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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).

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