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Liberal Foundations of Australian Law - Coggle Diagram
Liberal Foundations of Australian Law
The Social Contract
A social contract is an unofficial agreement shared by everyone in a society in which they give up some freedom for security.
The philosopher Jean-Jacques Rousseau popularized the idea of the social contract in the 1700s, but it's just as applicable today. As members of a society, we agree to the social contract — we cooperate with each other and obey society's laws. We also give up some freedoms, because we want the protection society can offer. The founders of the United States believed the social contract made citizens powerful, giving them a collective voice in their government.
The core tenets of liberalism
Rational agency
Liberty
Equality
The rule of law
Division between public and private spheres
Rights
Utilitarianism
Individuality
Liberty
Positive
He or She was autonomous - able to make his or her own decisions and act upon them. To be truely autonomous, an individual must have a range of choices available to them, from which they can make rational choices in favour of their self interest
Freedom to
Negative
Free from Constraint (eg. in providing limits on the role of government, and the extent to which government can intrude in the lives of its citizens.
Freefrom from
JS Mills "harm principle"
Mills proposed that the only basis on which individual liberty could be curtailed - the only legitimate justification for the state to intrude on the individual's freedom of action - was to prevent harm to others. An individual was free to act in any way they liked, as long as they were not harming someone else in doing so.
Novick's theory of the "nightwatchman state"
Novick advocated for what he called a "nightwatchman state" - a state whose powers which limited solely to the protection of citizens against violence, theft and fraud. Protection for a fee which we now understand to be police and the courts etc - protecting and punishing anyone who interfered with these rights.
Basic principle of Utilitarianism & how it is reflected in Law
Theory of morality, which advocates actions that foster happiness or pleasure opposes actions that causes unhappiness or harm. When directed toward making social, economic, or political decisions, a utilitarian philosophy would aim for the betterment of society as a whole.
Should we prioritise some liberal elements over others ? Is there a conflict between individual freedom and equality, should one of these values prevail ?
Liberal Framework - can it provide a definitive solution to contested legal issues such as assisted dying ?
Example - Arguments about the right of an individual to kill themselves as we should be free and autonomous while the counter is that although they are the only victim, it impacts others such as family and friends.
The words liberty and liberal come from the latin meaning "free". The slogan of the French Revolution was "liberte, fraternite, and egalite" which means freedom, brotherhood and equality
Equality - The egalitarianism of law "forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread. Of course the rich don't need to do those things, so equality is entirely illusory.
Rights
Deontological style (being bound or under duty)
an intrinsic part of their existence as a human being
Not dependent on the existence of laws supporting or enforcing those rights - ie pre - legal
Teleological style (end purpose)
Created by law
Granted for the purpose of bringing about a desirable goal
Law operates to constrain government actions in the same way that it applies to individuals. "Lawmakers should not be law breakers"