...cite without permission] Written Constitutions and Unwritten Constitutionalism Mark D. Walters Faculty of Law Queen’s University February 2007 To Be Published In: Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, forthcoming) I. Introduction Defending the idea of ‘unwritten law’ has never been easy. Jeremy Bentham thought the very expression to be a ‘paradoxical and unmeaning epithet’.[1] In his view, social reform required ‘fixed and accurate’ laws—laws that ‘[w]e see, we hear, we touch; in short we handle…’[2] This empirical concept of law follows from the ideal of law as something produced by conscious acts of sovereign will. Central to this concept are, to use H.L.A. Hart’s expression, ‘rules of change’ that permit societies to escape the confines of ‘primitive’ custom.[3] The progressive march of legal theory, it may be said, has been away from medieval notions of law as customs practiced time out of mind or as the immutable dictates of natural law, away from the fiction that judges discover rather than make law, and towards modern notions of law as creative political acts recorded in writing. In terms of constitutional law, this march leads to the idea of written constitutionalism, a destination that the rebelling American colonists are often said to have reached first.[4] It was a task especially ‘reserved’ to the American people, wrote Alexander Hamilton, to demonstrate...
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...PROTECTION – TIME FOR AN AUSTRALIAN FEDERAL BILL OF RIGHTS? JULIE CASSIDY* Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however, important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed – a federal bill of rights? In the course of this analysis the author makes suggestions for reform; specifically how a federal bill of rights may address the paucity of constitutional protection. I ...
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...! • • • • • • • Principles of the Australian Parliamentary System Government)–!The!government!is!the!party!or!coalition!of!parties!that!wins!the!most!seats!in!the!House!of!Representatives! Parliament)–!Consists!of!a!group!of!elected!representatives!and!a!person!who!represents!the!Queens.!In!the!federal!parliament!that!person!is!the! Governor>General.!Parliaments!make!the!laws!for!a!country/state! Crown)–!The!monarch!is!represented!by!a!governor/governor>general.!Refers!to!the!position,!power,!or!dominion!of!a!monarch.!The!monarch!as! Head!of!State! Separation)of)Powers)–!The!three!branches!of!power!(executive,!legislative!and!judicial)! Federal)System)–!The!power!to!govern!is!divided!by!the!Commonwealth!and!states.! Bicameral)–!A!bicameral!parliament!consists!of!two!chambers!or!houses! Minister)–!A!minister!is!both!a!member!of!parliament!and!a!member!of!the!executive.!This!means!a!minister!is!usually!in!charge!of!a!government! department!that!is!responsible!for!enacting!the!law! ! Australian Parliamentary System Under!the!Australian!federal!system!of!government,!the!country!is!divided!into!states!and!territories!each!with!its!own!parliament!–!making!a!total!of!9! parliaments.! • Commonwealth,)6)States,)2)Territories! They! are! elected! by! the! people! and! represent! the! needs! of! the! people.! Members! are! also! responsible! to! the! parliament! and! the! people! for! their! actions.!The)APS)is)based)on)the)Westminster)system)that)was)adopted)by)the)Commonwealth)constitution)in)1900...
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...Chapter Title: 3 The Theory of Stare Decisis Book Title: The Sources of Hong Kong Law Book Author(s): Peter Wesley-Smith Published by: Hong Kong University Press, (October 1994) Stable URL: http://www.jstor.org/stable/j.ctt2jc134 . Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. . Hong Kong University Press is collaborating with JSTOR to digitize, preserve and extend access to The Sources of Hong Kong Law. http://www.jstor.org This content downloaded from 143.89.105.150 on Sat, 6 Dec 2014 22:30:49 PM All use subject to JSTOR Terms and Conditions The Theory of Stare Decisis GENERAL THEORY Introduction The essential idea behind stare decisis is that a judge is required - thus has no discretion to refuse - to follow certain previous decisions. This obligation arises when a prior case A yields a proposition of law in circumstances which are indistinguishable from those confronting the judge in case B, and by a formal rule the judge in case B stands in an inferior relationship to the court which decided case A....
