Another blast from the past or why the left should embrace strict legalism: a reply to Frank Carrigan

Abstract

This article argues that Carrigan's criticism of Sir Owen Dixon's strict legalism provides a clear example of the preconceptions and misconceptions that blind most opponents of Dixon's method. It argues that Carrigan's examination of a series of labour law cases does not support his contention that Dixon was a covert judicial activist; that, in contrast to the close relationship between strict legalism and popular democracy, opponents of strict legalism seem far more comfortable with the politics of the reactionary past: and that strict legalism is a necessary preconditon if the common law is to act as an institutional counterweight to an unbridled market. Rather than viewing strict legalism as a misleading and misconceived way of understanding the judicial role, it should be understood as an essential precondition for the operation of the rule of law and the continued independence of the common law in an era of impoverished institutional life.