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1989] Realism about the High Court 27 REALISM ABOUT THE HIGH COURT JEFFREY GOLDSWORTHY* THE NEW REALISM Ever since Bentham attempted to "pluck the mask of Mystery from the face ofjurisprudence",1 courts have been accused oflegitimating their decisions by hiding their real grounds, which are necessarily subjective and partisan, behind a smokescreen of artificial and esoteric ratiocination. Such iconoclasm has, in our century, been a staple of American realism, Marxism and more recently the critical legal studies 'movement', all of which have inevitably influenced Australian legal theory. It has sometimes been argued that in constitutional cases the High Court has used 'legalism' to confer on essentially political decisions a speciously apolitical appearance. This argument is made most carefully and thoroughly by Brian Galligan, a political scientist, in his recent study of the High Court.2 His argument deserves to be carefully assessed, especially if he is right to predict that a more 'realistic' account of judging is destined to supplant 'legalism' in academic and legal circles, and in the public mind. 3 Legalism, he says, "will appear quaintly archaic to the next generation of lawyers .. .". 4 If so, our legal and political culture may be profoundly changed for better or worse. It is crucial that the new realism be clear-headed and cautious, or it may unwittingly discard law along with legalism. Galligan's endorsement of the new realism is not unqualified. He rejects the simplistic view of some realists that because judging is not reducible to formal logic, it must rest on the personal biases of the judges.5 He fears that in embracing realisnl, a new generation of Australian judges may go too far and adopt "non-interpretivist methods".6 Non-interpretivism, popular in the United States, "involves judges reading their own preferred values and policy views into the constitution, and overruling elected legislatures on the basis of what judges prefer or think is desirable or advantageous".7 Galligan rightly fears such a development, and prefers 'interpretivism', which requires deciding questions of constitutionality "by reference to the constitution, either its actual language and structure or the values and intentions of the founders which it embodies".8 But is this not legalism, the still popular but false view which is undermined by realism? Galligan thinks not, but the distinction he draws between legalism and interpretivism is not clearly and consistently maintained. Consequently, his criticisms of the High Court's legalism may discredit interpretivism, making more likely the very outcome he fears: the ascendancy of non-interpretivism. * Senior Lecturer, Faculty of Law, Monash University. 1 J H Burns and HLA Hart (eds) A Comment on the Commentaries and A Fragment on Government (1977) 391) 410. 2 Brian Galligan, Politics of the High Court, A Study of the Judicial Branch of Government in Australia (1987). 3 Ibid 37, 244, 252-258. 4 Ibid 37. 5 Ibid 38. 6 Ibid 260. 7 Ibid 259; see also 232-233. 8 Ibid 258. 28 Federal Law Review [VOLUME 18 2 LEGALISM IN THE HIGH COURT What does Galligan mean by legalism? It includes literalism, the naive belief that all questions of constitutional interpretation can be decided purely by reference to "the plain meaning of the actual language of the text",9 and conceptualism, an approach to related questions which emphasises legal form rather than practical substance, and abstract categories and technical distinctions rather than the interests and values at stake. to While admitting that this is something of a caricature, he insists that "it does sum up the Court's professed method",,1 Galligan's preferred interpretivism is markedly different from, and superior to, legalism thus dermed. The interpretivist is willing to look beyond the words used in the Constitution, to the values and intentions of those who drafted them. 12 This is often not only desirable, but simply unavoidable: first, the words used may be vague, ambiguous or (occasionally) inconsistent; secondly, application of the bare words alone may frustrate their obvious purpose. Moreover, it can be argued that most cases which come to the High Court are of this sort. Parties are reluctant to spend large sums of money attempting to avoid provisions whose meaning and effect are clear and uncontroversial. On the other hand, even the interpretivist must respect the words actually used: it cannot be permissible to ignore them whenever this seems better to serve their intended purpose. It is because a purposive approach to interpretation can be abused that it is feared, as the American legal philosopher Lon Fuller pointed out: One can imagine a course of reasoning that might run as follows: This statute says absinthe shall not be sold. What is its purpose? To promote health. Now, as everyone knows, absinthe is a sound, wholesome, and beneficial beverage. Therefore, interpreting the statute in the light of its purpose, I construe it to direct a general sale and consumption of that most healthful of beverages, absinthe. 