The Federation Press

Constituting Law

Legal Argument and Social Values

Overview

Legal argument involves a search for reasons which resonate.

These reasons are often derived from various sources other than domestic legal principles, sources which include history, morality, economics, philosophy, psychology, human rights discourse and international legal or commercial thought and practice. An advocate may be required to marshal these principles in order to argue a case successfully; similarly a judge in order to decide a case.

This edited collection provides a point of departure as to the possibilities, applications and limitations of these principles that bear upon legal reasoning but do not derive from legal premises. It interrogates issues such as:

  • Why, to what extent, and in what ways is it appropriate for the domestic legal system to incorporate and assimilate extra-legal and international principles?
  • To the extent that such incorporation is inevitable, is this a function of the demands of globalization and the convergence it entails, of the maturity and pervasiveness in society of other disciplines, or of a more profound aspect of the character of legal reasoning?
  • Must domestic legal system look outwards through the eyes of Adam Smith’s “impartial spectator” to prosper from the wisdom of distant judgments and to avoid the evils of parochialism?
  • Which, if any, parts of our legal system should be particularly open to such influences?
  • What modes of reasoning best facilitate the conduct of such a dialogue?

The authors include senior members of the judiciary: the Hon Justices WMC Gummow AC, JD Heydon AC, John Basten and AR Emmett, the Hon Ian Callinan AC QC and the Hon James Spigelman AC; senior academics, including Professor Gillian Triggs and Professor Emeritus Wilfrid Prest; the Hon Malcolm Turnbull MP, and members of the New South Wales bar.

Table of Contents

Part 1: Law and Moral Values
Introduction
A Place for Values in Legal Reasoning
Stephen Gageler SC, Commonwealth Solicitor-General
Law, Values, and the Advocate
Justin T Gleeson SC
Contingency, Law, and the Practice of Value
Ruth C A Higgins

Part 2: Law and History
Introduction
Re-Imagining Legal History
Justin T Gleeson SC
Law and the Use of History
The Honourable Justice W M C Gummow AC
New Frontiers of Legal History
Professor Emeritus Wilfred Prest

Part 3: Law and the Uses of Expertise
Introduction
Law, Society and the Uses of Expertise in the Administration of Justice
Geoff Lindsay SC
Legislative Facts – Developing the Common Law
The Honourable Justice J D Heydon AC
Bacon’s Chickens – Re-thinking Law and Science (and Incriminating Expert Opinion Evidence) in Response to Empirical Evidence and Legal Principle
Professor Gary Edmond

Part 4: Law, Economics and Regulation
Introduction
Capitalism and its Schisms
Ruth C A Higgins
Law, Economics, and Interdisciplinary Indeterminacy
The Honourable Ian D F Callinan AC
Policy Tools for Reduction of CO2 Emissions Briefly Compared
The Honourable Malcolm Turnbull MP

Part 5: Law and International Thought
Introduction
Cross-Border Commonality
Dr Andrew Bell SC
International Law in Practice
Professor Gillian Triggs, University of Sydney
International Influences on Domestic Law: Neither Jingoistic Exceptionalism, Nor Blind Servility
The Honourable Justice J Basten

Part 6: Law and International Commerce
Introduction
Commerce, Certainty, and Consistency
Noel Hutley SC
The Law Merchant: How We Came to Where we Are
The Honourable Justice A R Emmett
Between the Parochial and the Cosmopolitan
The Honourable Chief Justice J J Spigelman AC

Part 7: Law, Justice and Human Rights
Introduction
Rights and Wrong Turns
Craig Lenehan
Human Rights in Australia – Past, Present and Future
Julian Leeser
Who’s Afraid of Unelected Judges? – A Positive Case for Increasing the Judicial Role in Human Rights Enforcement
Senior Lecturer Edward Santow

Postscript
Index

Of interest...