Natural Law, Higher Principles, and Australian Positivism

Abstract

This article examines a few examples of the inherent nature of the ‘inverted natural law’ used by the courts and explores ways which lawyers and other observers can actually see and recognise that ‘inverted’ usage, so that, at the same time, they can try and direct the judiciary towards a natural law which is in accord with traditional morals and traditional virtues. The author relies on recent case law authorities, international treaty documents and other commentary to suggest that ‘Natural law’ principles at least, are prevalent in the Australian courts even if opinion makers or the courts themselves, try to deny this reality with the use of the liberal or enlightenment conception of ‘positivism’ in describing Australian jurisprudence.

Biographical Note

Richard Kouchoo is a Sydney based legal practitioner admitted at the Supreme Court of New South Wales, who has also been involved in various local Catholic initiatives.

Access Issue

Bibliography - Law

Athavle v State of New South Wales [2021] FCA 1075

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

National Federation of Independent Business v. Sebelius 567 U.S. 519 (2012)

Thiab v Western Sydney University [2022] NSWSC 760

Western Sydney University v Thiab [2023] NSWCA 57

Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

Bibliography - International Law

International Covenant on Civil and Political Rights (Office of the High Commissioner, United Nations Human Rights, 16 December 1966)

International Commission of Jurists, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (American International Commission of Jurists, 1985)

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