8 THE AUSTRALIAN BAR GAZETTE

a learned profession and well educated in the eyes requirements for admission to practise as an independent of most people whom they served. The levels of practitioner so as to meet the demands of the future. education expected in the community at large are It is certain that no effective steps can be taken to becoming such, however, that if the lawyers do not provide adequate “practical” training in legal techniques, raise their general standards, to their unpopularity whether in support of or in substitution for the articled which springs from natural misunderstanding, they clerk’s system, without organized activity by the practis­ will add a reputation for being narrow and rather ing profession. And that is so whether the professional ignorant technicians incapable of understanding the bodies set up professional “practice schools”, or the real nature of their client’s problems. If that day Universities or other established educational institutions comes, and there are many signs of it already, the set out to do so, for such institutions could not succeed profession will fail to perform its proper functions. in the task without very great assistance from the pro­ 3. While there are many tasks to be performed in a fession. law office which do not require higher education, It is relevant to note that in the United States of either in the law or generally, it is dangerous to America, although many influences have been at work assume that there are large classes of law practice during the last 100 years or so, perhaps the most im­ which do not demand men with such education in portant influence for the improvement of legal education charge of them. It is probably true that the large generally has come from the American Bar Association. law office needs men with technical training, but That Association and the professional organizations not necessarily more, in many subordinate positions. across the whole country are continually pressing for There ought to be courses available for the training improvements in the standards of legal education. It of such men, with some certificate or diploma of is not doubted there that the lawyer, to serve the com­ qualification, as law clerks or as managing clerks munity properly, must be a well educated man as well no doubt. It does not follow that the country or as a well trained one technically. For many years the suburban practitioner in a small office needs no American Bar Association has held to the principle more training and education than that. The com­ expressed by Elihu Root in 1916: plexities of modern government, whether at the “No-one can help sympathizing with the idea that Federal, State, or local level; the intricacies of busi­ every ambitious young American should have an ness, of industrial and agricultural activities; the opportunity to win fame and fortune. But that snares and traps of the taxation system; the new should not be the controlling consideration here. ways of preserving and transmitting claims to the The controlling consideration should be the public good things of life once called “property”; these service, and the right to win the rewards of the are increasing all the time and concern more and profession should be conditioned upon fitness to more people whether in the country or the city. The render the public service. No incompetent engineer Master Solicitor of the future, who presumes to is entitled to construct a public work; no untrained make himself ultimately responsible for advising lawyer is entitled to impair the efficiency of the highly qualified people in other walks of life how great and costly machinery which the people of to manage their affairs in the legal jungle, will need the country provide, not for the benefit of lawyers to be much more than a competent technician with but for the administration of the law.” apprentice training behind him. It is probable that only the profession through its David P. Derham* own organizations can move effectively to reform the ♦Dean of the Faculty of Law in the Monash University, Victoria.