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...Debate Paper: Gun Ownership versus Gun Prohibition Mark Mitchell XBCOM-275 April 27, 2014 Daniel Anderson Debate Paper: Gun Ownership versus Gun Prohibition Gun control (prohibition) is one of those matters on which practically every person has a view and those views are deeply maintained. Whether a person is pro-gun or anti-gun is based on each's opinion and are repeatedly established not on real details but rather on crude passions driven by extensively broadcasted distortions regarding the use and misuse of guns. Additionally, most people have the same opinion that gun-related injuries or death of unintended person should by no means tolerated, although there is a wide range of opinions on what the course of action to take in an attempt to obtain a proper solution. So in the interest of clarifying this subject of which is right and proper, whether it is the Private ownership of guns or the prohibitions of guns (or if the answer lies somewhere in the middle) is truly right for the country; enter the debate. As to reasons in support of pro-guns ownership for private citizens, comes from one of the founding fathers Thomas Jefferson (n.d.) who eloquently stated “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." He also said," No free man shall ever be debarred the use of arms.” This belief was not his alone but that of all the founding fathers. This belief was so...
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...illuminating views on a number of issues related to the project. We are highly indebted to our professors, Dr. Praveen Goyal and Dr. Leela Rani, who gave us the opportunity, guidance, constant supervision and support in completing the project. We would like to express our gratitude towards BITS Pilani for their kind co-operation and encouragement which helped us in completion of this project. GV Hemanth Kumar G Visruth Reddy Sourav Mukherjee Abhinav Chitre Pinky Saini Contents INTRODUCTION 3 PORTFOLIO OF SL PACKAGING PVT LTD. 4 POLITICAL ENVIRONMENT 6 Political Environment and risks in Australia: 6 Political Environment and risks in South Africa: 6 UNITED STATES 10 CULTURE 12 UNITED STATES: 12 AUSTRALIA: 12 SOUTH AFRICA: 13 HOFSTEDE ANALYSIS: 13 ENTRY STRATEGIES 16 SUPPLY CHAIN STRATEGIES 20 MARKETING STRATEGY 21 FOREX ISSUES 28 CONCLUSION: 30 REFERENCES 30 INTRODUCTION The jute trade happens around Bangladesh and the Indian State of West Bengal. The region around...
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...‘external relations’ of one’s own law with the law of other peoples in other lands, now it is a view of transnational legal patterns and of the cultural complexities of law at home. We live in conditions where the law of the nation-state must respond to a great plurality of demands from different population groups within its jurisdiction. At the same time, it must respond to powerful external pressures. Legal thought in national contexts is being fragmented from within in a new ‘jurisprudence of difference’…and globalized from without in demands for transnational harmonization or uniformity. (“Culture, Comparison, Community” by Roger Cotterrell) Kindly react to this statement, supporting your personal views and conclusions with research, analysis, examples and well-reasoned argumentation. I. Introduction 1 The phenomenon of ‘globalisation’, exemplified by the growing interconnectedness between nations, leads to inevitable interactions between legal systems. Roger Cotterell’s statement illuminates the myriad of overlapping concepts in comparative law that facilitates our understanding of these interactions. 2 In response to his statement, this paper seeks to...
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...NONE, ONE OR SEVERAL? PERSPECTIVES ON THE UK’S CONSTITUTION(S) DAVID FELDMAN* An inaugural lecture is the occasion when the University of Cambridge can look its gift horse in the mouth, weighing the new professor in the balance against his or her distinguished predecessors. The Rouse Ball Professorship of English Law has been held in the past by a long series of distinguished scholars, from Sir Percy Winfield to my immediate predecessor, Sir Jack Beatson whom we are delighted to welcome back today. Their work has influenced generations of lawyers. They certainly influenced me. Before I encountered Criminal Law: The General Part,1 a great little volume by Professor Glanville Williams, Learning the Law, was my ‘Guide, Philosopher and Friend’ (as it still says on the cover of the latest edition, now edited by my colleague Professor Tony Smith)2 as I approached the study of law. Another Rouse Ball Professor, the late Sir William Wade, had a formative effect on my understanding of land law and administrative law both through his famous books, Megarry and Wade on the Law of Real Property (now edited by a former Fellow of Downing College, Dr. Charles Harpum)3 and Administrative Law (now in the hands of my colleague Dr. Christopher Forsyth),4 not to mention the lectures that I attended as an undergraduate in (softly be it said) the University of Oxford. Two wonderfully stimulating and enjoyable books by the Emeritus Rouse Ball Professor and * Rouse Ball Professor of English Law in...
