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High Court judge Crennan on post modernism and the law

Margo: Now for something completely different, High Court justice Susan Crennan delivered this speech today, in Chicago, on some post-modern theories and how they help "accommodate contested values and policy considerations" in the law. I bettcha Howard's Aboriginal legislation will get a run in the High Court. And noone is mkentioning the fact that the Racial Discrimination Act will have to be overriden big time. Declaring martial law based on race is a big call. Justice Crennan, Australia's only female Hight Court Justice was appointed in late 2005. Her first speech is here. Webdiary reported her appointment here.

Scepticism and Judicial Method 

      In the relevant scholarly literature, scepticism has animated debates over the relationship between law and morality and the differences between utilitarian or positivist and reason-based theories of the law.  Scepticism has also haunted the debate over the extent to which judges and judicial methods can or should accommodate contested values and policy considerations.  These high philosophical themes oblige me to explain immediately that the aim of this paper is modest.  It is to consider briefly certain cultural theories associated with Continental philosophers such as Jean-François Lyotard, Jacques Derrida and Michel Foucault as they might interest practising barristers.

      I know it would be a mistake to assume French philosophers agree with or about each other.  When Voltaire extravagantly praised the poet and physiologist von Haller to Casanova, Casanova replied that the admiration was not mutual.  In fact, Casanova said that when he recently spoke to von Haller, von Haller disparaged Voltaire.  After a thoughtful pause Voltaire replied: 'Perhaps we are both mistaken.' 

      Lyotard, Derrida and Foucault are all members of the postmodern pantheon.  They are associated with currents of thought responding to political and social conditions of the modern state, and said to constitute an enabling ideology for improving those political and social conditions.  Broadly speaking, postmodern thinkers reject established values, grand narrative and the possibility of objective truth or knowledge.  They oppose whatever they consider to be authoritarian or elitist and they encourage relativism and pluralism.  Such thinking has fuelled some of the debates referred to as the culture wars.  

      Those who have most appropriated postmodern ideology in legal circles are liable to describe themselves simultaneously as 'subversive' and 'progressive', a formulation, or boast, which of itself immediately reflects the difficulty of seeking radical change in a justice system which has the confidence of the community.  

      Insofar as they relate to the law, the culture wars reflect a struggle between a desire to preserve our justice system as it is because it enforces normative behaviour, on the one hand, and a quite incompatible desire to be progressively liberated from those norms, on the other.

      Postmodern cultural theories are contrarian and profoundly sceptical.  They are regularly expressed in obdurately opaque language. They have proved enormously popular and influential in the academy, in Australia, America and elsewhere, especially in the humanities – in history, literature and philosophy.  .

      While the tide has now turned in those fields in the academy, the influence of such thinking has spread to both legal scholars and legal policy makers.  There is an easily discernible flavour of such thinking in the way in which contemporary debates are framed over old antinomies between 'justice' and 'law', and between 'strict legalism' (or 'originalism') and 'judicial activism'.  Legal textbooks and casebooks first published this year show and even acknowledge their indebtedness to postmodern thinking.

      Postmodern theories are also explicitly echoed in a more structural critique of our justice system. It is said that the law is a repressive construct and that the judges who administer it are part of an elite, or hegemony, and have understandings of justice and pluralism which are concomitantly incomplete. Such critiques have had their influence on calls for a different judiciary and for the transfer or dilution of the Executive's powers of appointing judges.

      Barristers commonly react to postmodern theory with some degree of alarm and puzzlement, not least because those seeking to implement such theories in the justice system seem to display deeply paradoxical attitudes.  On the one hand, they sometimes seem barely able to suppress their contempt for the present state of the law and our legal institutions and have armed themselves for battle with a strong belief in the transformative powers of a coercive bundle of social strategies known as political correctness.  Yet on the other hand, they accept that the rule of law is central to our liberal democracy.  

      It is not my purpose to attempt any comprehensive critique of the theories I have mentioned.  Nor do I suggest that there is anything wrong with challenges, even most radical and profound challenges, to our social institutions, or with profound questioning of our legal sanctions or the working assumptions behind them.  That is one of the freedoms of living in a modern liberal democracy.  What I would like to consider is some of the fine detail of the scepticism, that of Foucault in particular, and to consider that particular type of scepticism in the context of judicial method.  

      It would not be possible to do proper justice to the range, the subtleties and the nuances of postmodern thinking in the space of a short paper and I refer to Lyotard and Derrida no more that is necessary for the purposes of mentioning pervasive concepts associated with their names.

      Jean-François Lyotard (1928-1998) is best known to English speakers for his work The Postmodern Condition: A Report on Knowledge.  One of Lyotard's best known ideas is that accounts of human history consist of ‘grand’ or ‘meta’ narratives which, while focussing on events, at the same time suppress alternative versions of such events.  The version of events suppressed is identified as the version which could be told by those in some sort of subordinate relationship to the cultural mainstream.  

      That idea has resonances in the practice of history.  For example, EP Thompson in his preface to The Making of The English Working Class states that he is writing the history of the 'lacemakers' and others, the figures normally effaced in historical accounts of the Industrial Revolution, in order to rescue them from what he calls 'the enormous condescension of posterity.'  In Australia, the search for, and the presentation of, alternative narratives has most notably been found in an expansion of studies of indigenous history and women's history.

      Jacques Derrida (1930-2004) is perhaps most famous in the English speaking world for a process of reading, or a philosophical strategy, which he calls deconstruction and which bears on the relationship between thought and language.  Stated simply, Derrida questions the assumption that a word and the object it designates are the same, or that a word and an action it describes are the same.  Words for Derrida not only have numerous meanings, but also those multiple meanings are often themselves contradictory.  Once that premise of linguistic ambiguity is accepted, it follows, so the argument goes, that a multiplicity of interpretations of any text, or any historical event is possible, if not inescapable.  

      Legal thinkers and historians have long recognised, of course, that the search for a definitive interpretation of complex historical events eludes success. Sir Owen Dixon noted this in the context of of his own times in Concerning Judicial Method, the speech delivered at Yale in 1955.  He said of the then practice of history: 'History concedes the validity of a diversity of subjective interpretations.'

      Following the idea of deconstruction, Derrida also coined the word 'differance' to express the idea of the multiple (even unfinished) meanings in any text.  If one were taxed with expressing the essence of postmodern thought in its civil application in a single sentence it might run like this: 'postmodernism suggests that civil communities and the political and legal institutions which govern those communities should develop and implement a much greater tolerance of difference, ie diversity, among community members.'  It does not follow that administrative action jusitified by some mantra derived from such a formula will necessarily have the propounded effect, nor that the purpose will be precisely as claimed, no more than that a republic founded on Virtue will necessariy be virtuous. History, or experience, enforces a quite different conclusion.

      Central to the thinking of Michel Foucault (1926-1984), to whom I now turn, was the idea that social and political institutions, and particularly the law, were mechanisms by which elites, or what he styled hegemonies, exercised power through mechanisms of coercion and regulation.  He is known for his historical investigations into what he terms discourses.  For him, a discourse is a field of both specialised knowledge and practices, by reference to which power is exercised.  Power and knowledge for him are one and the same.  He was not the first to observe the connection, although he perhaps inverted what Bacon expressed in his aphorism: scientia potentia est.  Of course, the two men attached very different value to scientia.

      Foucault's most challenging ideas in relation to the law are: (1) the idea that a person is a rational individual is a figment of Enlightenment thinking; (2) the idea that truth is relative – that is, 'truth' is truth for someone or some group, but it is never objective in the empirical sense; and (3) his idea that legal prohibitions on certain human conduct, particularly sexual conduct, reflected nothing more complicated than a repressive assertion of majoritarian views.  As one critic said of postmodern theories generally, 'what is under assault here is the normative'.

      I heard recently of a patient shocked by his surgeon's boast that he was a postmodernist.  When the patient nervously queried the impact of these beliefs on his professional life the surgeon said: 'No need to worry.  Truth is relative but medical science is accurate enough for practical purposes.'

      Although I touch on each of the three ideas of Foucault mentioned, let me concentrate for a minute on 'truth' and judicial method.  When Sir Owen Dixon made reference to Pilate's question: 'What is truth?', he noted that Pilate did not wait for an answer because he was 'about to leave the judgment hall.'  Here, and elsewhere, Sir Owen Dixon was emphasising that those 'in the judgment hall', judges under a duty to judge, are required to establish truth or, putting it another way, reach a correct result.  

