Theories of Law

Please answer all of the following questions as thoroughly and concise as possible. Module 6, Exercise 6 Prepare all three questions In Kirmani v Captain Cook Cruises Pty Ltd (1985) 159 CLR 351, the High Court considered the validity of federal legislation that repealed the Merchant Shipping Act 1894 (UK) to the extent that it applied to Australia. The Court held that the federal Parliament did have this power. However, Deane J said: the case was, in accordance with the approach long accepted in this Court, argued on the basis that the authority of the provisions of the Australian Constitution and the Statute of Westminster rests, as a matter of legal theory, wholly upon their enactment by the Imperial Parliament as distinct from resting upon a wider foundation which also encompasses the social compact and the international agreements which the Constitution and the Statute respectively embodied. It may, however, be necessary at some future time to consider whether traditional legal theory can properly be regarded as providing an adequate explanation of the process which culminated in the acquisition by Australia of full independence and Sovereignty. Plainly, there is something to be said for the view that any explanation of the legal nature of that process is incomplete if it fails to acknowledge and examine the relevance and importance, under both international law and internal law, of that social compact Those questions could become of some practical importance if the Parliament of the United Kingdom were, for example, to purport on its own initiative to repeal the provisions of the Constitution or the provisions of the Statute or otherwise to legislate for Australia. Apart from such far-fetched examples however, they lie largely in the realm of theory by reason of the scope of the power to amend the Constitution by the process which it itself contains (s 128) The practical effects of that power to amend the Constitution and of that legislative power which the Constitution confers are that, whatever be the theoretical explanation, ultimate authority in this country lies with the Australian people … Deane J is suggesting that, to some extent, constitutional power in Australia is exercised through a social compact (which includes the Constitution). 1. From what you understand about social contract theory, does the idea of a social contract seem to be a legitimate way of understanding and interpreting the Australian Constitution? What are the similarities and differences between the way that Lockes (theoretical) social contract is formed and the way that the Australian Constitution was formed? 2. Recall Question 5 in Exercise 5. Would John Finnis natural law theory consider that the Nazi citizenship decree (that was addressed in Oppenheimer v Cattermole [1976] AC 249, 278) could not be recognised as a law at all? 3. Read Selected Reading 6.1 (pages 648-57 only). Summarise the nature of the Nazi-era statutes that Fuller recounts. Why does Fuller consider that they were not laws? Do you agree with him when he says (at 650): Professor Hart seems to assume that the only difference between Nazi law and, say, English law is that the Nazis used their laws to achieve ends that were odious to Englishmen. This assumption is, I think, seriously mistaken Why or why not? Module 7, Exercise 7 Prepare answers to all four questions 1. Does Luban see any problems with the way that Fullers eight virtues direct professional ethics? 2. In describing the lawyer of character as the lawyer-statesman, does Kronman suggest that the good lawyer must necessarily be involved in politics? If not, what is the connection between law and politics that, according to Kronman, makes the description lawyer-statesman an appropriate one? 3. According to Kronman, what is the virtue that is central to being a good lawyer? Why? How is that needed, or developed, in legal practice? What are Mortensens concerns about the ethics of care? About the lawyer as friend? Module 8, Exercise 8 Prepare answers to all five questions 4. What do we mean by the division of labour? According to Marx, what is the necessary result of an increasing division of labour, ie of increasing specialisation? 5. According to Marxist theorists, what effect would (a) the dictatorship of the proletariat and (b) pure communism have on law? 6. From Selected Reading 8.1 for Weber what was the England problem? Describe it carefully. 7. Does Weber solve the England problem satisfactorily? 8. According to Durkheim, what is the result of an increasing division of labour, ie of increasing specialisation? Please use the attached materials plus your own research. Please also use Australian Guide to Legal Citation for referencing, which I have also attached and in-text reference. Thanks.