Legal Studies Law and Society

LAW and SOCIETY - The Nature of Law

What is law?

Law is a set of rules that are seen as binding on the whole community. It is a set of rules
that can be enforced and is officially recognised.

Characteristics:
Laws are binding on the whole community.
Laws can be enforced eg. it is backed by punishments
Laws are officially recognised.
Law is discoverable.
Laws relate to the public interest.
Laws reflect rights and duties,

(a right is something to which a person is entitled, a duty is something that a

person is required to do or stop doing.)

Why are laws necessary?

Every society makes certain rules or laws that must be followed by people if they
are to live together.
If there are no laws, there is a condition of anarchy, (a state of lawlessness)

To maintain an orderly society, law has several functions:

Recognition of values and ethics.

Establishment of patterns of conduct or behaviour.
Provision of dispute settlement (courts).
Adaptation to change, laws need to change as society changes.

Influences on the law

Social Society has developed certain attitudes to antisocial behaviour, recent changes
have been made to the law in the areas of drink-driving, terrorism, gang rape, asylum

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 seekers, domestic violence and alcohol use. This has come about because of public
debate and outrage which prompted politicians to change laws.

Cultural Within a society there may be many cultures, the dominant culture usually
has a strong bearing on the types of laws that are enacted by its law-makers.
Moral Morality is right and wrong conduct, every person has a set of beliefs known as
a personal moral code. Individuals may feel that on some issues the law may conflict
with their own moral views.

Political Australia has a democratic system of government, political parties have their
own beliefs and philosophies about how society should run. This can cause political
parties to change or introduce laws to further their causes.

Economic Groups or individuals that posses economic power seek to use their power
to influence the legal system for their own benefit by donations to political parties,
lobby politicians etc.

Types of law

Public law is law that a affects everyone. It deals with disputes between the state and
the individual and with the law-making powers of government.

Administrative law, how government departments work and their rights and
duties towards private citizens.
Constitutional law, the powers that different levels of government have to make
laws eg. taxes.
Criminal law, behaviour that is seen as damaging to the community.
Industrial law, the relationship between employers and employees eg. wages.

Private law or civil law is law that deals with disputes between private citizens.

Contract law.
Torts, the behaviour of people that injures other people or their property.
Family law, divorce and parents and children.

Values are principles or attitudes that we hold as important.

Ethics are a set of moral beliefs governing behaviour, are concerned with choosing
between values, (what we ought to do, what is right, in a particular situation).

Some areas where the law reflects the values and ethics of society are:
Politics: eg. all people over the age of 18 must vote, this reflects the value of
democracy (right and obligation).
Sexuality: it is illegal to force another person to engage in sexual intercourse.
Economics: people who earn over a income must pay taxes, everyone should
contribute to the society as a whole.
Medicine: society has developed the technology to prolong and end life,
including birth technology.
In some areas the law does not intervene eg. adultery, abortion etc.

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 Law and justice

The idea of justice relates to the idea of equality and fairness, it is closely related
to values and ethics that people hold. The legal system can only be as just as the
society, it is difficult for law to be just as different people have different values
and different ethical beliefs.

Law, custom and culture.

A custom is a type of behaviour that has emerged over time and is followed by a group
by mutual consent.

Culture means the shared knowledge and way of thinking that give a group its distinctive
way of life, it is shown by the beliefs, customs, values, arts, technology and history of a
particular group.

Law grew out of customary behaviour and today law often embodies the custom of a
society.

Why do people obey the law?

People obey the law for many reasons, including:

A persons beliefs, values or customs.

Many laws regulate behaviour which would generally be agreed should be
regulated.
We are educated to think that certain behaviour should not be allowed.
Fear of punishment.
Fear of public shame or condemnation.
The general desire for protection, people want a legal system to protect them
and will thus comply with its restrictions.

People disobey the law for the following reasons:

The temptation to break the law is sometimes to strong.

Some people find it thrilling or exciting to break the law.
They do not see their illegal actions causing any real harm to anyone.
They believe that the law is wrong. Disobeying the law for this reason is called
civil disobedience.

Aboriginal and Torres Strait Islander Traditional Law

Aboriginal and Torres Strait Islander customary law was based on tradition, ritual
and acceptable modes of conduct.

Features:
Law was part of life, most laws related to marriage, child rearing, religion
and kinship.
Laws were tribal.
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 Ownership of land was by the tribal group.
Oral tradition, laws were passed down by word of mouth.
Secrecy, some laws were secret and only known by a few.
The Dreaming was the bases of laws about spirits of the land, animals,
plants and sky.
Kinship is a complex system of blood ties, which extends beyond one tribe.
Maintenance of order, if disputes occurred they were solved by all tribal
members or by relatives of the parties involved, through mediation and
conciliation.
Mediation and conciliation, Elders and influential members of the tribe
were involved in settling disputes.

Conciliation involved persuasion and negotiation, other times they would

decide on a suitable punishment.

Mediation usually involved the Elders who would meet and make decisions
on how to resolve a dispute.

Enforcement and sanctions, the punishment was usually enforced by

relatives of the wronged party or by ceremonial leaders.

Punishment could take the form of ridicule, to ostracism, to spearing and death by
sorcery.

Recognition of Aboriginal and Torres Strait Islander law.

Some of the areas of law that have been recognised in part in NSW are:

(a) Land rights The Native Title (NSW) Act 1994 recognised in a limited way the
peoples rights to land and water.

(b) Child custody: laws recognise the importance of Aboriginal culture and tradition in
nurturing of children.

Under the Children and Young Persons (Care and Protection) act 1998 (NSW) it
is compulsory to place Aboriginal children who are in need of care with
Aboriginal people.

The Family Court will take Aboriginality into account when deciding on the care
of children after a relationship breakdown.

Aboriginality is considered in matters of adoption.

(c) Aboriginal marriages are treated by law in NSW largely as de facto relationships.

(d) Criminal law: some types of recognition are:

Some Aboriginals have been punished under tribal law if their crime relates to
tribal custom.

Killing for tribal reasons may be allowed as a partial defence to murder, reducing
it to manslaughter.

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 There is some allowance for Aboriginality in matters of bail,
interrogation and sentencing.

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