Plan

Discuss about the Analysis of the Rule of Law and Democracy.

The Rubric Marking criteria for this essay required us to thoroughly research and understand the statement given with respect to the legal system of Australia. In the short essay, I have tried to explain the quotation of Allan Amanyire. Through that quotation I have tried to explain the relationship between the democracy and the rule of law. I have also touched aspects where both these lack and have tried to state the reason behind this. I have also highlighted the relation of democracy and rule of lack with the Australian legal system. To understand the application of fundamental principles of law especially from a business perspective, I have provided how various laws relate to those principles. Though I did face some challenges while searching for the fundamental principles of law from business perspective. In order to complete this essay, I assigned some time each day and researched so as to excel at this assignment. 

In the following pages, a discussion has been made regarding the relationship between democracy and law. Democracy and law go hand in hand and one cannot survive without the other. This very essence is covered in this document. An understanding has also been reached in the analysis of democracy and rule of law with relation to the Australian Legal System. Lastly, a study on the fundamental principles of law from the perspective of business has been done.

The general assembly of UN (UN Chronicle, 2012) and the Security Council have emphasized that the rule of law and democracy are interlinked and they both are mutually reinforcing. Rules of law, at the very root are formed by the people. Democracy can literally be defined as a system of government where the officials are elected by the people eligible to vote.  In other words it is the representation of the people. Both rule of law and democracy are formed by the individuals elected or selected for the respective purpose (Cambridge University Press, 2003).

The effects of lack of democracy means that the elected governments have somewhere failed to fulfill the basic needs of the voters. The basic principles of democracy are breached and that causes the lack of effective democracy. These principles include equality; accountability; transparency; control over abuse of power; free and clear elections; political tolerance; and economic freedom among the others.

The lack of rule of law contains the situation where the people on whom the law is applicable, fail to follow it (Rule of Law Institute of Australia, 2012). There is a sort of casual attitude towards the failure to follow the law. Moreover, there are situations where people take advantage of the loopholes in law. The law when taken as a mechanism for government and the government is at times deemed above the law. The rule of law (World Justice Project, 2016) actually means that everyone is bound by the same law and this includes the government. When the first case occurs in any society that is when the lack in rule of law begins.

Essay

As both law and democracy go together (Habermas, 1995), when there is a lack of democracy and the rule of law, it affects everyone equally. It does not differentiate between a rich person and a poor person, it hurts everyone equally. Even in cases of big corporation or new start ups; or educated person or an illiterate person; and even an employed one or unemployed one, the ill effects hits everyone in the same way. Everyone has to bear the burn of such shortfalls in democracy and law. Allan Amanyire has right said those lines.  

The Australian legal system is broadly divided into statue laws, federal laws and the common laws. The British colonies have hugely impacted at the present day legal system in Australia (Charrett and Bell, 2011).  They gave Australia the very basis of federation (Museum of Australian Democracy, 2016) system, which means that there is a segmentation of power between the state/ territorial governments and the federal government. Each state in Australia has its own set of laws and these are known as statue laws. Some powers are given only to the federal government which includes defense, taxation, external affairs, marriage and divorce, etc. Federal law is also known as the Constitutional law as these are the laws made by the Commonwealth. The powers which are not covered under the federal government but is within the territory of state/territory government, forms a part of the statute laws of that state. When there is ambiguity between these two, the common laws are applied (State Library New South Wales, 2011).

The Australian legal system is built on principles of democracy and the preservation of fundamental values and the beliefs of the community. The Australian legal system has been formed keeping in mind the rules, customs, religious beliefs, common laws, customary laws, codes and the laws (SACE, 2005) received from British.

Australia is a Constitutional Monarchy where the Queen of England is the Head of State (Australian Government, 2016) and represented in the country by a Governor-General. Australia can become a republic nation but the people keep voting against this option. A republic referendum was held on November 6, 1999 in Australia asking its people if the country should become republic. Nearly 54.87% people voted against this referendum in the turnout of 95.1% voters (Australian Electoral Commission, 2011). Currently, Australia works as a parliamentary democracy where the people elect the representatives from amongst themselves and these representatives make the laws on behalf of those voters. Hence, it can be said that people decide who will be the lawmakers in the nation.

Relationship between Democracy and Rule of Law

Australian legal system also plays a crucial role in the very structure and framework of business. A study of various laws regarding any business gives the clarity between the right and wrongs of a business. The area of business law in the Australian legal system is huge as one need to get aware about different laws which can range from taxation to torts or from consumer protection to international trade. In order to avoid any legal hassle or to just lower the chances of a legal dispute, these laws have to be considered in a business.

