By Dr Rachael Gray

Pages:  approx. 325

Price:  $125 (+ GST for Australian orders)
Publication: November 2008

Format:  hardback

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ISBN: 978-0-9804994-0-7

This book reviews the movements that have occurred in the High Court’s approach to constitutional issues during the Dixon, Mason and Gleeson eras using the legal theory perspectives of legalism, realism and pragmatism.

To date, the relevance of theoretical reasoning to Australian constitutional jurisprudence has received relatively little attention. Analysis of constitutional decisions has tended to focus on outcomes rather than method. The book provides a contemporary, comparative and analytical perspective on the manner in which theoretical perspectives can be used to understand and explain the movement of the High Court’s constitutional jurisprudence. The discussion is timely in view of the retirement of Chief Justice Gleeson in August 2008 which is likely to focus attention on the Gleeson Court's approach to constitutional issues and the Court’s contribution to Australian law.

Part I of the text analyses the central tenets of legalism, realism and pragmatism and examines the significance of these constructs to the approaches of the Dixon, Mason and Gleeson eras. Drawing upon recent writings from the United States in relation to legal pragmatism, the advantages and disadvantages of theorised and non-theorised approaches to judicial reasoning are examined. The author argues theorised approaches provide a more transparent account of judicial reasoning and make better precedents, and as such are preferable to a-theoretical approaches. Part II of the work analyses specific constitutional cases concerning judicial power which serve to illustrate the influences that various theoretical assumptions have had upon the approaches adopted by differently constituted High Courts. The work concludes by providing an overview of the Gleeson Court’s approach to judicial power and the approaches of individual members of the Gleeson Court. The author argues that, while the Dixon and Mason Courts adopted different theoretical approaches, they highlighted the importance of legal theory, for example, by making wide statements of legal principle. The author concludes that, in contrast, the Gleeson Court has adopted a largely a-theoretical approach, characterised by findings that are often limited to the facts and in which it is difficult to identify broad principles and philosophical assumptions underlying the reasoning process.

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