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The Limits Of Liberalism Notes

Law Notes > Australian Legal Foundations Notes

This is an extract of our The Limits Of Liberalism document, which we sell as part of our Australian Legal Foundations Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Australian Legal Foundations Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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



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