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 PRELIMINARY

Cambridge
Legal Studies
Fourth Edition

Paul Milgate, Kate Dally, Phil Webster

Daryl Le Cornu, Tim Kelly

ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press

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Information on this title: www.cambridge.org/9781316621059

First Edition © Kate Dally, Paul Milgate, Philip Webster and Tim Kelly 2006
Second, Third and Fourth Editions © Paul Milgate, Kate Dally, Phil Webster, Daryl Le Cornu and Tim Kelly 2010,
2013, 2016
This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective
licensing agreements, no reproduction of any part may take place without the written permission of
Cambridge University Press.

First published 2006

Second Edition 2010
Third Edition 2013
Fourth Edition 2016
20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5

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Typeset by Shaun Jury
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ISBN 978-1-316-62105-9 Paperback

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Several variations of Aboriginal and Torres Strait Islander terms and spellings may also appear; no disrespect is intended.
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Contents

About the authors  vi 4.2 Conditions that give rise to law reform 82
Author and publisher acknowledgements vii 4.3 Agencies of reform 90
Introduction  viii 4.4 Mechanisms of law reform 95
Components of Cambridge Legal Studies Chapter summary 98
Preliminary ix Chapter summary questions 98
How to use this resource  x
Chapter 5 – Law reform in action 100
Glossary of key words xii
Acknowledgements xiii Topic 1: Law reform and native title
5.1 Conditions that led to law reform relating to
native title 103
Part I – The legal system 5.2 Operation of the legal system relating to native
title104
Chapter 1 – Basic legal concepts 2
5.3 Agencies of law reform relating to native title 109
1.1 The meaning of law  4
5.4 Effectiveness of law reform relating to native
1.2 Customs, rules and law  4
title114
1.3 Values and ethics  7
1.4 Characteristics of just laws  7 Topic 2: Law reform and sport
1.5 The nature of justice  8 5.5 Conditions that led to law reform relating to
1.6 Procedural fairness and the principles of sport116
natural justice  9 5.6 Agencies of law reform relating to sport 121
1.7 The rule of law  10 5.7 Mechanisms of law reform relating to sport 122
1.8 Anarchy and tyranny 13 5.8 Effectiveness of law reform relating to sport 124
Chapter summary 15
Topic 3: Law reform and sexual assault
Chapter summary questions 15
5.9 Conditions that led to law reform relating to
Chapter 2 – Sources of contemporary sexual assault 127
Australian law 16 5.10 Agencies of law reform relating to sexual
2.1 Australia’s legal heritage  18 assault128
2.2 Common law  21 5.11 Mechanisms of law reform relating to sexual
2.3 Court hierarchy 25 assault130
2.4 Statute law  29 5.12 Effectiveness of law reform relating to sexual
2.5 The Constitution  33 assault  132
2.6 Aboriginal and Torres Strait Islander peoples’
customary laws  45 Topic 4: Young drivers and the law – refer
2.7 International law  49 to additional digital-only material at the
Chapter summary 58 end of the book
Chapter summary questions 58 5.13 Conditions that led to law reform relating to
young drivers
Chapter 3 – Classification of law 60
5.14 Agencies of law reform relating to young drivers
3.1 Public law 62
5.15 Mechanisms of law reform relating to young
3.2 Private law  64
drivers
3.3 Criminal and civil court procedures  68
5.16 Effectiveness of law reform relating to young
3.4 Common and civil law systems 76
drivers
Chapter summary 78
Chapter summary questions 78
Topic summaries 135
Chapter 4 – Law reform 80 Topic summary questions 135
4.1 What is law reform?  82

ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press iii

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 CAMBRIDGE LEGAL STUDIES PRELIMINARY

Part II – The individual and the law 10.4 Effectiveness of responses (extra content in
digital-only material)231
Chapter 6 – Your rights and
Chapter summary 236
responsibilities140
Chapter summary questions 236
6.1 What are rights and responsibilities? 142
6.2 The nature of individual rights 143
Chapter 11 – Migrants – this additional
6.3 Individuals’ rights and responsibilities in
digital-only chapter can be found at the
relation to the state 146
end of the book
6.4 International protection of rights  151
11.1 Migrating and multiculturalism
Chapter summary 154
11.2 The migration program
Chapter summary questions 154
11.3 The refugee and humanitarian program
Chapter 7 – Resolving disputes 156 11.4 Unlawful non-citizens
7.1 Law enforcement agencies 158 11.5 Consequences of breaching immigration laws
7.2 Disputes between individuals 162 11.6 Issues faced by migrants
7.3 Disputes with the state 165 11.7 Legal responses
Chapter summary 175 11.8 Non-legal responses
Chapter summary questions 175 11.9 Effectiveness of responses
Chapter summary
Chapter 8 – Contemporary issue:
Chapter summary questions
The individual and technology 176
8.1 The impacts of technology on the individual Chapter 12 – Aboriginal and Torres Strait
(extra content in digital-only material)178 Islander peoples – this additional digital-
8.2 Legal implications (extra content in digital- only chapter can be found at the end of the
only material)180 book
8.3 Difficulties with enforcing rights 186 12.1 Aboriginal and Torres Strait Islander peoples
8.4 Future directions 192 and the law
Chapter summary 197 12.2 Areas of disadvantage for Indigenous
Chapter summary questions 197 Australians
12.3 Legal responses
12.4 Non-legal responses
Part III – Law in practice 12.5 Effectiveness of responses
Chapter summary
Issue 1: Groups or individuals suffering
Chapter summary questions
disadvantage
Chapter 13 – People who have a mental
Chapter 9 – Children and young people 200
illness – this additional digital-only
9.1 Children, young people and the law 202
chapter can be found at the end of the book
9.2 Legal responses (extra content in digital-only
13.1 People with mental illness and the law
material)204
13.2 Legal responses
9.3 Non-legal responses 211
13.3 Non-legal responses
9.4 Effectiveness of responses (extra content in
13.4 Effectiveness of responses
digital-only material)212
Chapter summary
Chapter summary 216
Chapter summary questions
Chapter summary questions 216

Chapter 10 – Women 218

Issue 2: Events that highlight legal issues
10.1 Women and the law (extra content in digital-
only material)220 Chapter 14 – The Bali Nine 242
10.2 Legal responses (extra content in digital-only 14.1 A brief history of the Bali Nine 244
material)225 14.2 Legal responses (extra content in digital-only
10.3 Non-legal responses 230 material)248

iv ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press

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 CONTENTS

14.3 Non-legal responses 252 19.4 Effectiveness of responses

14.4 Effectiveness of responses (extra content in Chapter summary
digital-only material)254 Chapter summary questions
Chapter summary 258
Chapter 20 – The Northern Territory
Chapter summary questions 258
National Emergency Response – this
Chapter 15 – Alcohol and violence 260 additional digital-only chapter can be
15.1 Violence in the Kings Cross area 262 found at the end of the book
15.2 Legal responses 263 20.1 Background to the Northern Territory National
15.3 Non-legal responses 268 Emergency Response
15.4 Effectiveness of responses 271 20.2 Legal responses
Chapter summary 273 20.3 Non-legal responses
Chapter summary questions 273 20.4 Effectiveness of responses
Chapter summary
Chapter 16 – The Port Arthur massacre – Chapter summary questions
this additional digital-only chapter can be
found at the end of the book
Issue 4: Criminal or civil cases that raise
16.1 A brief history of the Port Arthur massacre
issues of interest to students
16.2 Legal responses
16.3 Non-legal responses Chapter 21 – Digital piracy 314
16.4 Effectiveness of responses 21.1 File-sharing, digital copyright and the law 316
Chapter summary 21.2 Legal responses 318
Chapter summary questions 21.3 Non-legal responses 326
21.4 Effectiveness of responses 328
Chapter summary 332
Issue 3: Individuals or groups in conflict with
Chapter summary questions 332
the state
Chapter 22 – Drug testing 334
Chapter 17 – Julian Assange 276
22.1 Drug use in Australia 336
17.1 A brief history of the Julian Assange case 278
22.2 Legal responses 339
17.2 Legal responses 284
22.3 Non-legal responses 349
17.3 Non-legal responses 287
22.4 Effectiveness of responses 351
17.4 Effectiveness of responses 288
Chapter summary 353
Chapter summary 290
Chapter summary questions  353
Chapter summary questions 290

Chapter 18 – Outlaw motorcycle gangs 292 Chapter 23 – Facebook privacy issues –

18.1 Outlaw motorcycle gangs in Australia 294 this additional digital-only chapter can be
18.2 Legal responses 301 found at the end of the book
18.3 Non-legal responses 307 23.1 Social media and the law
18.4 Effectiveness of responses 308 23.2 Legal responses
Chapter summary 310 23.3 Non-legal responses
Chapter summary questions 310 23.4 Effectiveness of responses
Chapter summary
Chapter 19 – Mohamed Haneef – this Chapter summary questions
additional digital-only chapter can be
found at the end of the book Answers to multiple-choice questions  356
19.1 A brief history of the Mohamed Haneef case Glossary  357
19.2 Legal responses Index 367
19.3 Non-legal responses Additional digital-only material 373

ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press v

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 About the authors

Paul Milgate Dip Teach, BEd, Grad Cert in Theology and Masters in Educational
Leadership is the Executive Officer to the Director of Schools at the Catholic Schools
Office in Lismore. In the past he has been the Leader of Pedagogy and Head Teacher
of the HSIE (Human Society and Its Environment) Faculty at Xavier Catholic College on
the North Coast of NSW. He has extensive experience in Legal Studies, having taught
it since its inception, and has assisted over many years in the planning and running of
HSC study days on the North Coast.

Kate Dally BA DipEd is Head Teacher of Social Sciences at Auburn Girls High School
in Sydney. She has extensive teaching experience, having taught Social Sciences for
the past 25 years. Kate’s experience also covers HSC marking in both Legal Studies and
Business Studies. She has written for Success One Business Studies for a number of
years.

Phil Webster BA DipEd MEd MACE is Head Teacher of HSIE at Mosman High. He has
over 25 years’ experience in HSIE as a teacher of Legal Studies, Society and Culture, and
Business Studies, with a particular interest in the changing role of law in society. Phil
is passionate about issues of human rights, indigenous affairs and justice in a rapidly
changing world.

Dr Daryl Le Cornu BA(Hons) DipEd PhD has many years of experience teaching Legal
Studies in high schools. He has a passion for teaching about human rights, the United
Nations, global governance and nuclear disarmament. Daryl has also been involved in
curriculum development in NSW for many years. Currently, he is a History Curriculum
Lecturer at the ACU (Australian Catholic University), the Education Officer for the UNAA
NSW (United Nations Association of Australia), President of the WCAA (World Citizens
Association Australia) and is a member of the Board of ICAN Australia (International
Campaign to Abolish Nuclear Weapons).

