Legal Realism and Australian Constitutional Law
Article
Article Title | Legal Realism and Australian Constitutional Law |
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ERA Journal ID | 35442 |
Article Category | Article |
Authors | |
Author | Patrick, Jeremy |
Journal Title | Journal of Judicial Administration |
Journal Citation | 32 (1), pp. 3-13 |
Number of Pages | 11 |
Year | 2022 |
Place of Publication | Australia |
ISSN | 1036-7918 |
Web Address (URL) | https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4018056 |
Abstract | Our traditional understanding of judicial decision-making is that judges apply the law to a set of facts and reach a result. This is known as legal formalism. But what if this is backwards? What if the process of judicial reasoning is to decide on the result, and then rhetorically justify it with particular interpretations of legal rules and facts? This paper applies the descriptive theory of legal realism in a particular context (Australian constitutional law) alongside a qualitative empirical study to help decide whether legal formalism or legal realism best explains High Court decision-making. |
Keywords | Australian Constitution, Legal Realism, Jurisprudence, High Court |
ANZSRC Field of Research 2020 | 480702. Constitutional law |
480410. Legal theory, jurisprudence and legal interpretation | |
Public Notes | Files associated with this item cannot be displayed due to copyright restrictions. |
Byline Affiliations | School of Law and Justice |
Institution of Origin | University of Southern Queensland |
https://research.usq.edu.au/item/q7v56/legal-realism-and-australian-constitutional-law
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