The Continuity of Legal Systems in Theory and Practice

by Benjamin Spagnolo

Overview

The Continuity of Legal Systems in Theory and Practice examines a persistent and fascinating question about the continuity of legal systems: when is a legal system existing at one time the same legal system that exists at another time?

The book's distinctive approach to this question is to combine abstract critical analysis of two of the most developed theories of legal systems, those of Hans Kelsen and Joseph Raz, with an evaluation of their capacity, in practice, to explain the facts, attitudes and normative standards for which they purport to account. That evaluation is undertaken by reference to Australian constitutional law and history, whose diverse and complex phenomena make it particularly apt for evaluating the theories' explanatory power.

In testing whether the depiction of Australian law presented by each theory achieves an adequate 'fit' with historical facts, the book also contributes to the understanding of Australian law and legal systems between 1788 and 2001. By collating the relevant Australian materials systematically for the first time, it presents the case for reconceptualising the role of Imperial laws and institutions during the late nineteenth and early twentieth centuries, and clarifies the interrelationship between Colonial, State, Commonwealth and Imperial legal systems, both before and after Federation.

Product Details

ISBN-13:	9781509920068
Publisher:	Bloomsbury Academic
Publication date:	01/25/2018
Pages:	280
Product dimensions:	6.14(w) x 9.21(h) x 0.58(d)

About the Author

Benjamin Spagnolo is a Fellow, Lecturer and Director of Studies in Law at Trinity College Cambridge.

Table of Contents

Table of Abbreviations xi

Table of Cases xiii

Table of Statutes xvii

Table of Treaties and International Instruments xxxi

1 Introduction 1

I 'Applying' Theoretical Accounts 2

II Kelsen and Raz 3

III Australia 1788-2001 4

IV A Note on Methodology 6

V Outline 6

2 Australia 1788-2001 9

I Nature and Material Scope 11

A Constitutional History; New South Wales 11

i Gubernatorial Autocracy 1788-1823 11

ii Governor and Council 1823-42 15

iii Representative and Responsible Government 18

iv Federation to the Australia Acts 23

v After the Australia Acts 28

B Constitutional History: Commonwealth 31

i Federation to the Statute of Westminster 31

ii Statute of Westminster to the Australia Acts 35

iii After the Australia Acts 39

C Enacting Formulae 41

i New South Wales 42

ii Commonwealth 44

D Seals and Royal Title 47

E Commonwealth and State Symbols 50

i Arms 50

ii Flags 51

iii Honours and Advance Australia Fair 53

F Defence Forces 54

G Summary 56

II Spatial Scope 57

A Overview 58

B Separations and Mergers 63

C Unpopulated Territory and Non-territorial Space 66

D Unincorporated Administration 67

E Summary 68

III Personal Scope 68

A Allegiance, Nationality and Citizenship 68

i Allegiance, Naturalisation and Denization 69

ii Nationality Under the Common Code 72

iii Citizenship 75

B Franchise 78

i New South Wales 79

ii Commonwealth 81

iii Norfolk Island 83

C Oaths of Allegiance 84

D Summary 86

IV Conclusions: Changes in Australian Law 1788-2001 86

3 Kelsen: Authorised Constitutional Change 88

I Framework: Norms and Legal Orders 89

II Hierarchy and Basic Norm 91

III Multiple Legal Systems 96

A Independent Systems 97

B Total and Partial Systems 97

C International Law and the Universal Legal System 99

D Late Kelsen 100

IV Continuity 101

A Revolutions, Authorisation and Effectiveness 102

B Exception: Termination of Systemic Validity 106

C Deemed Constitutionality: Constitutional Norms with an Alternative Character 110

D Continuity by International Law 113

V Problems with Kelsen's Account 114

A Constructing the Hierarchy 115

B Circularity in Ascertaining the Basic Norm 116

C Historically First Constitutions 117

VI Conclusions 119

4 Application of Kelsen's Account 121

I Norms and Constitutions in New South Wales in 1788 121

A Locating the Basic Norm 121

B Discontinuity at Settlement? 123

C New South Wales as a Partial Legal System 124

II Continuity and Unconstitutional Gubernatorial Orders in New South Wales 125

A Possibility of Retrospective Authorisation 128

B Regularisation and Multiple Sufficient Basic Norms 130

III Continuity and Pre-Federation New South Wales as a Partial Legal System 132

A Continuity of Partial Legal Systems 133

B Decentralisation and Constitutional Conventions 136

IV Continuity and Merger: State Legal Systems at Federation 137

A Continuity Between Colonial and State Partial Legal Systems 138

B Australian and Commonwealth Legal Systems and Territorial Overlap 139

C Termination of (Partial) Systemic Validity? 142

D Federation and Merger in Practice 144

V Discontinuity: Total and National Legal Systems and the Statute of Westminster 145

A Total (National) Legal Systems and Historically First Constitutions 145

B Application of the Transformation to National Legal System Exception 151

C Alternative Analyses 152

VI Continuity after the Statute of Westminster 154

VII Continuity by International Law 155

VIII Conclusions 159

5 Raz: Continuity of Social Form 162

I Taxonomy of Laws and Internal Relations 163

A Laws 164

i Duty-imposing Laws 164

ii Power-conferring Laws 165

iii Permission-granting Laws 166

iv Laws that Are not Norms 167

B Internal Relations 168

i Genetic Relations 168

ii Regulative Relations 168

iii Permissive Relations 169

iv Applicative Relations 169

C Rights and Other Legal Phenomena 170

II Institutionalised Normative Systems 172

III Recognition 174

A Recognising Relations Between Laws 175

B What Recognition Entails 176

IV Continuity 178

A Legal Changes 180

B Non-legal Political Changes 182

C Interaction Between Laws and Non-legal Norms 187

D The Reconstruction Summarised and Compared 191

V Conclusions 193

6 Application of Raz's Account 195

I Continuity: Settlement to Federation 195

A Settlement 195

B Settlement to Responsible Government 198

C Responsible Government to Federation 200

II Federation and Discontinuity 204

A Federation 204

i Continuity in the Colonial-turned-State Legal Systems 205

ii Continuity in the Imperial Legal System 207

B Federation to the Statute of Westminster 210

C After the Statute of Westminster 213

i Statute of Westminster to the Australia Acts 213

ii The States and the Australia Acts 215

iii Discontinuity in the Territories 218

III Conclusions 219

7 Evaluation 221

I Continuity in Theory: Fit and Explanatory Power 221

II Continuity in Practice: Australia 1788-2001 224

Bibliography 227

Index 236