      Foucault frankly acknowledged Nietzsche's influence on his views of the relativity of truth.  Nietzsche's answer to Pilate's question 'What is truth?' was as follows:  'A mobile host of metaphors, metonymies and anthromorphisms ...  Truths are illusions which we have forgotten are illusions.'  That conception of truth cannot easily be reconciled with a judge's sworn duty to 'do justice according to law', which is predicated upon findings of by the trier of fact about the truth of past events.  However, a sceptical attitude to truth encourages some reconsideration of the institutional and other limitations on judging, a topic to which I will return.

      Before going any further, in a work just as influential as the works of the Continental philosophers I have mentioned, Karl Popper in The Logic of Scientific Discovery (1959) argued that no scientific hypothesis could be proven to be absolutely true.  And Albert Einstein is most remembered for his theory of relativity in relation to time and space.  Suggestive as the analogies might appear, however, it might come as a surprise to Popper or Einstein, or Heisenberg, Shrödinger or Plack, for that matter, to find Foucoult nominated as their spiritual heir.

      In any event, let me allow Foucault to speak for himself.

Foucault on the Enlightenment

      In Truth and Method, Part 1, Foucault said the Enlightenment 'has determined, at least in part, what we are, what we think, and what we do today.'  He refers to Kant's description of the Enlightenment 'as the moment when humanity is going to put its own reason to use...'  He thinks of the Enlightenment 'as a set of political, economic, social, institutional and cultural events on which we still depend' which propounded the tradition of rationalism as a means of ordering human affairs.

Foucault on Sovereignty

      Foucault explains that his reaction against unquestioning acceptance of values traditionally associated with the Enlightenment, specifically humanism and rationalism, is an attempt by him to recalibrate what is and what is not 'indispensable for the constitution of ourselves as autonomous subjects.'  

      Hence his interest in all forms of sovereignty or authority over others including the law.  His historical studies of 'power/knowledge' in psychiatric institutions and prisons were intended to explicate the political and economic structures of modern society and to challenge the traditional view that reason explains the framework of the law.  Power/knowledge is a key Foucauldian epistemological concept set up in radical opposition to any reconciliations of human instinct and culture, for example through science or law.

      He said he wanted to study the 'problem of power' because '... [o]n the right, it was posed only in terms of constitution, sovereignty, etc that is, in juridicial terms; on the Marxist side, it was posed only in terms of the state apparatus.'  He inverted Clausewitz's formula to: 'politics is the continuation of war by other means.'  

      In 'The Carceral', the final section of Discipline and Punish (first published in 1975), Foucault explains his theory that the institution of the law, as it has developed in modern society, goes further than merely criminalising offences which are attacks on the common interest.  In other words law, as an institution, reaches far beyond the social contractarian theories of Hobbes, of Locke (and of Rousseau).  Foucault asserts that the institutions which replaced the sovereign's power which he identifies as 'the school, the court, the asylum and the prison' penalise 'departure from the norm' rather than penalising behaviour which really threatens the autonomy of members of the community.  

      This is his main complaint about social and political arrangements of modern nation states, including liberal democracies such as our own.  He perceives the law, at least in part, as an instrument of repressive social cohesion because it insufficiently tolerates ways of living, ie expressions of human autonomy, which pose no genuine threat to civil peace or the good of other members of the community.

Foucault on Truth

      Foucault says 'Each society has its regime of truth, its "general politics" of truth: that is, the types of discourse which it accepts and makes function as true; the mechanisms and instances which enable one to distinguish true and false statements, the means by which each is sanctioned; the techniques and procedures accorded value in the acquisition of truth; the status of those who are charged with saying what counts as true.'  

      He emphasised when referring to truth he was not referring to facts to be discovered and accepted, as in science; rather he said he was speaking about 'truth' as a system of ordered procedures for the production, regulation, distribution, circulation and operation of statements.'  He described his intellectual enterprise as being about 'detaching the power of truth from the forms of hegemony, social, economic, and cultural, within which it operates at the present time', law being in his view a form or expression of hegemony. 

Foucault on Repression

      Foucault considers repression to be 'emblematic of what we call bourgeois societies.'  For him, disciplinary power was an invention of bourgeois society designed to maintain community cohesion.  

      On that note and against that background, Foucault's last and unfinished work, The History of Sexuality, Part 1 (first published in 1976) contains a revealing anecdote.  It is about a feeble-minded peasant in Lorraine in 1867 who engages in sexual behaviour with a child.  The peasant was then reported, led by the gendarmes to a judge, who turned him over to a doctor.  Foucault objects to what he would call the 'legalising' and 'medicalising' of the peasant's behaviour.  Human actions we would describe as 'indecent dealing with a child', and criminal in a person of sound mind, and as meriting some social and legal sanction and prevention, are described by Foucault as 'inconsequential bucolic pleasures' and as 'barely furtive pleasures between simple-minded adults and alert children.'  

      Foucault recounts this anecdote to draw attention to what he regards as the arbitrariness of definitions framed to describe human behaviour, and the contingent nature of meaning or truth.  This point is repeated in many places and under many guises throughout his oeuvre. He rejects our culture's long tradition of belief in objective truths, and the law's use of reason to establish truth, since 'truths' for him are fashioned by whatever is the dominant group paradigm or discourse.  

      Foucault's criticisms of the law, at least in this last work, seem little more than heuristic devices because he shows no interest in the child in the anecdote I have described; he is only interested in what happened to the peasant.  He ignores the possibility that categorising human behaviours as 'good' or 'bad', 'permitted' or 'forbidden', can reflect a genuine consensus of a diverse community rather than some form of repression by a dominant group.  That a community requires protection for its members against certain behaviours, the prohibition of which is an institutional norm, is an extremely unremarkable way to organise a complex civil society. Few judges would think that Foucault got the balance right between the autonomy of the peasant and the rights of the child.

      There is a considerable body of distinguished work in which scholars probe Foucault's idea that community standards, reflected in legal standards, need to be reconsidered and reshaped so as to accommodate greater variations in human behaviour and to reflect greater toleration of different expresssions of human autonomy.  

      But, rather than move in that direction, I want to go back for a moment to think about the charge that our legal institutions reflect and implement arbitrary governance.  To do this involves reflecting on what 'sovereignty' really means in Australian constitutional history and, before that, English constitutional history.  Sovereignty, that is the power to command others, is an idea which can no longer be wholly disentangled from the protean concepts of liberty and equality.  

      The Army Debates, sometimes referred to as the Puritan or Putney debates, which commenced in the autumn of 1647 are extremely valuable in revealing the close detail in political currents in Puritan thought before the Act of Settlement 1701.  First, the one point on which the victors of the First Civil War were agreed was the need to ensure that any restored King would need to be bound so as never again to exercise absolute or arbitrary sovereignty.  

      Secondly, one of the four groups in the Debates, the Levellers, supported the idea of manhood suffrage, an idea which never completely left the English political stage once it had been determined that the sovereignty of the King was to be shared in some way.  Admittedly, it did not come into its own until the 19th century.  

      Thirdly, all parties to the Debates had an egalitarian concept of reason.  Reason was thought of as common to all, independent of education.  This underpinned the ardent contemporary belief in free speech – the humblest person was just as entitled to be convinced or to convince another in relation to an idea.  Debate was thought of as a constructive method for establishing the truth. 

      Over 40 years later, James II having left the Kingdom, in the Convention Parliament of 28 January 1689, Sergeant Maynard asserted '... our government is mixed, not monarchical and tyrranous, but has had its beginnings from the people.'  Sir Robert Howard said 'The constitution of the government is actually grounded upon pact and covenant with the people.'  Sir Robert Sawyer observed 'The government is all unto the people, which people we are ...'  Then after the vote to declare the Throne vacant was taken, the House of Lords was concerned to 'declare the constitution and the rule of government.'  

      The Bill of Rights 1689 asserted 'the right of free speech' and provided that parliaments ought to be held frequently for 'the amending, strengthening and preserving of the laws.'  

