Legal Positivism Theory Research Articles

The Power of Proof of an Online Arisan Agreement in the Verdict of PKPU Number 10/Pdt-Sus-PKPU/2021/Pn.Smg in Accordance with the Theory ofLegal Positivism and Justice

This thesis is entitled "The Strength of Proof of Online Arisan Agreements in PKPU Decision Number 10/Pdt-Sus-PKPU/2021/PN.Smg Seen from the Theory of Legal Positivism and Justice". This thesis aims to find out and examine the strength of proof of online agreements via the WhatsApp application in terms of the theories of positivism and justice as well as to find out and examine procedural law reforms that are needed to accommodate the use of technological means as evidence in business/business relationships. This research is normative legal research with a conceptual approach and statutory regulations. The data source is secondary data consisting of primary legal materials and secondary legal materials, analyzed using legal analysis methods, namely qualitative methods. The results of the research show that there are disparities in the implementation of electronic evidence assessment because there is electronic evidence that is considered to have weak evidentiary strength even though they are supported by other evidence, there are also those that are considered to have decisive evidentiary strength in resolving cases in court so that they do not provide equitable justice. for society. The panel of judges in assessing electronic evidence should not only prioritize legal certainty but also justice which should be realized to protect the interests of the parties reform of procedural law in terms of implementing electronic evidence in Indonesian trials requires reform of three main pillars of law, namely legal substance, legal structure. and legal culture.

Inclusive legal positivism: Basic arguments

The relevance of the topic of this paper is due to the insufficient study of the problems of inclusive legal positivism in the modern philosophy of law. The problem of substantiating the thesis of the inclusion of morality in law on the basis of rational argumentation of scientists and legal practice data considered in the paper allows an innovative analysis of basic legal concepts. The subject of the research is to analyze the methods of moral, ethical and legal argumentation in the works of representatives of inclusive legal positivism. The purpose of the work is to theoretically reconstruct the essence of the debate between inclusive and exclusive legal positivism. The novelty of the topic is due to the lack of studies in the educational and scientific literature on the specifics of the argumentation of inclusive legal positivism, set out in the scientific works of Will Waluchow and Kenneth Himma, the need to rethink traditional ideas about the theory of legal positivism. The research methods used in the paper is the methods characteristic of analytical jurisprudence, including those related to the use of methods of logical and linguistic analysis, as well as special legal methods (formal legal method of interpretation of regulatory prescriptions). The main conclusions of the paper are to reveal the key arguments of the concept of inclusive legal positivism. It is proved that from the point of view of this concept, the law has moral grounds, and judges in some cases use moral reasoning when making court decisions.

Civil-Military Relationship in a Democratic Pakistan

The paper explores the futuristic calibration of Pakistan’s constitutional development and its interpretation through precedents in the face of multiple sociopolitical, socioeconomic, and legal challenges. In particular, it analyzes the essential normative characteristics of constitutional legal framework based on separation of powers between pillars of the state vis-à-vis civil-military relationship. The article attempts to assess the constitutional direction from a broader legal and jurisprudential perspective meant to provide an avenue of progress and prosperity through its compatibility with sociopolitical norms. The main inquiry of the article is whether the constitutional evolution of Pakistan as a democratic state would be able to withstand the burden of contemporary socioeconomic, sociopolitical, and geopolitical challenges in creating a balance of power between civil and military institutions or would lead to more blurred boundaries instigating institutional conflicts and interventionist models. The paper through legal lens draws upon theories of legal positivism and its critique to understand the constitutional legitimacy of military interventions in democratic and political system. It covers the literature gap in analyzing jurisprudential approach of Pakistan’s judiciary as custodian of constitutional and democratic norms vis-à-vis constitutional scheme of civil-military relations, and its institutionalization in comparison with other international models suggesting pragmatic civilian control. In the end, the paper recommends a comprehensive institutional framework carved out of domestic realities as well as internationally-recognized constitutional schemes.

Interaction between Law and Morality: The Philosophical Construct

This paper discusses the jurisprudential analysis of law and legislation in a modern state. The main objective of this analysis is to ascertain the role and status of morality in the modern constitutional setup. Various views of legal positivism will be probed in light of the role of morality in codification. The study will comprise upon doctrinal analysis of various positivist writers of the 20th century. Contemporary elements of law in the modern nation-state system are more pro-positivist in approach rather than moral. In the light of these elements, the reader will understand the scope of morality especially religious morality in the contemporary legal framework. A comparative analysis will explain the standards of both theories of legal positivism and naturalist interpretation of laws.

