogation at gunpoint, beatings and unhuman conditions” He goes on to say it was a “gross breach of human rights.” Mr al-Harith (Dergoul’s lawyer) told ITV network an interrogator at Guantanamo applied intense psychological pressure, telling him authorities in Britain would seize his family's home and money, turning them onto the street if he did not admit he was involved in terrorism.
(ii) This is an obvious breach of human rights. For starters, Mr Dergoul had the right to legal representation denied. Because this was the US, the bill of rights had to be followed. In this case, the 1st amendment was broken, (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;) the 5th amendment (nor be deprived of life, liberty, or property, without due process of law;) the 8th amendment (nor cruel and unusual punishments inflicted.) Technically, the US has the right to hold the men in custody, according to the 5th amendment (No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;) However the way Mr Dergoul was treated when he was in custody was a breach of Human Rights.
(iii) Due to the lack of evidence, there is little chance that Mr Dergoul will be able to take legal action against those who breached human rights against him. It is unlikely that any one of the perpetrators will admit to their crimes, so unfortunately for Mr Dergoul the crimes will probably go unpunished.
Bibliography -
www.hsc.csu.edu
http://www.law.cornell.edu/constitution/constitution.billofrights.html
Heinemann Legal Studies Textbook
