Law Assignment: Impact Of International Law Upon Anglo-Australian Legal System

Question

Task:
Please chose one (1) topic upon which to write your research paper on law assignment.

Papers are to be between 2000 and 3000 words in length. This is already a wide range so please do not go more than 10% over 3000 or under 2000.

Work in this unit is to be original, i.e. do not recycle an essay from another unit. It is fine to build on work that you have done elsewhere, but please rewrite your ideas so that you are not flagged for academic misconduct/self-plagiarism.

It will be assumed that you have read material from the reading list on the topic chosen, as well as conducted your own research using the CDU library databases. There are sessions run by the library to assist you with this, or ask me if you need help.

There is no set number of references required (how long is a piece of string?) but I’d suggest that if you have fewer than 10, you may not have read widely enough.

Properly constructed footnotes and bibliography according to the Australian Guide to Legal Citation are required.

Topic 1 What is Law?
Starting from a philosophical perspective, explore the concept of law. Using either a) Yolngu, Larrakia or other First Nations law or b) International law or c) Anarchism as an example, discuss what you think is ‘lawful’ about this system. What might this system share or how might it differ from the Anglo-Australian Legal System? Use historical documents and/or cases in your answer.

Topic 2 Politics & the Law
From same-sex marriage to voluntary assisted dying, politics in Australia play a significant role in lawmaking. Discuss with reference to one or more historical events in politics that have affected the formation of law in Australia – and comment on the effectiveness or otherwise of Australia’s democratic system.

Answer

Background Of Law Assignment

The world is regulated by a system of rules recognised by a particular nation and community as the means of regulating their actions. The law can be recognised as a mechanism for enforcing this particular system. In its simple definition, law can be recognised to be a binding custom of a community followed by a nation or the community. In this research, the meaning of law will be explored by focusing on its emergence and evolution. The primary and special focus will be drawn upon international law. In this concern, the difference existing between the international law and the Anglo-Australian legal system will be critically examined. The findings of the research will help to develop an understanding over the concept of law with regard to its philosophical perspective by considering the significance of international law. The research will be supported by a suitable and appropriate research methodology in order to derive towards the conclusion.

Background

In order to understand the concept and meaning of law and also to understand the significance of international law in the modern world, it is necessary to address the emergence and history of law. The study of legal history focuses on how law has been evolving overtime and why it has been changing. The history of law and its development is closely connected to the development of the society and civilisation as well as the necessity of applying law in the wider concept of the society. In this context it is also to be clarified that law can be differentiated into different forms, municipal law and international law. Municipal Law can be addressed as the law governing a particular nation with regard to its internal matters. On the other hand, international law is a law governing relations between two different states and their subjects. International law is also considered as the body of legal rules applying between different servers in states along with the other entities recognised as the actors of international domain.

The emergence and history of the International Law focuses on examining the evolution as well as development of the public international law in the case of state practice as well as conceptual understanding. The development of modern international law was witnessed during Renaissance Europe and it is also strongly connected with the development of different political organisations in the western countries during the same time. However, in the present case the meaning of law will be explored by viewing International Law as an important organ of law in the modern context.

Research aims and objectives

The primary aim of this research is to understand the concept of law. In that concern the aim of the research will be to recognise the philosophical perspective regarding the definition of law and as a result it will also involve views served by different philosophers and scholars from time to time. The philosophical perspectives specifically for this research with regard to the exploration of the concept of law will consider International Law as an important organ of the world legal system. The secondary aim of the research will be to discuss the lawful nature of international law in the legal system of the world and impact of the International Law upon the Anglo-Australian legal system in the modern time. The use of historical documents and cases in the analysis will help to reveal the ultimate meaning and significance of law.

The objectives of this research are as follows:

• To examine and analyse the concept of law.

• To consider the philosophical perspective to reveal and understand the concept of law.

• To determine the position of international law in the world legal system and its significance.

• To explore the difference and relationship between International Law as well as the Anglo-Australian legal system.

Research question

• What is the meaning of law?

• What is the significance of international law in the world legal system?

• What are the philosophical perspectives with regard to the concept of law?

• What is the significance and difference existing between the international law and the Anglo-Australian legal system?

Literature review

Philosophical perspective on the concept of law

Taking a philosophical approach to define law will require understanding the concept of philosophy of law or jurisprudence. Jurisprudence is basically that branch of philosophy investigating the nature of law with regard to its relation to the norms and values of humans and their practices in society. Since a long time, philosophy of law has been processing by articulating as well as defending prepositions in relation to laws that are found to be general and abstract. According to the philosophy of law the term law focuses on not only a specific legal system but all the legal systems at a particular time.