      These manoeuvres were preliminary to installing a new sovereign on the basis that 'laws and liberties' were to be preserved.  It was recognised by Parliament that in asserting its own sovereignty it would be necessary to detach the judiciary from the absolute and arbitrary sovereignty of the King.  Judges, who up until the Constitutional Settlement had been appointed and removed by the King, were often servile to his wishes.  Under the Act of Settlement 1701 judges were appointed for the first time as independent judges in terms which remain familiar in our own polity.

      Whilst the Constitutional Settlement was not, in terms consonant with modern understanding of these terms, either liberal or democratic (and it reflected religious dogma), it nevertheless institutionalised representative government and divided sovereignty.  

      Through representative government and the placing of the laws and nominated liberties in the hands of independent judges, sovereignty in the sense of power over others became the opposite of absolute and arbitrary.  It became limited and predictable.  

      Personal liberty involved a freedom to act, including in relation to property, and a freedom to speak, in any way not prohibited by the law.  Criminal laws could only be prospective.  Equality meant everyone was equally bound and protected by the law, although it did not mean political equality.  The independence of the judiciary existed to protect the community from arbitrary command.

      Blackstone, writing later in the 18th century, not only recognised that the Constitutional Settlement divided sovereignty between the King, the Lords and the Commoners, he also considered that the electors who returned members in the House of Commons exercised sovereignty.  

      The extent to which the relationship between the subject and the state thereafter rested on the positive authority of the common law and the independent judges is well illustrated in a series of cases concerning general warrants for searching premises.  In 1765, Lord Camden was wholly unimpressed with the arbitrariness of general warrants which for some 80 years after the Settlement had been issued by the executive through the Secretary of State.  He asserted that if the power to issue general warrants was not to be found 'in our books', ie in common law precedents, it did not exist.  In Wilkes v Wood he instructed a jury that a warrant which did not identify a particular object of a search was 'totally subversive of the liberty of the subject.'  

      In the same context, Blackstone said when speaking judicially 'Every man's house is his castle'. Pitt the Elder addressed Parliament the following year in more fulsome terms but to the same effect.  These developments resulted in the enduring rule that warrants and applications for them should be properly particularised mentioned by Judge Posner in the context of terrorism.  

      The differing techniques of common law and equity, one looking to precedent and operating analogically, and the other looking to doctrines intended to be comprehensive enough to cover novel circumstances, operated together to avoid arbitrary, ie capricious or unjust, results flowing from conflicting desires for certainty and flexibility.

      What is my point in reaching back in time instead of looking forward in the context of the particular brand of contemporary scepticism under discussion?  It is this: the unwinding of sovereignty in English constitutional history and the contemporary ideas of liberty and equality associated with that particular political development involved the institution of an independent judiciary to resist arbitrariness in the behaviour of the Crown or Parliament or the Executive and the differing techniques of common law and equity were directed to balancing certainty, predictability and flexibility. 

      When the detail of those developments is considered it does not seem just to assert that the common law developed as an institution, encouraging arbitrary command over subjects or as a discipline inimical to pluralism.  The freedoms most essential to pluralism were forged and maintained by a community and a judiciary set against arbitrariness.

      Let me 'fast forward' from the institution of representative government and the diffusion of sovereignty in late 17th-century England to the forging of political institutions and government in the mid 19th century in the Australian colonies and let me take my home State, Victoria, as an example.  

      Gold was discovered in Victoria on 8 August 1851.  The Separation Act from New South Wales had been in force a mere five weeks.  These were the circumstances of a massive migration to Australia where political structures as we know them now were in their infancy (as was social infrastructure as shown by any of the familiar paintings of the time).  The centrality of the gold rushes to nation building is a familiar and popular topic with Australian historians, not least because the social and economic circumstances in which 'Jack was as good as his master' led quickly and inexorably to a demand for a theoretically classless society, to be expressed by the political equivalent, suffrage without property qualifications.  

      The nexus between owning property and being entitled to vote was broken once itinerant miners had a franchise based on holding a mining licence.  Whilst it is true that upper houses in various colonies, later states, retained property qualifications, egalitarian theory included at the time not only equality before the law but also political equality. Despite the gap between the ideal and the reality, which exists with every ideal, egalitarian theory suffused public consciousness in Australia prior to Federation.

      On the other hand, 'liberty' and 'equality' had been redefined for the French in 1789 followed by a very different transition from a monarch with absolute sovereignty to republican political and legal institutions.  

      That leads to a twofold caution: first against assuming Foucault's ideas about the unwinding of sovereignty in France can be transposed, and stand as accurate analyses of the development of the rule of law in common law countries, especially our own; secondly, against forgetting the long history of major liberties such as free speech and freedom from arbitrary search and detention, which are central to, and protective of pluralism. 

      The Constitution of the Commonwealth emerged against the colonial background I have sketched.  Sovereignty, in the sense of the power to command others, is distributed through the separation of powers between the legislature, the executive and the judicature.  Under sections 7 and 24 the Senate and the House of Representatives shall be respectively composed of members 'directly chosen by the people'.  Section 128 contains the mechanism whereby the electors qualified to vote have the ultimate power to alter the Constitution.  As matters developed, voting is compulsory.  Whilst one can point to imperfections, the details of our representative democracy foster, rather than discourage, pluralism. 

      Judges under our Constitution are required to deal with conflicts between states and between states and the Commonwealth, as well as those between subject and state and subject and subject, and they are required to interpret the Constitution of an ever-changing nation.

      The 'general willingness to yield to the authority of the law courts' referred to by Dicey is maintained in our system by manifold rules and ideas designed to ensure the law is never arbitrary, capricious or wholly unpredictable.  

      Back to Foucault for a moment.  There is no doubt law is a discourse or construct if not quite in the Foucauldian sense, or at least with the Foucauldian consequences.  It is a practical human institution which is not aimed at perfectibility and may not even pretend to it.   It must also be conceded that words and concepts familiar to the law, 'the liberty of the subject', 'equality', 'rights', 'obligations' may change in content and that statutory semantic language may be ambiguous.  The judge's role is often to determine content in the face of multiple meanings and to select a meaning for normative purposes.  

      It should also be conceded that what may be 'true', in the sense of correct at one time, may change and even be completely reversed as a result of social change. A simple example is the now inapplicable legal notion that because a husband and wife were 'one', neither could commit a tort against the other. 

      It is also not difficult to think of constitutional cases where a return to the text and/or a reconsideration of meaning results in overthrowing years of authority, in circumstances where, for example, those authorities had not established the certainty expected of the law, Cole v Whitfield and Ha's case being familiar examples  

      Nevertheless there are factors in complex equilibrium, which bear on judging and judicial method.  They can be grouped rather artificially as institutional factors, principles and doctrines, and procedural matters with considerable overlap between them.

      The most important institutional factor is our constitutional arrangements and the particular distribution of sovereignty and the independence of judges.  Equally important in an institutional sense are the inherited liberties of the subject against the state – a freedom of speech, freedom from arbitrary search or detention and freedom from retrospective criminal legislation.  

      Related to the independence of judges is the obligation of judicial neutrality and the need for a judge to declare any bias or conflict of interest.  

      Next there is the requirement for judges to carry out their tasks in public, to hear both sides and to give reasons for judgment which can be scrutinised and criticised.  That exercise of 'reason' is not unlike the conception of reason I described before: a conception that reasoned argument can establish truth in the sense of a correct result and persuade readers of that correctness.  The audience for judicial reasons includes the community.  There cannot be any doubt that postmodern theory has drawn attention to the possible plurality or diversity of community views.  Then there are the appellate structures.

      Practicality also always bears on judicial method because a judge's orders must be obeyed.  

      Also there are the expectations of the community.  No matter how diverse a community may be in expressing personal autonomy, it requires, as it is entitled to, complete clarity in the criminal law and reasonable certainty and predictability in the civil law, including commercial law.

      It is also necessary to note the levels of legislative activity in our time which have enlarged opportunities for the exercise of judicial discretion.  The rules developed to ensure this is done judicially militate against arbitrary exercise of discretion.

      Taking principles and doctrines next: these are of course manifold, but they include the principles of the criminal law and its standard of proof, the principles of common law and equity, including all the equitable doctrines based on the values of good faith and conscience, constantly refined principles of statutory interpretation and the special principles and techniques of public law.  

      Procedural matters include exclusionary rules, privileges and many cognate strategies, the common rationale of which is identified as 'fairness'.  