Sir Owen Dixon The End of a Period in Australian Legal History

ii. judgment, first of professional opinion, and then of his­ Sir Owen Dixon’s identification of the judicial process tory, is not whether he was a master in one or more with the “strict logic and high technique” of the common particular fields—constitutional law, industrial regula­ law is demonstrated by the uniformity of the rational tion, torts, or statutory interpretation—but the greater processes found in his judgments. Cases of dramatic issue of the validity and social utility of his legal social and political importance like the Banking Case( 1) technique, and with these, the validity of the assumptions and the Communist Party Case(2) merely highlight a upon which his reasoning is based. If his thesis is pattern found without variation in judgments delivered wrong, he errs with a host whose contributions to the over a period of thirty-six years in every field of Aus­ arts of social life are a matter of clear record from the tralian law. For this reason, the particular content, time of Aristotle to the present day. Hence it is not whether legal or factual, of any case in which he de­ surprising to find that Sir Owen himself, in his judg­ livered judgment becomes of subordinate importance. ments and other public materials, shows a consistent The question which he himself chose to submit to the awareness of opposed critical positions, and, in fact, avails himself of every proper opportunity to challenge (1) (1948) 76 C.L.R. 1. (2) (1950) 83 C.L.R. 1. them. As his argument in reply has the same logical THE AUSTRALIAN BAR GAZETTE 9 completeness as his main thesis, it is convenient to and high technique”, developed over the centuries in a discuss first some theories which reject the use of a case law system, is accepted as a fact, demonstrable from judicial technique based on logic, and then to set out history, and in particular from the 19th century English the nature of the argument in reply as the writer be­ law, and from the survival of the technique in various lieves it to be disclosed in Sir Owen’s public materials. parts of the world in the face of competition from the The theories which reject the use of a judicial tech­ civil law. Sir Owen admits however, that this technique nique based upon logic may, for present purposes, be is not pursued as strictly as in the 19th century, and treated as falling into two groups, linked together under that both its reality and its social utility have been the label of the realist approach, although this term questioned in recent times for a variety of reasons, brings together some widely divergent views of differing which include changes in general philosophical attitudes, intellectual quality. The first group denies the existence procedural changes, the attraction of the Benthamite of any valid legal technique, and in this way eliminates, view that new legal principles should be developed by on the surface at least, the problem of a value judgment direct legislation and not by judges, and an undue em­ upon the social utility of a legal technique based upon phasis given to the study of constitutional cases, some­ logic. The second group assumes that there is an exist­ times accompanied by a failure to distinguish between ing stock of legal principles, not necessarily incoherent, the differing legal bases of the federal constitutions of which can be freely augmented by the judge under the the United States and of Australia. pressure of social need, and that the judicial process It is then asserted that, from the nature of the consists either in selecting a suitable principle or in common law systems, courts of ultimate resort without formulating a new one, in accordance with the demands restriction upon subject-matter “in fact proceed upon of justice and policy in a changing social environment. the assumption that the law provides a body of doctrine The possibility of a legal science of a logical nature is which governs the decision of a given case”(4). Al­ not denied, but its use is rejected in a value judgment though due allowance must be made for individual vari­ upon the respective social merits of alternative tech­ ations both in technique and in capacity, a common law niques. judge does not, generally speaking, claim a freedom of Science and art do not flourish without constant choice, but seeks to apply an external standard “found critical review, whether constructive or nihilistic. Specu­ in a body of positive knowledge, which he regards him­ lation of the first kind, in its more sophisticated forms, self as having acquired”(5). This is assumed at every is merely a reflection of the impact of newer psycho­ point in forensic argument, and in the expert analysis logical theory upon 18th and 19th century rationalistic and criticism to which the working of the judicial mind thought in all fields, and merits attention in this discus­ is openly exposed. As Sir Owen points out, the realists sion only in relation to Sir Owen’s comprehensive philos­ may attack the validity of this assumption, but he cannot ophy. Theories of the second kind, however, formulate deny its existence without exposing himself to the charge a pragmatic approach to the judicial process, which is of unreality, and at most he can condemn the technique frequently found in