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The Constitution of IndependenceThe Development of Constitutional Theory in Australia, Canada, and New Zealand$
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Peter C. Oliver

Print publication date: 2005

Print ISBN-13: 9780198268956

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780198268956.001.0001

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. Theoretical Approaches to Sovereignty and Legal System

. Theoretical Approaches to Sovereignty and Legal System

(p.285) 12. Theoretical Approaches to Sovereignty and Legal System
The Constitution of Independence


Oxford University Press

This chapter attempts an original explanation of the independence of legal systems. The assumption made here is that constitutional independence can be explained, first, by observing that questions of sovereignty are closely related to issues which are central to the concept of a legal system; and secondly, by asserting the independence of local constitutional theory. A credible explanation for independence is set out in a series of propositions. The virtue of this explanation is that it provides an account of what lawyers, politicians and the public apparently assume: that Australia, Canada, and New Zealand are now independent and that that independence was achieved by legal means.

Keywords:   parliamentary sovereignty, legal system, Hart, Kelsen, Raz, MacCormick, self-embracing sovereignty, continuing sovereignty, rule of recognition

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