Introduction A ‘free society’ is a system of interaction between humans wherein every person can participate in a civilised manner and without discrimination. In Australia, the Commonwealth of Australia Constitution Act 1900 (Imp) is the primary source by which society operates as an essentially free society. This paper seeks to establish that the functioning of such a society is dependent upon the existence of a legal framework supporting the rule of law, which is ultimately, an ideology. Analogically, the circumstances in which the application of the rule of law has either created a free society or undermined it will be explored and its purposes thus inferred to construct a definition of the ‘rule of law’ reflecting contemporary …show more content…
In asserting its judicial independence, the High Court in Plaintiff S157/2002 v Commonwealth stated it was ‘the ultimate decision-maker in all matters where there is a contest.’ Zywicki suggests that as long as the court follows precedent and thereby gives individuals more certainty of knowledge over the rights they possess, ‘social coordination and economic wealth’ will increase. The courts would not be relying on its discretion, but rules which will apply equally in the future. Thus, refining Dicey’s definition, Zywicki views ‘rule-based decision making’ as a basic concept of the rule of law. Contrarily, Sykes suggests discretion may be a ‘matter of necessary efficiency’ which is more valuable than strictly adhering to the rule of law. The rule of law, then, does not encapsulate the absolute value of society. Sykes refers to police discretionary power; however, this concept of balancing the rule of law against other values may be extended to situations wherein exceptions and defences in law apply to certain groups. Consider the conferral of legal privilege and the requirement of confidentiality on legal practitioners in criminal law- whereas equality before the law operates in favour of the client, the law of legal privilege applies only to legal practitioners. As Sykes emphasises, ‘it would be unjust if the law failed to account for social difference and disadvantage...’ Zywicki would concur and modifies the
In this essay I will examine the development of Australian society and subsequent rights given to Australian citizens, thus addressing the guiding question as quoted at the top of the paper.
The constitution guarded against tyranny by giving us federalism, separation of powers, checks and balances, and large vs. small states. The constitution was written in Philadelphia in the year of 1787. This established America’s national government and fundamental laws
The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects
The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law
The rule of law is whereby the government and all those who govern are bound by the law and everyone must follow the law. Rule of law is also known as nomocracy. Government individual officials are not entitled to make any decision which is not in accordance to the law (Paulsen, Calabresi, McConnell & Bray, 2013). All the citizens are governed by the law including those who make the laws. A. V. Dicey has highly advocated for rule of law in modern times and has popularized it. In history the idea of rule of law can be traced back to the ancient civilizations like China, Mesopotamia, and Rome among others.
Chapter one of the textbook, Constitutional Law and the Criminal Justice System by J. Scott Harr, Karen M. Hess, Christine Orthmann, and Jonathon Kingsbury discuses a historical overview of the United States, or better known as the U.S. Constitution. To elaborate, the textbook educates the reader on why the U.S. Constitution was created, as well as what its main purpose is. Most people know that the U.S. Constitution was not necessarily an original thought by the United States. In fact, it was greatly influenced by the English document known as the Magna Carat (Harr, Hess, Orthmann, & Kingsbury, 2015, p. 13). In addition, the U.S. Constitution was fashioned, mainly, as a binding document to prevent any one person from having complete power in the United
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
An instrument in the Australian political system that produces a fair and democratic society is the Federal Constitution 1901 because it outlines the powers and constraints of the Australian political/legal system. The constitution creates a democratic and fair society because as Judge Murphy describes, it allows “an equal share of power”, this is evident through the division/separation of powers. Moreover, Gordon Reid and Martyn Forrest support Murphy’s claims regarding the constitution producing a fair society because it ‘uphold[s] the highest ideals of political representation’. The constitution protected rights regarding democracy in s 41,7 and 24, thus producing a democratic/fair society. However, in regards to values and ethics the constitution had failed to produce a democratic and fair society in the past, because suffrage was only granted to non-aboriginal men. This was due to the values and ethic of the time period, in which it was thought that aboriginals were not ‘citizens’ and women not qualified to vote.
The World in which we live in are run by systems. Systems of governance, systems of living, and importantly, systems of law. Law is the groundwork in which all other things in the human existence are built. This process causes people to wonder, what happens if Law ceases to be just? An Idea that might be absurd to some, though might have an eerie kernel of truth to it.. The Dystopian novels of Fahrenheit 451, Anthony Burgess' A Clockwork Orange, and the Film of 1984 All have terrifying perversions of Law, giving us an insight into how overbearing our government can become.
It is recognised that Australia’s System of decision making in the court is in need of reform, if the
In his book on ?The Behavior of Law? Donald Black attempts to describe and explain the conduct of law as a social phenomenon. His theory of law does not consider the purpose, value, impact of law, neither proposes any kind of solutions, guidance or judgment; it plainly ponders on the behavior of law. The author grounds his theory purely on sociology and excludes the psychology of the individual from his assumptions on the behavior of law (Black 7). The theory of law comes to the same outcome as other theories scrutinizing the legal environment, such as deprivation theory or criminal theory; however, the former concentrates on the patterns of behavior of law, not involving the
The rule of law is seen as being one of the most fundamental components of the UK constitution as well as being a principle that is concerned with restricting parliamentary action. Though the rule of law is seen to be a component in the constitution; the actual meaning of the rule of law has been very problematic to interpret. This is considerably down to the fact that it means different things to different people as since the nineteenth century, academics, politicians and judges have proposed diverse definitions and explanations in regards to the rule of law and the role it upholds in the UK constitution.
“Rule of Law”, said Dicey in 1885, means “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative ,or even wide discretionary authority on the part of government.” (THE LAW OF CONSTITUTION 198 (8th ed.)
The rule of law is a difficult concept to grasp and proves elusive to substantive definition. However, the following work considers the attempts of various social and legal theorists to define the concept and pertinent authorities are considered. Attitudes and emphasis as to the exact shape, form and content of the rule of law differ quite widely depending on the socio-political perspective and views of respective commentators (Slapper and Kelly, 2009, p16), although there are common themes that are almost universally adopted. The conclusions to this work endeavour to consolidate thinking on the rule of law in order to address the question posed in the title, which is at first sight a deceptively simple one.
The rule of law represents a challenge to State authority and power, demanding both that power be granted legitimately and that their exercise is according to law. The law is not autonomous but rests on the support of those it governs. Whilst the rule of law places law above everyone, it remains paradoxically subjected to the ultimate judgment of the people. The rule of law is considered the most fundamental doctrines of the constitution of UK. The constitution is said to be founded on the idea of the rule of law.