DO YOU THINK WEBER'S CATEGORIES OF LEGITIMATE AUTHORITY ARE HELPFUL IN UNDERSTANDING WHAT MAKES THE CURRENT AUSTRALIAN SYSTEM OF LAW AND GOVERNMENT LEGITIMATE.
Introduction
The political system in Australia offers a unique kind of government system. It is an amalgamation of political process from both United States and the United Kingdom. Similar to the United States, the Australian political system is characterized as a federal from of government.[1] In the Australian setting, there are two levels of government, the federal government in Canberra and the regional states governments. On the other hand, the system of government in Australia is said to be similar to the UK because it has acquired some of its government practices being a colony for several decades. This paper intends to look into the existing government and laws of Australia in relation to the concept of legitime authority coined by Max Weber. For clarity and coherence, the discussions of the paper are going to be divided into several parts. The first part will serve as an introductory part that discusses the concept of legitimate authority as stated by Weber. Secondly, a discussion on the kind of government that Australia possesses. After these, a discussion with regards to the concept of legitimacy and the authority of both government and the laws in which these bodies of authority work on.
The Concept of Legitimate Authority
Although Weber conceived quite a few kinds of authority, most concentration has centred on the pure or ideal-typical class of charismatic, traditional, and rational-legal. Rational-legal authority anchors on the principle in the legality of outlines of normative laws and the right of those promoted to authority under such laws to present instructions.[2] Deliberately instituted abstract regulations that are generally appropriate make the implementation of rational-legal authority doable. Rational-legal was the most recent authority type to extend and is essential to the models of bureaucracy and capitalism. In Weber's works, the bureaucratic organizational structure is a simple expansion of rational-legal authority: The purest kind of practice of legal authority is that which uses bureaucratic administrative personnel. The other two pure kinds of authority include the traditional and charismatic types of leadership.[3] Even though traditional authority holds a lot of subtypes, their legitimacy is anchored on the inviolability of the order and the attendant authorities of control as they have been provided from the past. At the same time as traditional authority can produce personal faithfulness and allegiance to the sovereign, the basis of this faithfulness and allegiance is social class or kind, not individual attributes. Not like rational-legal and traditional authority, which draw from theoretical standards and established practice, correspondingly, charisma originates from the amazing individual merits of a person. Weber characterized charisma as dependent on the dedication to the particular and outstanding inviolability, heroism or commendable nature of an individual person, and of the normative models or command exposed or predetermined by him.[4] For the reason that it comes from personal peculiarities and originality instead of rationality or established custom, charismatic authority is commonly a basis of revolutionary alterations and the disruption of time-honoured institutional types. One vital distinction involving the three authorities rests on the level of leeway or vagary given to individual leaders. In the bureaucracy, jurisdiction is cautiously characterized and limited, at the same time as the charismatic leader takes pleasure in limitless discretion. Tradition stands for a midpoint on this field; leaders have subjective control in spheres not compelled by tradition. It is almost certainly likely for organizations to employ over one authority type concurrently, or a combination of authority class, however the emphasis in this paper is on relatively pure instances of single authority institutions present in the context of Australia.
The Government of Australia
Government of Australia is composed into three branches. These include the Parliament, Executive government, and Judicature.[5] Thus, conventionally the law making structure is the Legislature, the one accountable for executive purposes is the Executive, and the one in charge for shaping the connotation of law is the Judiciary. The historical cause for separating the roles was to protect freedom for the person by managing exploitation of public power applied by authoritarian rulers. Basically, this separation of powers would not be able to be applicable in Australia on account of the close connection of the Executive and the Legislature.
The nine Parliaments in Australia are the standard law-making establishments.[6] Therefore, law-making authority of the Commonwealth is carried out by parliament. Parliament has a couple of major purposes. This includes the creation of Legislation and monitoring the Executive. The parliament of Australia could not be considered sovereign for the reason that of the separation of legislative powers involving the Commonwealth and States. The constitution separates total law making commands into specific powers, which is provided to Commonwealth parliament and general law making mandates are kept by the individual states, both the powers are restricted by constitution by compelling prohibitions.
to the nine parliaments, Australia possesses nine Executives branches. This arm is consigned to as the Government. Governor-General as Queen’s envoy implements this authority.[7] Executive council has a couple of types, Cabinet and Executive Council. The former includes of collection of ministers from the Parliament, their job contains the creation of political choices and to resolve issues of legislation to put before parliament. The latter on the other hand is composed of the Governor and two or more ministers. The Governor is counselled by judgments completed by Cabinet and the Executive Council provides the legal power to Acts of the Executive. This executive power allows the Commonwealth Government to apply the common law prerogative authority of the crown, which takes account of the power to proclaim war, enter agreements and carry out diplomatic affairs. Royal commissions to carry out investigations can similarly be taken on by the Executive, and it doesn’t require Legislation to approve these actions.
