An Introduction to the Law and its Sources

1
An Introduction to the Law and its Sources

• Susan Carter

2

• Legal sense v Common sense
• Pepper Finance Corporation v Williams 2008
  NSWSC 4

• Law v Politics
• Judges are bound by legal texts and their own
  prior precedents to a degree that political
  actors are not. And crucially, judges have an
  obligation to explain their results as the
  product of legal judgement.
• Michael C. Dorf

3
To remember

• Law is both a body of knowledge and a way of
  thinking about that knowledge it is important to
  master both.
• You are expected to know not just what the law
  is, but why. Anytime you think about the answer
  to a legal question ask yourself, why do I know
  that this is the answer? What is my legal source
  or authority?
• You may disagree with some or indeed all of the
  substantive law which you are studying. But you
  cannot change it simply by disagreeing with it.
  If you want to change the law that is turn your
  policy into law you need to understand the law
  and its processes first.

4
Law v Policy

• Courts and judges are not meant to have
  agendas, and judges are not meant to seek
  popularity. They are expected to administer
  justice according to law, regardless of the
  consequences for their approval ratings. A
  judicial decision that pleases one side or the
  other of a partisan conflict will always attract
  applause or blame from some of the partisans, but
  people expect judges to attend to the task of
  administering justice and to leave politics to
  politicians.
• Gleeson CJ, speech to the Judiciary of the
  Commonwealth of the Bahamas

5
Law v Politics

• Behind the legal issues that the Court must
  decide there often are intensely political
  concerns. Yet the Court is expected to resolve
  those issues according to law, and adhering to
  legal methodology. We expect judges to decide
  issues after hearing argument in specific cases.
• Gleeson CJ

6
Legal approach v personal opinion

• In Australia, one of the responsibilities of
  the High Court is to decide the constitutional
  validity of federal or State legislation. The
  public would be outraged if the Justices
  advanced, as a reason for holding legislation to
  be valid or invalid, their approval or
  disapproval of the policy of the legislation.
• Gleeson CJ

7
Latham CJ, First Uniform Tax case

• "The controversy before the Court is a legal
  controversy, not a political controversy. It is
  not for this or any court to prescribe policy or
  to seek to give effect to any views or opinions
  upon policy. We have nothing to do with the
  wisdom or expediency of legislation. Such
  questions are for Parliaments and the people ...
  The Court must consider and deal with ... the
  legal contention. But the Court is not authorized
  to consider whether the Acts are fair and just as
  between States - whether some States are being
  forced, by a political combination against them,
  to pay an undue share of Commonwealth expenditure
  or to provide money which other States ought
  fairly to provide. These are arguments to be used
  in Parliament and before the people. They raise
• questions of policy which it is not for the
  Court to determine or even to consider."

8
Statute Law and Case Law
9
Sources of law

• Statute laws made by Parliament

• Case law laws made by judges

10
Statutes v Case law

• Statutes operate from the general to the
  particular, whereas cases operate from the
  particular to the general.

11
CITATION OF STATUTES

• Statutes are always cited
• Title/Year/(Jurisdiction)
• Flags Act 1953 (Cth)
• Parramatta Methodist Cemetery Act 1951 (NSW) s3
• Offshore Minerals Act 1994 (Cth) s26(2)(b)

12
STRUCTURE OF AN ACT

• NUMBER
• DATE
• LONG TITLE
• SHORT TITLE
• PREAMBLE (OR PURPOSE CLAUSES INSTEAD OF A
  PREAMBLE)
• Preamble always starts with Whereas
• TABLE OF CONTENTS
• PARTS OR CHAPTERS, DIVISIONS AND HEADINGS

13

• SYDNEY TURF CLUB ACT 1943
• As at 13 November 2007
• Act 22 of 1943 TABLE OF PROVISIONS
• Long Title
• An Act to constitute and incorporate a Sydney
  Turf Club and to declare its objects, functions
  and powers to provide for the acquisition by
  that club of certain racecourses and the
  equipment thereof to provide for the
  discontinuance of the licences of certain
  racecourses to provide for the establishment of
  a Racing Compensation Fund in the Treasury to
  amend the Gaming and Betting Act 1912 and certain
  other Acts and for purposes connected therewith.
  
