Discuss about the Foundational Sources and Purposes of Authority.
In this paper we state the comparison between the three legal systems and also clarify how Australian legal system is different from other two legal systems that is Talmudic system and Madayin system. Talmudic system is considered as traditional legal system and Madayin system is considered as customary law of aboriginal people in Australia. Australian legal system is completely different from these two systems as it is based on doctrine of separation of power. In this paper we also state the similarities and difference between these three systems. Subsequently, essay is concluded with brief conclusion.
Two general categories of values are recognized in Talmudic law, one states the duties of man derived from the relationship of men and God and other category states the duties of men derived from the relationship of men and his neighbor. It must be noted that regulations which deals with the relationship of men and god are considered as implementation of teachings of Jewish in theology[1]. This main intention of this law is to deepen the consciousness of men by repeated actions in those doctrines in which they feel protected and respected. Therefore, Talmudic law confers holy orders related to the repeating actions of shema twice a day morning and evening because it affirms the unity of god. This law established the ritual of daily prayer on both private and public basis, and it also frames specific law related to benedictions of consuming different foods. From the adoption of these rituals man get awareness that he is surviving in the world made by God and he must be great full for the enjoyment of privilege provided by god as blessings. Accepting all the things offered by men without giving a thought what we owe to god is considered as ingrate and selfish. As stated by rabbis, it is forbidden for men to enjoy the blessings provided by god without prayer[2].
Jurisdiction of Talmudic law: Talmudic Law is completely different from other jurisdiction systems and it is determine as all-inclusive character. This system of law is differs because of its inclusive characters from other systems of jurisprudence. Usually, this system of law try to implement the values stated in Judaism, no matter those values derive from religion or morality. The main aim of this legal system is to enforce those doctrines and conduct which is considered by rabbis as indispensable to the life of individual or the community.
This system of law connects itself with doctrine but it does not establish any kind of teachings which must be believed as true. Talmudic law provides great freedom to the individual existed in the Jewish community because individuals can follow their own perception stated by their heart and mind. Number of literatures are presented which expounding the basic conviction of Judaism, and diversities of thought and interpretation of tradition was determine as important source of strength in the tradition of Jewish community. This law stated that it is not possible to communicate the truth through one easy formula. As fire breaks in many sparks, in similar manner truth breaks into number of fragmentary truths, and such truth are caught by different human minds. Talmudic law is based on the discipline of actions but actions stated by this law were considered indispensable in their way of life.
This legal system is continuously maintained by the Aboriginal Yolngu people of Arnhem Land in the Northern Territory, and this system is considered as holistic system of legal, religious and political authority. In recent years, number of information was released in public related to Madayin law, and because of this large number of people knows about the Madayin law. Madayin Law is considered as holistic system of authority, and usually it is the form of law which is considered as customary law of Aboriginals. In Australia, few studies and recordings related to Madayin law has been occurred. The main issue faced by researchers while conducting the study of Madayin law was secrecy, as this law has been kept as secret by its people. Breach of secrecy of this form of law was considered as great offence and this act either punished by death or other severe punishments[4]. However, this situation has been changed in the year of 2011 and 2012 when two Yolngu law leaders named as Gaymarani George Pascoe and James Gaykamangu published two articles on Madayin law in the English language. These articles was published for both Yolngu and non-Yolngu readers, and also for the lawyers and parliamentarians, for the purpose of facilitating discussion related to recognition of Madayin in Australian law. For the purpose of preceding the article written by Gaykamangu’s, 200 members of his clan and others showed a sacred Ngarra painting related to Madayin law named as rangga before the parliament of NT and Supreme Court. In Madayin, Ngarra is the largest and most unifying institution. Before the presentation that painting was secret. Because of the secrets related to Madayin law was revealed by both the writers o the public, now sources, notions and functions of Madayin authority are able to analyze the law in comparative manner by the reference to Australian legal authority and Christian authority[5]. Madayin claims that origin of their law was exists or brought into existence at the time of the beginning of the earth by their ancestors. And successive generation of Yolngu participates in the Madayin till the present time. Therefore, this system of law was considered as most established normative system in Arnhem Land. As per Gaykamangu, when the concept of law was not introduced by the world, it was Madayin law which created this country, and Gondarra
Stated that this law was introduced by wangarr, which is the highest authority of the universe. It is not possible to translate the short meaning of Wangarr into English but it may be translated as ancestral past and ancestral being. Wangarr provide Madayin or Sacred law to its each clan such as chants, dances, sacred objects, paintings and power, and also secret names. These ancestral beings are celebrated in the poetic chants stylized as dance performances during the time of their religious ceremonies. As per the belief stated in Yolngu, each Yolngu has two spirits, and in these two spirits one spirit is returned to the highest authority of universe that is Wangarr after the death of the person and second evil is considered as evil which was driven away from the body of deceased[6].