Tim Kelly BA DipEd DipLaw obtained his BA DipEd from the University of New South
Wales in 1984 and completed his Diploma in Law from the Legal Practitioners Admissions
Board in 1996. He began teaching Legal Studies in 1993 at St Mary’s Maitland. Since 1998,
Tim has been the HSIE Coordinator at St Mary’s in Casino and is currently an Education
Officer for the Lismore Catholic Schools Office. Tim is also a tutor in HSIE Curriculum
Specialisation at Southern Cross University and is a recent HSC marker for Legal Studies.

vi ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press

Photocopying is restricted under law and this material must not be transferred to another party.
Author and publisher acknowledgements

Thanks to my wife, Barbara, my daughter, Ebony, To the American branch of the family – Jared, Katie,
and my son, Zach – a great team! Ryker and Chiara.
Paul Milgate Daryl Le Cornu

Thanks to all of my family and friends who put up My family and friends are fabulous. Well done
with me as I wrote my chapters. Breakers (Hannah) and Trojans (Jack). Always.
Kate Dally Tim Kelly

To the boys at Hells Angels MC – thanks for your
assistance with OMCGs. To Katie Wood at Amnesty –
huge thanks for your support and research. Tristan
Tipps Webster – the ATSI guru – many thanks.
Phil Webster
Many thanks to Nicholas Gangemi, Barrister-at-
Law, who reviewed this book and the accompanying
Teacher Resource material.
The publishers

ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press vii

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 Introduction
To the student
Congratulations on choosing Cambridge Legal
Studies Preliminary Fourth Edition. This edition has
been updated to meet the changing processes of
the legal system and the requirements of the current
Stage 6 Legal Studies Syllabus in New South Wales.
Since the introduction of Legal Studies as a
HSC discipline in 1989, the world has undergone
incredible change. Predictions of increasingly
‘disruptive’ technologies will continue to challenge
the ability of the law to balance the tension of
individual and community rights. Regardless,
Legal Studies continues to contribute to students
completing their secondary schooling as better
informed citizens who are able to think critically
about the processes and institutions that shape their
lives on a daily basis.
The rights people enjoy within democratic
societies can at times be eroded by governments
when electorates become apathetic about their
freedoms and liberties. Legal Studies will allow
you to explore the power vested in our democratic
institutions and wielded by our elected leaders. It
viii ISBN 978-1-316-62105-9 © Milgate et al. 2016
Photocopying is restricted under law and this material must not be transferred to another party.
explores issues that will challenge the way you see
the world and how you understand the concept
of achieving justice through legal and non-legal
means.
Cambridge Legal Studies Preliminary Fourth
Edition is a comprehensive resource that introduces
you to a dynamic and challenging subject. It brings
the law to life for you, both inside and outside the
classroom.
You will discover a wealth of material that
introduces you to the Australian legal system and
how the individual interacts with and is affected by
the law, and you will gain insight into how the law
works in practice in a variety of contexts. You will
be engaged and stimulated by up-to-date case law
and recent legislative developments. Practically,
updated research and review activities will help you
build your research skills and make sure that you are
ready for your exam.
We wish you luck and success.
Paul Milgate
Cambridge University Press
Components of Cambridge Legal Studies
Preliminary
The Cambridge Legal Studies Preliminary resource
package consists of four components:
1 Student book – print
The Student Book contains all topics in Part I,
Part II (including additional topics under Law Reform
in Action) and a range of contemporary high-interest
topics in Part III.
2 Student book – digital
Your purchase of the print book gives you access
to the following digital resources on Cambridge GO.
• Downloadable PDF textbook
A PDF of the print textbook, with additional
digital-only content:
– Extended material in some chapters,
including an additional topic in Chapter 5 –
Law reform in action
– Seven complete additional chapters in
Part III: Law in practice, covering a range of
different issues.
• Online Interactive Textbook
An online version of the textbook with a further
host of interactive features to enhance the
teaching and learning experience. These
include:
ISBN 978-1-316-62105-9
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–video and audio
–drag-and-drop activities
–auto-marked multiple-choice quizzes
–additional digital-only chapters from the
PDF textbook.
• Other extra resources on the Cambridge GO
website include:
– all Review, Research and Chapter questions
in electronic format
– marking criteria for the Extended Response
Questions
– weblinks
– additional resources.
3 Teacher Resource Package
The Teacher Resource Package contains a wide
range of materials to support students and teachers,
with course, lesson and teaching plans, and
assessment and homework preparation.
Guide to Icons
The Cambridge GO icon in the print
book lets you know that there is
additional material available in the
digital versions.
The update icon lets you know that
updated content within this section is
available in the Interactive Textbook
and in a document downloadable
from Cambridge GO.
© Milgate et al. 2016 Cambridge University Press ix
 How to use this resource

Part and chapter openers

Each part and chapter of Cambridge Legal Studies
Preliminary begins with an opener that contains:
• principal focus and themes and challenges
from the Stage 6 Syllabus
• information relating to the HSC external
examination
• chapter objectives
• key terms/vocabulary
• relevant law (including important legislation
and significant cases)
• legal oddity.

Media articles
A range of current media articles is provided to
help you understand how the law operates in
real-world situations.

Glossary terms
Glossary terms are bolded in the text, and
defined for you on the page in the print book, or
as pop-ups in the interactive version. They are
also gathered in the Glossary.

Review and research activities

Review activities are designed to help you test
your knowledge of key concepts and skills.
Research activities are designed to extend your
knowledge by researching relevant cases or
issues using source material.

Legal Links
In addition to the activities, there are a number
of suggested links to internet resources and
activities in each chapter. These will help you
extend your knowledge and stay up to date with
changes in the legal system.

x ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press

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 HOW TO USE THIS RESOURCE

Case studies
Examples, or groups of examples, are examined
in more depth to illustrate particular legal issues.

2018 updates
Some content in the interactive version of this
book was updated in December 2018. Margin
icons indicate sections that have been updated.

In Court
A number of relevant legal cases appear
throughout the text. Each case allows you to apply
your knowledge of the legal system to real-world
situations. Many cases are followed by a range
of questions to help you test what you’ve learnt.

End-of-chapter sections
At the end of each chapter you will find a chapter
summary and a set of questions to help you
consolidate your learning from the chapter.

Video and audio

The interactive textbook contains video and
audio items enrich the learning experience.

Interactive activities
Also included in the interactive textbook
are automarked activities (e.g. drag-and-
drop questions) to assist recall of facts and
understanding of concepts.

Downloadable Word documents

All review, research and end-of-chapter questions
are available as downloadable Word documents,
which can be accessed from within the interactive
textbook or via Cambridge GO.

ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press xi

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 Glossary of key words

Syllabus outcomes, objectives, performance bands describe

provide characteristics and features
and examination questions have key words that
discuss
state what students are expected to be able to do. identify issues and provide points for and/or against
A glossary of key words has been developed to help
distinguish
provide a common language and consistent meaning recognise or note/indicate as being distinct or different
in the Higher School Certificate documents. Using from; note differences between
this glossary will help students and teachers evaluate
make a judgement based on criteria; determine the value
understand what is expected in responses to
of
examinations and assessment tasks.
examine
account inquire into
account for: state reasons for, report on; give an account
of: narrate a series of events or transactions explain
relate cause and effect; make the relationships between
analyse things evident; provide why and/or how
identify components and the relationship between them;
draw out and relate implications extract
choose relevant and/or appropriate details
apply
use, utilise, employ in a particular situation extrapolate
infer from what is known
appreciate
make a judgement about the value of identify
recognise and name
assess
make a judgement of value, quality, outcomes, results or interpret
size draw meaning from

calculate investigate
ascertain/determine from given facts, figures or plan, inquire into and draw conclusions about
information justify
clarify support an argument or conclusion
make clear or plain outline
classify sketch in general terms; indicate the main features
arrange or include in classes/categories predict
compare suggest what may happen based on available
show how things are similar or different information

construct propose
make, build, put together items or arguments put forward (e.g. a point of view, idea, argument,
suggestion) for consideration or action
contrast
show how things are different or opposite recall
present remembered ideas, facts or experiences
critically (analyse/evaluate)
add a degree or level of accuracy depth, knowledge and recommend
understanding, logic, questioning, reflection and quality provide reasons in favour

deduce recount
draw conclusions retell a series of events

define summarise
state meaning and identify essential qualities express the relevant details concisely

demonstrate synthesise
show by example putting together various elements to make a whole

xii ISBN 978-1-316-62105-9 © Milgate et al. 2016 Cambridge University Press

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Acknowledgements
The author and publisher wish to thank the following
sources for permission to reproduce material:
Cover: jjron / Wikimedia Commons under the GNU Free
Documentation License Version 1.2; Used under licence
2015 from Shutterstock.com / Ollyy.
Images: Used under licence 2015 from Shutterstock.
com / kojoku, Prelims(2), p.139 / JT888, Prelims(3) /
Nils Versemann, Prelims(1),13.5 digital, 23.6 digital /
Michael Leslie, 1.1 / Radu Razvan, 1.2(l) / Paolo Bona,
1.2(r) / Bildagentur Zoonar GmbH, 1.3 / sebra, 1.4 /
Alexander Raths, 1.5 / wavebreakmedia, 1.6, 3.7, 5.15,
7.5 / Maciej Bledowski, 1.7 / marc152d, 1.9 / ymgerman,
p.16-17 / Xufang, 2.1 / chrisdorney, 2.2 / Olivier Le
Queinec, 2.3 / Zerbor, 2.4 / max blain, 2.8 / CO Leong,
2.16 / Alvov, 2.19 / ChameleonsEye, 2.20, 2.23, 3.12, 6.7,
20.5 / Symbiot, 2.21 / jan kranendonk, 2.24 / Jorisvo, 2.25 /
Tomasz Bidermann, 2.26 / Jacob Lund, pp.60-61 / Sergey
Peterman, 3.2 / GaudiLab, 3.10 / Dario Lo Presti, 3.9 /
DmitryKalinovsky, 3.6 / Stepan Bormotov, 3.5 / Dragon
Images, 3.3 / StockLite, 3.2 / DGLimages, 4.2 / Eugenio
Marongiu, pp.80-81 / Elena Elisseeva, 4.1 / DGLimages,
4.2 / Lisa F. Young, 4.3 / LuckyImages, 4.4 / Rawpixel.com,
4.5, p.239, 8.5a digital, 10.7 digital, pp.420-421 digital
/ Fred van Diem, 4.6 / Rasulov, 4.7 / Andrey_Popov, 4.8
/ Niar, 4.11 / Niar, 4.11 / Dan Breckwoldt, pp.100-101 /
lizzul, p.102 / xshot, p.115 / Stanislav Fosenbauer, 5.1 /
Patricia Hofmeester, 5.6 / Pok Leh, 5.7 / matmix, 5.14
/ Neale Cousland, 5.16 / Padmayogini, 5.21 / Daxiao
Productions, p.134, p.373 digital / Dmitry Kalinovsky,
5.22 / senk, pp.140-141 / Rob van Esch, 6.1 / Lisa F
Young, 6.2 / Dhannte, 6.3 / dboystudio, 6.4 / Gary
Chong, 6.5 / cowardlion, 6.6 / Orlok, 6.9 / Olesia Bilkei,
7.3 / bikeriderlondon, 7.6, pp.118-119, 10.4c digital /
paintings, 7.7, 7.8, 11.11, 12.4 digital, 20.8 digital /
Vadim Ratnikov, 7.10 / amelaxa, 7.11 / calvin dexter, 7.12
/ goodluz, 8.1, 21.8, 10.4b digital / Den Rise, 8.4 / harper
kt, 8.5 / spaxiax, 8.6 / horoscope, 8.8 / Melpomene, 8.9
/ Rena Schild, 8.10 / JaysonPhotography, 8.11 / Anton
Balazh, 8.13 / GlebStock, 8.14 / Maxx-Studio, 8.15 /
scyther5, p.176-177 / JT888, p.199 / spass, pp.200-201 /
speedkingz, 9.1 / Monkey Business Images, 9.2 / Jimmy
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Part I
The legal system
40% of course time

Principal focus
Through examining law-making processes and institutions, students will gain an understanding of the nature
and functions of the legal system.

