melsc
Premium Member
- Joined
- Aug 17, 2004
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- HSC
- 2005
Q.1: To what extent is law influenced by the society in which it operates.
The extent to which law is influenced by the society in which it operates is evident through the examination of legal principles, case law, legislation, journal articles, media reports, treaties and other documents. Society’s influence as a combination of the following aspects moral, cultural, political and economic influences.
The first indication that law is influenced by the society in which it operates is the relationship between rules, laws and customs. Custom are practiced by a group in society over a period of time, and if they gain greater acceptance they can become a rule, if the majority of society abides by this rule it can then become a law, highlighting the reflection of societies influence on law and law makers.
The Franklin Dam Case shows that the law and decisions of parliaments can be swayed by society. In this case the majority of society (mainland Australian and politicians) persuaded the government to make a decision to favor the beliefs of the majority of society over the beliefs of the minority of society (i.e. the residents of Tasmania).
Society’s changing attitudes to women and other disadvantaged groups is reflected in many pieces of legislation – specifically Anti-Discrimination legislation, including: Anti-Discrimination Act 1977, Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) and Anti-Discrimination (racial vilification) Act.
Similarly cases such as the Wik and Mabo Cases and the introduction of the Native Title Act 1993 highlight a significant change in society’s attitude towards people and these reflections in both the statute and common law signify the reform of law as the social codes change.
In addition to the above legislation, amendments to the Sentencing Act have been made to accommodate society’s changing attitudes towards “Battered Women’s syndrome” and other disadvantages convey the legal systems response to society’s changing attitudes.
The recent attempts to change Marriage Legislation aiming to prevent homosexuals and lesbians from getting their marital status recognized in Australian courts by getting married overseas and then bringing case to Australian courts. This is an example of both social and religious beliefs.
The Shaw v. Director of Public Prosecutions (1962) AC 220 (Ladies Director Case) demonstrates the moral influences on the law and its creators – this is and example where an act has been seen by society as immoral and the law has acted.
Political influences are evident in the activities of lobby groups, trade unions, non-government organisations and primarily by politicians, these groups usually act in their best interests and influence the law to their own advantaged or that favoured by the majority of society to maintain their position of power.
Economic influence is mainly through the government’s fiscal policy, for example the interest rate increases to stop inflation and soaring house prices as well as debt.
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Q.2 ~ What characterises a just law?
It is very difficult to determine if a law is “just” however for it to be generally considered to be “just” it should have numerous generally accepted characteristics.
It should treat all people equally. Not only should all people be equal before the law but they should also have equal opportunity and an equal outcome 9this is often not the case).
The law should be based on generally held religious or ethical precepts. The common law legal system is the result of various influences throughout history containing many religious and moral viewpoints of different times.
The law should be Utilitarian – that is that the law attempts to ensure the greatest possible happiness for the greatest number of people.
A just law should stress consensus and social cohesion above all. This enforces the notion of a democracy in that democratic processes provide all citizens within the state with the opportunity to develop or create the law through their representatives. Also democracy requires a majority to introduce a law.
The law should take into account mitigating circumstances. Though the law treats everyone equally; it should make allowances for certain mitigating circumstances.
The law should aim to redress inequalities. Affirmative Action statutes such as the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) provide equality of outcome – which cannot be achieved through equality through the law.
The law should leave people free to the extent that people do not break the law. That is, only where people commit an offence or breach an agreement or are negligent will the law will impose sanctions upon them limiting their freedom. The law, but hardly just an editorial published December 6th 2004 Sydney Morning Herald discusses the decision if the highcourt regarding aslylum seekers, where they will not be accepted by any other country “The court decided that anyone in this situation could be held in detention indefinitely”.This media report evaluates if this law is “just” in terms of restricting peoples freedom a violation the their human rights.
Just laws take account of limitations in material resources. Legislation should promote sustainable development ensuring that moderate use of material resources including water, people, air, energy, employment positions, hospitals, schools and finances. Legislation must recognise these limitations when introducing laws which allow these resources to be moved or used.
A just law should be invoked without undue delay. A just law should deal with a legal problem or dispute as soon as possible. Evidence can be less credible as people’s memories fade if too much time is taken hear a case. Also in criminal matters, an accused person’s freedom may be restricted while they are waiting for the matter to be heard.
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Q.3 ~ Does formal equality before the law hide institutionalised inequality?
