Blow an electric fan on my gnarly old head… Bennion and diversity in law

You don’t usually expect to read controversial political opinions in dry old law textbooks.  Few textbooks are drier than Bennion on Statutory Interpretation:

A saving resembles a proviso, except that it has no particular form.  Futhermore it relates to an existing legal rule or right, whereas a proviso is usually concerned with limiting the new provision made by the section to which it is attached.

You can therefore imagine my surprise as I was skimming through the introduction to find the following passage:

The requirement of diversity [in appointing judges] raises different questions.  Under the previous system our judges were drawn almost entirely from a population consisting of people with a Judeo-Christian background; it was such people who over centuries created a common law, including the criteria (reproduced in this book) which the common law lays down for statutory interpretation.  In particular that brings in the important concept of legal policy, derived from public policy.

Historically the content of legal policy in Britain has reflected the peculiar culture of the nation.  To now insist on ‘diversity’ among our judges indicates that this is intended to change and that our judiciary will no longer have a common mindset.  But a judge’s service must always be to the entire community, and should reflect the prevailing moral outlook.  That principle needs to be stressed in a manner it has not been in official pronouncements on ‘doing law differently’.  It would be regrettable if the way a case was decided came to depend on the accidental composition of the bench who happened to try it.  What view would a judge who was for example a faithful Muslim take on the present content of British legal policy? [p 4-5]

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The Second Amendment: An argument against an Australian Bill of Rights #auslaw

I usually put some song lyrics in the title.  A few times now I’ve discussed issues where the fear of looking too glib has meant that I can’t go with that convention.  This is another of those.

First things first, I do not understand why civilians can purchase any kind of gun.  Even for farmers.  When I was a kid, we had guns on the property.  They were used twice: once to deal with a snake, another to deal (unsuccessfully) with a fox.  What sort of moron uses a gun to deal with a snake?  My father.  As I grew up, only the weirdo kids at school were into guns.  They were exactly the kind of people that you didn’t want anywhere near guns.  ‘Maaaate, we shot a defenseless creature.  Awesome.’  Although I know significantly fewer farmers now that I’m an employable nerd, the ones that I do know don’t have guns.  Or any interest in them.  In conclusion, why are guns able to be purchased by individuals?

Second things second, the shooting at the primary school was horrible.  I’m not usually the kind of person who gets emotionally affected by news reports, but this one made me feel ill.  There was nary a minute between seeing the item flash up on my newsfeeds before people went immediately to their stock standard battle positions regarding the Second Amendment.  What is it?  Are we that eager to have opinions about things?  Do we have such an incredible need to find somebody to blame (apart from the obvious person)?  It was just utterly vulgar.

Yesterday’s atrocity is yet further evidence why Australia should not adopt a Bill of Rights.

In 1996, the Howard Government was able to pass legislation to severely restrict the sale of firearms.  It was able to do this because there are very few restrictions on Parliament’s ability to pass legislation (provided there’s a head of power to do so).

When the drafters thought up the Second Amendment, they had no way of knowing that it would result in the school shooting.  No way at all.  When legislation is passed, it’s taken out of the author’s hands and into the legal ether of the court system.  It takes on a life of its own.  Some people might argue that this is a good thing: the Refugees Convention, for example, is doing things that the people who wrote it could not possibly have foreseen.  Other people (like me) look at this with a great deal of suspicion.  If the legislation is taking on a life of its own, how is it being controlled?  In whose interest is the legal principle morphing?

For most laws, there’s an easy remedy to this problem: pass a new law!  Intellectual property law is throwing up weird outcomes?  Law reform!  Contract law is throwing up weird outcomes?  Law reform!  Too many individual pieces of human rights legislation?  Omnibus law reform!

It’s bits of legislation which are difficult to change which throw up huge problems.  The Refugees Convention extends rights to asylum seekers tacitly.  Most of our problems in the debate is a result of people being imprecise with terminology.  If the Refugees Convention were easy to amend, it could be clarified to extend rights to asylum seekers.  Instead, we know that if the Refugees Convention were proposed today, nobody would sign it.  As a piece of legislation, it’s immutably stuck in the past.

