This is the fourth in the annual Menzies Lecture series. These lectures were delivered at the Australian National University in October 1988.

Ever since Bentham attempted to “pluck the mask of Mystery from the face ofjurisprudence”, courts have been accused of legitimating their decisions by hiding their real grounds, which are necessarily subjective and partisan, behind a smokescreen of artificial and esoteric ratiocination. Such iconoclasm has, in our century, been a staple of American realism, Marxism and more recently the critical legal studies ‘movement’, all of which have inevitably influenced Australian legal theory.

It has sometimes been argued that in constitutional cases the High Court has used ‘legalism’ to confer on essentially political decisions a speciously apolitical appearance. This argument is made most carefully and thoroughly by Brian Galligan, a political scientist, in his recent study of the High Court. His argument deserves to be carefully assessed, especially if he is right to predict that a more ‘realistic’ account of judging is destined to supplant ‘legalism’ in academic and legal circles, and in the public mind.

I welcome the opportunity to respond to Jeffrey Goldsworthy’s article, “Realism about the High Court”, in which he criticises aspects of my account of the High Court’s political role in interpreting the Australian Constitution. My book, Politics of the High Court, sets out the functions that the Founders intended the Court to play — interpreting the Constitution and adjudicating high level disputes involving governments — and examines, within a historical context, how the Court has actually carried out those functions in major decisions and lines of interpretation of key sections of the Constitution. As I pointed out in the book, this is the stuff of ‘high’ politics: authoritatively determining the meaning of the Constitution which is the basic instrument of government; and in particular disputes deciding whether to overrule democratically elected governments.

Brian Galligan says that I have misread or misunderstood the whole thrust of his argument. I suggest that the shoe is on the other foot. Readers will have to decide who has misunderstood whom.