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16 October, 2009  
Law, politics and a Charter of Rights

Law as an extension of politics … Objection to a Charter of Rights on the grounds that it would drag judges into the political arena … But judges are doing politics already

imageIn 2000 the Melbourne University Law Review published A Brief History of Critique in Australian Legal Education by Nickolas James (now Dr James).

He pointed out that historically the existence of law schools within Australian universities …

“was grudgingly accepted as a reality by other scholars, but the discipline was accorded a relatively low status, and the law schools were perceived as mere ‘adjuncts to the profession rather than truly academic institutions’.”

The problem is that there are few, if any, “right answers” in law to anything.

As retired Federal Court Justice Russell Fox has written in his book Justice in the Twenty-First Century (at page 64):

“Practitioners nowadays have much difficulty in stating conclusions with confidence. They seldom do so. Their advice usually temporises, bristling with possibles and probables, and plenty of qualifications about the uncertainties of litigation. Perhaps this was always so, to a degree, but advice now tends to be more inconclusive than it was.”

Unlike most disciplines, the “law” is not getting better at doing whatever it does, with the exception of the extracting fees part.

imageIf the “law” was a rigorous discipline, legal academia would fully explore whether it is just the continuation of politics by other means.

However, if they headed off down that track too far, they would remind one of the theologians who proclaimed God is dead.

It is a bit difficult to run a theology faculty on that basis, just as it is difficult for legal academics to avoid being shunted off to political science departments if they start saying that law is politics.

In the 1970s and 1980s the legal realism and critical legal studies movements (both of which pushed the law is politics barrow) found themselves under attack.

In Australia this in part led to the Pearce Report (1987) on Australian legal education. Dr James says:

“The Pearce Report … indicated that ‘radical’ movements such as CLS were beyond the bounds of appropriate theoretical and critical inquiry in law schools… The Pearce Report particularly criticised the teaching of law in the Macquarie University Law School and recommended that the school be either phased out or radically restructured. This recommendation was linked to the identification of some of the school’s staff with the CLS movement.”

imageIt was all a bit McCarthyist (snap). Legal academics took note. Law may well be politics, but keep off that subject.

Every lawyer ever hoping to be a judge must participate in the charade that judges do law and politicians do politics.

Senator: “Will you apply the law as it is written? Or do you regard yourself as free to make law”?

Candidate: “Senator, I regard myself as bound to apply the law as it is written. It would be improper for me to make the law. That’s the job of the legislature.

Sophisticates regard these exchanges as mere rhetoric… Both the Senator and the Candidate know that that judges make the law.”

The National Human Rights Consultation Committee has recommended that Australia create a charter of “rights” as an additional tier of “law” on top of all other law.

One of the principal objections to such a charter is that it would drag judges into the political arena and give them too much power, with a submission from former NSW Supreme Court judge Malcolm McLelland QC describing the rights in a Human Rights Act as, “broad statements of abstract social values treated as rules of law” that tend to be couched in imagevague and general language (page 285).

However, judges do do politics and the law is full of vague and general language already. As Chief Justice French (pic) said on July 1:

“Some statutes lay down legal standards expressed in broad terms rather than legal rules. These involve the use of evaluative expressions such as ‘good faith’ which appears in over 160 Commonwealth Acts, ‘reasonable’ which appears in over 140, the ‘interests of justice’ which appears in at least 50 Acts and ‘unconscionable’ which appears in at least 12. There are also terms like ‘just cause’ and ‘just excuse’.”

Of course, a Charter would add more complexity, but the time taken by litigation is primarily governed by how long the fees can be made to last, and there is already so much “law” that can be used for this purpose in any given case that a bit more won’t make much difference.

And who knows, perhaps some judge somewhere may be able to “do right” (as they typically swear they will on their appointment) by resorting to the words of a charter.

imageBut it won’t be the words of a charter that are the critical factor in making that happen.

Queensland Court of Appeal Justice Pat Keane (pic) said in a speech he gave in June last year:

“Judge Learned Hand, the greatest American judge never to sit upon the Supreme Court, wrote: ‘I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it’.”

But it’s good business for lawyers to pretend otherwise.


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