Stone, Adrienne --- "The Common Law And The Constitution: A Reply" [2002] MelbULawRw 33; (2002) 26(3) Melbourne University Law Review 646

[*] BA, LLB (NSW), JSD (Columbia); Fellow, Law Program, Research School of Social Sciences, Australian National University. Thanks are due to Simon Evans, Graeme Hill, Christos Mantziaris, Leighton McDonald, James Stellios and Leslie Zines for their comments on earlier drafts of this article. The views expressed here are mine alone.

[1] Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374.

[2] Greg Taylor, ‘Why Should the Common Law Be Only Indirectly Affected by Constitutional Guarantees?’ [2002] MelbULawRw 32; (2002) 26 Melbourne University Law Review 623.

[3] I should note that Dr Taylor and I are discussing only a specific aspect of the relationship between the Constitution and the common law: the application of the Constitution to the common law as it regulates relations between private individuals. We leave aside the doctrines of the common law that control institutions of government, such as those regulating the exercise of the prerogative. For the remainder of this article, when I refer to ‘the common law’, I am referring to this aspect. I do not draw a distinction, for these purposes, between common law and equitable doctrine.

[4] [1994] HCA 46; (1994) 182 CLR 104 (‘Theophanous’).

[5] [1997] HCA 25; (1997) 189 CLR 520 (‘Lange’).

[6] Taylor, ‘Constitutional Guarantees’, above n 2, 624.

[7] Ibid 623–4 (emphasis added).

[8] This leaves open the possibility that the legislature could confer more generous protection of rights than the Constitution requires. It simply cannot act in a way that derogates from the minimum constitutional requirement.

[9] Lange [1997] HCA 25; (1997) 189 CLR 520, 566.

[10] Ibid (emphasis added).

[11] Ibid (emphasis added).

[12] [2000] HCA 36; (2000) 203 CLR 503 (‘Pfeiffer’).

[13] Ibid 535 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (citations omitted).

[14] Ibid (emphasis added).

[15] For further academic commentary to this effect, see Leslie Zines, ‘The Common Law in Australia: Its Nature and Constitutional Significance’ (Law and Policy Paper No 13, Centre for International and Public Law, The Australian National University, 1999). See also Bradley Selway, ‘The Principle behind Common Law Judicial Review of Administrative Action — The Search Continues’ (2002) 30 Federal Law Review 217 (forthcoming).

[16] Selway, above n 15, 232 (citations omitted) (emphasis added).

[17] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 404–5.

[18] Lange [1997] HCA 25; (1997) 189 CLR 520, 560 (emphasis added).

[19] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 404.

[20] Clearly, though, Lange does not adopt the result reached by his Honour. In Theophanous, Brennan J concluded that ‘the common law of defamation is not inconsistent with any implication drawn from the text or structure of the Constitution’: [1994] HCA 46; (1994) 182 CLR 104, 155.

[21] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 149.

[22] Ibid 153.

[23] Taylor, ‘Constitutional Guarantees’, above n 2, 626 (citations omitted) (emphasis added).

[24] Ibid 627.

[25] See above n 9 and accompanying text.

[26] Taylor, ‘Constitutional Guarantees’, above n 2, 639 (citations omitted) (emphasis added). Though immediately following this passage, Taylor states that ‘[l]egislation will be invalid only if it trespasses unduly on freedom of speech. Otherwise, Parliament has a free hand’: at 639. This suggests that limited aspects of the common law are ‘entrenched’. See also: at 626. If that statement, rather than the statement I have italicised, represents Taylor’s view, it seems that our descriptive claims do not differ: see below n 39 and accompanying text. However, since Taylor has made much of the differences between our views, I will assume that he holds a view different from mine.

[27] For example, see the interpretation of ‘jury’ in s 80 of the Constitution in Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541. As Michael Sexton SC has pointed out, the relationship between the common law and the Constitution runs both ways — the common law affects the interpretation of the Constitution and the Constitution affects the interpretation of the common law: Michael Sexton, ‘Constitutional Intersections: The Common Law and the Constitution’ (Paper presented at The Australian National University Annual Public Law Weekend, Canberra, 2 November 2001).

[28] Taylor characterises Theophanous as a case in which a constitutional rule is ‘imposed on it from above’: Taylor, ‘Constitutional Guarantees’, above n 2, 626. Accepting this analysis of Theophanous, it does not seem to me to preclude the new rule being informed by existing common law rules. There is no reason why the Court could not turn to the common law as a source for the new constitutional rule.

[29] As I argued in Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219.

[30] Lange [1997] HCA 25; (1997) 189 CLR 520, 571.

