This was because most Aborigines were not Christian none were prior to and thus they could not testify in British courts. Aborigines while being expected to follow British law had no input into the contents of the law through parliamentary representatives, they only received the right to vote in federal elections in Some Aborigines and Torres Strait Islanders have continued to maintain a connection with the land that was taken from them by England, in recent years legal battles have been fought involving the rights to the Australian land.
In the High Court ruled in the Mabo case that Australia was not terra nullius in , this has opened the door for more legal action including native title claims. In the source article "traditional lore" is referred to as "traditional law". Aboriginal lore was passed on through the generations through songs, stories and dance and it governed all aspects of traditional life. We have two books: 1 "Smashing Grammar" Written by the founder of Grammar Monster , "Smashing Grammar" has an A-Z glossary of grammar terms, a punctuation section, and a chapter on easily confused words.
Each entry starts with a simple explanation and some basic examples before giving real-life, entertaining examples.
Every entry ends with a summary explaining why the grammar point matters to a writer. If you like Grammar Monster, you'll love this book. Practical rather than academic, this best seller is packed with real-life examples and great quotations from Homer the Greek to Homer the Simpson. It is a light-hearted, easily digestible grammar reference. The individual consideration and identification of change mechanisms would be, in this limited respect, useful in bringing some conceptual clarity to the Rule of Law literature.
If we fail to do this, we will be taken no further in addressing the problem identified. Change across the periods can only be considered—and, hence, the problem identified be answered—once this has happened. Two questions follow from this simple account: first, how can we assess—in terms of the Rule of Law—exactly what the concept was for a particular canon at a particular time?
And, second, how can we assess the nature of the change across different times? I address each in turn before offering a brief example of the methodology. First, however, it is useful to say a little more about the nature of the solution that I propose.
Whilst I will refine the idea in the next sub-section, the solution can broadly be described as reflecting ideas often associated with the Cambridge School of intellectual history. Footnote 61 More particularly, and as noted above, the approach I suggest has more in common with a recent methodology suggested by David Armitage. Footnote 62 Armitage describes the idea in this way:. The outcome of an openly admitted and consistently pursued serial contextualism would be what I have called a history in ideas.
I take this to be a genre of intellectual history in which episodes of contestation over meaning form the steppingstones in a transtemporal narrative constructed over a span of time extending over decades, if not centuries. Armitage I suggest that the concept of the Rule of Law can be examined in precisely the same way. In considering the concept in this way, it is possible to come to a solution to the problem that I have highlighted. As I note in the paragraphs immediately above, the methodology I propose is neither wholly revolutionary, nor is it solely applicable to the Rule of Law.
In these circumstances, there is no reason why the same methodology could not be used in relation to any number of other concepts that may experience similar issues of unclarity. In this sense, although my identifying the problem may be of general relevance or benefit to various actors engaged in the Rule of Law field broadly conceived , the use of this sort of methodology as a solution may extend far beyond this single concept. There is also—at least—one other benefit that may follow from adopting this methodology.
This may facilitate a move away from the great thinkers and it may also allow some previously forgotten ideas of the Rule of Law to be unearthed and reapplied. Footnote 64 This will, hopefully, become apparent in the example I provide in Sect. The requirement that a mechanism of change be distinguished in order to enhance conceptual clarity imposes some somewhat unusual constraints on the choice of appropriate methodology.
In adopting the methodology below, I use a number of broad-based ideas to suggest a way to ultimately bring conceptual clarity to the problem associated with the identification of which Assumptions should be retained. Footnote 65 Should my methodology be criticised for cherry-picking, no real defence can be mounted other than to point to the usefulness of the methodology in addressing the problem identified.
A further complication cannot be ignored: many of the canons of the Rule of Law did not use the phrase the Rule of Law. This bars simple identification of a linguistic concept through the identification of a particular phrase. Footnote 66 It is for this reason that a hybrid methodology is suggested. Nevertheless, I do not abandon fundamental ideas associated with contextualist historical approaches that may otherwise be useful.
Collingwood helpfully puts it this way:. If you cannot tell what a proposition means unless you know what question it is meant to answer, you will mistake its meaning if you make a mistake about that question. One symptom of mistaking the meaning of a proposition is thinking that it contradicts another proposition which in fact it does not contradict.
No two propositions, I saw, can contradict one another unless they are answers to the same question. In adopting this idea, it seems that we can only properly understand a Rule of Law-relevant solution if we understand the correlative Rule of Law-relevant problem. This approach also facilitates refinement of any methodology based solely on consideration of the Rule of Law as a solution sans problem and provides increased precision in identifying the true nature and meaning of any conception.
Further, by identifying a meaning behind the text that extends beyond merely examining the words used we are more able to satisfy the basic hermeneutic idea, and to more finely differentiate the various Rule of Law ideas.
By adopting the proposed methodology, it becomes possible to contrast two Rule of Law solutions, ostensibly postulated in the same terms, as a result of the fact that they respond to different problems.
