objective.
86
To emphasise the point,
in principle (like reasoning with policy)
and in practice (unlike reasoning with policy) there is always one indisputably
right answer to any question of interpretation.
87
How do courts find this one and only correct meaning of the ambiguous
provision? They engage in “logical reasoning”
88
because interpreting law is a
process of “strict logic and high technique,”
89
based on “deduction”.
90
It was
this with this in mind that Sir Owen Dixon urged judges to make “close
adherence to legal reasoning” – there is no room for doubt or dissent.
91
In this way law is interpreted objectively and impartially according to
established standards. Judges reason in a deductive manner. Consequently, the
outcome is always entirely predictable. This approach
has loud echoes of
natural law.
92
Judges who avidly pursue this approach are described as
literalists or strict constructionists;
93
and the approach that
they adopt is
referred to as formalism.
94
Or, in the ringing words of Sir Owen Dixon, a Chief
85
Blackshield (2002) p 322, and see Kirby (2003) in Sheard (2003) p 44,
Duncanson (1987-89)
86
Thus Bennion (1980B) entitles his text The Science of Interpretation.
87
In Kitto, (1992) p 796, Sir Frank Kitto a fellow High Court judge of Sir Owen
Dixon refers to Dixon’s skill in “diving swiftly and unerringly to the very bottom
of a complex problem and coming up just as surely with the right answer”. In
Kitto (1992) pp 790-791 Sir Frank Kitto describes Sir Owen Dixon referring to a
case being “decided rightly”.
88
Mason (2003) in Sheard (2003) p 4
89
Dixon (1956) p 469, although conceding at p 472 that this was an
overstatement
90
Kitto (1992) p 794
91
Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 CLR xi, xiii
92
For example in an article in The Australian, 13 December 1995, “Sound
formula in place for High Court appointments,” Peter Durack QC, Australian
Attorney General from 1977-1983, claimed that the requirements for appointment
that his (Liberal) government looked for included that the person was an
“adherent of established legal doctrine, deciding cases according to legal
principles”. To do this they needed a “capacity for objective legal judgment”. Ian
Callinan QC in an interview on ABC television, on 18 December 1997,
commenting on the announcement of his appointment as a justice of the High
Court of Australia (reported in the Sydney Morning Herald
on 19 December 1997)
said “I think that it is important that the High Court decide cases in an orthodox
way, and I hope I do that”. See also Fiocco (1980).
93
There was a disparaging comment made by a critic about one
distinguished judge who was a strict constructionist. The comment was that he
was considered a great judge only because he could read a dictionary.
94
See McBarnet and Whelan (1991).
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