Illegitimate Child? In Search of a Legitimating Theory for Gleeson CJ's American Comparative Constitutionalism

Abstract

This honours paper was supervised by Professor Kim Rubenstein. An examination of the legitimacy of Gleeson CJ's American comparative constitutionalism, and the way in which Gleeson CJ has discussed and applied justificatory theories of comparative constitutional interpretation during his tenure on the High Court.

The Paper first examines the concept of legitimacy, and particularly judicial legitimacy, concluding that it requires a theoretical justification which responds to the concerns of contemporary debate (Chapter One). The Paper thus goes on to examine Gleeson CJ's justifications for his practice of American comparative constitutionalism (Chapter Two) and contemporary attitudes to the practice generally (Chapter Three). Ultimately, Gleeson CJ fails to adequately address these critiques in his judicial reasons, and therefore fails to provide a legitimating justification for the practice (Conclusion).

Keywords: Gleeson CJ, comparative constitutionalism, Australian Constitution, American Constitution, judicial legitimacy