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COMMLAW 1004 Commercial Law
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COMMLAW 1004 Commercial Law
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Course Code: COMMLAW 1004
University: The University Of Adelaide
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Country: Australia
Question:
Discuss about the Australian Law Research a Legal System of a Foreign Country.
Answer:
The legal system in the United States of America
In the United States, laws are made at the state levels or at the Federal levels and the laws enacted by the legislative bodies that is, the state legislature and Congress are called legislative statutes. The laws from both the state and the federal legal systems derive from the three fundamental sources- the Constitution, statutes and Common law. The Constitutional laws are essential as they safeguard those rights that the society considers to be of utmost importance. There are three branches of government- legislative, executive and the judiciary that acts independently and separately. The legislature enacts the legislations; the administrative enforces the legislations and the judiciary interprets the statutes enacted and enforced (Wacks, 2015).
Some legislation are not derived from the statutes or the Constitution, instead they are developed from court decisions and are known as common laws. Although the common law originated in England, the Brtish colonists brought it to the United States and it gradually became the original body of law in each state. Although the legislative statutes have replaced the common law to a certain extent, the method is still persistent as the advocates use this method while evaluating their cases.
There is a significant relationship between the three branches of the government. The judiciary plays an important role in interpreting the laws enacted by the constitution and the statutes (Campbell, 2016). The courts are empowered to nullify unconstitutional laws and in the absence of any statutory provision for a particular matter, he court frames law and is known as judge-made laws. The decision made by the superior courts is binding on the lower courts; however, the decision of a lower court is not binding upon the superior courts.
Hart’s legal system
Professor Hart states that a legal system is a combination of primary rules of obligation and secondary rules of recognition, adjudication and recognition. The primary rules impose duties or obligation. According to Hart, primary rules shall place a citizen under statutory obligation to act in a particular way. For instance, when a person acts against the law, it implies primary rules. The Secondary rules are rules through which primary rules can be modified, introduced or enforced and are considered the rules of the rules (Summers, 2013).
According to Hart, a society may be governed only by the primary rules of obligation, but the primary rules suffer from three defects, uncertainty, static and inefficient. There is uncertainty regarding the scope of the rules; the primary rules would become statistic in nature, as there would not be any rules to eliminate the existing or introduce any new rules. Further, in the absence of any agency disputes arising out of such primary rules shall not be settled and the rules would become inefficient (Lamond, 2014).
The secondary rules shall provide remedies for the defects by specifying the ways in which the primary rules may be introduced, varied, eliminated and the how the violation of the rules can be determined (Reinold & Zürn, 2014). One of the most significant secondary rules is the rule of recognition that refers to the identification of law. The recognition rule shall remedy the issue relating to uncertainty by recognizing the primary rules of obligation. The Secondary rules of Change shall remedy the static nature of the rules by establishing a body that would introduce new primary rules of conduct. The inefficiency issue may be remedied with the help of the secondary rules of adjudication, which would empower individuals to determine with authority whether there has been a violation of a primary rule.
The American legal system include the requirements provided in the Hart’s legal system that is the legislature legislate the laws and the administrative branch implements the laws and the judiciary interpret the laws. According to hart’s legal system, the primary rules are not sufficient to govern and regulate the society. The secondary rules are considered as rules that ensure that the primary rules are obeyed (Sherwin, 2015). The statutes framed by the Legislature are the primary rules and the administrative branch ensures that the legislation is effectively implemented. The judiciary acts as a body that interprets the statutes framed by the legislature and in case there has been an infringement of the legislation, the courts adjudicate the same.
In the contemporary system where there are multiple sources of law such as legislative enactments, precedents and written constitution, the rules of recognition can be complex procedure and may require a hierarchy to overrule certain rules. This requirement has been well addressed by the US legal system in the form of separation of powers.
References
Campbell, T. D. (2016). The legal theory of ethical positivism. Routledge.
Lamond, G. (2014). Legal Sources, the Rule of Recognition, and Customary Law. The American Journal of Jurisprudence, 59(1), 25-48.
Reinold, T., & Zürn, M. (2014). ‘Rules about rules’ and the endogenous dynamics of international law: Dissonance reduction as a mechanism of secondary rule-making. Global Constitutionalism, 3(02), 236-273..
Sherwin, R. K. (2015). Opening Hart’s Concept of Law.
Summers, R. (2013). Essays in legal theory (Vol. 46). Springer Science & Business Media.
Wacks, R. (2015). Understanding jurisprudence: An introduction to legal theory. Oxford University Press, USA.
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