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.