Abstract
This article examines two recent publications that have struck a deep chord in
the intellectual life of Australia. Rarely could it be the case that the almost
simultaneous publication of a legal and then an historical tract has led to such
a strong debate about the nature of the disciplines of law and history. In his
widely reproduced article on judicial activism Justice Heydon gave an
intellectual fillip to legal positivism by arguing that a neutral and autonomous
concept of law was a precondition for the operation of the rule of law. Keith
Windschuttle's history of frontier conflict between whites and Aborigines in
colonial Tasmania became an overnight publishing sensation and a
reaffirmation of the positivist precept that an historian was a neutral looking
glass whose craft was based on historical facts that were separate from the
political and philosophical presuppositions of the observer. This article lowers
the disciplinary drawbridge between law and history by challenging the
methodological framework of Justice Heydon and Keith Windschuttle. It
argues that Justice Heydon and Keith Windschuttle are kindred spirits joined
at the intellectual hip by a method that espouses impartiality, but in practice
operates to produce judicial decisions and historical judgments that are a
condensation of a particular brand of politics and philosophy. In sum, these
two thinkers have only ideological illusions to offer in the fields of law and
history.
Original language | English |
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Pages (from-to) | 79-111 |
Number of pages | 33 |
Journal | Adelaide Law Review |
Volume | 29 |
Issue number | 1 |
Publication status | Published - 2008 |