[31] Ibid.

[32] Taylor, ‘Constitutional Guarantees’, above n 2, 644.

[33] Greg Taylor, ‘The Effect of the Constitution on the Common Law as Revealed by John Pfeiffer v Rogerson’ [2002] FedLawRw 3; (2002) 30 Federal Law Review 69, 81.

[34] Though the fact that some constitutionalisation occurs is cause for caution on the part of judges and careful consideration of the basis of their decisions, as I argued in Adrienne Stone, ‘Choice of Law Rules, the Constitution and the Common Law’ (2001) Public Law Review 9, 12.

[35] Lange [1997] HCA 25; (1997) 189 CLR 520, 571.

[36] See Taylor, ‘Constitutional Guarantees’, above n 2, 626.

[37] Zines, ‘The Common Law in Australia’, above n 15, 24.

[38] Taylor, ‘Constitutional Guarantees’, above n 2, 626 (emphasis added).

[39] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 408–11.

[40] Ibid.

[41] Taylor, ‘Constitutional Guarantees’, above n 2, 635.

[42] Jeremy Bentham, The Theory of Legislation (Richard Hildreth trans, first published 1802, 1975 ed) 69 [trans of: Traités de legislation civile et pénale]. This statement has some support in the Australian judiciary: see Wily v St George Partnership Banking Ltd [1999] FCA 33; (1999) 84 FCR 423, 426 (Sackville J).

[43] See, eg, Morris R Cohen, ‘Property and Sovereignty’ (1927) 13 Cornell Law Quarterly 8,

11–12; Felix S Cohen, ‘Dialogue on Private Property’ (1954) 9 Rutgers Law Review 357, 371–3. For more recent accounts, see Stephen Holmes and Cass R Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1999) 59–61; Kevin Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252, 303–6.

[44] Holmes and Sunstein, above n 43, 59.

[45] I am grateful to Leighton McDonald for this point.

[46] It is not surprising then that while Hart accepted the inevitability of property law (H L A Hart, The Concept of Law (2nd ed, 1994) 196) he did not, consistent with his positivism, regard property rights as pre-existing the state. A central tenet of legal positivism is that the validity of a law depends upon its source (its institutional pedigree or its compliance with some set of rules or accepted social facts about law-making) rather than its content. The dominant modern account is Hart’s own. According to his theory, a (municipal) legal system is founded on a ‘rule of recognition’ which ‘will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts’: at 94. Property laws, then, like all laws, are determined to be law because of their compliance with a rule or rules of recognition, not because of their congruence with some idea of the ‘inherent’ rights of the person.

[47] See Richard Epstein, Takings: Private Property and the Power of Eminent Domain (1985) 3–6, 12–14. For another example, see Douglas W Kmiec, ‘Private Property and the Future of Government Regulation: Inserting the Last Remaining Pieces into the Takings Puzzle’ (1997) 38 William and Mary Law Review 995, 997–1001. For critiques, see the Symposium on Richard Epstein’s book Takings: Private Property and the Power of Eminent Domain (1985) in (1986) 41 University of Miami Law Review, especially Larry Alexander, ‘Takings of Property and Constitutional Serendipity’ (1986) 41 University of Miami Law Review 223, 228 and Cass Sunstein, ‘Two Faces of Liberalism’ (1986) 41 University of Miami Law Review 245.

[48] Taylor, ‘Constitutional Guarantees’, above n 2, 635.

[49] Southern Pacific Co v Jensen, [1916] USSC 71; 244 US 205, 222 (1916).

[50] Among a vast literature, see Benjamin Cardozo, The Nature of the Judicial Process (1921)

112–41; Julius Stone, Precedent and Law: Dynamics of Common Law Growth (1985). See also Hart, above n 46, 136: ‘In every legal system a large and important field is left open for the exercise of discretion by courts and other officials.’

[51] On positivism, see above n 46. My claim here is that like positivists, legal realists understand law to be the result of some accepted social process of law-making rather than the recognition of a natural right. So, for example, realist theorists of property regard property as a socially-defined right. See further Morris Cohen, above n 43, 11–12; Felix Cohen, above n 43, 371–3.

[52] There are certain theorists who regard some aspects of the common law, especially principles of equal treatment before the law and proportionality, as ‘fundamental’ and necessary attributes of any system committed to the rule of law. See, eg, T R S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001); David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (1998) 159–60. However, these arguments may not lead in the direction that Taylor would like. In particular, Allan’s argument seeks to establish that certain common law rights are so fundamental that they cannot be overridden by legislation, whereas Taylor resists the ‘constitutionalisation’ of the common law.

