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Research Seminar - Legal Realism and Australian Constitutional Law

Presented by Jeremy Patrick, School of Law and Justice
23 FEB 2022
12.30 PM - 1.30 PM

Our traditional understanding of judicial decision-making is that judges apply the law to a set of facts and reach a result. This is known as legal formalism. But what if this is backwards? What if the process of judicial reasoning is to decide on the result, and then rhetorically justify it with particular interpretations of legal rules and facts? This paper applies the descriptive theory of legal realism in a particular context (Australian constitutional law) alongside a qualitative empirical study to help decide whether legal formalism or legal realism best explains High Court decision-making.

Dr Jeremy Patrick is a Lecturer in the University of Southern Queensland. He has published multiple journal articles on constitutional law and law and religion. He is co-editor of Constitutional Recognition of First Peoples in Australia: Theories and Comparative Perspectives (Federation Press, 2016) and The Impact of Law’s History: What’s Past is Prologue (Palgrave, 2022), and author of Faith or Fraud: Fortune-telling, Spirituality, and the Law (UBC Press, 2020).

For more information, please contact the School of Law and Justice.