HPL Reflective Essay

"What magic at the heart of a system of stare decisis can transform a symbol of immobility into a vehicle of change?" (Julius Stone)


The foundation of the common law system is the doctrine of precedent, or stare decisis. This doctrine is about following the past decisions in current cases with similar facts. However, due to the nature of this principle, it is difficult to keep the common law up to date with the values of contemporary society, as the judiciary are bound by this "symbol of immobility". The central tension that Stone identifies is the problem faced by the courts between having to follow precedent but also needing to deliver changes in the common law when necessary.

Methodology of Brennan J:

According to Brennan, "The peace and order of Australian society is built on the legal system." The role of the High Court is to oversee that the law is not outdated with respect to today’s society’s values. Brennan seeks to resolve the tension in the common law by identifying a set of "skeletal principles" that are the "essential doctrine of our legal system." These principles are strict doctrines that fulfil the nature of stare decisis in that the courts may not depart from them, as by doing so would completely undermine the foundations of Australian legal system. However, Brennan also realises that often past decisions may not be applicable in present cases due to changes in notions of justice and human rights. If a rule of the common law is in conflict with contemporary values, the court should depart from precedent and in doing so transforming the system of stare decisis into a ‘vehicle of change’.

Whilst referring to the decision of Attorney General (NSW) v. Brown, Brennan states: "by any civilised standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned." Thus, he recognises that previous precedent with regards to native title and the doctrine of terra nullius would be considered as discriminatory in today’s society and is able to distinguish from these precedents and base his decision on contemporary notions of justice.

Brennan’s approach suggests that he would not hesitate to depart from precedent and make new law if he believes previous decisions are inconsistent with present conceptions of justice; so long as this departure does not "fracture the skeleton of principle which gives the body of our law its shape and internal consistency."

Methodology of Dawson J:

Alternatively, Dawson’s approach to the Mabo case is far more conservative. He believes the role of making laws should be left up to the legislature and the courts should only to apply the law. This strict legalism approach means that Dawson is not seeking to resolve the tension identified in the common law by Julius Stone law. Dawson only applies existing principles of law from previous decisions when making judgements; it seems as if he accepts that the system of stare decisis should be a symbol of immobility to protect the consistency and predicability of the legal system. This methodology is opposed to Brennan’s ‘proportionality approach’, that if a precedent is seen as outdated, the courts should act to change the precedent so long as the benefits gained by executing this change will outweigh the harm done to the system.

With reference to the case of Secretary of State for India v. Sarfar Rustam Khan, Dawson mentions that the decision reached by Lord Atkin was made by applying common law methods and did not need to consider if the decision was just or unjust. Dawson fully approves of this rigid, doctrinal method of applying the law. He does not mind allowing for injustice or using outdated precedents so long as they preserve the principles of the judicial method. He elects not to come up with his own conclusion or make the law comply with contemporary values, whereas Brennan would have recognised this injustice and opted for a change in the law.

Thus, perhaps the main difference between the approaches of Brennan and Dawson JJ are their views on their roles as judges. Brennan believes it is his role as a High Court Justice to preserve the integrity of the common law, meaning he is willing to depart from existing precedent and make new law based on contemporary perceptions of justice so long as the ‘skeletal principles’ are not fractured. Dawson sees his role of High Court Justice as just to apply existing principles of law and not to make new law. Thus, he is not able to ‘transform the symbol of immobility’ as he believes the system should be a symbol of immobility.

Relative Merits:

Even though the approaches of the judges are so different, both approaches have upsides. Brennan is willing use contemporary views as a strong influence in his decision, showing that he believes the judiciary should be somewhat representative of the people and be able to make laws that reflect the values of society. He also allows influence from International Law, such as in the Western Sahara Case, to seek out notions of justice. However, Brennan is also not reckless in his departure from precedent. He identifies constraints of altering the law, ie. skeletal principles, but also states that the courts are free to alter the law so long as these skeletal principles are not fractured. This proportionality approach used by Brennan means that he tries to make the decision that will have the best outcome.

Unlike Brennan, Dawson does not believe the court should be a law making body, and the court may not depart from previous decisions even if social change has outpaced change in the common law. The principle behind this approach is that Dawson tries to preserve the system of stare decisis in its entirety and does not want to alter it in any way. This strict legalism approach means that certainty and consistency will be maintained within the common law; unfortunately, this may not always result in justice.


Thus, Dawson seems to believe the system of stare decisis should be a symbol of immobility, as it is this immobility that gives the common law its longevity, consistency and respect. Dawson sees himself as an applicant and interpreter of existing laws, not as a law maker. In contrast, the methodology used by Brennan J suggests he believes the "magic at the heart of a system of stare decisis" is the ability of judges to show authority and distinguish cases; as well as recognising changes in societal values and adopting these changes to make new laws where existing precedent is outdated. Thus, "transforming a symbol of immobility into a vehicle of change."