HOW DOES THE HIGH COURT INTERPRET THE CONSTITUTION? A QUALITATIVE ANALYSIS BETWEEN 2019-21

(2024) 47 (1) University of New South Wales Law Journal 177

34 Pages Posted: 12 Aug 2024

See all articles by David Tan

David Tan

Deakin University, Geelong, Australia - Deakin Law School

Tamsin Paige

Deakin University

Despina Hrambanis

Deakin University

Joseph Green

Deakin University

Date Written: April 01, 2024

Abstract

Theorists of legal interpretation often argue that their theory describes or fits well with legal practice without using empirical evidence to support such claims. In this article, we provide a proof of concept for how such claims can be established using Critical Discourse Analysis-a qualitative method of coding texts-as applied to High Court decisions. Particularly, we assess whether a slightly modified version of Philip Bobbitt's theory of constitutional modalities can be used to describe Australian constitutional interpretation working backwards from the start date of the project in August 2021. We find that Bobbitt's modalities were used by High Court judges in the period studied. Predominantly, the High Court used the doctrinal modality supplemented strongly by textual and structural modalities. The ubiquitous use of doctrine to interpret the Australian Constitution in the period studied suggests a need for a greater understanding of doctrine as an interpretive modality.

Keywords: Constitutional Interpretation, Constitutional Law, Critical Discourse Analysis, Empirical Legal Studies, Constitutional Modalities

Suggested Citation

Tan, David and Paige, Tamsin and Hrambanis, Despina and Green, Joseph, HOW DOES THE HIGH COURT INTERPRET THE CONSTITUTION? A QUALITATIVE ANALYSIS BETWEEN 2019-21 (April 01, 2024). (2024) 47 (1) University of New South Wales Law Journal 177, Available at SSRN: https://ssrn.com/abstract=4908517

David Tan (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

Tamsin Paige

Deakin University ( email )

Despina Hrambanis

Deakin University ( email )

Joseph Green

Deakin University ( email )

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