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...GENDER DISCRIMINATION OUTLINE I. Constitutional law A. Background: 100 years of discrimination > theme: law responding to gender discrepancies 1) Should men & women ever be treated differently under the law? a. Definition of equality: = choice/power/income i. Pay gap: women earn $0.74 for every $1.00 a man earns b. Linda Hershman article, Homeward Bound: Many educated & intelligent women decide to stay home with their babies > those decisions are connected to the fact that women are paid less than men, in general c. Evolution in law i. Common law (blackstone): women lost their identity after marriage (merged with husband) & considered inferior to men (acted under husband) - Result: Tenants in the entirety or joint accounts > assumed man put in all the $ (women has BOP to prove otherwise) ii. After 14th amendment > women began to feel that they should have rights as well B. 19th Century: 2 sphere ideology where women queen of home & men marketplace people > no = protection because genders seperaet 1) Privileges and Immunities Clause of the 14th amendment - a. Bradwell v. Illinois (1873) i. FACTS: Bradwell and her husband ran the most influential legal paper in the Midwest & she wanted a license to practice law...
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...Year 12 Legal Studies Notes Focus Study: Crime Key Legal Concepts and Features of the Legal System Crime - a violation of a law in which there is injury to the public or a member of the public and a term in jail or prison, and/or a fine as possible penalties Types of Crimes Offences against the person Offences against the person are defined as acts that intend to cause harm or injury to the victim Homicide Definition: is the unlawful killing of one person by another * Murder is the killing of one person by another “with malice aforethought”(mental component) * Manslaughter is the killing of someone in circumstances less culpable than murder. (generally given a lighter sentence than for murder) Degrees of awareness | Murder | Voluntary Manslaughter | Involuntary manslaughter | Non-criminal Killing | Intention to killReckless indifference of life Constructive murderDeath during intention to commit grievous bodily harm | Where the intention to kill or cause the act is mitigated by other factors, such as provocation or diminished responsibility | Non-reckless indifference to life or manslaughter by criminal negligenceReckless indifference to grievous bodily harmManslaughter by an unlawful and dangerous act | Death by non-criminal negligenceDeath by an unlawful act that is not dangerousAccidental deathSelf-defence | Stats: Murder: * In 2001 of the 340 homicides in Australia, 306 were murder * Maximum penalty is life imprisonment ...
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...GENDER DISCRIMINATION OUTLINE I. Constitutional law A. Background: 100 years of discrimination > theme: law responding to gender discrepancies 1) Should men & women ever be treated differently under the law? a. Definition of equality: = choice/power/income i. Pay gap: women earn $0.74 for every $1.00 a man earns b. Linda Hershman article, Homeward Bound: Many educated & intelligent women decide to stay home with their babies > those decisions are connected to the fact that women are paid less than men, in general c. Evolution in law i. Common law (blackstone): women lost their identity after marriage (merged with husband) & considered inferior to men (acted under husband) - Result: Tenants in the entirety or joint accounts > assumed man put in all the $ (women has BOP to prove otherwise) ii. After 14th amendment > women began to feel that they should have rights as well B. 19th Century: 2 sphere ideology where women queen of home & men marketplace people > no = protection because genders seperaet 1) Privileges and Immunities Clause of the 14th amendment - a. Bradwell v. Illinois (1873) i. FACTS: Bradwell and her husband ran the most influential legal paper in the Midwest & she wanted a license to practice law...
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...give an accessible introduction to an area of law that is the subject of change or public debate. International law 1 overview What is international law? – difference between international law and domestic law – Why do States obey international law? – subjects of international law – How do international law and domestic law interact? 4 sources of international law Jus cogens – international conventions and treaties – Australian treaty practice – custom – general principles of law – judicial decisions and writings of publicists – ‘hard law’ and ‘soft law’. 8 states What is a State? – rights of States – self-determination – creation and recognition of new States – case studies. AUTHOR NOTE: Jane Stratton currently leads corporate social responsibility programs in a leading Sydney law firm, teaches law students at a Sydney university and independently, undertakes community development projects in Western Sydney. Her work has included legal and policy roles in the Public Interest Advocacy Centre, the Australian Human Rights Commission, UN High Commission for Refugees and the ICTY. She has experience in litigious and political advocacy. Jane holds qualifications in law (Honours) and in Arts (Honours) from ANU and a Masters of Law from New York University. ACKNOWLEDGMENT: The publisher would like to thank Dr Ben Saul, Director, Sydney Centre for International and Global Law, for reading and commenting on the text. DESIGN: Bodoni Studio ...
