But this Court is not a Parliament of policy; it is a court of law. Judicial method is not concerned with the ephemeral opinions of the community ... Judicial method starts with an understanding of the existing rules; it seeks to perceive the principle that underlies them and, at an even deeper level, the values that underlie the principle.
At the appellate level, analogy and experience, as well as logic, have a part to play. Judgments must be principled, reasoned and objective ... And, most significantly, each step in the reasoning must be exposed for public examination and criticism. –Speech by Gerard Brennan on taking the oath as Chief Justice of the High Court, 21 April 1995.
If our ideals are the values we wish to live by, then ideologies are interpretations set in concrete. They are judgments held with such conviction that appeals to reason, empathy or coherence — even to the same values — are pointless. 'Fundamentalism', in its common pejorative sense, describes this kind of irrational commitment, now widespread in our public debates, although still condemned as fanaticism when it is used to justify violence.
In ordinary, everyday moral and political argument — in letters to editors and in the unsigned comments in online journals — it is pervasive; it also poses a threat to any society which seeks to live responsibly and according to its values, especially when public intellectuals, including senior journalists, join the fashion. In the final episode of ABC1's Q&A for 2010, panellist Janet Albrechtsen had this to say on the subject of same-sex marriage:
Tony Jones (host): What's your position? Are you happy to see limits on the rights of individuals because they happen to be gay?
Albrechtsen: I don't believe in gay marriage, no. No. No.
Randa Abdel-Fattah (another panellist): I don't believe in gay marriage either, as a devout Muslim, but I think that in a secular, democratic society, I can't sustain that argument because my religious beliefs can't be imposed on others ...
Albrechtsen: But to me, Randa, it's — I'm not a Muslim and it's not a religious matter. It's not a religious matter for me.
Jones: What sort of matter is it?
Albrechtsen: I fundamentally believe that marriage is between a man and a woman and that you can have civil unions between lesbians or gay men.
No one seemed surprised or concerned that such a fluent and prolific opinion writer could not explain why she holds this opinion, much less why she wishes to impose it on others. The best she could say in support was that the opinion was her own, and that it was 'fundamental'.
We need to keep this in mind when trying to understand the same writer's recent and bizarre attack on the judges of the High Court. Instead of explaining why their decision in the asylum case was wrong — she holds a doctorate in commercial law — she accused these distinguished judges of ignoring their oath of office by refusing to apply the clear and settled law on the matter; they did this, she said, in order to pursue a 'political preference' of their own.
This is a serious charge by an influential journalist — Crikey rank her in the top ten and note her special appeal to the world of business, where her influence is compared to that of Ayn Rand. Her opinions must be taken seriously, however discomfiting to the judges, to those who disagree with her conservative views, and to critics who believe she uses a national broadsheet, not to clarify issues to further public understanding, but to promote her own ideology and policy preferences.
Writing in The Australian on 7 September Albrechtsen said: 'when they reach the lofty High Court, some judges are likely to fall for the pleasures of progressive judging where you get a wider berth to interpret law as you please'; (with sarcasm) 'more than once we have seen judges and courts in this country defer to the apparent brilliance of their own progressive minds'; (of the asylum decision) 'it was a case of the majority ... imposing their own preferred reading ... contrary to clear words of the section'; and (of Julia Gillard) 'she will work with the Coalition to ... put offshore processing beyond doubt, even to a muscular High Court intent on imposing its own policy preference about refugees'.
Before looking at the substance of these remarks it is worth comparing them to the Prime Minister's criticism. Apart from discourtesy and constitutional impropriety, Gillard compounded the offence and alarmed lawyers, conservative and liberal, by suggesting the judges had missed an opportunity to 'enhance our region's response to the evil of people smuggling', and to 'send the strongest possible message' to people smugglers and warn 'asylum seekers not to risk their lives ... and get into boats'. Gillard, herself a lawyer, knows this is not the Court's role.
In making these statements, however, she was appealing to a popular theory of law which sees judges as auxiliary legislators, filling in the gaps left open by the government's statutes; where this law is unclear they should, this theory says, use the power of their office to 'make' law so as to facilitate, not undermine, the government's aims. This view of judges led the Prime Minister to vent her displeasure at the Chief Justice for his refusal to cooperate.
Gillard spoke under stress and with little reflection, aware Labor's electoral prospects and ambitions were suffering from failure to resolve the refugee issue, and with her own position as leader subject to media speculation. Albrechtsen spoke with deliberation and with what reads like a token of courtesy — she concedes, puzzlingly, that French CJ and the other majority judges were nevertheless 'entitled' to find as they did.
