14 The existence of these human values is also evident in the pervasive legal concept of natural justice or procedural justice.[9] While procedural fairness is consistently structured around elaborate rules and precedents,[10] it is essentially based on the principle of fairness. In 1985, Mason and Brennan JJ. in Kioa v. West[11] before the High Court of Australia agreed that the principle of information was fairness, but disagreed on how to promote this principle. Mason J. held that this was a common law principle affecting the exercise of public authority (unless it was limited or excluded by law). [12] Brennan J. found that it was part of the legal requirement that may be limited or excluded by Parliament, as established in the statutory interpretation process. [13] The difference may be of limited practical importance and may only occur in the exercise of a power not prescribed by law. However, the difference is important for legal theory. While it is intrinsic to the common law, it derives from a source of fairness as a common law incident.
If it is inherent in the sovereign command of Parliament, it implies a necessity and, to some extent, an impracticable limitation of that law in relation to a source of fairness inherent in the actions of Parliament. [13] See Tamar Frankel, Fiduciary Law 101 (2011) (mentions the role of a society`s culture, institutions, and values in determining the balance between ethically or morally imposed self-control, legal oversight, and party self-control). 27 The tendency of courts to interpret concepts as intermediate rather than essential is, for example: characterized by the values of justice and equity to avoid dismissal for technical or unjustified reasons. [27] This highlights the process of assessing what is serious and what is not, as it is strongly value-based. How to prepare for an unstable environment in a stable environment? It seems that current values in some countries focus more on individual self-interest and competition between family members, companies, sports teams and within social networks. If an unexpected change occurs in such a society, then personal happiness, the practice systems, backgrounds and tendencies of leaders and those of each member of society could destroy the entire society instead of protecting their existence, let alone their prosperity. Normally, values have their roots in history. In fact, these roots can fade and rise when similar situations occur years later. In fact, it appears that the values have a longer storage period than the rules. Values can appear in different rules, accents, and situations.
In addition, values can be returned. The famous joke is about young Boy Scouts being told to help the elderly cross the street and then forcing an old woman to cross the street against her will. These benevolent young people focused on crossing the street and missed the point. Values therefore include not only certain acts or omissions, but also their purpose. When an environment changes radically, and with it the rules that follow, our culture, laws, behaviors and reactions are tested both for change and for each other. This is the time to understand ourselves and our system of governance, our values and the rules we live by. To some extent, this is the moment of truth – good or bad – from which it is more difficult to escape. And perhaps this is a blessing from which we should not escape, but choose to investigate, judge and change ourselves. Limiting the exercise of power over each other has taken many forms. These are first and foremost legal and cultural rules. Legal regulations and their enforcement are usually imposed by governments. For example, the legislation deals with the protection of children.
Many years ago, children were considered the property of their parents. [2] These property rights have been restricted in many countries by laws backed by government enforcement measures, including the government`s power to remove children from their parents for abusing their children. 38 The law is not merely a commandment; It is a social will capable of rational and general expression and which evokes loyalty and approval by its usefulness and practicality, as well as by its characteristics of security, equity and justice. However, this accessibility of the expression must recognize the limitations of the text to which I have referred. Ultimately, the law can only work in a practical and meaningful way through consent and loyalty. And no legal system can generate loyalty and consent without inherent justice – an intuitive response of acceptable and accepted values, not necessarily by reference to every provision of the system, but by reference to its whole, including its shortcomings and shining examples. Everyone gives content to the whole. Nothing is perfect. Moreover, no legal system can create a sense of security without an acceptable level of security. The need for balance and the inevitable complexity of the relationship between rules and values and their interdependence should be recognized as a central element of law and the administration of justice. There is no point in claiming that such complexity can be managed by eliminating values and expressing more rules verbatim.
This process only serves to create other values, and probably darker values disguised as rules. 33 Private law, like public law, must seek an appropriate balance between rules and values. In 1996, in Kable v DPP (NSW),[5] the High Court of Australia was confronted with an act of state authority (by Parliament) to facilitate pre-trial detention. Mr. Kable had been convicted of a violent crime: the manslaughter of his wife. As he neared the end of his sentence, he sent letters from prison to people suggesting that he might commit more violent crimes against those people after his release. An Act of the Parliament of New South Wales was passed, which provided for his continued detention by order of the Supreme Court under certain conditions (no conviction for a crime). The argument of Sir Maurice Byers, on behalf of Mr. Kable, went back to the very foundations of civil society: he argued that the Statute was not a law, but essentially an order of the Court to imprison Mr. Kable; He argued that the Constitution of New South Wales recognized the rule of law as a constitutional requirement, the maintenance of which was an effective acceptance of the Australian Constitution; He argued that the law was incompatible with a fundamental element of representative parliamentary democracy based on the rule of law, since it required a custodial sentence other than a conviction for a criminal offence; and the weakening of state courts that render them unfit to establish federal jurisdiction. 36 Another part of the balance lies in the fact that, sometimes, a simple and reasonable rule can be expressed coherently and without complexity only by a rule expressed in general terms.
The rule, as Lord Mansfield put it, “easy to learn and easy to maintain”[44] is often based on a standard such as reason or honesty, formulated to meet the expectations of honest and reasonable business participants.