[1] See, for example, George Williams et al, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 7th edition, 2018) 170 (describes the “triumph of legalism” in High Court jurisprudence since the Engineers case). However, there is another theory of jurisprudence that offers a diametrically opposed explanation of how judges make decisions: legal realism. When legalism postulates that judges apply rules to arrive at a result, legal realism says that the opposite actually happens, since judges first get the result they like, and then rhetorically justify those results by referring to rules. For appellate courts (such as the High Court), legal realism holds that there is simply an almost inexhaustible array of rules, conventions, precedents, distinctions, discretions and ambiguous (“reasonable” or “proportionate”) standards that plausibly justify almost any result as “what the law requires.” Many criticisms of Dixon`s principle had been levelled at him. This principle was incorporated into his previous speech that complete legalism is the surest way for judges on controversial issues to remain reliable. One critic said that either Sir Dixon`s view or that it was a “noble lie designed to conceal the obvious freedom of judges to decide cases.” not their opinion of what the law should look like. Legalism — [lē′gəl iz ́əm] n. 1. Strict, often too strict and literal observance of laws or code 2. The doctrine of salvation through good works legalistic n. legalistisch adj. legalistisch adv . English World Dictionary In 1915, Sir Owen Dixon was sworn in as Chief Justice of Australia.
On that occasion, he said: “It may be that the court is considered too legalistic. I`m sorry to think it`s something else. There is no safer guide for judicial decisions in important conflicts than strict and complete legalism. Legalism — name Date: 1928 1. Strict, literal or excessive observance of the law or a religious or moral code 2. a legal clause or rule. New Collegiate Dictionary legalism — legalísm s. n.
Trimis de siveco, 31.10.2007. Sursa: Dicţionar ortografic LEGALÍSM s. n. 1. grija, preocuparea de a respecta minuţios litera legii; Legality. 2. Legalize (1). (< Ms. Legalism) Trimis de raduborza, 15.09.2007. Sursa:… Dicționar Român I submit that, according to the results of global comparative research, judges do not follow Sir Dixon`s view that strict legalism is the surest guide for judges. Furthermore, I argue that legal activism is currently the norm and that there is no place for full legalism in modern state justice.
Legal activism is seen as the opposite of the complete legalism described above by the Honourable Sir Dixon. However, the term is highly controversial and many attempts have been made to define it, but for this essay, legal activism is “the deliberate development of the common law according to the court`s ideas of the direction the law should take in terms of legal, social or other policy.” Legal activism plays a huge role in today`s judicial proceedings. legalism — United Kingdom [ˈliːɡəˌlɪz(ə)m] / US [ˈlɪɡ(ə)lˌɪzəm] Name Word forms Legalism: Singular legalism Plural legalisms 1) [uncountable] the fact that someone obeys the laws in a very strict and precise manner 2) [countable] a word or phrase used in the law. English Dictionary It has become standard wisdom for the High Court of Australia to make its decisions in an extremely technical and (for lack of a better word) “legalistic” manner. [1] This applies not only to areas of law where such a method of decision-making seems self-evident, such as taxation, but also to areas where it may seem surprising – such as constitutional law. “Strict and complete legalism” (in the famous words of Justice Dixon)[2] means that decisions must be made exclusively through the neutral and objective application of legal principles. Everything else – political considerations, personal opinions, wider implications, empathy for those involved, etc. – must be excluded. In a legalistic model of judicial decision-making, judges are like referees at a rugby match – they objectively determine whether an attempt has been made or not. When legal realism as an explanatory theory better explains and predicts the Supreme Court`s decision-making process in constitutional matters, it has major implications for how we teach the Constitution in law schools, how we advise clients on the likelihood of success or failure in the claims under consideration, and how we understand the importance (or lack thereof) of the sophisticated doctrinal framework of constitutional law. theorize. Perhaps, at the very least, we should learn that understanding the formal rules of the game can be of little use in predicting who will eventually win it.