Collingwood , p. In locating change in evolutionary or revolutionary terms, it will be recalled that the key determinant is whether there is, in a subsequent conception, any necessary connection to a prior conception.
Identification of this connection is paramount. My exploration requires the connection to be more than merely incidental in terms that would result in a fundamentally different subsequent conception if the prior conception does not or did not exist.
Change is relatively easy to assess in relation to a single well-defined concept or thing over time. Simple examination of a thing at t 1 and t 2 would reveal the nature of the change—in the simple sense of—across those two points. However, putting aside for the moment any very real practical complications and difficulties that may inhere, the general categorisation of canonical accounts within the broad definition of the Rule of Law adopted here—that the Rule of Law relates to the normative constraint upon the exercise of power—would be possible if not analytically ideal.
So, in this sense, and in encompassing the idea of necessity expanded on above, two separate ideas of the Rule of Law—at t 1 and t 2 —can be compared and contrasted to establish whether a necessary connection exists. This will, in turn, establish whether the difference between the two can be conceived as being evolutionary or revolutionary.
However, it is accepted that, in doing so, an allowance must be made for the potential that any subsequent thinker could be influenced by any one of the prior thinkers and not only the thinker that immediately precedes him or her in time.
Footnote 70 In short, examining pairs of Rule of Law accounts will yield substantial analytic benefits. Footnote 71 Sequential comparison of other canonical Rule of Law ideas, and the identification of the differences associated with necessary connections between each of those ideas, will enable the location of the boundaries of the mechanism of change that operated across a wide spectrum of Rule of Law ideas. In doing so, I do not suggest this is the only way in which the context of all canons of the Rule of Law can be interrogated; the nature of each account will determine the precise application of the methodology.
Yet, despite these similarities, the contexts differ substantially. The socio-political climate in English society shifted dramatically between the s and the s, with various constitutional upheavals and transfers of power.
One way to expose the problems to which each of the authors were responding would be to consider the voluminous pamphleteer literature. Footnote 72 This literature, as popularly available and—at times—polemically focused political arguments, provides a strong indicator of some of the issues that existed in the societies at the time that both Hobbes and Locke were writing.
Space precludes any further exposition of this example in this paper. Additional exploration must await future papers. The collective cogency of several fundamental assumptions within the Rule of Law literature has not previously been considered. When it is, a problem emerges that reveals the potential for substantial unclarity within that body of work. The collective cogency of the Assumptions within the Rule of Law literature falters when they are considered in terms of different mechanisms of change, and the level of inconsistency varies when different mechanisms of change are considered.
This results in unclarity. The majority of this article has been devoted to demonstrating the existence of this inconsistency and to illustrating that—to avoid this inconsistency and, hence, the unclarity—it is necessary to identify the relevant mechanism of change across Rule of Law ideas.
I have suggested one way to do this: by viewing each canonical conception in the context of its authoring; as a solution to problems that can be associated with the society in which the canonical author was writing.
Doing so will ensure that the wider problem identified at the start of this article can be solved. Accordingly, to avoid ongoing reliance on potentially inconsistent Assumptions, and to enhance clarity in the Rule of Law debate, the assessment of Rule of Law ideas in a way that achieves this end is essential.
Whewell , p. See also Wilson , pp. For my view on the definition of the concept, see Burgess a. Instead, in circumstances where the Rule of Law was not used as a particular phrase by many of the authors considered to be canonical, some frame of reference is necessary in order to explore the ideas relevant to this overarching and broadly defined category.
The intent is to use this broad idea of the Rule of Law to identify the various thoughts that fall into a particular conceptual sphere in order that these can subsequently be used to explore the nature of the similarity or differences between those ideas.
This broader application does not, however, comprise the content of and is not explored in this paper. In this respect, the contemporary idea of the Anglo-American Rule of Law—by virtue of the inclusion of the various canonical sources that I refer to later in the paper—is made up by a large number of sources that are not themselves either Anglo or American.
I thank the anonymous reviewer for posing questions akin to these and for reminding me of the importance of providing answers to them. This is a position that Waldron himself, at least in some respects, concedes. See, Waldron , p. But, even if street level political philosophy is discounted, I have cause to doubt the truth of the initially stated position—at least insofar as it relates to the Rule of Law.
Martin Krygier identified a separate yet not inconsistent set of common themes in the literature. Here, I am not suggesting consistency across individual or disparate accounts is necessary. My suggestion relates not to different arguments but, instead, to different assumptions on which arguments are based.
I expand on this below. See, for example, Costa et al. Krygier a , p. Tamanaha , p. Whilst there may be different meanings attributable to the Rule of Law, at least one is stated as being attributable to Aristotle Shklar , p.
See also Shklar , p. Waldron suggests it has been a hugely important tradition for millennia Waldron , p. Reference is made to some, or all of these, in works by: Arndt , Reid , pp. Reid , pp. Arndt , p. See, for example, Harrington , pp. Zywicki , p. Shklar also contrasts and compares the specific differences between a number of historical conceptions in the opening paragraphs of her frequently cited work Shklar , pp. See, for example, Arndt , p.
