76057 Judgment and the Rule of Law
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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 2017 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 70616 Australian Constitutional Law OR ((76006 Public International Law OR 70108 Public International Law) AND 70110 Introduction to Law))
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 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.
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 and the meaning, purpose and potential of the rule of law. |
| 4. | Communicate orally and in writing 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:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice. (1.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0) - Communication and Collaboration
Effective and appropriate communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately. (5.0)
Teaching and learning strategies
Strategy 1
Student preparation and self-directed learning
Students read and critically evaluate prescribed texts prior to class available in the readings folder via UTSOnline. Students’ preparatory reading is guided by a series of critical discussion questions available via UTSOnline. It is recommended that students read the questions prior to reading the prescribed texts. Students will prepare notes for class 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 and seminar participation form the foundation for all forms of assessment for this subject.
Strategy 2
Collaborative discussion in seminars and online
Students and the seminar leader in this subject form a learning community which supports and engages with each other online and in class. Students and the seminar leader respond to critical journal entries, which will be posted as part of the assessment online, and to student and seminar leader led class discussion. Students are required to actively lead and contribute to class discussion. It is an expectation that the materials have been read and notes responding to the questions have been prepared before class. Students volunteer to lead discussion with respect to particular articles and cases but it is an essential requirement that all students read and participate in all seminars. 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 in class and online. This is why a significant proportion of the assessment grade is allocated to online critical journal entries and class and online participation.
Strategy 3
Feedback
Students receive early and ongoing feedback from week 1 onwards. Students will receive feedback online from the seminar leader on their first critical journal entry which is due at the end of week 1. Feedback will be provided by the seminar leader by the end of week 2. Each student will receive at least five individual responses to their critical journal entry from the seminar leader over the course of the semester. 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, and class and online participation each week, provide 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, on their engagement with the materials online and in class and on their judgment analysis.
Subject delivery
This subject will be delivered in three-hour class seminars on prescribed dates, online learning (primarily through engagement with the materials through critical journal entries) and, in the final class, students will present a judgment which they have critically analysed.
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.
- Discussion of judgment and the rule of law with reference to any of the topics/readings discussed in previous weeks. Students' presentations of their judgment analysis.
Assessment
Assessment task 1: Class and Online Participation
| Intent: | The value placed on this assessment task emphasizes the importance of consistent and active class and 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 seminar and 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: 1.0, 3.0 and 5.0 |
| Weight: | 20% |
| Length: | 1000 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 half the assessment for this subject, provides a significant foundation for all learning and all other 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: 1.0, 3.0 and 5.0 |
| Weight: | 50% |
| Length: | 2400 words total - Each critical journal entry should be a maximum of 400 words. |
| Criteria: |
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Assessment task 3: Analysis of a judgment
| Intent: | To apply concepts with respect to judgment and/or the rule of law to analysis of a case selected by the student. |
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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: 1.0, 3.0 and 5.0 |
| Weight: | 30% |
| Criteria: |
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Required texts
The readings will be provided online each week
