Western Legal Tradition Influence on New South Wales Legal System - Essay Example

WESTERN LEGAL TRADITION INFLUNCE ON NSW LEGAL SYSTEM STUDENT NAME COURSE TITLE TUTOR DATE One would consider colonization to be a tool used by the western nations in the pretext of bringing civilizations to the natives of a particular place in order to acquire new territory. In history the search for ‘new lands’ by explorers led to the occupation of unchartered territories since they reported that the lands were unoccupied1. This led to interested nation immigrate their citizens to occupy of this lands and act as an extension of their governments at home. The pretext propagated by this new settlers were based on the fiction of discovery and that there was need to civilize them “barbarians’ and “primitive”. In s of seeking to understand the influence of the British legal system in New South Wales (NSW) it would be difficult to separate the law from history2. The consequences of this immigration to the new land left a lasting impact on the indigenous natives of the unchartered territories, where colonists blatantly disregarded the native traditional system and a totally replaced it with their own laws. According to Blackstone he stated that ‘the colonists’ carry with them only so much of the English law as is applicable to their own situation and the conditions of an infant country3. In sharp critic of the British they considered that their own system was superior and never considered the other legal system and what criteria made them determine that their legal system was the best. Colonization was not only witnessed in Australia but also in other areas of the world including Asia, Africa, America and some parts of Europe. It is ideal that even after declaration of independence there is still the question of the place of the western tradition in our legal system and the place of the indigenous traditional system in the contemporary Australia. It is important to state that there has been an attempt to legitimize native law despite the dominance of the western views of what an ideal legal system should be4. As early as 1798 the British had already started establishing themselves in Australia’s East Coast and Arthur Philip became the first governor of the territory. The British had in their own homeland believed that for there to be an effective system of governance, there must be courts, the constitution, legislatures and legal documents in order to give recognition to a particular state or territory. It is on this basis that the British regarded the non-existence of these crucial necessities for a recognizable system of governance that they thought that the people were uncivilized. Despite the fact that the native legal system worked perfectly and the indigenous people had practiced it religiously for years prior to their entry. The British in acquiring Australia as a territory considered it to be “terra nullius” an empty space or land not claimed to be a possession of anyone5. The indigenous Australian Legal system did not recognize the concept of owning property and they had not created or established permanent structures to show their effective occupation of the territory. It was a common practice in Britain that where a state acquires new territory via a treaty or conquest, the inhabitants would remain subjects of the colonizing power, however where the new territory acquired was unoccupied land then the settlers would adopt their own laws of their own home country6. The place of indigenous legal system was left at a very precarious position since the laws received from Britain were due to the doctrine of reception. In the recent years there has been an argument of whether the British had the right to declare Australia as terra nullius. In the case of Mabo v The Queen7 the petitioners (Merriam People) had brought a suit to the court inquiring whether it was right for the British to declare that the Torres Strait in Australia and New Guinea despite them occupying the territory. The High Court in this cases stated that it was wrong for the settlers to state that Australia was terra nullius since this was a fictional idea because they did not acknowledge the existence of indigenous customary law of native land title. However the court failed to decide on the validity of the application of the British Legal System. It is on this basis that one can deduce that the British Legal System is here to stay and its status is embedded in our society. It is therefore through colonization that territories such as New South Wales (NSW) adopted the Western Traditional legal system. The Australian legal system also adopted the doctrine of separation of powers that is the executive, judiciary and parliament are separate entities and none should interfere with the other8. The judiciary is a crucial arm in the government since it is vested with the task of interpreting the law. The Westminster system was heavily adopted in Australia and then courts were set up on the basis of the hierarchy of courts with the High Court being the highest court. The English legal system also brought about the application of common law in our courts. Common law referred to judge made law and cases are decided in our courts through consideration of precedents. The parliamentary system of making statutory acts was also adopted. The sources of the NSW legal system includes the legislation, common law and the doctrines of equity that were created by the English law courts9. It is material to not that the natives had no precedents, written laws and they only existed as societal norms and even if they had been codified, the question would be whether the colonists would have been willing to incorporate it into the new legal system. According to Lord Lloyd in his statement in Invercargill City Council v Hamlin10 he stated that; ‘The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root is not a weakness but one of its great strengths. Were it not so the common law would not have flourished as it has, with all the common law countries learning from each other.’ In this case it can be justified that indeed the British law is superior and has a long lasting effect in the territories. The use of common law and equitable doctrines within NSW gives the western influence of laws validity and legitimacy within our court system. The use of precedents and the citation of colonial acts a basis of enshrining and propagating western influence in our legal system. The statues that were enacted by the British colonialists also created the notion that only those laws were to be obeyed and acted upon. In1800s the Charter of Justice established colonial courts with both civil and criminal jurisdiction. The Colonial Laws Validity Act (1865) ensured that the British parliament had the power to make laws that regulated and override laws of the Australian Parliament. In 1814 the second charter established a Supreme Court with a civil jurisdiction with a rudimentary subordinate structure and in 1823 the third Charter of Justice established a comprehensive court system and the British colony formally recognized NSW as a full colony with a Council appointed by the Crown (New South Wales Act 1823). The Australian Courts Act was also passed in 1828and it provided that the laws of England that were in force in 1828 had effect in NSW only if there were particular provision to that effect in them. The systematic legislation and statute law ensured that the place of western legal system was permanent and any proposed change would be futile for instance the court in Mabo’s Case could not determine the validity of applying colonial law in Australia. The amendment to the New South Wales Government Act 1855 changed the constitutional structure giving NSW parliamentary powers to make laws. The British legal system believed in the existence of autonomy of law as a way of disciplining and setting out the behavior expected. The other aspect was that the law was a central to the effectiveness of a system of government and theta the community norms values and traditions played little or insignificant role. In sharp criticism were the British right in ignoring the Aboriginal land rights that in their number the Australian people could not occupy a vast continent. Who had a better right to occupy over half of the continent in 1788? In conclusion the role of the courts in the establishment and enforcement of the British Legal system with various judges disregarding the customary law that was practice by the indigenous peoples. It is only prudent to state that the western influence will continue to be in our legal system but the main question is whether in the near future a revival of indigenous system would find its way to dominate the legal system. Colonization and the adoption of western influence led to the end or death of native practice however recent judicial activism in recognizing native land title gives hope to indigenous people that customary law can find their way back to the courts. REFERNCES Castle, A.C. An Australian Legal History (Law Book Co, 1982) Chrisholm, R., Richard, C.,and Garth, N. Understanding Law: An Introduction to Australia Legal System, (Lexis Nexis Butterworths, 2002) Colonial Laws Validity Act (1865) Finn , P. Law and Government in Colonial Australia (OUP, Melbourne, 1987) Kier, P.L., The Constitutional History of Modern Britain Since 1485 ( Adam and Charles Black, 9th ed, 1969) Melbourne, A.C., Early Constitutional History of Australia. (University of Queensland Press, 2ed , 1963) Prue, V. Law and Justice in Australia: Foundations of the Legal System. (OUP, 2nd ed, 2009) Read More