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Author Topic: HSC Legal Studies Question Thread  (Read 568110 times)  Share 

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kiiaaa

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Re: Legal Studies Question Thread
« Reply #780 on: April 07, 2017, 08:43:55 pm »
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hello, could you explain me the difference between soft and hard international law? i mean dont both need to be ratified to be enforced? thank you :)

jamonwindeyer

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Re: Legal Studies Question Thread
« Reply #781 on: April 07, 2017, 09:05:27 pm »
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hello, could you explain me the difference between soft and hard international law? i mean dont both need to be ratified to be enforced? thank you :)

Hey! So really, most international law is soft law. Because of state sovereignty, no international law is completely binding on a nation state. They follow it if they want to!

Some international legal frameworks are more binding than others, just due to the consequences in the international community if they are violated, but at the core - All international law is soft.

If you do want to use the terms, usually, we consider treaties to be hard law, and agreements/declarations to be soft law, but again, it totally depends on the enforceability of the specific treaty. Realistically, they are identical

kiiaaa

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Re: Legal Studies Question Thread
« Reply #782 on: April 08, 2017, 02:30:38 pm »
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Hey! So really, most international law is soft law. Because of state sovereignty, no international law is completely binding on a nation state. They follow it if they want to!

Some international legal frameworks are more binding than others, just due to the consequences in the international community if they are violated, but at the core - All international law is soft.

If you do want to use the terms, usually, we consider treaties to be hard law, and agreements/declarations to be soft law, but again, it totally depends on the enforceability of the specific treaty. Realistically, they are identical


aaah so how would the international community enforce hard laws? what makes them follow the treaties?

jamonwindeyer

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Re: Legal Studies Question Thread
« Reply #783 on: April 08, 2017, 03:39:24 pm »
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aaah so how would the international community enforce hard laws? what makes them follow the treaties?

You've got a few things there! IGO's like NATO, as well as the UN Security Council, can apply sanctions and trade embargoes to encourage cooperation. Essentially, it is peer pressure - When everyone else in the world is doing something, it is in your interests to do it too.

As a good contemporary media case, USA is about to impose their own sanctions against Syria. US is unique in that they are so large and powerful, they don't even need to cooperate to excerpt pressure. These are economic sanctions specifically, as most sanctions will be (money speaks volumes ;))

LOVEPHYSICS

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Re: Legal Studies Question Thread
« Reply #784 on: April 08, 2017, 03:58:59 pm »
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Hey! So really, most international law is soft law. Because of state sovereignty, no international law is completely binding on a nation state. They follow it if they want to!

Some international legal frameworks are more binding than others, just due to the consequences in the international community if they are violated, but at the core - All international law is soft.

If you do want to use the terms, usually, we consider treaties to be hard law, and agreements/declarations to be soft law, but again, it totally depends on the enforceability of the specific treaty. Realistically, they are identical

This is very wrong. You are conflating issues of enforceability with legal obligations. Just because the international system lacks a centralised, enforcement mechanism does not mean that legal obligations do not exist. So too, obligations do not evaporate simply because of a lack of effective enforcement ensuring their compliance. Similarly, it is wrong to say that some are more legally binding than others - they are either binding or they are not. Treaties that have been consented to and ratified by individual States are binding on those states - this is not an aberration from the principle of state sovereignty, but an affirmation of that principle. Another accepted source of international law is that of customary international law [CIL], which again may create rights and obligations for states. These are not 'soft law', in whatever sense you may understand the concept to be.

It is also wrong to broadly assert that agreements and declarations are soft law. Treaties between say, two states are bilateral agreements and would bind the respective states. Declarations from the UN General Assembly are broadly speaking non-binding although they may turn binding through becoming  a part of CIL over time. Also, as the Nuclear Tests Case between Australia and France suggested, unilateral declarations by a state may have the effect of creating legal duties - there, France conducted nuclear tests in the South Pacific Ocean despite its authorities having had in the past declared that they would refrain from undertaking nuclear tests.