This is puzzling because she also complains that they failed to apply the law: they had made a 'political decision' rather than applying 'the clear words of the section'. She implies the Court did this knowingly because it was bent on 'imposing its own policy preference about refugees'. There is a serious problem of coherence here. How can they be 'entitled' to play politics if they have sworn an oath to decide all cases according to the law? Is she really saying they have a right to make decisions they know are wrong in law?
Despite this remark her charge is a grave one and we need to see what, if any, substance it has. What is both clear and relevant is that Albrechtsen believes decisions of this kind are made by 'interventionist' or 'activist' judges even when the law on the matter is clear and settled. Those who share her views often call the latter 'black letter law' — the law found in black ink in leading textbooks, authoritative past decisions, and in the clear words of statutes and regulations.
The first problem with this thesis is that this is not the law which takes up the time of the appellate courts, and least of all the High Court. Lawyers come to court because they disagree over what the law requires or allows. Even when opposing lawyers think the law is clear and settled, each thinks it is clear and settled in favour of his client. Black letter law merits the title because it is demonstrably the law — you only have to look at the cases or textbooks, or read the sections of the Act. Black letter law is by definition non-controversial; it troubles neither lawyers nor courts.
It is precisely because the right legal answer is so often not demonstrable that courts are needed to adjudicate. They must, as Brennan explained, judge which interpretation of the disputed law is more consistent with legal principles which underlie the law as a whole; to do this they must read these principles in light of the values which best explain their role and importance. His speech has value for aspiring lawyers and especially students of legal theory, and I cite one more passage:
The second promise is to 'do right to all manner of people according to law without fear or favour, affection or ill-will' ... the oath or affirmation is taken by every judge. It is rich in meaning. It precludes partisanship for a cause, however worthy to the eyes of a protagonist that cause may be.
It forbids any judge to regard himself or herself as a representative of a section of society. It forbids partiality and, most importantly, it commands independence from any influence that might improperly tilt the scales of justice. When the case is heard, the judge must decide it in the lonely room of his or her own conscience but in accordance with the law. That is the way in which right is done without fear or favour, affection or ill-will.
Like the opening quote one has to read this again. Thoughtful, precise and resonant, but above all respectful of the intelligence and integrity of one's audience, this is the voice of the Age of Reason — one can imagine Burke, Hume and Johnston nodding in approval. But this is not Albrechtsen's thesis and we must return to her idea that correct legal answers will be transparently correct, such that experienced lawyers will, if they are honest and conscientious and not trying to shape the law to suit their own interests or preferences, agree on the right answer. Why she holds this congenial view is unclear, but it has little to do with the world of legal controversy.
The second problem is her claim that, in the elevated realm of the High Court, 'you get a wider berth to interpret law as you please'. What on earth does this mean? Is she saying that because these judges have the last word on the subject and their opinion is conclusive, they can therefore ignore legal rules and principles and do what they like?
This is a remarkable claim. It is akin to saying that an AFL umpire, because he must interpret rules of fair play and because his interpretation will be conclusive for that game, has a 'wider berth' to interpret rules as he pleases: if he pleases he can, presumably, rule in favour of a losing team to keep the game more thrilling, or in favour of the team he likes. It is a claim one might expect to find in unsigned online comments, not in the opinions of public intellectuals.
It will perplex readers familiar with Albrechtsen's long crusade against 'activist' judges. Given her view that there are right answers to controversial legal issues (she must believe this if she wants to condemn these judges for ignoring them) why does she think ultimate appellate courts are entitled to ignore the rules and principles which make up the rich history of the law and which, because they contain these answers — albeit through a glass darkly — obligate lesser courts in the hierarchy?
Why does she suppose our most distinguished judges, who spend demanding lives — the work load is enormous, calling for prodigious reading, and the resolution of difficult issues of principle — and who swear to uphold the rights of all citizens according to these standards, are free to give up the task and rule for one party if it will advance some social policy or political goal they favour?
Is it possible that this is the only reason she can imagine to explain why some of the best legal minds in the nation, when conscientiously interpreting unclear law, might reach conclusions different from her own?
Because Albrechtsen has no answers to these questions we need to ask what vision of law could inspire an accomplished journalist to write this article. She said what the Prime Minister had said earlier — to universal criticism — that the judges made a political decision not a legal one. But whereas Gillard was upset because they made the wrong decision — they should have supported her — Albrechtsen began well; she said they were wrong in principle to make a political decision when the law was clear and settled, as in her view it was.
