|You should be able to explain what each of the following six terms mean and give some examples of how they function. As with each of the sections in this course, it is important to look for the similarities between each of the nations under discussion. |
The United Kingdom and Australia (and Sweden) each share a system of constitutional monarchy in which political authority is vested in a parliament. India and South Africa are republics, but in the latter the head of state is also the head of the government. The lower house in South Africa elects the president. India has a system where the parliament is more powerful than the head of state (the president), who is elected by both houses of parliament.
A parliamentary system is a system of government in which the ministers of the executive branch are drawn from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined. In such a system, the head of government is both de facto chief executive and chief legislator.
Parliamentary systems are characterized by no clear-cut separation of powers between the executive and legislative branches (follow the links for explanations of each), leading to a different set of checks and balances compared to those found in presidential systems. Parliamentary systems usually have a clear differentiation between the head of government and the head of state, with the head of government being the prime minister or premier, and the head of state often being a figurehead, often either a president (elected either popularly or by the parliament) or a hereditary monarch (often in a constitutional monarchy).
India, Australia and England have Westminster systems of parliament in place. These parliaments tend to have a more adversarial style of debate and the plenary session of parliament is more important than committees. This is a contrast to the Swedish parliamentary system. The 1983 constitution abolished the Westminster system in South Africa.
The Republic of South Africa is a constitutional democracy with a three-tier system of government and an independent judiciary, operating in a nearly unique system that combines aspects of parliamentary and presidential systems. Legislative authority is held by the Parliament of South Africa. Executive authority is vested in the President of South Africa, who is head of state and head of government, and his or her Cabinet. The president is elected from the Parliament to serve a fixed term. South Africa's government differs greatly from those of other Commonwealth nations. The national, provincial and local levels of government all have legislative and executive authority in their own spheres, and are defined in the South African Constitution as "distinctive, interdependent and interrelated".
Videos illustrating the more adversarial style of Westminster parliaments:
The Westminster System
Important elements in the Westminster System include:
Political federalism is a political philosophy in which a group of members are bound together with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). Federalism is the system in which the power to govern is shared between the national and state governments, creating what is often called a federation. Proponents are often called federalists.
In Europe, "federalism" is sometimes used to describe those who favour a stronger federal government (for example, with governance under the European Union) and weaker provincial governments. In federal nations of Europe (such as Germany, Austria and Switzerland) or South America (such as Argentina or Brazil), the term "strong federalism" usually means sub-national states having more power than the national (federal) government, in contrast with a centralist system.
In Canada, federalism means opposition to sovereignty movements (usually that of Quebec). The same is historically true in the United States. Advocates of a weaker federal government and stronger state government are those that generally favour confederation, often related to "anti-federalists". The state or regional governments strive to cooperate with all the nations. The old statement of this position can be found in The Federalist, which argued federalism helps enshrine the principle of due process by limiting arbitrary action from the state. First, federalism can limit government power and infringe rights, since it allows the possibility that a legislature wishing to restrict liberties will lack the constitutional power. The level of government that possesses the power lacks the desire. Second, the legalistic decision-making processes of federal systems limit the speed with which governments can act.
On 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America, though through a Westminster system. According to the federal system of Australia power is distributed along national and state lines. Basic education, roads and transport, health and hospitals and most forms of law enforcement (i.e. police) are carried out at state level. So in Australia the police in the state of Queensland are a totally different organisation to the police in the state of New South Wales. At the federal level higher education, defence, boarder controls, national parks, and some forms of law enforcement are carried out at the national federal level. While in Sweden there is some distribution of services at local levels, it is not a federated system as the laws and administrative bodies are uniform across the nation.
Bicameralism is another example of the checks and balances in the Westminster system of parliament. The two-houses model divides the power of the legislature between two bodies of elected representatives. A bill may be proposed in the lower house but it must pass through both houses in order to become law. If the bill is 'blocked' in the upper house (where the government may not necessarily have a majority) it must return to the lower house for amendment and further debate. In 1975 in Australia this happened to the budget bill for the year. The government could not pass the bill and after months of trying a crisis ensued. The Governor General, as the representative of the head of state (the Queen of England) dissolved parliament and an election was called, which the incumbent government lost. This episode is now referred to as 'The Constitutional Crisis'.
