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Reply to Galligan

Published online by Cambridge University Press:  24 January 2025

Jeffrey Goldsworthy
Jeffrey Goldsworthy*
Affiliation:
Faculty of Law, Monash University
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Extract

Brian Galligan says that I have misread or misunderstood the whole thrust of his argument. I suggest that the shoe is on the other foot. Readers will have to decide who has misunderstood whom.

Type
Research Article
Information
Federal Law Review , Volume 18 , Issue 1 , March 1989 , pp. 50 - 52
Copyright
Copyright © 1989 The Australian National University

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References

1 Nor do I take them to have meant what I term 'interpretivism' or 'sensible legalism'. I impliedly criticise these judges for adhering to a conception of constitutional interpretation which was excessively narrow and technical, but not to the extent attributed to it by Galligan. In short, I prefer Zines' account of the High Court's legalism to Galligan's: L Zines, The High Court and the Constitution (2nd ed 1987), ch 16.

2 Galligan says at ont” point: “In other words the championing of legalism by leading judicial spokesmen was politically astute rather than silly.” But this is exactly the view I attributed to him, in virtually identical words: see p.28 supra.

3 He says, for example, that Sir Owen Dixon was the paragon of legalism (B Galligan, Politics of the High Court, A Study of the Judicial Branch of Government in Australia (1987), 202-203); was one of those judges who appreciated legalism's “strategic implications” ibid 40); and that legalism was a “noble lie” ibid 41).

4 See, e.g., the book review by the English judge L H Hoffmann, in (1989) 105 Law Quarterly Review 140.

5 See R Dworkin, Taking Rights Seriously (1977), esp ch 13, and R Dworkin A Matter of Principle (1986), esp ch 5.

6 B Galligan, supra n 3, 232-233, 259-260.

7 ibid 258.

8 I said in my original article that the interpretivist possesses “no value-free mechanical procedure”, and later that it is true that interpretivism “requires value judgments, or “choices”, which are “intrinsically political”, in that “they concern the proper functions of the Constitution and the Court.”

9 For example, I am far from convinced that Lane and Zines are right in criticising the connotation/ denotation distinction as (respectively) “unsound epistemologically” and “an outdated philosophical distinction”: P H Lane, Lane's Commentary on the Australian Constitution (1986), 684-685; L Zines, The High Court and the Constitution (2nd ed., 1987) 16. This distinction is, or at least distinctions functionally equivalent to it are, still popular in contemporary philosophy of language, although drawn more precisely and with newer terminology (sense/reference, and intension/extension). See, e.g., T J Richards, The Language of Reason (1978), 75 and 133-137, and M Devitt and K Sterelny, Language and Reality (l987) 30-33 and 67-68.

10 For example, even Galligan's very broad formulation of interpretivism (see n.7) may have to be qualified; many (and I imagine he himself) would not agree that the values and intentions of the founders, rather than “contemporary values”, should necessarily be decisive when the constitutional text is silent or unclear.

11 In his reply Galligan emphasises that by “political” he is using “not … the partisan or party sense, but … the more fundamental systemic or constitutional sense”, in which the judiciary is “profoundly political … [as] the interpreter and enforcer of the system.” This seems to be the first of the four senses I identified. But Galligan must be claiming that the Court's role is political in one of the other senses as well, because in the first sense the claim is trivial: it is perfectly consistent with even the narrowest conception of legalism. I take him to be claiming that the Court has been and should be political in the second and third senses as well, but not (at least as a rule) in the fourth sense. The problem is that he does not clearly distinguish between these three other senses, which is why I fear that, contrary to his own intentions, his claims may appear to enhance the credibility of non-interpretivism.

12 I find the prospect of courts being radically restructured “along truly representative lines and [made] … democratically accountable” quite frightening, if (as is likely) the new 'judges' were to believe their authority to be constrained by very few “legalistic boundaries”.