#6510 - The Limits Of Liberalism - Australian Legal Foundations

THE LIMITS OF LIBERALISM * * * * * * Underpins the Australian Legal System Philosophical viewpoint o Started with Natural Law theorists SS? Hobbes, (individual rights of the person), and Locke, (private property rights of an individual) Contract between ruler and ruled o Social contract emphasising natural rights of an individual Natural Law a? Positivism o From what law SHOULD be to what the law IS o From is the law LEGITIMATE (according to higher law) to is the law LEGA (correspond to its own criteria to make it valid) The content of law is not the important concern, but the form. Positivism - application a? formalism o Nothing outside the law should matter o Strict application of the rules to the facts o Producing an objective result o Continuity, certainty and lack of controversy SS? IDEA BEHIND THE DOCTRINE OF PRESCEDENT Rule of Law * Primarily suspicious of state authority o Leans towards libertarian SS? Minimal gvt interference in our everyday affairs * Government under law (constitution) o Laws about how laws should be made * Government through law o Not arbitrary exercise of power * EQUALITY BEFORE THE LAW o Decision makers should apply the law, (nothing else), without bias SS? Not in an arbitrary way Separation of Powers * Two objectives to minimise the power of the state o Control the dictatorial monarch o To enable the ordinary person to have freedom SS? Stop the threat to liberty - power can corrupt SS? Limit the power the governing body has PAGE 51