The continuity of legal systems in theory and practice / Benjamin Spagnolo.

Format:

Book

Author/Creator:

Spagnolo, B. J. (Benjamin James), author.

Language:

English

Subjects (All):

Comparative government.

Jurisprudence.

Physical Description:

1 online resource (278 p.)

Place of Publication:

Oxford : Hart Publishing, 2015.

Language Note:

English

Summary:

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."--Bloomsbury Publishing.

Contents:

1. Introduction

I. 'Applying' Theoretical Accounts

II. Kelsen and Raz

III. Australia 1788 - 2001

IV. A Note on Methodology

V. Outline

2. Australia 1788 - 2001

I. Nature and Material Scope

II. Spatial Scope

III. Personal Scope

IV. Conclusions: Changes in Australian Law 1788 - 2001

3. Kelsen: Authorised Constitutional Change

I. Framework: Norms and Legal Orders

II. Hierarchy and Basic Norm

III. Multiple Legal Systems

IV. Continuity

V. Problems with Kelsen's Account

VI. Conclusions

4. Application of Kelsen's Account

I. Norms and Constitutions in New South Wales in 1788

II. Continuity and Unconstitutional Gubernatorial Orders in New South Wales

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

IV. Continuity and Merger: State Legal Systems at Federation

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

VI. Continuity after the Statute of Westminster

VII. Continuity by International Law

VIII. Conclusions

5. Raz: Continuity of Social Form

I. Taxonomy of Laws and Internal Relations

II. Institutionalised Normative Systems

III. Recognition

V. Conclusions

6. Application of Raz's Account

I. Continuity: Settlement to Federation

II. Federation and Discontinuity

III. Conclusions

7. Evaluation

I. Continuity in Theory: Fit and Explanatory Power

II. Continuity in Practice: Australia 1788 - 2001

Notes:

Description based upon print version of record.

Includes bibliographical references and index.

ISBN:

9781849468862

1849468869

9781849468848

1849468842

OCLC:

921985886