Australia is a country in which parliamentary democracy is sustained. The constitution of Australia of 1901 established federal system of government and under this system power is divided between the national government that is the commonwealth and the six states. Constitution of Australia play important role because it defines the boundaries related to power imposed for law making between the national government and the six states. Not only states but there are three self-governing territories also known as Australian Capital Territory, Northern Territory, and Norfolk Island.
Legal system of Australia was derived from common law system which was introduced by England during the period of colonization. Cases and legislations are the two important sources of law of Australia. Cases known as the decisions made by judges in the court and legislation are the legal rules made by parliament[7].
Lot of power is needed to govern country like Australia, and as per constitution of Australia these powers are divided between three groups as stated above for the purpose of balancing each other. Each group has to check the power of other two groups. The main aim of this division is to prevent one person or group to exercise all the power related to govern Australia.
For example, legislative have power to make laws, executive administering and implementing those laws, and judiciary applied those laws to individual cases. Under the constitution of commonwealth power of legislature is imposed under parliament, executive power is imposed under the crown, and power related to judiciary under the courts[8].
The parliament- constitution of Australia imposed legislative power of the commonwealth to the parliament. In other words, parliament has power to make laws. Structure of parliament consists of the queen, represented by the Governor-General, and it also includes two houses named as House of representative and the senate[9]. Parliament has power to pass legislation, and proposed laws need to be passed by both the houses of parliament to become law. Both the houses of parliament have equal power but there is an exception to this concept which imposed some restrictions on the House of Senate for the purpose of introducing or amending some kind of financial legislations.
The executive- As per the constitution of the Australia, executive power of the commonwealth is imposed in the Queen and this power is exercised by the Governor-General as the representative of the queen. However, constitution alone cannot provide realistic understanding related to Australia’s executive government, and it must be noted that only reading of constitution can mislead the facts related to executive government[10].
The judiciary- constitution of Australia imposed the judicial power of commonwealth in the High Court and other federal courts, these institutions has power to interpret the laws and also to judge whether these laws are applied in individual cases. Constitution established the High Court, Parliament of Australia established the other Federal Courts by passing legislation. Judges in these Courts are appointed by Governor-General by acting on the advice provided by Prime Ministers and Cabinet. Only governor-General has power to remove these Judges by following the removal request made by both the Houses of Parliament, on the ground of misbehavior or incapacity which must be proved[11].
Difference- Doctrine of separation of power is applicable in both Madayin law and Australian legal system but this doctrine is applicable in different manner. In Madayin law the power and responsibility is separated in three arms of government. In Madayin law system is considered as holistic normative system, and this system regulates most conceivable areas of life especially life of tribal people in Yolngu and it also collaborate with other normative systems. Generally, Madayin relates with mythical religious origins for deriving its primary source of authority, and this concept related to religion is still maintained in Ngarra practice. The main aim of Madayin law is to ensuring peace, and it is expected from Ngarra leaders that they accomplish this aim by their leadership skills. Therefore, concept of Madayin law is translated as balancing and peace and it is used for local jurisdiction of Arnhem Land[12].
The difference between three Authorities is derived on the basis of doctrine of separation of power which states the ways through which law gives power to the different arms of government in Australia. The main aim of this doctrine is to ensure fair government and also state the accountability of each arm by distributing the power in such manner as it checks and balance the use of power. Under rule of law it is necessary that use of power is lawful and it can be challenged. Under this doctrine power is balanced between the three arms that are parliament, executive, and judiciary so that each can check the power utilized by other[13]. On the other hand, legislature includes two houses that is Houses of Parliament and the representatives, and they are responsible to drafting laws, debating, and make amendments in existing laws[14].
The Talmudic law is also considered as religious law, and the basis of this law was Torah that was revealed by god, and the supreme source of Talmudic law is god itself. The Talmud states no difference between religious law and secular law, and this system of law mainly confirms traditional customs of ancient people especially people live in East[15]. The result of this diversification was wide range and close articulation of the Talmudic system, and the commandments of religious influenced secular law. Therefore, it is not possible to state the difference between religious and secular law.
