No understanding or compassion without experience
Posted By Mirko Bagaric on November 25th, 2007
People’s attitudes, judgements and preferences are shaped by their experiences more than their intellect.
I have no doubt that the Labor party wants to do the right thing by all Australians now that it has been elected to power.
There’s lots to be said for coming from a union background. But any institution that has about 70 per cent of its engine room cluttered with people from such a small interest base cannot have the emotional and situational experience that is necessary to make informed decisions that balance the interests of the community as a whole.
Unions have played an integral role in forging a more just workplace in Australia. The introduction of the minimum wage, maximum work hours and strict workplace safety laws have to varying degrees benefited most Australians.
It is easy to see how some people would become so passionate about improving the lot for the humble worker that they would devote much of their adult working life to this cause.
Yet, in the end improving working conditions is only one of a myriad of concerns that seriously impact on the human condition and our capacity to flourish.
The handicapped, Aborigines, the chronically ill, victims of serious crime, refugees, homosexuals, single parents, the depressed, the unattractive and downright talentless generally all have far more pressing concerns than the underpaid and overworked. Small business people also need a degree of protection from fickle, oppurtunistic and lazy employees.
And so who in the Labor party is going to represent the interests of such a diverse group?
The answer is probably no-one. Not because they don’t want to connect with the interests of such groups, but simply because in order to sufficiently understand the extent of another’s misery or need you need to walk in their shoes – even for a small time.
Moreover, there is no question that people are most moved about issues and causes which they have been personally touched by.
It is for this reason that victims of crimes groups are comprised solely of victims of crime; gay lobby groups are comprised solely of gays; the new political party focusing on the interests of carers is comprised solely of carers; only students attend demonstrations relating to increasing student fees and only nurses are currently lobbying the Victorian government for more pay for nurses.
The overwhelming impact of our personal experiences on our values and outlook is unshakeable. It transcends every person and every institution in society.
This applies even to people that are appointed to positions demanding the highest level of independence and impartiality.
In my vocation, lawyers are trained to believe that judges decide cases on the merits, dutifully applying the law. The notion of judicial impartiality and objectivity is a con. Judges don’t just interpret the law. They make it, and always in a way to suit there underlying political and moral sentiments, which have been shaped by their life experiences.
As noted by 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. … On many occasions, the impact of [a judge’s] biography is overt and conscious. Other times it is subtle and unconscious. But it is always there’.
That’s why in high profile or sensitive cases, the choice of judge is often more important than the words in the statute book.
There is nothing more pleasing to the legal eye in a human rights case than to see Justice Kirby stroll towards the bench. Kirby nearly always makes decisions that promote humanistic objectives above other goals.
So why is it that Justice Kirby is the most human rights orientated judge in Australia’s history? Well, there’s a fair chance that it relates to the fact that he belongs to a group that has subjected to an enormous degree of prejudice.
Kirby has walked in the shoes of the marginalised. He no doubt appreciates the level of helplessness and despair that come with this.
The fact that so often Justice Kirby’s fellow judges don’t agree with his views has little to do with intellect. It has everything to do with the fact that nearly all judges come from well-to-do backgrounds and hence have little attitude forming pragmatic experience of what it is like to belong to a socially repressed group – hence, for them there is nothing more important than upholding the (black letter) ‘law’.
Governing a country is far more difficult than deciding who wins a legal case. The just allocation of resources, benefits and burdens requires the government to consider and balance an enormous number of competing demands and interests.
The first part of this process requires the government to understand the existence and depth of these interests and concerns.
An institution where about seventy per cent of its personnel are centrally defined by their union allegiances will necessarily place a disproportionate amount of emphasis of the interests of unions when it comes to time distributing benefits and burdens.
All people have wide-ranging experiences and hence a union background of course does not exhaust the experience-shaping concerns of Labor politicians. But the union point of reference is their shared concern and invariably it is this common denominator that will shape their decisions.
For this reason, all Australians will be poorer now that Labor in in power.
A version of this was published in the Geelong Advertiser.