Themes and Challenges

The themes and challenges of the legal syllabus are perpetually overlooked by students. We often look for “buzz words” to improve sophistication and increase the relevancy of our argument, and very rarely do we realise that the Board of Studies actually give them to us.

What’s the go with themes and challenges?

The Legal Studies syllabus takes us through various stages of the Criminal Investigation process, International Crime, Young Offenders and Human Rights. At each of those points, we learn the facts and assess the effectiveness with relevant cases, media, commentary…you know how it is. The themes and challenges are some of the most important tools we have in assessing the effectiveness of the legal system! Not only that, but without them, the syllabus would be very fact based, whereas the themes and challenges prompt you to apply the facts you learn to practical questions, debates, and legal conundrums.

What should I do with them?

First of all, you should learn them. I literally mean know them so well that you could rattle them off. They are phrases, not even full sentences a lot of the time, so committing them to memory won’t be taking up too much valuable brain space.

Once you know them, start weaving them into your notes. Look at where they apply to each section of the syllabus and thread them through. Else, you could organise your study notes so that at the end of each dot point, you write down the themes and challenges and brain storm the legal issues and facts from the dot point that apply to the themes and challenges.

Then you should practice embedding them in a response. The good news is: once they are embedded in your study notes, the work is half done! The bad news is: practice makes perfect. Of course, dropping them in a sentence like a hot potato won’t guarantee the sophistication that a marker looks for. But, making a conscious effort to use the words of the themes and challenges will show as a well-thought out response. We’ll come back to this point.

What are the Crime themes and challenges?

The role of discretion in the criminal justice system.

Discretion is essentially what you use each and every day when you make a decision based on what’s in front of you. Discretion is used in various stages of the criminal justice system.

The most notable place where discretion appears in the criminal justice system is in the police powers. A police person may use discretion to decide the use of force necessary, whether or not to use a taser, or whether or not to arrest.

The second most notable place discretion features in the criminal justice system, in my opinion, is at sentencing. The Justice must observe the facts of the court case, including mitigating or aggravating factors, age, likelihood of rehabilitation, cooperation with the legal authorities, remorse, and so on, to decide on the appropriate sentence for the offender.

Or, if you’re too frazzled in your study to read that, here’s a summary of where discretion is seen in the legal system:

• Police Powers

• Arrest

• Investigation

• Charge

• Charge Negotiation

• DPP

• Sentencing

Issues of compliance and non-compliance in regard to criminal law.

We basically have a legal system because of compliance and non-compliance. The legal system wants to encourage compliance and adequately deal with non-compliance. Compliance with the law is important because of the notion of the rule of law. Every member of society is responsible for their own compliance with the law, and the legal authorities are responsible for making sure the rule of law is applied equally.

Both situational and social crime prevention aim to encourage compliance in our legal system. Similarly, sentences that incorporate a reason of being a deterrent aim to also encourage compliance from members of society.

Non-compliance is the reason we have law enforcement, penalties, and purposes of punishment.

The extent to which law reflects moral and ethical standards.

One reason why we have law reform is because the law aims to reflect the moral and ethical standards of society – which are of course always changing. If you were assessing the effectiveness of the law, you could definitely comment on the way it reflects moral and ethical standards. The Toonen V Australia [1994] and the Croome V Tasmania [1997] case comes to mind here!

The role of law reform in the criminal justice system.

This links quite nicely to the theme and challenge sitting before this one! Law reform is important because if we had stagnant, unchanging laws, we wouldn’t be able to keep up with new technology, new concepts of justice and changing ethical standards (think back to preliminary course here!).

Hypothetically, if you were asked about law reform in an essay question, you would need plenty of cases, and some knowledge from the preliminary course would be handy!

The extent to which the law balances the rights of victims, offenders and society.

This was essentially the 2014 HSC question for Crime, with a few words mixed around. So this is a classic example of how the themes and challenges can become an entire essay question! There is a lot of tension in the legal system. Let’s look at remand. If a suspect is held on remand, it balances the rights of the victim and the community because they have a potentially violent criminal removed from society until trial. But, the tenant of “innocent until proven guilty” remains for an offender, yet they are withheld from society and have a limited right to liberty in remand. This opens up lots of discussion.

The effectiveness of legal and non-legal measures in achieving justice.

This is one of the more simple themes and challenges – simply because it is exposed in various essay questions for the core and the options in past exams. A legal measure is legislated, a non-legal measure is not in legislation. I commonly espoused the belief that the non-legal measures enhance the legal measures and vice versa.

What are the Human Rights themes and challenges?

The changing understanding of the relationship between state sovereignty and human rights.

