AUSTRALIAN CONSTITUTIONALISM: LEGITIMACY, WILL AND REASON
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01755.x |
| Author | T. R. S. Allan |
| Date | 01 March 1988 |
| Published date | 01 March 1988 |
258
THE MODERN LAW REVIEW
[Vol. 51
interests as were expressed did not correspond to any suitable
image
of
customary inheritance law held by British officials (p.233).
This kind of counterfactual deserves further exploration. It should
also be compared with instances of the development of customary
law if we are to understand more precisely the mechanisms and the
contexts involved in the creation of this new legal form.
These are merely some of the general issues raised by this
thorough, stimulating case study. For Chanock’s book, like most if
not all of the previous contributions to the customary law debate,
is
after all a case study. Instead of envisaging it simply as one,
perhaps unrepresentative example, however, we should in my view
consider it as exemplifying a particular instance from which one
can generalise to theory.
If
it is seen in this way,
Law, Custom and
Social Order
is not simply an unusually well-written, closely argued
ethnography. It is a major contribution to our understanding
of
the
social history of African law and to the processes
of
legal change.
FRANCIS
SNYDER*
AUSTRALIAN CONSTITUTIONALISM: LEGITIMACY, WILL
AND REASON
ONE
would expect a book about the Australian Constitution,
written by the author of
The Unity
of
Law and Morality,’
to be
stimulating, and
so
it proves. In his important work,
The Australian
Commonwealth,2
M.
J.
Detmold seeks to elucidate the “deeper,
more ordered, more philosophical and perhaps more enduring
conceptions of j~stice.”~ It is not a description of the working of
the Constitution, but precisely what it claims to be: an analysis of
constitutional fundamentals. It begins with what the author describes
as a statement of claim: the High Court’s constitutional law has
failed, and politics now seems more settled and predictable than
constitutional law. He identifies the reason as the elevation of the
text of the Constitution beyond its proper status: the judges have
been legal positivists and mistaken their responsibility.
A subsequent analysis of section 92, declaring the absolute
freedom
of
interstate trade, commerce and intercourse provides a
good e~ample.~ A textualist view treats the section like a bill of
rights provision, but becomes incoherent in practice. A trader’s
freedom to trade cannot be made absolute any more than freedom
of speech can be absolute. Any freedom is relative and must be
weighed against other values which may conflict. On Detmold‘s
*
Reader in European Community Law, University College London, University of
London, 1984.
The Australian Commonwealth: A Fundamental Analysis
of
its
Constitution
(Law
Book
Co., Sydney, 1985). Chapter and page citations refer
to
this
book
unless otherwise
indicated.
London.
Quoting
Sir
Owen Dixon,
Jesting Pilate
(Melbourne,
1%5),
p.165.
‘
Chap. 3.
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