A Blast from the past: the resurgence of legal formalism

This article is a contribution to the dialogue between Justice Michael Kirby and John Gava on the nature of legal reasoning. In essence, Gava argues that Justice Kirby is an unelected judge who should stick to applying apolitical legal principles. Prospective and present members of the High Court are also calling for fidelity to principle and precedent. These traditionalists, spearheading a resurgence of legal formalism, declare that law is a self-regulating mechanism with an autonomous existence. In contrast, the author argues that black-letter analysis, with its fixation on legal principles, obscures the extra- legal forces that shape the judicial process. An important aspect of this article is the dissection of Sir Owen Dixon's jurisprudence. Gava and his fellow conservatives' critique of judicial activism is premised upon the denial of the interdependence of politics and law. Justice Kirby is simply characterised as a deleterious force on the body politic. The author argues that this ignores the inherent politics of formalism that exerts a conservative influence on not only the discharging of the judicial junction but also the governing of society. Gava's jurisprudence echoes Bismarck supporting the democratic claims of ordinary people whilst in practice bolstering the structure of power that ensured the containment of popular control over policy and politicS. Australia is a corporate democracy controlled by an alliance of business groups and an executive that uses state power to contain popular pressure. The author contends that the judiciary is a branch of the state and is intrinsically political. Its judgments facilitate the reproduction of social and power relations, and put a stamp on the conduct of social affairs. The author argues that Justice Kirby is a modern liberal intent on making capitalist democracy live up to its promise of social justice. This article avers that formalism places obstacles in the path of social justice. It is a legal philosophy that reinforces the ideological domination of the power elite.