76057 Judgment and the Rule of Law6cp
Requisite(s): ( 70616 Australian Constitutional Law OR (70110 Introduction to Law AND (76006c Public International Law OR 70108c Public International Law OR 76110c Introduction to Public International Law)))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses. See access conditions.
Jurisprudence subjects generally address questions about what the law is, what it ought to be and what are its moral foundations. They often offer a survey of legal theorists in the Western cannon. This subject is focused in a more particular way. It critically questions dominant concepts with respect to the rule of law, precedent and the values which underpin legal judgments.
A central tenet of legal systems, founded in common law traditions, is the rule of law. Concepts which are foundational to the rule of law include consistency, neutrality and objectivity. The materials focus on two essential rule of law principles: the first being that law-making powers are not exercised arbitrarily, and the second that laws sustain a normative order and thereby stability, security and order in a community. To maintain normative order, laws must be more than predictable, well-administered and understood by the community. They also need to be meaningful and generally accepted by the community.
Drawing on Kantian and Arendtian scholars, this subject critically explores the faculty of judgment and whether there is something particular about legal judgments which differentiates them from judgments in other spheres such as politics, art or more routine decision making. A second core theme to be explored is the philosophical foundations which underpin objectivity and how these relate to legal judgments and the rule of law.
These ideas are applied to investigate relationships between precedent, tradition/history and change, judging against one's community and dissent, and how different communities of values and opinion, in particular First Nations and minority communities, can be considered within legal judgments.
The themes with respect to judgment and rule of law are explored through case studies and critical literature, with a focus on race and gender.
Detailed subject description.