Law, Customs, and Rules (HSC SSCE Legal Studies): Revision Notes
Law, Customs, and Rules
Understanding law in society
Law is a dynamic and complex system that has evolved over hundreds of years, shaped by tradition, culture and societal values. Law provides the framework for how people interact with each other and with organisations in society.
At its core, law can be understood as a set of enforceable rules of conduct that establish guidelines for relationships between people and organisations. These rules serve important purposes: they provide methods for treating people impartially and outline punishments for those who break the agreed standards of behaviour.
Key definitions
Law: A set of rules imposed on all members of a community, which are officially recognised, binding and enforceable by persons or organisations such as the police and/or courts.
Values: Principles, standards or qualities considered worthwhile or desirable within a society.
Rules: Regulations or principles governing procedure or controlling conduct.
Why societies develop laws
Throughout human history, people have formed societies—groups of human beings linked by mutual interests, relationships, shared institutions and a common culture. In earliest times, people banded together primarily for survival, agreeing to live by rules that protected their lives and property.
This fundamental need for protection and order has continued throughout history. As groups formed societies, and cultural groups emerged within these societies, they established and enforced rules about relationships and conduct. Modern laws are imposed by the administrative institutions that govern society, apply to all members of that society, and carry consequences when breached.
Customs and customary law
Customs are established patterns of behaviour among people in a society or group. These behaviours vary significantly depending on the culture, religion and history of different communities.
Cultural Customs in Greetings
In Australia it is customary for people to shake hands when greeting a friend, whereas in some European countries, greeting may involve kissing on each cheek. These different customs reflect the unique cultural traditions of each society.
Key definition
Customs: Collective habits or traditions that have developed in a society over a long period of time.
Customary law: Principles and procedures that have developed through general usage according to the customs of a people or nation, or groups of nations, and are treated as obligatory.
State: A politically independent country.
How customs become law
When a custom is followed by most of the population over an extended period, it may eventually become part of that society's legal system. However, not all customs become law, as different societies have different values and practices.
Customary law refers to established patterns of behaviour that are accepted within a particular social or commercial setting and are considered important enough to be enforced. These principles develop through general usage according to the customs of a people, state, or group of states. Customs originally arose as practical solutions to deal with problems in the most harmonious ways possible. Over time, these customs gained acceptance as legal requirements.
Types of customary law in Australia
Three types of customary law have significantly influenced the Australian legal system:
- Aboriginal and Torres Strait Islander customary law: Indigenous Australian customary law, which has existed for thousands of years, is primarily unwritten and based on oral traditions.
- English customary law: Australia inherited much of its legal system from England through colonisation, including customs that had developed into formal legal principles.
- International customary law: Principles that have developed through the general practice of nations and are accepted as legally binding in the international community.
Many societies never write down most of their customary law, as is the case with Indigenous Australian customary law. In other societies, customary law is eventually recorded and incorporated into formal written legal systems.
Rules in society
Rules refer to prescribed directions for conduct in certain situations. Unlike laws, rules are typically made by specific groups and only affect people within those groups. These rules often vary between different groups and cannot be enforced by the state.
Characteristics of rules
Rules have several important features that distinguish them from laws:
- They are made by groups or organisations, not by government institutions
- They apply only to members of the specific group that created them
- They vary between different groups and contexts
- Enforcement comes from those who made the rules (such as through suspension or detention), not from state authorities
- They can be changed relatively quickly with the agreement of group members
- They often involve consultation with affected members before changes are made
Examples of rules
Common examples of rules include:
- Rules for playing games and sports
- Rules for behaviour in classrooms
- Workplace policies and procedures
- Club or organisation regulations
When rules are broken, there is typically some form of punishment, but this is enforceable only by those involved in making the rules. For instance, breaking classroom rules might result in detention or suspension, but these are school-level consequences, not legal penalties.
The relationship between rules and laws
In a legal sense, rules form the foundation of laws. However, rules can be changed much more quickly and easily than laws, with agreement from those involved. Laws require more formal processes to change, and their enforcement is significantly more complex.
Laws: formal rules of society
Law, as we understand it today, consists of the formal rules of society. These 'legal rules' have been agreed upon by the majority of those in the community and govern their behaviour and activities.
How laws differ from rules
Laws are fundamentally different from rules in important ways.
Shopping Centre Rules vs Laws
At a shopping centre, a sign on the escalator might request that you stand to the left and not take strollers on it. These are rules that exist for the safety and comfort of shoppers. However, they are just rules—you will still see people standing on the right or taking prams on escalators. The consequences of breaking these rules are relatively minor, though it may show a lack of consideration for others.
In contrast, there are also signs stating that you cannot smoke in shopping centres. This is a law. If someone were to 'light up', they would be asked to leave by security or police and might incur a fine. The consequences of breaking laws are far more serious than breaking rules, despite the fact that breaking rules also demonstrates inconsiderate behaviour.
Six key characteristics of laws
Laws possess certain characteristics that distinguish them from rules:
- Laws are binding on the whole community: They apply to all members of society without exception.
- Laws can be enforced: Penalties apply if a law is broken, ranging from fines to imprisonment.
- Laws are officially recognised: Governments and courts recognise laws and have the authority to enforce them.
- Laws are accessible (or discoverable): People can find out which law applies to a particular situation through various legal resources.
- Laws relate to public interest: Laws exist for matters that concern the whole of society, and the public interest is considered to outweigh the costs or drawbacks of government involvement in enforcing them.
- Laws reflect rights and duties: Everyone in society has responsibilities to others (such as the duty to drive safely) and everyone has the right to be treated equally by others.
Making laws in Australia
In modern Australia, laws are primarily decided by elected government officials at three levels: local, state, or federal government. However, judges also have the power to make laws in certain cases when they set a precedent—a legal decision that serves as an example or rule for future similar cases.
Society expects that laws will protect all members of the community. Therefore, any laws made should be fair, just and equitable. Laws should also reflect both traditional and current ethics and values. While this represents the ideal situation, what is actually achievable may be more complex in practice.
Ethics in law-making
Ethics: (1) Rules or standards directing the behaviour of a person or the members of a profession; (2) A major branch of philosophy, which investigates the nature of values and of right and wrong conduct.
The relationship between customs, rules and laws
As people have joined together in communities throughout history, a clear relationship has developed between rules, laws and customs:
- Whenever people have lived together in groups, they have developed rules to govern their behaviour and maintain the smooth running of activities.
- These rules were based on the traditions, customs and values of the group.
- These rules have penalties attached if members of the group fail to follow them.
- Groups usually put someone, or a small group, in charge to enforce these rules and the associated penalties. In modern times, this role became the responsibility of government.
- Over time, these rules became formalised laws, collectively known in society as 'the law'.
Comparing laws and rules
| Laws | Rules |
|---|---|
| To be obeyed by all citizens of a society | To be obeyed by specific individuals or groups |
| Made by a law-making body | Made by individuals or groups |
| Enforced through the courts | Enforced by leaders of a group |
| A breach results in a prescribed sanction imposed by the courts | Consequences of a breach are at the discretion of the leader of a group |
Remember!
Key Points to Remember:
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Law is a set of enforceable rules that apply to all members of society, officially recognised and enforceable by authorities such as police and courts.
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Customs are established patterns of behaviour that can become customary law when accepted as legally binding over time.
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Rules are made by specific groups and affect only group members, while laws are made by law-making bodies and apply to all citizens.
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The six characteristics that distinguish laws from rules are: binding on whole community, enforceable, officially recognised, accessible, relate to public interest, and reflect rights and duties.
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The progression from customs → rules → laws shows how informal behaviours become formalised legal requirements over time.