M30G12 International Law and Legal Systems

Answers:

Answer 1:

The legal framework has been adopted by every nation to protect the citizens from any disputes arising as a result of any conflict or contract. The purpose is to analyze the constitutional framework of the French and English Legal Systems and distinguish both the concepts in detail. It is to be noted that the concept of English Law and French Law do not fall under the same category. It has been observed that the concept of English Law falls under the common law system whereas the French Law system is based on Civil Law systems.

According to Faulkner and Douglas, the concept of English Legal system evolved much before the Norman Conquest and gradually spread to the English speaking colonies of Australia, U.S.A, New Zealand and Canada. The framework of English law is a major part of the European Legal Systems which is an ancient legal concept and emerged in England during the Middle Ages and spread across the continents of British colonies.  The views of Christopher was different in this matter according to him  the historical development of the common law system of England started long before the reign of William the Conqueror in 1066.  It was observed during that with the advent of the English Legal system various obstacles arrived on its way of success. The first problem associated with it was the doctrine of “stare decisis” which means binding precedent. The concept of binding precedent is based on the rule that the previous decision of the court is to be followed in other words the court is bound to follow the decision made by the previous judge or any other law making body. It has been criticized by many jurists mainly because of the part that even if the previous decision made by the Court is disagreed the present Court of Justice is bound to follow it.

The second problem related to the English Law system is that it an uncodified law.  The concept of uncodified law means unwritten constitution which can be defined as judge-made laws. In shaping the English Legal system the judges contributed enormously as the previous decisions are relied upon while deciding any present case. In this context, it can be said that the constitution of the English Law System is unwritten and referred to as uncodified constitution and is composed of various documents. It has been observed that though some rules were written in authoritative form by providing evidence however they were contained in various other documents that are not in consistent with the Constitution.

The French Constitution is codified or written and is based on the principles of civil law. Oliver Beaud however emphasized on the features of French Constitution which consist of the written constitution based upon the principles of civil laws, administrative laws, commercial and corporate law. The legislative enactments contained in the written constitution is relevant to follow and is considered binding for all. The legislative enactments contained in such legal system are accurate and there is little scope or even no scope at all for judge-made laws. The countries which follow the system of civil law are continuously updated with the recent legal codes, the application procedures and the punishment appropriated for the offences. In case of civil law system, the role of the Judge is to determine the facts of the cases and establish a proper conclusion for the same by applying the required provisions of the statute. It can be noted that the Judge has the supreme power to investigate into the matter, make suitable changes and give decision keeping intact the provisions of law. The Judge in any case cannot go beyond the statutes of the codified set of laws and also cannot modify the legislative framework contained in such written constitution.

The practice of civil law system started throughout the Europe colonies and with the growing pace of European States it sought to establish an independent legal system. The Medieval Scholars of the Catholic Church had influenced the thought and ideas of the common people long before the advent of the civil law system. The common people of Europe were governed by the views of the Roman Catholic Church and there was no scope for independent thinking. The birth of civil law system in the medieval period and its evolution marked an significant change in the development of European Legal system.

The Constitution comprises of the fundamental principles and rules of the legal system which governs the relationship between the State and the general public. The rules that have been set up in the Constitution are responsible for regulating the government of a country. It has been stated that each country should have a constitution of its own to ensure peace and stability for the citizens. The function of the Constitution is to impose limit and control over the discretionary power of the government. In some cases it has been observed that the government abuses its power independently by opposing the rule of public policy and in such cases the Constitution has the absolute power to oppose such discretionary act of the government.

The English Constitution is defined as unwritten laws and often described as uncodified constitution. The basic principles of the English Constitution are the Rule of Law and the Parliamentary supremacy. According to McCordinale and McKerrell, the Constitution of United Kingdom being uncodified is dependent on Rule of Law and the Parliamentary Supremacy. The concept of Rule of Law is based upon the principle of legality which highlights the point that the policy of the government is based on the principle of law and not on men. In other words Rule of Law can be defined as the law which is supreme and its decision is binding on all. The Rule of Law is the supreme and its principle is to safeguard the interests of the general public in order to safeguard them from the discretionary power of the government and the rule is same for all as both the rich and poor are equal in the eyes of law. The Parliamentary supremacy is the highest law making body and it regulates the functions of the legislature, executive and the judicial.

The French is written and described as codified constitution and incorporates all the principles of national sovereignty. In French Constitution the President has the supreme power to conduct meetings and has an impact on both the executive and the judiciary. The President also acts as the commander of the military during the time of national emergency and war. The Prime Minister is appointed by the President and it is the Prime Minister who regulates the decisions taken by the President within domestic jurisdiction. The French Parliament consists of the Senate and the National Assembly where the Senate is elected by electoral colleges for a fixed term of six years. The decision of the National Assembly is considered to be final as it is more powerful than the Senate. In some cases when occurs any disagreement between the two Houses the government calls upon a conference which involves the representatives of both the Houses. The government calls upon the National Assembly to make the final decision when the representative of one of the Houses rejects the proposal held in such conference. The only similarity that can be found between an English and French constitutional system is the number of Houses that is France consists of two Houses- the Senate and Council of the Republic while United Kingdom consists of the House of Lords and the House of Summons.

Lastly it can be added that the France has a unitary and republic constitution. The English speaking countries on the other hand is composed of four entities which powers are concentrated on the centre of the government and therefore it cannot be considered to have a unitary constitution. The three powers are known as executive, legislative and the judicial which separately perform various functions of the government.

