7. Who decides law and justice issues

• COMMON LAW & CIVIL LAW TRADITIONS

  • A legal tradition is a set of deeply rooted attitudes about the nature of law, the role of law in society, and how a legal system should be organized and operated. It helps us understand how law is created, applied, studied, and taught.
  • Currently, there are two main legal traditions: 1) Common Law in the UK, USA, Commonwealth countries, and the South Pacific. 2) Civil Law (or Continental European Law) in the EU.
• Common law: relies more on non-codified principles of common law and equity developed by judges and courts in England over several centuries

  
  

  Judges and judge-made law: central elements of common law

  
  

  Civil law: oldest and most widely distributed legal tradition
• OTHER TYPES OF LEGAL SYSTEMS

  1. Asian legal systems (Hybrid Legal Systems)
  2. Shari’ based legal systems in Islamic countries (Quran)
  3. Halakha Laws (Judaism)
  4. Canon Laws (Christian)
• CUSTOM/ CUSTOMARY LAW


  • Customs are the established practices, habits, and usages of different local areas in a country.
  • All village residents must respect and follow these practices as part of their social duties.
  • Customs are similar to laws. For example, the common law of Britain is based on customs and heavily relies on the traditional development of laws outside of those made by parliament.
  • In Britain, local customs were only recognized as a form of law if they had been in use for a very long time, were certain, and reasonable.
• SOURCES OF LAW IN THE SOUTH PACIFIC

  1. Constitution

  • it is the 'supreme' law and is also called the foundation law of a country
  • WHY? - A country's constitution establishes its main institutions: the legislature, judiciary, and executive. It also sets out the rules and principles of a self-governing political entity and outlines the rights and freedoms of individuals.
• 2. Legislation

  • statutes, acts, or regulations, usually made by parliament
  • Can also from other sources: adopted from imperial countries or colonial authorities
  • laws made during colonial times that have been continued in after independence
• 3. Subsidiary legislation

  • When Parliament makes a law, it can give other groups the power to create specific rules related to that law. Parliament delegates its power to make these rules to other groups, like commissions or councils. These rules are called subsidiary legislation or delegated legislation. They are part of the overall body of legislation, even though they do not need approval from Parliament.
  • Examples of these laws: regulations, orders, by-laws, rules under that statute
• 4. Court decisions (case laws). What do courts do?

  • Courts can declare laws invalid
  • They can limit how laws are understood
  • Protecting civil rights means making sure laws don't violate the Bill of Rights (Constitution)
  • Courts interpret and apply laws
  • They also settle disagreements between private parties
• SOVEREIGNTY & LAW: WHO DECIDES LAW?

  • Sovereignty has many meanings. It means a political entity has the recognized right to control its affairs. It also means the right of a group of people to control a specific area of land. This control is shown through internal and external actions.
• Sovereign and power: History

  • In the British tradition, sovereignty used to reside with the King or Queen as God’s representative on earth. Thus, the power of the King or Queen - also called the sovereign was originally absolute. The sovereign could do whatever he or she wanted, and it was the law that whatever he or she did could never be wrong.
• Sovereign and power: Changes

  • Changes began with Magna Charta in 1215, a British legal document that says parliament also had some sovereign rights in making laws.
  • Making of future laws required the approval of parliament and that ordinary people had legal rights that the sovereign could not take away, without parliament’s approval.
  • As a result, we now say that sovereignty resides with parliament and that the people elect the members of the various parliaments throughout the democratic world.
• Parliamentary sovereignty

  • Most important principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law.
  • Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.
• THE COURTS


  • In deciding cases judges are bound to apply any legislation to the facts to reach a decision. But often this legislation needs to be interpreted to decide exactly what particular words mean, and sometimes there may not be any legislation to provide the legal rules.

  What happens then?

  • Judges are bound by previous legal precedents on the same matter. However, with hundreds of years of legal history, there are often multiple rules to choose from.
  • In statutory interpretation, courts are free to give law any interpretation they wish.
  • From a realist perspective courts are making law!
• So do judges really follow the law, or is this just a set of guidelines that they can manipulate for their own purposes?
• Criticism

  • People who tend to use the courts most are those with money = and can afford the best lawyers. As a result, the decisions of the courts are biased due to the matters that are presented in court and which side can afford the best lawyer
  • Judges are often educated abroad, not aware of the needs of their society
  • Judges are “only people” so can be lobbied/influenced / biased
• Reality

  • In reality, judicial decision-making is not quite as chaotic as some legal realists would have us believe.
  • The appeal system means that judicial decisions at lower levels can be checked.
  • At the final level of appeal, a panel of judges (usually 3 or 5) sit, so any individual judge’s personal biases should not dominate the final decision.
• Conclusion

  • Laws are man-made.
  • Whilst lawmakers usually strive for ideals of "justice" the content of laws often reflects particular interests.
  • This is not a good thing or a bad thing, but it is just part of the nature of law.
  • It also means that, whenever new laws are being created, there is a lot of scope for debate.