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Today, the concept of law and order is reproduced through close attention in the scientific literature. This integrated interest, first of all, requires a precise definition of this category in the theory of law, its detailed and comprehensive review and determination according to practical necessity. Law and order is a necessary condition for the functioning of all social services, the stabilization of sociopolitical processes and the formation of true democracy. Legal order is a complex formation, its research should be carried out using a system of methods. In this case, the analysis of law cannot be limited to the �legal method� developed by analytical jurisprudence, which consists of a dogmatic in nature qualification of legally significant situations. The study of the problem of law and order, their unambiguous interpretation is extremely important due to the fact that all without exception, the branch of legal sciences, within which various aspects of law and law enforcement process are studied with its provision. The legal culture of the population is manifested in respect laws, their knowledge, observance and implementation. It provides citizens with the ability to defend their rights and be accountable for their responsibilities. The relevance of the study is due to the fact that today there are virtually no scientifically sound mechanisms for automatic extrapolation of constitutional and legal knowledge into the content of legal norms. In view of this, it is necessary to scientifically comprehend and generalize the practice of the Constitutional Court of Ukraine, which is the legal basis for developing mechanisms of constitutionalization. The modern interpretation of the rule of law is a combination of the provisions of the theory of legal positivism and the ideology of natural law. The legal order in the general context is considered, first of all, as a reflection of legal existence, one of the means of functioning and reproduction of the existing law. The phenomenon of constitutionalization is the most important means of ensuring the rule of law and is a characteristic (condition, requirement) of activities related to lawmaking, due to the formation of the domestic socio-normative system. It is expedient to consider the rule of law as a supra-sectoral (inter-sectoral) phenomenon that cements the leading branches of national law. The problems raised are quite complex, multifaceted and cannot be studied within a single scientific investigation and require further scientific research, which will result in new scientific knowledge about the rule of law and the process of its constitutionalization. The vast majority of these problems were outlined by the author of the article in a single monograph. However, the declared provisions may be the subject of new scientific discussions, contribute to qualitative changes in general theoretical jurisprudence and constitutional law, and thus be a guide in the constitutional, judicial and other reforms currently underway in Ukraine.

International Legal Positivist Research Methods

This chapter looks at legal positivism and its methods. In international legal scholarship, we are confronted with a paradox: while most international lawyers would say they employ broadly ‘positivist’ methods to find out what the law prescribes, its methods are among the least reflected. Positivism is seldom practised in a manner that is coherent with the theory of legal positivism. This leads to a bifurcation: default positivism and theoretical positivism. Default positivism is not a deeply reflected theoretical approach, but rather the default solution. Fealty to the law is important, but not in an overly formalist and strict manner. Default international legal positivism is a result of processes of socialisation and adaption, founded on a largely subconscious culture of orthodoxy: a pragmatic mindset of submission to and accommodation of widely accepted practices and methods. Its methods reflect that mindset and I briefly analyse two: precedent-following and interpretation. On the one hand, the power of precedents in international law (acknowledged not to be a common law) is taken so seriously that arguing against the ICJ is virtually impossible – the ICJ cannot err on an important issue. On the other hand, the role which the Vienna rules on interpretation play is curiously formalistic and does not sit well with the idea of interpretation as finding out what a text means. Theoretical positivism, using the Pure Theory of Law as an example, is theory-laden and much less pragmatic. It is primarily a theory of how legal scholarship can stay true to the ideal of (legal-)‘scientific’ cognition. Its methods, in turn, are structural analysis and frame-determination. The analysis of the structure of the international legal order, the relationship of different norms and sources is central to any legal-scholarly enterprise and helps to avoid admixing it with ideological precepts. The frame-determination method of interpretation avoids the impossible task of eliminating the vagueness of natural languages and the inevitable freedom to decide. Scholarly interpretation is not an attempt to tell courts how to decide a case, it rather shows the (structural) limits of the law to be applied.