• PART 1 - PRELIMINARY
• 1 Name of Act and commencement
• (1) This Act may be cited as the Sydney Turf
  Club Act 1943 .
• (2) This Act shall commence on a day to be
  appointed by the Governor and notified by
  proclamation published in the Gazette.

14

• (Repealed)
• Definitions
• 3A. Notes
• PART 2 - SYDNEY TURF CLUB Division 1 -
  Incorporation and constitution
• 4. Constitution etc
• 5. Application of income etc
• 6. First members, directors and auditors

15

• Division 2 - Objects, functions and powers
• 7. Objects and functions of Club
• 8. Acting secretary
• Division 3 - Financial
• 9. Temporary accommodation
• 10. Power to borrow
• 11. Insurance, and payments out of funds
• Division 4 - (Repealed) None
• PART 3 - RACING COMPENSATION FUND 15-18.
  (Repealed)

16
PART 4 - GENERAL 19. Members defaulting in
payment of bets not eligible to continue as
members 20. Rights of member personal 21.
By-laws 22. Commencement of by-laws 23. Public
notification of by-laws 24. Offences etc 25.
Exclusion of undesirable persons 26. Directors
may fix tolls and charges 27. Power to let lands,
buildings or tolls 28. Inspection
17

• 29. Club to repair etc
• 30. Indemnity
• 31. (Repealed)
• 32. Regulations
• SCHEDULE 1
• Schedule 2 (Repealed)
• SCHEDULE 3

18
Three good sites for finding legislation

• http//www.comlaw.gov.au
• http//www.austlii.edu.au
• www.legislation.nsw.gov.au

19
The Section is the most important part of an Act

• Sections are sub-divided into
• SECTION s1
• SUB-SECTION (2)
• PARAGRAPH (a)
• SUB-PARAGRAPH (v)

20
TRADE PRACTICES ACT 1974 - SECT 52

• Misleading or deceptive conduct             
• (1)  A corporation shall not, in trade or
  commerce, engage in conduct that is misleading or
  deceptive or is likely to mislead or deceive.

21
Elements of s52(1)

• Corporation
• Trade or commerce
• Engage in conduct
• Misleading or deceptive

22
Case law

• Decision relevant only to the parties
• Ratio decidendi
• reason for decision
• this answers the legal question
  for decision
• creates the binding law

23
CASE CITATION

• PLAINTIFFS NAME v DEFENDANTS NAME (Civil
  case)
• OR
• R v PERSON CHARGED WITH OFFENCE/DEFENDANT OR
  ACCUSED
• (Criminal case)
• THEN

24

• YEAR in which the case was decided (in square or
  round brackets depending on the reporting system
  used)
• VOLUME in which the case has been reported
• ABBREVIATION of the particular report
• PAGE NUMBER at which the report begins, and
• PAGE NUMBER from which you are quoting (and name
  of judge)

25
Examples

• Behrens v Bertram Mills Circus Ltd 1957 2QB 1
• Australian Broadcasting Corporation v Lenah Game
  Meats Pty Ltd (2002) 208 CLR 199
• R v Brown 1994 1 AC 212

26
Structure of a case

• Headnote
• Note as to argument of the parties
• Judgement itself
• Either single, or multiple depending on how
  many judges sat in the matter
• The decision and any orders

27
Vocabulary

• Ratio decidendi
• Rationes decidendi
• Obiter dicta
• Obiter dictum

28
Mary v Tom

• Mary and Tom are neighbours. Mary erects a
  dividing fence between the properties made out of
  cedar inlaid with ivory. She then seeks to
  recover half of the cost of the fence from her
  neighbour Tom pursuant to the Dividing Fences
  Act. Tom declines to pay, as he didnt want a
  fence at all, certainly not a cedar fence as it
  clashes with his Tuscan landscaping, and doesnt
  want to pay for the ivory inlays as they are all
  on Marys side. Mary sues Tom. Tom defends the
  suit claiming that the fence Mary erected is not
  a dividing fence within the meaning of the Act.

29
DIVIDING FENCES ACT 1991 - SECT 6

• (1) An adjoining owner is liable, in respect of
  adjoining lands where there is no sufficient
  dividing fence, to contribute to the carrying out
  of fencing work that results or would result in
  the provision of a dividing fence of a standard
  not greater than the standard for a sufficient
  dividing fence.
• (2) This section applies whether or not a
  dividing fence already separates the adjoining
  lands.