Themes and challenges

• Why the law is necessary in the operation of our society
• How society depends on the rule of law
• How different jurisdictions and legal institutions interact
• How law reform and development reflect changes in society
• Factors that shape the Australian law and legal system

Chapters in this part

Chapter 1 Basic legal concepts

Chapter 2 Sources of contemporary Australian law

Chapter 3 Classification of law

Chapter 4 Law reform

Chapter 5 Law reform in action

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Chapter 1
Basic legal concepts
Chapter objectives
In this chapter, students will:
• identify and apply legal concepts and terminology
• identify the changing nature of law
• describe the interrelationship between customs, rules and laws
• explain the relationship between the legal system and society
• discuss the nature of justice in terms of equality, fairness and access
• discuss the concept of procedural fairness and the rule of law
• discuss the concepts of anarchy and tyranny
• communicate legal information by using well-structured responses.

Key terms/vocabulary
access legal system
anarchy natural justice
customary law procedural fairness
customs rule of law
doli incapax rules
equality sanction
ethics state
fairness tyranny
justice values
law

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Legal oddity
What is the difference between a good lawyer and a bad lawyer? A bad lawyer can make a case drag on for
months or even years, while a good lawyer can make it last even longer. Or what do you call 100 lawyers at
the bottom of the ocean? A good start!
Jokes about the legal profession have existed for centuries. Even Shakespeare stated:
The first thing we do, let’s kill all the lawyers.
William Shakespeare, Henry VI, Part 2
It is interesting to note that in the very first case heard in the newly created High Court of Australia
(Dalgarno v Hannah [1903] HCA 1) the names of the key legal personnel could make excellent fodder for
comedians. The two opposing legal representatives were Dr Sly and Mr Wise; suffice it to say Sly won the
case.

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 CAMBRIDGE LEGAL STUDIES PRELIMINARY
1.1 T
 he meaning of law
The law is a dynamic thing – a complex mechanism,
evolving from hundreds of years of tradition, culture
and values.
In general terms, the law can be defined as a
set of enforceable rules of conduct which set down
guidelines for relationships between people and
organisations in a society. The law provides methods
for ensuring the impartial treatment of people and
outlines punishments for those who do not follow
the agreed rules of conduct.
law
a set of rules imposed on all members of a community,
which are officially recognised, binding and enforceable
by persons or organisations such as the police and/or
courts
values
principles, standards or qualities considered worthwhile
or desirable within a society
rules
regulations or principles governing procedure or
controlling conduct
Despite the fact that it often seems to be playing
catch-up, the law attempts to keep pace with our
ever-changing society.
To understand how these rules (known in modern
society as ‘the law’) came about, we also need to
understand why we live in a society.
A society is a group of human beings who are
linked by mutual interests, relationships, shared
Figure 1.1 Laws today are imposed by the
administrative institutions that govern a society, and
there are consequences if they are breached.
4 ISBN 978-1-316-62105-9 © Milgate et al. 2016
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institutions and a common culture. In earliest history,
people usually banded together for basic survival
and would agree to live by rules that protected their
lives and their property.
This tradition has carried on throughout history.
As groups of people formed societies, and cultural
groups within these societies, they established and
enforced rules about the conduct of relationships.
Laws today are imposed by the administrative
institutions that govern a society; they cover all
members of society and there are consequences if
they are breached.
Review 1.1
1 You belong to different communities
whether they are a school, a sporting
group or a religious organisation,
for example. Think of one of the
communities to which you belong and
write down 3–4 rules of this group.
How are these rules enforced? Why do
you think group members follow these
rules?
2 What other areas of law can you think of?
List at least five.
Legal Links
View the NSW Bar Association website for
easy-to-read information about the Australian
legal system.
The State Library of NSW provides
information on the history of the legal system
in Australia, which can be accessed via http://
cambridge.edu.au/redirect/?id=6487.
1.2 C
 ustoms, rules and law
Customs
Put simply, customs are established patterns of
behaviour among people in a society or group.
Customs vary depending on the culture, religion
and history of a group of people, society or country.
For example, in Australia it is customary for a man
Cambridge University Press

Figure 1.2 Every culture has its own customs.
to shake hands when greeting a friend, whereas in
Europe this greeting may be in the form of a kiss on
each cheek.
Where a custom is followed by most of the
population over time, it may become part of the
laws of that society. Because of differences between
societies, not all customs become law. Customary
law refers to established patterns of behaviour that
are accepted within a particular social or commercial
setting and are of sufficient importance to be
enforced. These principles and procedures develop
through general usage according to the customs of
a people, state or group of states. Customs arose to
deal with problems in the most harmonious ways.
Over time, these customs become accepted as legal
requirements. Three types of customary law that
have influenced the Australian legal system are:
• Aboriginal and Torres Strait Islander
customary law
• English customary law
• international customary law.
customs
collective habits or traditions that have developed in a
society over a long period of time
customary law
principles and procedures that have developed through
general usage according to the customs of a people or
nation, or groups of nations, and are treated as obligatory
state
a politically independent country
In many societies, most customary law is never
written down, as is the case with Indigenous
Australian customary law. In other societies,
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1
CHAPTER 1 BASIC LEGAL CONCEPTS
customary law is eventually recorded and transferred
into written law in formal legal systems.
Rules
If you were to look in a dictionary or on the internet,
you would find many definitions of the word ‘rules’.
Generally, rules refer to prescribed directions for
conduct in certain situations. Rules are generally
made by groups and only affect people within those
groups. These rules often vary between groups and
are not enforceable by the state. For example, there
are rules for playing games and for behaviour in the
classroom. If these rules are broken, there is some
form of punishment attached, enforceable by those
involved in the making of the rules (e.g. suspension
or detention). Rules can also be altered by these
people in order to deal with changes in situations.
This usually happens after consultation with the
group members involved.
In a legal sense, rules form the basis of laws.
However, rules can be changed quite quickly
with the agreement of those involved. Laws, as
you will discover, are more difficult to change and
punishment is not always a simple process.
Law
The law, as we know it, is made up of the formal rules
of society. These ‘legal rules’ have been agreed upon
by the majority of those in the group, and govern
their behaviour and activities.
Laws are different from rules. For example, at the
shopping centre, a sign on the escalator requests
that you stand to the left and do not take strollers
on it. These rules exist for the safety and comfort of
© Milgate et al. 2016 Cambridge University Press 5
 CAMBRIDGE LEGAL STUDIES PRELIMINARY
shoppers. However, they are just rules, and that is
why you will still see people standing on the right
and taking their prams on the escalator. There are
also signs telling you that you cannot smoke in
shopping centres. This is a law, and if someone did
‘light up’, they would be asked to leave the shopping
centre by security or the police, and they might
incur a fine. The consequences of breaking rules
are comparatively minor, despite the fact that it often
shows a lack of consideration for others to go against
these rules.
Laws allow and prohibit a whole variety of
activities, from where rubbish should be placed to
how we should treat fellow human beings. Failure
to follow laws incurs penalties ranging from a fine
to imprisonment.
Laws have certain characteristics that make
them different from rules:
1 Laws are binding on the whole community.
This means that they apply to all members of
society.
2 Laws can be enforced. This means that
penalties apply if a law is broken.
3 Laws are officially recognised. This means that
governments and courts recognise laws and
enforce them.
4 Laws are accessible (or discoverable). This
means that people can find out which law
applies to a particular situation.
5 Laws relate to public interest. This means that
laws exist for things that concern the whole
of society, and that interest is considered
to outweigh the costs or drawbacks of the
government’s involvement in enforcing them.
6 Laws reflect rights and duties. This means
that everyone in society has responsibilities to
others, such as the duty to drive safely, and that
everyone has the right to be treated in the same
way by others.
Table 1.1 Differences between laws and rules
Laws
to be obeyed by all citizens of a society
made by a law-making body
enforced through the courts
a breach results in a prescribed sanction imposed
by the courts
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In Australia today, the laws have been, and still
are, mainly decided by elected government officials
at local, state or federal government levels. Judges
also have the power to make laws in certain cases
when they set a precedent. This will be discussed
in greater detail in the following chapters.
It is expected by society that the law will look
after all members of the group and, therefore, that
any laws made will be fair, just and equitable. It is
also expected that they will reflect traditional and
current ethics and values. Although this represents
the ideal situation, what is actually attainable may be
another matter.
ethics
(1) rules or standards directing the behaviour of a person
or the members of a profession; (2) a major branch of
philosophy, which investigates the nature of values and
of right and wrong conduct
Relationship between customs,
rules and laws
As people have joined together in communities, a
relationship has developed between rules, laws and
customs:
• Whenever people have lived together in
groups, they have developed rules to govern
their behaviour and thus maintain the smooth
running of activities.
• These rules were based on the traditions,
customs and values of the group.
• These rules have penalties attached if members
of the group fail to follow them.
• Groups usually put someone, or a small group,
in charge to enforce these rules and the
associated penalties. In modern times, this
became the government.
• Over time, these rules became formalised laws,
known in society as ‘the law’.
Rules
to be obeyed by specific individuals or groups
made by individuals or groups
enforced by leaders of a group
consequences of a breach at the discretion of the
leader of a group
Cambridge University Press

