Frank Carrigan, ‘The Trivial Nature of Strict Legalism’; and reply by John Gava

The purpose of the paper is to engage in a searching analysis of John Gava’s strict legalist interpretation of how judges decide contract cases. In a series of articles Gava has expressed fidelity to the idea of law as a system of rules. For Gava the judicial method is based on viewing law as an autonomous discipline. Utilizing the work of cardinal thinkers Gava’s conceptual framework is challenged. The aim is to pinpoint the asymmetrical world of contract bargaining and highlight that it is imprudent to promote the view that law exists in an intellectual vacuum immune to political and economic forces. The paper highlights that Gava’s strict legalism is not a minority position in legal circles. There is a resurgence in doctrinal scholarship. The paper argues that there are no neutral readings of law and the theoretical and political presuppositions of strict legalism require interrogation.

Frank Carrigan argues that the legalistic judging of Sir Owen Dixon is a trivial matter because it merely reproduces and reinforces the substantive inequality between persons in our society. I agree that inequality in our society is real and needs to be addressed. However, given the limitations of judges and the institutional limitations of the courts, contract law is a poor vehicle for overcoming such inequality when compared to the many social, economic and political policy options open to governments. Not only, however, is contract law a misconceived tool for the amelioration of poverty; to use it in this way runs the real risk of destroying one of its most significant attributes—the formal equality enshrined in the common law of contract.

Carrigan, Frank, ‘The Trivial Nature of Strict Legalism‘. Oxford University Commonwealth Law Journal, Volume 13, Number 1, September 2013, pp. 1-7(7).
Gava, John, ‘Contract Law and Inequality — A Response to Frank Carrigan‘. Oxford University Commonwealth Law Journal, Volume 13, Number 1, September 2013, pp. 9-15(7).

First posted 2013-10-21 15:56:46

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