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READINGS FOR TOPIC 1 STATE AND LAW
1. GENERAL DESCRIPTION1
Law is also essential. Every society of which we have any historical record has
had some system of laws. Naturally, the systems have varied enormously.
An extraordinary example of a detailed written law comes from the Visigoths, a
nomadic European people who overran much of present-day France and Spain during the
fifth and sixth centuries A.D. Their code admirably required judges to be "quick of
perception, clear in judgment, and lenient in the infliction of penalties." It detailed dozens
of crimes. For example, a freeman who kidnapped the slave of another had to repay the
owner with four slaves and suffer 100 lashes. If he did not have four slaves to give, the
kidnapper was himself reduced to slavery. Sadly, the code explicitly permitted torture of
slaves and lower-class freemen, while prohibiting it for nobles.' The Iroquois Native
Americans, disregarded by many historians, in fact played a role in the creation of our
own government. Five major nations made up the Iroquois group: the Mohawk, Cayuga,
Oneida, Onondaga, and Seneca. Each nation governed itself regarding domestic issues.
But each nation also elected "sachems" to a League of the Iroquois. The league had
authority over any matters that were common to all, such as relations with outsiders.
Thus, by the fifteenth century, the Iroquois had solved the problem off ederalism: how to
have two levels of government, each with specified powers. Their system impressed
Benjamin Franklin and others and influenced the drafting of our Constitution, with its
powers divided between state and federal governments? As European nations today seek
to create a more united Europe, they struggle with the same problem.
The greatest of all Chinese lawgivers disliked written law altogether. Confucius,
who lived from 551 to 479 R.C.E., understood law within a broader social perspective.
He considered good rulers, strong family ties, and an enlightened nobility to be the surest
methods to a good society. "As a judge, I decide disputes, for that is my duty; but the best
thing that could happen would be, to eliminate the causes for litigation!" Although he
spoke 2,500 years ago, the distinction Confucius described is still critically important in
our society: Which do we trust more—a written law or the people who enforce it?
The law is a big part of our lives, and it is wise to know something about it. Within
a few weeks, you will probably find yourself following legal events in the news with
keener interest and deeper understanding. In this chapter, we develop the background for
1 The reading for topic 1 is extracted from the book: Jules Aldous, Making and Breaking the Law and the book:
Jeffrey F. Beatty, Susan S. Samuelson, Legal Environment, South-Western Cengage Learning 2
our study,. We look at where law comes from: its history and its present-day institutions.
In the section on jurisprudence, we examine different theories about what "law" really
means. And finally we see how courts—and students—analyze a case. 1.1. RULES AND LAWS
The Oxford Dictionary defines a law as 'a rule established among a community
and enjoining or prohibiting certain action; the system made up of these things; any rule
of procedure'. Law, therefore, consists of rules that establish modes of behaviour and
procedures. However, not all rules are Laws. As members of the community, we are
subject to a range of rules, legal and nonlegal, which determine our relationship with
other members of society. Not all the rules which govern our actions have the same
effect, importance or repercussions.
The distinction between rules and laws is easier to understand if we look at a specific example:
Joe S is 16 and lives at home. His father is a keen shooter and keeps an air rifle
locked in a cabinet in the house. Joe's parents have made it a rule that Joe is not to touch
the air rifle or unlock the cabinet. One day Joe has some friends around when his parents
are out. He tells them about the rifle. Keen to impress his friends, he finds the key to the
cabinet and takes out the air rifle. The boys decide to set up some old cans in the
backyard as shooting targets. A neighbour in an upstairs flat next door sees the boys with
the rifle and rings the police. When the police arrive, they find Joe taking aim at the cans,
configcate the air rifle and take Joe to the police station.
Joe is now in a lot of trouble. He has broken a number of rules. Firstly he has
broken the rule set by his parents. He has taken the air rifle out of the cabinet. This is a
non-legal rule. It affects the members of Joe's family but not society in general. The
repercussions of breaking this rule may be that Joe is grounded or not allowed to have
friends around while his parents are out. Although these punishments may have a
significant impact on Joe, the matter will be settled between Joe and his parents.
