Janet Albrechtsen's jurisprudence

An earlier article ('Attacking the High Court judges') argued that Janet Albrechten's criticism of judges in the Malaysia asylum case was misconceived; this article asks what vision of law could explain the views she expressed. She said what the Prime Minister had said earlier - to universal criticism - that the judges made a political decision not a legal one. But whereas Gillard was upset because they did not support her asylum policy, Albrechtsen began well; she said they would be wrong to make a political decision if the law was clear and settled, as in her view it was.

Almost all lawyers reject the Prime Minister's view and support this statement of principle - judges should not make political decisions and should apply the clear law. If Albrechtsen had stopped here, and not felt obliged to say they were 'entitled' to rule as they did, her argument would still be wrong but at least intelligible. The reason it is wrong is that her assertion that the law was clear and settled is manifestly untrue.

It is refuted by the fact that senior counsel could not agree and, after argument from both sides and careful study of the Act in light of long-settled principles of statutory interpretation, our most authoritative judges were unable to reach a unanimous decision. What further evidence does one need to conclude the law is unclear?

This is not to deny that Albrechtsen's view of the law may, in the end, be correct. Academic journals are full of articles by eminent scholars who argue, often persuasively, that wise judges have made wrong decisions - which is why good law schools will encourage students to read both majority and dissenting judgments in key cases. But we need a good deal more than this to justify her claim that the judges abused their office to make a political, not a legal, decision.

Lawyers who did jurisprudence will recognise a theory of law which is part of a family of ideas known as 'legal realism', which emphasise the influence of personal values and innate dispositions - sometimes referred to as the 'subjective factor' - in decisions. Harsher critics of this movement, a product of American law schools, believe it began with harmless platitudes and, after decades of scholarship, managed to translate them into clichés and homilies.

The theory makes a dogmatic claim: where there is no clear rule it says judges can or must decide (there are variations), not by arguments of legal principle, but by choosing a social policy or goal and writing a judgment to give it effect. Because, so the theory says, judges cannot help doing this, they ought to do it as well as they can, and openly. When Albrechtsen says appellate judges have 'a wider berth' to interpret law as they please she is putting her version of this realist theory.

Hence the majority were in her view wrong, not because judges have no right to legislate policy, but because the law being clear they had no right to move into legislative mode. Why she thinks the law was clear and the High Court wrong remains a mystery, but it may not be unfair to see in it something of the same fundamentalism underlying her views on same-sex marriage.

Much more important, because it is central to debate on an Australian bill of rights - and more generally to the logic of moral reasoning - is the idea that judges cannot avoid 'making law' when called to interpret abstract principles. Nearly all critics of a bill of rights - and many supporters - think judges must 'legislate' where the law is silent or unclear.

Since virtually every case likely to arise under the fuzzy principles of a bill of rights will by definition be a case of unclear law, it follows that such a bill cannot be a statement much less a safeguard of our rights, but a licence to judges to grant us whatever rights they deem fit, according to whatever criteria seem to them appropriate.

This leaves us with an invidious choice between 'activist' judges who use the discretion to make law based on their personal values and political ideologies - which is clearly undemocratic - and conservative judges who, in order to respect democratic principles, must deny a remedy to victims of injustice, including the injustice of laws made by yesterday's judges.

A striking feature of the debate is that reformers and conservatives agree there can be no such thing as unclear or inchoate or implicit law. Most seem unaware, however, that this is a contested claim in conceptual philosophy, much easier to assert than to defend. This philosophical issue, which has prompted several books and hundreds of articles in recent decades, is by far the most important debate in contemporary jurisprudence.

This is due to the influence of one man. When Ronald Dworkin was appointed to the Oxford Chair of Jurisprudence in 1969 he had already laid the foundations for his refutation of legal positivism, a general theory of legal reasoning which also underlies the view that unclear law means no law. There is no space here to attempt even a summary, only to convey something of its logic (succinctly captured in the first quote from Brennan CJ) by looking briefly at two cases - one a ruling famous in Anglo-Australian civil law - the other a decision ending racial apartheid in US schools, an ideal of justice beyond the reach of democratic authority, state or federal.

Donoghue v Stevenson, the 1932 House of Lords case of the snail in the ginger beer bottle, is the most famous decision in the law of civil liability, familiar to all law students for its unifying principle - foreseeability of harm - to explain past cases where courts had found liability for negligent injury. This principle provided a general justification for 'a wilderness of single instances' and a basis to extend liability to new areas. Students are told that it freed judges from the rusted shackles of ancient categories of liability (actions 'on the case') but in reality it freed their minds, at least for a time, from the cobwebs of a superficial theory of precedent. However that may be, the idea that a duty of care arises for creating a risk of harm is now the backbone of modern tort liability.

