Law in Context and Evident Element

Questions:

1. Would more female judges change the jurisprudence of the High Court?  Explain your views.

2. Why might policies that require equal treatment under law actually disadvantage certain groups?

3. Should there be any obligation for a lawyer to be provided to an indigent defendant at public expense? Explain your views.

4. How does the adversarial system reflect liberal ideals such as limited government and the separation of the judiciary from other arms of government? 

5. How do theories of power affect the implementation of laws by regulators and public officials?

6. Describe the "market-based" and the "transaction cost" models of contract law. According to the market-based model, how should contract law be structured?

7. What are the arguments for and against control orders?

Answers:

(1).

It has been mentioned by Wilson in the year of 1990 that the difference in gender has been an evident element in the policy of judicial making of decision especially in the areas of tort family and criminal law. Justice Wilson makes the argument regarding the view that women has a different view point of the world as compared with that of men and hence the female judges would have a perspective that is different from the male judges in deciding the cases. The addition of more female judges in the High Court of Australia would make a difference in the process of law. The female judges by having a different theory of life could bring new humanity to bear the process of the decision-making.

(2).

The concept of equal treatment before the law is aimed at providing all the people in any society the equal opportunity before the legal system of any country. The equal opportunity refers to the application of the laws to every part and the section of the society. However, the application of the principle of the equal treatment of the laws amounts to the factor of disadvantage to several groups. The principle of equal treatment under the law is often considered as "color blind." There are several countries where the for this principle of equal treatment fails to treat every race in equal terms. The examples of such countries are the United Kingdom and others. In those countries, the focus of the principle is to ensure the opportunity in the equal terms, and it is believed that such principle tends to devalue the people’s accomplishments based on the groups of the society. The critics in many instances regard the principle as based on reverse discrimination.  

(3).

In the U.S Constitution through the Sixth Amendment, there is provided the rights of an attorney in any criminal proceedings. In the real world, the application of a lawyer to act as an indigent defendant is quite complicated. The issue regarding the payment for the legal services remains in the case where the representation of the rights of a defendant by any attorney seems to be questionable. The courts may, in many instances make the appointment of the indigent defendant at the expense of the public. In certain jurisdictions, there is the establishment of the offices of the public defender. However, in the other jurisdictions, there is the maintenance of a roster of the attorneys that are related to criminal defense and they would also make the acceptance of the appointment of the court.

(4).

The adversarial system is regarded as that legal system in the countries that follow the common law in which two advocates make the representation of the position of their parties before any impartial person or any people's group. The group of people refers to jury or judges, and the aim of such jury is to make the attempt of determination of the truth of any case. The adversarial system is in contrast with the inquisitorial system that is used in several systems of civil law, where any judge or the judge’s group makes the investigation of any case.

The adversarial system exists as a two-sided structure under which the criminal courts of trial make their operation. The system of adversarial makes the operation that pits the prosecution against the defense. The justice is delivered at that moment when the best effective adversary performs the job of convincing the jury or judge that his perspective regarding the case is the right one. 

(5).

In the subject of politics and social science, the term power is referred as the ability to make the influence or makes the outright control of the behavior of the people. The social structure often makes the use of the word "authority" to describe the power that is perceived by them as legitimate. The power can at many times seen as unjust and evil but its exercise is accepted as an endemic to the human beings as the social beings. In the context of business, the term power is always used as being expressed as “downward” or “upward”.

The use of the theories of power does not have the need to make the involvement of the factor of force or the threat of using force. The theory of referent power is seen as the power or the ability of the individuals to attract the other persons and establish loyalty. Hence, the referent theory of power makes affect the implementation of the laws through the ministers based on the loyalty. 

(6).   

The market-based model of the law of contract is an approach that is grounded in making the analysis of the market, and the paradigm case of the market-based model is often regarded as the model case in the contract of selling of goods. The market-based model intends to enhance the discreteness and intends in the presentation in the transactions.

On the other hand, it is often seen in several cases that the Court is often reluctant in making the enforcement of an agreement. It is done in those circumstances where one of the parties to the contract is incapable in making the rational decision as a result of the coercion in the tactical sense that is the pressure at the higher level by the other party. The said incapability is often regarded as the transactional incapacity.

(7).

The concept of control order was introduced in the territory of Australia with the sole motive that whether it would make Australia safer. A control order is useful only in cases where there is sufficient intelligence in the hands of the police regarding the activity of any person. The imposition of control order also has the requirement of deliberation at the parliament and public consultation.  

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