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.
Benjamin Spagnolo is a Fellow, Lecturer and Director of Studies in Law at Trinity College Cambridge.
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