Path Dependency, the High Court, and the Constitution

Abstract

Path dependence is a concept that originally arose in the field of economics before gaining currency with political scientists and historians. The essence of path dependency is that temporality matters: once a decision is made, it often becomes “locked-in” and persists despite the existence of more efficient or otherwise better alternatives that could become apparent later. The tentative hypothesis advanced here is that the concept of path dependency is useful for understanding why some doctrines of Australian constitutional law have changed dramatically since first developed while others remain largely the same. An example of one arguably path-dependent line of doctrine and one arguably non-path-dependent line of doctrine are discussed and analysed to demonstrate the possibilities and limitations of the theory.