However, Joe has also broken legal rules. This can be seen as having more serious
consequencas as it may involve police action, enforcement through the courts and the
imposition of a sanction such as a fine. Under Section 29(3) of the Firearms Act it is an
offence under the age of 18 to have in your possession a firearm, air gun or air rifle. 1.2. NON-LEGAL RULES
As we have seen in the example above, different types of regulations govern our
relationships within society at different levels. Within our families we are bound by rules
of behaviour that set out the individual rights and responsibilities of the individual
members. At school we are subject to another set of regulations that govern the rights and 3
responsibilities of students and teachers. In the workplace we are subject to rules that
govern how we relate to our fellow workers. These regulations are not found in the law.
They are established by norms or rules. For example, a school will have formal rules that
make clear the behaviour expected of students. These will often be found in a written
code. In a family the rules are clearly communicated, but not usually written.
These rules provide us with a guide to our interaction with other members of our
society. The nature of the rules will alter from group to group. In many cases rules are not
formally stated or formally learnt. They are instilled in us by conditioning. For example,
there is no single law stating that we must respect our parents; however, most of us do.
We have learned to behave in this manner since we were young. The value has been
instilled in us by verbal messages from our families and perhaps from our religious beliefs.
Many aspects of our behaviour are governed by an expectation that people will
behave in a certain manner. These expectations are referred to as norms of behaviour.
Norms do not have the same force as legal rules. If we violate a norm, we will not be
imprisoned or fined. However, if we ignore the norms of behaviour, we do risk not being
accepted by other members of society. The norms that set out our eating habits or table
manners are known as the rules of etiquette.
These rules are not written laws and may vary from group to group. As children
we learn these rules of etiquette from our families. One such rule of etiquette is to eat
food from your own plate. If we went to a restaurant and started eating food from the
plates of other guests at the table, we would probably be shunned by our friends. In many
instances, the disapproval shown for a violation of society's norms can have as great an
impact on the individual as more formal punishment. 1.3. LEGAL RULES
Legal rules are known as laws. These laws set out our rights as members of the
community. For instance, the Equal Opportunity Act establishes the right of all
individuals to be treated equally regardless of sex. The law also establishes our
responsibilities to other members of the community or to the community as a whole. For
example, the law regulating the use of firearms in the community imposes responsibilities on owners of firearms.
In any society it is inevitable that conflicts arise and the questions of an
individual's rights and responsibilities are disputed. The law provides a means of settling such disputes peacefully.
For laws to be established in a community the authority of those rules must be
recognised. This recognition is derived from the ability of the law to reflect the collective 4
needs and values of society. In Australia, the individual is encouraged to take an active
role in the development of the legal system through a number of democratic processes.
These processes include the electoral system, the provision of representative and
responsible government, and the use of the jury system.
In summary, the basic features of a law are:
the statement of a particular type of behaviour (this usually takes the form of
prohibiting certain types of behaviour)
the provision of a sanction or remedy against anyone who violates the law
the formation of the rule by an authority recognised by the community.
For example, the criminal law establishes expected behaviour by prohibiting
certain actions. The criminal law is made by Parliament, which is recognised by the
community as having the authority to make the law for the community as a whole. If a
person does something that has been prohibited by the criminal law they will be punished
by either having their liberty restricted or a fine imposed. 1.4. RULES AND RITES
Not all rules are legal. Non-legal rules govern many aspects of our behaviour,
including our conduct as members of a school or a club, or our daily behaviour. 2. A LEGAL SYSTEM
Legal rules differ from non-legal rules in that legal rules apply to the community
as a whole. However, law consists of more than just a set of rules. It also includes the
legal system which establishes procedures and institutions to make, administer, adjudicate
and enforce the law in the community.
In our legal system law-making is primarily the responsibility of the
Commonwealth Parliament and the state parliaments. Courts (judges and magistrates) are
responsible for interpreting the meaning of the law and resolving disputes when it is
claimed that the law has been broken (adjudicating).
A variety of bodies has been established to enforce the law. For instance, the
police have the power to impose on-the-spot fines while the Department of Justice is a
government department responsible for the administration of justice. Because our legal
system is complex, individuals may require assistance. Solicitors and barristers act as
legal advisers and representatives for individuals in their dealings with the legal system. 2.1. TYPES OF LAW
The types of laws that we have in our society can be classified in a number of
different ways. Whatever method we use to classify the law it is necessary to remember
that, in a developed society such as ours, the law is complex and constantly changing. 5
New areas of law develop which may not neatly fit into existing categories. No one
method of classification can cover all aspects of our law.
