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Vol 21 No 9 Sept/Oct 2016

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The Continuity of Legal Systems in Theory and Practice

ISBN13: 9781849468831
Published: October 2015
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £58.00

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The Continuity of Legal Systems in Theory and Practice examines a persistent and fascinating question about the continuity of legal systems: when is a legal system existing at one time the same legal system that exists at another time?

The book's distinctive approach to this question is to combine abstract critical analysis of two of the most developed theories of legal systems, those of Hans Kelsen and Joseph Raz, with an evaluation of their capacity, in practice, to explain the facts, attitudes and normative standards for which they purport to account.

That evaluation is undertaken by reference to Australian constitutional law and history, whose diverse and complex phenomena make it particularly apt for evaluating the theories’ explanatory power.

In testing whether the depiction of Australian law presented by each theory achieves an adequate ‘fit’ with historical facts, the book also contributes to the understanding of Australian law and legal systems between 1788 and 2001. By collating the relevant Australian materials systematically for the first time, it presents the case for reconceptualising the role of Imperial laws and institutions during the late nineteenth and early twentieth centuries, and clarifies the interrelationship between Colonial, State, Commonwealth and Imperial legal systems both before and after Federation.

1. Introduction
I. 'Applying' Theoretical Accounts
II. Kelsen and Raz
III. Australia 1788 - 2001
IV. A Note on Methodology
V. Outline

2. Australia 1788 - 2001
I. Nature and Material Scope
II. Spatial Scope
III. Personal Scope
IV. Conclusions: Changes in Australian Law 1788 - 2001

3. Kelsen: Authorised Constitutional Change
I. Framework: Norms and Legal Orders
II. Hierarchy and Basic Norm
III. Multiple Legal Systems IV. Continuity
V. Problems with Kelsen's Account
VI. Conclusions

4. Application of Kelsen's Account
I. Norms and Constitutions in New South Wales in 1788
II. Continuity and Unconstitutional Gubernatorial Orders in New South Wales
III. Continuity and Pre-Federation New South Wales as a Partial Legal System
IV. Continuity and Merger: State Legal Systems at Federation
V. Discontinuity: Total and National Legal Systems and the Statute of Westminster
VI. Continuity after the Statute of Westminster
VII. Continuity by International Law
VIII. Conclusions

5. Raz: Continuity of Social Form
I. Taxonomy of Laws and Internal Relations
II. Institutionalised Normative Systems
III. Recognition
IV. Continuity
V. Conclusions

6. Application of Raz's Account
I. Continuity: Settlement to Federation
II. Federation and Discontinuity
III. Conclusions

7. Evaluation
I. Continuity in Theory: Fit and Explanatory Power
II. Continuity in Practice: Australia 1788 - 2001