Feminist Perspective towards the Legal Theory on Fisher-Women’s Legal Entity

This research explores the issue of the legal entity for fisher-women. Feminists Legal Theory is the main foundation. This theory seeks to criticise and dismantle the law by questioning the existence of laws that bring injustice to women's groups. In the Indonesian context, where the influence of patriarchal ideology and legal positivism theory is still active, the view that the law is believed to be neutral and objective has resulted in many things that discriminate and marginalise women's groups. This research presents the criticism of Law Number 7 of 2016 concerning the Protection and Empowerment of Fishermen, Fish Cultivators and Salt Cultivators for the recognition of the legal entity of fisher-women. This research is theoretical with the type of literature study focusing on ideas using a feminist perspective research approach. The results of the study indicates the that Law Number 7 of 2016 concerning the Protection and Empowerment of Fishermen, Fish Cultivators and Salt Farmers contains many weaknesses. There is a prejudice towards the work of fishers, there is a problem defining fishers because women are excluded from defining fishers, the absence of recognition of fisher-women affects the law and becomes indirect discrimination because of gender blindness and does not take into account in terms of women's experience or interests.

The Scope of Legal Positivism: Validity or Interpretation?

The theory of legal positivism has been much discussed over the years, and able writers have defended competing versions of it. These writers disagree not just about details, but about the interpretation of the main tenets of legal positivism: the social thesis, the separation thesis, and the thesis of social efficacy. As a result, there is some uncertainty about the scope of legal positivism. There is, in particular, the question of whether the social thesis applies not only to the level of sources of law, but also to the level of interpretation and application of the law. In this chapter, I am going to argue (A) that legal positivists have reason to conceive of the social thesis as a thesis about sources of law only, (i) because if they do, inclusive legal positivists will not have to assume that legal statements can be true or false in a non-relative way, and exclusive legal positivists will not have to hold that judges create new law as soon as they invoke moral considerations in their reasoning, and (ii) because doing so will undermine Ronald Dworkin’s well-known theoretical disagreement objection. I am also going to argue (B) that legal positivism, conceived along the lines of (A), will still be a significant theory.

Thinking Institutionally About Judicial Review: Originalism, Judicial Supremacy, and the Concept of Law

In this essay, I intend to advance two primary ideas. In the first part, I argue that originalism, as a judicial philosophy incubated as a conservative reaction against the legislative excesses of the Warren Court, is intrinsically wedded to two core theses: (a) the (in principle) determinacy of legal rules and (b) judicial supremacy. By the ‘determinacy of legal rules,’ I mean the idea that, in all but borderline cases, a uniquely correct outcome can be determined, based on objective criteria, given the case’s facts and the legal principles most appropriately tied to those facts. This is the jurisprudential theory of legal positivism, which originalists [almost?] categorically accept. By judicial supremacy, I mean acceptance of the principle that the final interpretive authority of the Constitution is and should be the judiciary, as opposed to some other institutional actor. While generalizing about ‘originalism’ is dangerous, given the perhaps dozens of distinct varieties pursued by American legal scholars and jurists over the past half-century, I believe that these two ideas are intrinsic to most, if not all, strands of originalism widely utilized in the legal academy. Casting doubt on these theses would thus be a substantial contribution to contemporary debates over how the constitution should be interpreted. Primarily for their importance and familiarity to academic audiences, I focus on what I call two ‘old’ originalist jurists, Robert Bork and Antonin Scalia, and arguably the most central figure of ‘new’ originalist thought, Randy Barnett, to show how these two theses play into their versions of originalism. In the second part of this essay, I argue that the first of these ideas, the determinacy of law, is unappealing because legal rules themselves are often not sufficiently outcome determinative to fulfill the role that originalists tend to presume that constitutional rules, properly understood, should. My argument utilizes the interpretivist jurisprudence of Ronald Dworkin. If I am right, the question of who has interpretive authority is just as crucial as the question of how the Constitution should be interpreted. With regard to the second thesis, I argue that judicial supremacy is an inappropriate structural feature in our separation of powers system. Relying on the constitutional theory of German jurist Carl Schmitt, I argue, first, that the Supreme Court has generally proven incapable of serving, at least in times of crisis in which it is arguably most needed, as an efficacious guardian of constitutional norms, and, second, that its attempts to do so have proven disastrous for the legitimacy of the federal judiciary over the past few decades. I conclude with some normative arguments, based on the work of Jeremy Waldron, as to why the judiciary is an inappropriate institutional actor for the application of originalist methodology.