Formal equality is the equal treatment of all people (in certain defined circumstances) despite background, social/economic status or personal beliefs. However formal equality does not however ensure equality of outcome or the prevention of institutionalised inequality. Treating each person exactly the same is fair in that each person is receiving equal treatment regardless of their background etc…however the outcome of this may not be fair or equal. For example two women charged with the murder of their respective husbands, one committed this murder for financial gain, the other committed the crime due to long term physical and mental abuse from her husband – if the women are both treated as women charged with the murder of their husbands, formal equality has been achieved as the women are treated equally before the law – however the second woman’s abuse was not taken into account –therefore formal equality has hidden institutionalised equality as the treatment seems equal. A response to this is the provision of “Battered Women’s syndrome” in the Sentencing Act. This was first accepted in the case of Runjanjic &Kontinnen (1991).
Another example is the sanction of fines, if socioeconomic status is not recognized institutionalized inequality still exists, even though formal equality is met through the consistent application of fines. For example, fining a millionaire $5000 for a crime compared to fining another (who committed the same crime) who earns a small income the same fine is formally equal in that they both have received the same fine for the same crime, however the fine would have little impact on the millionaire and a devastating impact on the other person.
Formal equality also promotes institutionalised inequality in that it does not allow for a persons background or mitigating circumstances be revealed. This means that in many cases a defendant cannot afford counsel or specialist counsel and therefore is not receiving a fair and equal defence. Though legal aid is provided for some, some people are not eligible, yet cannot afford their own counsel (or competent counsel). Not allowing socioeconomic status to be recognised means that the defendant fails to receive an equal trial to that of the prosecution or plaintiff.
Similarly, someone who has received little education, or has language difficulties (under formal equality) is treated equally as they are treated like everyone else, however, they are disadvantaged in that they may not understand the proceedings or be ignorant of the law, not taking this into consideration under formal equality means that equality of outcome and opportunity have not been met.
This concept was explored by Australian Law Reform Commission (ALRC)'s Equality before the law reports (ALRC 67 and ALRC 69 Parts I and II) where it quotes “Equality before the law means more than merely formal equality or equal treatment. True equality requires a legal system in which women's needs and experience are understood. Law cannot work in a vacuum. It must take account of the social, economic and political environment in which women live if equality before the law is to exist” highlighting that formal equality is not the only form of equality and does not ensure equality before the law.
The extent to which law is influenced by the society in which it operates is evident through the examination of legal principles, case law, legislation, journal articles, media reports, treaties and other documents. Society’s influence as a combination of the following aspects moral, cultural, political and economic influences.
The first indication that law is influenced by the society in which it operates is the relationship between rules, laws and customs. Custom are practiced by a group in society over a period of time, and if they gain greater acceptance they can become a rule, if the majority of society abides by this rule it can then become a law, highlighting the reflection of societies influence on law and law makers.
The Franklin Dam Case shows that the law and decisions of parliaments can be swayed by society. In this case the majority of society (mainland Australian and politicians) persuaded the government to make a decision to favor the beliefs of the majority of society over the beliefs of the minority of society (i.e. the residents of Tasmania).
Society’s changing attitudes to women and other disadvantaged groups is reflected in many pieces of legislation – specifically Anti-Discrimination legislation, including: Anti-Discrimination Act 1977, Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) and Anti-Discrimination (racial vilification) Act.
Similarly cases such as the Wik and Mabo Cases and the introduction of the Native Title Act 1993 highlight a significant change in society’s attitude towards people and these reflections in both the statute and common law signify the reform of law as the social codes change.
In addition to the above legislation, amendments to the Sentencing Act have been made to accommodate society’s changing attitudes towards “Battered Women’s syndrome” and other disadvantages convey the legal systems response to society’s changing attitudes.
The recent attempts to change Marriage Legislation aiming to prevent homosexuals and lesbians from getting their marital status recognized in Australian courts by getting married overseas and then bringing case to Australian courts. This is an example of both social and religious beliefs.
The Shaw v. Director of Public Prosecutions (1962) AC 220 (Ladies Director Case) demonstrates the moral influences on the law and its creators – this is and example where an act has been seen by society as immoral and the law has acted.
Political influences are evident in the activities of lobby groups, trade unions, non-government organisations and primarily by politicians, these groups usually act in their best interests and influence the law to their own advantaged or that favoured by the majority of society to maintain their position of power.
Economic influence is mainly through the government’s fiscal policy, for example the interest rate increases to stop inflation and soaring house prices as well as debt.
