Part IV Practice and Process, Ch.20 Judicial Reasoning

This chapter identifies the methods and techniques that characterize judicial reasoning about constitutional law in Australia, as well as significant points of agreement and disagreement thereof. Here, ‘constitutional reasoning’ refers to the explanation and justification given to the application of constitutional principles to specific circumstances. In common law systems, constitutional reasoning is most commonly understood as ‘judicial reasoning’. In Australia, its focus is usually the Constitution of the Commonwealth. However, not all constitutional reasoning takes this form. In particular, the chapter focuses only on the narrower conception of constitutional reasoning as judicial reasoning. This focus is justified partly by central tenets of Australian constitutionalism itself. Unlike the in the United States, the courts' power to interpret and enforce the Constitution has never been the subject of serious controversy.