CAN THE JUDICIARY UNDERMINE STATUTORY AUTHORITY? AN AMERICAN REALIST ANALYSIS
CAN THE JUDICIARY UNDERMINE STATUTORY AUTHORITY? AN AMERICAN REALIST ANALYSIS I AN M C R EMFREY I.
INTRODUCTION
The jurisprudential field of American legal realism is a philosophical approach as to what law is. American legal realism is the jurisprudential perspective which identifies the law more-so as the decisions of the judiciary as opposed to the written rules of statute law. When a question of authority arises, the doctrine of the separation of powers is brought into question, and in particular how it outlines society’s highest authority. Understanding the full scope of this legal doctrine and how it depicts the law as it is today, is not only a great area of interest to scholars and academics, but the societies who may rely upon the future of these legal systems. American legal realism has brought a number of questions to light around how the legal system functions, like all of legal theory it allows us to develop a deeper understanding of the law.1 One question in particular is whether through this jurisprudential lens are we able to identify if the judiciary can undermine the authority of statute law. Before we can ask this question, we must first define what statute law is. For the purpose of analysing whether American legal realism undermines statute law, statute law will be construed according to the definition of ‘statute law’ according to the Australian Law Dictionary:2 [E]verything that is contained in current Acts of Parliament...
It is important to address any questions regarding the separation of powers as it is one of the constitutional principles that allows our society to function in the manner that it does.3 Anything which may indicate a breakdown of this principle should be considered heavily. The focus of this essay will be on the philosophical opinions of a number of American legal realists, and their jurisprudential opinions on, the judicial power to deny statutes, prejudice in the judiciary, and fact-scepticism. These are evaluated to determine their potential to undermine statute law in Australia today.
Submitted for assessment LAW2224. 1 Peter Landmann and Michael Webster, “Introduction: The Practical Importance of Legal Theory” (1984) 9(2) Queen’s Law Journal 237. 2 Australian Law Dictionary (3rd ed, 2017) ‘statute law’ (def 2). See also Macquarie Dictionary (online at 17 August 2021) ‘statute’ (n1, def 1a). 3 Anthony Marinac et al, Learning Law (Cambridge University Press, 2021) 93-94.
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