Until the Australia Act of 1986 , we had the peculiar situation of the state courts being under the British courts, while the federal courts were able to make interpretations of Australian constitutional law that was repugnant to British laws. This was quite rightly repealed, as the Australian legal system was more than mature enough to govern itself but this structure could be of help with nation-building in the Pacific, as new nations could attach themselves to the Australian common law system and gain a level of legal stability that they would not have on their own.

This arrangement would have to be supported by both Australian legislation and legislation of the nation that is under-going the stabilisation of their civic and legal structures. It would have to be opt-in, and would probably be best done with a sunset date, or by a repealing act like the Australian Act from the nation under-going stabilisation.

What would the benefits be?

It would give individuals, companies and organisations a chance to appeal to a higher court, outside of the unstable nation, that has a stronger history of being mature, deliberate and stable.

There would be the added advantage that Australian decisions would be legal, rather than political. For instance if Zimbabwe attached its legal system to Australia in this manner, there would probably be a flood of lawsuits and appeals to get around the illegal and thuggish manner that Mugabe maintains control.

This would probably require setting up a special Australian Trans-National Court which focuses exclusively on these issues and the local law of the unstable nations.

One of the aspects of globalisation is fluidity. Whereas Australia had a similar legal arrangement with Britain through colonialism, it was based around the projection and discrete power of the nation-state. In this case Britain.

By having a court that nations can attach and detach themselves to as they need, it brings in fluidity and reduces the discrete and insular nature of the nation-state.

I believe this would be a positive way to build up, and increase the confidence in South Pacific nations civic structures who are going through either state failure or instability.

cam

Irfan Yusuf:

Albrechtsen must have skipped her undergraduate law lecture where the concept of common law as judge-made law was explained. Then again, given the key role the common law plays in Australian law, it seems Albrechtsen may have skipped attending lectures altogether.

Irfan links to the Catholic Encyclopedia on Common Law.

It was the Justinian Code, Corpus Juris Civilas that led to what we know today as Continental Law. Written in latin it was a stoccato that encompassed the entirety of Roman Law in such a manner that it could be applied by magistracies. It was derived from the Roman system where magistrates were executive positions and consequently came with the idea of imperium. The English system of common law derived somewhat, but not entirely, separately and led to a greater separation of powers and independent judiciary.

The Continental System requires well trained magistrates as well as lawyers. The Byzantine system had sufficient magistrates to make the system to work, but with the proliferation of the legal system into Europe it was not until law schools in the 1100s pumped out enough magistrates and lawyers that it sufficiently sustainable. Even today students at law school in France and Germany have to choose to specialize early on as either an attorney or magistrate. Cantor writes:

There was no jury in the Justinian-type court, no half dozen or dozen representatives of soceity to consider the facts of the case and decide on guilt or innocence. In modern times some continental countries added a jury to give a more democratic mien to the court system. But the jury deliberates with the magistrates and has none of the independence of a common-law type jury.

Continental Law systems are effective in civil and criminal cases; they were also good in ensuring social order; however they are overly reliant on well trained judges to operate efficiently and are susceptible to corruption as executive policy can quickly become judicial policy; for instance during the Napoleonic years.