~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*
Q.2 ~ What characterises a just law?
It is very difficult to determine if a law is “just” however for it to be generally considered to be “just” it should have numerous generally accepted characteristics.
It should treat all people equally. Not only should all people be equal before the law but they should also have equal opportunity and an equal outcome 9this is often not the case).
The law should be based on generally held religious or ethical precepts. The common law legal system is the result of various influences throughout history containing many religious and moral viewpoints of different times.
The law should be Utilitarian – that is that the law attempts to ensure the greatest possible happiness for the greatest number of people.
A just law should stress consensus and social cohesion above all. This enforces the notion of a democracy in that democratic processes provide all citizens within the state with the opportunity to develop or create the law through their representatives. Also democracy requires a majority to introduce a law.
The law should take into account mitigating circumstances. Though the law treats everyone equally; it should make allowances for certain mitigating circumstances.
The law should aim to redress inequalities. Affirmative Action statutes such as the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) provide equality of outcome – which cannot be achieved through equality through the law.
The law should leave people free to the extent that people do not break the law. That is, only where people commit an offence or breach an agreement or are negligent will the law will impose sanctions upon them limiting their freedom. The law, but hardly just an editorial published December 6th 2004 Sydney Morning Herald discusses the decision if the highcourt regarding aslylum seekers, where they will not be accepted by any other country “The court decided that anyone in this situation could be held in detention indefinitely”.This media report evaluates if this law is “just” in terms of restricting peoples freedom a violation the their human rights.
Just laws take account of limitations in material resources. Legislation should promote sustainable development ensuring that moderate use of material resources including water, people, air, energy, employment positions, hospitals, schools and finances. Legislation must recognise these limitations when introducing laws which allow these resources to be moved or used.
A just law should be invoked without undue delay. A just law should deal with a legal problem or dispute as soon as possible. Evidence can be less credible as people’s memories fade if too much time is taken hear a case. Also in criminal matters, an accused person’s freedom may be restricted while they are waiting for the matter to be heard.
~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*
Q.3 ~ Does formal equality before the law hide institutionalised inequality?
Formal equality is the equal treatment of all people (in certain defined circumstances) despite background, social/economic status or personal beliefs. However formal equality does not however ensure equality of outcome or the prevention of institutionalised inequality. Treating each person exactly the same is fair in that each person is receiving equal treatment regardless of their background etc…however the outcome of this may not be fair or equal. For example two women charged with the murder of their respective husbands, one committed this murder for financial gain, the other committed the crime due to long term physical and mental abuse from her husband – if the women are both treated as women charged with the murder of their husbands, formal equality has been achieved as the women are treated equally before the law – however the second woman’s abuse was not taken into account –therefore formal equality has hidden institutionalised equality as the treatment seems equal. A response to this is the provision of “Battered Women’s syndrome” in the Sentencing Act. This was first accepted in the case of Runjanjic &Kontinnen (1991).
Another example is the sanction of fines, if socioeconomic status is not recognized institutionalized inequality still exists, even though formal equality is met through the consistent application of fines. For example, fining a millionaire $5000 for a crime compared to fining another (who committed the same crime) who earns a small income the same fine is formally equal in that they both have received the same fine for the same crime, however the fine would have little impact on the millionaire and a devastating impact on the other person.
Formal equality also promotes institutionalised inequality in that it does not allow for a persons background or mitigating circumstances be revealed. This means that in many cases a defendant cannot afford counsel or specialist counsel and therefore is not receiving a fair and equal defence. Though legal aid is provided for some, some people are not eligible, yet cannot afford their own counsel (or competent counsel). Not allowing socioeconomic status to be recognised means that the defendant fails to receive an equal trial to that of the prosecution or plaintiff.
Similarly, someone who has received little education, or has language difficulties (under formal equality) is treated equally as they are treated like everyone else, however, they are disadvantaged in that they may not understand the proceedings or be ignorant of the law, not taking this into consideration under formal equality means that equality of outcome and opportunity have not been met.
This concept was explored by Australian Law Reform Commission (ALRC)'s Equality before the law reports (ALRC 67 and ALRC 69 Parts I and II) where it quotes “Equality before the law means more than merely formal equality or equal treatment. True equality requires a legal system in which women's needs and experience are understood. Law cannot work in a vacuum. It must take account of the social, economic and political environment in which women live if equality before the law is to exist” highlighting that formal equality is not the only form of equality and does not ensure equality before the law.