      No justiciable matter, even of striking novelty, is likely to involve a set of facts about which established law has nothing to say or offer.

      The factors I have mentioned all bear on judicial method and encourage coherence.  Decisions which are paradoxical, dependent on personal virtuosity, or arbitrary are discouraged by that matrix.  Our community understands and accepts change in the law and the authority of final decisions on novel and difficult matters, even when a tight majority is involved because of the combination of the factors mentioned.  

      By comparison, the type of scepticism I have discussed today has its own nihilistic logic and capacity for a new form of arbitrariness if normative standards are undermined.  That is likely to be resisted in the transnational jurisprudence of human rights, in balanced law reform or in policy debates directed to the legislature where the particular type of scepticism discussed today may provide useful insights and be harnessed constructively.  

      However if this type of scepticism is to be directed to the exercise of reason in judicial method or to the public's confidence in the rule of law, it would need to forge its own greater tolerance for our past and a greater appreciation of the balances developed in our system over centuries, designed to counter arbitrary governance.     


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Walks like a duck

Finally got round to reading this.

Thanks yet again to  Margo  Kingston.

The only post have read so far is the one at the top by  Ian  MacDougall, so am probably out of  whack as to the rest of the postings-  will read them next though. 

Felt  Ian's post expresses a certain anxiety, an anxiety  I could identify with, unless I have it wrong ( probable! ).

This is concerning  a seeming dismissal of  Foucault's cautious warning as to the Hegemonic system's  capacity and impetus to reify against the legal system's ability to cope ( a bit like the climate sceptics' dismissal of global warming ). To me that bone of contention must exist in a key paragraph concerning, within a historical era of, "...systems in complex equilibrium....". That is the propensity for something complex to"crash", particularly when manipulated by political thugs; as against any in-built, evolved and "organic" propensity of that system to deal with serious, genuine subversion of the  Howardist/ Murdochist sort.

 If we allow perversions of the law such as have been passed recently concerning sedition, libel and terms of detention under acts relating to nebulous, evasive "terrorism";  this moment being exercised by the likes of the AG and attendent tabloid media with that childlike glee of a child with a new toy, or teenager  with a new sports car;over a doctor's indefinite detention in  Queensland, as merely superficial, I will stay "Foucaultian" in my "scepticism", too!!

It is not enough to dismiss the threat posed by Legal Narrowism that decontextualises  justice and law from reality ; of the poisons of people like  Ashcroft, Howard, Murdoch, Cheney Shergold and Ruddock to name a few, as merely a long term balancing-out of fashions derived of as part of the system's perpetual operation, relating to " factors in complex equilibrium" which cannot affect the ultimate fundamental operation of the system. That is, against  Hicks, say, or the expediency driven bloodbath of the  Middle East. I can't dismiss the interference in the public service or free trade agreements, FOI, commercial-in-confidence  and the corruptions of appointments to qango boards and court benches, in concert with a corrupted media ; all responses by the elite to control mechanisms like Separation of Powers, with an assurance that "she'll be right"later after  i've kipped,  if  I just go and have a couple of aspros, a drink of water and a lie down, now.

We can sail on in tranquil rapture in the abstract certainty  that doctinally or even theologically derived concepts relating to the  Form "justice" will always be"true", but am not sure that Natural Justice theory applies  so literally that the current evolved/stillevolving system  might, let alone is guaranteed to self-correct regardless of any factor.

"If it walks like a duck, smells like a duck etc..."

 This little black duck doesn't want to live in a location that follows the historical example of  Germany, circa 1930 or  Athens,  circa  400  BC, no matter how short  the aberration involved is. The consoling notion that justice survives in the abstract, even while  I'm marched off to some sort of new and expanded  Baxter or  Guantanemo-ish 21st century  Dachau  environment is just not that sustaining enough!

All because people couldn't read the writing on the wall 'till too late; couldn't beleive it could be happen here and complacently drifted off back to their comfort zones?

What do some of you think the indeterminate detention of that  doctor, or the NT aboriginal actions of  Bruff  of recent weeks are really about? 

It looks unjust, but isn't ?

 Nah, can't be that complacent?

Fear and the law

We must never allow fear - that most malleable of political emotions - to transfer the protection of individual liberty from the judicial to the executive branch of government. Nor should our laws isolate and alienate peaceful citizens, robbing us of that solidarity and communal courage that has preserved us in past perils. Says Sir Gerard Brennan a former chief justice of Australia.


The Howard government has constantly used fear to take attack individual liberty, over the last ten years. These liberties have been fought for and have made our society what it is today. We must keep the executive branch of government from the judicial. Our democracy depends on a strong judicial system, free from interference from the executive branch of government.

Most excellent words from Brennan J

John Pratt, I think former Chief Justice Brennan's message ("an edited extract of a speech by Sir Gerard Brennan, a former chief justice of Australia, at a symposium, Law & Liberty in the War on Terror, which continues today at the University of NSW") to be most timely. Note that the symposium is not entitled 'Law & Liberty in the so-called War on Terror,' though Brennan uses the latter term. I suppose it allows a certain judicial impartiality on the issue, though in my view it is impossible for a speaker to use without conveying at least a hint that he or she believes the War on Terror to be a put-up job.

Also apposite is a piece from normblog this morning, which I quote in full here (see original at normblog for links):
Chris Dillow explains why he's still a Marxist. It's something I've also done: here [link] and more obliquely, here [link].

Chris gives 10 reasons why he remains a Marxist. Some of his overlap with some of mine. I won't review either set. I will only highlight the one of Chris's that I would vigorously dissent from:

    Bourgeois ideas such as liberty, justice and the rule of law are partly empty fictions which the ruling class use only when it suits them.

These ideas are not 'bourgeois', they are universal values, indispensable to any form of democracy that isn't a charade, and also indispensable instruments of struggle for a better world. Chris's qualifier 'partly' on 'empty fictions' doesn't work: if they're only partly empty fictions then they aren't empty and therefore they aren't fictions. To continue to embrace as a reason for remaining (some kind of) a Marxist the very forms of dismissal of liberal rights and values that played so central a part in sending that tradition into brutality and totalitarianism is imprudent.
Without exception, all political movements that have based themselves on Marxism have hit the wall because of this scorn for liberalism. Liberalism in my view is absolutely fundamental to any sort of democratic society, and is downgraded in importance only at extreme peril to those doing the downgrading. (Ironically, Marx himself took refuge from the Prussian police in liberal England, just as Lenin later sought refuge from the Tsar's agents in liberal Switzerland.)

One's chances of being killed or injured by some terrorist act are at present remote. But that does not mean that governments should not put major resources into the pursuit of terrorists. They spread fear through populations whose individuals are each only in the tiniest danger, and the terrorists know this, and use it as a weapon. The oft-stated opinion: 'because we are in Iraq we are now in greater danger of terrorism,' is precisely the reaction the terrorists want.

We in the west have managed to liberate ourselves from a long history of routine state terror, such as that suffered by the Iraqis under the rule of Saddam Hussein. It would be sadly ironic if, in the course of fighting terror, we slipped back into it ourselves.

legal profession running on flat tyres

Hi Margo, thanks for your interest in my post and the link you provided, it's a very interesting one. I do accept the Greens are at the top of the heap regarding ethics, however, their policies will continue the legal status quo. They have no desire to change the system to one that actually works for a really viable progressive future by removing political parties and the legal profession's strangulation of justice.

As for the Democrats, well they sold their soul years ago for personal gain and have got what they deserve for their treason. I could be totally wrong, but if the Greens attained power, I doubt they would introduce positive changes. A lot of their social agenda is ridiculous and they, like the other parties, have no policy direction for the justice system that would bring the country a positive future. If you want a new future, you can't keep bringing any of the old methods into it, or you contaminate and reduce the future to the past. We see that in communist countries, their changes are just cosmetic and nothing has changed in reality, in fact it appears much worse for the majority.

We are driving our society into the future on flat tyres, so why change the flat tyres for others that are badly leaking. The only option we have, is to drop the old and create a new legal system, or justice will totally perish, if it hasn't already. With a judicial system that's as bigoted, self serving and corrupt as the one we have now, what hope do we have to change things for the better, unless we get rid of it and the parties that manipulate and support it. I don't see anything changing, unless we remove the current legal system and introduce one that actually gives everyone an equal chance, irrelevant as to social or monetary status.