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...Topic Two: Human Rights Rights The nature and development of concepts of human rights. State sovereignty, ‘natural law’ doctrine, historic constitutional documents, movement for slavery abolition, trade unionism, universal suffrage and universal education Human Rights Human rights are the basic rights to which all human beings are entitled to. The most recognized document in modern human rights is the Universal Declaration of Human Rights, created by the UN. Human rights can be said to come from the idea of ‘natural law’. Natural Law Doctrine is the idea that some laws come from God or higher reasoning whether they have been written down or not. State sovereignty State sovereignty refers to the power of a state to have control over its territory and its subject. It’s important for protecting human rights because it means someone whose rights are being abused can flee to a safe country for protection. Because it restricts the actions of neighbours and other concerned states, also allows human rights abuses to go unpunished within the boundaries of a state. Movement for the Abolition of Slavery Slavery is the state of being under the control of another person. Trade Unionism Trade unionism is the collective organisation of workers formed to protect the rights of individuals from the power exercised by employees. The benefits of trade unionism include: * Prevention of child labour * Prevention of forced labour * Fair treatment of workers ...
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...MANU/SC/0241/2007 Equivalent Citation: 2007(2)ALT1(SC), JT2007(2)SC1, (2007)3SCC184, [2007]1SCR317 IN THE SUPREME COURT OF INDIA Writ Petition (Civil) No. 1 of 2006, Transferred Case Nos. 82 to 90 of 2006 and Writ Petition (C) No. 129 of 2006 Decided On: 10.01.2007 Appellants: Raja Ram Pal Vs. Respondent: The Hon'ble Speaker, Lok Sabha and Ors. Parameter of judicial review in relation to exercise of parliamentary provisions Hon'ble Judges/Coram: Y.K. Sabharwal, C.J., K.G. Balakrishnan, C.K. Thakker, R.V. Raveendran and D.K. Jain, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Ram Jethmalani, P.N. Lekihi, T.R. Andhyarujina, Sr. Advs., Krishan Singh Chauhan, Indra Pratap Singh, Gyan Mitra, Chand Kiran, P.K. Jayakrishnan, K.C. Lamba, Sudha Pal, V.K. Shukla, Nischal Kumar Neeraj, Ashish Tripathi, K.K. Mohan, Nawal Kishore Jha, M.P. Jha, Harshvardha Jha, Ram Ekbal Roy, Rani Jethmalani, Harish Pandey, Samar Bansal, Abhik Kumar, P.R. Mala, Rajiv Kumar Tiwari, Rajesh Kumar, Sanjai Tiwari, Lata Krishnamurthi, Sachin Jain, Mukesh Kumar Tripathi, Lokesh Kumar, M.K. Garg, Meenakshi Arora, S. K. Mehndiratta, Pranav Sen, S.W.A. Qadri, Mahra, R.M. Sharma, Sushma Suri, Advs., Gopal Subramanian, ASG., Dayan Krishnan, Gautam Narayan, Satyakam, T.S. Murthy, Raghenth Basant, Aman Ahluwalia, Arunav Patnaik, Abhishek Tiwari and D.S. Mahra, Advs. Subject: Constitution Acts/Rules/Orders: Constitution of India (Forty-fourth Amendment) Act, 1978 - Section 15, Constitution of India (Forty-fourth Amendment)...
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...NEW YORK UNIVERSITY SCHOOL OF LAW JOURNAL OF INTERNATIONAL LAW AND POLITICS GUIDE TO FOREIGN AND INTERNATIONAL LEGAL CITATIONS FIRST EDITION ● 2006 © Copyright 2006 by New York University Contents FORWARD AND GENERAL INSTRUCTIONS................................................................................................. xiii ACKNOWLEDGEMENTS ......................................................................................................................................xv COUNTRY CITATION GUIDES ARGENTINA...............................................................................................................................................................1 I. COUNTRY PROFILE ..................................................................................................................................1 II. CITATION GUIDE.......................................................................................................................................2 1.0 CONSTITUTION...................................................................................................................................2 2.0 LEGISLATION......................................................................................................................................2 3.0 JURISPRUDENCE ................................................................................................................................3 4.0 BOOKS .....................................
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