76057 Judgment and the Rule of Law
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2025 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
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)) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of 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.
There are course requisites for this subject. See access conditions.
Description
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.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Explain how judgments are made about legal and moral disputes in law but also more generally in society. |
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| 2. | Articulate justifications for adhering to and overturning precedent. |
| 3. | Critically evaluate the role of community values in making judgments, judging in plural societies – with particular reference to First Nations peoples - and the meaning, purpose and potential of the rule of law. |
| 4. | Communicate differences in method, meaning and purpose between common law, historical and traditional understandings of the past. |
| 5. | Distinguish neo-liberal values from liberal legal values and critically evaluate the quandaries neo-liberal values pose for common law jurisprudence. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1) - Indigenous Professional Capability
Bachelor of Law graduates will:
Apply knowledge and skills to develop professional capabilities to work effectively with and for Indigenous peoples and communities across the law profession. (LAW.7.1)
Teaching and learning strategies
Strategy 1
Student preparation and self-directed learning
Students read and critically evaluate prescribed texts, available in the readings folder via Canvas, prior to online participation. Students’ preparatory reading is guided by a series of critical discussion questions also available via Canvas. It is recommended that students read
the questions prior to reading the prescribed texts. Students will prepare notes for online participation in response to the questions, which will assist them to identify and engage with the concepts and to develop links between the topics and concepts across the subject. It is anticipated that through this guided reading process students' critical reading skills and the sophistication of analysis will develop
across the subject. All assessment is based on engagement with the materials provided. The subject requires deep reading and the materials are challenging. This is recognised with marks allocated for all reading and participation. The same materials that are read each week for online participation form the foundation for all forms of assessment for this subject.
Strategy 2
Collaborative discussion online
Students and the seminar leader in this subject form a learning community, which supports and engages with each other online. Students and the seminar leader respond to critical journal entries, which will be posted as part of the assessment online. Students are required to actively lead and contribute to online discussion. It is an expectation that the materials have been read and notes responding to the questions have been prepared before engaging online. It is an essential requirement that all students read and participate by posting a blog and responding to a student’s blog each fortnight. Assessment is based on students' responses to questions provided by the seminar leader but also on students' engagement with the seminar leader and other students online. This is why a significant proportion of the assessment grade is allocated to online critical journal entries and online class participation.
Strategy 3
Feedback
Students receive early and ongoing feedback on their blogs. Students will receive feedback online from the seminar leader on their first critical journal within a fortnight of submission. Each student will receive individual responses to their critical journal entries from the seminar leader over the course of the session. Other students will also respond to the critical journal entries and these responses will form an online conversation. The critical journal assessment from week 1 onwards provides students with guidance as to how they are tracking in the subject, how they can improve their responses to assessment questions, and how more broadly they can enhance their learning. Students receive feedback from the seminar leader and other students on their critical journal entries and on their engagement with the materials online.
Subject delivery
This subject will be delivered online primarily through engagement with the materials - through critical blogs and responses to these blogs. Each fortnight a different topic is covered.
Content (topics)
- Why follow precedent?
- Case studies of precedent and change: rape in marriage and native title
- The contemporary relevance of the past in law and history
- Case studies: judging the ‘Stolen Generations’.
- Judging relationally
- Case studies of judging relationally: Should animals or the environment have standing in court? How can Indigenous and non-Indigenous laws meet respectfully?
- What is the role, meaning and purpose of the rule of law?
- A critical consideration of the rule of law through contemporary national and/or international case studies.
- How does a shift from liberal to neo-liberal values influence understanding of and critical engagement with the normative values which underpin legal reasoning?
- Case study: The influence of neo liberal values on the language and meaning of tort law.
- Review of themes across the subject.
Assessment
Assessment task 1: Online Participation
| Intent: | The value placed on this assessment task emphasizes the importance of consistent and active online participation based on reading and watching the prescribed materials and responding to the set questions. All assessment tasks for this subject require a deep and critical reading of the prescribed texts. It is therefore prudent to prepare extremely well for online engagement as this will enable you to maximize your learning and marks across all assessment tasks for this subject. |
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| Objective(s): | This task addresses the following subject learning objectives: 2, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.7.1 |
| Weight: | 25% |
| Length: | 1 000 words equivalent |
| Criteria: |
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Assessment task 2: Critical Journal Entry
| Intent: | This task provides students with an opportunity from week 1 to develop and receive feedback on their critical reading, analysis and writing skills. It allows students to gain early feedback from the seminar leader and their peers. The critical journal entry task, in addition to comprising 75% of the assessment for this subject, provides a significant foundation for all learning and assessment in the subject. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.7.1 |
| Weight: | 75% |
| Length: | 2500 words total - each critical journal entry should be a maximum of 500 words |
| Criteria: |
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Required texts
The readings will be provided online each week