Government may be broken down into three separate

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government may be broken down into three separate functions, which all governments will exercise: Legislative Make laws (create legislation or statute law) Executive Manage (execute) or administer the laws, government functions and government departments (including the police and military forces) • Judicial Interpret and apply the laws (and administer the court system) When examining the sources of law in any country we generally look mainly at the legislative function and the judicial function, although in recent times the legislative function has, in some circumstances, been delegated to the executive to enable the government managers to create detailed regulations to better explain or describe the more general statutory provisions created by the legislature. In ‘western’ societies, the branch of law called ‘constitutional law’ (dealing with the operation of the country’s constitution) has recognised a detailed area of constitutional law based on the political science concept of separation of powers. That area is called the 'Doctrine of Separation of Powers’. This Doctrine is in fact a theory that attempts to predict the effect of distributing government functions in a country on the rights of its citizens (often referred to as the citizen's ‘human rights’). 13
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY 1.5.2 Sources of Law in Common Law Countries The two most common types of legal system in the world are the Common Law system and the Civil Law system. Common Law is the basis of the law that applies in the United Kingdom and its former colonies, including the United States. The Civil Law system is found in most European countries and their former colonies. The former soviet bloc countries, China and a number of, especially, south-east Asian countries have a form of Socialist legal system which is more closely aligned to the Civil law system than it is to the Common Law system. The Socialist law system is also a major type of legal system. We will examine these systems in more detail later. As already discussed, there are two basic sources of law in Common Law countries: (a) Statute law (‘Acts’ enacted by the legislature); and (b) Judge-made law (decisions made by judges). Since the legislature is the supreme law-making body, statute law will prevail over judge-made law if there is a difference between the two. For example, if a judge in deciding a case ruled that computer ‘hacking’ (gaining access to a computer without permission, and usually by breaking through a security system) was lawful and the legislature subsequently passed a statute outlawing it, the statute would prevail. Therefore, all computer ‘hacking’ would, thereafter, be unlawful. Parliament could even declare that the statute applied to previous acts of computer ‘hacking’ but this would constitute retrospective legislation and such legislation is considered unfair and therefore is rare.
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