Look at Selected Readings 3.1 (Irving) and 3.2 (Dixon). Dixon’s argument is difficult to follow – but as you read it, keep asking yourself: ‘What does Dixon think is the basic norm of the legal system, and what evidence does he have for it?’
1. What is Australia’s grundnorm?
2. A question about positivism generally. Responding to nineteenth-century positivism, Sir Leslie Stephen wrote: ‘If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal’. He added (to our relief) ‘but legislators must go mad before they could pass such a law, and subjects be idiotic before they submitted to it’: See AV Dicey, The Law of the Constitution (8th ed, 1938) 79. Even in the nineteenth century, Stephen had biblical suggestions of such legislation (Exodus 1.15-16, Matthew 2.16). But, in that optimistic time, few if any foresaw the twentieth century – with its legislated programs for the extermination of whole races, religious groups and tribes; or state-imposed restrictions on the number of babies people could legally have. An equivalent to the ‘blue-eyed baby law’ is not beyond the contemplation of the modern mind. Say, this year, a madness overcomes the members of the Legislature of Newgarth, and they enact a ‘blue-eyed baby law’. It meets all of the usual conditions of enactment and constitutional validity. ’ This is technically law but it is contrary to the rule of law. Produce an argument against its implementation.
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