The law establishes the rights of the individual in two ways. The law regulates the
relationship between the individual and the state. It also regulates rights between one
individual and another. Laws that regulate the relationship between the individual and the state include:
rules that govern the way in which we make rules (administrative laws)
laws that set out the political rights of the individual in relation to the state (constitutional law)
offences against the state that impose obligations on the individual (criminal law)
the rights and obligations of employers and employees (industrial law)
the economic rights and responsibilities between the individual and the state (taxation law).
Laws concerned with the regulation of rights between one individual and another
cover a wide range of human behaviour including:
the rights of individuals in making agreements (contract law). Contract law
recognises that, in certain conditions, agreements made by individuals will be
legally binding and thus establishes the rights and responsibilities of the
individuals who enter agreements
the rights of the individual to recover the losses that result from the violation of
their individual rights (law of torts). Under the law of torts a person who suffers a
damage or loss as a result of the violation of their rights may be compensated
the rights and responsibilities of individuals within a marriage are established by
the family law. Where a marriage ends in divorce, the law sets out the
responsibilities and rights of the parents and children
the rights of individuals to inherit property are set out in the laws of succession
the responsibilities of those who act in positions of trust for other individuals are
set out in the law of trusts.
In some cases, a wrongful act may involve more than one area of law. It may
involve both the rights of individuals and the relationship between the individual and the
state. This is frequently the case in car accidents. For instance, a speeding driver who
fails to stop at a red light is guilty of a criminal offence. This behaviour constitutes a
danger to the community as a whole. While driving through the red light the driver
collides with another car. As a result of the collision, the second car has been damaged
and the owner has suffered personal injuries. The rights of the owner of the second car
have been infringed. The driver of the second car could recover this loss through the civil
law by suing the other driver. 6
By looking at the different ways of classifying the law we can start to appreciate
the complexity of our legal system. The methods used to classify our laws include:
statute or common law (sources of law)
criminal or civil law (type of behaviour).
The method that we choose to classify the law will reflect the purpose for which
the classification is needed. For example, in Unit 3 we will be looking at the law-making
process. For the purpose of our study in this section we might want to classify the law
according to the different processes used to make the law (or sources of law). In Unit 4
we will be looking at dispute settlement processes and procedures, and so may want to
classify the law according to the different processes used to resolve disputes. The dispute
settlement processes and procedures differ according to whether they are for criminal or
civil cases (or according to type of behaviour).
2.1.1. Statute or Common Law Parliaments
Parliaments are responsible for making statute law. Statute law is also referred to
as legislation or acts of parliament. Parliaments may also delegate their law-making
powers to other bodies known as subordinate authorities. The rules made by these laws
are known as regulations, orders-in-council and local laws.
Most new law is statutory law. Statutes affect each of us every day, in our
business, professional, and personal lives. When the system works correctly, this is the
one part of the law over which we the people have control. We elect the local legislators
who pass state statutes; we vote for the senators and representatives who create federal
statutes. If we understand the system, we can affect the largest source of contemporary
law. If we live in ignorance of its strengths and pitfalls, we delude ourselves that we participate in a democracy.
As we see in US, there are many systems of government operating in the United
States: a national government and 50 state governments. Each level of government has a
legislative body. In Washington, D.C., Congress is our national legislature. Congress
passes the statutes that govern the nation. In addition, each state has a legislature, which
passes statutes for that state only. In this section we look at how Congress does its work
creating statutes. State legislatures operate similarly, but the work of Congress is better
documented and obviously of national importance. Courts of law
Courts of law also have responsibility for the development of the law, either
through the process of interpreting the meaning of statutes as they apply to individual
cases or through the declaration of common law. 7
As we have seen, the common law originated in England as lawyers began to
record decisions and urge judges to follow earlier cases. As judges started to do that, the
earlier cases, called precedent, took on steadily greater importance. Eventually, judges
were obligated to follow precedent. The principle that precedent is binding on later
cases is stare decisis, which means "let the decision stand." Stare decisis makes the
law predictable, and this in turn enables businesses and private citizens to plan intelligently.
Jason and the toddler present a classic legal puzzle: What, if anything, must a
bystander do when he sees someone in danger? We will examine this issue to see how the common law works.
