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Australian Commercial Law | Assignment

   

Added on  2021-05-31

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Running head: AUSTRALIAN COMMERCIAL LAW0Australian Commercial Law

AUSTRALIAN COMMERCIAL LAW1Part AQuestion 1 (b)Herbert Lionel Adolphus Hart has provided a three-part legal system which provides thata legal system is based on primary and secondary rules. This file will focus on the analysingthe legal system implemented in India and whether it complies with Hart’s three-part legalsystem. This report will also analyse whether the Australian legal system complied withHart’s three-part legal system and compared it with Indian legal system. The legal system ofUnited Kingdom has heavily influenced the legal system implemented in India1. TheConstitution in India provides power to governmental authorities and the courts to enforce thelegal system over the country. The sources of law in Indian legal system include theConstitution, legislation, case law and customary law. The Constitution has given the powerto the government to evaluate the gaps in the legal system and present proposed law in theParliament which is called a bill. The parliament of India is the supreme legislative bodywhich includes Head of State (President of India), House of the People (Lok Sabha) andCouncil of the States (Rajya Sabha)2. The ministers who are elected by the votes of publicdiscuss the bill in both Lok Sabha and Rajya Sabha and either accept it or decline it. They canalso demand changes in the bill before its acceptance. After acceptance from the Parliament, the bill is signed by the President making it a lawthat applies to the country. Similarly, the government has right to evaluate previously statedlaw, and they can follow the same procedure to add, delete, change and replace previouslaws3. The Constitution of India defines the scope of adjudication power of courts. Thecriminal courts entertain matters such as murder, rape or manslaughter and the civil courtentertain matters such as breach of contract, negligence, family matters and others. TheSupreme Court is the highest court in India, and its judgements are followed by other courtssuch as High court, district, magistrate courts and others4. The parties of a case have the rightto appeal against the judgement of a case to a higher court if they are not satisfied by the1Prateek Tak, "Legal Aid: A Boon For The Indian Legal System" [2012]SSRN Electronic Journal.2Mukund Sarda, "Euthanasia: A Look At The Indian Legal System" [2010]SSRN Electronic Journal.3Raj Kumar Bhardwaj and M. Madhusudan, "Online Legal Information System (OLIS) Leveraging Access To Legal Information Resources In Indian Environment" (2016) 36(1)DESIDOC Journal of Library and Information Technology.4Raj Kumar Bhardwaj, "The Indian Judicial System: Transition From Print To Digital" (2013) 13(03)Legal Information Management.

AUSTRALIAN COMMERCIAL LAW2ruling. Hart’s three-part legal system provides three key principles which include rules ofrecognition, rules of change and rules of adjudication.Rules of recognition: This principle focuses on avoid uncertainty in law and providesthat the validity of a law should be clear. The Indian legal system complies with thisprovision because the procedure of creating laws because the Constitution clearlydefines the procedure of creating laws which avoid ambiguity. Furthermore, the lawsapply to all the citizens without any exception5.Rules of change: The Indian legal system complies with this principle as wellbecause the procedure for adding, changing, deleting and removing of laws is clearlyprovided in the Constitution. Moreover, the sources of law are clearly defined as well.Rules of adjudication: The Indian legal system complies with this provision as wellbecause the power of adjudication distributed by the Constitution between differentcourts. The judgement of higher courts is required to follow by lower courts andparties have to right to appeal against a judgement of the court.The procedures and practices relating to the law are clearly defined in Australian legalsystem, and the Constitution defines the scope of the power of authorities. The Constitutionwas established in 1901, and after that, it has amended a few times. The Australian legalsystem also complies with Hart’s three-part legal system. The Constitution separates thepower into three categories which include the judiciary, executive and legislation6. Injudiciary section, the courts interpret the law and entertain both civil and criminal cases.Similarly, in Indian legal system, the judiciary powers are clearly distributed, and the courtsentertain both civil and criminal matters. The Constitution distributes the legislative powersbetween the government departments, and power is distributed between ministers7. The government proposed a bill in the law to create new laws, and they also proposednew laws and changed previous once. The government also issues the bill in the parliament tocreate a law and implement at across the nation, and it becomes law after the royal assentgiven by the Governor-General. The legislative power in Indian legal system is similar aswell, and the parliament has the authority to implement new laws and amend previous once.The scope of executive power in Australia is defined by the Constitution as well based on5Rajvir Sharma, "Judiciary As Change Agent: Some Insights Into The Changing Role Of Judiciary In India" (2012) 58(2)Indian Journal of Public Administration.6Michael K Meek,Australian Legal System(Lawbook Co., 2008).7Enid Mona Campbell and H. P Lee,The Australian Judiciary(Cambridge University Press, 2012).

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