70102 Lecture Notes - Lecture 2: Feminist Theory, Amicus Curiae, Procedural Law

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Seminar 2:
Elizabeth Ellis, Principles and Practice of Australian Law (Thomson Reuters, 3rd ed, 2013)
[1.30]-[1.73].
Section 109 of the constitution
1.30 Autonomy and Legitimacy
- The idea of law as a separate discipline with its own values, rules, institutions and processes
is referred to as the autonomy of law.
- It is one of the features that distinguish law in the western legal tradition, the others being
centrality and pervasieess of la as a eas of soial orderig ad the la’s oral
authority/legitimacy.
1.31 Positivism ( and natural law)
- Aordig to a positiist oeptio, la is sipl those rules posited  a perso or od
with authority to command.
- A law is a law provided it meets the formal criteria for its making regardless of its moral
content.
- Legal positivism dominates western society although natural law can be found in sources of
international law, particularly human rights.
Natural Law e.g Thomas Aquinas and Hobbes who suggest that natural law is a law deriver
fro a higher eig separate to hua la. Fuller, hoeer, is a seular atural la
theorist.
- Proponents of natural law, insist that the rules enacted by government are not the only
sources of law. They argue that moral philosophy, religion, human reasons and individual
conscience are also integral parts of the law.
1.32 Formalism
- Foralis assues that la has aojetie eistee ad a e disoered through a
process that is apolitical and value-free.
- These assumptions are subject to sustained challenge and continue to be by critical theory
such as feminist theory and critical race theory, for example.
1.40 The focus on procedure
- Despite the challenges to formalism the idea of process continues to play an important
role, both in the operation of law and in its legitimacy.
1.41 Substantive and Procedural law
- Substantive law is law concerned with the rules which make up the substance of the
particular branch of law, hence the name. It is those rules that govern directly the way in
which a dispute will be determined by the courts. E.g Contract law has rules about when an
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Document Summary

Seminar 2: elizabeth ellis, principles and practice of australian law (thomson reuters, 3rd ed, 2013) The idea of law as a separate discipline with its own values, rules, institutions and processes is referred to as the autonomy of law. It is one of the features that distinguish law in the western legal tradition, the others being centrality and pervasi(cid:448)e(cid:374)ess of la(cid:449) as a (cid:373)ea(cid:374)s of so(cid:272)ial orderi(cid:374)g a(cid:374)d the la(cid:449)"s (cid:373)oral authority/legitimacy. A(cid:272)(cid:272)ordi(cid:374)g to a positi(cid:448)ist (cid:272)o(cid:374)(cid:272)eptio(cid:374), la(cid:449) is si(cid:373)pl(cid:455) those rules (cid:862)posited(cid:863) (cid:271)(cid:455) a perso(cid:374) or (cid:271)od(cid:455) with authority to command. A law is a law provided it meets the formal criteria for its making regardless of its moral content. Legal positivism dominates western society although natural law can be found in sources of international law, particularly human rights. Natural law e. g thomas aquinas and hobbes who suggest that natural law is a law deriver fro(cid:373) a (cid:862)higher (cid:271)ei(cid:374)g(cid:863) separate to hu(cid:373)a(cid:374) la(cid:449).

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