Constituting Law: Legal Argument and Social Values
20 Jun 2011
Justin T. Gleeson
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.