law week 6

• Definition of Law


  A command, which emanates or originates from the sovereign and is capable of being sanctioned
• Main theories of law

  • Positivist view of law/legal positivism
  • Realist view of law/legal realism
  • Sociological view of law/historical school
  • Naturalist view of law/legal anthropology
  • Critical legal theorist view of law/critical legal scholarship
• Purpose of Law


  • Law legitimates the exercise of power
  • Law can be used to regulate the welfare of people
  • Law can be used to regulate property rights and interests
  • Law may be able to be used to change values
• Moral Thinking


  Asking questions about right or wrong, part of how we react as human beings, can be subjective and based on emotional reactions rather than reason
• Ethical Thinking


  Questions about appropriate standards of conduct or behaviour, based on custom, religion, or own imagination, to achieve a just solution by considering all parties' positions without prejudice
• Legal Thinking


  Questions about legal rules of conduct or behaviour, how do rules apply to facts, usually not about what law should be
• Relationship between law & justice

  Moral and ethical thinking form our opinions of what justice is, legal thinking looks at how legal rules apply - legal rules may not be the same as what we think is fair or just
• Consequentialism


  A theory of ethics that judges the morality of an action based on its consequences or outcomes
• Types of justice


  • Distributive justice
  • Procedural justice
  • Retributive justice
  • Restorative justice
• Distributive justice


  Concerned with the fair and proper distribution within a group or community of things such as wealth, resources and power
• Procedural justice


  Achieved if a person receives a fair hearing or trial, based on the idea that people are more likely to accept decisions or outcomes that they perceive as fair
• Retributive justice


  The 'proper' response by the state to a wrongful act, concerned with the appropriate responses to criminal and other harmful behaviour
• Restorative justice


  Concerned with restoring or healing the victim and reintegrating the offender into the community, in contrast to retributive justice which is concerned with punishment
• Legal Problem Solving - IRAC

  1. Identification of relevant issues

  2. Explanation of relevant rules

  3. Application of rules to fact scenario

  4. Logical and persuasive conclusion supported by reasoning