The common law is judge-made law. It is the sum total of all the cases decided
by appellate courts. The common law of Pennsylvania consists of all cases decided by
appellate courts in that state. The Illinois common law of bystander liability is all the
cases on that subject decided by Illinois appellate courts. Two hundred years ago, almost
all law was common law. Today, most new law is statutory. But common law still
predominates in tort, contract, and agency law, and it is very important in property,
employment, and some other areas.
We focus on appellate courts because they are the only ones to make rulings of
law. In a bystander case, it is the job of the state's highest court to say what legal
obligations, if any, a bystander has. The trial court, on the other hand, must decide fiats:
Was this defendant able to see what was happening? Was the plaintiff really in trouble?
Could the defendant have assisted without peril to himself? Stare Decisis
Nothing perks up a course like Latin. Stare decisis means "let the decision stand."
It isthe essence of the common law The phrase indicates that once a court has decided a
particular issue, it will generally apply the same rule in future cases. Suppose the highest
court of Arizona must decide whether a contract for a new car, signed by a 16-year-old,
can be enforced against him. The court will look to see if there is precedent, that is,
whether the high court of Arizona has already decided a similar case. The Arizona court
looks and finds several earlier cases, all holding that such contracts may not be enforced
against a minor. The court will apply that precedent and refuse to enforce the contract in
this case. Courts do not always follow precedent, but they generally do: stare decisis.
Two words explain why the common law is never as easy as we might like:
predictability and flexibility. The law is trying to accommodate both goals. The need for
predictability is apparent: people must know what the law is. If contract law changed
daily, an entrepreneur who leased factory space and then started buying machinery would
be uncertain if the factory would actually be available when she was ready to move in. 8
Will the landlord slip out of the lease? Will the machinery be ready on time? The need
for predictability created the doctrine of stare decisis.
Yet there must also be flexibility in the law, some means to respond to new
problems and changing social mores. In this new millennium, we cannot be encumbered
by ironclad rules established before electricity was discovered. These two ideas may be
obvious but they also conflict: the more flexibility we permit, the less predictability we
enjoy. We will watch the conflict play out in the bystander cases. Equity
Principles of equity, created by the Chancellor in England, traveled to the colonies
along with the common-law rules. All states permit courts to use equitable powers. An
example of a contemporary equitable power is an injunction, a court order that someone
stop doing something. Suppose a music company is about to issue a new compact disc by
a well-known singer, but a composer claims that the recording artist has stolen his song.
The composer, claiming copyright violation, could seek an injunction to prevent the
company from issuing the compact disc. Every state has a trial court that can issue
injunctions and carry out other equitable relief. As was true in medieval England, there is no jury in an equity case.
2.1.2. Criminal or Civil Law
Laws can be classified as being either criminal or civil. Criminal law is concerned
with behaviour that affects not only the individuals directly involved but also the welfare
of the society as a whole. The criminal law aims to regulate the behaviour of individuals
as members of the community and to protect the interests of society. Civil law is
concerned with behaviour between one individual and another individual. This area of
law includes contract law and the law of torts. Criminal law is generally concerned with
behaviour that is disruptive to the society as a whole. Criminal law includes:
offences against the person: these offences relate to action that results in some
form of personal injury such as murder, assault, rape or kidnapping
offences against property: these offences involve conduct that results in damage to
or loss of property, such as theft, robbery or acts of vandalism
offences against morality: these offences are concerned with maintaining certain
values in our society and are primarily concerned with personal relationships and
sexuality—these offences include incest, street prostitution and bigamy
offences against the legal system: these offences aim to reinforce our
responsibility to participate as responsible citizens in the administration of
justice—offences such as perjury or failure to appear for jury service. 9
Civil law includes both contract law and the law of torts. Contract law is
concerned with legally enforceable agreements made between individuals. Torts are
concerned with the wrongful actions of one individual against another individual.
It is a crime to embezzle money from a bank, to steal a car, to sell cocaine.
Criminal law concerns behavior so threatening that society outlaws it altogether.
Most criminal laws arc statutes, passed by Congress or a state legislature. The
government itself prosecutes the wrongdoer, regardless of what the bank president or car
owner wants. A district attorney, paid by the government, brings the case to court. The
injured party—for example, the owner of the stolen car—is not in charge of the case,
although she may appear as a witness. The government will seek to punish the defendant
with a prison sentence, a fine, or both. If there is a fine, the money goes to the state, not to the injured party.
