Legal Realism and Australian Constitutional Law
20 Pages Posted: 17 Mar 2022
Date Written: January 26, 2022
Our traditional understanding of judicial decision-making is that judges apply the law to a set of facts and reach a result. This is known as legal formalism. But what if this is backwards? What if the process of judicial reasoning is to decide on the result, and then rhetorically justify it with particular interpretations of legal rules and facts? This paper applies the descriptive theory of legal realism in a particular context (Australian constitutional law) alongside a qualitative empirical study to help decide whether legal formalism or legal realism best explains High Court decision-making.
Keywords: Australian Constitution, Legal Realism, Jurisprudence, High Court
JEL Classification: K00
Suggested Citation: Suggested Citation