Can the legal method produce justice? Contemporary reflections on Mary Jane Mossman

Abstract

As Mary Jane Mossman has identified, and despite it containing ample room for judges to choose, legal method has customarily been used as a tool to preserve the status quo and exclude other perspectives. This Brief combines personal experiences in the law with contemporary cases to demonstrate why justice is still so rare. I argue that it is not possible for justice to be consistently achieved without changing the predominant legal method.

As the recent decision of the Full Bench of the Federal Court in Pearson v Minister for Home Affairs demonstrated, there is immense power embedded within law to achieve justice. ¹ The Court’s decision had the effect of immediately releasing over 100 detainees from immigration detention. In response, the government promptly tabled a Bill attempting to subvert the Court’s findings. ² But what I found remarkable was the deliberate and sober nature of a judgment which challenged the status quo: the Court used accepted legal method to dissect numerous pieces of state and federal legislation and cited 24 cases to reach its verdict. Inspired by the writing of Mary Jane Mossman, ³ I now critique the highly structured framework of legal method to ask why such examples of justice are so rare.

A common misconception about the law is that it is synonymous with justice. Always. If it is in the law, it must be right. At least that is what I thought before I became a lawyer. When applying for law school, I took great pride in stating that I wanted to study law to pursue justice. It must have assisted my cause because my application was accepted. We learnt about remarkable cases such as Mabo v Queensland (No 2) (‘Mabo’), ⁴ Commonwealth v Tasmania (‘Tasmanian Dam Case’) ⁵ and Minister for Immigration and Ethnic Affairs v Teoh. ⁶ It took me many years to understand what made those cases remarkable: they were rare. Justice appeared to have been served, because in the quest for fairness those judgments challenged powerful interests and the doctrine of precedent.

The fact that cases like these are the exception, rather than the rule, tends to say something about the conceptual framework of the Australian legal system. To some, those cases may seem radical – akin to judges making law as they please in order to achieve justice. But to others, for instance Indigenous peoples, a supposedly revolutionary case such as Mabo did not alter anything. Even after the Native Title Act 1993 (Cth) created a native title claims process based on common law rules formulated by the High Court in Mabo, it had the perverse consequence of requiring traditional owners to apply for rights over land they had never lost. ⁷

According to Irene Watson,

[t]he doctrine of terra nullius was used to legally annihilate Aboriginal peoples, and this position has not been altered post-Mabo (No 2) and the introduction of Native Title legislation. If anything, these laws have entrenched the colonisers’ quest for legitimacy. ⁸

Why? There are many explanations, but a major reason is the predominant legal method itself. From their first day at law school, students are taught that there is a ‘method’ to legal reasoning. ⁹ According to Mossman, this method is law’s process of determining facts, choosing and applying principles, and reaching a rational conclusion supported by both evidence and legal principles. ¹⁰ Mossman highlights the three main aspects of legal method as: (1) characterisation of the issues; (2) choice of legal precedent to determine the validity of the claims; and (3) process of statutory interpretation, especially in determining the effect of statutes to alter common law principles. ¹¹

Legal method is a boundary-defining exercise used to distinguish legal considerations from others such as political and moral considerations. ¹² Mossman uses the example of the right for women to become lawyers and senators in Canada having been expressed as simply a matter of interpreting the law: issues like the benefit to women or society in general, for example, were not deemed to be legal considerations and thus not examined. ¹³ This creates an illusion of neutrality over the legal process. However, as Ann Scales explains, the pretence to neutrality also presents special obstacles to historically disempowered groups because it can too often allow those with power to convert their comfortable version of experience into an ‘objective’ fact. ¹⁴ When this happens, inquiry takes place within an already-existing framework of knowledge, allowing judges to uncritically accept mainstream ideas as essential parts of their decision-making process. ¹⁵

A further way that legal method maintains the status quo is through rigid adherence to the principle of stare decisis – the binding authority of precedent. ¹⁶ Mossman describes that if ‘precedent is required in order to uphold a claim, it is only existing claims which will receive legal recognition; the doctrine of precedent thus becomes a powerful tool for maintaining the status quo’. ¹⁷ But it does also offer choices about what aspects of a claim are relevant or similar to earlier decisions. And this presents what Anne Worrall identifies as the paradox of legal method: it can be difficult to determine which features of a claim are the decisive ones because ‘if legal reasoning were as rigid as the doctrine of precedent suggests, there would be no need for the eloquence and rhetoric of lawyers, for the facts would speak for themselves’. ¹⁸ However, although the paradoxical flexibility of legal method offers potential for justice, any claim must still be normalised by locating it within categories that are already known and recognised. ¹⁹

Lori Beaman-Hall calls legal method ‘the “tool” of the legal “trade”’. ²⁰ Law students must read voluminous amounts of caselaw in the expectation that they will learn to think like a lawyer by extracting only the most salient points. ²¹ This method enables lawyers to become skilled at sorting through a client’s story to locate what established legal discourse would define as the most relevant issues. ²² Simon Rice has written about how the practising legal profession has claimed control of legal education, and refers to an observation by Margaret Thornton that the dominant focus currently is on ‘legal vocationalism’ which teaches students only what they need to know to practice. ²³ This move towards more law and the creeping hegemony of the legal order makes it difficult to resist the temptation that only law can offer the promise of a solution. ²⁴ And it is through legal method that law is able to place itself above other forms of knowledge. ²⁵ Sure, there may be separate courses with feminist approaches and content, and even ‘malestream’ courses which are sometimes taught using a feminist perspective, ²⁶ but according to Mossman the point is that, ‘adding women’s experience to the law school curriculum cannot transform our perspective of law unless it also transforms legal method.’ ²⁷

Eventually, whether at law school or later in private practice, to succeed in the profession even the most resistant person must succumb to the prevailing legal method.