Similarities- there are number of similarities between the three legal systems such as all the systems ensure protection of human rights and human dignity. As stated above Talmudic law is considered as religious and secular law, which not only applying the teachings of Jewish but it also allowed individuals to follow the path directed by their heart and mind. In other words, Talmudic law does not impose any restriction on individual for following any belief. In similar way Australian legal system ensures protection of human rights and it also allowed individual to follow path directed by their heart and mind, and it does not impose any restriction on individual[16].
Conclusion:
The three legal systems are completely different from each other but they serve the similar purpose and ensure human rights protection of individual. After considering the above facts it is clear that three laws serve similar purpose but in different way. In Talmudic law the main of authorities is to encourage the religious faith, in Australian legal system the main purpose of government is to ensure protection of human rights and dignity be separating power between the authorities. On the other hand, in Madayin law traditional customs of aboriginal peoples are followed and protected. Therefore, it is clear that all three legal systems are completely different but somewhere they ensure human rights protection and dignity.
References:
ANU, ‘Law: Australian legal system’, < https://libguides.anu.edu.au/c.php?g=464979&p=3179892>, Accessed on 17th April 2014.
Asher Maoz, the impact of jewish law on contemporary legal systems with special reference to human rights,< https://www.olir.it/areetematiche/73/documents/maoz_milano2003.pdf>, Accessed on 17th April 2017.
Australianpolitics.com,’ Executive Government – Overview’,< https://australianpolitics.com/executive/overview>, Accessed on 17th April 2017.
Danial Terence Kelly, Law from the earth, law from the demos and law from heaven: nature and intersections of authority of Madayin, Australian law and Christianity in Arnhem Land, < https://espace.cdu.edu.au/eserv/cdu:55208/Thesis_CDU_55208_Kelly_D.pdf>, Accessed on 17th April 2017.
Djiniyini Gondarra & Richard Trudgen, The assent law of the First people: Principles of effective legal system in Aboriginal communities, < https://www.yolngunations.org/uploads/1/7/2/5/17257560/assent_law_of_the_first_people_0211.pdf>, Accessed on 17th April 2016.
Dr Danial Kelly , Foundational Sources And Purposes Of Authority In Madayin, < https://www.austlii.edu.au/au/journals/VicULawJJl/2014/4.pdf>, Accessed on 17 th April 2017.
George Pascoe Gaymarani, An introduction to the Ngarra law of Arnhem Land, < https://nationalunitygovernment.org/pdf/ngarra.pdf>, Accessed on 17th April 2017.
Hanina Ben-Menahem, Is Talmudic Law a Religious Legal System? A Provisional Analysis, (2016). 24 J. L. & Religion 379 (2008-2009).
Jewish Virtual library, Judaism: The Oral Law -Talmud & Mishna, < https://www.jewishvirtuallibrary.org/the-oral-law-talmud-and-mishna>, Accessed on 17th April 2016.
Law teacher,’ Australia’s Legal System’, < https://www.lawteacher.net/free-law-essays/australian-law/australias-legal-system.php>, Accessed on 17th April 2017.
molly greenfeld,’ the asymmetry of the separation of powers doctrine in australia’, The Western Australian Jurist, vol 3, 2012.
Parliament of Australia, ‘About Parliament’, < https://www.aph.gov.au/About_Parliament>, Accessed on 17th April 2017.
Parliament of Australia, ‘The Role of the Judiciary’, < https://www.parliament.qld.gov.au/documents/explore/education/factsheets/Factsheet_5.1_RoleOfTheJudiciary.pdf>, Accessed on 17th April 2017.
Republic of Australia,’ The Separation of Powers – Why Is It Necessary’, < https://www.parlament.gv.at/ENGL/PERK/PARL/POL/ParluGewaltenteilung/index.shtml>. Accessed on 17TH April 2017.
Wilhelm Bacher & Ludwig Blau, TALMUDIC LAW, < https://www.jewishencyclopedia.com/articles/14216-talmudic-law>, Accessed on 17th April 2017.
Zion Bokser, The Wisdom of the Talmud, < https://www.sacred-texts.com/jud/wott/wott09.htm>, Accessed on 17th April 2016.
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