Australian public law is a species of public law, in general. In order to properly understand the nature and role of Australian public law we need to understand the nature and role of public law as a general matter. Public law is the law which creates, empowers, regulates, and calls to account all those officials and institutions which comprise a modern state such as Australia. In making sense of the nature and role of public law, we need to understand the nature of those things which public law concerns – things such as the state, its officials and institutions, the exercise of state power, and the accountability of those officials and institutions for their actions. It is the purpose of this chapter to assist us in understanding these things.
Further, though, it turns out that the nature of these things – and, therefore, of public law more generally – is importantly determined by the nature of law itself. All legal systems are dependent for their very existence and ongoing viability upon the activities of certain kinds of human agent – lawmakers, administrators, and judges, for example – as well as the operations of certain kinds of social institutions – legislatures, government agencies, and courts, for example. Further, the viability of a legal system also demands that these officials and institutions (who, as I have just mentioned, collectively comprise the state) be governed by some set of the laws of that system – the set of laws we term public law. Consequently, understanding the nature and role of public law requires us to clarify our understanding of law, and legal systems more broadly. This is where we shall start in this chapter.
Individuals, societies, and social rules
Let's start with a basic human problematic. In an important sense, we are individuals with our own beliefs, desires, and values. We have our own conception of how our life should be lived, as well as a desire to be able to pursue and realise that life with minimal interference. At the same time, though, we are not alone in the world. We are members of societies comprising other individuals who have their own beliefs, desires, and values, and their own conception of the good life which they wish to freely pursue.