The most important law from the business perspective in any nation is the contract law. In order to conduct any business, a contract has to be formed. A contract is a promise (s) between two or more parties to do something in exchange of a consideration. It is a legally binding agreement for the parties involved. A contract has some major points, viz., agreement (an offer has to be given and acceptance has to be received); consideration (an economic value has to be paid which is to be decided between the parties); capacity (the persons entering the contract have to be of clear mental capacity and of legal age); and intention (the pares to the contract must have the intent to enter into the agreement). Relief is provided in cases where a breach of contract is made (The Association of Business Executives, 2016).

Private obligations have two main branches, the contract law and the law of tort.  When a civil wrong is done but there is no breach of contract, tort law is applied. Examples where tort law is applicable are negligence, personal injury, trespassing, and defamation (Trindade, Cane and Lunney, 2007). Torts are not a crime; they are more of civil wrongdoings. And hence, one can seek a civil claim in the nature of a compensation or injunction. The tort law of Australia has its roots in the common laws of United Kingdom. Tort law is brought forward in order to correct the wrong done to a private individual.

A law should be a clear set of rules made to regulate the human conduct. Any ambiguity can lead to loopholes and such advantages in turn lead to misuse of law. It has to be stable and uniform for all and should be backed by coercive lawmakers. Any violation should lead to some sort of punishment. Business laws of Australia cover these fundamental principles of law. In order to better understand the importance of fundamental principles of law in a business (Kelly and Holmes, 1997), some examples have been discussed.

Lack of Democracy and Rule of Law

In order to start any business, certain permissions are to be acquired which are uniform for all. In case a dispute in a contract, the parties have right to take legal recourse. Transparent laws and procedures for the same have been laid down. If a consumer is deceived or feels cheated, various consumer forums for seeking relief are available for them. Hence, business laws also follow the basic rule of law which is, for the people and by the people.

To conclude what has been discussed till now, we need to rely on the very statement which started this discussion. The democracy and laws lack in places and these affect all the parties equally. A loophole in Competition and Consumer Act 2010 will effects each of the person who falls in the ambit of this act. The very makers and elected representatives are responsible for such loopholes. Democracy and rule of law are very similar and at the same time very different in nature. Whilst the both are made by the people but sometimes one can dominate the other and thereby result in the non attainment of very basis for which they are known. Some light was also thrown at the principles of law and how they give birth to different laws specifically made for the purpose of safeguarding the fundamentals. 

References 

Australian Electoral Commission (2011) Key Results. Available from: https://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/Key_Results.htm [Accessed 18/08/12].

Australian Government (2016) How Government Works. Available from: https://www.australia.gov.au/about-government/how-government-works [Accessed 18/08/12].

Cambridge University Press (2003) Democracy and the Rule of Law [Online] Cambridge University Press. Available from: https://catdir.loc.gov/catdir/samples/cam034/2002035189.pdf [Accessed 18/08/12].

Charrett, D.  And Bell, M. (2011). Statutory Intervention into the Common Construction Law of Australia – Progress or Regress?. Australian Construction Law Newsletter, 137(March/April)

Habermas, J. (1995) On the Internal Relation between the Rule of Law and Democracy. European Journal of Philosophy, 3 (1), pp 12-20.

Kelly, D. and Holmes, A. (1997) Principles of Business Law, 2nd ed. London: Cavendish Publishing Ltd.

Museum of Australian Democracy (2016) Australian democracy: an overview. Available from: https://moadoph.gov.au/democracy/australian-democracy/ [Accessed 18/08/12].

Rule of Law Institute of Australia (2012) The Rule of Law: its State of Health in Australia [Online] Rule of Law Institute of Australia. Available from: https://www.ruleoflaw.org.au/wp-content/uploads/2012/10/Lindgren-Rule-of-Law-Its-State-of-Health-in-Australia-20121.pdf [Accessed 18/08/12].

SACE (2005) The Australian Legal System. Available from: https://essentialseducation.com.au/wp-content/uploads/SACE2_Legal_Studies_Workbook_Sample_Pages.pdf [Accessed 18/08/12].

State Library New South Wales (2011). Information about the law in NSW. (Online) State Library New South Wales. Available from: https://www.legalanswers.sl.nsw.gov.au/guides/hot_topics/australian_legal_system/overview.html [Accessed 18/08/2016]

The Association of Business Executives (2016) Principles of Business Law. Available from: https://www.dphu.org/uploads/attachements/books/books_3496_0.pdf [Accessed 18/08/12].

Trindade, F., Cane, P. and Lunney, M. (2007). The law of torts in Australia, 4th ed. South Melbourne: Oxford University Press.

UN Chronicle (2012) Rule of Law and Democracy: Addressing the Gap Between Policies and Practices [Online] United Nations. Available from: https://www.idea.int/un/upload/Concept-Note-IDEA-IDLO-Italy-rev-5-0-Final.pdf [Accessed 18/08/12].

World Justice Project (2016) What is the Rule of Law? [Online] World Justice Project. Available from: https://worldjusticeproject.org/what-rule-law [Accessed 18/08/12].