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Rule of law � (as used by Western democratic legal systems)
ɨ A principle that requires the law to be known and applicable to all citizens
ɨ in other words
1. the law should be known with a certainty of application to all people that it may affect
Cheap College Papers on notes for legal studies
. the law should not be applied arbitrarily � it should apply to all people equally.
Common law
ɨ predominant feature � creation and application of law by judges � made in the courts, has rules that limit the way evidence is presented, who may talk, and in what order the case is presented
ɨ the way in which common law is used is determined by the b doctrine of precedent (series of rules that attempt to ensure consistency between judicial decisions)
Natural law
Doctrine of natural justice founded in the notion that logical reasoning may allow the determination of just, or fair, processes in legal proceedings. Eg. A person who makes a decision should be unbiased.
Public and Private Law
Public � constitutional law, administrative law, criminal law. Governs the conduct of government law-making and administrative institutions and provides guidance within domestic jurisdiction.
Civil law � the negligence of another or breach of contract. Member of public against other member for civil wrong.
Criminal law � prosecutions by the state of individuals for ‘breaches of the peace’.
Private law � law of contract or tort, evolves from the interactions of private actions.
Contract law � governs legal obligations and promises made between citizens eg Carlill v. Carbolic Smoke Ball Company
Tort law � trespass to property, damages for assault, negligence.
Equality
ɨ formal equality � everyone should be treated equally regardless of background, status of belief
ɨ equality of opportunity � equal treatment in terms of their access to employment and services
ɨ Equality before the law � implies that everyone is treated equally in their dealings with the law
ɨ Equality of outcomes � that the result of certain exercises will be equality
Justice
Good and fair according to universal principles.
Characteristics of a just law ( eg.s)
ɨ treats all people equally
ɨ utilitarian (ensures the greatest possible happiness for the greatest number of people)
ɨ can be evoked without undue delay
Administrative law
Deals with how government departments work, their rights and their duties toward private citizens
HUMAN RIGHTS
State Sovereignty
The power of the state to have control over it’s territory and subjects (state = nation). Important in human rights because it allows asylum seekers to gain political refuge, but also restricts actions of concerned states and allows human rights abuses to go unpunished.
The Three Generations of Human Rights
1st � civil and political
ɨ protect individuals from the arbitrary exercise of power by the state
ɨ listed in the ‘International covenant on civil and political rights 166’ � eg. Freedom from slavery
nd � economic, social and cultural rights
ɨ concerned with the material and cultural well being pof people.
ɨ Listed in the ‘International covenant on economic, social and cultural rights 166’
rd � solidarity rights
ɨ status in International law varies � but often collective in nature.
ɨ Eg. Right to development recognised in the ‘Declaration on the Right to development 186’
(Collective rights belong to a group of people eg. Self determination � right to govern themselves and determine their own future)
PROTECTION OF HUMAN RIGHTS
Internationally
ɨ the United Nations Charter 145 � has the promotion of human rights as its fundamental purpose
ɨ the International Bill of Rights � consists of the Universal Declarations on Human Rights 148 etc.
ɨ Customary International Law � prohibits against slavery, genocide and racial discrimination
Enforced by
ɨ charter based bodies � eg. Commission of Human Rights. Set up under United Nations Charter
ɨ treaty based bodies � established by international human rights treaties. Includes
- Human Rights Committee
- Committee against Torture (CAT)
Domestically
Main way Human Rights are protected is through Statue Law, eg. Sex Discrimination Act 184 (Cwlth)
Also
ɨ human rights treaties and international enforcement procedures
ɨ Australian Constitution � eg. Right to vote NO BILL OF RIGHTS
ɨ Non-interference � eg. Freedom of movement protected because the law doesn’t interfere
ɨ Common- law eg. Right of tenant to quiet enjoyment of a rented property
International and Domestic
Non government organisations
- publicise human rights
- provide unbiased human rights information
International Amnesty International
Domestic NSW Council for Civil Liberties
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