To attain that, you need a system that people actually understand and can relate to, so they know where they stand in all cases and understand what is going on as they go through the system. Mind you, you can't satisfy everyone, but you can make it so they fully understand and can see justice being done. In the end, the law of the urban jungle will prevail, as frustration bites deep into the souls of the growing majority, who see the futility of trying to obtain justice within the current elitist, legal monopoly.

If people like Crennan had any credibility, they would instantly remove the unconstitutional preferential voting system, rather than avoiding it, or crucifying anyone who brings it to their attention.

Foreign Donations to the Greens

According to the Democracy for Sale site Margo linked to, the Federal Greens took more that $60 000 in donations from overseas sources (being a little more than 12% of the donations listed for the Federal Greens). This included more than $10 000 from overseas political parties in Europe and the US.

I am curious as to how a US Republican Party donation to the Liberal Party would be interpreted, or perhaps a similar donation from the Likud Party. Or what about the French Socialists kicking in dollars to the ALP.

Margo, do you think such donations would pass without comment as those from foreign political parties to the Greens seem to have done?

Margo: Hi Dylan. Welcome back. To start with, The Greens have made their donations public, unlike the majors. Secondly, The Greens link up with other Greens parties. The four foundational principles of The Greens are, I understand, the same across the world. Perhaps someone can let me know if I'm wrong. Those principles are social jusice, grassroots democracy, ecological sustainability and non-violence. The Australian Greens disclose its affiliation with global green parties on their website here. I don't know what foreign donations the major parties get, although I'm sure both parties get them, possible hidden behind trusts. As for passing without comment, that's up to anyone who cares to do so. As you've done. Perhaps the major parties will mount an attack along these lines at some stage, although their routines are pretty well set - to totally misrepresent The Greens drugs policy in collusion with the Murdoch tabloids. They started the scam during the NSW state election campaign of 2003, went federal in 2004, and did it all again in NSW this year. No doubt it will happen again at this election. For my report on the first NSW attack, see Bashing The Greens.

Scooter Libby

Anyone doing a peice on  Scooter Libby  ??

Richard: It looks as if one's on the way. 

We need to start again

Paul Morella, you are right, nothing will change until the entire system is removed and a progressive evolutionary one designed for the 21 century is put in it's place. The problem is how to change it - if you try from within the system you get consumed by it and the status quo prevails.

Until our High Court Judiciary can be forced to uphold the wording of our constitution, we have no hope. As our constitution states, our political representatives are to be elected by a direct vote, but with the judiciary and legal fraternities complicity, we are illegally forced to have preferential elections, which means there can be only one outcome. One of the lib/lab coalition gets elected with our vote, the other parties get the scraps to make it look good, even though we may not have wanted to vote for any of them.

Hi Charles, I understand fully what you are saying. We are in a bind with no real way out unless we create a party that will do away with parties, implementing accountable government controlled by referendum and laws that stopp politicians, corporations and bureaucrats from hijacking our system and lying to get away with it. To do that, you have to present to the people an approach that would give them hope, including small to medium businesses. Without private enterprise, you suffocate technological and psychological progress.

With respect to Margo and others, The Greens are just the same as other parties, there for the power and glory. They get funding from the corporate world and other vested interests, so are obligated to them in various ways. A couple of years ago I had individual discussions with senior members of The Greens and the Labor Party here in Tasmania and presented them with a brief of a manifesto, with policy directions, outcomes and implementations that would satisfy the people, the environment and most businesses, except for political parties and the corporate world.

The Greens just laughed and said it didn't fit their political or social agenda. The Labor bloke said it was something they would never entertain, as implementing it would take away their power and the ability, of the people they represent to continue in the direction they are going. As the Liberals have exactly the same policy as labor, the person I contacted, wasn't interested in any way and just said their polices were set in stone for the foreseeable future. Considering most political people have their own interests at heart, they won't represent something that will take away their power, no matter what the outcome.

So what do we do? We may have to sit back and let the future probabilities do the dirty work and hope there is enough sensible people left, who are willing to put in place something that will work for a viable sensible future. I doubt the populace has the guts to not vote for the party system and vote in independents, then force them to introduce real viable policies.

With the current legal system controlled by one group who have many vested interests, nothing will change until we remove the power of the legal fraternity and it's associated vested interests. It would be so easy to turn this country around without upheaval and make it an example to the world, but with a judiciary that is so outcome corrupt, I wouldn't hold my breath waiting for the legal profession to get a conscience and actually do something positive for the country. Other than for themselves and their elite political and corporate cohorts.

Margo: Alga, The Greens and the Democrats are the only parties to forcefully argue for donation disclosure reform. See The Greens' website Democracy4sale. They are the only party which voluntarily details donations to the public within 3 months of their receipt. The others wait until they have to, long after the election, then hide some donors behind trusts and find other ways to avoid disclosure.

How to act?

Hi Alga. This is a question I keep asking, in different ways - what does an individual do?
I don’t have any background in Law; I am just an individual trapped in all of this.
I must be like many - deep down we know something is wrong, we read many articles pointing out just a small piece of a larger picture, but we are lost because the picture melts before our eyes. When another piece of information surfaces, we don’t have perspective on what action to take.
I read your post and thought great stuff. OK, where now?
I think this lack of orientation, and the isolation of individuals prevents constructive action, and is the reason for the status quo.

Margo: Join a local activist group on an issue that concerns you.  Get to know your neighbours. find ways to persuade others of a different view. Join GetUp. I've been thinking the same question for a while now. Me, I joined the Greens and am supporting 2 Greens candidates are friends and who I admire and respect. And I've co0me back top Webdiary, in good spirit, to help facilitate debate between some Australians of different views, some fo whom have met and become friends.

I'm learning a liot about what you can, and can't, do. I suggest you design your own T-Shirt and start wearing it. Or car sticker. I'm going to write a piece about some of this soon, and I'll show you my T shirt design. I also wrote an add to vote Green in the Senate, which I'll put up. I wrote a bit about what one can do in the last chapter of NHJ, called Democrazy: Ten ideas for change. Citizen Mike Clancy also wrote about what one can do in his new book Howard's seduction of Australia.

I've got a few Not Happy, John! car stickers lying around - shall I send you one? 

Thanks John

John Pratt:

I find it difficult to live in a world where I have a good legal system supporting me, I have a reasonable standard of living but half the planet is suffering injustice and starvation.

No, you don't, and never have.

Democracy is a meaningless concept that you pretend to believe in. You want your guy to get to home (win), that is democracy - working when it happens.

A belief, there will be an advantage.

The thing that scares you the most, about the world, is: You are not controlling it. The common fear of nearly every man; hence the pretence, and the need, for paper elections.

It might surprise you; you may, in fact, go from strength to strength, without any election, or false choice. In a different life - of course.


 Alga Kavanagh

Saying corporations get to where they are because of their customers, is a half truth. They really get to their positions of control and monopolisation because of the legislation they pay the legal profession to draw up and the political parties to implement, using massive donations to parties and individuals along with promises of future rewards.

Yes, and no, unfortunately.

They (corporations) firstly get to their position, because they have something to offer. They stay too long, in that position, because the system allows it. In fact it encourages it.

Both, you and I (taking liberties), understand the world will never change without the entire system changing. We are not alone!

Workable laws for the people, not the elite

Crennan is still a part of a closed, heavily biased, discriminatory social and regulatory system. The law, from the bottom to the top, is fully controlled by the legal profession through it's unfettered power, it's law society and vested interests. It's a self regulating legal system dedicated to it's self. They draw up the laws of the land, control prosecution, defence, appeals, the judiciary and even dictate how legislation is worded, laws are understood and implemented. They use a language and semantic approach no one understands but them, so they remain in control, deluding and disenfranchising the people.

The judiciary, are unaccountable for the decisions they make, nor subject to election by the people, control or censure. It's virtually the same throughout the legal profession, you pay no matter the outcome they decide. The decisions they make and the justice you get, is according to the amount of money and influence you have. We need a legal system that represents the people, allowing everyone real justice. We need laws that are understandable by all the people, punishments that represent the crime and it's effects, including a death penalty for extreme crimes or multiple murders through deliberate acts. It's notable that many politicians, particularly federal politicians, are lawyers and they are the ones in control. So with our current situation, we have no hope. There is no worthwhile ethics or justice within the law or legal profession, unless it encompasses their own and other elite ilk.

