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INTERNATIONAL LAW


INTRODUCTION

I won't attempt to provide an authoritative guide to legal matters in the space of a few paragraphs. But given the benefit of over twenty years experience in the field, I can provide some pointers for people venturing out into these treacherous waters. So, for what it's worth, here is the best general advice I can give to anyone with legal problems. Secretary

A BRIEF LEGAL PRIMER

- If you haven't managed before, try to look at the problem from an objective viewpoint. Emotional issues - of outrage, indignation, condemnation, confusion, trepidation, fear, etc. - are, with precious few exceptions, not the central point of consideration. And the mere presence of just cause - or 'principle' - alone is often an invitation to self-righteous futility.

- A dispute need not turn into a court case, unless a law has been broken. It can be mediated - or settled - in one way or another. But this requires the disputing parties to agree to try and resolve their problems. A party may appear either unconcerned or openly hostile about the matter. Parties may also blame each other, even over their own misguided actions.

- Problems - or cases, if you prefer - turn on three things: parties, facts and issues (or matters in dispute). They are resolved (internally) and distinguished from one another (externally) on this basis. The case between the parties is decided by ascertaining the reliable facts and applying the relevant law.

- The law's ability to help people is restricted to applying established procedures which are available under existing legislation. Other aspects of a particular problem - political, social, moral, or what have you - are beyond a lawyer or judicial officer's powers to address. He or she may sympathise about the matter, though.

- Legislation is rarely in tune with historical (and technological) developments - nor is it reflective of public opinion. Political, economic and moral pressures forge the law just as they forge the society which provides such opinion - often with mixed results.

- Courts exist to interpret and apply existing law - not to "create" law (which is the role of legislature). Novel, one-off applications can be countered with the 'flood-gates' argument: "If we allow this in your circumstances, we must allow it in every similar such case - and then where would we be?".

- Different types of law are applied in running court cases: legislation, procedural rules and pre-existing case law. Good lawyers need a working knowledge of all three, as well as good 'advocacy' skills - or the ability to get a point across.

- Many lawyers are good, but none is perfect. There is also an old saying: "the lawyer who acts for himself has a fool for a client".

- Cases have to be managed, just as they have to be conducted and decided. No one has the time or patience to consider every possibly relevant factor in support of someone's argument. But cases often fail on the facts that don't come to light, as well as the ones that do.

- No statement, document or action is ever conclusive 'proof' of anything. But everything has a potential to carry evidential 'weight'. Obstructions to the introduction or consideration of these things may come by way of argument as to relevance, prejudicial value or some pre-existing rule or law.

- The longest-running case is only ever decided in a fraction of a second - the time it takes to make a decision. Everthing before it is simply a preliminary step; everything afterwards simply justification.

- Contrary to widespread public perception, cases are not decided according to personal opinion. The introduction of extraneous or unsupportable viewpoints into a matter is cause for concern, not something to be expected.

- An error - real or claimed - in the determination of a case may render a decision open for review (or appeal). But the error must be characterised - as an error in fact and/or law - and demonstrated as such, for the review to be successful.

- There is no 'wrong' or 'right' in law, and no legislation or ruling is so inherently correct so as to be set in stone for all time. There are, however such things as precedent, submissions and authority - these are the past, present and future by which the law is itself judged.

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URL: http://homepages.tig.com.au/~avanstar
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Alex Van Starrex