It seems that my previous posts on values (here and here) were reflecting the zeitgeist to an even greater extent than I imagined. At the same time, High Court Chief Justice Murray Gleeson was also reflecting on the role of values (albeit from the perspective of a judge called on to adjudicate human rights issues) in a speech on the formation of a new lobby group called the Melbourne Catholic Lawyers’ Association.
Leaving aside what the formation of such a group, along with the increasing influence of the Hillsong Church and the Family First Party, might tell us, Gleeson makes a number of useful observations about the role of shared values in identifying rights, delineating their limits and choosing between competing rights. I’ll extract some salient passages and then make some comments of my own:
There are two notable features of commonly accepted civil and political rights: first, rights are rarely absolute; secondly, some rights may conflict with other rights. In countries which apply the death penalty, even the right to life is not absolute. Leaving the right to life to one side, however, almost all rights are qualified to the extent that they may, in certain circumstances, yield to some overriding necessity. Whether rights are declared in a Convention, a Constitution, or an Act of Parliament, most modern instruments contain some qualification by reference to the need for reasonable regulation of conduct in a democratic society. Furthermore, rights may be inconsistent. The most obvious examples of both of these propositions are the right to privacy and the right of free speech. Neither right is absolute, and one person’s interest in privacy is very likely to collide with another person’s interest in free speech. Reconciling these potentially conflicting interests is one of the challenges facing contemporary law in Australia, the United Kingdom, and all modern societies. Some vocal advocates of the right of free speech are taciturn about the right of privacy. …
Courts are often required to “balance” competing interests. The scales of justices are a powerful image in the law. Discretionary decisions by courts commonly involve weighing the benefits and detriments of a potential outcome. But this is usually done on the assumption that the interests or considerations to be weighed are in some way reasonably commensurate. A set of scales can tell you that an ounce of silver has the same weight as an ounce of sand. The scales cannot tell you whether an ounce of silver is more valuable than an ounce of sand; you need some other standard of measurement for that purpose.
If two rights, neither of which is absolute, conflict, and a court is required to decide, by a process of “balancing”, which is to prevail, and to what extent, what is the intellectual process by which that task is to be accomplished? Since it is of the essence of judicial decision-making that reasons are given for a decision, so that the parties and the public may know that the procedure is rational, the intellectual process has to be able to survive scrutiny. To say, in a particular case, or generally, that one right or interest outweighs another right or interest is to announce a result. What information does it convey as to the process of reasoning by which that result is reached? How can the result be contested? If it is wrong, how can it be shown to be wrong? How is such a conclusion either verifiable or falsifiable? If it is neither verifiable nor falsifiable, what is its claim to be regarded as a process of reasoning? Is it not simply an expression of choice, or an exercise of power? Is it a judicial, or a legislative, function that is being performed? …
When rights conflict, a decision as to which is to prevail, and to what extent, can only be justified rationally by reference to some value external to the “balancing” process. Of course, it may not have to be justified rationally. If an exercise of legislative power is involved, an outcome may be justified democratically, by weight of numbers operating through the political process. The decision may be an exercise of power rather than judgment. A judicial decision, on the other hand, must be justified by a process of reasoning.
To describe something as a “right” may itself require justification. It is a commonplace feature of political and legal debate that advocates of various interests seek to characterise those interests as rights, thereby staking a claim for weight or recognition that may be contestable. By calling an interest a right, you may trump another interest. If there is a contest, then, again, it can only be resolved rationally (as distinct from resolution by power or weight of numbers) by reference to some value.
Professor Anderson, a famous teacher of philosophy at Sydney University, used to amuse himself with the paradox that two people can only have a sensible argument if they are already largely in agreement. In a multicultural, multi-value, society, this is an important point. A Catholic can have an argument about transsubstantiation with an Anglican; but not with an atheist. Christians who have a common understanding of Holy Orders sometimes argue amongst themselves about the ordination of women as priests. How could they have such an argument with someone who does not believe in religion or in priesthood? For such a person, the starting point of the entire discussion is nonsense. To someone who does not believe in the concept of priesthood, the question is whether women should be permitted to engage in social work. There can be no rational argument about that. Argument depends upon shared values. And a judgment can only explain a judicial choice between competing interests if it justifies the choice by reference to values that are shared by the reader of the judgment.
In the past, religion provided many of the common values by reference to which conflicts of rights or interest were resolved. In the future, what will take its place? Our law still reflects many Christian values. If and when these are challenged, how is the challenge resolved?
Weighing or balancing competing interests or considerations is a familiar part of the process of judgment. We all do it, in a variety of ways, on a daily basis. Courts do it all the time. The work of courts, however, is different from most everyday tasks of judgment in one respect. If I have to decide for myself whether I will give priority to one commitment over another, for example, I may only have to explain and justify that decision to myself. If I have to justify it to someone else, I may need to resort to some value that I share with the person to whom I am trying to justify my decision. Giving more weight to one consideration than to another can only be justified by either an express or an implied appeal to some standard external to the decision-maker. A judgment that says: “These are the considerations in favour of course A; those are the considerations in favour of course B; I will take course B” does not explain or justify the decision. It gives no reason for preferring B to A. That is the essential difference between the legislative and the judicial process.
The development of human rights jurisprudence, as the case of Odi¨vre v France illustrates, forces judges to weigh conflicting interests by reference to values. Sometimes judges will start with some external instrument, such as a Constitution, or a Bill of Rights, that identifies certain kinds of interest as rights. If that is so, they are provided with at least one value to begin with. They may still have to decide how to weigh it against another right. Sometimes they may have to decide for themselves whether an interest is to be regarded as a right.
