Concepts of Law and Custom
Dr w/ a nod of thanks to Dr Michael Sevel
COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING
Copyright By PowCoder代写 加微信 powcoder
This material has been reproduced and communicated to you by or on behalf of the University of Sydney
pursuant to Part VB of the Copyright Act 1968 (the
The material in this communication may be subject
to copyright under the Act. Any further reproduction or communication of this material by you may be the subject of copyright protection under the Act.
Do not remove this notice.
Food for thought…
• Law vs. Non-Law
• RuleofLawvs.RulebyLaw
• RuleofLawvs.RuleofGoodLaw • Goodinwhatsense?
• RuleofLaw:Law,Society,Culture
Padlet Exercise*
›What is law?
›What is custom?
* see student results on Canvas
Early British Custom and Law
› ‘One feature of ‘custom’ which distinguishes it from the later common law tradition is its variability from one people to another and from one area to another… It follows… [that] … before the Normans, … any search for law and customs of England and before the centralisation of the nation itself are bound to fail. To the extent that common features may be discerned in the customs of different people and places, the unifying force is not law but the general social and moral assumptions of the age, or even the natural instances of [humankind] at particular stages of development; the parallels often transcended national and geographic boundaries’
– JH Baker, An Introduction to English Legal History (Butterworths, 2nd ed, 1979) 1–2 (emphasis added).
Great jurisprudential schools…
Competing jurisprudential schools › Positivism v Natural Law Theory*
› Natural Law Theory
– Traditional version (St Thomas Aquinas)
– Fidelity version (eg )
– Interpretative version of natural law (eg (
› Positivism
– HLA Hart
*As framed by ,
Arguing About Law: An Introduction to Legal Philosophy, 1996
GETTING HOLD OF THE IDEA
• Rule of Law as the “specific excellence” of a legal system
• A well-functioning system:
• Effective Institutions
• Separation of powers
• Strong, independent Judiciary
• Protection of human rights? Democracy?
RULE OF LAW: PLATO & ARISTOTLE
RULE OF LAW: PLATO & ARISTOTLE
“Therefore he who asks law to rule is asking God and intelligence and no others to rule; while he who asks for the rule of a human being is importing a wild beast too; for desire is like a wild beast, and anger perverts rulers and the very best of men. Hence law is intelligence without appetite.”
— Aristotle, Politics
“It is more proper that law should govern than any one of
— Aristotle, Politics
the citizens.”
RULE OF LAW: JOHN LOCKE (1632-1704)
ALEXIS de TOCQUEVILLE (1805-1859)
ALEXIS de TOCQUEVILLE (1805-1859)
“[People] who have made the laws their special study have drawn from their work the habits of order, a certain taste for formalities, a sort of instinctive love for the regular connection of ideas, which naturally render them strongly opposed to the revolutionary spirit and unreflective passions of democracy…
…lawyers are attached to public order beyond every other consideration, and the best security of public order is authority…
ALEXIS de TOCQUEVILLE (1805-1859)
…The courts of justice are the visible organs by which the legal profession is enabled to control the democracy…The judge is a lawyer who…derives an additional love of stability from the inalienability of his own functions.”
“If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.”
—- Democracy in America (1840)
RULE OF LAW: A. V. DICEY (1835-1922)
RULE OF LAW: A. V. DICEY (1835-1922)
Three Principles (1885):
1. LegalSupremacy:nopunishmentwithoutbreachoflaw
2. Legal Equality: every person is subject to the law within the jurisdiction of ordinary courts
3. JudicialEnforcementofRights:“thegeneralprinciplesof the constitution are with us the result of judicial decisions determining the rights of private persons in particular cases in the courts.”
RULE OF LAW: LON FULLER (1902-1978)
RULE OF LAW: LON FULLER (1902-1978)
The “Inner Morality of Law”:
1. General
3. Prospective
5. Consistent
6. Able to be Obeyed
8. Congruence between official action & stated rules
Short Quiz
› Interactive Quiz
› https://www.menti.com/rmsvsvk64n or via
THE RULE OF LAW TODAY
• “Law and Development” movement (USA), 1960s- 70s
• Since late 80s, ubiquitous concept in international political discourse
• “Exporting”/”Importing” the rule of law (?)
• Rule of Law Index (WJP)
• Various traditions combined
• Ubiquitous in domestic politics in many countries
THE RULE OF LAW TODAY
The Rule of Law in Australia
“…[The Constitution is an] instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.”
—- , Australian Communist Party v Commonwealth (“Communist Party Case”) [1951] HCA 5 [35].
THE RULE OF LAW TODAY
Why does the Rule of Law matter? Your future role as a lawyer
程序代写 CS代考 加微信: powcoder QQ: 1823890830 Email: powcoder@163.com