Hon Justice Michael Kirby AC CMG


High Court of Australia




Delivered 20 November 2003


University of Exeter, UK




Today�s judges are released from the blinkers of their predecessors. We can see how unrealistic the dogma of �strict and complete legalism� in the judicial method really was. The more intelligent of contemporary defenders of that dogma accept that occasional advances in the common law were legitimate, so long as such changes grew strictly out of past precedents; were derived solely by a vague and self-fulfilling methodology of "strict logic and high technique" and ignored policy, especially social, policy inherent in considering alternative decisions.


In fact, the methodology of our judges has not been fashioned by logic alone; but by experience, as Justice Holmes in the United States famously observed. The common law is a product of judgment and opinion over 800 years � it reflects countless judicial attempts to produce outcomes that conform to rules but secure results that appear lawful, just and appropriate to the judges in the conditions in which the decisions are made. We should not be ashamed of this extraordinary creation. On the contrary, it is a marvellous tale: combining continuity and flexibility, predicability and change. It would be absurd to attempt to stamp on this semi-chaotic, intermittent creation, a dogma of "strict and complete legalism" fashioned by pure logic and so-called high technique. Abstract logic and reason alone cannot decide new cases.


Three institutional features of the common law particularly reinforce the elements of judicial creativity. These features help to explain the tendency of the common law to grow and develop in a pragmatic rather than a strictly logical way.


The first relates to the personal characteristics of the senior judiciary. Almost without exception, these judges came from a comparatively small group of lawyers. Before judicial appointment, they were normally socialised in a tiny cohesive group of barristers. They generally shared a common socio-economic background. At the Bar they were typically organised along hierarchical lines. They exhibited a high degree of homogeneity of outlook and attitude about legal outcomes. Self-confidence and resolute action in terms of shared values were the pragmatic hallmarks of the judges of our tradition.


The second is the judicial obligation to give reasons. That obligation discourages a naked usurpation of power by the judges. However, the duty to deliver and publish reasons compels a judge to engage in a kind of dialogue between the past and present. Such a dialogue will often reveal incongruities between the rules in the books and the unique circumstances of the particular case. Once judges in the 20th century were freed from the straight-jacket of excessive legalism, the dialogue about their work could no longer be informed by a sterile pretence that solutions to all legal problems were to be found only in the language or logic of a past decision, Act of Parliament or written constitution.


Thirdly, the right of judges in collegiate courts to dissent, and to express a differing opinion is another feature of the common law system that stimulates judicial creativity. The very diversity of judicial opinions about the outcome of a particular case is a constant reminder of the indeterminate nature of much judicial decision-making. Everyone knows that, in the judiciary, today�s dissent occasionally becomes tomorrow�s orthodoxy.


In practical terms, the use of public policy in our law illustrates the limits of strict logic and the scope for judicial creativity that these factors reinforce. But what is creativity and what is restraint? That question arose recently in the House of Lords and the High Court of Australia in cases concerning claims by parents of children born after a failed sterilisation procedure, who sued to recover the economic costs of raising their unexpected child.


In the Australian case both parties argued their respective propositions of public policy at length. The surgeon and those opposing the recovery of damages by the parents cited Biblical texts, the traditional common law respect for human life once born, the supposed application of restrictions the law has placed on recovery of pure economic loss, fear of the commodification of human life, and even the provisions of relevant international human rights treaties. On the other hand, the parents, and their supporters, suing to recover the unexpected costs they had been forced to incur, relied on judicial adherence to the general principles of negligence, the burden of persuasion which, they asserted, was carried by those who sought a departure from such principles, the general refusal of the common law to accept zones of immunity for professional people, and the need to redress the particular burden which such an immunity would impose on women and mothers.


The Australian decision was notable for the candid discussion, in each of the six opinions, of the issues of public and legal policy which the case was seen as presenting. None of the judges in the case � not one � pretended that the path to decision could be found solely by the application of logic and past legal authority. None approached his conclusion only by a technique of strict logic.


But how did contemporary judges in Australia, Britain and elsewhere come to invite debate about, and to participate in, candid discussion of issues of legal and public policy that may influence their decisions in particular cases? One reason for the change in the judicial method is the continuing impact that a school of legal realists has had on judicial thinking in the common law world since the early 20th century. Discoveries about the psychology of decision-making and analysis of the inherent obscurities of language as the vehicle for legal ideas, have also made contemporary judges much more understanding of the choices that they face in resolving the legal disputes that come before them.


