FOREWORD. Law in Context. Stephen Bottomley and Simon Bronitt. The Hon. Michael Kirby AC CMG

Transcription

1 FOREWORD Law in Context 2581 Stephen Bottomley and Simon Bronitt 4 th Edition, 2012 The Hon. Michael Kirby AC CMG

2 LAW IN CONTEXT 4 TH EDITION 2012 FOREWORD THE HON. MICHAEL KIRBY AC CMG * In law, as in life, timing and context are vital. This new edition of an influential work is timely. It permits the authors to bring their popular text up to date with developments relevant to the second decade of the 21 st Century. The book was originally written for a more hostile time, when Australian law still largely followed the formalistic, linguistic and objectified conceptions of the law inherited from Britain. In my youth Australian lawyers were taught by their judges, led by the long serving and influential Justice Owen Dixon, that values and context had little or no influence on the judge-made law that then predominated. The law would have lost its meaning, so Dixon proclaimed, if he did not precede its application in the particular case. Even in those dark days, there were heretical voices. The great teacher of jurisprudence at the University of Sydney, Julius Stone, taught his students a modified version of Roscoe Pound s realism. Judges, he assured us, had multiple leeways for choice, in expounding the Constitution, in interpreting statutes and in developing the common * Justice of the High Court of Australia ( ); Chairman of the Australian Law Reform Commission ( )

3 law. Thus was planted the notion that context was important to many legal outcomes. The values of judges were derived from their experiences of life, their education, associations, professional careers, religions and other features of their lives as human beings. The lingering force of Dixonian positivism endured in Australia well into the 1970 s and 80 s. But then the context began to change. And the law began to reflect this change. This was the legal scene when the authors of this book first came upon the law. I know because I had arrived 30 years before. I saw the earliest phases of the change, and the resulting hostility, that demanded a book like this. Of course, nothing stands still in Australian society, and in its law. So it is inevitable that a book like this must constantly be revised, rewritten, expanded and changed as the global and national context of law is altered. Take, for example, the first chapter, with its description of the philosophical foundations for Australian law. This describes the splendid parade of the great intellectuals who, for 2500 years have chartered the philosophy and rationale of law. There are the ancients back to Aristotle. Historical figures such as Coke, Blackstone, Descartes, Locke, Hume, Mill, Marx and Weber. And contemporary legal philosophers such as Raz, Rawles, Fuller, the two Dworkins, Michel Foucault and Catherine MacKinnon. In an amazingly brief way, the authors give their

4 readers illuminating pen pictures of the explanations of law and justicethat each of these great minds has offered. Such is the change in the demography and ideological positioning of the Australian Commonwealth today, that it cannot be far off when a review of this kind will have to include references to Confucius and other important philosophers from the Asian continent, including the contemporary writings of Amartya Sen 1. Through our heritage of English law, our basic institutions and notions of justice are still well and truly anchored in the philosophical traditions of Europe. But will this be always so? With Australia s social and ethnic changes, will our institutions and ideas of justice adapt and change to keep pace? Chapter 2, with its analysis of legal formalism and the rule of law, addresses a significant quandary presented to contemporary lawyers by the still comparatively recent examples of horribly unjust societies, such as Nazi Germany and Apartheid South Africa. Each of those regimes was governed by law. But the laws were often oppressive and unjust. And these were black holes. So does the rule of law today mean more than simple compliance with rules? Does it import, and assume, a minimum degree of respect for fundamental human rights? This is a controversy that should engage the mind of any person reflecting deeply, for the first time, on what the business of law truly is, in a society like Australia 2. 1 A. Sen The Idea of Justice. Allen Lane, London See eg Lord Bingham, The Rule of Law (2007) 66 Cambridge Law Journal 67 and M.D. Kirby, The Rule of Law beyond the Law of Rules (2010) 33 Australian Bar Revue 195

