Melbourne Law School - Theses

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Type: Coursework thesis × Start date: 1970 × End date: 1979 × Subject: Constitutional law ×

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    The constitutional law of membership of Australia
    Wishart, David ( 1979)
    The relationship between the individual and the state is usually assumed to be 'allegiance' but is, in common .law countries, the subject of little legal thought or writing. In particular, the Australian Citizenship Act 1948-73 is virtually ignored by the Australian legal system. This thesis attempts to discover what 'allegiance' is, whether it is a valid description of the legal concept of the relationship between individual and state in Australia and, if not, to provide a correct description. Calvin's Case, (1608) 2 St. Trials 559, provided the only complete statement of the law as to 'allegiance'. The case reveals that 'allegiance' was a product of natural law, whilst the analogous doctrines of naturalization and alienage were admitted to be creations of law. During the period 1608 to 1914, natural law proved inadequate for the English legal system. 'Allegiance' was replaced with the concept of membership as a contract between the state and the individual. This system may have motivated the 'common code' of 1914. Since 1914, the idea of a relationship between the state and the individual has disappeared from the law of both England arid Australia. The state is no longer assumed to have an existence independent of the legal system. The individual is now considered to be subjected to the legal system and notto the state.