In the United Kingdom, the executive forms a subset of the legislature, as does—to a lesser extent—the judiciary. The Prime Minister, the Chief Executive, must sit as a member of the Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in Britain are amongst the most independent in the world, the Law Lords, who are the final arbiters of judicial disputes in the UK, sit simultaneously in the House of Lords, the upper house of the legislature, although this arrangement ceased in 2009 when the Supreme Court of the United Kingdom came into existence. Institution Power Personnel Control Parliament Make laws Representatives elected to lower House. Elected or appointed to upper House. (Royal Assent) Supervision and/or expulsion by the House Executive Council (Cabinet) Executive power Ministers appointed by the Crown with the support of the lower House. Must be Members of the Parliament Maintain support of the lower House. Parliamentary and Judicial Review. The Courts Judicial power Judges appointed by the Executive Superior Court justices removal by the Crown an address from both Houses on certain on grounds.
Representatives elected to lower House. Elected or appointed to upper House.
(Royal Assent) Supervision and/or expulsion by the House
Executive Council (Cabinet)
Ministers appointed by the Crown with the support of the lower House. Must be Members of the Parliament
Maintain support of the lower House. Parliamentary and Judicial Review.
Judges appointed by the Executive
Superior Court justices removal by the Crown an address from both Houses on certain on grounds.
The media is often referred to as the 'fourth estate', which means it is thought to operate within the doctrine of the separation of powers in a democratic society. The parliamentary, executive or legal arms of government should not exert a controlling influence over media. Freedom of expression and freedom of the press are vital for a democracy. The separation of powers attempts to protect the right of multiplicity of expression. Criticism of the role of African National Congress officials in the running of the South African Broadcasting Corporation (SABC) is one example of the separation of powers being referenced in the government and politic of a state in relation to media.
The Teaching Notes for this lecture can be downloaded from here: English Realia Lecture 3 Law and Govt.doc
Work through the following key terms and concepts in your groups using the course compendium and related materials:
Elements of law relate to every one of the other areas discussed in this course, but particularly to government.
Legal systems of the world. The blue is civil law and the tan is common law systems. The brown is a mixed common law and civil law code.
Law is, once again, a complicated subject. In South Africa there is a mixed system of Common and Civil Law. In Australia, India and England Common Law is the system of law. The main difference that is usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts with abstract rules, which judges must then apply to the various cases before them. In both Australia and South Africa there are systems of traditional or tribal law which are even acknowledged outside indigenous communities. Here I am focusing on law in relation to the English speaking history of the modern states. Therefore much of the law discussed in the course is in historical contexts. The focus on historical contexts ties in with the other areas of the course; with colonisation, decolonisation, other formal institutions and globalisation. Most of the events and decisions that occurred in relation to the spread of English language and culture in the former British Empire had a legal framework. Some things were against that law and so things were made possible by it.
The common features of the legal systems in each country will be the focus of the seminar on the topic. There are three concepts you must know the broad definition of. These are:
The common law is created and refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent. The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.
In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.
Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to Britain, including the United Kingdom, most of the United States and Canada, and other former colonies of the British Empire. Australia and India both have an exclusive common law system operating through the various levels of state (local, regional and central). South Africa has a mixed system of common and civil law, while England (rather naturally) has a common law system. Sweden, on the other hand has an exclusively civil law legal system. Civil law code is a form of statutory law: "written law (as opposed to oral or customary law) set down by a legislature or other governing authority such as the executive branch of government in response to a perceived need to clarify the functioning of government, improve civil order, to codify existing law, or for an individual or company to obtain special treatment. (Contrast common law.) In addition to the statutes passed by the national or state legislature, lower authorities or municipalities may also promulgate administrative regulations or municipal ordinances that have the force of law — the process of creating these administrative decrees are generally classified as rulemaking. While these enactments are subordinate to the law of the whole state or nation, they are nonetheless a part of the body of a jurisdiction's statutory law."
