Academic journal article Melbourne University Law Review

A Blast from the Past: The Resurgence of Legal Formalism

Academic journal article Melbourne University Law Review

A Blast from the Past: The Resurgence of Legal Formalism

Article excerpt

[This article is a contribution to the dialogue between Justice Michael Kirby and John Gava on the nature of legal reasoning. In essence, Gava argues that Justice Kirby is an unelected judge who should stick to applying apolitical legal principles. Prospective and present members of the High Court are also calling for fidelity to principle and precedent. These traditionalists, spearheading a resurgence of legal formalism, declare that law is a self-regulating mechanism with an autonomous existence. In contrast, the author argues that black-letter analysis, with its fixation on legal principles, obscures the extra-legal forces that shape the judicial process. An important aspect of this article is the dissection of Sir Owen Dixon's jurisprudence. Gava and his fellow conservatives' critique of judicial activism is premised upon the denial of the interdependence of politics and law. Justice Kirby is simply characterised as a deleterious force on the body politic. The author argues that this ignores the inherent politics of formalism that exerts a conservative influence on not only the discharging of the judicial function but also the governing of society. Gava's jurisprudence echoes Bismarck supporting the democratic claims of ordinary people whilst in practice bolstering the structure of power that ensured the containment of popular control over policy and politics. Australia is a corporate democracy controlled by an alliance of business groups and an executive that uses state power to contain popular pressure. The author contends that the judiciary is a branch of the state and is intrinsically political. Its judgments facilitate the reproduction of social and power relations, and put a stamp on the conduct of social affairs. The author argues that Justice Kirby is a modern liberal intent on making capitalist democracy live up to its promise of social justice. This article avers that formalism places obstacles in the path of social justice. It is a legal philosophy that reinforces the ideological domination of the power elite.]


I   Introduction
II  Everything Old is New Again
III Dixon's Contractual Universe Moves
IV  Dixon's Proactive Constitutional Jurisprudence
V   The Perils of Change
VI  Conclusion


This article engages with the dialogue between Justice Michael Kirby (1) and John Gava (2) and initiated in the pages of this journal. Their discussion has raised an issue of deep fascination for legal scholars. What has emerged from their exchange is a competing conceptual framework of the underlying dynamic of the judicial process. In essence, Gava is an advocate of traditional jurisprudence. The Blackstonian declaratory theory that judges do not make the common law, but merely declare and apply it, finds an echo in Gava's juristic logic. Gava is obviously not an unbridled supporter of Blackstone's logic, but his neo-formalist approach bears an uncanny resemblance to that of his illustrious predecessor. Justice Kirby, on the other hand, eschewed formalism as early as his 1983 Boyer Lectures. (3) He has spent the intervening years refining an alternative jurisprudential model, which may well be his lasting legacy. (4)

Justice Kirby is obviously not the only jurist opposed to formalism. In recent years, a number of judges, including Justice Michael McHugh, (5) Sir Anthony Mason (6) and Justice Ronald Sackville of the Federal Court (7) have explored the issue of discarding settled law if it conflicts with the needs of contemporary society and community values. But regional revisionism is in the air. Among those spearheading the revisionist counterattack are figures at the apex of Australia's legal system. Chief Justice Murray Gleeson, in a restrained but unmistakable manner, speaks of the need to exhibit fidelity to legal discipline and warns of the dangers of judicial creativity. (8) Justice Kenneth Hayne forthrightly expresses his support for traditional jurisprudence with its bedrock in rules and precedent. …

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