Now, generally speaking, the concept of soft law deals with those normative instruments which are not legally-binding. There can come from resolutions, recommendations or even specific organisaitons within the international framework. Again, they may develop into CIL and become legally binding given appropriate time and conditions.
« Last Edit: April 08, 2017, 04:55:47 pm by LOVEPHYSICS »
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jamonwindeyer

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Re: Legal Studies Question Thread
« Reply #785 on: April 08, 2017, 04:58:51 pm »
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This is very wrong. You are conflating issues of enforceability with legal obligations. Just because the international system lacks a centralised, enforcement mechanism does not mean that legal obligations do not exist. Similarly, it is wrong to say that some are more legally binding than others - they are either binding or they are not. Treaties that have been consented to and ratified by individual States are binding on those states - this is not an aberration from the principle of state sovereignty, but an affirmation of that principle. Another accepted source of international law is that of customary international law [CIL], which again may create rights and obligations for states. These are not 'soft law', in whatever sense you may understand the concept to be.

It is also wrong to broadly assert that agreements and declarations are soft law. Treaties between say, two states are bilateral agreements and would bind the respective states. Declarations from the UN General Assembly are broadly speaking non-binding although they may turn binding through becoming  a part of CIL over time. Also, as the Nuclear Tests Case between Australia and France suggested, unilateral declarations by a state may have the effect of creating legal duties - there, France conducted nuclear tests in the South Pacific Ocean despite its authorities having had in the past declared that they would refrain from undertaking nuclear tests.

Now, generally speaking, the concept of soft law deals with those normative instruments which are not legally-binding. There can come from resolutions, recommendations or even specific organisaitons within the international framework. Again, they may develop into CIL and become legally binding given appropriate time and conditions.

I appreciate your input! But what I've said isn't "very wrong" - Perhaps we have different understandings of the terminology, or perhaps it is applied in different (perhaps even slightly simplified) ways in the HSC Legal Studies course :)

Of course legal obligations do exist - Never did I say that they don't. I said that "no international law is completely binding on a nation state." This is true however you look at it. The principle of state sovereignty allows a nation state to sign and ratify a treaty, yes, but the nation state can also withdraw.

Never intended to imply that all agreements/declarations are soft law, apologies if it came across that way :) I did mean to say that some international legal frameworks are more binding than others, or perhaps the better word there would be enforceable - Because as you say, you can't really enforce customary law directly until you have it reflected in a treaty or other document, at least to my understanding :)

It really does seem like we're saying essentially the same thing - Perhaps I could have chosen better words, or perhaps the way I understand them from the course I took is different to your understanding. Regardless, thanks for your input :)

Edit: I mean just to add, you are doing Law, I'm not, I'm happy to take your technicalities as correct over mine. But like, in HSC Legal Studies, a bit much to say that I'm completely wrong I think :)
« Last Edit: April 08, 2017, 05:02:42 pm by jamonwindeyer »

LOVEPHYSICS

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Re: Legal Studies Question Thread
« Reply #786 on: April 08, 2017, 07:05:54 pm »
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Of course legal obligations do exist - Never did I say that they don't. I said that "no international law is completely binding on a nation state." This is true however you look at it. The principle of state sovereignty allows a nation state to sign and ratify a treaty, yes, but the nation state can also withdraw.

With respect, but a rule or principle is either binding or it is not - it is logically infirm to say otherwise. So too the fact that a state may withdraw from a particular treaty entered into does not make it any less binding. The obligation to act in a particular way does not dissipate simply because there is an avenue for the removal of that obligation. Thus Parliament may amend or repeal laws but unless and until it does so, the existing laws bind it as much as they bind general society. Further in the context of treaty law, a withdrawal must conform with the legal terms of the treaty itself - this is also reflected in the Vienna Convention of Treaties. That is, a state seeking to withdraw from a treaty is bound by its withdrawal terms; and there are treaties which outright prevent withdrawal.The few legal exceptions to this is where consent is granted by the other state in bilateral treaties or where the principle of 'frustration' can be successfully argued.



