Legal Positivism and Australian Law Term Paper

Pages: 7 (1857 words)  ·  Bibliography Sources: ≈ 6  ·  File: .docx  ·  Level: College Senior  ·  Topic: Business - Law

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He wanted his entire community to be the owner of this property since it was more in line with his customs and cultural beliefs.

Judge Von Doussa however refused to combine customary law with Copyright Law and decided to stay with strict interpretation of the law thus taking a positivistic approach as Bowrey (2001) explains: "It is difficult to ascertain whether or not von Doussa grasped the cultural implications that flow from his endorsement of these precedents about joint authorship. At key points in the decision closure to consideration of the indigenous point-of-view was achieved by using legal positivist interpretative practice. He identified the appropriate legal rule concerning joint authorship without reference to any discourse about the meaning of the terminology. Copyright law is "entirely a creature of statute."

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Australian law is thus very closely linked with legal positivism since it revolves around the concept of power. The sovereign order is treated as the final word, which cannot be altered or amended. While the same is the case in the United States too, we notice some flexibility there where modern interpretations of law are concerned. United States gives its judiciary enough freedom to interpret law according to the circumstances. The same is however missing from Australian legal system where modern interpretations are often met to disapproval. This is the essential difference between legal systems of the two countries, which has turned Australian law into a more rigid and positivistic form of law.

References

Katz, Avery Wiener, Positivism and the separation of law and economics. Michigan Law Review; 6/1/1996;

Robert P. George, The Autonomy of Law: Essays on Legal Positivism. Clarendon Press. Place of Publication: Oxford. Publication Year: 1999.

TOPIC: Term Paper on Legal Positivism and Australian Law Assignment

Kathy Bowrey, Senior Lecturer, School of Law, University of New South Wales, The Outer Limits Of Copyright Law - Where Law Meets Philosophy and Culture, Law and Critique, (2001) Vol 12:1, pp1-24.

The political and philosophical origins of Australia's constitutional system, Australian Public Law, Last updated: 27 February, 2003, Retrieved online 1st April 2004:

http://www.ntu.edu.au/faculties/lba/schools/Law/apl/Constitutional_Law/philosophicalorigins.htm

Austin, John, Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly Press,… [END OF PREVIEW] . . . READ MORE

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