the jurisprudence of civil law juris­ as a “concept juggling survival, as a judicial method dictions, is favourably regarded by a substantial body of which responds insufficiently or perhaps not at all to American academic thought and, on occasion, by some the actual or supposed demands of an ever-changing American judges, and cannot be ignored in any system­ social order”(6). This being so, the two groups of atic discussion of 20th century British case law. Its realist theories referred to above can be treated together social utility is, however, difficult to assess in light of as asserting at most the superior social utility of a the fact that close examination of the authorities suggest judicial process which permits the judge, in a subjective that its actual influence upon established principles is view of the demands of justice and policy, to select a not commensurate with its rhetorical appeal, and for suitable principle as the ground of his decision, and to this reason Sir Owen’s attitude to it in the formulative abandon a long-accepted rule when this appears neces­ period of the Australian legal system merits careful sary. attention. His thought is remarkable for its complete­ The problem under discussion, in one form or an­ ness and coherence, and rests upon an appraisal of the other, has troubled the minds of philosophers and principles applicable to law in its relation to logic and lawyers from the time of Aristotle, and Sir Owen to human conduct in a given historical environment. In answers it with the simple argument, traditionally used particular, the assumptions upon which his reasoning by common lawyers since the 16th century, that such a rests are set out with a clearness and a precision, which, process necessarily involves the destruction of all settled in the opinion of the writer, have never been sur­ legal doctrine, and defeats the ends of justice. This re­ passed. For this reason the remainder of this note is futation, however, takes on an added importance in the written with the hesitation proper to the summary of an contemporary Australian legal scene, when taken in con­ integrated series of intellectual positions consistently junction with Sir Owen’s own disciplined resort, whether maintained by a powerful mind at all times explicitly for purposes of legal innovation or otherwise, to an aware of the critical scrutiny to which the exercise of “enlightened application of reasoning traditionally re­ the judicial function is constantly subjected, and dis­ spected in the courts”. As he insists, this reasoning is cussion is confined as far as possible to Sir Owen’s own logical in the strict sense, when properly applied, and exposition in the Howland Oration(3). does not go beyond “the extension of accepted principles The assumption that the common law rested, at least to new cases”, the deduction of “new conclusions” from until the Judicature Acts in England, upon a “strict logic (4) 29 A.L.J., at p. 470. (6) 29 A.L.J., at p. 471. (3) 29 A.L.J. 468. (5) 29 A.L.J., at p. 471. 10 THE AUSTRALIAN BAR GAZETTE

“the more fundamental of settled legal principles”, and, destructive of economic and political stability. In £ddi- on occasion, the reformulation of principle in light of tion, they have been fully aware, particularly in the the fact that a legal category, by its nature, “is not closed 20th century, that an uncodified common law system against unforeseen instances in which reason might be never achieves complete logical coherence, that principles subsumed thereunder”(7). In an exercise in the field of doubtful validity win temporary acceptance, and that of promissory estoppel which is of great interest in there are always areas of uncertainty and conflict. With light of its treatment in the modern English and this there has been an awareness that, even in the tradi­ American law, Sir Owen himself demonstrates at the tional fields, the establishment of authoritative principle end of his Howland Oration that the creative power of is still a primary task, which in point of technique out­ this strict technique is in effect limited only by policy weighs the creative process. For this reason, appellate considerations arising largely from previous judicial ex­ judgments, both in the High Court and the State Full perience. As in his judicial pronouncements^), his use Courts, generally contain a careful formulation and as­ of the strict common law technique in the exercise is sessment of conflicting principles, made in a way which characterized by the absence of the elements of fiction, is both pleasing and instructive to an English-trained analogy and legal subterfuge which are found in the lawyer. Here it need only be observed that Sir Owen work of some 20th century English judges. It should Dixon occupies a distinguished place in the generations be observed that a comparison of this exercise with the of Australian judges who have served the law in this judgments of Cardozo CJ. in the Allegheny College way at the highest professional level. The writer re­ Case (9) and of Traynor J. in Drennan v. Star Paving members with especial pleasure the profit derived from Company (10) affords evidence of Sir Owen’s own belief Sir Owen’s judgments in Penfolds Wines Pty. Ltd. v. that both the validity and the social utility of the strict Elliott(ll), (a