Essay: The rule of law is an important tradition that informs the system of laws that govern Australia

Introduction

This essay will argue that justice system is embedded with law system within Australia and rule of law is there to make sure that no legitimate powers are exercised to infringe the rights and liberty of individuals. The justice system makes sure that wrongful acts of individuals are punished and justice is served to each individual equally. The underlying essay has made reliance on two key readings including the Spirit of Law concept (Montesquieu, 2001) that emphasized on political liberty as personal security of individuals and civil or social liberty concept of (Mill, 1998). 

Body

It is evident that system of law in Australia is governed by the rule of law that is fundamental to foster development of free democracy which regulates the exercise of arbitrary powers, such that legal system can be made accessible to all individuals and rights of public can be preserved. Although law grants substantial power to relevant individuals, yet the rule of law assures that there are checks and balances on exercise of that power and equity is assured before law. Moreover according to the rule of law, the respective rights of both accused and victims are respected and judiciary is kept independent to assure justice with each individual along with enhancing access to justice system (Le Mire, 2021). From this reflection of embedded rule of law in Australian system of law, it is identifiable that justice is crucial aspect of the Australian law. 

While linking the justice system with system of law, the concept of political liberty is of huge importance. Political liberty is sometimes mixed with democracy and it is assumed that offering voting and elective rights to the public is equivalent of offering them political liberty (Chenlong, 2019). However, by reflecting on the work of Montesquieu, I realized that his conceptualization of political liberty was different from that of democracy (Montesquieu, 1948). His conceptualization of political liberty is more linked with “personal security” which is provided to public by the set of dependable laws. Having agreement with his view, I believe that political liberty is not consisting of collective self-Government and it should not be equated to democracy. On the other hand, his view also negates that political liberty does not emphasizes that one can do anything without facing any constraints. There are constraints regarding right and wrong which are emphasized by law and anyone violating the boundaries is exposed to justice system (Lowenthal, 2017). Therefore, the political liberty is focused on assuring personal security to individuals, rather than promoting injustice or violation of laws. This notion of political liberty is reflected in the rule of law, whereby focus is on ensuring the balance in the use of arbitrary powers and ensuring that law embedded with justice system works for the safety of public. 

Moreover, it is important to note that how political liberty can be established within a democratic nation such as Australia, which can be made possible through two ways again reflected in the work of Montesquieu (1748). Firstly, the emphasis should be on the separation of powers of Government. According to this notion, there should be separation of roles in Government such that Judicial, executive and legislative functions should be assigned to different bodies of law. This separation of functions can ensure that if political liberty is challenged by one functional body, then that might be restrained by the other in order to offer greater prospects of political liberty (Carlyle, 2019). The same is reflected in Australian rule of law, whereby judiciary system is completely separated by system of law and greater prospect for justice and personal security are provided to public. Based on the reflection of this phenomenon, I believe that order to secure liberty the powers should be separated such that check and balance on the use of power can be maintained. On the other hand, the second way to promote political liberty is the effective framing of civil and criminal law such that personal security of individuals can be ensured. The establishment of these laws can offer right of fair trial, equitable access to justice, presumption of innocence, freedom of speech and though and can put an end to slavery (Chenlong, 2019). All of these aspects are also mentioned in the Australian rule of law and thus work of Montesquieu (1748) is clearly supporting the implication of rule of law in defining the law system. 

In addition to the views of political liberty, the notion of civil or social liberty is also highly relevant with Australian rule of law and embedded nature of justice and law in Australia. Civil or social liberty according to Mill, (1998) refers to the extent to which power can be legitimately exerted on individuals by society and Government. According to civil liberty, the power can be exercised against the will of an individual only if it is exercised to prevent harm to others (Van Schoelandt, 2021). This is exactly where the role of justice system comes at place and it is assured that fair punishments are given to those who are guilty. Without the justice system, the limits of law system cannot be defined and civil rights of individuals cannot be protected. 

In my opinion, there is not much distinction between political and civil liberty, as both of them are concerned about the personal security and protection of individuals against the power held by those in ruling position. Moreover, in order to ensure civil liberty the most important condition is to obtain specific immunities which are mainly political rights or political liberty, such that if these rights are infringed by governing bodies then action might be taken by the justice system. Likewise, another factor to assure civil liberty is linked with establishment of constitutional checks. Somehow, these factors are closely linked with the expedition of political liberty that are; separation of power and appropriate framing of civil and criminal laws. Therefore, even without making distinction of civil and political liberty, it can be argued that these notion are closely aligned with rule of law. In order to ensure personal security of public, it is crucial to establish the justice system that can keep the power exertion into check and can protect the general public from arbitrary power of governing bodies. Therefore, the law system of Australia can never be separated from justice system, as in order for law to protect public, the alignment with justice system is crucial.  

Conclusion 

In Australia, the justice system is embedded with law system, whereby rule of law informs the law system. The underlying essay has approached this statement from the perspective of political liberty mentioned in Spirit of Law and civil or social liberty perspective. It was noted that in order to ensure that arbitrary rights are not exercised for violating the liberty of individuals, it is important that power is distributed among different governmental bodies and appropriate criminal and civil laws are framed. The discretion of separate power to justice system is to ensure that laws are used to protect the public and power is only rightfully exercised. Further, no significant distinction was noted in civil and political liberty and both of them are said to be stated in rule of law, whereby personal security and public protection are key concerns of law system.