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Part III Themes, Ch.13 Legitimacy

Brendan Lim

From: The Oxford Handbook of the Australian Constitution

Edited By: Cheryl Saunders, Adrienne Stone

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 28 January 2023

This chapter charts the uneven progression since federation of popular sovereignty as a legitimating force in Australian constitutionalism. It describes how the sociological and moral facts which lie outside the constitution, but which shape our understanding of its legitimacy, can come to be incorporated within the constitution, and to shape our understanding of its law. The chapter begins with the particular conception of popular sovereignty that the Constitution introduced into the regime. This was a political rather than a juridical conception; a fact determining legitimacy rather than legality. But the chapter reveals that the boundary between legitimacy and legality is a porous one. In a wide variety of ways, conceptions of legitimacy influence standards of legality. The course of that influence is then traced through the twentieth century before the chapter returns to arguments presented by Sir Edmund Barton on the last day of the Australasian Federal Conventions in 1898.

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