Civil law is different, and most of this book is about civil law. The civil law
regulates the rights and duties between parties. Tracy agrees in writing to lease you a
30,000-square-foot store in her shopping mall. She now has a legal duty to make the
space available. But then another tenant offers her more money, and she refuses to let you
move in. Tracy has violated her duty, but she has not committed a crime. The government
will not prosecute the case. It is up to you to file a civil lawsuit. Your case will be based
on the common law of contract. You will also seek equitable relief, namely, an injunction
ordering Tracy not to lease to anyone else. You should win the suit, and you will get your
injunction and some money damages. But Tracy will not go to jail.
Some conduct involves both civil and criminal law. Suppose Tracy is so upset
over losing the court case that she becomes drunk and causes a serious car accident. She
has committed the crime of driving while intoxicated, and the state will prosecute. Tracy
may be fined or imprisoned. She has also committed negligence, and the injured party
will file a lawsuit against her, seeking money. We will again see civil and criminal law
joined together when we return to the Pith Zone case, later in the chapter.
2.1.3. Substantive and Procedural Law
We saw the distinction between substantive and procedural law in The Oculist's
Case, and it remains important today. Substantive law defines the rights of people.
Substantive law requires that a landlord who has signed a lease must deliver the store to
her tenant. Most of this book concerns substantive law. Procedural law establishes the
processes for settling disputes. Procedural law requires that to get an injunction against
Tracy, you must first notify her in writing of your claims and the time and place of the
hearing on the injunction. 10
2.1.4. Public and Private Law
Public law refers to the rights and obligations of governments as they deal with
the nation's citizens. For example, when the Federal Trade Commission prohibits
deceptive advertising, that is public law. Private law regulates the duties between
individuals. Landlord-tenant law is private law.
2.2. PARLIAMENT AS LAW-MAKER
Britain, such as Canada, India and New Zealand, Australia adopted the British
parliamentary system. This system is known as the Westminster system, after the city in
London where the British Parliament is located. The Commonwealth Parliament and the
Victorian Parliament are both based on the British Parliament. The structure of
Australia's Commonwealth Parliament is formally set out in the Australian Constitution.
Many practices of parliament are based on conventions that evolved in Britain over
previous centuries. A convention is a rule or usual practice that is followed, although it is not written as a law.
To fully understand the structure and the functioning of our parliaments, it is
necessary to understand the historical origins of the Westminster model.
2.2.1. HISTORY OF THE BRITISH PARLIAMENT
Parliament in Britain developed as a series of concessions of power from the
monarchs to the people. At the time of the Norman invasion in 1066, the monarchs had
unlimited power. The first attempt to limit the power of the monarch occurred in 1215
when King John signed Magna Carta, a document drawn up by a group of rebellious bishops and knights.
Magna Carta was an agreement between those powerful men and the king. It
aimed at limiting the monarch's power to impose taxation. By signing Magna Carta, the king's power was
limited by a council of bishops and knights who advised him. It was not designed by the
bishops and knights to be a bill of rights or a constitution.
In 1295, the first British Parliament was formed. It was divided into two houses or
councils. These two houses or councils represented only the wealthy and the powerful
members of society. Parliament advised the king, who still retained unlimited power.
Parliament was called to sit only to grant the monarch the right to raise money by
imposing taxes. By the 1400s parliament consisted of two houses who would debate and
pass law. They were known as the House of Tennants-in-Chief (later to be known as the
House of Lords) and the House of Elected Knights and Citizens (later to be known as the
House of Commons). Parliament began producing statutes. A statute is a written law 11
passed by a recognised authority. These laws were written and discussed by parliament and consented to by the king.
In following centuries, the British monarchs conceded greater powers to
parliament. Elizabeth I (1358-1603) granted the important privileges of freedom of
speech and freedom from arrest and imprisonment. During the 1600s, two principles
fundamental to the Westminster model were established. Firstly, it was established that
ministers of the Crown are responsible to the parliament. Secondly, it was established
that parliament was the ultimate law-making authority. The idea that parliament has the
ultimate law—making power is called the supremary of parliament. In the 1700s, the
practice of nominating a prime minister as a leader of the government evolved. The prime
minister would select members of parliament to form an advisory body, to become known as the Cabinet.