Fallon , p. For an illustration of the different historical approaches to Rule of Law conceptions, see the special issue devoted to the operation and applications of the Rule of Law through history Walker and Burgess T amanaha Radin , p. Ideas in these terms are not explored here in preference of a conceptually cleaner and clearer examination. An exploration and outline of formal and substantive ideas can be found in Craig See also Bedner , pp. Marmor , p. Waldron [which, in turn, references the suggestion of essential contestability by Fallon ].
For example see Staton , p. See also, Staton , p. Waldron I do not suggest Waldron rejects or resiles from his earlier position.
It does, however, seem that, for him at least, the question of essential contestedness is not sufficiently accepted—despite the widespread citation and adoption of his own position—to warrant inclusion in an encyclopedia entry.
Raz , p. This observation is, of course, far from revolutionary and has been noted by a number of authors. This statement does, of course, presuppose to some extent that the various thinkers were talking about the same thing; something that, in the context of the examination of the Rule of Law literature, is also an uncontroversial idea. In drawing this comparison, and relating the tradition of the Rule of Law to that of the Common Law, Krygier extracts Hale , p.
Here, I have in mind the Kuhnian idea that the defining characteristic of—for Kuhn, scientific—revolutions, relates to the rejection of a prior time-honored theory, a shift in the nature of the problems available for scrutiny, and a transformation of the imagination Kuhn , p. Whilst this does not account for how to categorise the very first conception, this will not impact the assessment herein. See K uhn There are well known statements of the difficulties of establishing and illustrating a level of influence by one thinker over another; one of the most well-known accounts is provided by Skinner However, Oakley provides a convincing exposition of the benefits of the idea Oakley , chap.
Nevertheless, in Sect. To do so would, of course, presuppose some form of necessary connection. Assumption One: that the Rule of Law has existed for over years. Assumption Four: the Rule of Law is a highly or essentially contested concept. Assumption Three: contemporary Rule of Law ideas differ from older ideas. This may be reconciled through considering separately and differentiating the concept of the Rule of Law and various conceptions of the same.
Assuming, of course, that the earlier ideas—or, at least, some aspects of them—are not completely debunked or overridden by subsequent ones; something that has, undoubtedly, happened with certain ideas associated with the Rule of Law.
As will become apparent, this remedial effect is not something that occurs in respect of revolutionary change. Assumption Two: a number of canons of the Rule of Law exist and are frequently cited.
For a broadly similar idea and methodology regarding serial contextualism relating to the concept of Civil War see Armitage See, for example, Skinner , Armitage suggests a history in ideas as a way to compare the change in conceptions over time Armitage , Armitage , p. For the issues associated with forgetting aspects of the Rule of Law, see Burgess b.
In relation to the issues addressed in this paragraph and the few preceding it, I am indebted to the anonymous reviewer for reminding me of their importance.
The Rule of Law has itself previously been described as a solution concept Waldron , p. However, it should be noted that Waldron makes this assertion in terms where he considers the problem to be identifiable—of how to make law rule, rather than men—whilst it remains the case that we do not know how to solve it. I do not accept that this is actually—or, at least, solely—the problem to which the Rule of Law conceptions relate.
See also Reynolds , p. In relation to the importance of the idea of origins of the Rule of Law, see Burgess b. However, as noted, the approach shares common ground with the idea of serial contextualism described by Armitage , pp. For one view of the drawbacks of not adopting a historical view of accounts, see Burgess b.
My own research has extended this methodology in these terms and will form the focus of future work. Hist Eur Ideas — Google Scholar. There were no formal courts under traditional law, instead problems regarding traditional law were handled by elders - the oldest people in the community. Elders are important people in Aboriginal communities - they have important roles in how the community works and how the community relates with those outside the community, including government departments and service providers.
Elders are respected in the community. Some elders are the traditional owners of the land. These impact on different aspects of their lives.
The following practical tips and suggestions are a starting point for exploring the implications. It may be useful to have dialogue with the local Aboriginal community about these issues. Aboriginal lore was passed on through the generations through songs, stories and dance and it governed all aspects of traditional life.
As a worker it is useful to remember that there is a distinction, although law is more commonly used. Service providers need to develop an understanding that Aboriginal and Torres Strait Islander peoples held a well developed system of law long before the first white people arrived in Australia.
Aboriginal children learned the law from childhood, by observing customs, ceremonies and song cycles. There are Aboriginal communities in remote parts of Australia where the traditional culture is the dominant way of life. For example the Australian legal system punishes the offender by imprisonment and isolation from their community. The process is swift and the community can return to normal. There has recently been a lot of media attention regarding the debate of Aboriginal Traditional lore versus the Australian legal system.
As a Human Service provider you may be confronted with wider community views on this subject.
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