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Question 16 (10 marks) (a) Outline the differences between the common law system and the civil law system - HSC - SSCE Legal Studies - Question 16 - 2004 - Paper 1
Question 16
Question 16 (10 marks) (a) Outline the differences between the common law system and the civil law system. Question 16 continues on page 10 Mar... show full transcript
Worked Solution & Example Answer:Question 16 (10 marks) (a) Outline the differences between the common law system and the civil law system - HSC - SSCE Legal Studies - Question 16 - 2004 - Paper 1
Step 1
Outline the differences between the common law system and the civil law system.
Answer
The common law system and the civil law system are two principal legal traditions. Here are their primary differences:
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Source of Law:
- Common Law: It relies heavily on judicial precedents and case law. Decisions made by higher courts become binding for lower courts.
- Civil Law: The primary source of law is codified statutes and legislation. Judges apply the code and interpret it rather than creating law through precedents.
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Judicial Role:
- Common Law: Judges play an active role in interpreting law and can create new legal principles through rulings.
- Civil Law: Judges have a more passive role, focusing primarily on applying the statutes to the cases before them.
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Legal Procedures:
- Common Law: Generally adversarial where parties present their cases before an impartial judge or jury.
- Civil Law: More inquisitorial, involving the judge taking an active role in investigating and determining the outcome of cases.
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Flexibility:
- Common Law: More adaptable as it evolves with the decisions of courts.
- Civil Law: More rigid, with strict adherence to written codes.
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Legal Education:
- Common Law: Focuses on case law and judicial decisions.
- Civil Law: Emphasizes the study of statutes and legal codes.
Step 2
With reference to the characteristics of a just law, explain the existence of institutionalised inequality in the Australian legal system.
Answer
Institutionalised inequality within the Australian legal system can be explained through the lens of the characteristics of a just law, which include:
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Fairness: A just law must ensure equal treatment for all individuals. However, institutionalised inequality often reflects systemic biases that adversely affect marginalized groups, indicating that not all individuals are treated equally under the law.
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Accessibility: Just laws should be easily accessible to all people. In Australia, barriers such as socioeconomic status, language, and education can hinder access to legal resources and representation, resulting in an uneven playing field.
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Accountability: Justice relies on the principle that laws are enforced uniformly. Nonetheless, institutional barriers may lead to unequal enforcement and accountability, where certain groups face harsher penalties or discriminatory practices.
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Representation: A just legal system requires that the legal framework reflects the population it serves. In Australia, underrepresentation of Indigenous people and other minority groups in the legal profession and judiciary can perpetuate inequalities within legal outcomes.
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Transparency: Laws must operate transparently to maintain public trust. However, the complexity of legal processes can obscure justice, particularly for those without adequate resources to navigate the system, further entrenching inequalities.
In summary, while the Australian legal system aspires to uphold the characteristics of just laws, institutionalised inequalities point to significant gaps in its execution.