Review 1.2
1 Identify any customs that exist in your
day-to-day life. This may be within your
favourite sport or even at your school.
List the customs and share it with the
class.
2 Explain how laws differ from rules.
3 Describe the relationship between
customs and rules and the process that
may occur when rules transform into
laws.
1.3 V
 alues and ethics
We all have values by which we try to live. Living
according to our ethics means that we do things that
we consider to be morally right.
Law-makers try to incorporate these values
and ethics into laws. However, it is very difficult to
make rules, and thus laws, about everyone’s values,
especially as there are often groups in society that
have differing standards of what is morally right or
wrong. For this reason, laws will only cover those
ethical values that are common to the majority or
the dominant group. Over the past three decades,
many groups have voiced their values and ethics in a
public manner in an attempt to influence the law and
the legal system. Examples (with varying degrees of
success) are:
• The Mardi Gras (Sydney) – an internationally
recognised annual event celebrating same-sex
Figure 1.3 Ethics are the consideration of what is
right and wrong.
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1
CHAPTER 1 BASIC LEGAL CONCEPTS
relationships. It started off as a protest march
against the treatment of same-sex couples
by the legal system and the lack of protection
afforded to their relationships.
• In 2015, protests were held around Australia by
a group called ‘reclaim Australia’ to highlight
concerns about the loss of Australian values
and the increasing acceptance of religion-
based law such as sharia law. In response to
this, another group who claimed to be against
racism, rallied in protest as well. In Melbourne,
when both groups met, violent clashes
occurred. Protests such as these aim at
getting the government to review current
laws (or lack of them) and make appropriate
changes.
What is meant by ethical
behaviour?
Ethics and ethical behaviour are difficult things to
define, especially since different people will have
different ethical standards. Simply put, ethics is
doing the right thing; that is, making a judgement
about what is the best thing to do in certain
situations, and what would be the wrong thing
to do. For example, the law does not say that you
should open a door for someone whose hands are
full of packages, or to help a parent with a stroller
down the station stairs, but most people would carry
out these actions as it is the right thing to do. Often
ethical behaviour affects our integrity; that is, how
we feel about ourselves and how others see us. For
these reasons, most people will behave in an ethical
(or moral) way and so laws do not have to be put in
place to make it happen.
1.4 C
 haracteristics of just laws
The concept of justice involves the fair and impartial
treatment of all persons, especially under the law. In
simple terms, justice can be seen as the continued
effort to do the right thing by everyone. When it
comes to making laws in a democratic society,
justice involves consulting the people and carrying
out the decisions of the majority, while ensuring that
the minority has the opportunity to put forward their
point of view. A just law is one that allows everyone
to receive fair treatment and outcomes, and ensures
that human rights are recognised and respected.
© Milgate et al. 2016 Cambridge University Press 7
 CAMBRIDGE LEGAL STUDIES PRELIMINARY

Figure 1.4 Justice should be fair and impartial.
This is not always an easy thing to do, as you will
learn throughout the Legal Studies course.
Equality
Equality means that all people in a society are
treated in the same way with respect to political,
social and civil rights, and opportunities; and that
no one enjoys unfair advantage or suffers unfair
disadvantage. Although we would like to think that
equality applies to everyone, our society tolerates
many levels of equality and inequality. For example,
depending on the situation, a 10-year-old child will
be treated differently from a 17-year-old teenager or a
40-year-old adult. While the law strives for equality, it
also takes into account people’s different capacities
(such as maturity) and recognises that some people
are more vulnerable than others and so provides
protection for them. For example, children under 10
years of age cannot be held legally accountable for
their actions and therefore cannot be convicted of a
criminal offence. This presumption is known as doli
incapax. In the case of 10–14-year olds, the court will

justice
the legal principle of upholding generally accepted
rights and enforcing responsibilities, ensuring that equal
outcomes are achieved for those involved
make an assessment as to whether the child can tell
the difference between right and wrong, and this will
influence the way in which the matter is handled.

doli incapax
a Latin term meaning ‘incapable of wrong’; the
presumption that a child under 10 years of age cannot be
held legally responsible for his or her actions and cannot
1.5 T
 he nature of justice be guilty of a criminal or civil offence
The system of courts (and those who work within
the courts such as judges and legal practitioners),
prosecutors and police in a country is often called
the legal system. It is the task of the legal system
to ensure that all citizens have equal access to the
law and that the law provides equality, fairness and
justice to all members of society. Equality, fairness
and justice are central concepts which allow us
to distinguish good law from bad law. However,
if all citizens do not have full and equal access to
the legal system, equality, fairness and justice are
just empty concepts. It is only by combining all of
these principles that a legal system will be seen to
be providing justifiable and appropriate outcomes.

legal system
the system of courts, prosecutors and police within a
country
equality
the state or quality of being equal; that is, of having the
same rights or status
fairness
freedom from bias, dishonesty or injustice; a concept Figure 1.5 A young person is often tried differently
commonly related to everyday activities from that of an adult.

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 1
CHAPTER 1 BASIC LEGAL CONCEPTS

Fairness women, financially disadvantaged people, people

Fairness and justice are usually associated with
each other. The difference is that the term ‘fairness’
applies to everyday life, whereas ‘justice’ has more
legal connotations. People may have different
opinions about what is fair.
For example, suppose one team wins a sport
competition because all of its players, randomly
selected, happen to be taller than those on the other
team. If the rules of the competition do not specify
that both teams must have players of the same size,
it may seem unfair to the losing team, but there is no
‘fact of the matter’. If Ann places a bet on the team
she knows has the taller players, and none of the
other people who placed bets knows anything about
the teams or how tall the players are, Ann’s winning
of the bet may also be regarded as unfair – as a result
of her having knowledge the others lacked.
In other words, even if it is sometimes possible
for an opinion about what is fair to be justified or
from non-English speaking backgrounds, people
living with disability, Aboriginal and Torres Strait
Islander peoples, and those who are institutionalised
may experience difficulties in finding appropriate
legal solutions.
1.6 P
 rocedural fairness and the
principles of natural justice
Procedural fairness refers to the idea that there must
be fairness in the processes that resolve disputes. It
is closely linked to the concept of natural justice; the
two terms are often used interchangeably.
procedural fairness/natural justice
the body of principles used to ensure the fairness and
justice of the decision-making procedures of courts;
in Australia, it generally refers to the right to know the
case against you and to present your case, the right to
freedom from bias by decision-makers and the right to a
decision based on relevant evidence

mistaken, there is no single social mechanism for

deciding what is fair, or ensuring fairness. Natural justice refers to the fact that everyone
When rules are made, the expectation is that they should be treated fairly in legal situations. There are
will be fair to those covered by them. In the same two main principles of natural justice. These are:
way, when a rule is translated into law, it is expected • the right to be heard – this includes the right to
that it will be fair to all members of society. Justice is a fair hearing
more specific than fairness, as the term is applied to • the right to have a decision made by an
situations covered by the law, which tries to ensure unbiased decision-maker – even an appearance
that everyone has the same opportunities. of bias is enough to constitute a breach of
natural justice.
Access
In a democratic society such as Australia, protecting
the rights of all citizens is the ultimate goal of the law.
But in order for the legal system to meet this goal,
all people must have the same level of access to the
institutions and agencies of the law. Access refers
to the ability to obtain or make use of something.
The concept of justice suggests that everyone who
is covered by a legal system and its laws should have
equal access to that system. This includes ensuring
that citizens are aware of the laws that affect them
and understand their rights and responsibilities
under these laws.

access
the right or opportunity to make use of something

However, in reality, the legal system is not

accessible to everybody in an equal way. In particular, Figure 1.6 Everyone has the right to a fair trial.

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 CAMBRIDGE LEGAL STUDIES PRELIMINARY

The assertion that ‘justice should not only be rule of law

done, but should be seen to be done’ comes from the
English case R v Sussex Justices; Ex parte McCarthy
[1924] 1 KB 256. It was discovered that in a criminal
trial in which McCarthy was convicted of dangerous
driving, a clerk to the magistrates was also a solicitor
who had represented the person suing McCarthy
in a separate civil case arising out of the accident.
Although the magistrates did not consult the clerk
for his opinion, and the clerk gave them no advice on
the matter, McCarthy’s conviction was overturned
on the basis of the possibility of bias.
Review 1.3
1 Why do we need laws?
2 Define the following basic legal notions.
You can choose to use words, pictures or
cartoons to define them:
a custom
b rules
c law
d fairness
e equality
f justice
g values
h ethics
3 Write an explanation of why you obey the
law. Are there any laws that you don’t
follow or believe in? Why is this?
the principle that nobody is above the law; this
can be seen in the requirement that governmental
authority must be used in line with written, publicly
disclosed laws, for which established procedural steps
(due process) have been taken in the adoption and
enforcement
Why do people obey the law?
In general terms, people within a society like to have
rules and laws because they create order. Laws help
each person to feel a sense of security – the law is
clear about what is expected of them as citizens
and what they can expect from others. As the law
is based on customs, it also helps to reinforce the
values of most members of society. In principle, the
law embodies the concept that what each individual
believes is important has the same importance to the
larger group.
Laws also function to protect all members of
society. They tell society what actions are allowed
and those that are not permitted. Laws apply
sanctions to those found guilty of a crime and may
act as a deterrent to those who might otherwise
commit a crime. Laws enable people to resolve
disputes, as they empower the police force and the
courts to enforce and administer the law.
sanction
a penalty imposed on those who break the law, usually in
the form of a fine or punishment

1.7 T
 he rule of law
The principle of the rule of law is that no one is
above the law, including those who make the law.
This means that the groups and individuals who are
involved in the legal system – such as the legislators
and judges who make, administer and interpret the
laws; the police who enforce the law; and the lawyers
who represent and advise people on the law – are all
answerable to the same laws as every other citizen.
Thus, the rule of law means that everyone is subject
to the same laws.
Obvious breaches of the rule of law occur when
officials make favourable decisions for relatives and
friends but apply the law fully for everyone else.
Figure 1.7 People sometimes disobey laws if they do
not consider the penalty to be sufficiently harsh.

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 1
CHAPTER 1 BASIC LEGAL CONCEPTS

People will not follow rules if they do not agree
with them or feel that the rules have no connection
to them. This is especially so if the penalty attached
to the rule is seen as inadequate. For example, think
about the penalties attached to riding your bike or
skateboard in areas where it is not permitted, or
talking on a mobile phone when driving. While many
people obey these rules and laws, others do not, as
they do not consider the penalty (e.g. a fine or demerit
points) to be enough of a deterrent. Some people
believe that the law does not apply to them or that they
will not be caught, and so do not comply with the law.

Calls to bust smokers in public areas, poll

Damon Cronshaw
19 May 2014, 10:45 p.m.
A SINGLE fine has been issued in the Hunter under anti-smoking laws the NSW government
introduced in January last year – sparking calls for tougher enforcement.
Many residents are fed up with breathing second-hand smoke outside shopping centres, office
buildings and other public places. There are calls for a crackdown and changes in community
attitudes to ensure smoking is significantly reduced in these areas.
Coal Point resident Jim Sullivan, a former council environmental health officer, said the laws were
not being enforced: “They’ve got to bump up the education program and the enforcement and not
put this back on to councils.”
Mr Sullivan said most people were “sick of breathing other people’s smoke”.
NSW Health inspectors are authorised to enforce bans and issue up to $550 penalties for those who
fail to comply.
A Health Department spokeswoman said about 30 NSW Health inspectors worked “across the
state”. Mr Sullivan said health officers “have enough on their plate” and many weren’t employed to
be “smoking policemen”.
“It’d be one of their lowest priorities,” he said.
He said the “best people to enforce it would be parking rangers”.
“They’re used to booking people – they’re tough bastards,” he said.
“They’d book people as quick as lightning.”
The NSW Health Department said the first priority in enforcing the laws had been “educating the
community to provide the opportunity for smokers to adjust their behaviour”.
“This has included regular compliance monitoring at all public outdoor sites covered by the
legislation and the issuing of cautionary notices to people seen to be in breach,” a spokeswoman
said.
Monitoring done last year showed “a high level of compliance with the new rules on smoking in
public places”, she said.
The laws ban smoking “within four metres of a pedestrian entrance or exit” at public buildings,
including shopping centres and offices.
Additionally, the bans apply to sportsground spectator areas, railway platforms, bus stops, taxi
ranks and within 10 metres of children’s play equipment.

