Our moral code should be defined by ‘we the people’; not ‘them the judges’
Posted By Mirko Bagaric on May 1st, 2008
Decisions that fundamentally shape our lives, such as the permissibility of euthanasia, abortion and child smacking, should be made by we the people (through our politicians), not them the judges. That’s why the Rudd government should resist calls from the 2020 summiteers to follow the Victorian example and introduce a federal bill of rights.
Most people are attracted to rights because the notion is consonant with personal entitlements and protections. However experience shows that a bill of rights despite its superficial appeal is a mistake.
A bill of rights is like no other legal document. It is moral, not prescriptive in nature. It has the capacity to radically re-shape the matters that a society covets and protects. A bill of rights merely sets out which rights supposedly exist but fails to provide any details regarding the context in which rights apply and which right prevails when rights clash with other rights and the common good.
Merely declaring, for example, in a document that people have a right to liberty and free speech says nothing about the propriety of practices such as tobacco or alcohol advertising or the pre-trial detention of people suspected of committing serious criminal offences. All of the important social engineering is undertaken in the fleshing out process.
This gets us to the crux of the bill of rights debate: Who do you want to make decisions on the core moral issues that define us as a society?
There are only two choices: politicians or judges. At the moment all of the big decisions in Australia are made by politicians. A bill of rights transfers much of this power to judges, who are among the least adept people in the community to make decisions on matters of cardinal social importance.
When it comes to giving power to people to make decisions, the most important consideration is accountability. Power decoupled from responsibility leads to irresponsible, often naïve and certainly ill-considered decisions.
That’s why we never give the things that are important to us to people that we can’t hold to responsible for their actions. Hence we put our money in banks and our children in crèches rather than trusting strangers.
And that’s why we should never hand over things that are vital to us judges. They are the only group in the community that (effectively) can’t get sacked or disciplined for incompetence or negligent.
If trivial or nonsense rights are given too much scope, they can violate rights which are essential to our well-being. For example, an ample application of the right to privacy will mean that CCTV cameras which have prevented thousands of crimes will need to be turned off, resulting in many more Australians being seriously injured or killed. It also will prevent parents knowing if the bloke next door to them is a pedophile.
Many people think that judges are smart and hence they’re well placed to make important decisions. This is a dumb belief. Judges are simply former lawyers who have no special wisdom or training regarding matters of social importance.
Moreover, ethical choices of all people, including judges, are often more about emotion than logic. On such matters, judges usually follow their intuitions and predilections and use the vagaries of the law to dress up their conclusion in the language of the law to mask their personal political and religious sentiments.
As noted by America’s leading legal commentator, Allan Dershowitz: ‘Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality.’
So what happens when judicial hunches are wrong or at odds with those of the rest of community. At the moment it doesn’t matter much because judges decide legal cases which only impact only on the interests of the parties to a case. Not so in the case of a bill of rights, which give judges the vehicle to impose their individual preferences on all of us – this is a tyranny, not democracy.
Of course, there are many politicians that have a wayward moral compass. However, their decisions are made in the full public glare and the community is given an opportunity to lobby them. Many people, including myself, think that federal parliament got it wrong on their two most recent conscience votes, which gave the green light to embryonic stem cell research and the abortion pill.
But nearly all Australians can happily live with these decisions because we all had the opportunity to participate in the public discussion leading up to the conscience votes. And if we are genuinely aggrieved by the moral choices made by politicians we get to boot them out every three years.
In the end, a bill of rights is internally contradictory. It betrays us the people of only right that we can exercise on morally decisive issues – the right for our voice to be heard in the matters that define us as a community. Courts are closed to all but the richest people in the community and judges don’t care what the community thinks.
Oh, and don’t be fooled by the Attorney-General of Victoria Rob Hulls into thinking that Victorians wanted a bill of rights. Victoria is the only Australia state to have its own ‘little’ bill of rights. During the ‘debate’ prior to the introduction of rights charter, Hulls was keen to point out that he appointed an ‘independent’ committee to look into the matter.
This is a con. The so called ‘independent’ committee was chaired by a longstanding passionate and outspoken bill of rights advocate Not one person on the committee opposed the bill of rights. So much for the right of Victorians to open and transparent government.
This was published in the Herald-Sun (Melbourne) on 1 May 2008.