Classification of Law

Legal Studies – Midcourse Study Notes

Classification of Law

Public Law

Public laws, referred to as social norms, are those laws that set the general standard of behaviour expected by a society. Public Laws include criminal law, administrative law and constitutional law.

Criminal Law

Criminal laws are usually established by statute, although some cases have established criminal law through common law. It is considered public law because when a person breaks a criminal law they are said to be harming all members of society. Hence, the case is brought by the police and prosecution on behalf of society. There are several broad classifications of criminal laws. They are:

• Crimes Against Persons – these crimes involve injury or threat of injury to another person
• Crimes Against Property – These crimes involve the theft or damage to another person’s property. Much of Australia’s law relates to this type of crime.
• Crimes Against the State or Sovereign – These involve crimes that damage the country and its people.
• Public Order Offenses – These crimes disrupt the activities of a society.
• Traffic Offenses
• White-Collar Crimes – This covers a wide variety of crime usually committed by professional people.
• Drug Offenses – These are offenses against the state involving prohibited narcotics.

Administrative Law
Administritive laws regulate the operation of the government and its various departments.

Constitutional Law
A constitution is a legal document outlining the powers and operation of the government. In a democratic society governments and its members must abide by the rules established in the constitution or they will be dismissed from office.

Private or Civil Law
Private law is often referred to as civil law and deals with legal relations between individuals and organisations. The key difference between private and public law is the role of the individual. In private law the individual brings the action and is called the Plantiff. There are three main areas of civil law:

• Contract Law - A contract is a legally binding agreement between two or more parties. Contract law stipulates that in order for a contract to be valid and therefore enforceable there must be:
• An ‘invitation to treat’
• An offer
• Consideration
• Acceptance
• Another feature of contract law is that it requires parties who enter into it a contract do so in good faith, which means that the parties will act fairly and not try and deceive the other party.
• Property Law - Anything that can be bought sold is considered property. There are numerous laws governing the way that property transactions are to take place. Insurance is a key aspect of property law.
• Tort Law - The law of torts involves civil wrongs; they are divided into four key areas:
• Tort of Negligence – Very common tort; revolves around the concept of ‘duty of care'.
• Tort of Nuisance – Involves one person interfering with another’s rights. Many cases that are heard in community justice centres involve this tort.
• Tort of Defamation
• Tort of Trespass

Criminal and Civil Court Procedures
Personnel:

• Judges and Magistrates – Preside over courts, they are legally qualified professionals. Judges sit in intermediate and superior courts and their role is to adjudicate in cases. The judge is also required to issues sentences and rulings. A magistrate sits in the inferior courts and determines cases, issues rulings and sentences.
• Barristers – They provide legal advice and present their clients case in court.
• Solicitors – Usually the first person that someone who is seeking legal advice will approach. Mostly they make no appearance in courts. Main duties include the preparation of wills, family law issues and the drawing up of legal documents. Main role is to prepared the case or brief for a barrister.

Procedures for Criminal Cases
Two parties are referred to as prosecutor and defendant. Prosecution represents the community and in trials is referred to as the crown. Usually has a jury of 12 people, who’s role it is to determine the case. The Judge role is to advise the jury and to deal with any questions of the law. The jury must be convinced beyond reasonable doubt. The burden of proof lies on the prosecution. If the defendant is found guilty, the judge will order a sentencing hearing where the judge will determine the sentence to be given.

Procedures for Civil Cases
Two parties are known as plaintiff and defendant. The process begins with a statement of claim, which is then served and responded to with a statement of defence. If the dispute is not resolved, it then goes to trial. The judge then awards relief if in favour of plaintiff, depending on the balance of probabilities.

Common and Civil Law Systems

• Common Law Systems - Key feature is the ability of judges to make laws, which is limited to only where there is a gap in statue law. It developed from England and its common law.
• Civil Law Systems - The Roman civil law system has no room for judges to make laws and it makes use of the inquisitorial system (the judges investigate rather than have the evidence show to them by each side in the adversarial system).