Saying corporations get to where they are because of their customers, is a half truth. They really get to their positions of control and monopolisation, because of the legislation they pay the legal profession to draw up and the political parties to implement, using massive donations to parties and individuals along with promises of future rewards. Politicians get paid in directorships, positions on boards, committees, overseas postings, more donations and sponsored freebies for their enslavement to the corporate world. Once corporations have control of commodity distribution and supply, they bleed the customer for a much as they can with little return to the people,other than rising prices, indebtedness, lower and lower wages and conditions, until society is totally enslaved to the corporate world. When all the peoples services, infrastructure and every other aspect of life, has been given over to the corporate world by the legal profession and politicians, they can control and run society through their political and legal puppets for their own aims.

Privatisation, economic growth and rationalism, shows us the glaring outcome of our current system for the people. Globalisation is heralding in the death of current world western societies. History shows us, the more the elite take over, suppressing the populace, the less chance society has of surviving. We need laws and a legal system that the people control, can understand and gives real justice, rather than legal technicalities and monetary controlled results, as the only outcomes.

Politics and the law

By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small. ......Fully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines, demonstrating the court’s polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The court’s last-minute decision, announced on Friday, to hear appeals from Guantánamo detainees required votes from at least five of the nine justices.

Bush became president by the narrowest of margins and with the help of courts, where the republicans had nominated the judges. Its time politics was taken out of the judicial system. It is the same in the Australian high court, where Howard has been able to nominate several conservative judges. In a democracy, we need to trust the courts, if a large percentage of our populations distrust both the political and the judicial systems we are well on our way to becoming dictatorships.

It is Called Evolution Of The Market

John Pratt:

The nation state has lost its power.

You think this is a bad thing? A nation state only loses its power, because those within it, no longer believe in it. A natural progression, and one that will continue. Thus, the rise of the corporation (forever changing), which attains its power through its customers. That is, giving them what they want, as opposed to what they would like (or force) them to want.

The nation state, is in a market turf war, against itself. One that it is losing badly. One that will be decided by its citizens, and equally the corporations customers (one and the same thing). Laws, rules, understandings, and guidlines will not make any difference to this outcome. Both citizens, and customers will decide: Who wins, and who loses. I have no doubt about the eventual outcome, and never have. Liberalism will always overcome the illiberal.

Let us reason together

Paul Morrella, the problem with corporations being a law unto themselves is how do you prevent corporations from making billions out of illegal activities? For example drug cartels, the Russian Mafia. Corporations have no need for a set of moral guidelines. Murder, rape, environmental degradation is OK for a quick profit.  If  corporations were left to rule the world, the strong would rule and the weak serve. Eventually most of the customers would be little more than slaves.

I dream of a world where the rule of law is universal. The laws are decided at a world forum probably the United Nations, only nations that accept the universal laws will be able to trade.  Something similar to the  European  Union,  where the  standards, laws, monetary system are all argued and eventually agreed to.

I find it difficult to live in a world where I have a good legal system supporting me, I have a reasonable standard of living but half the planet is suffering injustice and starvation. Surely we should be working for a universal judicial system. I am not suggesting we do it at the point of a gun, like in Iraq. We do it through diplomacy and trade. When the majority of nations are signed on to the treaty. It would eventually become advantageous to most countries to join in. Countries queuing to join like they are the EU.

The basic idea of corporatism is that the society and economy of a country should be organized into major interest groups (sometimes called corporations) and representatives of those interest groups settle any problems through negotiation and joint agreement. In contrast to a market economy which operates through competition a corporate economic works through collective bargaining. The American president Lyndon Johnson had a favorite phrase that reflected the spirit of corporatism. He would gather the parties to some dispute and say, "Let us reason together."

The best way for us to reason together on a global scale is through the United Nations and international courts.

Questions For John Pratt

John Pratt

I don't know about you, but by your definition doesn't this sound a little paternalistic? If international standard rules and regulations can work for our monetary system.

They are only agreed upon guidelines. They work because some nations choose to follow by them - some nations do not. For the ones that do, the reasoning is based on self interest.

John Pratt

Why not an international standard rules and regulations for human rights and law? Surely that is the next step in our legal evolution.

Yes, but what happens when the laws do not suit some nations (laws only suit when one is on the right side of them)? Is this not the reasoning for invading Iraq? Is this not the reasoning for placing sanctions on Iran? Where the unseen hand of the market will take care of any who disobey the standard laws of money: Who deals with those who disobey the standard laws of human rights, and what will be the punishment? Is this not where we as a world, at the moment?

You really do not want one world government

John Pratt :

As the world globalises, who controls the major corporations? The nation state has lost its power. The only way these large worldwide corporations can be controlled is through international law. This also points out the need for global laws and global law enforcement.

Of course you would have to understand, these same global laws would make many of the worlds governments illegal. Especially African and Arab ones. Laws are always written by and ruled on by somebody, workers paradise or otherwise. And workers rights in these places are extremely tenuious (dictorships etc are like that), along with a number of other rights.

I think they call this paternalism.

Speaking about paternalism

Hi Paul Morrella. In your last post you say

The worlds largest banks (I presume you speak of), adhere to understood international standard rules and regulations. The standards and regulations are applied by the home nation's central bank.

I don't know about you, but by your definition doesn't this sound a little paternalistic? If international standard rules and regulations can work for our monetary system. Why not an international standard rules and regulations for human rights and law? Surely that is the next step in our legal evolution.


I am taking the easy bait here but nevertheless. One of the points made by the Little Children Are Sacred report was that it cannot be assumed that all Indigenous people are familiar with the notion of the "Age of consent" as it relates to sexual assault, when there has been an actual consent for all other intents and purposes. According to the report, in traditional culture age was more ambiguous and a marriage could be consumated once the female was of reproductive maturity, as evidenced by the physical signs produced by puberty. The solution to this "problem" as viewed by the writers of the report is "education". To apply Foucalt to the situation, what we get is the dominant group applying arbitrary normative structures on to a pre-existing culture. It is a kind of legal fiction.

Much of the abuse documented, of course, was found to infringe both Aboriginal law and Sovereign-Australian law. It is not okay under Indigenous culture to have sex with children.

Whilst I agree with Crennan that a prohibition on sexual activity between children and adults is an expression of consensus between diverse groups, rather than dominance by a particular group, I think the notion of what constitutes a "child" is a social construct and debatable. Crennan doesn't say how old the child was in Foucalt's anecdote about the peasant and the child and I think this is crucial.

Debates surrounding the age of consent for homosexual males have endured until recent times. The passage from childhood to adulthood is clearly, biologically, an evolution and not a process with fixed stages. I think the notion of an age limit is a clear example of arbitrary governance. An individual may achieve physical sexual maturity prior to 16 but still be prohibited from actively pursuing that activity. Historically the age of consent appears often to have been lower, perhaps due to the fact that life expectancy was much lower. Drawing a line at 16 is a caprice of the legislature.

There are of course questions of emotional or psychological maturity as well as physical maturity. There are questions of unequal power-relationships and undue coercion. One of the sadder aspects of report was that it found that 12 yr old Indigenous girls were engaging in prostitution with white miners to feed their drug habits, and, that they may at times actively intitiate these encounters. Some were found to declare that this was none of anyone else's business. Society nevertheless deems it of urgent importance to obstruct the free expression of these individuals for what it considers to be its own benefit. This is not to say that it shouldn't, only to say that it does.

When the NSW government moved to lower the age of consent for homosexual males they also removed the defence of "mistaken age" which applied to an individual who was between 14-16, and, created new offences when the person committing the act was in a position of trust and power. The flexibility given to judges by parliament is only to crack down harder on transgressive behaviour and not to be more lenient. I think the system divorces the law from the complexities of human relationships, from individual circumstances and differing attitudes toward sexuality. I think it divorces law from reason.

In the case of the peasant and child Foucalt declares that the acitivity was "inconsequential". This is a question of fact: either the behaviour is likely to harm the child or it is not. Crennan fails to establish the harm alleged but rather simply treats it as assumed knowledge, or, as self-evident. Foucalt disputes that there is any harm to the child - this needs to be rebutted, strongly, and Crennan omits to provide an argument. She wrongly accuses Foucalt of not giving a thought to the child, as if doing so would automatically lead him to a different conclusion.

