Domitus Ulpian said, “Justice is the constant and perpetual will to allot to every man his due.” Justice is what allows a society to operate and function. It is upheld and enforced by a system of rules known simply as the law which are officially recognised and imposed on states to govern behavior. Some form of law has always existed in human history whether it be in an unwritten customary form or in a written format like a constitution (Milgate P, 2013). The law and legal system around the world has developed throughout history to the point that there are many different categories and sub categories of law. In modern day Australia, the legal system has been modelled after the English system. This is a combination of statute and common law. Australia adopted these laws from England upon colonisation, when Captain Phillip declared the land ‘terra nullius’ claiming it under England. Despite, the fact that both common and statue law are enacted in parallel within Australia, they are quite different. Common law and statute law are both made and changed in different ways, they have distinct advantages and disadvantages, they are both effective and ineffective in certain situations, and they have developed into their cotemporary forms through different paths. Through these two laws is the basis of modern Australian law (Legal System, 2014).
Common law, although having a slightly ambiguous meaning, is used to define a system known as case law in which the law is developed through the decisions of courts and judges. Common law has existed in England since medieval times in which the church, landlord, barons and other king appointees formed the court and administrative bodies. During their individual reigns, William the conqueror and Hen...
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...er. Acts of parliament are written in complex terms and their meaning can often be confused. Common law can be used to clarify or interpret statutes. Wherever there is dispute on the meaning or application of legislation, a court can decide and resolve these matters. For example, if a statute states that councils must approve the removal of trees. People may argue over what species of trees or if the tree is dead or not. Judicial interpretation can make decisions on these matters (Milgate P, 2013).
Overall, the law determines how a society or state acts by dictating what the people can and cannot do. However, the law has changed through time and differs from place to place. In Australia, both Common law and Statute law are implemented into the legal system. They serve as sources for Australia’s contemporary law as they were received from the English legal system.
Since the dawn of time for a society to work it needs to have a level of structure that applies to everyone and is understood by everyone. Australian legal system is broad and complex. It is the nature of the encompassing laws and regulations which reflect how people, organisations and governments behave on the many different levels of operation and these are created to make sure that everyone understands their rights and obligations. There are two sources of Law in Australia: Statute Law regulated by Parliament and comprise of legislations and acts; and Judge-made Law or Common Law where decisions made by judges are based on previous cases.
Although it is required to consider the common law rule, principles and to apply settled laws to new facts. The court is also restricted by different legal doctrines of precedent, separation of powers and the court is required to make Australia laws remain predictable and certain.
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of E...
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
Legal system is a comprehensive term that is used to confirm the existence of the law; it also explains the law-making process and how this is enforced on everyone. The Australian legal system regulates all level of governments, organisations, and all people whether they are Australian born or have migrated here, and they must obey Australia’s regulations. The legal system here was developed from the United Kingdom’s legal system, as Australia was a colony of the British. At a glance, the British government granted restricted rights to their colonies, including Australia to set local government system. This was intended to developed laws in local area, also to deal with specific situation at that time. As a result, the legal system in each of the colonies started to develop separately. According to Carvan J (2010) the Australian law is adopted from several sources, including the rules of equity, parliamentary laws, delegated legislations, judge-made laws, and international laws. (Austrlian Legal System, 2007)
However, as the United Nations lacks the power to enforce these treaties, the most effective way for Australia to incorporate these international treaties is through domestic regulation – constitutional or statute. Currently, Australia has some statutes that reflect and incorporate the international obligations. Following the Westminster system, the Parliament has the power to make laws. When there is a dispute about how parliamentary law is to be interpreted, independent judges are called upon to determine the dispute. As a biased parliament may wish it to be interpreted in a particular way, a judge’s duty is mainly concerned with applying existing laws unrestricted from political pressure. Particularly where one of the parties to a dispute is the State, the public trust in the confidence that there is a clear separation between those who make the law and those who interpret it. There will be an impartial, objective interpretation: ‘the government’ will not be there, pushing a barrow. At the adjudicative stage under the Australian system, the decision- maker is utterly impartial, and especially, not constrained by governmental or party-political pressure. To ensure perceptions of this, judges are promised security of tenure, not removable except in specified circumstances. By these means, judicial independence is upheld as the safeguard of justice according to law and the
Statutory law comes into existence by Congress and the various state legislative bodies that make up another source of law. Courts develop the common law rules from the principles behind the decisions in actual disputes. Common law is the law created by judges when interpreting statutory law. If statutory law conflicts with common law, statutory law will govern because the body of statutory law has expanded greatly since the founding of this nation. This expansion has resulted in a proportionate reduction in the scope and applicability of the common law. However, the common law remains a significant source of legal authority. Even when legislation had been substituted for common law principles, courts often rely on the common law as a guide to interpreting the legislation on the theory that people who drafted the statute intended to codify an existing common law rule.
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,...
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
A major impediment of the common is the tendency to lead to perpetuity of bad decisions once a precedent has been set. If there is no amendment and the same ruling is applied, that bad decision will be subsist and will be perpetuated. Since the common law system revolves around following antecedents, it usually takes a long while for change to occur. Unfortunately, before this change is effected, the bad decision will be upheld as long as the change does not come into effect. This is one area where the codified system of law has an advantage as it is rules based approach to law making designed to provide a comprehensive code of laws for the area in question.
One of the features of the Australian constitution is that is it structured in a way that theoretically reflects the rule of law. This is reflected through the ‘separation of powers’ doctrine, which is assumed to be a fair structure of government. Its principles suggest that power does not lie with one branch of government, but is spread out amongst three (legislative, executive and judicial).
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
Kirby, M. 1997, ‘Bill of Rights for Australia – But do we need it?’, viewed 30 March 2014, < http://www.lawfoundation.net.au/ljf/app/&id=/A60DA51D4C6B0A51CA2571A7002069A0>
Everyone know that Law is a system of rules which are developed in community with a aim to govern a society maintaining, justice, protect individuals and property. There are a lot of countries and they have own set of rules and norms including itself constitutional, criminal, contract, trust, international, tort, administrative and property. During the long time law improving and developing a lot and become more invulnerable and fair. Therefore, in a modern society and most of countries law has become similar with similar legal system. Nowadays there are several general types of legal system in the world and two main most popular of them, which had mostly spread through the world. They
Parliament, as the sovereign lawmaking body is one source of law. It makes legislation via passing bills to make laws that abide by social cohesion and maintain social progress, such as sanctions imposed for murder under the Criminal Law Consolidation Act SA.