30
Issue?

• What does sufficient dividing fence mean,
  within the Dividing Fences Act 1991?
• Decision?
• Tom must pay Mary for half the fence

31
Ratio decidendi

• Ratio
• The reason for the decision
• The answer to the question or issue of law raised
  by the facts put before the court
• The most important part of the case (cf section
  in legislation.)

32
Fact or law?

• The best way to tell the difference is to ask
  yourself, could a witness give evidence to answer
  this question?
• If yes it is an issue of fact.
• If no it is an issue of law.

33
Multiple rationes

• The ratio is the answer to each issue of law
  before the court
• Some cases raise multiple issues, and therefore
  stand as authority for more than one proposition.

34
How do we use the ratio?

• The common law is built on the concept that the
  same answer to the same legal question even if
  it arises in the context of a different set of
  facts can be applied to solve that question.
• The ratio from one case is applied to solve the
  same issue when it arises in different contexts.

35
Case reading exercises

• Merritt v Merritt 1970 2 All ER 760
• Thornton v Shoe Lane Parking 1971 2QB 163
• Pepper Finance Corporation v Williams 2008
  NSWSC 4

36
Case notes

• Case notes save time and help you refresh your
  memory
• Serve different purposes
• The case reading questions are a good guide to
  analyse a case and you can build your case note
  based on these questions

37

• 1.2 What is law?

• The Scope of Jurisprudence

38
What is law?

• Osborns Concise Law Dictionary tells us that
  law means
• an obligatory rule of conduct. The commands of
  him or them that have coercive power (Hobbes). A
  law is a rule of conduct imposed and enforced by
  the Sovereign (Austin). But the law is the body
  of principles recognised and applied by the State
  in the administration of justice (Salmond).
  Blackstone, however, maintained that a rule of
  law made on a pre-existing custom exists as
  positive law apart from the legislator or judge

39
Four answers

• NATURAL LAW
• POSITIVISM
• COMMON LAW
• LEGAL REALISM

40
NATURAL LAW

• Aristotle
• Cicero
• St Thomas Aquinas
• Finnis
• Dominated Western thought until the 18th Century
• Assertions about natural law were often the basis
  of the argument for individual or human rights
  and for imposing limitations on government
• Groundwork for the principles of international
  law

41
Cicero, De Re Publica
True law is right reason in agreement with
nature it is of universal application,
unchanging and everlasting. It summons to duty by
its commands, and averts from wrongdoing by its
prohibitions.It is a sin to try to alter this
law, nor is it allowable to repeal any part of
it, and it is impossible to abolish it
entirely.We cannot be freed from its obligations
by Senate or people, and we need not look outside
ourselves for an expounder or interpreter of it.
And there will not be different laws at Rome and
at Athens, or different laws now and in the
future, but one eternal and unchangeable law will
be valid for all nations and all times, and there
will be one master and ruler, that is, God, over
us all, for he is the author of this law, its
promulgator, and its enforcing judge. Whoever is
disobedient is fleeing from himself and denying
his human nature, and by reason of this very fact
he will suffer the worst penalties, even if he
escapes what is commonly considered punishment
42
Thomas Aquinas 4 types of law

• The Eternal Gods plan for the universe
• The Natural- that part of the eternal law which
  is discoverable by reason and which is to be
  found in the human mind
• The Human - the law created by humans on the
  basis of natural reason, (or positive law) and
• The Divine that law revealed in scripture.

43
The problem of unjust laws

• Lex iniusta non est lex an unjust law is not a
  law
• A just law
• is consistent with the requirements of natural
  law
• Does not exceed the authority of the law maker
• Imposes burdens on citizens fairly.

44
Finnis basic goods

• life (and health)
• knowledge
• play
• aesthetic experience
• sociability (friendship)
• practical reasonableness
• religion

45
POSITIVISM

• Jeremy Bentham
• John Austin
• HLA Hart
• Very influential over last 200 years and in
  current legal thinking a critique of common law
  and natural law thinking

46
Positivism

• Is and ought or is and should are separate
  questions.
• The existence of law is one thing its merit or
  demerit is another. Whether it be or be not is
  one enquiry whether it be or be not conformable
  to an assumed standard, is a different enquiry.
  A law, which actually exists, is a law, though we
  happen to dislike it, or though it vary from the
  text, by which we regulate our approbation and
  disapprobation. John Austin

47
Positivism

• Legal systems are created by (posited) by people
  rather than having some natural or metaphysical
  existence.

