Australian public law essays

Apply key concepts Assignment semester 1 - Under the Criminal Law Clamping, Impounding and Forfeiture of Vehicles Act Of motor vehicles used by persons who are alleged to have committed certain Offences such as drunk driving, reckless and dangerous driving. The police can Take a vehicle away for 28 days if the person has been arrested or reported in Relation to those offences not yet found guilty by a court.

Australian public law essays

Excerpt from Term Paper: Legal Positivism and Australian Law Nature and rule of law have generated more passionate debates in legal circles than anything else and the reason lies in the fact that law directly affects the lives of citizens of a country.

National laws govern the lives of human beings and it is thus important to debate such things as their nature, their validity and applicability, their relevance to the case etc. Citizens of a country feel they are entitled to full explanation of why a certain law has been formulated and they also feel included to discuss its merits and demerits.

Law has thus often been a subject of close scrutiny and this has given rise to numerous social, legal and philosophical debates. Many question the applicability and relevance of a certain law, while other are more concerned about its long and short-term effects.

Australian public law essays

However there have been some important jurists and legal researchers who maintained that law must be accepted for what it is and that it should be based on social facts.

This theory was later called positivism theory. Legal positivism is based on the premise that content of law is not the same thing as its merits and demerits so while we should be concerned about the latter, we must combine the two to check how effective a law has been.

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John Austin was one of the most famous English jurists of his time Australian public law essays no one has been haunting the legal world more than him with his positivism theory that stated, "The existence of law is one thing; its merit and demerit another.

Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry"p.

However before we start explaining why a certain law is positivistic in nature, we must be clear about the term and its meaning.

In simpler words, legal positivism revolves around the thesis that validity of a law is not based on its merits or demerits but simply on the fact that it has been enforced by the government. It is a very interesting concept and which has often been criticized for its partial and ambiguous treatment of law.

But the fact remains that in many countries especially in countries where monarchy still exist in some form, laws are developed and enforced and that is how a law exists. The validity of the law is thus not determined by factors such as justice, applicability or relevance but simply by the fact that a sovereign has ordered its enforcement.

Austin believed that is a law has been formulated and is backed by a sovereign power ; it becomes valid whether or not it has any real significance or effectiveness.

Austin added the element of threat to law to determine its validity as he felt that laws were usually backed by some kind of threat. This threat emerges from the fear of violation of law.

In other words, in order to make people follow a law, there is certainly some threat of punishment involved. It must also be remembered that Austin and other positivistic jurists did not discard the merits and demerits of law.

They knew that for a law to be effective, it should be based on forces of justice, impartiality and truth. However, they made it clear that these forces couldn't determine the validity of law. Validity was simply a matter of how the law was enforced, whom it was enforced by and what is the threat supporting the law.

Positivity was first articulated, as a concept organizing reflection on law, legal right sand legal justice, in aboutamong the theological humanists of Paris and Chartres early a thousand years after the term 'positive' was reported to be a tool for philosophical reflections on grammar Positive law is put forward as a properly distinct category and subject of study in its own right; even those parts of it which reproduce the requirements of morality are conceived of, and can be studied, as parts of a genuine whole which in its entirety and in each of its parts, most of which neither reproduce nor are deducible from morality's requirements, can be studied as the product of human deliberation and choice.

There are some countries where positivistic approach is still widely used such as Australia, but there are other countries where laws are based on its merits and demerits than on anything else.

In this regard, we can cite the example of U. Supreme Court clearly stated, "an unconstitutional act is not a law; it confers no rights; it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed. Shelby County, U.

It applies more to "some conventional laws and positivism -- the idea that it makes sense to distinguish between things as they are and things as they should be, between fact and value, between is and ought.

While this distinction has a long tradition in Western thought, it has come under substantial attack in the twentieth century The validity of law in these countries is certainly judged by the presence of a sovereign who ordered enforcement of law and not by its merits or demerits.

Australia is one good example of positivistic law and it is believed that Australian constitutional law is a based on positivism. The positivism of Australian law emerges from its resilience to change.

In other words, the law is based on the concept of power and has been quite resistant to modification as is clear from the fact that only eight of 44 referendums for amendment have ever been approved.Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce [Anthony J.

Connolly, Daniel Stewart] on lausannecongress2018.com *FREE* shipping on qualifying offers. Inspired by and honouring the contribution to Australian public law of Dennis Pearce, this collection of essays by some of Australia's most influential legal thinkers explores how the . Home Law Essays Australian Injustice: This is reinforced by his next statement that there is no real public benefit from charging a year-old boy with a criminal offence over such a minor misdemeanors.

‘ This furthers the notion that police have become too strict towards only Aboriginal youths, apprehending them over the most trivial of. Here is the best resource for homework help with LAWS Australian Public Law at Australian National University. Find LAWS study guides, notes, and.

Excerpt from Term Paper: Legal Positivism and Australian Law Nature and rule of law have generated more passionate debates in legal circles than anything else and the reason lies in the fact that law directly affects the lives of citizens of a country.

National laws govern the lives of human beings and it is thus important to debate such things as their nature, their validity and. 1 Kelsen ‘ Pure Theory of Law ’ in Blackshield & Williams, Australian constitutional Law & Theory: Commentary & Materials’ (Federation Press, ), 5.

2 Foucault ‘Politics and the study of discourse’ in Blackshield & Williams, Australian constitutional. Australian Public Law 2nd Edition begins with a consideration of the idea of public law and develops a clear theoretical framework for investigating its subjec.

Australian Public Law - ANU