Are We All Nominalists Now?

Abstract

Justice Michael Kirby, a judge of the High Court of Australia, sets out to explain the inescapably creative role involved in the work of the court in giving meaning to ambiguous constitutional and statutory words and common law concepts. Uninformed commentators might call judges performing such functions as "nominalists". But few, if any, Australian judges now adhere to constitutional interpretation according to notions of original intent. A "functional" approach is taken. This approach is illustrated by reference to recent cases on the word "alien" and the phrase "trial by jury" in the Australian Constitution. According to the author this is not a weakness but a strength of constitutional elaboration. Judges and lawyers, being concerned about justice under law, are never "on automatic pilot".