48
Law as a command Austin

• Features of a command
• a wish or desire of one rational being directed
  to another
• this intention is communicated
• if the command is not obeyed a punishment of some
  sort will result

49
Command theory

• Austin A law is a general command made by a
  sovereign
• Problem how could sovereigns who make commands
  be subject to the rule of law.
• Rejected by HLA Hart

50
HLA Hart

• Laws exist in two groups
• primary rules (substantive law eg road rules)
• Secondary rules (rules about rules eg
  constitutions, procedural rules.)
• rule of recognition.

51
COMMON LAW

• Not necessarily what we think of as common law
  today, but the foundational ideas of much of
  common law thought.
• Common law theory flowered in 16-18th centuries.
  
• Coke
• Blackstone
• Hale
• Predominantly English

52
Common Law

• Law is not something made either by king,
  parliament or judges, but rather is the
  expression of a deeper reality which is merely
  discovered and publicly declared by them. (cf
  Trigwells case)
• Precedent
• Written record, or reporting of law
• Judges declare law, they do not make law
• Individual judge is unimportant oracle of the
  law
• Law as artificial reason which must be learned

53
Blackstone

• judgesare the depositaries of the law the
  living oracles, who must decide in all cases of
  doubt, and who are bound by an oath to decide
  according to the law of the land. Their
  knowledge of that law is derived from experience
  and studyand from being long personally
  accustomed to the judicial decisions of their
  predecessors. And indeed these judicial
  decisions are the principal and most
  authoritative evidence.The judgement itself is
  carefully registered and preserved, under the
  name of records, in public repositories set apart
  for that particular purpose and to them frequent
  recourse is had, when any critical question
  arises, in the determination of which former
  precedents may give light or assistanceFor it is
  an established rule to abide by former
  precedents, where the same points come again in
  litigation as well to keep the scale of justice
  even and steady, and not liable to waver with
  every new judges opinion

54
Prohibitions del Roy Coke

• A controversy of land between parties was
  heard by the King, and sentence given, which was
  repealed, for this, that it did belong to the
  common law then the King said, that he thought
  the law was founded upon reason, and that he and
  others had reason, as well as the Judges to
  which it was answered by me, that true it was,
  that God had endowed his Majesty with excellent
  science, and great endowments of nature but his
  Majesty was not learned in the laws of his realm
  of England, and causes which concern the life, or
  inheritance, or goods, or fortunes of his
  subjects, are not to be decided by natural law
  reason, but by the artificial reason and
  judgement of law, which law is an act which
  requires long study and experience, before that a
  man can attain to the cognizance of it and that
  the law was the golden met-wand and measure to
  try the causes of the subjects and which
  protected his Majesty in safety and peace with
  which the King was greatly offended and said,
  that then he should be under the law, which was
  treason to affirm, as he said to which I said,
  that Bracton saith, quod Rex non debet esse sub
  homine, sed sub Deo et lege that the King is
  under no man, but under God and the law.

55
Common Law

• Change is possible through the incremental
  development of the common law by accumulated
  decisions, but a law which has stood the test of
  time is to be preferred to one which has simply
  been devised in a particular era.
• Law organically connected to the people it serves
  through custom and tradition

56
LEGAL REALISM

• Oliver Wendell Holmes (laid groundwork)
• The prophecies of what the courts will do in
  fact, and nothing more pretentious, are what I
  mean by law (This is the question which the bad
  man wants answered.)
• John Dewey (Dewey decimal system)
• Karl Llewellyn
• Jerome Frank
• 20th Century

57
Legal Realism

• The life of the law does not exist in the
  application of pre-existing rules to concrete
  cases, but rather in the development through
  experience of legal principles.
• The law then, is what the courts do, not what
  they did two centuries ago (except insofar as it
  is a guide to what they will do now), or an
  abstract set of doctrines.
• For realists, law is an inherently practical
  activity, which must be associated with the real
  world, as it is something which has a practical
  effect in the concrete world, and is not merely a
  body of abstract rules and doctrines.

58
Karl Llewellyn

• They view rules, they view law, as means to
  ends as only means to ends as having meaning
  only insofar as they are means to ends. They
  suspect, with law moving slowly and the life
  around them moving fast, that some law may have
  gotten out of joint with life.