Comments on: Applying the law

By: mark

mark — Tue, 30 Nov 1999 00:00:00 +0000

I agree with you about Kirby; however, I’m not sure why you needed to devote most of the post to discredit Janet Albrechtsen. She seems to be almost ashamed of her law degree, judging by the stridency with which she attempts to prove her ignorance.

By: Ken Parish

Ken Parish — Tue, 30 Nov 1999 00:00:00 +0000

Mark

Albrechtsen’s “just apply the law” line is one that conservatives, including the occasional Troppo commenter, bring up quite often. I decided it was worthwhile dealing with the argument at length while I had a little bit of spare time during study vacation week, so I can just link to this post next time someone trots it out. I’ve also been doing some work on Dworkin recently, and found the excellent article by Solove mentioned in the main post. It provides a very readable but sophisticated discussion about the nature of judging, for any readers interested in moving beyond the superficial.

By: Spiros

Spiros — Tue, 30 Nov 1999 00:00:00 +0000

I believe that Albrechtson not only has a law degree, but a doctorate of law as well. Is it case that the more you study the law at university, the more ignorant of the law you become?

By: Jacques Chester

Jacques Chester — Tue, 30 Nov 1999 00:00:00 +0000

I’m not sure if you ever saw my essay on this topic, Ken. From memory my argument was approximately that while legalism will falter on areas of true ambiguity, its strength lies in its nature as a self-discipline for judges.

Speaking about Kirby, one of my complaints is that his method is not consistent, even if the themes of his conclusions are. Kirby does apply the law, being whichever one can be squeezed into the social-cultural-economic frock he seems hell-bent on.

By: mark

mark — Tue, 30 Nov 1999 00:00:00 +0000

I don’t think anyone actually disagrees with you there, Jacques (except Albrechtsen…)

By: greg

greg — Tue, 30 Nov 1999 00:00:00 +0000

Agree the inevitable role of value judgments in judicial decision making (in some cases). However, Kirby’s exhortation to “drop the deception that law is mechanical” so that “Judges must tell it as it is” seems to want to formalise this and goes beyond the “unconsciousness” in creative judicial activity” that Stone appears to be endorsing.

To emphasise a role for personal values in judicial decision making is unfortunate for the reason you mention. It also leads to the logical question, should HC appointments therefore be subject to some US style review process by which the values of appointees can be determined, a process I would not like to see in Ausstralia.

By: greg

greg — Tue, 30 Nov 1999 00:00:00 +0000

By: Norman

Norman — Tue, 30 Nov 1999 00:00:00 +0000

My only comment, Ken, is that your post, in dealing with the issues at much more length than would be acceptable in a newspaper, raises the same general problems she referred to in a “throw away line” manner. Of course we’re not dealing with absolutes; but was Albrechtsen doing much more than responding to Kirby’s blithe dreamings with a dose of castor oil which enabled [non-legal] readers to better understand the dangers she believed to be facing them?
I long ago realised, from friendships with lawyers involved in politics, that having legal training meant little once you became a believer in the righteousness of a cause. Because of this I see to her admittedly over simplistic comments as primarily the sort of castor oil needed to alert readers to dangers which are covered in your own post, but would never be read through by the genaeral public.

By: qm

qm — Tue, 30 Nov 1999 00:00:00 +0000

The “legal” commentary of Albrechtsen is a pet hate of mine because I think that she, as a lawyer, is in a position where your ordinary man on the street is likely to give a little more weight to her position on legal matters.

And she falls into the camp of people who reduce complex matters to soundbite journalism like the “applying the law” comment mentioned above - which like “tough on crime”, “middle australia” and “border protection” actually reduce the level of understanding of particular concepts.

Her campaign against “judicial activism” has her creating a polemic which completely distorts the idea of separation of powers and the role of the executive.

By: Norman

Norman — Tue, 30 Nov 1999 00:00:00 +0000

Perhaps so, qm; but without the Kirbys and Einfields of the world, no one would even notice the Albrechtsens, would they?
The Law didn’t suffer from mudslingers in the manner it now does, before people like them began muddying the waters.

By: mark

mark — Tue, 30 Nov 1999 00:00:00 +0000

Damn right, Norman. The Law was better off in the Dixon CJ days, eh? When men were Real Men, women were Real Women, and legislation was Real Legislation, none of this watered-down “oh, the judges will sort it out when the time comes” business.

By: Norman

Norman — Tue, 30 Nov 1999 00:00:00 +0000

I wish I could share your sanguine view of the past, mark. I gues I must be much younger than you.

By: Robert

Robert — Tue, 30 Nov 1999 00:00:00 +0000

Norman, in the old days, Attorneys-General would stand up for judicial independence. These days, they sink the boot in. That surely explains a large part of the difference.

By: Norman

Norman — Tue, 30 Nov 1999 00:00:00 +0000

True in part perhaps, Robert, because many hoped to be elevated to the Bench in their next political incarnation? More importantly, of course, is that it wouldn’t have made a great deal of sense in those times, to criticise Judges for being political, in light of the fact that they had not yet begun to champion political causes with the partisan enthusiasm displayed these days by some incumbents.
And this isn’t a ‘chicken and egg’ problem. The judicial politicking PRECEDED the criticisms.