Almost all lawyers reject Gillard's view and support this statement of principle — judges should not make political decisions and should apply the clear law. If Albrechtsen had stopped here, and not felt obliged to say they were 'entitled' to rule as they did, her argument would still be wrong but at least intelligible. The reason it is wrong is that her assertion that the law was clear and settled is manifestly untrue.
It is refuted by the fact that senior counsel could not agree and, after argument from both sides and careful study of the Act in light of long-settled principles of statutory interpretation, our most authoritative judges were unable to reach a unanimous decision. What further evidence does one need to conclude the law is unclear?
This is not to deny that Albrechtsen's view of the law may, in the end, be correct. Academic journals are full of articles by eminent scholars who argue, often persuasively, that wise judges have made wrong decisions — which is why good law schools will encourage students to read both majority and dissenting judgments in key cases. But we need a good deal more than this to justify her claim that the judges abused their office to make a political, not a legal, decision.
Lawyers who have studied jurisprudence will recognise in her argument a theory of law which is part of a family of ideas known as 'legal realism', which emphasise the influence of personal values and innate dispositions — sometimes referred to as the 'subjective factor' — in the decision. Harsher critics of this movement, a product of American law schools, believe it began with a few harmless platitudes and, after decades of scholarship, managed to translate them into clichés and homilies.
The theory makes a dogmatic claim: where there is no clear rule it says judges can or must decide (there are variations), not by arguments of legal principle, but by choosing a social policy or goal and writing a judgment to give it effect. Because, so the theory says, judges cannot help doing this, they ought to do it as well as they can, and openly. When Albrechtsen says appellate judges have 'a wider berth' to interpret law as they please she is putting her version of this realist theory.
Hence the majority were in her view wrong, not because judges have no right to legislate policy, but because the law being clear they had no right to move into legislative mode. Why she thinks the law was clear and the High Court wrong remains a mystery, but it may not be unfair to see in it something of the same fundamentalism underlying her views on same-sex marriage.
Much more important, because it is central to debate on an Australian bill of rights — and more generally to the logic of moral reasoning — is the idea that judges cannot avoid 'making law' when called to interpret abstract principles. Nearly all critics of a bill of rights — and many supporters — think judges must 'legislate' where the law is silent or unclear.
Since virtually every case likely to arise under the fuzzy principles of a bill of rights will by definition be a case of unclear law, it follows that such a bill cannot be a statement much less a safeguard of our rights, but a licence to judges to grant us whatever rights they deem fit, according to whatever criteria seem to them appropriate.
This leaves us with an invidious choice between 'activist' judges who use the discretion to make law based on their personal values and political ideologies — which is clearly undemocratic — and conservative judges who, in order to respect democratic principles, must deny a remedy to victims of injustice, including the injustice of laws made by yesterday's judges.
A striking feature of the debate is that reformers and conservatives agree there can be no such thing as unclear or inchoate or implicit law. Most seem unaware, however, that this is a contested claim in conceptual philosophy, much easier to assert than to defend. This philosophical issue, which has prompted several books and hundreds of articles in recent decades, is by far the most important debate in contemporary jurisprudence.
This is largely due to the influence of one man. When Ronald Dworkin was appointed to the Oxford Chair of Jurisprudence in 1969 he had already laid the foundations for his refutation of legal positivism, a general theory of legal reasoning which also underlies the view that unclear law means no law. There is no space here to attempt even a summary, only to convey something of its logic (succinctly captured in the first quote from Brennan) by looking briefly at two cases, one a ruling famous in Anglo-Australian civil law, the other a decision which ended racial apartheid in US schools, an ideal of justice beyond the reach of any democratic authority, state or federal.
Donoghue v Stevenson, the 1932 House of Lords case of the snail in the ginger beer bottle, is the most famous decision in the law of civil liability, familiar to all law students for its unifying principle — foreseeability of harm — to explain previous cases where the courts had found liability for negligent injury. This principle provided a general justification for 'a wilderness of single instances' and a basis to extend liability to new areas.
Students are told that it freed judges from the rusted shackles of ancient categories of liability (actions 'on the case') but in reality it freed their minds, at least for a time, from the cobwebs of a superficial theory of precedent. However that may be, the idea that a duty of care arises for creating a risk of harm is now the backbone of tort liability.