Hume’o giljotina ir teisinis pozityvizmas


 [straipsnis ir santrauka lietuvių kalba; santrauka anglų kalba]
 Straipsnyje analizuojama Hume’o giljotinos – tezės, jog iš fakto teiginių negali būti išvedami normatyviniai teiginiai, – įtaka teisinio pozityvizmo filosofijai. Teisinio pozityvizmo teorijos pabrėžia, jog teisė yra socialinėmis konvencijomis pagrįstas reiškinys, apibrėžiamas ir paaiškinamas remiantis vien socialiniais faktais. Todėl teisės analizė turi apsiriboti deskriptyviais teiginiais, o rėmimasis normatyviniais argumentais lemia samprotavimo klaidas. Pavyzdžiui, kaip nurodoma teisinio pozityvizmo teorijose, iš samprotavimų, koks teisinis reguliavimas yra pats tinkamiausias, negalima dedukuoti, jog jis turėtų būti privalomas. Todėl rėmimasis Hume’o giljotina buvo vienas iš svarbiausių veiksnių formuojantis pamatinėms teisinio pozityvizmo nuostatoms. Straipsnyje siekiama pagrįsti, jog vis dėlto teisinis pozityvizmas, siekdamas paaiškinti teisės normatyvumą, susiduria su teoriniais prieštaravimais, kurie lemia, jog Hume’o giljotina gali būti pritaikoma ir pačioms teisinio pozityvizmo nuostatoms.

Теория юридического позитивизма: философско-методологический и идеологический аспекты

Теория юридического позитивизма: философско-методологический и идеологический аспекты

SUBJEKTINIŲ TEISIŲ PRIGIMTIES PROBLEMA ŠIUOLAIKINĖSE TEISINIO POZITYVIZMO TEORIJOSE

Straipsnyje nagrinėjama šiuolaikinio teisinio pozityvizmo teorijose pateikiama subjektinių teisių samprata. Skiriamos dvi teisiniam pozityvizmui priskiriamos vyraujančios subjektinių teisių koncepcijos: valios teorijos ir interesų teorijos. Straipsnyje siekiama pagrįsti, jog remiantis pamatinėmis teisinio pozityvizmo prielaidomis – atskirties ir šaltinio tezėmis – subjektinės teisės terminas teisinio pozityvizmo teorijose tampa nebūtinas ir perteklinis. Dėl šios priežasties valios ir interesų teorijoms siekiant pagrįsti tam tikrą subjektinės teisės funkcijos apibrėžimą neišvengiamai susiduriama su prieštaravimais arba nukrypimais nuo pamatinių teisinio pozityvizmo prielaidų. Straipsnyje siekiama įrodyti, jog aktyviai vykstantį ginčą tarp valios ir interesų teorijų lemia prioriteto skirtingoms gėrio sampratoms teikimas. Tai reiškia, jog teisinis pozityvizmas analizuodamas subjektinių teisių prigimtį negali atsiriboti nuo vertinimų, priklausančių turinio sričiai.

Revival of Legal Positivism in an Oriental Context and ASEAN Values: A Decelerating Factor of the Functioning of Human Rights Norms

In the past, the theory of legal positivism played a dominant role in justifying the exercise of sovereignty in the context of international law. This led to state-centricity, and sovereignty gradually became balanced with legal historicism and naturalism, among others. States no longer held absolute power and other actors played a more intensive role parallel to that of the state in the process of international law-making. Although this decline of sovereignty also occurred in Southeast Asian countries, it was at a critically decelerated speed, and it is proposed in this paper that extreme resistance, albeit concealed, attributed to this deceleration of international and regional law-making in ASEAN countries. The focus of the study is limited to the reception of international human rights norms at regional and national levels. Much of the discourse related to the establishment of regional human rights systems is based on the common values of the ASEAN Community, namely, the ASEAN way, non-confrontation and non-interference, among other factors, whereas few studies have been devoted to the antecedents of the emergence of those values and principles. The findings of this paper indicate that a model comparable to the past European legal positivism has been embedded in most parts of the ASEAN region and the would-be enforceability of various international and regional instruments is forcefully sanctioned to a large extent. As denoted in this article, legal positivism in this oriental context has been developed by the high authorities of member states since their full acquisition of sovereignty, as of the modern states, following the decolonisation of the C20, and it now operates beneath the cloak and beautiful veil of ASEAN values. Piercing the veil of the ASEAN Community has helped to elucidate the obstacles and defects of the legal methodology employed within the region. This has led to a number of consequences, particularly the prevalent role of infra-community networks (infrapartes) in creating and enforcing regional norms and the existence of bilateralism and extraregionalism in the ASEAN Community. The domestic legal context will also be discussed in this paper for a deeper analysis. The constitution of the community, the ASEAN Charter, to which all member states are bound, contains various provisions that clearly uphold human rights, the rule of law and a democratic regime, but most of the region’s legal systems remain unchanged in these aspects almost a decade after its enforcement. However, there appears to be a lack of cooperation by the highest domestic authorities at the national level, who, in line with oriental positivism, maintain their supreme hierarchy and refuse to relinquish their hyper-protectionist and - positivist position on the application of international and regional rules. The analysis contained in this paper is a socio-legal one related to regional and domestic legal phenomena with the aim of presenting a holistic picture of the crisis involved in the process of developing regional human rights systems and the provision of feasible proposals at both regional and national levels.

