effectively re-founded, by wool and gold, in the image of the liberalism and
capitalism of Industrial Revolution Britain, a highly individualist and rights-
conscious society. These forces remade Australia by dissolving the older mili-
tary state.
3.4.3Legal Constructivism
Alternatively, the strength of social machinery might be traceable to the very
legality that characterized both the original military society and the liberal
civilian society that succeeded it. In the beginning was the law: Australia
began with an Act of parliament: Transportation Act 24 Geo 3 c56 1784.
Within six months of the establishment of Sydney,‘There was not...even a
bridge over the Tank Stream but there was already aflourishing legal system’
(Kercher 1996, p. xix). In a new society such as this, lawyers, as Tocqueville
stressed, will constitute its sole aristocracy.^29 No aristocratic class is renowned
for its humility, and the bench in Australia has been ready to‘slaughter’
legislation under various principles of judicial review, with a‘devastating
effect...on the balance of constitution’(Hancock 1930, p. 118);^30 on occa-
sions to virtually claim the right to choose the Chief Justice; to subject entire
dimensions of economic life to judicial legislation; and several times to con-
strue the mere criticism of a court decision as contempt of court, while at the
same time bearing‘contempt for the judgement of parliament and Executive’
(Sawer 1952, p. 240). One Chief Justice declared in the early 1970s that more
important decisions had been taken in the Court House than the Parliament
House (Hirst 2009a, p. 8); he was soon to become Governor-General,and
construe the position in entirely juristic terms, with unfortunate conse-
quences for parliament and Executive
Australia, then, has been a richfield for the‘empire of law’—the cultivation
of prerogatives, refinements, extensions, and ramifications of law. But‘legal-
ism’so defined hardly defines a social philosophy. One can imagine a legalism
of contract, of property, and of tort; a legalism of individualism; the legalism
characteristic of the USA, which is indisputably a legalistic society, but one
where legalism serves individualist values. In Australia, legalism has done
(^29) Conformably, the law in Australia has produced legal dynasties of a strength and lustre
unknown in politics, the arts, or business (Fox 2015). One dynasty, the Stephens, provided
justices of the NSW Supreme Court for four successive generations. Thefirst of the dynasty was a
brother of James Stephen, the‘uncompromising legalist’Under-Secretary of the Colonial Office
(Pike 1957). 30
For much of the twentieth century the High Court was one of the world’s very few genuine
courts of constitutional review; between 1900 and 1950fifty-three laws in the USA were declared
unconstitutional, while sixty-seven laws were so declared in Australia (Davies 1958, p. 75). But,
unlike the American stance towards the US Supreme Court,‘in Australia it is still considered very
largely as being“bad form”to criticise judicial attitude and actual judgements’(Sawer 1952,
p. 238).
Theories of Australian Exceptionalism