The reasoning which achieved this is the speech of Lord Atkin, read in light of his historical scholarship — his explanation of the issues at stake in earlier, seminal cases. It is not the reasoning of a politician arguing for legislation. There is no appeal to benefits likely to accrue from 'making' a new legal principle to further extend tort liability, much less any consideration of the costs to manufacturers and insurers and ultimately to the competitiveness of British industry. None of these important economic or utilitarian factors played any role at all.
Instead Lord Atkin did what Brennan intimated all responsible judges do — he pursued an ideal of justice implicit in any theory of precedent viz. that like cases be treated alike. In doing so he offered a better explanation than previous judges had of what constituted their 'likeness' — what differentiated past cases where plaintiffs could sue for negligence from cases where such actions had failed, as well as cases where unimaginative lawyers advised clients not to sue because they could find no specific precedent in the law reports.
This logic of argument is what makes Lord Atkin's speech a paradigm for Dworkin's model of Hercules. He was not searching for an explicit verbal formula — a generalised statement of liability hidden somewhere in the past cases (there were none), but asking himself if the reasons given for a duty of care in these cases, read in light of earlier and later judgments — as well as cases yet to come — provided the most coherent foundation for negligence liability.
While this conception of principled reasoning continues to baffle Dworkin's positivist critics, good judges simply take it for granted; it would, in fact, be hard to find a more precise account than in the opening quote.
The issue of conceptual philosophy then, is whether the principle of risk — foreseeability of harm — is the product of a supposed right to make a legislative 'choice' (in which case if Lord Atkin had chosen to protect industry this would, according to 'realists', be just as valid), or a requirement of substantive consistency in interpreting past authorities; whether it was a more principled view of the theory of precedent because it was more sensitive to the difference between inconsistencies and exceptions. That is, more sensitive to the values which give point to this distinction.
The second example is the 1954 case of Brown v. Board of Education, where the US bill of rights provided legal protection when, from ignorance, prejudice or self-interest, a community through its government were treating a minority as second-class citizens. Racial segregation in US schools had for decades rested on a widely shared belief, reflected in Supreme Court rulings, that the equal protection clause of the Bill of Rights allowed 'equal but separate' schools.
The Court rejected this on evidence that it led black children to see themselves as inferior, thus institutionalising prejudice and defeating the ideal of fairness implicit in this constitutional guarantee. The case deserves to be celebrated because of its jurisprudential integrity — that it restored priority to legal principle over judicial opinion — not its political correctness.
Brown's case is a dramatic reminder of the social and political consequences which may flow from an interpretation of constitutional principle — of the immense changes it may force on government to avoid the sacrifice of individual rights to majoritarian goals; which is why so many critics (who, depending on whether they are 'personal' or 'property' rights, range across the political spectrum) believe no court should have this authority. They might not question the values which underlie our rights but they want elected politicians, not judges, to interpret them.
The case for an Australian bill has stalled precisely on this point, because those who favour it cannot meet the conservative objection that unelected judges who interpret abstract principles are making political decisions; they have no answer because most of them share this belief.
If legal principles are — as Dworkin has argued over the past half-century — 'weighted' standards which also have a point, there is no reason in either fact or logic why judges cannot be charged to make decisions based on judgments of their weight as well as their meaning and requirement, in accordance with past decisions whose authority no one disputes. This is no more a 'political' act than the judgments they make of 'non-democratic' common law principles on a daily basis.
The argument for a justiciable bill of rights rests on the fact that interpreting legal principles, as described in the second quote from Brennan, is an intrinsically judicial exercise in Dworkin's sense and because — as in Brown's Case — it is the only way to defend our most basic rights when the community, or its representatives, finds it expedient to deny them, or simply does not care.
However that may be, the larger debate on the role of judges and the nature of abstract rights continues. In recent decades some of the most interesting and readable essays on these topics have appeared in the New York Review of Books, usually when appointments are being considered to the US Supreme Court.
But to return to where this essay began: Albrechtsen does not seem to realise she impugns the integrity of the judges when she accuses them of making a decision based on a personal political preference when they knew, or should in her view have known, that the law required a verdict for the Government. It shows how far this popular idea of judicial responsibility, with its lazy appeal to post-modernist thinking, has seeped into the body politic.
She offers no support other than that her view of the law is different. She set off under full sail with a strong breeze, but foundered on the rocks and shoals of a notoriously superficial theory of law; she should have paused to ask herself, before setting course, why no appellate judge has ever taken it seriously.
Max Atkinson is a former senior lecturer of the Law School, University of Tasmania. His main areas of interest are in legal and moral philosophy, especially issues to do with rights, values, justice and punishment.