Philosophy.Com

a note on legal positivism

This article on Justice Michael Kirby is interesting because it suggests that the dominant model of interpretation of the law and the Constitution in Australia, has been legal positivism. So we can situate the historicist interpretation of Chief Justice Murray Gleeson as a countering of the dominance of legal positivism in Australia.

Referring to the 1999 Wakim case the article says:

"At issue in Wakim was a debate over how High Court judges should interpret the Constitution – a debate waged with equal intensity during the past decade in the US Supreme Court. The camps are split between the conservative "originalist" judges, who believe their role is to interpret the Constitution in the original spirit of the founding fathers of the 1890s, and the "evolutionary" judges, who believe it must also be interpreted in the light of contemporary social values. Kirby has said that the Constitution belongs to the 21st century, not the 19th century.

The originalist view is put by US Supreme Court judge Antonin Scalia: "It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change – to embed certain rights in such a manner that future generations cannot readily take them away."

It then introduces Tony Blackshield, Macquarie University emeritus law professor, who comments on this conflict of interpretive approaches in Australia. Blackshield, says that:

"The evolutionary view of constitutional interpretation is only one aspect of a broader approach to law that rejects the simplistic assumption that law exists in the form of objectively settled predetermined rules, such that every legal problem has a single right answer and the judge's task is essentially a mechanical one of deriving the correct solution from the predetermined rules.

"That tendency is associated with ideas of legalism and legal positivism that [have] been the dominant model of High Court adjudication, and [Herbert] Evatt, [Lionel] Murphy and Kirby have all been concerned to offer an alternative to that dominant model."

Blackshield says that the dominant model of legalism has been especially associated with Melbourne judges though Dyson Heydon, a Sydney judge, is currently our most extreme example of the mechanical approach.

Posted by Gary Sauer-Thompson at October 3, 2003 09:06 AM | TrackBack