Changes Seen, Foreseen and Unforeseen
[Extract] Most lawyers — but I venture to suggest all judges — owe an incalculable intellectual debt to their law teachers. Memories of my days at the Sydney Law School come flooding back: of Dr Currey’s inscrutable mien as he told the marvellous story of English legal history. The disciplined Pat Lane, comfortable in the analytical jurisprudence then so dominant in the constitutional law of the High Court of Australia. The mercurial Frank Hutley, whose unpredictable examination questions on the law of succession were every law student’s nightmare. The busy and elegant Gordon Samuels, instructing us in the late afternoons in the niceties of common law pleading. Little did I think I would share the Bench for a time with Hutley and Samuels. The intrepid David Benjafield, ever cheerful. The painstaking Ross Parsons. Bill Morison, whose lectures on torts were models of clarity. The gentle Ilmar Tammelo who did not live to see his beloved Estonia freed from Russian rule. The incisive Tony Blackshield, still at work in his instruction, then a promising acolyte of Julius Stone. And above all “Big Julie” himself, whose profound influence on the Sydney legal scene cannot be overstated. One distinguished judge, hesitant over the recent burst of creativity in the High Court of Australia, asserted to me recently that he could understand it only by reference to the common approach of the Sydney Justices and the influence upon them — directly or indirectly — of the instruction of Julius Stone concerning the judicial function. I take this occasion to pay tribute to my own law teachers. Instruction in the law never ceases so long as one practises its stern discipline. Every day I continue to be instructed by the passages I read, or which are read to me, from judicial and academic writing. Academic texts are used today in courts as never before. Happily (as I am sure you will agree) scholars do not now need to die in order that their works might be acknowledged in court. That was always to require too large a sacrifice which even those passionate for the law might have felt reluctant to pay. Led by the High Court of Australia, the Australian courts are now much more ready to receive and use academic writing from at home and abroad. Ours is an enormous international legal treasure-house. Computers can retrieve a huge mass of data. They can do so in a matter of minutes and from the far side of the world. Judges usually have little time to reflect languidly upon the problems before them. Often they stumble, by instinct or feeling for the law, upon decisions which point them in the right direction. Scholars, typically, have more time to give thought to where the law is, where it is going and where it has gone wrong. Ceaselessly, I press my inquisitiveness upon the barristers who appear in my court. All too often they are captives to the instruction of their faraway days in law school. The only comparative law they know is English law. That is the law which they have in books on their shelves. Whilst this is truly a wonderful source of information and opinion, we should not be hostage to it. At least since Cook v Cook,1 Australian lawyers should have realised that no English decision binds them and that no English law has more precedential authority than the law of any other land.
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Kirby, Michael Justice
"Changes Seen, Foreseen and Unforeseen,"
Legal Education Review: Vol. 4
, Article 4.
Available at: http://epublications.bond.edu.au/ler/vol4/iss2/4