Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 1 of 1
-
ItemLegalist Reasoning and its Limits: Legal Professional Culture and Constitutional Development in Australia and Germany( 2023-05)In this thesis I demonstrate the value of ‘legal professional culture’ as a contextual ‘layer’ that can assist in understanding constitutional development and disagreements about constitutional method. I describe legal professional culture as an infrastructure for socialising legal actors in an experience of ‘constraint of choice’: the experience that some forms of reasoning, but not others, are open to a legal decision-maker. I explore legal professional culture as a bundle of institutionalised practices that work to produce that experience of constraint of choice. These institutionalised practices can include legal education and training, scholarship and knowledge production, and the organisation of courts. I argue that culturally embedded beliefs, narratives and values are reproduced through those institutionalised practices and ensure the workability and stability of method when applied at scale. To explore my description of legal professional culture I compare Australian and German constitutional histories. I explore how German and Australian legal professional cultures have influenced practices of constitutional development and disagreements regarding method. Both jurisdictions share a high degree of professional cultural cohesion, despite differences in constitutional text, methodological tradition and court organisation. I explore the relationship between that cohesion and ‘legalist’ approaches to reasoning, which I both employ as a device to explore the significance of legal professional culture and explore as a constitutional problem in its own right. ‘Legalist’ reasoning — an umbrella term that I use to encompass ‘formalist’ and ‘positivist’ reasoning — tends to assume the determinacy of legal materials, deny the role of judicial choice between multiple plausible interpretations, and insist on a hard distinction between legal and extra-legal considerations in constitutional reasoning. I argue that legalist, formalist and positivist styles of reasoning tend to emerge in professional cultures when there is a high degree of stability in cultural beliefs and narratives regarding method. Exploring how legalist arguments first emerge and then lose credibility over time sheds light on the interplay between professional culture and an experience of constraint of choice in legal actors. I rely on analysis of what I describe as ‘stability seeking’ decisions to demonstrate my arguments regarding legal professional culture and legalist reasoning. In case studies drawn from the German Federal Constitutional Court (FCC) and Australian High Court (HCA), I demonstrate how the stability of professional beliefs and narratives, and the emergence of legalist or positivist reasoning, flowed from key decisions made by each court during a period of instability in their early history. During those periods the HCA and FCC attempted to introduce ideas or narratives that could reintroduce an experience of constraint of choice. I demonstrate how ‘stability seeking’ decisions introduced later in each court’s history were less successful at establishing new, or shoring up existing, beliefs and narratives that could be accepted by the professional community and produce an experience of constraint in legal actors. In comparing how ‘stability seeking’ decisions emerged and were received, I demonstrate the relevance of professional cultural conditions to constitutional development and its stability over time.