5 Chapters 3 and 4 deal successively with the subjects of Gender and Race and the imprint that these two features of human existence have upon the law, often to the disadvantage of particular categories of people. As the authors point out, the story of the unjust impact of each of these elements is far from over. Future editions of this book will doubtless devote new chapters to other similar categories of human experience, such as Sexuality and Disability. True it is, each of these elements is mentioned in the book 3. So is the special sub category of Race, so important for an Australian audience, namely Aboriginality and the position of Indigenous ethnic minorities 4. However, it seems likely to me that contemporary debates about the content and direction of law in Australia will elevate these further topics into full contextual chapters rather than mere illustrations of larger themes. Elements of legal injustice, arising from stereotypes (and sometimes from religious and patriarchal attitudes), can be found in laws on Sexuality and Disability. This fact illustrates, once again, that perceptions of the legal context will often depend upon an author s life s experience, including exposure to the injustice of the law that sometimes takes many years to surface in public and institutional consciousness 5. Reading again the celebrated debates between Lord Devlin and Professor H.L.A. Hart, recounted at the outset of this book, 6 helps to 3 Such as infra 11ff (Sexuality); 55ff (Disability) 4 See eg infra, 118ff 5 See eg Croome v Tamanias (1998) 191 CLR 119 (Sexuality); Purvis v NSW (2003) 217 CLR 92 (Disability);.IW v City of Perth(1998) 191 CLR 1 (HIV Status); See also Minister for Immigration v B (2004) 119 CLR 356; Al-Kateb v Godwin (2004) 219 CLR 562; and Roach v Electoral Commissioner (2007) 233 CLR 162 (Prisoners/Detainees) 6 infra, 12ff

6 explain the resistance of many countries of the world to the strategies essential to providing practical protection for their citizens against the spread of Acquired Immunodeficiency Syndrome (AIDS). More developed countries have embraced Hart s vision of the limited role of law. But less developed countries still persist with Devlin s notion that law exists to enforce majority perceptions of morality, often based on majority religious beliefs. In this sense, the philosophical differences described in this book are not purely theoretical. They affect life and death, the economy and the attainment or deprivation of universal human rights 7. It is the way in which the themes in this book play out in their practical manifestations in the real world that will capture the attention of readers, and especially those student readers who are embarking on a study of law for the first time. The authors rightly emphasise the importance of a access to justice 8. Enacting laws will be of little use if the people affected adversely have no real means of enforcing them. Or if, through hostility, the courts adopt a negative attitude to public interest suits 9 ; or to the obstacles that lie in the path of litigation because of the burden of costs 10 or common features of contemporary legal ethics As outlined by the report of the Eminent Persons Group of the Commonwealth of Nations, A Commonwealth of the People Time for Urgent Reform (Commonwealth Secretariat, London, 2011, ) (Sexuality and HIV AIDS) 8 infra, 159ff in Ch 5 9 M.D. Kirby, Deconstructing the Law s Hostility to Public Interest Litigation (2011) 127 LQR See eg APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; and Campbell s Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR infra, Ch 2, 45ff

7 This book is right up to date with contemporary controversies, including a chapter on the economic analysis of law 12 and a closing chapter of the impact of globalisation on national and local law, hitherto hidebound by the notions of geographical jurisdiction. In this last chapter, descriptions are given by the authors of the beneficial way in which international law can sometimes stimulate fresh scrutiny of anachronistic rules of Australian law 13. But this chapter also describes the limits of the influence of international law, by reference to contemporary judicial decisions 14. The text concludes with some very modern legal problems, such as responding to global terrorism and to transnational business 15. These are topics that would not have attracted any attention, as such, in my law school days. No doubt, some readers of this text may thirst for more citations of judicial opinions to illustrate the themes, in the place of the philosophers, economists and sociologists whom the authors frequently call in aid 16. The same readers might lament the gulf that is opened up between the perspectives of critics of the Australian legal system and of the lawyers and judges who are busily engaged in daily practice, trying to make the legal system work as well as they can for the clients and litigants who engage their concerns. These are legitimate viewpoints. But the likely readers of this text face a lifetime of reading judicial dicta and a never ending barrage of professional rhetoric. At the outset of a life in the law, it is undoubtedly useful for novices to be challenged and stimulated by 12 Ch As in Mabo v Queensland [No.2] (1992) 175 CLR 1 at 42. See infra, infra ch11, citing Coleman v Power (2004) 220 CLR 1 and Al-Kateb v Godwin (2004) 219 CLR infra, Ch11, 410 and Compare for example S Odgers, Book Review, Bar News, (NSW Bar Assn.) Summer 2001, 66-67

8 the perspectives offered throughout this book. It may help them to be concerned with the ultimate objectives of law: the ordering of society and the attainment of justice for individuals and groups. It may engage their minds in the never ending obligation of lawyers to reflect upon their duties to law reform and to the new challenges that each generation faces in finding the law and applying it justly to their new and often challenging circumstances. Just as Julius Stone s writing did for me so many years ago, when I first entered upon Law s Empire. 18 March 2012, Sydney Michael Kirby