LAW IN CONTEXT PODCast
WELCOME TO THE LAW IN CONTEXT PODCAST
LAW IN CONTEXT began as a book in 1991 and is now also a podcast series designed to introduce law in a critical way to the general public, current students and those thinking of taking up the subject.
Season 1 contains 15 episodes designed as a primer for those interested in the fundamentals of common law systems and how they differ from other legal systems.
Law in Context returns in 2025 with Season 2, which takes a deeper dive into the fascinations of Law in Context.
SEASON 1 – latest episodes
episode 13 – EQUITY AND THE SAD CASE OF MR STUBBINGS
In this episode we look at the body of judge-made law called Equity, which emerged in England as a separate body of case law from “the common law”. Whereas common law focuses on clear rules and rights, equity focuses on conscience and doing what is fair.
We illustrate the two different approaches with a recent case, Stubbings v Jams (No 2) Pty Ltd. Poor old Mr Stubbings had no income. He had assets but plenty of debts. He refinanced his affairs with Jams Pty Ltd, after receiving independent legal and financial advice. However, according to the initial judge, Mr Stubbings was “completely lost, totally unsophisticated, incompetent and vulnerable”. His financial situation was “bleak”.
In the trial court, he succeeded in having his loan agreement set aside. However, the Court of Appeal overturned that decision, focusing on the fact that he had had independent advice. The High Court – the final possible court – reinstated the trial judge’s decision, and Mr Stubbings therefore ultimately won, although after 7 years of cost and stress.
The contrast between the Court of Appeal and the High Court is a contrast between common law reasoning and equitable principle.
In this episode we ask the listener what they think about this and other examples.
episode 14 – WHO YA GONNA TRUST? FIDUCIARIES AND THE LAW
Who should I trust? If your answer is no one, the world would be a more difficult and expensive place. Whenever someone does something on your behalf you might have to employ someone else to watch over them, and then someone else to watch over the someone else etc etc.
Over the centuries, equity law has picked out certain kinds of relationships where there is an imbalance of power or knowledge and called them fiduciary relationships. The “trustee” is a prime example. A fiduciary has a duty of loyalty, of not taking an undisclosed benefit from the relationship, and of doing everything they can on the beneficiary’s behalf.
This is quite different from the normal situation in a market, where the rule is “caveat emptor”: let the buyer beware.
Fiduciary law versus contract law reflects the balance in life between being fair to others and letting others look after themselves: a balance that is forever changing in the law.
In an exciting climax to the episode, the two Steves debate how you pronounce “fiduciary”.
episode 15 – PROVE IT! HOW PERSUADED MUST WE BE IN LAW?
It’s well known that for someone to be found guilty of a crime, the decision-maker must be persuaded “beyond a reasonable doubt”. This is the standard of proof. In civil claims, the standard is “on the balance of probabilities”.
In criminal matters, the onus of proving to this standard is on the prosecution; and in civil claims it is on the plaintiff.
In this episode we discuss what all this means in practice, and note that in the majority of all court matters it doesn’t reach this stage because the defendant pleads guilty or the civil claim is settled without trial.
This is said to be different in civil code systems such as France, but although there are major differences in procedure, the required standard actually seems to be similar.
We promise to give listeners our opinion on which system is better – in episode 1000