Confession, Trauma and the Search for Truth: Bloom's Trials in Ulysses

Ulysses was famously banned until the equally famous decision of Justice Woolsey. He, in concert, lifted the ban and proclaimed it one of the great works of literature of our time. Ironically, the original proscription focused on Molly Bloom's reactions to Gerty MacDowell lifting her skirt, rather than on the myriad sadomasochistic and sexually charged allegations Leopold Bloom faces in the “Circe” episode. This article links James Joyce's experiences with contemporary scholarship in liberal jurisprudence and cultural studies and argues that Joyce's style in “Circe” both contextualizes and criticizes the legal system of the early 20th century. Further, it posits that his sustained, if somewhat nightmarish, parodic portrayal of the legal organism prefigures much of what scholars in the latter half of the century have come to argue separates theories of legal positivism with cultural critique.

La teoría del derecho como posibilidad. Reflexiones sobre la naturaleza y el concepto de derecho

The article critically examines Joseph Raz's approach regarding the distinction between the nature and the concept of law, identifying the epistemic success of legal theory with explaining the essential properties of law and not with determining the meaning of the term ‘law'. It is suggested that the possibility conditions of legal philosophy can be met by conceptual analysis, without renouncing the principles from which the theory of legal positivism as a modern understanding of law was formed.

La teoría del derecho como posibilidad. Reflexiones sobre la naturaleza y el concepto de derecho

The article critically examines Joseph Raz's approach regarding the distinction between the nature and the concept of law, identifying the epistemic success of legal theory with explaining the essential properties of law and not with determining the meaning of the term ‘law'. It is suggested that the possibility conditions of legal philosophy can be met by conceptual analysis, without renouncing the principles from which the theory of legal positivism as a modern understanding of law was formed.

Out of the Witches’ Cauldron?: Reinterpreting the Context and Re-Assessing the Significance of the Hart-Fuller Debate

Just over half a century ago, Harvard Law School provided the setting for a debate between the two most influential British and American legal theorists. H.L.A. Hart, Professor of Jurisprudence at Oxford, was invited to give the Law School’s annual Holmes Lecture. Hart took this opportunity to enunciate the kernel of his emerging theory of legal positivism, staking out his claim to be the 20th Century successor to Jeremy Bentham and John Austin. Lon L. Fuller, Carter Professor of General Jurisprudence at Harvard, and a man who had long ploughed a rather lonely jurisprudential furrow as a scholar and teacher committed to exploring the morality of law, demanded a right to reply. The rest, as they say, is history. In this paper, I revisit that history, and give it a somewhat different interpretation from the one which it has generally received. My argument is that Fuller was at an inevitable disadvantage in the debate. Because of Hart’s agenda-setting position, the terms of the debate are those of analytic legal philosophy: and the reception of the debate has, understandably, both interpreted and evaluated Fuller’s argument largely in terms of criteria internal to that discipline. But while Hart’s Holmes lecture can justly be seen as exemplary of his broader contribution, Fuller’s most original interventions in legal scholarship originated not so much in a philosophical view but rather in a broader socio-legal and interdisciplinary interpretation of legal institutions and processes. Though Fuller might have drawn on this broader work to raise questions about Hart’s approach, he did not do so as effectively as he might have done. Hence the salience to Fuller’s reputation of his role as Hart’s natural law opponent marginalises some important strengths of his scholarship. I preface this argument with a historical and biographical sketch: introducing the protagonists and their intellectual and personal preoccupations; setting the scene for the debate in terms of contemporary legal scholarship and legal education; and providing a richer context in which to assess the debate’s overall significance for legal scholarship today.