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 CAMBRIDGE LEGAL STUDIES PRELIMINARY

One in five Hunter people smoke, state figures show.

NSW Health said 35 fines had been issued in NSW under the new laws since January 2013.
“This includes one fine in the Hunter region,” it said.
The department said compliance with the laws was high when people were “aware of where they
cannot smoke”.
It said a Cancer Institute NSW survey found 85 per cent of respondents were “aware of the new
smoking bans in certain outdoor public places”.
University of Newcastle Public Health Professor Kypros Kypri said laws with “relatively low
enforcement” could produce improvement because many people obey the law.
“They can be substantially enhanced with good enforcement and governments should be telling us
what they’re doing to enforce the new laws,” Professor Kypri said.
NSW Health said the second stage of managing the laws, which was in force now, involved
“strengthening compliance and enforcement”.
The ban will apply in outdoor dining areas from July 2015.
Also from that date, smoking will be illegal within four metres of an entry to a licensed premises,
restaurant and cafe.
Cancer Council NSW regional manager Shayne Connell said his organisation advocated for a
community-led push to change behaviour.
Mr Connell urged people to complain to owners of places where people smoke.
This included places like Hunter Stadium and shopping centres, where “people have to walk
through a wall of smoke to get through the automatic doors”.
In total, NSW Health said it issued 4453 smoking fines in NSW from January 2013 to March 2014.
“During this period, 319 fines were issued in the Hunter region for smoking offences,” the NSW
Health spokeswoman said.
Most of these fines were not issued under the new smoking laws, but public transport laws – which
police and transport officials enforce.
When the government announced the new laws it said there was “no safe level of exposure to
second-hand tobacco smoke”.
“In adults, breathing second-hand tobacco smoke can heighten the risk of cardiovascular disease
and lung cancer and worsen the effects of other illnesses such as bronchitis and asthma.
“It is even more dangerous for children, as their airways are smaller and their immune systems less
developed.”
Mr Sullivan questioned why the government does not ban smoking “across the board”.
“We all know it’s killing people and costing taxpayers a fortune,” he said.
“I guess they say prohibition doesn’t work.”
It’s time for action to clear the air for everyone

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As would be expected, however, laws against
more serious offences carry a range of stricter
penalties, which are intended to make people think
seriously about the consequences before breaking
the law.
In 2013, the New South Wales Government
brought in legislation banning smoking in public
places such as building entrances, bus stops
and train stations, swimming pools and sporting
grounds. The article on pages 11 and 12 is from 2014,
highlighting the fact that if people do not think that
the law is relevant to them or will be policed, and if
there are not enough resources to police it, that law
will be very difficult to enforce.
Review 1.4
Read the article ’Calls to bust smokers in
public areas, poll‘ and then answer the
following questions.
1 Explain why councils may not actually
prosecute anyone for breaching these
anti-smoking laws.
2 Why do you think people may not obey
this law?
3 Does society need a stronger type of
legislation? Write two paragraphs, one
arguing in favour of the legislation and
the other arguing against it.
4 Carry out some research to see if you
can find a more recent media item about
whether this law is working.
1.8 A
 narchy and tyranny
The rules and laws that have evolved for different
societies are based on the customs, values and
ethics that are part of these traditions. Most people
want and accept rules as a necessary part of
everyday life due to the belief that all people should
be treated equally and with fairness. Rules are
needed to ensure that our behaviour is regulated
to meet the common expectations of society. The
absence of laws and the inability to enforce laws or
the unfair and unequal application of laws can result
in states of anarchy or tyranny.
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1
CHAPTER 1 BASIC LEGAL CONCEPTS
Anarchy
When people believe that the law has let them down
in some way, they may declare, ‘We live in a state of
anarchy!’ What exactly do they mean by this?
anarchy
the absence of laws and government
The word ‘anarchy’ is derived from anarchia, the
Greek word for ‘without a ruler’. Anarchy, therefore,
is a term used to describe a state of chaos and
disorder resulting from the absence of rules and
laws.
A state of anarchy may break out during a
revolution or after a natural disaster, because the
law enforcement agencies no longer exist or are
unable to enforce the laws of a society. Violence and
widespread looting are two early indicators that a
society or group is on the verge of anarchy.
While the majority of people believe that an
absence of rules and laws leads to a disorganised,
chaotic society, certain philosophers, theorists and
anarchist movements believe that anarchy does
not imply chaos, but rather a ruler-free society with
voluntary social harmony.
Research 1.1
Prepare a report on anarchy and modern-
day anarchist organisations. In your report
include the following:
• a definition
• a history
• information on two anarchist
organisations and their beliefs
• modern-day anarchists and their
activities.
Two possible groups are the Anarchist
Federation and the Melbourne Anarchist
Club; search online for further information
about these organisations. Alternatively, you
may choose your own group to research.
These types of groups often protest at:
• G8 summits
• European Union meetings
• World Trade Organization meetings.
Cambridge University Press 13
 CAMBRIDGE LEGAL STUDIES PRELIMINARY

Case study

Michael Brown shooting

In Ferguson, Missouri, USA, 18-year-old Michael Brown, an African-American, was shot on 9 August
2013 after an altercation with a white policeman. A series of events, including the desecration of a
floral memorial, a lack of information and then the dropping of charges against the policeman, saw
rising anger in the town among the African-American community and a number of riots ensued. The
first riots occurred after the shooting and were inflamed by the lack of respect shown by police to
the floral tribute. The violence between police and protesters was shown around the world and the
official response was heavily criticised. Although matters settled down, the tension between police
and citizens remained strong.
In September, the unrest flared again when another tribute was burned to the ground. The violence
continued into November when a state of emergency was declared by the Governor of Missouri.
This was a precautionary measure before the
announcement that the Grand Jury had decided
not to try the officer who did the shooting. Once
again violence erupted between police and
citizens and widespread looting occurred. The
National Guard was sent in to quell the situation.
In March 2014, violence erupted again when
the Ferguson police chief resigned. As many
people felt that his handling of the situation had
exacerbated the violence, they were angry that
he had not been sacked earlier and that he would
receive full benefits such as his superannuation.
During the violence that occurred, two policemen
were injured by bullets.
At the time of writing, an uneasy peace
has settled over Ferguson with the Federal Figure 1.8 Police using tear gas on rioters in
US Government looking at ways to remedy the Ferguson
situation.

Tyranny
If anarchy is the absence of laws and law
enforcement agencies, then tyranny is the opposite.
By definition, a tyrant is a single leader who has
unlimited power over the people in a country or
state. Generally, tyrannical power involves severe
punishment for any infringements of the law. Some
modern-day examples of tyrannical power in action
include Saddam Hussein’s rule in Iraq prior to his
arrest in 2003, Bashar al-Assad’s presidency in Syria
and Robert Mugabe’s control of power in Zimbabwe.

tyranny
rule by a single leader holding absolute power in a state
Figure 1.9 Saddam Hussein was a known tyrant.
When he died, many of his statues were pulled down.

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Chapter summary
• The law of a country has developed from the
rules of the dominant community.
• These rules are based on the customs, values
and ethics of that community.
• Rules and laws have different characteristics.
• The term for the absence of government is
‘anarchy’.
Chapter summary questions
Multiple-choice questions
1 Which of these statements about the difference
between a rule and a law is true?
A Rules are not binding on the whole of the
community.
B Rules do not involve rights and
responsibilities.
C Rules are not enforceable.
D Rules have nothing to do with ethics.
2 What is anarchy?
A constant violence and disorder
B the absence of law
C wearing black clothes to break the rules
D rebellion against the government
3 What are ethics?
A allowing people to be different
B a mix of equality and fairness
C the principles that help us make decisions
about right and wrong behaviour
D different people’s perceptions of the law
4 A police officer charges a man for crossing
the road against the lights, but does not book
a woman doing the same thing. Why is this
unjust?
A The police officer should concentrate on
serious crimes.
B Studies show that women are better at
crossing roads.
C The police officer has not treated all
pedestrians equally.
D You should be allowed to cross the road
wherever you want.
ISBN 978-1-316-62105-9
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1
CHAPTER 1 BASIC LEGAL CONCEPTS
• The law is based on the notions of fairness,
equality and justice.
• The law covers all members of society and has
penalties attached for infringements of the law.
• People follow the law because it provides them
with protection against wrongful behaviour.
5 What is the purpose of the law?
A to divide power among all of the different
groups in society
B to provide stability for the ruling government
C to maintain order in society
D to make people do things that no one wants
to do
Short-answer questions
1 Describe the difference between anarchy and
the law.
2 Explain how anarchy and a structured system of
law are not compatible.
3 Describe the relationship between rules, laws
and customs.
4 Compare and contrast ‘rules’ and ‘laws’.
5 What is the relationship between fairness,
equality and justice?
6 Is law necessary? Justify your answer.
7 Why do people have different perceptions
about the law?
© Milgate et al. 2016 Cambridge University Press 15
Another random document with
no related content on Scribd:
during the Lybian campaign, stung Italians to the quick, was the
promoter of the scheme, and that the shelving of M. Pichon, who
was a friend of Italy’s, was its corollary.
Italy was made to feel that France’s attitude towards her was
systematically semi-hostile. No one act, excepting the concentration
of the French fleet in the Mediterranean, was deemed radically
serious, but the endless sequence of pin pricks was construed as
evidence of a disposition which was as unfriendly as seemed
compatible with neighbourly relations. Among these things, the
protection of Italian religious communities in the East was taken by
the Germans as the text for repeated diatribes against France for her
unfriendly conduct towards her Latin sister. Atheistic France, it was
sneeringly remarked, insists on protecting in the East the very
communities which she has driven from her own territories in
Europe, not because of the love she bears them, but by reason of
her jealousy and hatred of Italy.
I remember one dispute of the kind which arose about the house
of an Italian religious congregation in Tripoli of Syria. All the
members save one being Italians, and having demanded the
protection of their own Government, were entitled to have it, in virtue
of a convention on the subject between France and Italy a few years
before. The French Ambassador in Rome was anxious to have the
question put off indefinitely, although at bottom there was no
question at all, seeing that the case had been provided for. During
the negociations and discussions that needlessly went on for fully
two years, Germany lost no opportunity to rub France’s
unfriendliness into Italy’s memory, and to prove that Italy’s one
natural ally is Austria-Hungary.
These things are of yesterday, and it needs some little time to
deaden the recollection of them.
When the present war was on the point of breaking out, one of
the first misstatements spread by the diplomacy of the two
Prussianized allies was Italy’s promise to co-operate with them
against France, in return for the stipulated cession to her—as her
share of the spoils of war—of Tunis, Savoy, and Nice. That this
proposal was to have been made is certain. Whether the intention
was actually carried out I am unable to say. But the archives of the
French Foreign Office possess an interesting and trustworthy report
on the subject, only one item of which is erroneous, to the effect that
Italy had succumbed to the temptation.
Writing in the first half of June last on the subject of Italy’s foreign
policy, I expressed myself in the following terms:

