New Zealand courts should use international law to develop the common law, where there is a lack of understanding in specific areas. Through an increasingly global world, New Zealand is able to compare its own laws with other jurisdictions when attempting to create new common law. Furthermore, international law can aid courts in interpreting certain laws when there is a gap in New Zealand law. Rather than beginning with nothing, international law to offers us a framework for approaching novel situations.
When it comes to common law, New Zealand is a young country and as such has not had the experience to flesh out its laws, unlike other jurisdictions. Hence when cases with new issues are presented to judges, by considering the judgements made
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For the most part, courts will prefer to have something to rely upon – even if it is the decision of a foreign court interpreting a different bill of rights – than to reason from scratch.”#
Baigent’s case clearly shows this, where the issue was whether a breach of the NZBORA by the Crown can be remedied. Remedies were eventually rewarded after citing international law with the judge stating that, “compensation is a standard remedy for human rights violations. There is no reason for New Zealand jurisprudence to lag behind.” # In such cases, international law can help act as a guide when judges have to apply statutes for the first time without precedent from their jurisdiction. Courts can also use International treaties to fill in gaps that are present in the common law. Baigent’s case also shows that international treaties can act as a means of interpreting certain New Zealand statutes. By refusing to grant remedies for its breach of the NZBORA, it would have violated the ICCPR ratified by New Zealand. Moreover, international treaties serve to act as a check against judges when there is no set precedent. As international common law is only persuasive, treaties and other agreement set a standard which can hold judges accountable for their
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It prevents an inward-looking view of the law which would create insularity instead of diversity. Additionally, it gives New Zealand common law a sense of uniqueness which takes into account the culture of New Zealand. Hosking v Runting is an example where Gault J argued for a tort of privacy, citing that “it will allow the law to develop with a direct focus on the legitimate protection of privacy.” # By considering how other jurisdictions handle privacy, a better consensus can be made on the issue that was
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
The Harvard Law Review Association. (2005). The Debate over Foreign Law in Roper v. Simmons. Harvard Law Review , 119 (1), 103-108.
There continues to be a growing debate to this day over the use of international law in the Supreme Court, and even though the case of Roper v. Simmons and Justice Kennedy, are nearly a decade old, they are both frequently
Common law is the concept that some of the core principles that form the basis of the English legal system come from judges as opposed to Parliament, with rulings from case to case developing predicedent, which forces lower courts to follow princaples set by higher cores but allows higher courts to overrule the descisions of lower courts. This allows the courts, over time to refine law. The courts can even decide to ignore rulings when considering to set it as precident with enough justification, this allows rooms for special cases. As a drawback to common law, the courts are sometimes unwilling to overrule long standing precidents. Slapper,...
According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
Raz also states that “the principles of natural justice must be observed” and that “the courts should have review powers to ensure conformity of the law”, however, the formal theory shows no regard for “natural justice” as it is a theory concerned with the procedures followed and not the content of the law, so therefore there is weakness in Raz’s theory of the rule of law. Therefore, the formal theory of the rule of law engenders unjust situations which may be justified if good procedures are implemented when making the law. Nonetheless, Raz upholds the notion that the substantive theory is inadequate as the rule of law should not be reliant upon morality in order for the legal system to be prosperous, he therefore rejects Lord Bingham's statement that “A state which savagely repressed.its people could not in my view be regarded as observing the rule of law” as he postulates that the law should not be focused on the interests of those who are exposed to it. The UK courts have the power to decide whether the governmental authority has acted ‘Ultra Vires’.
The intention of this essay is to explain the process of law reform within the English legal system. The way in which the activity of parliament and that of the judiciary affects the way in which laws are reformed in the UK will be also discussed. The common law system in the UK means that the UK's primary legal principles have been developed by the judiciary rather than by parliament. However, as parliamentary sovereignty is an important key principle of the UK constitution parliament is the supreme legal authority in the UK. Parliament can create, change or repeal any law and generally speaking the judiciary cannot overrule legislation that has been passed by parliament.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
The rule of law, simply put, is a principle that no one is above the law. This means that there should be no leniency for a person because of peerage, sex, religion or financial standing. England and Wales do not have a written constitution therefore the Rule of Law, which along with the parliamentary Sovereignty was regarded by legal analyst A.C Dicey, as the pillars of the UK Constitution. The Rule of Law was said to be adopted as the “unwritten constitution of Great Britain”.
middle of paper ... ... A Behavioural Understanding of Privacy and Its Implications for Privacy Law.” The Modern Law Review 75.5 (2012): 806 – 836. Web. 19 Dec. 2013.
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...
Kuo, M.-S. "The Concept of 'Law' in Global Administrative Law: A Reply to Benedict Kingsbury." European Journal of International Law 20, no. 4 (2010) PL 997.