Conclusions

This book has identified substantial differences between the philosophies of the courts of Australia, Canada, Germany, India, South Africa, and the United States with respect to interpretations of their constitutions. The differences can be characterised mainly in terms of the stronger attraction of some courts to legalism. Legalism in constitutional law has been associated with various tendencies, including literalism, formalism, positivism, and originalism. Legalism is used in a purely descriptive sense, not to applaud or to denigrate, but merely to denote interpretive philosophies motivated by two main concerns. One is disapproval of judicial discretion - of decisionmaking based on judges' values and ideologies rather than objective legal norms. The other is disapproval of judicial law-making - of decision-making that changes law instead of merely applying it. Legalists disapprove of judicial discretion and law-making for various reasons, including equity among litigants, predictability, democracy and the rule of law.