The problems with which Italian statesmen have for several

decades been grappling are uncommonly difficult and delicate.
Probably no European Government has in recent times been
confronted with a task so thorny as that with which the
responsible advisers of the three kings of United Italy have had
to deal. And the tact, resourcefulness, and suppleness with
which they have achieved a set of results which theoretically
seemed unattainable and incompatible with each other
command the admiration of competent judges. Italy’s foreign
policy resembles nothing so much as one of those egg-dances
which Pope Leo X. delighted to witness after his Lucullan
banquets. And the deftness and rapidity with which the moves
are made and steps taken that seem certain to crush this egg or
that, yet do no damage to any of them, are amazing. But unlike
the papal dancers, the statesmen of the Consulta can look
forward to no prize, to no popular applause. Abroad they are
accused of double-dealing, and at home of pursuing a costly
policy of adventure. France charges them with ingratitude and
perfidy. In Great Britain they are sometimes set down as
schemers. In Vienna they are mistrusted, while Berlin indulges in
scepticism or holds its judgment in suspense. And to crown all,
they are blamed or repudiated by a certain section of their own
people, whose welfare they have been laboriously endeavouring
to promote.
Italy’s policy in its general lines has been imposed by
circumstances and tempered by statesmanship. Far from
embodying Utopian notions or manifesting herself in dubious
ventures, she has kept well within the limits of the essential, the
indispensable. By making common cause with the two military
Powers of Central Europe and forming the Triple Alliance, she
steered clear of a conflict with Austria-Hungary which, so far as
one can discern, there was no other way of avoiding. Italian
irredentism in the Dual Monarchy and the rivalry of the two
States in the Adriatic had confronted them both with the dilemma
of choosing between a formal alliance and open antagonism.
The decision took the form of a bold move, but a necessary one.
Italy’s adherence to the League gave deep offence to France,
and led to their estrangement, which was followed by several
press campaigns and one damaging tariff war. And in spite of
the subsequent reconciliation, the relations between the two
Latin nations have never since been marked by genuine
cordiality. The press of France and many eminent politicians
there resent it as a sort of racial treason that Italy should be
bound by treaty to Germany and Austria-Hungary. Russia, who
for a time cultivated a close friendship with the Italian people,
was surprised and pained by the seemingly needless and
ostentatious renewal of the Triple Alliance in the year 1912, a
twelvemonth before it had terminated. Even British publicists
have found much to condemn in the attitude of the Italian
Government during the Balkan war and down to the present
moment. During all this time the cultivation of rudimentary
neighbourliness, to say nothing of friendship between the Italian
and the Austrian peoples as distinguished from their
Governments, has been for the statesmen of both countries, and
in particular for those of Rome, a work of infinite care, ingenious
expedients, and painful self-discipline, openly deprecated by an
influential section of the Italian press.
The alpha and omega of Italy’s foreign policy in the present
is the maintenance of her actual position in the Mediterranean,
and in the future the seasonable improvement of that position,
and in every case the prevention of a shifting of the equilibrium
such as would alter it to her disadvantage. To attain these
objects is an essential condition of Italy’s national existence, and
calls for the constant exercise of vigilance and caution
alternating with push and daring by her responsible rulers. It
behoves her, therefore, to be well affected towards France,
friendly with Austria, amicable with Great Britain, to hold fast to
the Triple Alliance, and to give no cause for umbrage to the
Triple Entente. In a word, it is the prestidigitation of
statesmanship. And her diplomacy has acquitted itself well of the
task. The sum of the efforts of successive Governments has
been to raise Italy to a unique position in Europe, to make her a
link between the two rival groups of Powers, to one of which she
herself belongs, to bestow upon her the second place in the
Triple Alliance, and to invest her with enormous influence for
peace in the councils of Europe. To grudge her this influence,
which has been uniformly exerted for the best interests of
Europe and her own, implies imperfect acquaintance with those
interests or else a leaning towards militarism. Every
development which tends to strengthen Italy, diplomatically and
politically, tends also to augment the safeguards of public peace
and to lessen the chances of a European conflict. On these
grounds, therefore, were there none other, a violent domestic
reaction against the policy that has scored such brilliant results
would be an international calamity. Happily, there is good hope
that the bulk of the nation is wiser and also stronger than the
section which is answerable for, and in secret sympathy with, the
15
recent excesses.
As the Mediterranean State par excellence, Italy cannot
contemplate the present distribution of power on the shores of
that sea with genuine complacency. The grounds for
dissatisfaction are rooted in the history of her past and in her
apprehensions for the future. None the less, the status quo in
Europe being hallowed must be respected under heavy pains
and penalties. And the policy of the Consulta is directed to its
maintenance, because any modification of it in favour of another
State, great or small, would infallibly drive Italy out of her
quiescence and strain her to press with all her energies and at
all risks in the direction of a favourable readjustment. That is why
seventeen years ago the Austrian and the Italian Foreign
Secretaries concluded the so-called noli me tangere Convention,
by which each of the two allies undertook to abstain from
meddling with Albania, to uphold Turkish rule there, and, failing
that, to establish self-government. It was in virtue of the same
principle that during the Balkan war Italy supported Austria-
Hungary in frustrating Servia’s attempt to divide up Albania
among the allies and obtain for herself access to the Adriatic. As
long as the Adriatic continues to present the same essential
factors as to-day, the Italian Government will not swerve from its
present attitude. But if once those factors or their relative
positions towards each other underwent a change, the whole
scaffolding of self-denial and everything that rested upon that
would fall to pieces like a house of cards. And that scaffolding
supports the peace of Europe.
On her Eastern shore Italy possesses no port capable of
serving as a thoroughly suitable base for naval operations.
Brindisi is at best a mere makeshift; Venice is no better. Italy’s
rival, Austria, on the other hand, is luckier. Cattaro, Sebenico,
and Pola serve the purpose admirably, giving the Austrian navy
a distinct advantage in this respect. It must, therefore, be gall
and wormwood to Italian politicians to think that an ideal port,
Valona, on the Albanian coast, a few hours from Italy, lies
unutilized because each State grudges it to the other on grounds
which cannot be reasoned away. Valona, incorporated in the
Habsburg Monarchy, which is already so well equipped on the
Adriatic both for defence and attack, would turn the scale against
Italy, upset the equilibrium which is at present accepted as a
stern necessity, and might even unchain the forces of war. The
prospect of kindred eventualities forbids Austria to allow that
magnificent naval base to fall into the hands of her rival, who,
holding the key to the Adriatic, could close the Otranto Canal
and immobilize the fleet of the Dual Monarchy.
It would be unfair, therefore, to contend that the mainspring
of Italy’s seemingly anti-Slav policy is racial bitterness or political
narrow-mindedness. A natural instinct of self-preservation
underlies it which neither argument nor sentiment can affect. Her
present wish and the object of her endeavours is to enable
Albania to maintain her independence and to keep the
equilibrium in the Adriatic intact. And it is sheer inconceivable
that any Italian Government should deviate from this line of
action....
It is entirely misleading, therefore, to assert that Italy’s
alliance with the two military Powers of Central Europe is the
result of eclectic affinities or to fancy that by cajolery or threats
she can be moved to sever the links that bind her to the concern.
I entertain not the slightest doubt that the French Ambassador in
Rome, M. Barère, whose infinite patience and marvellous tact
drew France and Italy very close together for a while, would be
the first to recognize that the breaking-up of the Triple Alliance is
a hopeless enterprise, and an aim of questionable utility from
any point of view. Outsiders, whose opinions are moulded by the
daily press, may be excused for thinking otherwise. The renewal
of the treaty in the year 1912, a full year before its expiry, has
been uniformly construed as an indication of Italy’s resolve to
emphasize her friendship with her allies, and this interpretation
appeared to be borne out by a number of concomitant
circumstances and in particular by the comments of the
European press. It was likewise assumed that at the same time
the Treaty was supplemented by a naval convention turning
upon the future action of the Triple Alliance in the Mediterranean.
I investigated these reports in Rome and elsewhere, and I
received convincing evidence that they were both equally
groundless. No new clause touching the naval forces of the
Alliance, or indeed dealing with anything else, was added to the
Treaty. It was renewed as it stood. And the early date at which it
was signed was credibly explained to me as the outcome of a
legitimate eagerness on the part of Italy to see reaffirmed by
Austria-Hungary the noli me tangere Convention which acted as
a bar to encroachments, territorial or other, on Albania.
Between France and Italy the cordiality established mainly
by the exertions of M. Barère has of late years undergone a
marked change, and while the two Governments were
endeavouring to smooth over their differences and deal amicably
with each contentious matter as it cropped up, the press of each
country was bombarding the other with taunts and reproaches
which rendered the task of diplomacy unnecessarily difficult. And
British publicists, for reasons which lie near the surface, felt
inclined to take sides with their French colleagues, without
perhaps investigating with sufficient closeness and care the
origin of the estrangement. Those unfriendly utterances, some of
them the effects of mere misunderstandings, run through
contemporary political history like a red thread through a piece of
white cambric.
Italy’s solicitude for friendship with France and Great Britain
is prompted by interest as well as sentiment. For she sorely
needs peace, recognizes the need, and is exerting herself to the
utmost to insure it. And this indisputable fact might profitably
serve as the starting-point of one’s reasoning on the subject, and
likewise as a safe basis for the attitude of the statesmen
interested. For a long time, it is true, the occupation of Tunis by
France in 1887 was resented by every public man in the
Peninsula. The ensuing tension was accentuated as much by
the manner as by the policy of Crispi. The Abyssinian campaign
made matters worse, seeing that the Abyssinians were believed
to have received their arms and ammunition from the French.
During all those untoward incidents, Great Britain was found on
Italy’s side. The Franco-Italian war of tariffs raised mutual
animosity to its highest power, after which a reaction set in which
led to the conclusion of the Mediterranean agreements with
France and England.
During the Lybian war Italy seized two French steamers, the
Manuba and the Carthage, for alleged contravention of
international law, and sent them to Cagliari. France protested,
and M. Poincaré took up such a decided position in the matter
and gave it such vehement expression that all Italy was
unanimous in holding him as the destroyer of the good relations
laboriously established by M. Barère and the Consulta. And the
affront has not yet been forgotten. The next grievance had its
source in the action of the British Government, which confided to
France the protection of her Mediterranean interests, and
encouraged the Republic to keep the bulk of its warships in that
sea. This preponderance of the French fleet in Italy’s own sea
was regarded by the Government of the Peninsula as an
unfriendly act, owing to its special bearings on their relative
naval strength there. And the author of this obnoxious innovation
was believed to be the Republic, which had induced Great
Britain to acquiesce.
Lately Italy asked for an economic opening in Asia Minor,
into which every Great Power of Europe was penetrating. That
the demand was not unreasonable is shown by the fact that it
has since been complied with. In view of that contingency,
therefore, it would have been well to examine it without bias,
instead of opposing it with vehemence. For Great Britain is no
longer the most puissant State in the Midland Sea, and
circumstances may one day arise in which she will be in want of
an ally there. And Italy is her most natural partner. The
circumstances that she is a member of the Triple Alliance is no
bar to this prospective co-operation. For the Triple Alliance is a
defensive combination. It provides for a certain well-defined
eventuality, but outside that sphere Italy is untrammelled.
The pith of the matter, then, is that British and French
publicists are wont to lay undue stress on Italy’s alliance with
Germany and Austria-Hungary. That engagement is but a single
facet of her activity. There are others more enduring. She is
obliged to protect her special interests and is also free to
cultivate her special friendships. Paramount among those
interests is the maintenance of peace, and chief of those
friendships is that with Great Britain and France. Even the Triple
Alliance was founded as an association for the prevention of
war, and hitherto it has not drifted into aggression. Italy’s
influence in that concern is growing, and together with it her
facilities for upholding the pacific policy with which she has
uniformly identified herself. And the more steadily her economic
well-being and her political prestige develop, the greater will be
 the weight which as second member of the Alliance she can
16
throw into the scale of peace.