judicial pronouncement in the great com­ technique are in fact, and notwithstanding some rhetori­ mon law tradition of Coggs v. Bernard) and Aiken v. cal flourishes to the contrary, tacitly assumed in the Kingborough Corporation(\2) and the joint judgment American judical process, whether applied in the con­ with Fullagar J. in McRae v. Commonwealth Disposals servative eastern states or in the stimulating Californian Commission (13). sunshine. Secondly, for many decades, the High Court was com­ Sir Owen’s applications of this technique in the course pelled by the assumptions set out above both to treat of judicial decisions which cover every field within the the decisions of the House of Lords as a source of im­ jurisdiction of the High Court are a matter of profes­ perative authority in the traditional fields, and also to sional knowledge, and in this note attention can only be assume that the English Court of Appeal was unlikely drawn to some further assumptions which are either to err, and as a result of this the High Court was expressly stated by him or are implicit in the positions further compelled to direct State Supreme Courts that which have been outlined. These appear to be the they must follow the English Court of Appeal in the following: absence of a High Court decision to the contrary. It As a matter of historical fact, Australian courts are was undoubtedly Sir Owen’s hope that the Court over charged with the administration of a body of coherent which he presided would never have to deal with the principles which were introduced into Australia in 1829. problem which arose in Parker v. R.( 14). Here, as This body of law has been developed to meet changing always, he held consistently to his judicial faith, and, social needs partly by legislation and partly by judicial in a historic judgment which marks the full age of the decisions. The continuity of its logical coherence has, Australian common law, he expressly abandoned the however, been preserved because legislative changes view that the High Court must follow the decisions of always presuppose the continuity of common law doc­ the House of Lords without question! 15). trine except in so far as specific rules are modified or Lastly, in the constitutional field, the High Court from abrogated, and because judicial developments of the the beginning has been fully aware of the reasons which common law depend, for the reasons set out above, upon imperatively demand a “close adherence to legal reason- the application of a traditional technique in a hierarchi­ ing”(16). Like his predecessors, Sir Owen Dixon at cal system of courts. all times explicitly assumed that the Australian federal Under the Australian constitution, the High Court constitution presupposes a plenitude of legislative power is at once a general court of appeal from the States within the allotted boundaries, and that the great legal in the traditional fields of Anglo-Australian law, and the principles embodied in the Amendments to the United interpreter of a federal constitution, which, coming into States constitution rest upon convention and tradition force at the beginning of the 20th century, rested upon in England and in Australia. This being so, the court’s legal and political bases differing in some primary re­ “sole function is to interpret a constitutional descrip­ spects from the basic American positions. Against this tion of power or restraint upon power and say whether background, the court is necessarily bound to the pur­ a given measure falls on one side of a line consequently suit of certainty for the following reasons. drawn or on the other, and that . . . it has nothing what­ Firstly, Australian appellate courts are historically ever to do with the merits or demerits of the mea­ committed both to the assumption that the common law sure”! 17). This position as consistently accepted by the technique is based upon logic and the concomitant be­ High Court both before and after the Engineers’ lief that the abandonment of this assumption would be (11) 74 C.L.R. 204. (16) Speech delivered by (12) cit. supra, footnote 8. Sir Owen Dixon C.J. (7) 29 A.L.J., at p. 472. (9) (1927) 246 N.Y. 369. (13) (1951) 84 C.L.R. 377. on the occasion of his (8) V i d e , e.g., A i k e n v. (10) (1958) 333 P. 2nd 757 (14) 37 A.L.J. 3. swearing in, 85 C.L.R. Kingborough Corporation (15) 37 A.L.J.R., at p. 11. xi, at p. xiv. (1939) 62 C.L.R. 179. (17) I b i d , pp. xiii-xiv. THE AUSTRALIAN BAR GAZETTE 11

C&ye(18) represents, not empty legalism, but the appli- In the constitutional field, as elsewhere, the assessment cation of professional technique in the interpretation of Sir Owen Dixon’s work now belongs to history, on of authoritative legal principles precisely recited in a the terms of the basic assumptions he himself has so federal compact intended also to give effect to political clearly set out. If the technique he has striven so hard facts as recognized in a Benthamite democracy. Argu- to maintain has both validity and social utility, it must ments that constitutional cases involve “political and continue to endure, and here it can only be said that economic facts” meriting special treatment (in some un- few men have been better endowed by nature to serve a specified way) appear as clearly fallacious when tested great cause. Although