Scholars have argued that emergence and development of law have dated back to a minimum of 3000 BCE in ancient Egypt. They also consider that law has sustained as a systematic philosophical reflection in relation to its nature. However, it is not to be forgotten that every philosophical theory of law is a product of different time and place as well as culture where it has been developed. The philosophical speculation in relation to the nature of law is often shaped by the politics of a given time phase. It could be observed from this understanding that the meaning and concept of law tends to evolve with the change of time and cultural scenario.

In order to examine the meaning of law some theorists during the early time of the 20th century and from the point of view of different legal professionals that may include lawyers and judges. It is also clear from this observation that those theorists entirely focused on the development and understanding of the concept of law by exclusively focusing on the concept or system of advanced common law. In the same way the development of the International Law with regards to its philosophical approach it can be said that the change in time and culture demanded a legal system that can give all the states in the world with regard to their interaction with each other.

Significance of International Law in the legal system

The reason behind introducing an international law is to promote peace and justice as well as common interests among the states. States have come together for a long time to make binding rules for the benefit of their citizens. The international law has emerged as an effort of dealing with conflict among nations as the focus of international law remains to mitigate the identifiable destructive conflict. There is a direct link between International Law and emergence of law in the countries as most of the municipal laws come out of different international agreements that can include treaties and agreements between the states. The customary practices being evolved also become codified in law. On the other hand, the general legal principles that are common to different states are considered to be the part of international law and its sources. However, different scholars have argued whether International Law can be accepted as real law or not. The primary difference between these two laws is that International Law lacks an enforcement mechanism. International Law does not have any government to enforce its legal rules unlike in the case of municipal laws. As specified by Austin law is the command of a sovereign that is attended by sanction in violation of the command. In different words, law is limited to the rules of conduct that have been enacted with the determination of legislative authority and also enforced followed by a physical sanction. Hence, in the absence of any particular mechanism in forcing the international light cannot be considered as a real law. On the contrary, sir Fredrick Pollock stated that the only essential conditions to prove the existence of law is recognised to be the existence of a political community as well as recognition of the same by its members for settling rules to be binding upon them. It is true in the case of international law that the international community accepts it to be binding upon them and as a result it can be identified as a real law. Hence, it can be concluded from the understanding of the concept of international law that the concept and meaning of law the force in the case of municipal law or national law and international law.

Difference of International Law from the Anglo-Australian Legal System

The Anglo-Australian legal approach is rooted directly in the statute law, the power of the crown to grant interests and to regulate as well as change the rights and interests of the people. There are different factors that tend to influence and govern the procedure of introduction of these rights and interests of the people with each other. Drawing back to legal emergence in Australia since its colonization after 1788, a new legal regime was found to be applicable that was based on the common law. The colonial office used to treat Australia with the application of English law for the purposes of acquisition. Back in that time no treaties were there that could conclude with the aboriginal group being the important part of the Australian population. Now, like many other countries, even the Australian country and its legal system was highly influenced by the English law as it was also colonized by the British government. However, at the present time the question concludes itself as to the difference existing between the Anglo-Australian legal system and international law. A particular recognition was addressed to the aboriginal customary law as well as traditions existing in the aboriginal community of Australia. However, there was no significant relationship between these two legal systems as of that time. Though, it is specifically to be mentioned that like all the other countries Australia is also bound to follow the application of international law in the case of its dealing with other Nations. However, similar to any other municipal law and its nation, international law does not interfere in the operations of Anglo-Australian law, nor does the municipal law of Australia create conflict with the application of international law. However, different concerns regarding the application of international law in Australia arise over the statement of Justice Willis where he states that “there is no express law which makes the Aborigines subject to our Colonial Code”. Different problems associated with the aboriginal evidence make it harder for the International Law to apply upon their interaction. Now, it is significant that in order to apply International Law on the Anglo-Australians, or the aboriginals of Australia, it becomes important to address them and recognise them as a part of the Australian legal system. Hence, in the case of differences between the Anglo-Australian legal system, the application of the International Law in the case of Australian aboriginal still remains a concern.

Research methodology

Research approach

The research approach is addressed as a plan and procedure consisting of different steps with regard to broad examination of detailed methods in relation to data collection and analysis of the same followed by interpretation of the data (). Generally, there are three different approaches to research including quantitative, qualitative and mixed methods. Focusing on the demand of the research question the present research paper considered the qualitative approach of research. It will involve collection and analysis of non-numerical data like literature and websites. In the present case this included analysis of different literary sources as identified in the literature review section.

Research strategy

Research strategy is identified as a step-by-step procedure or a plan of action (). It gives a direction to the researcher with regard to their thoughts and efforts and enables them to conduct their respective research studies systematically. Since the present study has considered adoption of a qualitative approach for the research, in that case the research strategy followed the content analysis in the form of literature. In that regard, it has also considered analysing different cases in relation to the chosen topic.

