Unconvincing and Perplexing: Hutchinson and Stapleton on Judging (Response to Allan Hutchinson, Monash University Law Review, Vol. 29, P. 85, March 2003 and Jane Stapleton, Vol. 24, P. 135, December 2003) (Australia‪)‬

I INTRODUCTION Recent articles by Allan Hutchinson (1) and Jane Stapleton (2) illustrate the emerging orthodoxy in Australian legal thought that judging is, essentially, politics in another form. Hutchinson is openly critical, indeed he is scornful, of Justice Heydon's support for Sir Owen Dixon's commitment to strict legalism as the proper judicial method. For Hutchinson, judging is politics in disguise and calls for strict legalism are either naive or hypocritical. Stapleton is less directly concerned to illustrate the supposed flaws of strict legalism as a method. Instead, she advocates an openly instrumentalist role for the High Court as a way of alleviating Aboriginal disadvantage in Australia. However, implicit in this stance is a position similar to that of Hutchinson--that judging is inevitably and inescapably political.