Never intended to imply that all agreements/declarations are soft law, apologies if it came across that way :) I did mean to say that some international legal frameworks are more binding than others, or perhaps the better word there would be enforceable - Because as you say, you can't really enforce customary law directly until you have it reflected in a treaty or other document, at least to my understanding :)


You said 'international law at its core is soft'. Under a legal context, that is plainly wrong. So too this notion of more or less binding - either it binds, or it does not. And legal obligations and enforceability are two fundamentally different concepts - the former is about the duties owed by one to another;  the latter deals with the efficacy of ensuring the performance of those duties owed. The latter has no bearing whatsoever with the question of whether an international obligation exist. As to the part on customary international law, that is wrong and I didn't say that. I said CIL is 'another ... source of international law', and it operates by reference to two conditions - state practice and opinio juris. The content of a treaty may become CIL over time, but a norm does not have be reflected in a treaty in order to be CIL, which is why I introduced it as another source of international law. This was unequivocally affirmed by the court in the Nicaragua case - although US did not breach any treaties entered into they were nevertheless found to have breached the customary norm prohibiting the use of force. 

To close, I am afraid we are saying quite different things. If what you have been saying is an accurate reflection of the HSC legal studies course, then all I can say is that it is wrong and will be obviously wrong to any one with decent legal training. I am sorry this sounds harsh but there is no other way of putting it.There is a difference between simplifying content and teaching the wrong content and in this case HSC seems to be facilitating the latter.

Thanks for replying.


« Last Edit: April 08, 2017, 08:52:42 pm by LOVEPHYSICS »
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RuiAce

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Re: Legal Studies Question Thread
« Reply #787 on: April 08, 2017, 07:08:16 pm »
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There is a difference between simplifying content and teaching the wrong content and in this case HSC seems to be facilitating the latter.
Remark: Almost everything in the HSC is wrong. For every subject.

Potentially exaggerated but that's seriously what it feels like.
« Last Edit: April 08, 2017, 07:10:34 pm by RuiAce »

LOVEPHYSICS

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Re: Legal Studies Question Thread
« Reply #788 on: April 08, 2017, 07:36:00 pm »
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In all honesty, I think it might just be more a legal studies problem. Legal studies in VCE is more holistic and political in that it teaches about legal institutions and areas of law broadly - their role and functions, strengths and weaknesses, and their interaction with individuals in society. There is very little on learning about the actual law and its application and I think that is entirely fine and appropriate for college students. No teacher without legal training should ever be teaching 'law' and what must be made clear to students is that legal studies does not prepare them for the study of black-letter law.

« Last Edit: April 08, 2017, 07:39:01 pm by LOVEPHYSICS »
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jamonwindeyer

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Re: Legal Studies Question Thread
« Reply #789 on: April 08, 2017, 08:18:25 pm »
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Remark: Almost everything in the HSC is wrong. For every subject.

Potentially exaggerated but that's seriously what it feels like.

This ;) Well maybe not wrong, but over simplified in ways, certainly...

In all honesty, I think it might just be more a legal studies problem. Legal studies in VCE is more holistic and political in that it teaches about legal institutions and areas of law broadly - their role and functions, strengths and weaknesses, and their interaction with individuals in society. There is very little on learning about the actual law and its application and I think that is entirely fine and appropriate for college students. No teacher without legal training should ever be teaching 'law' and what must be made clear to students is that legal studies does not prepare them for the study of black-letter law.

I think the purpose is probably to establish interest in the subject area!! I can only imagine (and see it in how hard my mates work) how technical and challenging a proper technical study of the applications of law would be. Throwing that at Year 11/12 students could potentially discourage individuals who would, given the chance to learn it properly at university, be incredible in the profession(s) :)

In the HSC at least, I don't think there is any conception that Legal Studies is any form of actual Legal training. It's a critical thinking course, you are given knowledge of legal mechanisms but it is for the purpose of evaluating their role in society. In this context I don't necessarily see issue with qualified teachers with strong knowledge in the area teaching it, be it proper Legal training or otherwise. It's all retaught properly at university anyway (Legal isn't a prereq so I'd assume it has to be), and Legal Studies students aren't going to be shoved into courtrooms any time soon :P

As a note to students reading the points, everything I've said is more or less how you will learn it in HSC Legal Studies. You don't need to understand or care about the intricate technicalities of international legal obligations vs enforceability, nor will you be picked apart in your analysis of it or your use of terminology. Legal isn't designed to give you that sort of knowledge - As above, it's a taster of the subject area and a chance to develop critical thinking skills :) that said, if you are heading into Law at university or otherwise take interest, definitely read ILOVEPHYSICS's posts above. It gives a more technical picture (and perhaps will give you some more points/evidence for discussion in your analysis).
« Last Edit: April 08, 2017, 08:20:43 pm by jamonwindeyer »

anotherworld2b

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Re: Legal Studies Question Thread
« Reply #790 on: April 12, 2017, 12:48:11 am »
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Hi :)
We were given an investigation to answer this question
Q Identify three different ways that power can be shifted from the states to the Federal Government
I was wondering what the best way would be to find answers to this question. I am not familiar with this topic so I'm not sure what the right answer would be