Answer 2 a):

The legal system of Australia has been developed from the legal system of Britain which is known as the Common Law system. The Common Law system is based on the structure that was inherited by countries whose development was vastly influenced by the British Colonialism. The people under the Australian Legal system are treated equally in the eyes of law and safeguarded in order to ensure security from the discretional power of the government officials. The courts of Australia follow the adversarial system which has been inherited from the English Legal System. The Australian legal system has been regarded as the world’s most important common law legal system. The adversarial system of Australia is not directly presided by the Judge; the Judge acts as the third party while the systems comprises of two parties standing opposite each other presenting their cases. The Judge makes the final decision after hearing both the parties and cross examining all the witnesses. Many Authors have expressed their views on the point that why there is a single common law system in Australia and whether the federation of Australia has its own common law.  It has been argued by Waldron that the legal system of Australia is complex and has a broad sense of view based on the doctrines of separation of powers and judicial precedent. The principle of Rule of Law is an important characteristic feature of the legal system of Australia which applies to all the individuals and according to this feature every individual is treated equally before law.

It has been previously discussed that the doctrine of common law system is based on previous decisions taken by the higher authority. The common law system allows new ideas to be developed with the changing values and situation of the society. Canada and its provinces follow the system of common law which is uncodified and unwritten. Canada has adopted two of the world’s law systems that are Common Law in the nine provinces and territories and civil law in Quebec. The Common Law system has been followed because while making any decision the decision from any traditional case can be relied upon. According to Connor, the system of Common Law evolved in England during the 11^th century which was later adopted by a number of countries-Canada, Australia, USA, New Zealand and other countries of the British Colonies. The system of Common Law has been created as a result of precedent decisions that is the decision of the earlier Courts of Justice are considered while making any new decision. The reason why many countries adopted the system of Common |Law is that it is easy to follow and at the same time the decisions are not Judge made. It has been established as a rule in those countries that the decision of the previous cases should be followed in the subsequent cases thus respecting the decision of the precedents.

Answer 2 b):

The jurisprudence of Australia is a complex structure and is based on the common law system of United Kingdom. The common wealth of Australia came into operation after the Common Wealth of Australia Constitutional Act of 1900 which was passed by an Act of the United Kingdom and Queen Victoria gave her approval on this behalf in form of her Royal Assent. The Parliament of Australia in order to amend the constitution of Australia removed the powers of the United Kingdom. The enactment of Australian Act of 1986 marked its final transformation from colonial powers to legislative powers that is it can exercise legislative powers from its own which was earlier vested in the hands of the United Kingdom Parliament.

Canada follows the parliamentary system of government which was established by an act passed by the United Kingdom Parliament. There are three branches of government vested with the government- the legislature, executive and the judiciary. In United Kingdom, the Parliament controls the legislative power while the executive power is vested with the Queen. The judicial system is composed of federally appointed Judges whose duty is to solve any disputes between states and to apply the law and the Constitution wherever necessary. In United Kingdom, the Queen is the head and has the ultimate power and the constitution of the country is unwritten as in case of common law system. It is worthy to mention here that Quebec is the only province of Canada which follows the system of civil law. The constitutional system of Canada is quite complex as it involves the mixture of both civil law and common law. In addition to this it can be mentioned that the Preamble to the Constitution of 1867 provides that the constitutional principles of Canada will be similar to that of United Kingdom. The executive powers of the Canadian government are vested with the Crown whereas the legislative powers are vested with the Parliament which reflects to the same situation in United Kingdom. In this way it can be established that the common law system of Australia and Canada reflects the common law system of United Kingdom.

Answer 2c):

It can be mentioned that since time immemorial the legal system of Australia has been influenced by other legal systems. Those legal systems have been summarized below:

Adversarial and Inquisatorial systems:

Adversarial system is a system of law that has been used in the countries of England and United States of America while the inquisitional system falls under the category of civil law system and is usually applied by the European countries. The adversarial system is different from the inquisitorial system in many ways the important among them is that in case of adversarial system of law the previous decision of the higher Courts will be binding on the lower Courts. In case of inquisitorial system of law the Judges make decision from their own conduct and do not rely upon previous decisions of the higher Courts.

Customary Law:

The system is customary law is quite similar to common law because customary laws are unwritten. Recently, it has been observed that the indigenous people of Australia followed the system of customary law in order to regulate their societies.

International Law:

International law can be defined as the law which regulates the relation of citizens of different nations thus creating a legal relationship. The international treaties are the written documents which includes the United Nations Convention on the law of the Sea and International Covenant on Civil and Political Rights (ICCPR). The principle of international law has been accepted by every country in order to meet the growing demand of international business. In some countries whenever a treaty is ratified it acts as a part of the domestic law of that country however in case of Australia this principle is not applicable.

In the same way the legal system of Canada has been influenced by other systems of law. Those can be categorized as:

Foreign laws:

In recent years there developed a significant impact of foreign law on the constitutional system of Canada. It has been discussed that Canada follows the system of civil laws where the application of customary law is absent and hence the provisions of foreign laws can be applied accordingly. The application of foreign laws can be applied to the constitutional structures of those countries which have profound knowledge regarding the subject matter and at the same time familiar with the process of interpretation of such laws.

International law:

The impact of international laws can be traced from the treaties which act as an international agreement between states. The rules of international law has a binding force on the Canadian legal structure which has been established after the acceptance of the International Covenant on Civil and Political Rights by the country thus securing its position to international standards of human rights protection.

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