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.
latest episodes
episode 11 – AT LAST, THEY ASK “WHAT IS LAW?”
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. .
episode 12 – what is “the common law”
We keep hearing about “the common law”, but what exactly is it? In this episode, we look at three separate meanings.
First, the common law describes a whole legal system, such as Australia, England, the United States and Canada.
Second, the common law is in contrast to something called Equity.
Third, the common law is in contrast to statute law made by parliaments.
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.