For example, when I was practicing and later a judge’s associate, there was a barrister prominent in the field of migration who only represented applicants (ie, against the Minister). In five or so years, he must have been involved in hundreds of cases, but I do not remember him succeeding in any which I observed. I once asked a very experienced solicitor why the barrister bothered when he nearly always lost. The solicitor explained the barrister’s astute strategy: he would accept cases on a particular point of law and keep chipping away. Even if judgment was unfavourable, it may contain a sentence that could be used in a later case to build the desired argument.

I liken this to the dilemma referred to by Mossman – that, however much judges and practitioners are schooled on connecting with the experiences of those with different voices, legal method makes it more likely that outcomes will follow certain patterns reflecting dominant cultural norms. As pointed out by Murray Gleeson, former Chief Justice of Australia:

Judges are appointed to interpret and apply the values inherent in the law. Within the limits of legal method, they may disagree about those values. But they have no right to throw off the constraints of legal methodology. In particular, they have no right to base their decisions as to the validity of legislation upon their personal approval or disapproval of the policy of the legislation. When they do so, they forfeit their legitimacy. ²⁸

Legal method is an exercise in legitimisation. As noted by Mossman (and alluded to by Gleeson), there is in fact ample room within legal method for the ability to choose ‘which precedents are relevant and which approach to statutory interpretation is preferred; and choice as to whether the ideas of the mainstream or those of the margins are appropriate’. ²⁹

Furthermore, this does not necessarily mean that inclusion of other perspectives into judgments requires a journey to the extremities. As has been demonstrated by the Feminist Judgments Projects and the Critical Judgments Projects, it is possible to judge from, among others, feminist, Indigenous and ecocentric perspectives while still using legal formalism as legal method. ³⁰ In this way, judges do not need to specifically identify a theoretical approach – they can simply focus on the practical application of precedents and statutory interpretations. ³¹

Mossman’s article made me reflect upon my experiences in my time at the Court. The judge for whom I was an associate heard family law as well as migration cases. A common element found in both areas of law is the frequency of cases involving vulnerable classes of people. While family law operates under its own system, it is still subject to the legal method, meaning that it was fundamentally ‘designed with the conception of the adversarial lawyer in mind’. ³² Furthermore, the assumption of gender neutrality has very different consequences for males and females. ³³ For example, taking a sameness approach to property distribution based on liberal principles of autonomy can be problematic because, as Marcia Neave points out, it ignores the social circumstances in which women are already disadvantaged by being forced to choose between wage-earning, caring for children, or ‘attempting to have the best (or worst) of both worlds’. ³⁴

Migration falls within the purview of administrative law, though, which presents a different challenge for legal method as it involves disputes about decisions made by governments. Thus, migration is a politically sensitive issue and governments have regularly attempted to limit the ability of litigants to seek judicial review. ³⁵ Another major difficulty, particularly for refugees, is that judges cannot make determinations about the merits of a claim: they can only determine whether the Minister’s delegate’s decision has been affected by jurisdictional error. ³⁶ This has the effect of conferring neutrality upon judges’ decisions: they do law, not social justice. The trend towards linking migration law with national security has contributed to a sense of seriousness that can result in the expeditious tabling of the previously mentioned Migration Amendment (Aggregate Sentences) Bill 2023, and has even prompted the Full Bench of the Federal Court to sit on a Sunday. ³⁷ In addition, the sheer complexity of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) ³⁸ help to create the perception that migration law is more ‘substantial’ than family law.

Thus, it was in family law that I saw most evidence of the potential for judicial discretion. In our chambers, a common enough remark was that there was ‘no law in family law’. It was certainly true that practitioners rarely cited caselaw or legislation, and judgments were cited far less than those of migration, for example. Having spent some time criticising the doctrine of precedent, I do recognise that it can have its advantages. With less emphasis on caselaw and legislation, family law decisions were much more unpredictable – and, unlike other fields of law, the doctrine of res judicata does not apply in parenting matters. ³⁹ With wider defined boundaries, there is more scope for judicial attitudes to be expressed. Yet, despite the gibes from those who practice in other areas of law, family law is a recognisable component of the Australian legal system. It may be less rigid, but its power still relies on pillars supported by conventional legal method, ⁴⁰ and it can hardly be referred to as a project that seeks to dismantle the existing structure of law when it uses the exact same methods. ⁴¹

In conclusion, what have I learnt from my time in the law? I now know that the way legal method is defined tends to reinforce patriarchal and racial norms. Although legal method allows scope for interpretation, it does so in an already-existing framework of knowledge, which is why even the most ‘radical’ judicial decisions have not been able to break the nexus between male power, imperialism, race and neo-liberalism. Other approaches to law are important because they challenge the status quo. However, I think most feminist and Indigenous lawyers are under no illusion about the fact they have been largely unsuccessful in changing legal method. Meaningful change seems unlikely at this moment of time so, as unsatisfactory as it is, perhaps they are like the migration barrister I mentioned earlier: playing the long game and chipping away until the moment arrives.