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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. (b) With reference to the characteristics of a just law,... 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, which originated in England, relies heavily on case law and judicial precedents, meaning that decisions made in previous cases influence future legal interpretations and rulings. This system emphasizes the role of judges in shaping the law and often follows an adversarial process, where two opposing sides present their case to an impartial judge or jury.
In contrast, the civil law system, prominent in many European countries, is based on comprehensive statutes and codes that serve as the primary source of law. Judges in civil law jurisdictions play a more limited role, primarily applying codified law rather than interpreting precedents. The civil law system tends to follow an inquisitorial process, where judges take a more active role in investigating the facts of the case.
Additionally, the common law system may allow for more discretion and flexibility in legal outcomes, while the civil law system emphasizes strict adherence to written laws.
Step 2
With reference to the characteristics of a just law, explain the existence of institutionalised inequality in the Australian legal system.
Answer
A just law is typically characterized by equality, fairness, and the protection of human rights. In the context of the Australian legal system, institutionalized inequality can arise from various systemic issues, including socio-economic disparities, bias in legal interpretations, and uneven access to legal resources.
One significant factor contributing to institutionalized inequality is the socio-economic status of individuals, which often affects their access to quality legal representation and information. Furthermore, certain marginalized communities may face discrimination within the legal framework, undermining the principle of equality before the law.
Moreover, laws that inadvertently favor certain groups can perpetuate inequality, creating a gap in legal protection for vulnerable populations. Addressing these ingrained inequalities requires reforms that promote inclusivity and ensure that the legal system genuinely serves all members of society.