Who makes the law?
What is the law?
The law is the set of rules which members of a given society must abide by in order to live freely. If you break the rules, you can be removed from society (put in prison) or issued with some other form of punishment (banned from driving, community service, etc.)
Separation of powers
Everyone is supposed to be treated equally in the eyes of the law, no matter how powerful, rich or influential they are. In other words, nobody is above the law. The notion of separation of powers
means that the executive arm of government (which includes politicians) is separate from the judiciary (the law courts), so even the government can be taken to court and face sanctions for breaking the law. You can read more about separation of powers in the course 'How are decisions made in my life?'
Anarchy
If there was no legal system, we would be in a state of anarchy or lawlessness, where everyone could act without official consequences. In a state of anarchy, acceptable behaviour might
differ within or between different community groups.
Most of the time, we are not aware of the rule of law. It's only when something goes wrong and jolts us out of the daily routine that we become aware of how the law affects us.
Anarchy (5 coins)
Answer the following questions on the 'Anarchy forum', in at least two sentences each:
- On balance, do you think the rule of law is a good thing? Or would you prefer to live in anarchy? Why?
- Would you behave differently if there were no laws? If so, how?
Statute
There are two sources of law. The first is statute, which is when the government passes an Act of Parliament that dictates how a situation should be treated in society. Statutes are long, wordy
documents and can be open to interpretation in their application to a given situation. For an explanation of how this works, watch this video from the Parliament of Victoria:
Playing time: 2:38
Watch this video for more insight into how the parliamentary system works and how candidates are selected:
Playing time: 6:29
Proportional representation (5 coins)
The purpose of the Senate is to make sure the House of Representatives draws up sensible legislation, ensuring it doesn't put forward bills that could be seen as unbalanced. For this reason, members of the
Senate are elected by proportional representation. Do you think this is a good idea or does it limit the democratic power of the House of Representatives and the Prime Minister? This is an interesting discussion to have, although ultimately there's
no right or wrong answer. Post your thoughts on the 'Senate forum'. Be sure to write at least two sentences.
Precedent
The second source of law is precedent. This is when the law courts decide on how the statutes should be interpreted and applied to each individual situation brought before them. After a court gives a judgement, this sets a precedent
for how the courts should judge such matters in the future. The next video explains how the courts work in New South Wales. The courts work similarly in most other states.
Playing time: 8:31
Precedent (5 coins)
Do you think the circumstances of one case and the judges sitting on it should have the right to set precedent for every subsequent case? Again, there's no right or wrong answer here. When considering your answer, think about
when you've been made to do something because that's how others did it before. Did it seem fair? Share your thoughts on the 'Precedent forum', in at least two sentences.
Criminal versus civil law
There are two types of law:
- Criminal law: When the state prosecutes someone for breaking the law with regards to how individuals should behave generally. Examples include murder, theft, and fraud.
- Civil law: When a party (e.g. an individual or organisation) initiates legal action against another party. For example, a landlord might bring a tenant to court for breaching the terms of the lease and damaging their property.
Crimes are committed against society, whereas civil disputes occur between two parties. Some situations can be both civil and criminal. Driving while under the influence of alcohol is a criminal offence, for example, while crashing into someone's property
could warrant a civil claim to cover the cost of repair. Watch this video for more information on the difference between criminal and civil law:
Playing time: 7:14
Criminal versus civil law (5 coins)
Complete the 'Criminal versus civil law quiz' by identifying which offences are civil and which are criminal.
Punishments
If you break the law, you will be punished in one way or another. But how do we decide what punishment fits which crime? This video looks at the different ways to choose a suitable punishment:
Playing time: 6:40
Retributive justice versus restorative justice
When deciding on a punishment, there are two main approaches:
- Retributivism: The basic idea is that if someone causes suffering, they should be made to suffer in equal proportion. This is a traditional approach to punishment, dating back to the nearly 4000-year-old Code of Hammurabi. The code is a
legal document from ancient Babylonia that features the notion of proportional punishment - 'an eye for an eye'.
- Consequentialism: Consequentialism is an approach to justice where punishments are decided with reference to their consequences i.e. their outcomes. Consequentialism involves attempting to reduce crime by reforming offenders in order to
reduce recidivism and by deterring people from committing crime in the first place.
The Code of Hammurabi (c. 1754 BC)
Punishment (5 coins)
Do you believe it's morally right to punish people? Why or why not? If you do, how should people decide on an appropriate punishment? Do you tend towards consequentialism (achieving a good end) or retributivism (criminals
deserve to suffer)? Discuss your ideas in the 'Punishment forum'. Be sure to write at least four sentences.
Capital punishment
Death is arguable the most extreme form of punishment. Australia does not have the death penalty, but some states in the US still do. In the next video, people who have worked on death row present arguments both for and against
the death penalty:
Playing time: 8:05
The death penalty in Australia (5 coins)
In the video above, Robert Blecker argues for the death penalty, while Stephen Greenwald argues against it. Who do you agree with and why? Do you think the death penalty should be brought back to Australia?
Why or why not? If you support the death penalty, when should it be used and how? Post your views on the 'Death sentence forum', in at least four sentences. Feel free to start a new thread or respond to someone else's.
As always, there is no right or wrong answer. You can counter other people's arguments, but you must be polite and focus on ideas rather than the people presenting them.
Corporal punishment at school
Corporal punishment involves physical violence. It's mostly banned in Australia, though some states technically still allow it. In some parts of the world, schoolchildren are regularly subject to canings, beatings,
and other forms of physical violence. In this video, a professor discusses the impact of corporal punishment:
Playing time: 7:40
Corporal punishment poster (5 coins)
According to the video above, corporal punishment fails to bring about the desired change in behaviour – so why does it continue?
- Design a poster to stop violence against children that could be used in countries where corporal punishment is still allowed. You can design your poster on paper and scan it in, or you can design it using digital image editing software. You can read
about how to do so here.
- Add your poster to the main page of the 'Poster Wiki'.
Corporal punishment at home (5 coins)
Although corporal punishment is mostly banned in Australian schools, there is a separate debate about whether parents should have the right to smack their children. Do you think parents should have the right to smack their children? Why or why not? Can smacking be beneficial, or not? If you support corporal punishment, how and when do you think it should be used? Discuss this in the 'Corporal punishment at home forum'. Your response should be at least three sentences long.
Damages (5 coins)
In a civil case, the party who has been wronged can be awarded 'damages' as a form of monetary compensation. If someone wrongs you and it costs you money in some way, do you think the damages should put you back to where you were before the wrong, or should you be better off than you were before? Why? Explain and justify your answer in
the 'Damages forum'. Be sure to write at least three sentences.