Humpty Dumpty Rules or the Rule of Law: Legal Theory and the Adjudication of National Security
Australian Journal of Legal Philosophy, Forthcoming
42 Pages Posted: 26 Jul 2002
This paper deals with the recent trend among judges in common law jurisdictions to retreat from their advances in judicial review of the administration of the last forty or so years. This retreat occurs when the judges are confronted by cases in which they are asked to review executive decisions about national security. And it involves a revival of the majority judgments of the House of Lords in the infamous wartime case of Liversidge v Anderson by the very judges who had done most in recent years to move away form the formalistic doctrine of the separation of powers presupposed by the majority in Liversidge. The paper situates this trend in a discussion of the rule of law and legal theory. The thesis is that one of the factors that makes possible the retreat is the survival of the theory of law and the rule of law, democratic legal positivism, in which the formal doctrine of the separation of powers is nested.
Keywords: rule of law, terrorism, national security, judicial review, legal positivism
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