Law in Context

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Any competent lawyer should be able to say what is the law on a given topic in their area of expertise.  However, most lawyers find it surprisingly difficult to answer persuasively the general question "what is law?".

In this episode we grapple with some debates that go back centuries.  We look at the positivist approach: that law is simply whatever is laid down constitutionally (ie "posited"). You might think this is self-evident.  It's also convenient, because "law" is kept neatly separate from "morality" and "politics".

However, there has been a strong body of thought around ideas of "natural law" and "natural rights" which maintains that a "law" which violates nature is not actually law.  Today, some human rights theorists take this view too.

And there are scholars in a different, critical tradition who argue that law cannot supply all its own answers.  Legal language may be vague or ambiguous, so a meaning has to come from somewhere else.  And law consists of principles as well as rules.  Applying a principle is a way of letting your own views into law.

It will not surprise any listeners that the Two Steves can't solve problems that have eluded the awesome bulging brains of legal philosophers.  But they can at least shed some light on it all.  This, on its own, adds to our understanding of law.  And, given that law permeates almost every aspect of society, it also adds to our understanding of the society we live in.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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In this episode, not daunted by their previous challenge to explain basic legal concepts clearly, the Two Steves take on the big one: What is Justice?

Most lawyers instinctively take a procedural approach to justice.  If the rules have been followed and the judge is impartial, then the outcome is just. And yet every day we hear people say that a particular result is unjust, even though all the rules have been followed and all the boxes ticked. Their sense of justice is more substantive than procedural.

Many substantive views about justice can be put into one of three categories. 

First, justice as equality prioritises results that treat people substantively equally, and perhaps even promote substantive equality.

Second, justice as rights prioritises results that protect and advance people's rights, including perhaps their "natural" rights.  These days, the promotion of "human" rights fits into this category.

Third, justice as deserts prioritises what is owing to people.  Punishment should be deserving, neither less nor more.  Injuries should be compensated to the extent of those injuries, and so on.

This is straightforward to understand when one critiques law from the outside in, helping us to adopt one or more of these approaches.  On an operational basis, however, when a court has to decide a dispute, fair procedure has to rule the day.  But occasionally, where there is a gap in the law or where a current law is clearly out of date with current sentiment, a more substantive view of justice can be used to fill it or change it.

To understand law at the margins, as well as at its centre, we need to know about and consciously adopt a substantive sense of what is justice.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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Myths abound about crime rates and law-breaking.  In fact, some kinds of crime are going down and others are probably going up.  A more interesting question is why so many people obey the law most of the time.  In this episode we look at the main theories about legal obedience. 

There is a legitimacy theory, that if people think their society is fair they are less likely to break its law.  

Economists, however, argue that it is a cost-benefit equation.  If the cost of breaking the law exceeds the benefit, people rationally will break it.  

Criminologists argue it is about levels of self-control and impetuousness in the face of opportunity.

Maybe there is some merit in all these approaches, but perhaps the legitimacy theory has the most explanatory power.

Listen to the Two Steves agonise about all this, whilst having a dig at politicians, only to happily conclude that we might still be asking the wrong questions.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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There is almost nothing we do in our everyday lives that does not involve corporations or companies.  From small family companies to global corporations which are larger than the economies of some countries, corporations dominate our lives.  In this episode we look at what a corporation is.  We focus on a subset of corporations; companies with a share capital which operate a business for profit.

In future episodes we will look at some of the issues surrounding "limited liability" and at businesses behaving badly.  This episode sets the scene for those, offering a legal primer on what corporations are.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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Lawyers have a very particular role in the adversarial system, and a corresponding set of ethical requirements.  In the 2000s in Victoria, Nicola Gobbo, a criminal defence barrister became a secret, registered informer with the police.  She arranged for some clients to give evidence against other clients, arguably framing them.  In one case, Faruk Orman served 12 years in prison, 3 of which were in solitary confinement, for a crime which he maintained throughout he did not commit.  Eventually, the arrangement came to light, the High Court ordered that Ms Gobbo's identity be disclosed and a Royal Commission was immediately established to establish the facts in numerous cases.  Faruk Orman's conviction was overturned by the Victorian Court of Appeal as a serious miscarriage of justice.  Nicola Gobbo's conduct breached several fundamental ethical requirements.  In this episode, we speak to Mr Orman's solicitor, Ruth Parker, about that case and more generally about the lawyer's role.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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The Rule of Law may be a great ideal, but does it mean anything if in practical terms many people do not have access to legal advice and adjudication.  In this episode we look at the barriers to access to justice and some of the ways in which these barriers are at least partially overcome, including Alternative Dispute Resolution and the emerging Online Dispute Resolution.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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Juries make for great books and movies, but what really is their role in the adversarial system?  Do they lead to fair decisions?  Are they too expensive, leading to court backlogs?  Have they had their day?  In this episode we look at the jury, its history, and why it is mainly a feature of common law systems.

For the transcript of this episode and further reading, visit https://lawincontext.com.au/the-jury/

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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How can we ensure that those who judge between government, citizens, or businesses are impartial?  All Rule of Law systems have protections for judicial independence, to promote impartiality.  But there are weak spots, as we explore in this episode.

For the transcript of this episode and further reading, visit https://lawincontext.com.au/judges/

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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Parliaments make laws. But so do judges. International treaties may also be a source. And it gets even more complicated.

For the transcript of this episode and further reading, visit https://lawincontext.com.au/where-does-law-come-from/

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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The adversarial system of justice came from the English common law and spread. It is contrasted with the inquisitorial system found in non-Anglo democracies.

For the transcript of this episode and further reading, visit https://lawincontext.com.au/adversarial-system/

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context