We live in a pluralist society. By definition, that means that there is competition, not only when it comes to applying values, but also in identifying values. Everybody is aware that our society is rights-conscious. A rights-conscious society must also be values-conscious. If it is not, then we have no way of identifying those interests that are rights, or of resolving conflicts between them. Rights cannot work without values.
The function of identifying and promulgating shared values is an important one, even (perhaps especially) in a diverse, multicultural, secular society like ours. As Gleeson observes, judges may have the tasks of identifying rights from mere contestable claims, defining their boundaries, and adjudicating between conflicting rights (e.g. rights to privacy, reputation and free speech will frequently collide). In order to do so on anything other than an arbitrary or undisclosed basis, they must identify and apply values which they see as appropriate for guiding those choices. In theory, I suppose a constitution might contain very detailed prescriptions to guide judges in these tasks, but in practice doing this would be a hopelessly complex drafting exercise and would also render a constitution unworkably rigid.
But how do judges identify relevant shared values? Legal realists and Critical Legal Studies scholars (the mostly American legal branch of post-modernism) argue that they do so by reference to the values of the class or power structure with which they identify. Traditionalists argue that precedent, rule of law, and constraints imposed by their professional peers ensure that judicial decision-making has more integrity than a realist/CSL approach asserts.
Both viewpoints explain part of the picture. It is generally possible to divine the political prejudices of High Court Justices in their judgments, and they do mostly conform to expectations given their professional backgrounds and the government that appointed them. But not always. The law does possess a strong internal integrity, and judges’ decisions aren’t just flimsy pretexts for exercises of arbitrary partisan power. Nevertheless, Gleeson explains clearly why values unavoidably play a part in judicial decision-making.
Now to a rather more parochial observation. The point made by Anderson that “[a]rgument depends upon shared values” partly explains the currently evident phenomenon of blog readers retreating into the “safety” of the comment boxes of bloggers whose opinions largely reflect their own. Where there is too large a divergence between the fundamental values of people trying to have a conversation, the likelihood of anything resembling civil, informative discussion becomes very small. People merely shout past each other and misunderstandings abound. That is especially the case at election times, where partisan leaders are looking for issues to differentiate themselves from their opponents, and others are trying to find a plausible basis for making an unavoidable choice. No-one is looking for shared values or things that bind us all together. In fact the opposite is the case.
But in a non-electoral context, seeking shared values is a more plausible passtime. Hence (in part) my post the other day about Gerard Henderson’s list of 9 key areas where he claims “leftie” values/attitudes can be readily identified. I attempted to delineate my own attitudes to those areas, partly to explore whether there really was such a wide ideological gulf between “left” and “right” as Henderson and his ilk suppose. So far the verdict is the Scottish “not proven”, because not enough readers have been motivated to respond. I immodestly assert that my attitudes to Henderson’s 9 issues/areas are ones that a very high proportion of the Australian population would broadly agree with, including many if not most partisans who self-label “left” and “right”. That is, Australians actually share a wider range of values and attitudes at a fairly practical political level than people like Henderson, Blair, Bolt et al assert.
Anderson’s point about argument depending on broadly shared values also has a wider importance. How does a multicultural secular society like Australia’s maintain sufficient cultural homogeneity and enough shared values to enable social stability to be maintained, and coherent political and legal discourse to take place? It was to that point that Geoffrey Blainey’s much-vilified call for a slowing in Australia’s non-European migration rate was directed some years ago. It’s a pity that the prevailing political correctness of the 1980s inhibited intelligent debate on Blainey’s question, and that Hansonism and then Tampa over the last decade have further obscured it. It isn’t racist or even xenophobic to reflect in a non-pejorative way on questions of that sort.
But nor should it be off-limits to explore the implications of the emergence of religious extremist groups like Hillsong Church and the Assemblies of God or, to a somewhat lesser extent, authoritarian right-wing clerics like Cardinal Pell in the Catholic Church or the Jensens in the Anglican Church. To varying extents, these groups and individuals are seeking to impose their religious values on the Australian political scene. A pluralist approach to the political process accepts the legitimacy of their political activities. But that doesn’t stop me from expressing concern at the potential for these sorts of sectarian groups to undermine Australians’ shared values of secular tolerance, by seeking to project their religious bigotry, intolerance of diversity and unshakeable conviction that their own moral codes can rightfully be imposed on everyone else.
PS – This story further emphasises my last point:
A SENATE candidate for Family First has called on his followers to “pull down Satan’s strongholds,” including mosques, Freemasons’ temples, brothels and bottle shops.
The comments are in a leaflet quoting Victorian pastor Danny Nalliah.
The disclosure comes just a day after Prime Minister John Howard defended a preference-swap deal with the conservative Christian party in 109 Lower House seats.
Mr Nalliah, who heads the Catch the Fire Ministries, is on the Family First Senate ticket in Victoria.
In a recent “Rise up Australia” call-to-prayer pamphlet, Mr Nalliah told followers to ask the Lord to give them insights.
“Spot Satan’s strongholds in the areas you are living in (brothels, gambling places, bottle shops, mosque, temples-Freemason/Buddhist/ Hindu etc, witchcraft),” the leaflet says.
He urged followers to circle the place on a map.
“If you are ready to pray against it, do so. If not, bring it to your church and ask your intercessors, through the pastor, to pull these strongholds down,” the document says.