Italy occupies a unique position in the polity of Continental

Europe. Whereas all other Great Powers owe much of what they
have and are to successful wars, Italy is indebted for her rapid
progress and growth chiefly to the arts of peace and the triumphs of
diplomacy. And as she is an essentially pacific and cultured State,
whose policy is inspired solely by national interests, it stands to
reason that her statesmen will take heed not to endanger what she
already possesses and what she may reasonably hope for in the
future by any hasty move, and least of all by impulsively exchanging
peace for war. In plain English, she will be guided by events, and it
would be mere childishness to expect to see her rush into the arena,
moved by a sudden outburst of sentimentality. And as yet the
national interest is not deemed to have become a decisive motive.
For this reason the importunity of her ex-allies is more likely to
damage than help the cause in which it is employed. The Teutonic
belligerents, too, are wasting their breath when they hold out the
annexation of Tunis, Savoy, and Nice as the price of her co-
operation, just as the Entente Powers would be doing were they to
endeavour to entice her to their side by dangling maps of Italia
irredenta and Valona before her eyes. Italian statesmen may be
trusted to gauge the situation aright, and when the upshot of the
mighty struggle can be forecast, to make no miscalculation. They
may also be credited with decision enough to take their final stand in
good time. But above all else, it should be borne in mind that Italy
will be guided solely by the promptings of her national interests. She
will hardly consider these sufficiently guaranteed by a scrap of paper,
and still less by a German promise of one.
Respecting one important consideration Italian statesmen will
hardly be content to suspend their judgment or to cherish illusions.
However satisfied in mind they may be that their neutrality was
warranted by the aggression of their German and Austrian allies,
they cannot ignore the contrary thesis which is firmly held by every
thinking German and Austrian in the two Empires. The Kaiser, his
Chancellor, the Evangelical theologians, the men of letters of the
Fatherland, Count Bernstorff in Washington, all hold that Germany
and Austria are but defending themselves against unprincipled
aggression. And the corollary of this declaration is that Italy is guilty
of the monstrous crime of regarding her treaty obligations as a
worthless scrap of paper. For the moment impunity is the result of
powerlessness to punish the criminal, and will continue only as long
as its cause is operative.
That this and other equally momentous aspects of the thorny
problem are receiving due consideration may be taken for granted.
 CHAPTER VII
THE TWELFTH HOUR

Although the Austrian ultimatum to Servia was so worded and the

time accorded for a reply so limited as to ensure its rejection,
misgivings were, as we saw, felt and uttered in Vienna and Budapest
that Servia would knuckle down and execute the humiliating behests
of the Ballplatz. For this was a consummation which was deemed
highly undesirable. The carefully laid plan would have become
difficult of realization had Austria’s terms been acquiesced in
unreservedly. It would have rendered a military expedition
superfluous and left Servia’s army intact. Hence the exhaustive
precautions adopted for the purpose of provoking a negative answer
to the ultimatum from Belgrade.
On July 23rd, while the Franco-Russian festivities were at their
height, and M. Poincaré and the Tsar were announcing to the world
their ultra-pacific strivings, the bolt fell from the blue. What will
Russia say? people asked in Western Europe. Well, the Russian
Foreign Office, as we now know, was informed by Austria of the text
of the Note only seventeen hours after it had been presented, and
only thirty-one hours before the time limit had lapsed! The little case
thus made of Russia by the Teutonic allies was meant to be clearly
conveyed by this studied affront. It had been decided in Berlin and
Vienna that Russia must and would remain passive.
Delay was the only danger apprehended in Vienna, and nothing
was left undone to prevent its occurrence. M. Pasitch, the Servian
Premier, who appears to have had an intuition of what was brewing,
let it be known before the Austrian Note was presented that he was
absent from Belgrade and was going abroad. His substitute was
nominated. But in Vienna they were on the alert, and M. Pasitch
received from that city an urgent telegram notifying him that the
representations which the Austro-Hungarian Government were
drawing up would be delivered in Belgrade almost immediately, and
that their tenor was such as to necessitate his presence in the
capital. Thereupon the Premier hastened back to Belgrade.
From the first inception of the Austro-German plan of concerted
action, the parts of each of the actors were assigned. Servia was to
be stung into utterances or action which would warrant resort to an
Austrian punitive expedition, but before this Russia was to be
warned that if she aided or abetted her protégé and issued a
mobilization order against Austria, a counter-move would at once be
made by Germany, who would mobilize, not as a demonstration, but
for war. This warning was to serve as an efficacious deterrent. If
Russia, it was argued, can be got to realize that even partial
mobilization on her part will provoke not merely general mobilization
by Austria, but war with Germany and with Austria-Hungary, her zeal
for the Southern Slavs will be damped, and she will entrench herself
behind diplomatic formulas. This conviction was deep-rooted. It
formed one of the postulates of the Austro-German scheme.
Evidences of it are to be met with everywhere. But by way of making
quite sure, private letters were written by Continental statesmen to
their friends in the interested Governments—letters like that which
the Kaiser himself once penned to Lord Tweedmouth—impressing
upon them the gravity of the situation, and adjuring them to realize
that this time Austria and Germany were playing no mere game of
bluff, but were in downright earnest, and that if peace was to be
maintained at all, it could only be by inducing Russia to forego
mobilization.
That, too, was the burden of many of my own messages to the
Daily Telegraph, beginning with the very first. Thus on July 28th I
telegraphed:

The moment Russia mobilizes against the Dual Monarchy,

the German Empire as well as Austria-Hungary will respond, and
then the object of these military operations will be pursued to the
 bitter end, with the results so clearly foreseen and so graphically
described by Sir Edward Grey in his proposals.
In the interests of European peace, therefore, which can still
be safeguarded, in spite of the hostilities now going ahead, it is
essential that every means of friendly pressure should be
thoroughly exhausted before a provocative measure such as
mobilization is resorted to. For mobilization by Russia, Germany,
and Austria will connote the outbreak of the long-feared general
Continental war.

In the assumption that Russia would be partly intimidated and

partly talked over by her French allies and English friends as soon as
these learned what tremendous issues hung in the balance, the two
Teutonic Governments laid it down from the start that no Power
would be permitted to intervene between Austria and Servia in any
shape or form. These two States must compose or fight out their
quarrel as best they could without the good offices or advice of any
foreign Government. “No discussion will be allowed,” I accordingly
telegraphed; “no extension of time will be granted.” All these
limitations were elements of the pressure brought to bear upon
Russia directly through her friends and ally. I sought to make this
clear in one of my messages to the Daily Telegraph, in which I wrote:

Meanwhile, Austria’s allies have taken their stand, which is

favourable to the action of this Government and to the
employment of all the available means to localize the eventual
conflict. It is further assumed that Great Britain will, if hostilities
should result, hold aloof, and that France will make her influence
17
felt in preventing rather than waiting to localize the struggle.