2.2.2. THE WESTMINSTER MODEL
Today the Westminster model of parliament consists of two houses and the
sovereign. A parliament that consists of two houses is known as abicameral parliament.
The monarch is referred to as the Crown .
Parliament is the ultimate law-making authority. It is a democratic body that
represents and is responsible to the people. The Crown retains the right to accept or
refuse proposals passed by both houses. However, by parliamentary convention, laws
passed by parliament are always accepted by the Crown.
2.2.3. PARLIAMENT IN AUSTRALIA Before federation
For more than 40 000 years Australia has been inhabited by indigenous tribal
groups. When the British colonised Australia after 1788, each group had its own rules of
behaviour and methods of dispute settlement. These rules differed from region to region.
The British did not recognise the existence of an Aboriginal legal system or the
land rights of the indigenous people. At that time Australia was considered to be a terra
nullius. In other words, according to British law, Australia was considered a desert island.
Australia could therefore be settled and used in any way that the British thought fit. No
attempt was made to include the rules of the original inhabitants. It was not until 3 June
1992, in the famous Mabo Case (Mabo and Others v. State of Queensland), that our
courts recognised native title or ownership of land.
Australia was colonised as a convict colony. The convicts were subject to British
military law. These convicts were released after serving their time as prisoners, and
settled in various parts of the country. Free settlers also arrived and began industries and trade. 12
Under the military, the governor decided the law and answered only to Britain.
With a greater number of free settlers, this form of dictatorship became inappropriate.
The free settlers wanted representative and responsible government in the form of the
British Parliament. This was granted by the British Parliament passing a colonial
constitution for each of the colonies (today's states). These constitutions meant that each
colony had a parliament with limited law-making powers.
Each colony could make its own laws and had its own courts. These courts could
hear and determine disputes concerning British laws and laws made by the colony. Since
Tasmania, Queensland and Victoria were originally part of the colony of New South
Wales, these states have inherited some laws made by the colony of New South Wales. Federation
By 1900, Australia consisted of six separate colonies. Each colony had its own
parliament based on the Westminster model. Between 1581 and 1900, the colonies met to
discuss forming a federation of Australian colonies. These meetings resulted in a series of
constitutional conventions and referendums. The colonies wanted to create a central
authority to legislate for the national issues. Each colony also wanted to retain the power
to govern in its own territory. A federal political system had to be designed that would
balance these interests. Some powers had to be set aside for a central authority. Other
powers had to be reserved for the colonies.
2.2.4. THE CONSTITUTION
The Australian Constitution was passed by the British Parliament. The formal title
of the Constitution is the Commonwealth of Australia Constitution Act 1900 (UK). It
came into force in Australia on 1 January 1901. This document set out the operation and
the structure of our federal government. It established the Federal Government and the
Commonwealth Parliament. A copy of the Constitution can be located at
www.aph.gov.au/senate/general/constitution/index.htm
The Constitution also established the High Court as the final Australian court of
appeal. After the passing of the Constitution, the colonies became known as states. The
states had their own parliaments with some of the law-making powers that they exercised as colonies.
Between 1901 and 1986, the historical influence of the British legal system on the
Australian parliaments and the courts slowly ended. The Australia Acts 1986 cut the links
between Britain and the states. The Australia Acts established the Australian High Court as the final court of appeal.
The Australian Constitution forms the guidelines for a federation. It sets out the
structure of the Commonwealth Parliament, its powers to make laws, the judicial system 13
and the relationship between the Commonweahlt Parliament and the states. It establishes
that the Commonwealth Parliament has a House of Representatives (lower house) and a Senate (upper house).
Australia has a federal system of government. Under this federal system, the
country is divided into states. Each state has its own parliament, which can exercise
powers relating to certain issues such as transport, power, water and education. In a
federation, the people of the states agree that specified matters are more effectively
handled by a national authority than a state body. Therefore the central authority—the
Parliament of Australia—has the power to make laws about matters that would affect the
whole country, such as defence, currency, trade and postal services.
Modelled on the Westminster system, the Commonwealth Parliament is a
bicameral parliament consisting of two houses. With the exception of Queensland,
Northern Territory and Australian Capital Territory, all state parliaments in Australia are
bicameral. The Commonwealth Parliament consists of the Crown, the House of
Representatives and the Senate. The Victorian Parliament consists of the Crown, the
Legislative Assembly (lower house) and the Legislative Council (upper house).
