Book Review: Incomplete Theorizing in the High Court
| Author | Adrienne Stone |
| DOI | 10.22145/flr.26.1.8 |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
| Subject Matter | Comment and Book Review |
COMMENT
AND
BOOK
REVIEW
INCOMPLETE
THEORIZING
IN
THE
HIGH
COURT
Adrienne Stone"
Review
Essay:
Cass
R
Sunstein,
Legal Reasoning and Political Conflict
INTRODUCTION
Cass Sunstein's recent book,
Legal
Reasoning
and
Political
Conflict,l
draws
together
much
of his recent
work
on
judicial decision-making. In this refreshingly accessible account,
his particular concern is the problem of legal decision-making
in
adiverse society.
Although
at
its
most
general the book addresses all legal decision-making, Sunstein's
principal concern is judicial decision-making,2
and
Iwill discuss
it
in
that
context. The
book
covers
much
ground
but
the
most
important
and
original feature of his
argument
is his description
and
defence of "incompletely theorized agreements".3
In
Sunstein's
view, acentral
and
desirable feature of legal reasoning is the
use
of agreements which
do
not
contain acomplete account of the
underlying
theories
or
principles
which
justify
them.
A
second
major
portion
of the book contains Sunstein's consideration
of
the
debate
over
the
use,
in
legal decision-making, of rules versus
more
open
ended
standards.
The
book
concludes
with
Sunstein's review of the legal interpretation debate
and
a
short
explication of his
preferred
approach
to constitutional
and
statutory
interpretation.
In
this
short
review,
my
principal interest is his account of incompletely theorized
agreements. Therefore, except
where
they illuminate
that
part
of his
argument,
I
do
not
propose
to discuss those later sections
in
detail.
In
the final
part
of this review, Iwill
consider
the
relevance of Sunstein's
approach
to judicial decision-making to
some
recent developments
in
the
High
Court
of Australia.
*
1
2
3
BA (UNSW),
LLB
(UNSW), LLM (Colum).
Thanks
are
due
to Anne-Marie Allgrove for
her
patient
and
insightful review of
an
earlier draft.
C R Sunstein, Legal Reasoning and Political Conflict (1996).
Ibid
at
39.
Ibid
at
35-61.
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