Abstract:
Governments often act badly. For instance, when they create bad laws that fail to realise what is in the best interests of the citizens for whom they claim responsibility. Bad laws have a range of effects on political institutions and those subject to the law: they undermine governmental legitimacy, they are not as authoritative as they could be, and they change the sorts of reasons that people may have to conform to that law. Given this, this thesis aims to provide an evaluative criteria for the production of valid laws and an analysis of the circumstances of citizens when these criteria are not met. The thesis proceeds in three parts. The first part concerns the evaluative criteria, the political and jurisprudential theory of Jürgen Habermas is developed into an account of political legitimacy and an evaluative framework for laws. This conceptual work provides not only a means to evaluate when a law is valid,—and thus provides reasons to conform. The evaluative criteria also provide a method of deducting the implications for state legitimacy and conformity that are a result of invalid laws. It is exploring these implications that will be the focus of the rest of the thesis. The second part introduces a core example which demonstrates the implications of the evaluative criteria developed in part one. The example explores three key points in the development of the civil rights of Aboriginal and Torres Strait Islanders by the Commonwealth Government of Australia. The first two points concerns the extension of the franchise, and social security, to Indigenous Australians. The third point—the core example of the thesis – is the process of legislation on the issue of native title, resulting in the Native Title Act (1992). I ultimately conclude that the Native Title Act is an invalid law according to the evaluative criteria. These three points demonstrate the complexity of democratic legitimacy and law-making, and they provide the basis for analysis in part three The final part of the thesis explores in more detail the consequences of bad laws for the reasons to obey the law of individuals and the legitimacy of a political institution. And an account of how bad laws and burdened legitimacy provide reasons for acts of civil disobedience is also developed in this part.