The operation of the legal system is divided not only between the Commonwealth
and the states. At each level, Commonwealth or state, no one body holds absolute
authority to perform all the functions of a legal system.
2.3. SEPARATION OF POWER
There are three functions that must be performed within any legal system:
laws must be made (the legislative function)
laws must be administered (the administrative or executive function)
laws must be applied when disputes arise (the judicial function).
The distribution of these functions to different bodies is known as the separation of powers.
The legislative function, or law-making power, is given to the parliament. The
executive function is, in theory, exercised by the governor-general as the Queen's
representative. However, by convention, the governor-general will only act on the advice
given by the government of the day. In practice, therefore, the government through its
ministers and government departments is largely responsible for the administration of the
law. For instance, the administration of the taxation laws through the Australian Taxation
Office is considered to be part of the executive function of government. The judicial
function, or the task of applying the law, is given to the courts.
The operation of these functions of a legal system is best explained through the
use of an example. Consider a person charged with the importation of heroin. Importation 14
of an illicit drug is an offence under Commonwealth legislation. This legislation was
passed by the Commonwealth Parliament – an example of the legislative function. The
offence was most likely to have been detected by the police or customs officials.
Detention and searching of the offender is an example of the executive function.
Eventually the offender would be tried and, if found guilty, convicted and sentenced by a
court – an example of the judicial function.
The seperation of powers is considered to be very important. If all powers were
given to a single body it would hold unlimited authority. The separation of powers
therefore provides a system of checks and balances
The separationl of powers is clearly established by the Commonwealth
Constitution. Chapter of the Constitution establishtes the Commonwealth Parliament to
exercise the legislative function of the Commonwealth. Chapter two sets out the
executive power of the Commonwealth Executive. Chapter three etablishes the High
Court to exercise the judicial power. The independence of the judiciary is stated in
Section 71 of the Constitution.
Although, in theory, there is a separation of powers between the executive and
legislative functions, in practice this distinction is blurred. As the government is formed
by the party that holds a majority in the lower hourse of parliament, some members of
parliament (performing a legislative function) are also ministers of the government
(performing an executive function). Furthermore, parliament sometimes delegates the
power to make regulations to government departments. 3. LAW IN US2
It would be nice if we could look up "the law" in one book, memorize it, and then
apply it. But the law is not that simple, and cannot be that simple, because it reflects the
complexity of contemporary life. In truth, there is no such thing as "the law." Principles
andrules of law actually come from many different sources. Why is this so? In part
because we inherited a complex structure of laws from England. We will see that by the
rime of the American Revolution, English law was already an intricate system.
Additionally, ours is a nation born in revolution and created, in large part, to
protectthe rights of its people from the government. The Founding Fathers created a
national government but insisted that the individual states maintain control in many areas.
As a result, each state has its own government with exclusive power over many important
areas of our lives. To top it off, the Founders guaranteed many rights to the people alone,
ordering national and state governments to keep clear. This has worked, but it has caused
a multilayered system, with 50 state governments and one federal government all creating and enforcing law.
2 Jeffrey F. Beatty, Susan S. Samuelson, Legal Environment, South-Western Cengage Learning 15
A summary of English legal history will show the origin of our legal institutions.
This brisk survey will also demonstrate that certain problems never go away. Anglo-Saxon
England, about 1,000 years ago, was a world utterly different from our own. Yet we can
see uncanny foreshadowings of our own unfinished efforts to create a peaceful world.
The colonists brought with them a basic knowledge of English law, some of which
they were content to adopt as their own. Other parts, such as religious restrictions, were
abhorrent to them. Many had made the dangerous trip to America precisely to escape
persecution, and they were not interested in recreating their difficulties in a new land.
Finally, some laws were simply irrelevant or unworkable in a world that was socially and
geographically so different. American law ever since has been a whitewater river created
from two strong currents: One carries the ancient principles of English common law, the
other, a zeal and determination for change.
During the nineteenth century, the United States changed from a weak, rural
nation into one of vast size and potential power. Cities grew, factories appeared, and
sweeping movements of social migration changed the population. Changing conditions
raised new legal questions. Did workers have a right to form industrial unions? To what
extent should a manufacturer be liable if its product injured someone? Could a state
government invalidate an employment contract that required 16-hour workdays? Should
one company be permitted to dominate an entire industry?