LOVEPHYSICS

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Re: Legal Studies Question Thread
« Reply #791 on: April 12, 2017, 01:41:00 am »
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This is essentially a division of powers question. Now, the Cth Constitution [Cx.] is the relevant document which States and Cth derive their constitutional powers. Some powers are exclusive to the exercise of the Commonwealth while other enumerated powers of the Cth. under s 51 - while not exclusive - take precedence over States law in the event - and to the extent - of inconsistency, s 109. Put shortly, the Cth is considerably more powerful.

The first obvious means by which this division of power can be change is through a referendum to amend the text of the Cth Constitution - s 128. You can read more about it under s 128 on the technicalities but it is essentially a power exercised by the people in the form of a vote and change can be effected only through a double majority.

The second means is through what is now commonly known as the 'co-operative federalism' approach. This can work in several ways. First, a state can through its own initiative grant the Cth its residual powers so that the latter may make laws on those matters referred to it, i.e. a referral of powers. This is permitted by the Constitution under s 51xxxvii. Second, the Cth can through its own initiative invoke its grants power under s 92 by inducing States with a financial package upon which rest particular terms and conditions - this allows them to influence the States on the exercise of its own residual powers if the latter chooses to accept the grant.

Third is the role of the HCA in interpreting the constitutional text during the resolution of conflicts. The general view is that the Cth powers have expanded over the years as a result of HCA interpretation - the reserved powers doctrine for States has been resoundingly rejected and interpretive techniques adopted by the HCA since then has tend to favor a liberal reading of the text thereby 'expanding' the Cth powers which are listed. A less popular, alternate view is that the HCA has not altered the balance of powers - rather, it was merely correcting the error or lack of foresight of previous judgments and declaring what the powers should have been all along. This is a process of discovering the  - correct - law, not changing the law.

Edit - I failed to read your question properly and have given you the answers but I think any websites or books discussing the federal relationships between states and Cth will be helpful.
« Last Edit: April 12, 2017, 01:56:52 am by LOVEPHYSICS »
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CaitlinSavins

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Re: Legal Studies Question Thread
« Reply #792 on: April 14, 2017, 06:37:53 pm »
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Hey! I'm making mind maps for all the themes and challenges outlined in the topics of study I'm doing.
What would be appropriate to include for the role of law reform in the CJS, and the effectiveness of legal and non-legal measures in achieving justice? This is for Crime btw.

jamonwindeyer

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Re: Legal Studies Question Thread
« Reply #793 on: April 14, 2017, 09:57:11 pm »
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Hey! I'm making mind maps for all the themes and challenges outlined in the topics of study I'm doing.
What would be appropriate to include for the role of law reform in the CJS, and the effectiveness of legal and non-legal measures in achieving justice? This is for Crime btw.

Hey Caitlin! For law reform, I reckon the best way to do it is by examining specific cases which lead to law reforms. So have your case, and go through what law reform was initiated by that case (not all reform is in response too specific cases of course, but this is a great way to do it to give structure to your essays). R v Singh[ (2012) and R v Loveridge (2013) were the best two cases I used for this specific theme, there are lots of notes around on both, definitely worth a look if you don't have your own! ;D

For effectiveness/ineffectiveness, that is pretty much everything you learn. Like, any time you make a judgement in any way, you can link it to this theme/challenge. Personally, I never studied it specifically - Because it is just such a natural and intrinsic part of how you learn Legal. You do "good" and "bad" constantly. So you should do it however you think best! You might want to go case by case, and explore effective/ineffective application of the law. You might explore different laws in isolation. You could link it to balancing the rights of victims/offenders/society - There is literally an unlimited number of ways you can structure it for yourself ;D


Aaron12038488

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Re: Legal Studies Question Thread
« Reply #794 on: April 21, 2017, 06:07:13 pm »
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I need help in finding 3 articles for the sub heading Rights and Responsibilities for my media file thx.