The reasoning which achieved this is the speech of Lord Atkin, read in light of his historical scholarship - his explanation of the issues at stake in earlier, seminal cases. It is not the reasoning of a politician arguing for legislation. There is no appeal to benefits likely to accrue from 'making' a new legal principle to further extend tort liability, much less any consideration of the costs to manufacturers and insurers and ultimately to the competitiveness of British industry. None of these important economic or utilitarian factors played any role at all.

Instead Lord Atkin did what Gerard Brennan CJ intimated all responsible judges do - he pursued an ideal of justice implicit in any theory of precedent viz. that like cases be treated alike. In doing so he offered a better explanation than previous judges had of what constituted their 'likeness' - what differentiated past cases where plaintiffs could sue for negligence from cases where such actions had failed, as well as cases where unimaginative lawyers advised clients not to sue because they could find no specific precedent in the law reports.

This logic of argument is what makes Lord Atkin's speech a paradigm for Dworkin's model of Hercules. He was not searching for an explicit verbal formula - a generalized statement of liability hidden somewhere in the past cases (there were none), but asking himself if the reasons given for a duty of care in these cases, read in light of earlier and later judgments - as well as cases yet to come - provided the most coherent foundation for negligence liability. While this conception of principled reasoning continues to baffle Dworkin's positivist critics, good judges simply take it for granted; it would, in fact, be hard to find a more precise account than in the opening quote.

The issue of conceptual philosophy then, is whether the principle of risk - foreseeability of harm - is the product of a supposed right to make a legislative 'choice' (in which case if Lord Atkin had chosen to protect industry this would, according to 'realists', be just as valid), or a requirement of substantive consistency in interpreting past authorities; whether it was a more principled view of the theory of precedent because it was more sensitive to the difference between inconsistencies and exceptions. That is, more sensitive to the values which give point to this distinction.

The second example is the 1954 case of Brown v. Board of Education, where the US bill of rights provided legal protection when, from ignorance, prejudice or self-interest, a community through its government were treating a minority as second-class citizens. Racial segregation in US schools had for decades rested on a widely shared belief, reflected in Supreme Court rulings, that the equal protection clause of the Bill of Rights allowed 'equal but separate' schools. The Court rejected this on evidence that it led black children to see themselves as inferior, thus institutionalizing prejudice and defeating the ideal of fairness implicit in this constitutional guarantee. The case deserves to be celebrated because of its jurisprudential integrity - that it restored priority to legal principle over judicial opinion - not its political correctness.

Brown's case is a dramatic reminder of the social and political consequences which may flow from an interpretation of constitutional principle - of the immense changes it may force on government to avoid the sacrifice of individual rights to majoritarian goals; which is why so many critics (who, depending on whether they are 'personal' or 'property' rights, range across the political spectrum) believe no court should have this authority. They might not question the values which underlie our rights but they want elected politicians, not judges, to interpret them.

The case for an Australian bill has stalled precisely on this point, because those who favour it cannot meet the conservative objection that unelected judges who interpret abstract principles are making political decisions; they have no answer because most of them share this belief.

If legal principles are - as Dworkin has argued over the past half-century - 'weighted' standards which also have a point, there is no reason in either fact or logic why judges cannot be charged to make decisions based on judgments of their weight as well as their meaning and requirement, in accordance with past decisions whose authority no one disputes. This is no more a 'political' act than the judgments they make of 'non-democratic' common law principles on a daily basis.

The argument for a justiciable bill of rights rests on the fact that interpreting legal principles, as described in the second quote from Brennan CJ., is an intrinsically judicial exercise in Dworkin's sense and because - as in Brown's Case - it is the only way to defend our most basic rights when the community, or its representatives, finds it expedient to deny them, or simply does not care.

Albrechtsen does not seem to realise she impugns the integrity of the judges when she accuses them of making a decision based on a personal political preference when they knew, or should in her view have known, that the law required a verdict for the Government. It shows how far this popular idea of judicial responsibility, with its lazy appeal to post-modernist thinking, has seeped into the body politic.

She offers no support other than that her view of the law is different. She set off under full sail with a strong breeze, but foundered on the rocks and shoals of a notoriously superficial theory of law; she should have paused to ask herself, before setting course, why no appellate judge has ever taken it seriously.