Constitutional laws are similarly problematic.  Take section 25 of the Constitution:

For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

I still remember the ‘WTF?’ face I pulled when I first read that section.  Holy crap, it looks horrible.  Disqualifying races from voting?  Oh, those racist white male drafters of the Constitution.  What a bunch of racists.

It turns out that the person who proposed the section, Andrew Inglis Clark, was a progressive visionary.  Section 25 was a way of motivating States to be non-discriminatory in their electoral laws.  If the law of any State discriminates against a race in their electoral laws, the State will be penalised when it comes to representation in Parliament.  It’s really clever.

If you read the YouMeUnity document, you don’t get that background.  I guess ‘Be Informed’ just means ‘Here is the information we want you to have’.  Informed referenda are, it seems, overrated.

Section 25 now looks like a weird bit of historical quirk.  Do we still need this protection in the Constitution?  On the other hand, do we gain anything by removing the protection?  All interesting ideas that you won’t find explored on the websites of people interested in the proposed referendum.

Other sections of the Constitution have played out strangely and, indeed, completely contrary to what the drafter (or, especially, Sam Griffith) thought they would.  Consider  s51(xxxv):

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State

Until the Engineers’ Case, nobody would have thought that this line would signal an end to implied intergovernmental immunities.

Sir Isaac Isaacs sure showed them.

Short of a referendum, Sir Isaac Isaacs breathing life into the conciliation and arbitration power will be the moment where the course of Australian law changed.  Sure, he got it right on this occasion (screw the States) but this could have gone in an entirely different direction.

And that’s the problem with Constitutional rights.  You don’t know now how the right will end up being deployed tomorrow.  Having a well regulated militia for the security of the State probably sounded like an intuitively obvious assertion back in the 1700s.  Today, we’re affected by another gun-related tragedy.

When everything is going down the pan… another post about the Australian Book of Atheism

It looks like I’m going to write an entry criticising every piece in the book…  Oh dear.  At some point, I should get around to Eggs_Maledict’s request to explain what I like about conservatism.  Every time I sit to write that entry, I get a bit lost and need to reframe the argument.  Look forward to it.

In the mean time, we have ‘Religion and the Law in Australia’, written by Clarence Wright.  In fairness to this guy, he hasn’t made any beefed up claims about himself (like the other two authors) and seems to have been included in this anthology by virtue of being friends with the editor (they’re both Brisbane atheists).  Later, the anthology will include Tim Minchin’s poem about a dinner party, so I think we’ve given up on considering this anthology to have much in the way of intellectual merit.

But let’s give Wright’s article a chance to shine…

He starts off with Thomas Aquinas’ account of ‘natural law‘ but mangles a bit to get to his conclusion:

This religious and unsophisticated ideal of just law resulting from ‘God’s’ direction, through his Holy Text, the Bible, no longer serves a significant influence on jurisprudence. [Source: Clarence Wright, ‘Religion and the law in Australia’]

Phew.  If we accept Wright’s reading of Aquinas (which we shouldn’t, but whatever), then we atheists have nothing to worry about.  This religious ideal is no longer a significant influence!  Hooray and hoorah.  Victory to us.

Wait… why is his conclusion on the second page of his article? Continue reading

Some kind of plastic I can wrap around you… And the Man on the Clapham Omnibus

Okay, I haven’t updated this in a while because I’ve been fairly solidly buried in work, study, and play.  I am procrastinating and, thus, we get an update.

There is a legal principle in common law systems that people — generally and normally — behave reasonably.  The idea is that every person is rational — or ought to be rational — and that they behave in a generally rational way.  Those people include legislators and, when they write up statutes, it’s presumed that they did so in a reasonable way.  Those people also include parties to contracts and, when they form contracts, it’s presumed that they did so in a reasonable way.  Those people also include people who are criminals and, when they perform some criminal acts (the ones involving mens rea), it is presumed that they knew that they were performing some act which a rational person would condemn.

It’s called the objective test and it posits some hypothetical person — ‘the man on the Clapham omnibus/Bondi tram’ — and asks ‘What would he think?’

What’s curious about this reasonable person is that he is invariably white, male, and educated.  This is due to a wonderful feature of our thinking called ‘normativity’.  It’s where we consider the default — ‘normal’ — position to be that which is most dominant in our social framework.  In common law countries, this is invariably white guys.  So the default perspective is that of a member of the hegemony. Continue reading