With an increase of the number of states achieving statehood, and the turbulence that threatens the statehood of current states, state sovereignty becomes a large legal issue. State sovereignty relates to strongly to human rights because there is a responsibility of a state to uphold the rights it has agreed to. With the development of IGOs, like the European Union, we see the importance of state sovereignty and human rights highlighted. A great example of this is the case of Turkey’s expulsion from the EU.

Issues of compliance and non-compliance in relation to human rights.

As is the case with Crime, not all people comply with laws or human rights obligations and responsibilities. For whatever reason, individuals or states may abuse, or conceal abuses of, human rights and show non-compliance for international customary law, as well as whichever treaties they have ratified.

The development of human rights as a reflection of changing values and ethical standards.

It’s important to understand a quick history of human rights. Essentially, they had been developing in various stages all over the globe for some time. After World War Two, the urgency for a uniform, global approach to human rights became apparent. Roosevelt devised the Four Freedoms, which then grew to become the Universal Declaration of Human Rights, as overseen by Eleanor Roosevelt. After the World War Two, the global values and ethical standards of human rights altered, after mass atrocities had occurred.

The role of law reform in protecting human rights.

Particularly, this focuses on domestic legislation. As a country ratifies a treaty, they must bring it into legislation (Australia has a dualist system where the ratification is separate from the signing. Whereas countries like France have a monist system, where signing a treaty automatically ratifies it).

The effectiveness of legal and non-legal measures in protecting human rights.

This could be asked of you in a short answer question, but they’d probably only ask you about legal OR non-legal, and not together. Essentially, anything legislated is a legal measure, and not in legislation is a non-legal measure. The non-legal and legal measures often complement each other, particular in the human rights sector, where various NGOs work to support human rights.

How do I put them in a response?

It’s important to highlight again: The themes and challenges can make the bulk of your essay question. The essay question may be the theme or challenge. You’ve been warned. 2014 is a prime example.

So…if it was your essay question, then you don’t really get a whole heap of scope to decide when you’ll strategically drop a theme or challenge. The entire thing is a theme or challenge. But, that doesn’t mean you can’t incorporate more themes and challenges than the one asked in the essay question.

In my opinion, the easiest theme or challenge to incorporate is the issue of compliance and non-compliance. It is literally a single word to embed in a sentence. Here’s an example:

“The sentencing procedure in the criminal justice system aims to appropriately punish individuals who have shown non-compliance to the legal system.”

You don’t need to identify that this is a theme or challenge – the markers will know the key words and it will show that you’re using the correct terminology, the sophistication of your essay, and also your conscious studying to include the themes and challenges.

If you’re looking for some help with your legal essays, then why not check out our free essay marking thread?

If you’re just confused about a section of the syllabus, or you’ve got a burning question, then you’ll be pleased to know that we have a legal studies question thread!

FAQs

Q: Why are themes and challenges important in legal studies?

A: Themes and challenges provide a framework for assessing the effectiveness of the legal system and applying legal concepts to practical scenarios. They prompt you to analyse and evaluate legal issues beyond mere facts, enhancing your understanding and argumentation skills.

Q: How can I effectively incorporate themes and challenges into my study routine?

A: Start by thoroughly familiarizing yourself with the themes and challenges, committing them to memory. Then, integrate them into your study notes by identifying where they apply to each section of the syllabus. Practice embedding them into your responses to develop fluency and sophistication in your writing. 

Q: What are some examples of themes and challenges in the Crime component of legal studies?

A: Examples include: the role of discretion in the criminal justice system, issues of compliance and non-compliance regarding criminal law, the extent to which law reflects moral and ethical standards, the role of law reform, and the balance of rights among victims, offenders, and society.

Q: How do themes and challenges relate to human rights in legal studies?

A: In the context of human rights, themes and challenges encompass topics such as the: changing understanding of the relationship between state sovereignty and human rights, issues of compliance and non-compliance regarding human rights, the development of human rights in response to changing values and ethical standards, the role of law reform in protecting human rights, and the effectiveness of legal and non-legal measures in safeguarding human rights.

Q: Can you provide an example of how to incorporate a theme or challenge into an essay response?

A: For instance, in discussing the sentencing procedure in the criminal justice system, you could mention how it aims to appropriately punish individuals who have shown non-compliance with the legal system. By incorporating the theme of compliance and non-compliance, you demonstrate your understanding of key concepts and terminology, enhancing the sophistication of your essay. 

Q: How should I approach learning the themes and challenges effectively?

A: It's advisable to start by breaking down each theme and challenge into manageable parts, understanding the key concepts and their applications. Utilize mnemonic devices or repetition techniques to aid memorization, and actively engage with practice questions or scenarios to reinforce understanding. Also, you should continuously engage in writing exercises where you incorporate themes and challenges into your responses. Make sure to seek feedback from teachers or peers to identify areas for improvement.