A public conversation on constitutionalism and the judiciary between Professor James Allan and The Hon Michael Kirby AC CMG

摘要

Professor James Allan and the Hon Michael Kirby AC CMG engaged in a public conversation on constitutionalism and the judiciary at a meeting of the Australian Society of Legal Philosophy on 5 June 2009. Amongst the issues discussed in this public conversation between Professor Allan and Mr Kirby are the role of judicial philosophy in the work of judges, especially in final courts; the ideal judicial characteristics, particularly in constitutional adjudication; the limits and legitimacy of lawmaking (or \u27activism\u27) in judicial reasoning; the necessity of restraints upon judges and the role of textualism in providing such restraints; the \u27originalist\u27 approach to constitutional interpretation and whether it is the \u27least defective\u27 way to construe a constitutional text or is instead functionally incompatible with the nature of such an instrument; the role (if any) of international and foreign law in constitutional elaboration and whether its use merely invites \u27cherrypicking\u27 from the opinions of those whose views are similar to one\u27s own; and the \u27living tree\u27 approach to constitutional meaning and whether it is appropriate in the Australian context. There are some differences and some common ground between the discussants in this lively and mutually respectful conversation on issues of great importance for the content of constitutional law. The edited transcript of the conversation appears below.