In Australia, it is well-established (see eg Paul v Constance) that the creation of a trust requires a sufficiently clear manifestation of intent on the part of the supposed settlor (the 'certainty of intention' requirement). Generally, the requisite intention is said to be evinced by the use of language bearing a sufficiently imperative character. The … Continue reading Precatory words, Love and the law of equity
Designing a political system from the ground up is no doubt a complex and contentious challenge. This challenge is something I have had ample opportunity to contemplate as I have studied Advanced Constitutional Law this semester. What is clear is that there are many different approaches that may be adopted, many different principles that may … Continue reading Why Originalism?
Lawyers, judges, politicians, academics and philosophers often appeal to notions of ‘justice’ in public debate and civic discourse. But what the term ‘justice’ actually means is often loosely defined and uncritically understood. Oxford defines justice in terms of ‘just behaviour or treatment’ and ‘the quality of being fair and reasonable’. Cambridge defines justice as ‘the … Continue reading Why justice matters
Knowing our history is an important part of knowing ourselves and where we are going. The following Justices may or may not be noteworthy for their contributions to legal scholarship, but their respective contributions to High Court trivia should not be overlooked. Albert Piddington Piddington was appointed alongside Sir Charles Powers (the first solicitor ever … Continue reading ‘Honourable Mentions’: forgotten justices of the High Court
Legal realism, certainly of the kind that can be traced back to former US Supreme Court Justice Oliver Wendell Holmes Jr., represents a bleak picture of law that abandons noble liberal and democratic ideals in favour of a system of rule by a thousand emperors. Particularly, legal realists' insistence that law can be found in … Continue reading If positivism is dissatisfying, legal realism is frightening
Critiquing an entire school of thought is an inherently dangerous undertaking, and this certainly holds true in the case of legal positivism. One of the foremost reasons for this difficulty is that legal positivists' views differ extensively, such that the distance between some classical and contemporary positivists (compare John Austin and Joseph Raz) is arguably … Continue reading Why legal positivism is a dissatisfying theory of law