What is the Law?

What is the law and how do you access it? This chapter provides the foundation to understanding all areas of law by considering what the law is and how it operates through legislation, common law and the Constitution as well as providing the basics on how to access the law and law reform platforms.

In the Australian legal system, laws come from two principal sources:

• common law made by judges in the courts;
• legislation made by politicians in parliaments both state and federal, or by local government. Local government legislation is usually called ‘subordinate legislation’ or ‘by-laws’

Legislation is the primary source of law. Legislation is ‘made’ by Parliament. Legislation is also known as statute or Acts.

Judges and magistrates in court influence how legislation applies. For example, an Act may apply to ‘the control of all domestic animals’. A person may own a ferret for rabbiting purposes. A judge will be responsible for determining whether the Act applies to ferrets, or this particular ferret.

Law derived from international sources also plays a role in areas such as human rights, trade and environmental protection. There is no requirement that international laws be made into law in Australia. International and domestic law are entirely separate systems. However, international law increasingly represents international moral standards, or practical means of regulating a global economy. In cases such as these, it is often common sense for the Australian government to bring international law into Australian law.

An interesting and important question is, why do Australians accept their laws? There are a number of ways of looking at this question. Some philosophers have said that a ‘social contract’ ties us all to the law; that we agree to the laws in return for the protections of the State. Other philosophers say that it is the government’s monopoly on violence that binds us to the law. Some contemporary thinkers believe that law and order are part of our way of relating to other people, and that creating and enforcing law is part of our psychology and is a defining aspect of what we are as humans. While the oldest writing found in the world is a tally of accounts, the longest enduring book, the Bible contains the basics of our current legal system in the Ten Commandments. Law is very much a part of who we are as a species.