Here we have an argument not based on reason but rather on a blind of acceptance of social norms. In a sense she affirms Foucalt by failing to rebutt him.

Nevertheless a need for clarity and simplicity is perhaps a good enough justification for tolerating such a system. It is not a heavy burden on an adult individual to defer engaging in sexual practices with individuals below the age of 16, or, with individuals over whom they have a position of power and trust. Whilst I have no doubt that this is repressive, it is not unduly so, given the gravity of harm it may help to alleviate. An age limit, or a total prohibition on activity with individuals under the responsibility of another, can operate as a kind of safety net - a guide to what is safe and what is not.

Speeding limits are, similarly, arbitrary, in the sense that there may be numerous examples where safe driving is possible whilst transgressing those limits. Staying within those limits will, nevertheless, keep a driver relatively safe. It wont always avert a tragedy, or, for that matter, produce good driving but it is the only way for driver's to adequately protect themselves against legal liability.

Globalisation increases the need for global laws.

While the rights of workers to organise unions is enshrined in resolutions passed at the International Labour Organization (ILO), it lacks any enforcement powers.

The key question is whether the growing globalisation of the world economy will lead to a parallel increase in global regulation - and whether that would be good or bad for world economic growth and equality.

As the world globalises, who controls the major corporations? The nation state has lost its power. The only way these large worldwide corporations can be controlled is through international law. This also points out the need for global laws and global law enforcement.

What lies ahead for this

What lies ahead for this remote outpost of American sovereignty? On the 150th anniversary of the year Navassa came into American possession, it feels a bit unseemly to see the world’s richest nation entangled in a dispute with the poorest nation in our hemisphere over a remote rock that no one can live on.

All that Navassa holds for us is the right — or more specifically, the power — of its possession. Perhaps we should celebrate the sesquicentennial by just giving it back — to Haiti, or an international trust or the state of nature itself. It would be a sublime gesture on behalf of freedom in its simplest state.

Would it not confound our critics to witness an American act of pure altruism? Would it not confound them even more if our oldest possession, the birthplace of American imperialism, became the birthplace of a better way of thinking about the way nations interact?

To admit that Navassa does not belong to us, or to anyone, would recognize an earlier condition, more pristine, before the rise of nations and the conflicts that define them. In so doing, we would take a small step toward an ancient and very American aspiration: to make the world new again.

Land title determines the laws and the freedoms we all live by. The planting of flags in the last two or three hundred years determined the type of legal systems we are governed by. Imperialism and Colonialism have got us into the international difficulties we now face. The way to a more just world and equal rights for all would be the introduction of laws and a set of human rights that were world wide. The system would not happen over night but truly democratic nations should at least have it as a goal. The only way to achieve this goal would be through the UN and international courts. The idea of nation states has had its day we should demand justice for all.  

Women in the law

Jenny, you'll recall that Margo Kingston is in fact a quitter in the legal racket. She is an interesting case study.

From a site on Women in the law:

    "An inveterate worrier, Kingston says her personality was completely unsuited to the law. She would lie awake at night worrying, finally jumping out of bed to look up cases for reassurance. With journalism, she says, at least you know the next day whether or not you’ve made a mistake."

This is actually a quote from an article by Gabrielle Chan from August 2000 where Kingston is quoted as saying:

    "I just found it completely uninspiring to act for very rich people and get the very best barristers to f..k over poor people who didn't have the money for the best barristers."

Retro Kingston is always fun. It is a beautifully written piece from Chan.

Margo: Jenny ain't rich!

Close Encounters

Susan Crennan has been a pet project of mine since I argued the case for a female High Court Justice prior to her appointment. At her swearing in she hedged her bets on the kind of judge she would be, and has done nothing since to court the public eye in the way Kirby J has, so this moment of self-revelation is welcome.

I met her in 2006 thanks to Noel Hadjimichael. I kept a record of what happened that day, mainly for my own benefit, which Webdiary declined to publish (probably because my journalistic practice, if you could call it that, infringed the Journalist's Code of Ethics - a set of principles that I don't believe in). Reading over it my reaction was full of a boatload of cheek.

..Finally the moment came and I was brought in to see Justice Crennan. Before we reached the door, down the long corridor, I asked if I could pick the winner. I was then let in on the method of choosing the winner which it would be tactless to divulge. Entering the room I said "Hi, nice to meet you, your honour.", somewhat idiotically, and then greeted Professor Winterton. The moment passed as such moments pass, without comment or consequence. Justice Crennan has striking features, eyes of unascertainable colour and a rich, dark smile. Professor Winterton, like me, seemed largely superfluous and so I subsequently felt a kind of kinship with him. I could not see why this friendly, bearded man had invoked so much fear.

I complimented the view out the window of the city, then Noel explained that whilst I had not made the cut of the essay competition, I had agreed to volunteer. I was thus introduced as a reject.

"Thank you for doing that. These things couldn’t work without some kind of infrastructure." Justice Crennan said, democratically. This was the first time in my life I had been compared to infrastructure but I let it pass. Compared to the beautiful scenery and facilities I felt that as infrastructure I paled in comparison. I didn’t want to talk about this so I moved on to my set-piece.

"You know I campaigned for a female High Court Judge." I said.

Crennan laughed and then said: "In that case you will like this story. On the day I was sworn in there were some women there, a Mother and a daughter, holding placards that said "Give us another one, Phillip". After that he went over to talk to them."

And that was it. That was the money shot: my moment in the sun. It was a tasty morsel, short but sweet. Noel quickly "wrapped up" the meeting and the talk moved on to the arrangements for "Thursday". It was an anti-climax but I had come prepared for an anti-climax. I had made the most of my opportunity and had eaten, as the scripture says, the scraps that fell from the table. I learned later that they had been promised to be out of there by 5:40 and that this promise had been kept. I am confident that I made absolutely no impression whatsoever.

A real gem Solomon

Solomon: When you first sent this piece to me I had a good laugh. I love the way you write though I confess I find the existentialist stuff pretty depressing.  I have a thesis around here somewhere of the influence of it on Indonesian writers in the 1960s. It was pretty dreary literature but I persevered with it at the time. Maybe it lost something in the translation.  

Now this is a real gem: This was the first time in my life I had been compared to infrastructure but I let it pass.

Despite the problems in your life you touch on from time to time, you can still make people smile, and hopefully yourself as well.

I reckoned you would be in on this thread.

Frankly I admire anyone who can stick with studying or working in the field of Law.  Definitely not my cup of tea.

Margo: So when I next need a lawyer, (hopefully never), should I call on you, just so you can keep you hand in?  Solomon can prepare my brief for you. He kinda has a way with words that would make any opponent run for cover methinks.

And now I had better do the same. I think you better deregister me for awhile so I can get my book finished. No self discipline here; that is the problem.

Margo: Sure can, and hang in there - there's an election round the corner! Or how about getting a chapter done and putting it up on WD for comment? 

Family history and the aboriginal connection

Margo: Or how about getting a chapter done and putting it up on WD for comment? 

Am a bit further down the track than that. I started in what was to be the middle of the book and I am working back to either end.

But somehow I do not think it is the sort of stuff for WD. My father, who was a fine historian once wrote: Family history, to non family is as unpalatable as last week's mutton, unless you add a bit of spice. Then you run the risk of upsetting the family stomach. Add too much spice and you run foul of the true historian.

So that's my excuse.

The old man died and I was left to publish his family history and face the music. One octagenarian, on seeing the draft, travelled 200 kms to demand I remove one chapter. My father had made contact with our aboriginal relatives, descendants from various family liaisons, and was determined that they should have their place in the family history. She was furious when I declined.

At the book launch amidst some 300 of the collective family, some of those indigenous descendants came, (one now a tribal elder), and I publicly welcomed them to the family. No need to ask our mob for DNA tests as one old family in WA was resisting. If they say they are connected, then they probably are. Their oral history is more honest than ours. When the book was reviewed the reviewer said it was the first family history of an old Australian family that he knew that had acknowledged its aboriginal connections.

