The "Here's A Problem, Let's Deal With It" Mentality
The Mabo Edict is an exercise in law reform very much within the law reform tradition.
This approach may be summarised in a number of propositions:
i Where there is injustice and human problems (as perceived by the law reformers) change is necessary.
ii All other effects (eg economic costs and effects on rights and freedoms of others) of the proposed reform are ignored or regarded as irrelevant.
iii The change is to be effected primarily through legislation.
iv Law reform by judges is acceptable provided judges are educated in the politically correct perspectives.
v The Mabo Edict is judicial law reform within the law reform tradition.
There are many adverse consequences of the "here's a problem reform" process. The reformists seek to achieve change through legislation and bureaucratic action which has many pitfalls not foreseen and not understood by the purported reformers. The cumulative effects of the totality of regulations on freedom, the economic cost to the tax payer and business and other side effects are not appreciated. The word "cumulative" in the previous sentence requires emphasis. The reformer focuses on a particular problem and legislates. The cumulative effects of numerous and manifold efforts to deal with problems involve a massive interference with individual freedom and a burden on the individual and business taxpayer (cost to business is always passed on to the consumer).
The above propositions coupled with the philosophy within which reform is to be effected, provides a wider dimension to the critique of the Mabo Edict. The Mabo Edict is judicial law reform within the law reform tradition.
The pervasive approach in modern reform movements to change the common law is the "here's a human problem, lets deal with it" mentality. The key concepts are: inequality - minority oppression — discrimination — exploitation anti-democratic injustice (commencing from a concept of social justice as distinct from inter personals justice which the common law was conceived about. The supporting rationalisations include "the market has failed" or "the market is not performing satisfactorily", "we cannot tolerate this injustice", "this involves discrimination", "this is unfair by minorities", "this state of affairs involves exploitation", "the environment will be affected", "this is not democratic" — and variations on these themes. When there is a human problem there is a pressing urge to do something about it which means invoking government power involving regulation, bureaucrats and taxpayers' money. This approach is the root cause of the escalating problems which confront western society.
The fault principle and the underlying values and institutions of the common law tradition substantially influenced by Christian morality are in the process undermined. The conflict between common law based on freedom and concepts of wrong doing and the problem sought to be rectified in a particular way by reform is often not appreciated, or considered important.
There is a failure to look at a problem in its total perspective.
Injustice, inequalities, problems and difficulties for minorities (also majorities — but law reformers are unconcerned about majorities) are an inevitable part of life. There are inevitable trade-offs in any situation. Given the imperfections of human nature and the uncertain environment, whatever rule is devised will have advantages and disadvantages.
The weakness in so much of reform is that it has not proceeded on an evaluation of the existing law — an evaluation of the strengths and weaknesses. This type of evaluation is an essential prerequisite for productive reform. What is required is a legal cost benefit analysis which involves an examination of the strengths and weaknesses of the existing situation and a careful consideration of whether in an effort to plug the weaknesses that exist, more weaknesses are not created in the process.
Meaningful and productive reform requires an analysis of the strengths and weaknesses of the existing system compared with the strengths and weaknesses of the proposed reform. This requires some imagination in order to anticipate probable weaknesses in proposed reforms.
Much (if not all) law reform proceeds on the weaknesses of the existing law and the anticipated benefits of the proposed reform. There is no focus on the positive effects of the prior existing law and probable problems with the proposed reform. Many of the anticipated benefits fail to materialise and unexpected costs appear. This is an invariable consequence of law reform. The regulationist answer often is to avoid a consideration of whether the reform was misconceived in the first place. The solution is more regulation on the basis that the regulation in the first place did not go far enough.
In an imperfect world, injustice, exploitation and minority oppression are inevitable. An attempt to deal with these problems within the framework of fault and freedom provides methods and avenues of gradually redressing injustice. The wrong turning in western society lies in the attempt to focus on problems of perceived injustice without a sense of perspective.
A sound basis for law and legal interventionism, is the fault principle and the common law methodology (substantially based on Christian morality). If laws are based on fault and government (executive, legislative and judiciary) observes other basic principles of the rule of law, constitutional limitations are not necessary. Constitutional limitations are an added safeguard given the propensity towards corruption and interference by the State.
Interventionism which is not defensible in the present writer's approach is the interventionism which starts with a problem and then seeks to deal with that problem without reference to morality, without a sense of perspective and without a realisation of the ways in which such intervention could cause dislocations in evolving institutions. The result is an overall increase of injustice and decrease of liberty.