'''2. Terra Nullius'''
During the era of European colonialism the doctrine gave legal force to the claiming and settlement of lands occupied by "backward" people, where no system of laws or ownership of property was held to exist. The Swiss philosopher and international law theorist Emerich de Vattel, building on the philosophy of John Locke and others, proposed that terra nullius applied to uncultivated land. As the indigenous people were not (in this view) using the land, those who could cultivate the land had a right to claim it.
'''3. Trial by Jury'''
As well it must be remembered that both colonisation and decolonisation had legal principles as their basis. Globalisation, which shall be discussed in a later lecture, has a set of legal principles at its base, usually resulting from treaty laws. While it is not necessary in this course to be familiar with international treaty law, it is necessary to be able to recognise the importance of law in the formation of the nation states we discuss.
English Law English law, the legal system of England and Wales, is the basis of common law legal systems throughout the world (as opposed to civil law or pluralist systems in other countries, such as Scots law). It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to the American Revolution is still part of the law of the United States, except in Louisiana, and provides the basis for many American legal traditions and policies, though it has no superseding jurisdiction.
The British East India Company
'''Union and State Judiciary'''
Indian Law Today
The Constitution of India The Constitution of India lays down the framework on which Indian polity is run. The Constitution declares India to be a sovereign socialist secular democratic republic, assuring its citizens of justice, equality, and liberty. It was passed by the Constituent Assembly of India on November 26, 1949, and came into effect on January 26, 1950. India celebrates January 26 each year as Republic Day. It is the longest written constitution of any independent nation in the world, containing 395 articles and 12 schedules, as well as numerous amendments, for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation.
The Union of South Africa
Modern Law in South Africa
Constitution, Government & Legislation in South Africa
Law and land in New South Wales
Mabo v Queensland (No 1) was a significant court case decided in the High Court of Australia on December 8, 1988. It found that the Queensland Coast Islands Declaratory Act, which attempted to retrospectively abolish native title rights, was not valid according to the Racial Discrimination Act 1975. Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992. The effective result of the judgement was to make irrelevant the declaration of terra nullius, or "land belonging to no-one" which had been taken to occur from the commencement British colonisation in 1788, and to recognise a form of native title. It is argued by some historians that the Royal Proclamation of 1763 was seen to apply to Australia at the time of settlement, and therefore governed unceded territories. Although Mabo was litigated within the legal context of property law, the decisions clearly had much wider implications which have still to be determined.
Terra nullius (English pronunciation IPA: /ˈtɛrə nəˈlaɪəs/, Latin pronunciation IPA: ˈtɛrːa nʊlːˈiʊs) is a Latin expression deriving from Roman Law meaning "nobody's land" i.e. "empty land", applying the general principle of res nullius to real estate, in terms of private ownership and/or as territory under public law. In the late eighteenth century, many believed that a society without agriculture was therefore a society without property rights in land. The most familiar statement of this view was again from Vattel, who held that nonagricultural peoples' "unsettled habitation in these immense regions cannot be accounted a true and legal possession" and that European farmers accordingly might lawfully settle on their land. Vattel was writing with reference to North America—like many eighteenth-century European intellectuals he erroneously believed that American Indians were not farmers—but his words obviously applied to Australia as well. It has since been conclusively proven that the Australian Aboriginal peoples had both a system of property rights and agriculture in their traditional societies.
The Constitution of the Commonwealth of Australia (1900)
Trial by Jury
"In the Northern Territory, persons charged with serious offences are tried by a Judge and jury in the Supreme Court. This ensures every person accused of a serious crime receives a fair trial, free from government or political influence. At the same time it imposes on members of the public a share in the responsibility for upholding the laws made for the protection of the community from violence, dishonesty and other forms of wrongdoing. Jury service may involve some temporary inconvenience to those chosen (by ballot) to serve, but it is essential to the maintenance of individual freedom and security. In serving as a juror, you are participating in a process that has been responsible for defending the rights of British and Australian citizens for hundreds of years." NT Govt
Systems of traditional are recognised today in India, Australia and South Africa under the concept of customary law.
Aboriginal Customary Law in Australia
Customary Law in India
Customary Law in South Africa
Aboriginal Customary Law in Australia
'''Aboriginal Art and Customary Law'''
A PDF file about customary law: http://www.cscsarchive.org/dataarchive/textfiles/textfile.2008-07-22.9145923915/file
The Australian Legal System