Moreover, the Commonwealth judicial power is placed in the High Court and other federal courts produced by Parliament. It is perceived as a guardian of the constitution.[8] The functions of the judiciary consist of resolving disagreements and inferring laws. Judges perform in the prevailing procedure by understanding the law created by legislature. This means they have the legal authority to establish the connotation of rule of law. Nevertheless, it does not itself re-evaluate the uncertain law, until the moment it is not disputed by a civilian or group of people whilst bringing to action. High Court carries out a significant function in resolving disagreements involving Commonwealth and States on the subject of their respective authorities, given that it is the final court of appeal from federal and state courts.
Discussion
At this point the discussion will focus on the legitimacy of the authority present in the Parliamentary of Australia. Generally, parliamentary sovereignty denotes the lack of any legal limitations on the legislative authority of the Parliament. The character of parliamentary sovereignty was that Parliament is entitled to create or unmake any law whatsoever, that no individual or organization is acknowledged by the law of as possessing a right to overrule or leave behind the legislation of Parliament.[9] The sovereignty of Parliament is consequently presented in three features. One is that there are no legal restrictions on the legislative capability of Parliament. Another is that courts are under a responsibility to implement the laws created by Parliament and no Parliament can restrict its successors or be restricted by its predecessors.
It is a rule that, so as to preserve the superiority of the parliament and guarantee that they are free to ratify new legislations, the Parliament may not to be restricted by the past Acts. In this respect, the said legitimacy of the legislature of Australia reveals a rational-legal stance.[10] If a legislature intends to change a law ratified beforehand, they can ratify a new Act which specifically rescinds the old law or condition the specific modifications to the old legislation. On the other hand, they can rescind the Act implicitly by ratifying an Act which is totally not in agreement with the preceding one they intend to revoke. When courts encounter a couple of acts that are totally not in agreement with each other, the courts will implement the principle of implied repeal, which follows the later Act as an alternative to the previous one. This principle of implied repeal is implemented in Vauxhall Estates Ltd v Liverpool Corp.[11] and Ellen Streets Estate Ltd v Minister of Health[12] where it was decided that the stipulations of the newer Act have to outweigh the earlier one to the extent that they were in disagreement. So as for a Parliament to guarantee that its Act is recognized on a firm underpinning, it may possibly attempt to bind its successor by instituting a deadline for which the Act cannot be revoked for the duration of that phase of time. When a term per se is incorporated in an Act, the Parliament may or may possibly not be capable of cancelling it right away.
There is, nevertheless, a thin line involving the institution of rules restraining the processes for legislation and restricting the successors from making laws. This is attributable to the fact that seeing as Parliament may possibly be capable of instituting new procedures for legislation it may well be capable of generating complicated processes to put off the succeeding Parliaments from making laws.[13] Consequently, it is left on the courts to distinguish and specify the limits between rules controlling the way of legislating and rules that will restrict the successors of Parliament. Parliament is as a result, sovereign, in the context that there are fundamentally no legal restraints on its legislative authority. They could decide to change the methods for legislation, making it more complicated for any changes to be carried out. Nonetheless, the rule that no Parliament can restrict upcoming Parliaments has to still win through and by itself, courts will have the duty to make a decision whether or not the processes as instituted in the Act have to be deemed to be compulsory on upcoming Parliaments.
Even though courts in Australia are forced to comply with Australian decrees not considering how reasonable, just or sensible they are, judges do possess a certain degree of flexibility in construing them. It is their duty not only to implement the statutes but similarly to provide their understanding as to what parliament intended to accomplish by such a statute.[14] They may understand a statute austerely if they deem this is indispensable, or if it is phrased in such a manner that makes vagueness unworkable, or they may permit a statute a comprehensive explanation, frequently as they may possibly sense firm application may not be fair in a particular case. Judges may very possibly construe a statute to denote one thing in one lawsuit and something totally conflicting in another lawsuit but constantly have to keep in mind their responsibility to act lawfully. Courts are permitted to defy and dispute delegated legislation as ultra vires if it goes beyond the extent of authority established by primary legislation or if the acceptable processes have not been complied with.[15]
Conclusion
The paper has presented the context of the Australian government and laws in Weber’s view of legitimate authority. As presented above, it appears that He perceived the political system administered by opposing parties competing for entirely influential purposes of power as presented in the circumstances around the parliament of Australia. Moreover he recognized a democratic mass equipped of being influenced unreasonably by opposing individual appeals of specific groups. Altogether, these elements guarantee the safeguarding of an open society. Such a society is reliant on the outstanding disposition of people (leaders) with a passion together with the insensate struggle for power of different party engines. To this extent, the legitimacy of the authority presented by the government of Australia along with its laws is established.
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