Academic journal article Melbourne University Law Review

Concern about Judicial Method

Academic journal article Melbourne University Law Review

Concern about Judicial Method

Article excerpt

[Sir Owen Dixon's judicial method is misunderstood if it is taken to deny any role for judges in changing the common law. But it did espouse gradual rather than abrupt change, and it downplayed the impact of values and policy considerations on the choices left open by competing legal arguments. Social and other changes in the external environment since Sir Owen delivered his famous address 'Concerning Judicial Method' at Yale University in 1955 may go some of the way towards explaining why both aspects of this approach came under pressure. In any event, the High Court firm the mid-1980s onwards both embraced more extensive change and more openly discussed and balanced competing policy considerations, of which the maintenance of certainty and stability was but one. Yet this more progressive and more transparent approach brought its own assortment of problems, including intense criticism from those who disagreed with its methodology and its outcomes--especially the latter. This article looks at 'judicial activism' in the context of the imperatives of the judicial process, and finds the phrase wanting as a useful analytical tool The article also begins to explore a number of 'why' questions: why is there such strong disagreement; why do some judges favour one approach and some another; and can there be a reconciliation?]

CONTENTS

I    Introduzione
II   'Concerning Judicial Method': Dixon at His Enigmatic Best
III  No Desiccated Legalist
IV   The 'Activism' Tag: Unpacking the Baggage
V    From Legalism to Pragmatism and Back
VI   Harbingers of Change
VII  The Challenge of Judicial Choice
VIII Why Do We Disagree?
IX   Common Ground?
X    A Dilemma for Legal Education
XI   Accountability
XII  Are We Getting Any Better at This?

1 INTRODUZIONE

Ladies and gentlemen, this is my most intimidating assignment--ever! I have played soccer at the Sydney Cricket Ground in front of 50 000 people (admittedly as part of a celebrated undergraduate student prank); (1) I have become a father again in my 50s--twice (courting Lady Bracknell's famous observation about Mr Worthing's loss of two parents); (2) and in September 2005 endeavoured to persuade the law student body at the Australian National University that they should be deliriously happy to pay a 25 per cent increase in their fees. But my task here--a task, moreover, given to a one-time scholar now totally consumed by the neurone-devouring duties of being a Dean--is to say something new and fresh about an age-old and vastly explored subject, before four of the world's leading exponents of the judicial process; (3) four fellow paper-givers who are not only renowned scholars in their own right, but who live and breathe the issues surrounding the contentious subject of judicial activism every day of their working lives.

What to do in these circumstances? I suppose that, as I am not quite yet in my 60s (unlike the sexagenarian quartet), I could go for the brashness or cheekiness of youth. Or, because I know what they think (they have all written prolifically on the subject), (4) I could go for something different, something really out of left field. However, I have decided to take a much more modest course. I would like to wrestle a little with why there are so many different perspectives on this subject; whether one perspective is better than another, or can lay a good claim to being 'right', and how one might go about answering that question; whether one can narrow the points of contention by identifying a range of propositions that might be said to command common consent, and, by implication, a further set of propositions that must remain simply as different world views; and how one might define what is 'progress' in the elaboration of this fascinating topic.

That there are different perspectives on judicial method is not in doubt, nor is it surprising. We all look at the world in different ways. Consider these two descriptions of one of the world's greatest concentrations of people (and I choose this example in deference to our American visitors). …

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