13 To apply interpretivism properly thus requires striking a balance between the actual text and its purpose or spirit. There is no value-free, mechanical procedure for doing so. As Galligan says, judging belongs to the realm of practical reason, and involves "reconciling, weighing and choosing between principles and precedents that often are in conflict or overlap ..."14 Some judges seem to have regarded this as incompatible with law, and so improper; a principal function of law, after all, is to substitute clear, objective standards for subjective opinions and preferences whose conflict might threaten social order. But legal reasoning which relies excessively on textual meaning and deductive logic is artificial and even arbitrary. Interpretivism, we might say, is sensible legalism; what Galligan calls legalism is just silly. (Note however that he does not believe the High Court's profession of legalism to have been silly; it has been a shrewd political strategy). Evidence can certainly be found for Galligan's claim that legalism, in the sense of literalism and conceptualism, has characterised the Court's published 9 Ibid 258; see also 31. 10 Ibid 32; see also 175. II Ibid 32. 12 Ibid 258. 13 L Fuller, "Positivism and Fidelity to Law -A Reply to Professor Hart" (1958) 71 Harv Law Review 630, 670. 14 B Galligan, supra n 2, 38. 1989] Realism about the High Court 29 reasoning in important constitutional cases, at least since the landmark decision in the Engineers case l5 in 1920. Before Engineers the Court enforced constitutional doctrines not expressed in the Constitution, but believed to be necessary to protect the federal system it established and therefore to be implied by it. The doctrine of reserved State powers was designed to restrict Commonwealth legislative powers in the interests of state sovereignty, and the doctrine of intergovernmental immunities was aimed at preventing the Commonwealth and the States from interfering with one another. 16 In principle, at least, these doctrines reflect just the sort of interpretivism of which Galligan approves, and so it is surprising that he criticises them as "palpably insufficient for striking down important government legislation".17 In any case, he argues that this non-legalistic method did not threaten the Court's legitimacy until the emergence of the Labor party as a major political force. 18 Thereafter, the Court's decisions became increasingly controversia1. 19 In Engineers this method was renounced by the Court, which according to Galligan desired a neutral basis for constitutional review not dependent on "respect for an original compact that had been framed without Labor's participation".20 In a revolutionary opinion endorsed by a majority of the Court, Isaacs J condemned the practice of basing important constitutional doctrines on implications rather than express provisions. According to Isaacs J, the Court should apply the Constitution "according to its own terms ... [and] precisely as framed",21 without resort to "an implication which is formed on a vague, individual conception of the spirit of the compact".22 It was for those who drafted the Constitution to consider what limitations on the powers it conferred were necessary; the Court had no right to add further, unexpressed limitations. "[T]he duty the Constitution places upon this court [is to] loyally [permit] ... that great instrument of government to speak with its own voice, clear of any qualifications which the people of the Commonwealth or, at their request, the Imperial Parliament have not thought fit to express ...'~3 Galligan says that these broad principles ofinterpretation have been followed by the Court to this day.24 But he also describes Sir Owen Dixon, who intellectually dominated the Court for many years,25 as the paragon oflegalism. Dixon remains the epitome of the Australian legal establishment's model of a judge. He both reflected, and made the leading contribution towards articulating, the legalist approach of the High Court.26 15 Amalgamated Society ofEngineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. 16 B Galligan, supra n 2, 84. 17 Ibid 91. 18 Ibid 84-85. 19 Ibid 85-91. 20 Ibid 97. 21 Supra n 15, 142. 22 Ibid 145. 23 Ibid 160. 24 B Galligan, supra n 2, 97-98. 25 Ibid 202. 26 Ibid 203. 30 Federal Law Review [VOLUME 18 This is problematic, because Sir Owen Dixon strongly opposed the methodology advocated by Isaacs J in Engineers. In West v Commissioner of Taxation, His Honour said: Since the Engineers'case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied.27 In many cases Sir Owen Dixon insisted that the federal system itself requited that the powers of both the Commonwealth and the States be subject to certain implied limitations.

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