For some reason the family always had good relations with the aboriginal people on whose land of course they were then squatting. The explorer Hamilton spoke local languages and was helped in his 1824 expedition to Port Phillip by a childhood friend acting as guide. Later when his brother settled near Yass Queen Caroline of the local tribe is said to only have ever let her girls work for the Humes. One day, when a neighbouring squatter asked Rawdon Hume if Caroline would let one of her girls help his pregnant wife in the house, she is reported to have drawn herself up, eyes flashing and said: No daughter of mine will ever work for a bloody cattle thief. She knew a thing or two. So that was that.

I have only one problem with one of them. I think the Walkabout instinct is still very strong. So when he says he is coming to visit, he may turn up or he may not. Usually he turns up at a later date without warning, and without even noting that he was due a couple of weeks or months earlier.  So now I tell him I won't put the cake in the oven till I see him at the front door.

Been awhile, so he must be due soon.

Will stick around but from now on, no more than one a day. What's that sound - a collective sigh of relief? Hush or I will make it two for spite.

I see in today's Herald that things appear to be just as dire in the western towns of NSW. So maybe I am wrong about our small town. Maybe the problems are there, just not quite so obvious. Either way there are no resources for dealing with them. But the white community is in the same boat on that score.

I would be a bit concerned at any attempt to just turn the grog tap off. People drinking to the extent seen in those remote areas would have a high level of addiction. The most violent and psychotic patients I ever saw in outpatients in my nursing days, were those coming down off alcohol. I suppose ice does the same, but alcohol is still the main substance addiction. So I hope they don't just turn off the tap without dealing with that. At least a detox facility would be needed until proper rehabilitation programs could be implemented.

Over and out for the day.

Margo: See you tomorrow!. My offer remains open. I love your writing style.

Yes, Justice is a game

Roger Fedyk:

The reality is that as a myth it is just that, a myth. In spite of the nobleness of ideals and the personal integrity of many of the practitioners, the judicial system remains at its heart an instrument of extending entrenched and propertied power. It remains the king's right arm. What has changed is merely the identity of the king.

Well of course it is it always has been. Without the judicial system, you would have anarchy, so they say.

Justice is a product, no different to any other. It can be bought and sold, and is in fact, everyday. The justice of today may appear to be different, at its heart it is the same. Justice must change with the times means: Justice must keep the power structure entrenched.

Like any product; the justice system, will fall away, wither and die, when it becomes to expensive too justify its existence.

Note: Over the last quarter of a century, there as been a big shift toward private mediation. This is especially so for wealthy individual clients, and large corporations. David Friedman makes some interesting points http://daviddfriedman.com/Libertarian/Machinery_of_Freedom/MofF_Chapter_29.html



The Difference Between Revising History and Historical Revision.

 Jenny reckons: “…this piece is a welcome change and I found it most enlightening and interesting, once one had inserted the odd comma here and there!  I note her comment about historical revision, somewhat pertinent on another thread. But I won't pursue that here.”

You may not Jenny; however, I shall.

Sue Crennan’s comments about historical revision, contrary to your assertion otherwise, are not pertinent at all on ‘another thread’ if you are referring to the recent discussion you and I have had on this subject.

Sue Crennan’s references to historical revision were framed in the context of historical interpretation being flexible only within a rigid set of known specified parameters. Crennan’s remarks did not allude at all to a reassessment of history as a reaction to a change in the specification of those parameters as would be the case if new evidence came to light that changes entirely the original assumption about the historical event to the extent that the original interpretation now needs to be entirely reinterpreted.

Collective as opposed to individual confidence

Roger: As you say most people probably never get to experience justice at work and collective confidence in the judiciary's capacity to deliver justice, however defined, is probably pretty low.

I suspect it differs however at the individual level and will obviously be shaped by that individual experience of it.  Money or the lack of it, as opposed to lack of connections, is undoubtedly the single biggest factor that prevents most from ever really testing the water, no matter how convinced they are of the rightness of their position. Property of course is just another form of money.

Connections might help some people/ organizations, but I suspect connections could be as much a liability as an asset, particularly if one sees the system as something to be manipulated with the help of those connections. One would want to be pretty sure of the Judge who might have views of his own about those connections should they come to his notice.

I first ran into the judicial system at around 16, against a finance company, and as the rather reluctant family trouble shooter in the 50 years since have had several encounters, mostly with the pedestrian magistrate's court/tribunals, but ultimately with the Supreme Court. I relished none of those encounters and would have avoided all of them, had not so much been at stake. We never had money or connections, though we did have limited property assets which could be considerably at risk over those years. Who would have got the first cut in the event of failure, the bank holding the title deeds, or the lawyers and the other party I am not exactly sure, and it would not have mattered either way.

Looking back down those years and at those encounters, I have not had cause to lose confidence in the judicial system. It was not a case of being able to manipulate it to gain the outcomes I sought. I at all times relied on an honest belief that the cause for which I/the family was fighting was right and that justice should be delivered. At times an awful lot hung on that belief.

For example one issue involved the bureaucrats' decision to build a multi lane bypass slap bang through the middle of our dairy farm, and being prepared to trample over our rights by paying very limited compensation in the process. We had to fight this just when four years of drought had crippled us financially, so we were at the time up to our eyes in debt.  Another, ten years later, was an attempt by wealthy interests, with the assistance of public officials, to trample on the rights of a disabled person by undermining the execution of a deceased Estate on which she depended. Of course they sought to manipulate the system by articulating the righteousness of their actions and as being in her best interests, which did not fool us. Both situations involved filing in the Supreme Court so the matters we had to deal with were not vexatious or trivial.

What I did find over those 50 years was that I/the family was often up against people or powerful institutions and their advisers who did believe that they could manipulate the system, or if not it, then us. Not once however did they prevail. So my faith in the law and the judiciary is still reasonably strong.

Another thing I found helped enormously over the years was having a family lawyer, who had the highest level of integrity of anyone I have ever known. The value of his wise counsel, combined with his experience and in depth understanding of the fields of law he specilised in, was incalculable.

However, I would agree that others have had less positive outcomes, particularly those who have had to deal with the Family Court, and the outcomes I have seen when it got it wrong, give me little confidence in that Court. 

So you are quite right, while the pursuit of justice is unaffordable or financially too risky, few people will ever get to test the water. with the result that their level of confidence in the legal system, at the higher level, can never really be measured. Some of course are able to engage a pro bono legal team, but I suspect such teams only take on those cases where the biccies, if they win for their client, are going to be big enough to guarantee them very ample reward. I am very wary of anything that might look like an open cheque.  

No doubt there are those who fight for a client because they sincerely believe in their cause. Refugees and young people facing the firing squad spring to mind here, but who knows the ins and outs of all that?

I would suspend judgment on the issue of whether Mabo is being wound back until I see the legislation that backs up the current intervention and to what extent permanent control over indigenous lands is going to be the basis for the cost of this open ended Plan, a plan which I agree has a very high risk of failure anyway.

Margo: Yes this piece is a welcome change and I found it most enlightening and interesting, once one had inserted the odd comma here and there!  I note her comment about historical revision, somewhat pertinent on another thread. But I won't pursue that here. 

Margo: Hi Jenny. The lawyer in me will never die. 

Is It Enough To Build A Collective Confidence?

The usefulness of courts and judges as a counter balance to unfettered power seems, on the surface, to have stood the test of time. Incidents, real and apochryphal, have entwined into the noble myth of justice, a view of judicial power at ease with its status in the community.

The reality is that as a myth it is just that, a myth. In spite of the nobleness of ideals and the personal integrity of many of the practitioners, the judicial system remains at its heart an instrument of extending entrenched and propertied power. It remains the king's right arm. What has changed is merely the identity of the king.

As a people, we exercise very little power and probably in an adult lifetime will have never experienced justice at work beyond the pedestrian decisions of the magistrate's court.

If we have money, property and connections then we will get to see the hallowed halls of the higher courts working on our behalf and will learn by tutelage and patronage what is required of us to manipulate these institutions. In the end, when all else fails we have the influence of the practitioners of government. After all, if you want to understand the power trail, merely remind yourself who appoints the senior jurists.

Whether Foucault's ideas have influence or not they are the legalistic equivalent of rearranging the Titanic's deck chairs. The real game of power has never changed. The kings still rule, the disguises of modern captains of industry and politics merely being a self-serving chimera.

Even when something remarkable such as the Mabo decision seems to have permanently changed the landscape of the king's domain, the agents of the regal status quo immediately begin their work of reclamation.

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