Data collection

Data collection is one of the most important steps to be taken into consideration in the case of research which is an immense part of research methodology. In the present research, data will be collected from different literary sources as well as case judgements as heard by the concerned courts.

Data analysis

Data analysis has addressed the procedure of systematically applying logical techniques for describing and illustrating the collected data for the evaluation of the same. In the present case necessary data has been collected from literary sources and cases. This data has been analysed in order to lead towards the expected answer of the research questions which are to be summarised in the data analysis and findings section.

Data analysis and findings

As it has initially been mentioned that the research paper has focused on providing a general philosophical examination of law as well as legal institutions. From the observation of the data collected it has been identified that different issues in the legal field generally range from abstract conceptual questions in relation to the nature of the law as well as the legal system with regard to normative questions regarding the relationship existing between morality and law. In order to find the exact meaning of lord different scholars have provided different observations. There are primarily three categories of legal philosophy including analytic jurisprudence and normative jurisprudence followed by critical theories of law. In the case of analytic jurisprudence, it involves providing a detailed analysis of the law and its essence for understanding the differentiation of the same from other systems concerning norms that may include ethics. On the other hand, normative jurisprudence is involving the analysis of normative as well as evaluative along with otherwise perspective issues in relation to law that may include restrictions on freedom and obligations on individuals to obey the law. Lastly, critical theories of law such as feminist jurisprudence and critical legal studies challenge different traditional forms of philosophy of law.

However, finally, undermining the meaning of law from the point of view of philosophical approach, it has been narrowed down that law is considered to be the legislation that has been created and enforced with the help of social as well as governmental institutions with the intention of regulating behaviour of individuals. It is widely addressed as a science as well as art of justice. In this concern the significance of international law can be taken into consideration. International law has emerged as the subject of a new field in relation to philosophical investigation. The philosophy related to international law has been a matter of research for a long time that has invited different scholars to focus on the same. There are different theories that describe the significance of international law including the natural theory and positive theory. According to the scholars of these different theories, International Law considers its application over all the states in relation to their interaction with each other. However, as pointed out from the literature regarding whether international law is really law, there has been a long debate that International Law should not be considered as law. However, with the application of international law and acceptance of the same by different states it becomes clear that international law has been accepted as a law governing the interactions of the states. Also, it has been identified that the application of international law in Australia has been a matter of concern regarding the recognition of aboriginals of Australia in its municipal law. Hence, as the means of research gap in this particular research, in future, it is to be recognised the reasons behind issues regarding recognition of Australian aboriginals in its municipal law and how the same can be resolved in order to provide recognition to them in front of not only municipal law but also international law.

Case Laws

In the case of “East Timor (Portugal V. Australia)”, On 22nd February of 1991, Portugal was fined to file an application to institute proceedings against Australia in relation to the concern “certain activities of Australia with respect to East Timor” involving a treaty between the two nations, Australia and Indonesia that was identified to create a Zone of Cooperation in the maritime area existing between “the Indonesian Province of East Timor and Northern Australia”. The judgement was delivered on 30th June 1995. In this case, the Court then rejected the additional argument of Portugal that the rights allegedly breached by Australia were rights “erga omnes”. In the views of the court, the assertion of Portugal, that the right self-determination of people had an “erga omnes” character, was found to be irreproachable. The Court found that it was specifically not required to consider the other objections of Australia and that it could not rule on claims of Portugal on the merits. Hence, it limited the jurisdiction of Australia.

Conclusion

It has been analysed that the extent to which formation of customary international law initiates in relation to Australian domestic law has remained unresolved. From the analysis it has been viewed that recent trends have been suggesting that different rules in relation to customary international law will be adopted as a significant part of the domestic common law. However, as the findings of the research indicates, international law has long been a concern of application with regard to the municipal law of any country. It comes into conflict in many concerns ranging from identifying the viability of international law as a real law and also the issue regarding municipal law of Australia where Australia fails to recognise its aboriginals as it subjects as per the judgement of a court suggested in the literature review. It has been identified that there remains a gap in the research where in the future it is to identify strategies to resolve the concern wherever originals are not identified as a subject of Australian domestic law and how international law is affecting that concern. This will also help to resolve the concern regarding the meaning of International Law in the given situation of the Australian legal system.

Reference List

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Staiano, Fulvia, "RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW" (2017) 26(1) The Italian Yearbook of International Law Online

Terrasi, Alfredo, "XVII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW" (2016) 25(1) The Italian Yearbook of International Law Online

Un.Org (Webpage, 2021) https://www.un.org/law/icjsum/timor.htm

Wan, Wai Yee, "Directors’ Defence Of Reliance On Professional Advisers Under Anglo-Australian Law" (2015) 44(1) Common Law World Review