The Parallel intellectual universes of Justice Heydon and Keith Windschuttle: a meeting of minds?

Frank Carrigan

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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 languageEnglish
Pages (from-to)79-111
Number of pages33
JournalAdelaide Law Review
Issue number1
Publication statusPublished - 2008


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