LAW7093

Judicial law-making and legal theory

Associate Professor J Goldsworthy

One 2-hour seminar per week
* First semester
* City

Objectives Upon successful completion of this subject students should possess a sophisticated understanding of (1) recent developments in the judiciary's conception of its constitutional role, and its effects on changes in legal doctrine; (2) how these developments are analysed and evaluated by the leading contemporary philosophies of law; (3) differences between common law, statute law and constitutional law which are relevant to the constitutional role of the judiciary; (4) ambiguities in the notion of the `Rule of Law', as it pertains to judges. Students should also have improved their ability to (a) engage in the theoretical analysis of legal concepts at a deep level; (b) confidently participate in argument in the context of an interactive seminar; (c) clearly and persuasively present ideas and argument in written form.

Synopsis Recent developments in the Australian judiciary's conception of its constitutional role, and in particular its law-making authority; the new emphasis on `fundamental principles' and individual rights; an analysis of these developments from the perspectives of contemporary philosophies of law and adjudication - natural law, legal positivism, Dworkin's theory and legal realism; a comparison of common law, statute law and constitutional law, and the role of `fundamental principles' and judicial law-making in each case; the nature of interpretation of legal texts; recent judicial and scholarly challenges to the historical and philosophical credentials of the doctrine of parliamentary sovereignty; tensions in the administration of law - stability versus change, and predictability versus individual justice; the nature and value of the Rule of Law, and its relationship with judicial law-making; institutional capacities of judges as effective law-makers.

Assessment Research assignment on a topic approved in advance (4000 words): 40%
* Class participation: 15%
* Final examination (2 hours, supervised): 45%

Texts

Reading materials to be prepared by the lecturer