Comparison of Legal System of United States and Australia

2019
Australian Commercial Law

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ANSWER 1
This paper will analyse the legal system of the United States and Australia to determine
whether the principles given by Herbert Lionel Adolphus Hart in the three part legal system
are present in them or not. In the case of the United States, the Constitution is the key
document which governs the operations of the federal and state government. It is the
supreme document which provides executive and judiciary powers to related authorities.
The statutes are referred to the laws or regulations which are implemented by the federal
and state authorities in order to govern the operations of people and entities. The three
part legal system provides that the laws are categorised into primary and secondary rules.
The primary rules govern the actions of parties and distribute the powers between the
federal and state. The secondary rules, on the other hand, focuses on providing policies to
ensure that the primary rules are followed by the parties.1 The rule of recognition principle
is present in the legal system of the United States. The primary rules are provided by the
Constitution of the country which is recognised by everyone.
These laws govern the operations of parties to ensure that they did not go beyond the scope
of primary rules by violating them which leads to punishment. These rules are available in
public documents which are accessible by everyone. Moreover, the policies regarding
enforcement of these rules are given under the secondary laws which govern the operations
of parties. The rule of change is present in the legal system of the United States as well.
These change policies are targeted towards making changes in the current laws to update
them which make them relevant as per change in time.2 Along with policies to make
changes in the law, the provisions which are followed by authorities to add new laws are
given in the legal system as well. A set procedure is followed in order to add, remove or
change any regulations in the legal system. These changes are proposed in a bill which is
generally given by the government. The government propose this bill to make necessary
changes which are required to meet the interest of the public. This bill is presented in the
House of Congress or in the House of Representatives which include many senates and
representatives.
1 Richard Abel, The Politics of Informal Justice: Volume 2: Comparative Studies (Elseview, 2014).
2 Seymour Martin Lipset, Continental divide: The values and institutions of the United States and Canada
(Routlege, 2013).

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Both these houses discuss on the pros and cons of the bill and propose necessary changes.
These changes are made in the bill, and it is again presented before both houses which it is
passed by a majority votes. After passing the bill, it is sent to the President who gives her
affirmation to the bill. After this affirmation, the bill becomes a law which applies on the
country. The rule of adjudication is also present in the legal system of the United States. The
civil and criminal cases in which dispute arise between parties are handled by different
courts. These courts are specialised in different field, and they provide their judgement
based on statutes, precedents and natural justice. The hierarchy of court is followed based
on which the cases are filled in the lowest courts after which the parties can make an appeal
to the higher court if they are not satisfied with the judgement.3 This hierarchy shows that
the rule of adjudication is present in the legal system of the United States. The Supreme
Court is the highest court in the country which has the authority to conduct investigation in
the matter of other courts.
In Australian legal system, the element of three part legal system is present as well. The
legal system is influenced by the English legal system implemented in the United Kingdom.
As per this system, the Constitution is the supreme law which divides it between
Commonwealth and states. The provisions of the legal system are taken from
Commonwealth of Australia Constitution Act 19004 under which the constitution is formed.
The powers of the federal and state government are also divided based on the constitution
which complies with both primary and secondary rules. In case of an inconsistency, the laws
implemented by the Commonwealth prevail over the regulations implemented by States.
The elements of three part legal system are present in the legal system as well. The rule of
recognition applies because the primary laws are included in the constitution of the country
which is available by everyone.5 These laws are included in both statute and common laws
which are also assessed by the court while providing judgement in particular cases. As per
these laws, the actions of people and entities are governed.
The rule of change element is present in the legal system as well. The changes made in the
federal and state based laws are made by fulfilling a specific procedure. The provisions
regarding making changes are included in the secondary rules. As per the legal system of the
3 Roscoe Pound, Criminal Justice in America (Routledge, 2018).
4 Commonwealth of Australia Constitution Act 1900
5 Gunther Doeker, The treaty-making power in the Commonwealth of Australia (Springer, 2012).