The Operation of the International Commercial and Financial Legal Order: The Lex Mercatoria and its Application — Moving from the Theories of Legal Positivism and Formalism to the Practicali

The Operation of the International Commercial and Financial Legal Order: The Lex Mercatoria and its Application — Moving from the Theories of Legal Positivism and Formalism to the Practicali

The "Hart-Dworkin" Debate: A Short Guide for the Perplexed

For the past four decades, Anglo-American legal philosophy has been preoccupied – some might say obsessed – with something called the “Hart–Dworkin” debate. Since the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin's seminal critique of H. L A. Hart's theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin's objections or defending Dworkin against Hart's defenders. Recently, in fact, there has been a significant uptick in enthusiasm for the debate from its already lofty levels, an escalation no doubt attributable to the publication of the second edition of The Concept of Law , which contained Hart's much anticipated, but alas posthumous, answer to Dworkin in a postscript. Predictably, the postscript generated a vigorous metadebate about its cogency, with some arguing that Hart was wrong to reply to Dworkin in the way that he did and others countering that such criticisms of Hart are unfounded. In this essay, I will not take sides in this controversy over Hart's reply to Dworkin. I will be interested, rather, in a more preliminary matter, namely, in attempting to set out the basic subject matter of the debate. My chief concern, therefore, will be to identify the core issue around which the Hart–Dworkin debate is organized. Is the debate, for example, about whether the law contains principles as well as rules? Or does it concern whether judges have discretion in hard cases?

The High Court of Australia

The High Court of Australia Michael Hudson McHugh Introduction The High Court of Australia, like the Supreme Court of the United States, is the guardian of the Constitution that creates it. Each court is the creation of a federal Constitution that gives effect to the political doctrine of the separation of legislative, executive andjudicialpower. Each Constitution vests specific heads of power in a federal legislature consisting of a Senate and a House of Representatives and leaves each state free to legislate within its own domain except in cases where the Constitution has withdrawn legislative power from the states. Each Constitution contains a Supremacy Clause that ensures that, in the case of conflict between federal and state legislative enactments, the federal enactmentwill prevail. Each Constitution contains an Establishment Clause, which are similarlyworded. Giventhese similarities and the remarkable similarities between the legislative powers specifically granted to the federal legislatures of each country, one would expect the roles of the two courts in their respective legal systems to be similar. Two factors have combined, however, to make the roles ofthe Courts essentially different. The first is the existence ofthe Bill ofRights in the Constitution of the United States and the absence of a counterpart in the Australian Constitution. The second is thatthe High Court is, but the Supreme Court is not, part of the legal system of the states that constitute the federation. As a result, the nature ofthe cases that come before the two courts is on the whole quite different. Unlike the Supreme Court, whose “docket” appears to be dominated by issues concerning the Bill of Rights and the interpretation of federal enactments, the High Court’s “docket” is dominated by appeals in HIGHCOURTOFAUSTRALIA 3 The author, Michael McHugh (pictured), is a Justice of the Australian High Court. In provid­ ing for the establishment of the High Court and other federal courts, the Australian Constitution follows the plan of Article III, section 1 of the Constitution of the United States. However, the two courts have different practices: for example, oral arguments before the Australian court may take as many as five days. civil and criminal matters. The nature of the High Court’s work as an appellate court and the absence ofa Bill ofRights in the Australian Constitution have also influenced that Court’s approach to the judicial process. Until recently, the High Court had gener­ ally decided cases in accordance with the theory of legal positivism that asserts that answers to legal issues are to be found by working out the logical implications of relevant legal rules, principles, and concepts. The Court’s method of deciding cases involved a strict legalism that generally ignored the social and economic dimensions ofits decisions. Upon his swearing-in as Chief Justice of the High Court in 1952, Sir Owen Dixon, widely re­ garded as the greatest lawyer that Australia has produced, said the following:1 [Cjlose adherence to legal reasoning is the only way to maintain the confidence ofall parties in Federal conflicts. It may be that the court is thought to be exces­ sively legalistic. I should be sorry to think that it is anything else. There is no other safe guide tojudicial decisions in great conflicts than a strict and com­ plete legalism. To understand the role of the High Court and its place in the Australian legal land­ scape, some familiarity with the development of Australia as an independent nation and the creation of its Constitution is helpful, if 4 JOURNAL 1997,VOL. Il not necessary. Background History Immediately prior to the federation of the CommonwealthofAustralia in 1901, Australia comprised six British colonies: New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania. As British colonies, each received the English common law upon settlement. In time, the Parliamentof the United Kingdom gave each colony its own Constitution, which created a legislature and allowedfor self-governmentwithin each colony. The political institutions of the colonies re­ flected their English roots by adopting the po­ litical concepts of parliamentary sovereignty and responsible government under which ex­ ecutive power was exercised by Ministers of the Crown, who were members ofand answerable to the parliament. None ofthe Constitu­ tions ofthe colonies contained a formal...