A simple common sense factor is that there will always be minorities and injustices. Therefore the focus on injustice and minorities, without a sense of perspective, leads to creation of law in response to the subjective views of injustice and the rights of minorities which are put forward by the politically dominant, with aggression and nastiness by some. This does not mean that all who support reform are aggressive and nasty, but that there are aggressive and nasty elements supporting many reforms, without which the reforms may not have seen the light of day. Such a process will leave unaffected a vast reservoir of people whose interests are ignored by academia, media and interest groups and who are not dominant in the political order.
There are other adverse consequences of the "here's a problem reform" process. The reformists seek to achieve change through legislation and bureaucratic action which has many pitfalls not foreseen and not understood by the purported reformers. The cumulative effects of the totality of regulations on freedom, the economic cost to the tax payer and business and other side effects are not appreciated. The word "cumulatively in the previous sentence requires emphasis. The reformer focuses on a particular problem and legislates. The cumulative effects of numerous and manifold efforts to deal with problems involve a massive interference with individual freedom and a burden on the individual and business taxpayer. The cumulative effects of regulation are not foreseen by the "here's a problem let's deal with it reformers". All this has led to counterproductive reform. The private enterprise system has been crippled by the cumulative effects and burdens of regulation and taxation which, among other things, leads to unemployment.
These arguments are summed up:
... The extension of this policy, causing extension of corresponding ideas, fosters everywhere the tacit assumption that Government should step in whenever anything is not going right. "Surely you would not have this misery continue!" exclaims someone, if you hint a demurrer to much that is now being said and done. Observe what is implied by this exclamation. It takes for granted, first, that all suffering ought to be prevented, which is not true: much of the suffering is curative, and prevention of it is prevention of a remedy. In the second place, it takes for granted that every evil can be removed: the truth being that, with the existing deficiencies of human nature many evils can only be thrust out of one place or form into another place or form, often being increased by the change. The exclamation also implies the unhesitating belief, here especially concerning us, that evils of all kinds should be dealt with by the State. There does not occur the inquiry whether there are at work other agencies capable of dealing with evils, and whether the evils in question may not be among those which are best dealt with by these other agencies. And obviously, the more numerous governmental interventions become, the more confirmed does this habit of thought grow, and the more loud and perpetual the demands for intervention.
Every extension of the regulative policy involves an addition to the regulative agents — a further growth of officialism and an increasing power of the organization formed of officials. ...
He contemplates intently the things his act will achieve, but thinks little of the remoter issues of the movement his act sets up, and still less its collateral issues. ... Even less, as I say, does the politician who plumes himself on the practicalness of his aims, conceive the indirect results which will follow the direct results of his measures. ... Dwelling only on the effects of his particular stream of legislation, and not observing how much other streams already existing, and still other streams which will follow his initiative, pursue the same average course, it never occurs to him that they may presently unite into a voluminous flood utterly changing the face of things. (Spencer 1940:29,30-31,34)
What are the solutions to injustice? My answer is that there are no solutions to complicated human problems. The productive and beneficial areas of human history are those where there has been a constructive effort to face up to problems where society and law respect basic morality, possess a sense of realism working in tandem with idealism.
The basic deficiency of so much of modern reform and progressivism (so called) is that it has not been predicated on an understanding of the values and institutions which were responsible for the rise of western civilisation (of which Australia is a part). These have been consistently undermined. These values and institutions, which reflect the wisdom (and also the foolishness) of centuries of development, have been attacked rather than creatively developed to meet the emerging and genuine problems of modern life.
The common law methodology (a concept of wrong doing based on fault, evolutionary change involving slow and gradual development, precedent, inter personal justice as distinct from social justice, due process, standards and principles - all of which prevent ad hoc law making) will not lead to Utopia. But they offer a firmer basis for dealing with the problems of living than philosophies of modern age reformers and progressivists (so called).
The argument is not made that the common law is superior to statute or that the common law should prevail over statute. But that the common law methodology (not the common law) is the best guide for productive and beneficial law reform (whether legislative or judicial).(The "common law" methodology is explained in Cooray 1985:18-26 and Cooray 1992).
Ultimately the basic problem of modern reform tradition is a futile search to reconcile irreconcilables and the refusal to acknowledge tensions and contradictions. Law reformers want freedom, as well as order, individual liberty as well as equality, safety as well as the benefits of risk taking, a wide open society as well as less crime, material wealth as well as spiritual worth, individual liberty as well the collective good and economic and social regulation and political freedom without stopping to think that each of these values take something away from the other. To use an ungainly but accurate expression, they have forgotten the trade-offs.
The most destructive agents of change of the common law were not the Marxists, the neo-marxists, the fascists and other extremists. They are, and always have been a minority, though the small percentage of persons who reject fundamentally western civilisation and/or seek solutions in violent action or civil disobedience is increasing. The agents of change were to use another hackneyed phrase,
people who want to have their cake and eat it at the same time.
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