Elizabeth Hicks

Liz Hicks is a PhD candidate jointly supervised by Melbourne Law School and Humboldt University of Berlin. She researches in the area of comparative constitutional law and theory.

Liz holds an LLM in German and European law from Humboldt University of Berlin, funded through a scholarship from the Heinrich Böll Foundation. She also holds  Arts (German)(Hon) and Law (Hon) degrees from Monash University, where she is currently a Teaching Associate. Liz additionally trained as a solicitor in the litigation practice group of a Melbourne commercial law firm and is a freelance academic translator.

Thesis Title

Judging Values: A Comparative Study of the Relationship between Values Reasoning and Legalism in Australia and Germany

Thesis Summary

The Australian High Court (HCA) and German Federal Constitutional Court (FCC) both adhere to formalist traditions. Formalist traditions restrict the avenues open to constitutional courts to drive constitutional change. A consequence is that past judicial practice tends to constrain present and future decisions and cause judge-driven constitutional change to progress incrementally. Nonetheless, throughout their history, both the HCA and FCC have introduced new doctrines that have significantly disrupted the existing understanding of important constitutional features, and set that understanding upon a new trajectory. I refer to the decisions that introduce these new understandings as ‘turning point’ decisions.

I use case studies from the FCC and HCA to compare how the FCC and HCA have reconciled ‘turning point’ decisions with their respective traditions of formalism. In doing so, the project will use ‘turning point’ decisions, and the reasoning that constitutional courts use to justify those decisions, to develop a theory of how formalist constitutional courts understand their capacity to engage in political and/ or societal change.

Supervisors

• Professor Adrienne Stone
• Professor Cheryl Saunders

• Constitutional law and constitutional change
• Comparative law
• Public law and political theory
• Public law and political parties
• Climate litigation
• Animal law