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Vol 23 No 6 June/July 2018

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Cover of Drafting Commercial Agreements

Drafting Commercial Agreements

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Judicial Power, Democracy and Legal Positivism

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ISBN13: 9780754620617
ISBN: 0754620611
Published: March 2000
Publisher: Routledge
Format: Hardback
Price: £110.00

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In this text, an international group of legal theorists re-examine legal positivism as a prescriptive political theory and consider its implications for the constitutionally defined roles of legislature and courts. Issues are illustrated with developments in Australian constitutional law.

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Part 1 Re-orienting legal positivism: democratic aspects of ethical positivism; ethical positivism and the practical force of rules; ethical positivism and the liberalism of fear; feminist perspectives on ethical positivism; legal separatism and the concept of the person; positivism and difference; is legal positivism committed to intentionalism?; a perspective theory of law; legal positivism and the contingent autonomy of law.
Part 2 Assemblies versus courts in democratic theory and practice: the philosophical foundations of parliamentary sovereignty; legislation by assembly; defining judicial restraints; a patchwork quilt theory of constitutional interpretation; citizenship, race and adjudication; the vice of judicial activism; the role of law and the role of lawyers; judicial activism and the rule of law in Australia; judicial activism and judicial review in the high court of Australia.