[53] In his conclusion, Taylor raises some doubts about realism as a theory of the common law. He says, first, that ‘it cannot convincingly explain, for example, why [judges] often follow precedents regardless of their own views’: Taylor, ‘Constitutional Guarantees’, above n 2, 644. That statement is not correct. The belief that the common law is judge-made says nothing about how judges should exercise their power. There are many reasons, compatible with realism, why judges may prefer to follow precedent rather than impose their own views. Certainty and predictability in law are important values (associated with the rule of law) and respect for them, over one’s own personal views, is entirely consistent with realism. Second, Taylor argues (referring to statements of High Court judges refusing to overrule prospectively) that realism is not the ‘official’ theory of the common law: at 644. I am not convinced that the majority of the High Court is truly committed to a non-realist common law theory. See, eg, Justice Michael McHugh, ‘The Judicial Method’ (Paper presented at The Australian Bar Association Conference, London, 5 July 1998): ‘Today, the law-making function of the court is accepted by the overwhelming majority of lawyers.’ In any event, even if that was true, it would have little effect on my argument. The correctness (or otherwise) of legal realism is not dependent on how judges ascertain the nature of their role. If non-realism pervaded the judiciary, that would provide all the more reason to challenge that view rather than a basis on which to further the confusion and perpetuate error.

[54] Taylor, ‘Constitutional Guarantees’, above n 2, 631 (citations omitted).

[55] [1992] HCA 23; (1992) 175 CLR 1.

[56] Taylor, ‘Constitutional Guarantees’, above n 2, 636 (citations omitted).

[57] Ibid 633.

[58] Though some realists deny that there is ever very much determinacy. See Julius Stone, above n 50, chs 2–4; William W Fisher III, Morton J Horwitz and Thomas A Reed (eds), American Legal Realism (1993) 164–5.

[59] Incidentally, it is no answer to say that even if judicial law-making occurs, ‘that is not the law’s theory’: Taylor, ‘Constitutional Guarantees’, above n 2, 636. The ‘law’s theory’ is precisely what is in dispute.

[60] Julius Stone, above n 50, 14. (I am not, for these purposes, drawing a distinction between ‘realist’ and ‘sociological’ jurisprudence. On this score, they share fundamental insights.)

[61] Taylor, ‘Constitutional Guarantees’, above n 2, 629.

[62] Ibid (emphasis added).

[63] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 262 (Fullagar J): ‘in our system the principle of Marbury v Madison is accepted as axiomatic’; Sir Owen Dixon, Jesting Pilate (1965) 174 (citations omitted): ‘To the framers of the Commonwealth Constitution the thesis of Marbury v Madison was obvious.’

[64] Taylor, ‘Constitutional Guarantees’, above n 2, 632 (citations omitted).

[65] Ibid 633 (emphasis added).

[66] Ibid.

[67] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374 (Kitto J). See also Leslie Zines, The High Court and the Constitution (4th ed, 1997) 171); Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167, 189 (‘Precision Data Holdings’).

[68] Waterside Workers’ Federation of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 483.

[69] [1991] HCA 58; (1991) 173 CLR 167.

[70] Ibid 190 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[71] R v Davison [1954] HCA 46; (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1969) 123 CLR 361, 394 (Windeyer J); Precision Data Holdings [1991] HCA 58; (1991) 173 CLR 167, 188–9.

[72] Precision Data Holdings [1991] HCA 58; (1991) 173 CLR 167, 190–1.

[73] Zines, The High Court and the Constitution, above n 67, 197.

[74] A-G (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529; [1957] AC 288 (Privy Council).

[75] Cheryl Saunders, ‘The Separation of Powers’ in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 3, 13.

[76] Ibid 14.

[77] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 411–14.

[78] Taylor, ‘Constitutional Guarantees’, above n 2, 643 (citations omitted).

[79] 367 US 254 (1964).

[80] The United States Supreme Court could not develop the common law of defamation. Unless it wished to avoid deciding the substance of the matter on some narrow formulation of the issues (for example, by reference to the sufficiency of evidence connecting the plaintiff to the statements in question) it was forced to turn to the constitutional law of freedom of speech. See Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’, above n 29, 246.

[81] As I argued in ibid 248–9.

[82] Taylor, ‘Constitutional Guarantees’, above n 2, 633.

[83] For a famous form of the argument, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) 101–4.

[84] Taylor, ‘Constitutional Guarantees’, above n 2, 638.

[85] Louis Michael Seidman and Mark Tushnet, Remnants of Belief: Contemporary Constitutional Issues (1996) 70.

[86] Ibid.