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13 Oxford U. Commw. L.J. 1 (2013)

handle is hein.journals/oxuclwj13 and id is 1 raw text is: Oy/ Uni 'crsqj Commonealt/i La jon nal DOLI 3) 147! 11 THE TRIVIAL NATURE OF STRICT LEGALISM DR FRANK CARRIGAN* A INTRODUCTION In a series of articlesJohn Gava has argued for judges to apply a strict legalist style of judging in contract cases.,' Ga a's view thatjudges must be held accountable to a judicial method based on strict legalism is the guiding principle that animates his scholarship. It is a compelling standpoint that invites a searching analysis. In brief, the purpose of this short paper is to pick up on the implications of Ga a's suggestion that whilst strict legalism is right to exhibit fidelity to the concept of law as a system of rules it may wx ell be 'an inappropriate style of judging for the modern world'.' In developing this theme Gava considers the idea that strict legalism is 'true but trivial' At first blush this seems a strange admission from someone so strongly x edded to doctrinal scholarship. But upon closer investigation Gava is clearly not stepping back from his championing of strict legalism. His aim is to reinforce the belief that departing from the clarity of the rules based system opens a Pandora's Box. To support his premise Gava observes that studies have empirically highlighted that at the market level contract laA, is of marginal importance to business people when planning transactions or settling disputes.4 For Gava this reality makes judges driven by the goal of shaping contract doctrine to support the market quixotic figures. They are adopting policy considerations in contract cases that aim at facilitating transactional practice without taking into account wx hether commerce appreciates or requires their proactive brand of legal reasoning.' In contrast to misplaced judicial activism Gava opines that formal contract law rules offer market participants clear blue lines to transact and a cogent settlement mechanism if necessaryx. Gava rebukes the instrumentalist * Macquaric niversity Law School. 'Jolhn Gava, 'Sir Owiei Dio n, Strict Legalism arid AcRae v Commoz cab Dpo sa! C omm' (2009) 90xlird Ini ( sy io mnwahh lix Jounl 141;John Ga, A Study in Judging- Sir Oxci Dixoni arid AcDonal . D , La clie., 00) ) 2 Autralian Bar Revi 77;Jon Ga a. 'Amther S(udy in Judging: Sir Ox ' Dixon and I Jon (201) 26Journal o(fContrac( Law 243;John Gava, 'WVhen Dixon Noided: Further Studies of Sir Owen Dixon's ContractsJurispruderce (2011) 33 Sydney L~aw Rc6cw 157. J oli( Gava, 'Dixoriian Strict Legalism, ldl!o v Daring lend Stevedoitn and Con tractig in the Real World' (2010) 30 OxIord Journal oi lgal Swudis 519, 53 7. ibid 531. ibid 538. 5 ibid 539. Sibid 542.

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