These developments, and the greater transparency in all governmental institutions, helped to break the spell of excessive legalism. Persistence in the "noble lie" that judges only apply pre-existing law began to give way to candid recognition that judges make new law. So in 1997, Lord Bingham, the senior Law Lord of Britain, could explain that the notion that judges merely declare a pre-existing law, deriving it by strict logic from past precedent, "was inconsistent with the subjective experience of judges, particularly appellate judges, of the role they fulfilled day by day". "They know," he declared, "and the higher the court the more right they are, that decisions involve issues of policy.� What follows from this? Clearly it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced. Indeed, without identifying the issues of legal principle and legal policy at stake, there is a real risk that the judge may stumble along from case to case in a confusion of ideas derived from a mechanical application of past authority without appropriate regard to the dynamics of the contemporary circumstances in which the rules of law must operate. Better that judges should tell truly it as it is. This pragmatic and realistic approach to the common law�s elaboration now operates in tandem with contemporary approaches to the interpretation of Acts of Parliament. Indeed, most of the work of today�s judges involves giving meaning to the language of legislation. Although this gives rise to challenges that are somewhat different from the controversies that exist over the contents of the common law, the rules of each system � statute and judge-made law � are expressed in language often susceptible to difference of opinion. Perhaps this is true in any activity that must take place through the medium of words. With the recognition of the choices that judges face in the elaboration of judge-made common law has come a clearer recognition of the scope for choice that lies in the interpretation of the language of parliament.


This realism has led to a principle of purposive construction of legislation. This acknowledges the active role of the judge in ascertaining what the purpose or policy of the legislation is, in order to help give effect to it. From this active mediation it follows that there is scope for judicial interpretation of legislation in a way that avoids unjustifiable discrimination, upholds human rights but also still gives effect to the language in question. A good illustration is Fitzpatrick v Sterling Housing Association Limited. There, the House of Lords, by majority, held that a same-sex partner was a member of the family of the deceased for the purposes of the Rents Act. This entailed an interpretation of parliament's language entitling the partner to succeed to his deceased partner�s entitlements. Twenty years earlier a judge would have given a different meaning to �family�. The case demonstrates the role that judges play in interpreting legislation justly, so as to avoid discrimination contrary to contemporary perceptions of human dignity and equality before the law. This is a proper and beneficial role.


Similar considerations affect the elucidation of written constitutions. Indeed, the function of constitutional interpretation is inescapably political. Sir Owen Dixon would not have denied it. Even in the days of Dixon�s dominance, the High Court of Australia was not reluctant to reach important conclusions based upon implications drawn by the judges from the structure and purpose of the Constitution, although not spelt out in clear terms in the text. In one of the finest decisions of the Australian Court, given in 1951, it invalidated a federal law that banned the Communist Party. In explaining his conclusion that the law was constitutionally invalid, Dixon relied on a broad political and philosophical notion of the rule of law. He treated this as an assumption implied in the Constitution. That assumption helped to determine the outer boundary of federal legislative power which had therefore been exceeded.


In the United States, with the oldest written Constitution in the world, there are strong proponents of formalism, literalism and interpretation according to the original intent of the Founders who wrote the Constitution. No judge of that Court has been more vigorous in defending that approach than Justice Antonin Scalia. However, for the moment, his view appears to have been eclipsed by other more realistic opinions. In Lawrence v Texas, decided in June 2003, the United States Court, by majority, struck down the provisions of a Texan law criminalising adult, consensual, private homosexual conduct as contrary to the Equal Protection and Due Process clauses of the United States Constitution. The decision in Lawrence demonstrates that an approach to the interpretation of a written constitution, informed by a simplistic catchcry about legalism with nothing more than judicial casebooks and a dictionary to help, and with no concept of the way it is intended to operate in the nation it serves is a contemptible idea. Despite the expedient rhetoric about strict legalism, this is not the way the Australian Constitution or most other such documents have been interpreted in countries of the common law tradition in recent times. Fortunately, in Britain too, the leading judges have rejected the "straight-jacket of legal logic".


Despite this, legal reasoning, unlike political activism, must always remain anchored in legal authority. Consistency and the avoidance of purely personal idiosyncrasies require that judicial work commence with any relevant legal texts and proceed with the assistance of any applicable legal history. Yet in important constitutional cases, and especially where novel issues or ambiguous texts are presented for decision, such sources are insufficient. They do not take the mind of the decision-maker far enough along the journey to decision. In short, in judicial work, text is primary. But it is rarely enough.


In finding the applicable legal rule, in choosing the preferable meaning of a contested Act of Parliament and, above all, in construing the words of a constitutional document, judges have choices. One of the greatest advances in my legal lifetime has been the growing realisation and acknowledgment that this is so. It has led to a generation of judges who are more candid about the choices they make. This has truly been a great legal Reformation. The change that it wrought was especially notable in Australia where the doctrine of "strict and complete legalism" had previously treated the existence of such choices as legal heresy.


But now a Counter-Reformation has begun in the law and in society. It has attracted some powerful exponents. It cannot be ignored. It affects every country of our legal tradition.


(*) The full text with references will be published in 2004 by the Hamlyn Trust, England.