Roux on The Role of Legal-Professional Culture in Constitutional Interpretation

Theunis Robert Roux, University of New South Wales, has published The Role of Legal-Professional Culture in Constitutional Interpretation. Here is the abstract.

Apex courts in liberal democracies deploy a broadly shared set of reasoning methods when interpreting constitutions. And yet, judgments in constitutional law are instantly recognisable as products of a particular legal-professional culture. While they do not determine outcomes, this suggests, cultural factors supply a shared repertoire of arguments that give each decision on constitutional law a distinctive local flavour. This paper first illustrates this point through a close reading of the Australian High Court decision in the Same-Sex Marriage Case. It then pivots 180 degrees to argue that, despite that decision's immersion in the idiom of Australian legalism, it possesses some qualities that are not so very unique to Australia. The High Court's reluctance to offer 'a single, all-embracing theory of constitutional interpretation', for example, is shared by a number of other apex courts. Despite the different legal-cultural settings in which they operate, this indicates, courts have responded in similar ways to shared institutional challenges. The culturally idiosyncratic nature of constitutional interpretation, the paper concludes, is not a barrier to comparative research on this topic. Rather, sensitivity to cultural variation is a necessary step in moving towards whatever general propositions might be made.

Download the article from SSRN at the link.