he himself, perhaps from the in the light of Sir Owen’s definition of the role assigned nature of his work, drew much private comfort from to the High Court by a statute it is bound to obey, and Aristotle, there is in his conception of the judicial func- in effect they amount to an assertion that on appropriate tion something of the vision of Plato, who saw ideas in occasions it should serve minority utopian aims by re- the hard brightness of their transcendent beauty, sorting to a so-called legal process which violates the law in order to defeat majority opinion. ______K. U. Shatwe (18) (1914)28 C.L.R. 129. *Dean of the Faculty of Law, University of Sydney. The Responsibility of the Bar to the Law School In his contribution “Whither the Bar” to the “Aus­ leaders to make any serious contribution to their or­ tralian Bar Gazette” Vol. 1 No. 3 p. 12 Kerr Q.C. spoke ganization, staffing, or the content of their courses. It of the Bar having responsibilities to the Law School is true that, in Kerr himself, the New South Wales Bar and to future Law Schools in relation to legal educa­ has, fortuitously, a leader who has given thought to tion. It is important to consider what role the Bar has legal education over many years, and is capable of mak­ really played in regard to legal education, and what are ing a contribution thereto, but it is extremely dangerous the limitations of the Bar’s capacity before it takes upon to confuse the personal and the institutional roles. itself responsibilities. The general feeling of self satisfaction with intellectual Up to the present, it can be said with a reasonable standards achieved both by the Bar itself and the Bench, degree of confidence that, in New South Wales at any and complacency about the fundamental rightness of the rate, the organized profession in both its branches has system of legal education of some twenty or thirty years made little contribution to the problems of legal educa­ ago, which pervades the senior Bar, does not provide tion. The solicitors have been consistently obstructive a sound basis for the Bar’s institutional intervention in and the Bar indifferent. the field of education. Critical consideration of its own The University Senate, on the nomination of the educational ideals and comparative study of develop­ Council of the Bar and of the Law Society, appoints a ments and changes in other lands is a prerequisite of any representative of each to the Faculty of Law and this worthwhile assumption of responsibility. There is has been going on for approximately twenty years. With nothing to suggest that any such movement is affecting one or two notable exceptions, one can say that the con­ the profession. Until it does, the assumption of respon­ tribution of the professional representatives has varied sibility will lead to clamour that the Universities fit in inversely with their activity. with its backward looking ideals. Indifference is pre­ When one talks about the contribution of the Bar to ferable to this. legal education, it must be remembered that professional There is one way, however, in which the Bar and bodies tend to be dominated by those members to whom other professional bodies can make a contribution to the practice of the profession has brought fame and legal education. It is noteworthy that though the legal eminence, and, in many cases, wealth. Most members of profession is loud in its demands as to what the Sydney of the Bar who fall into this category have had little University Law School should and should not do, it has active connection with legal education during their pro­ not made any effort to strengthen the material resources fessional lives, and little cause to reflect upon the nature of the Law School. It is true that recently the Bar of education in general, and legal education in par­ Council has awarded a prize to the Law School, but the ticular. Solicitors have cause to reflect on legal education one thing the Law School is well supplied with is prizes, to the extent that the demands of the Law School that and the fact that the Bar Council took upon itself to students attend lectures and seminars interfere with the evince interest in the Law School by awarding a prize, smooth running of their offices, but that is usually the itself showed that it had no awareness of the real limit of their concern. When such a person comes to material needs of the Law School or of what was re­ deal with legal education he is usually little more than quired to help it as an educational institution. If the “a praiser of his own past”. The Law School of his Bar would recognize that its duty in relation to the Law youth from which he went forth to fame and fortune School is not to make demands upon it, or sit in judg­ represents the ideal to which all Law Schools should ment upon it, but to assist in providing for its material conform. needs by raising funds to be put at its disposal without The beginning of a proper appreciation by the Bar strings, the first step towards the realization by the Bar of its role in relation to assisting the Law School and of its real responsibility in the field of legal education future Law Schools is to recognize the general unfitness will have been made. F. C. Hutley* of those persons who ordinarily become its institutional ♦of the New South Wales Bar.