episode 1 – THE RULE OF LAW
The Rule of Law is central to understanding legal systems in democracies. It all begins here.
episode 2 – THE ADVERSARIAL SYSTEM
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.
episode 3 – where does law come from?
Parliaments make laws. But so do judges. International treaties may also be a source. And it gets even more complicated.
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.
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.
episode 6 – ACCESS TO JUSTICE
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.
episode 7 – LAWYERS
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. Eventually, the arrangement came to light and a Royal Commission was immediately established to investigate the facts of numerous cases. In this episode, we speak to solicitor, Ruth Parker, who acted for the first person whose conviction was overturned, after serving 12 years in prison.
episode 8 – CORPORATIONS
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.
episode 9 – Why do people obey the law?
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.
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.
episode 10 – WHAT IS JUSTICE?
In this episode, not daunted by previous challenges 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.
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.
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.
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.
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
episode 16 – Mine not yours! property law in context
You might think the idea of property is straightforward. In a way, it is. Almost anything tangible and many things intangible are capable of being property, under the common law. Even one of our jokes is capable of being property, assuming we actually made it up.
But “property” to a lawyer is not so much about the item in question, but the rights associated with it.
Is the right exclusive, or is it divided up, for example between the landlord who owns the freehold and a tenant who owns a lease?
Has someone else acquired rights over land by continuous use, through the law of prescription?
Has the apparent owner actually lost their rights if contested by someone who has been in exclusive possession of the land, without force, secrecy or permission, for a long period – so-called “squatters’ rights”?
In this episode we try to unbundle what the law bundles up, and we end by noting the cultural context of property law, which is based around individuals and particular kinds of uses. This looks ahead to the next episode, on native title, and the question whether and when the common law is capable of recognising the communal use of property by first nations’ peoples.