Unconvincing and Perplexing: Hutchinson and Stapleton on Judging

Abstract:     
Recent articles by Allan Hutchinson and Jane Stapleton illustrate the emerging orthodoxy in Australian legal thought that judging is, essentially, politics in another form. Hutchinson is openly critical, indeed he is scornful, of Justice Heydon’s support for Sir Owen Dixon’s commitment to strict legalism as the proper judicial method. For Hutchinson, judging is politics in disguise and calls for strict legalism are either naive or hypocritical. Stapleton is less directly concerned to illustrate the supposed flaws of strict legalism as a method. Instead, she advocates an openly instrumentalist role for the High Court as a way of alleviating Aboriginal disadvantage in Australia. However, implicit in this stance is a position similar to that of Hutchinson – that judging is inevitably and inescapably political.

It wil be argued here that both articles are unconvincing. Hutchinson’s argument is confused and confusing, self-contradictory, and relies on a puzzling misreading of Charles Dicken’s Bleak House. Stapleton’s project is simply implausible and at odds with other work of hers which illustrates the problems with the instrumentalist role that she advocates for the Australian judiciary. The paper will conclude by considering why scholars of international repute have made such unconvincing arguments and what this has to tell us about the contemporary debate about judging.

Number of Pages in PDF File: 18

Keywords: Allan Hutchinson, Jane Stapleton, Justice Heydon, Sir Owen Dixon, Strict Legalism, Law and Politics, Politics, Aboriginal Disadvantage, Bleak House, debate about judging

JEL Classification: K40

Accepted Paper Series