In the twentieth century, the rate of social and technological change increased,
creating new legal puzzles. Were some products, such as automobiles, so inherently
dangerous that the seller should be responsible for injuries even if no mistakes were made
in manufacturing? Who should clean up toxic waste if the company that had caused the
pollution no longer existed? If a consumer signed a contract with a billiondollar
corporation, should the agreement be enforced even if the consumer never understood it?
As we venture into this millennium, new and startling questions are certain to confront
us. Before we can begin to examine the answers, we need to understand the sources of contemporary law.
During the colonial period, there were few trained lawyers and fewer law books in
America. After the Revolution that changed, and law became a serious, professional career.
The first great legal achievement was the adoption of the United States Constitution. 3.1. CONSTITUTIONS
United States Constitution
The United States Constitution, adopted in 1788 by the original 13 colonies, is the
supreme law of the land.' Any law that conflicts with it is void. This Federal Constitution,
as it is also known, does three basic things. First, it establishes the national government of 16
the United States, with its three branches. The Constitution creates the Congress, with a
Senate and a House of Representatives, and prescribes what laws Congress may pass.
The same document establishes the office of the president and the duties that go with it.
And it creates the third branch of government, the federal courts, describing what cases they may hear.
Second, the Constitution ensures that the states retain all power not given to the
national government. This simple idea has meant that state governments play an
important role in all of our lives. Major issues of family law, criminal law, property law,
and many other areas are regulated predominantly by the various states.
Third, the Constitution guarantees many basic rights to the American people. Most
of these rights are found in the amendments to the Constitution. The First Amendment
guarantees the rights of free speech, free press, and the free exercise of religion. The
Fourth, Fifth, and Sixth Amendments protect the rights of any person accused of a crime.
Other amendments ensure that the government treats all people equally and that it pays
for any property it takes from a citizen. Merely by creating a limited government of three
branches and guaranteeing basic liberties to all citizens, the Constitution became one of
the most important documents ever written.
State Constitutions
In addition to the Federal Constitution, each state has a constitution that
establishes its own government. All states have an executive (the governor), a legislature,
and a court system. Thus there are two entire systems of government affecting each of us:
a federal government, with power over the entire country, and a state government,
exercising those powers that the United States Constitution did not grant to the federal
government. This is federalism at work. 3.2. STATUTES
The second important source of law is statutory law. The Constitution gave to the
United States Congress the power to pass laws on various subjects. These laws are
statutes, like those passed by the English Parliament. For example, the Constitution
allows Congress to pass statutes about the military: to appropriate money, reorganize
divisions, and close bases. You can find any federal statute, on any subject, at the
Website of the United States House of Representatives, which is http://www.house.gov/.
State legislatures also pass statutes. Each state constitution allows the legislature to
pass laws on a variety of subjects. All state legislatures, for example, may pass statutes
about family law issues such as divorce and child custody. 17
3.3. ADMINISTRATIVE LAW
In a society as large and diverse as ours, the executive and legislative branches of
government cannot oversee all aspects of commerce. Congress passes statutes about air
safety, but U.S. senators do not stand around air traffic towers, serving coffee to keep
everyone awake. The executive branch establishes rules concerning how foreign
nationals enter the United States, but presidents are reluctant to sit on the dock of the bay,
watching the ships come in. Administrative agencies do this day-to-day work.
Most administrative agencies are created by Congress or by a state legislature.
Familiar examples at the federal level are the Federal Communications Commission
(FCC), which regulates most telecommunications; the Federal Trade Commission (FTC),
which oversees interstate trade; and the Internal Revenue Service, whose feelings are hurt
if it does not hear from you every April 15. At the state level, regulators set insurance
rates for all companies in the state, control property development and land use, and regulate many other issues.
3.4. OTHER SOURCES OF LAW Treaties
The Constitution authorizes the president to make treaties with foreign nations.
These must then be ratified by the United States Senate. When they are ratified, they are
as binding upon all citizens as any federal statute. In 1994 the Senate ratified the North
American Free Trade Agreement (NAFTA) with Mexico and Canada. NAFTA was
controversial then and remains so today—but it is now the law of the land.
Executive Orders
In theory all statutes must originate in Congress or a state legislature. But in fact,
executives also legislate by issuing executive orders. For example, in 1970 Congress authorized. 18