But Russia needed no deterrents, if Austria’s ostensible aim

were her real one, if she were bent only on obtaining guarantees for
Servia’s good behaviour in future. For the Tsardom was peaceably
disposed and extremely averse to war. M. Sazonoff’s attitude was
straightforward and considerate. He showed thorough understanding
for Austria’s grievances and reasonable claims. He had no intention
of jeopardizing peace by screening Servia or rescuing her from the
consequences of her misbehaviour. King Peter’s Cabinet accordingly
received sound advice from the Tsar’s Government. And what was
more to the point, they adopted it.
During the second day of the time-limit in Vienna and Budapest it
was feared that Servia would give in. M. Jovanovitch, the Servian
Minister, hinted as much, and when one reads Servia’s reply one
cannot fairly reproach him with overstating the gist of it. For it was
acceptance of all those demands which were compatible with
independence. But then independence was precisely what Austria
was minded to take away. And the reserves and provisoes made by
the Servian Note for the purpose of safeguarding it determined the
departure of Baron von Giesl from Belgrade. Characteristic of the
fixed resolve of the Teutonic States to force a quarrel upon Servia at
all costs and irrespective of her reply to the Austrian Note is the
circumstance, vouched for by the Russian press, that within forty
minutes of the delivery of that reply, which was a lengthy document,
the Austrian Minister in Belgrade had read and rejected it, had
removed his luggage and that of his staff from the Legation to the
railway station, and was seated in the train that was to convey him
out of Servia. Forty minutes!
It is not easy for Western minds, accustomed to truth, honour,
and self-respect, to realize how all the usages of international
intercourse were thus set at naught during this first stage of the
European conflict. Words and forms were employed to mislead.
Servia’s answer was wanted only as providing a plausible pretext for
the resort to force, which had been decided on from the first. And I
was informed—although I must in fairness add that I had no tangible
evidence for the assertion, nothing but a strong presumption—that
even if M. Pasitch, violating the Constitution of his country, had
undertaken to carry out all Austria’s behests unreservedly, and if no
internal troubles had resulted from this subservience, the Austrian
troops massed on the Servian frontiers would not have been baulked
of their prey. Another demand was held in reserve which Servia
could not and would not comply with, and her refusal would have
afforded the wished-for ground for invasion.
In any and every case, Servia was to have been entered by
Austrian troops. That seems to have been a settled and irrevocable
resolve. And all the diplomatic notes, conversations, and reports,
which Sir Edward Grey, M. Viviani, and M. Sazonoff treated as
excusable manifestations of fiercely burning anger, were but
cunningly devised expedients to sting the Belgrade Cabinet into
some word or act that might serve to justify this set plan. The plan
was not at first suspected by the Entente Powers, nor was it fully
understood for some time even after its existence had been
discovered. It was, as we saw, twofold. First, the “punishment” of the
army by the forces of the Dual Monarchy, and of the nation by the
levy of a crushing war indemnity, and of the economic energies of
the country by the imposition of a commercial treaty which was to lay
Servia permanently at the mercy of her powerful navy. And, second,
the partition of the newly annexed territories among Servia’s
neighbours and the establishment of a Balkan League under the
ægis of the Habsburgs. The machinery for bringing about this latter
object was in full movement at the very time that the British, French,
and Russian Governments were basing their moderation and self-
containment on Austria’s voluntary undertaking not to annex any
portion of Servian territory. Here, again, was a case of juggling with
phrases which the Chancelleries of the Entente Powers were taking
at their face value. Pressure was even then being put upon Turkey,
Bulgaria, and Greece to assist in this underhand scheme, and
reliance was being placed in the Hohenzollern King Carol, who
would, it was assumed, make full use of his authority to hinder
Roumania from taking sides against Austria-Hungary. The Treaty of
Bucharest was to be proclaimed a scrap of waste paper.
Had the Governments of the Entente realized the impossibilities
that beset them when zealously endeavouring to hit upon a formula
which would have satisfied Vienna and insured the quiescence of St.
Petersburg, they would unquestionably have bent their efforts in
quite other directions. But this vital aspect of the matter lay hidden
from their vision. They were further imposed upon by Germany’s
evident anxiety that the war area should be restricted to Servian
territory. Indeed, one of the most caustic ironies of the crisis lay in
the eager co-operation of the Entente Powers with Germany for what
they all termed the peace of Europe, but which the Teutonic States
knew to be the smooth execution of their own sinister designs. The
combined moral pressure of all Europe was accordingly brought to
bear upon Russia to oblige or constrain her to passivity for the sake
of the general peace.
And it must be confessed that the Tsar’s Ministers came up to
the highest expectations conceived of them. Defence, not offence,
was their watchword. They would follow the lead of their future
adversaries and content themselves with parrying their thrusts. M.
Sazonoff’s first step, although he may have foreseen the coming
hurricane, was to ask for an extension of the time-limit. “If you want
to localize the quarrel,” he argued, “you must adopt suitable
measures. You say that our co-operation is essential. Well, we are
willing to accord it. Let us get to work at once. Some of your
demands involve a change in the Servian Constitution. No Minister
and no Cabinet can accomplish this without a law passed by the
Legislature. And this cannot be done in a few hours. But give Servia
a few days to turn your demands over in her mind, and give us time
to advise and to urge her to prudence and compromise.” Now if, as
France and Great Britain assumed, Austria wanted only to punish
Servia for her past attitude and obtain guarantees of future good
behaviour, she would have complied with this common-sense
request. But as that was not her entire plan, she refused,
congruously with her preliminary arrangement with the German
Kaiser, and relying on the axiom that Russia would not fight.
This negative answer disclosed the fact that the two allies’ plans
went further than had been assumed. Thereupon the Tsar’s
Government issued orders countermanding the manœuvres,
promoting officers, summarily terminating the camp gatherings,
prohibiting aviation over the frontiers, and proclaiming the two
capitals in a state of “extraordinary protection.” Notwithstanding, or
by reason of this, Berlin put in a plea that she should not be
confounded with Vienna. “It was not we who sent the ultimatum.
Neither did we know the text of it. That was Austria’s handiwork, and,
what is more to the point, she has acted at her own risk and peril.
Please bear that in mind.” “We certainly will. But are we to take it
that, having acted at her own risk and peril, Austria is proceeding
alone?” “Ah, well, she is our ally, you know, and we are bound to
second her demands and stand by her to the end.” “Well, will you
exercise an ally’s right and counsel her to postpone military
operations until Europe has had time to secure for her ample
satisfaction.” “No, we do not see our way to comply with this
request.” That was Germany’s mode of speech and action.
Thereupon Russia introduced a modification of the law of military
conscription in so far as it deals with officers of the reserve and the
militia. The practical result of this innovation was to facilitate
mobilization should that measure be subsequently resorted to.
Soon after the expiry of the time-limit Austria declared war on the
realm of King Peter. M. Sazonoff, having from the start defined his
country’s position in the words, “Russia cannot adopt an attitude of
unconcern in a struggle between Austria-Hungary and Servia,”
continued to give striking proofs of the Tsar’s will to save Europe
from a general war. Sir Edward Grey had offered to get satisfaction
for the Dual Monarchy through the Powers, and he would have
accomplished his purpose without a doubt. But Austria was bent on
getting something more than satisfaction for herself and for Germany
in spite of Russia, whom she stigmatized as the mischief-maker.
Hence all the heavy guns of European diplomacy were levelled
against the Tsardom, while the St. Petersburg Foreign Office went
beyond the Hercules’ pillars of conciliation. Not only had Russia
induced Servia to consent to terms which were onerous and
humiliating, but the Russian Ambassador in Vienna said it was
probable that his Government would, if properly approached, go still
18
further. Our own Ambassador in that capital assured his chief that
he had gathered that Russia “would go a long way to meet Austrian
19
demands on Servia.” M. Sazonoff did not stop even here. He was
careful to explain that mobilization should be envisaged as what it
really was, namely, a mere intimation that Russia must be consulted
20
regarding the fate of Servia, not as a threat of war.
The German Kaiser, celebrating the 200th anniversary of the
Kingdom of Prussia, had laid down the principle that “in this world
nothing must be settled without the intervention of Germany and of
the German Emperor,” yet the fate of a Slav State, which Russia
had, so to say, created and watched over and protected, was about
to be decided without her consent, nay, without her knowledge.
Russia was to be ostentatiously ignored and the Balkan States to be
impressed by the fact that she was worse than powerless as a
friend. That the Tsar’s Government, however ready for compromise,
would not brook this deadly affront was manifest to all excepting
those who had settled it to their own satisfaction that she was too
helpless to move. And the two Teutonic allies were of this opinion.
That is why their answers to Russia’s demands for a conference, or
at any rate for an exchange of views, were not only negative in
substance, but wantonly insolent in form. All that M. Sazonoff
demanded was an assurance that Servia would not be utterly
crushed. It was refused. He would, he said, understand that Austria-
Hungary is compelled to exact from Servia measures which will
secure her Slav provinces from the continuance of hostile
21
propaganda from Servian territory. And that was what every
statesman in Europe was also saying. If Austria’s demands had
been, as they seemed, inspired by a legitimate desire to safeguard
herself from a real Servian danger, the undertakings of Servia and
Russia ought to have afforded her a broad enough basis for a pacific
settlement. But all these colloquies, assurances, and claims were but
the screen behind which a huge anti-European conspiracy was being
hatched. And as yet the truth had not dawned on the statesmen of
the Entente, who, still hypnotized by the crime of Sarajevo, were
honestly working to obtain amends and guarantees for Austria-
Hungary and ward off the growing peril of a general war.
Germany, ever alert and watchful, was the first to note that
Russia’s attitude differed from what it should be according to
programme. She did not appear disposed to take with resignation
the humiliation devised for her. She declared that she would not be
indifferent to a conflict between Austria and Servia. She demanded a
hearing in the councils of those who arrogated to themselves the
right of life and death over her Slav protégé. As soon as this
discrepancy between the actual and the expected became evident,
the Berlin Government, which had made provision for this
eventuality, commenced elaborate preparations against Russia,
particularly in the Finnish Gulf. And as is the wont of Prussia, these
preparations were secret. But the Russian authorities got wind of
them, and apprized our Ambassador in St. Petersburg of what was
22
taking place.
Russia’s spirited determination, coupled with her dignified
conciliatory disposition, caused painful heartburnings in Vienna. It
constituted the first hitch in the official programme. What was the
good of having agents in St. Petersburg, who supplied exact copies
of State papers and faithful narratives of private conversations, if the
legitimate deductions from these data were upset at the very outset?
To me, who witnessed the gradual breaking in of this painful light
on the systematic mind of Teutonic diplomacy, there was something
intensely ludicrous in the tragic spirit in which it was received. Could
nothing, it was asked, be done to keep Russia in bounds? Was
France fully alive to the issues which Russia’s intervention would
raise? Where was the love of peace so lately and so loudly
professed by the Tsar and M. Poincaré?
I had not the faintest doubt as to how Russia would behave
under the provocation to which she was being subjected by the
Teutonic States. There are some considerations of an altruistic
nature which nations, like individuals, set above their own vital
interests—considerations that engage all that is deepest and noblest
in their feelings, that fire their imagination and call forth all the
energies of their will. And the fate of the little Servian nation was one
of these causes. To the Russian the Slav cause is much more than a
political interest: it is a religious cult. But for such altruistic heroisms
the Prussianized German has no sense. To him it is the fourth
emotional dimension. On July 30th I despatched the following
telegram to the Daily Telegraph, which I afterwards discovered was
not transmitted:

It would be a delusion to suppose that Russia will keep the

peace while Servia is undergoing punishment that would reduce
her to the rank of a semi-vassal State, and it would be a piece of
still greater self-deception to imagine that Germany will not raise
her army to its war-footing once the mobilization order has been
issued in St. Petersburg, or will not use that army to the full
when it is in the field. And as Austria-Hungary is resolved to
have her way with Servia, and to refuse to render account of her
action to any other Power, one is forced to the conclusion that
the only possible solution to the present crisis is the much-
dreaded European war. It is for that tremendous struggle that the
Great Powers, and possibly one or other of the smaller ones,
must now make ready.

On July 30th the meek, insignificant figure of the German

Ambassador, Count Pourtalès, his head sheepishly bent down on his
left shoulder, passed through the spacious apartments of the
Russian Ministry of Foreign Affairs. After a brief talk with M. Sazonoff
he became aware that the Rubicon was about to be passed,
whereupon, as our Ambassador to the Tsar puts it, “he completely
broke down. He appealed to M. Sazonoff to make some suggestion
which he would telegraph to the German Government as a last
hope.” For he, too, was aware that Russia’s entrance into the arena
was an item which the Berlin wire-pullers had no wish to add to their
compact little programme. To this appeal the Tsar’s Minister gave a
ready and conciliatory reply: “If Austria,” he said, “recognizing that
her conflict with Servia has assumed the character of a question of
European interest, declares herself ready to eliminate from her
ultimatum those points which run counter to the principle of Servia’s
sovereignty, Russia engages to stop all military preparations.”
That proposal was fair and moderate from every point of view
but one. And that one was the Austro-German plot, which it was
calculated to thwart.