Law’s players define society’s character
Excerpt from a graduation speech by Justice J A Dowsett of the Federal Court
I want to say something about the role of the law and lawyers in a democratic society. No doubt many of you have, from time to time, thought about this question. Those of you who continue in the law will probably revisit it in the years ahead.
In the Yorta Yorta case, Gleeson CJ, Gummow and Hayne JJ said at :
Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, “socially derivative and non-autonomous”. As Professor Honoré has pointed out, it is axiomatic that “all laws are laws of a society or group”. Or as was said earlier, in Paton’s Jurisprudence, “law is but a result of all the forces that go to make society”. Law and custom arise out of and, in important respects, go to define a particular society. In this context, “society” is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.
Recognition of this fundamental proposition, that there is no law without society and no society without law, suggests a much more important role for the law and for lawyers than often appears to be the case. In effect the law is the adhesive cement which holds society together and, at the same time, reflects and defines its character.
In particular an authoritarian legal system will bespeak and foster an authoritarian society. A liberal democratic legal system will bespeak and foster a liberal democratic society.
In this context, the law is not merely the written words which reflect or prescribe legal rights and duties, and the methods for recognizing and enforcing those rights and duties. The legal system also consists of the institutions and people who make it work, the courts, the judges and practising lawyers, and, I think, those who teach and research the law, the legal academics if you like.
The ethos of the law – its traditions and values, and those of its institutions and people – are also part of the overall legal system.
Those of us, who are trained in the law, and enjoy a statutory monopoly in its practice, have a duty to the law and to the society which has produced it, and which is defined by it. The content of that duty may not always be obvious, but some aspects are beyond dispute.
In a liberal democratic society, the law is expected to be clear, to protect personal safety, to protect basic rights, including property rights and to meet basic perceptions of fairness. In being fair, we must often seek to uphold the rights of the successful, to enjoy the fruits of their success and, at the same time, protect the less successful from exploitation.
It is not always an easy combination. It is our duty to ensure that the law fulfils these basic expectations. To the extent that we can, we must seek to ensure that legal services are available to those who need them. We should champion the cause of legal aid and the availability of pro bono legal assistance.
I do not propose to say much about the ways in which we go about our day-to-day work. Rather, I want to suggest that as lawyers, and regardless of whether we practise or not, we have the capacity and, I believe the duty to keep an eye on our society and our law, so as to ensure that neither moves away from the fundamental principles to which I have referred.
This is not a function for which you will be paid. It may, on occasions cause upset and discomfort. It may cause you to take unpopular public positions with respect to particular issues. However, if the lawyers do not speak on behalf of the law and the society which it defines and regulates, who will?
I want to suggest to you a few areas of our society and its government which need watching and/or protecting. The first is simply “government”, in all its forms and branches. Whilst I have no doubt that most politicians and public servants are well-motivated, experience demonstrates that the gap between government and the people can sometimes be extreme, although not always obviously so.
Distance can blunt a politician’s sensitivity to the effects of legislation and political decisions on other people. Governments and parliaments frequently do things which appear to have short-term beneficial effects, sometimes for the people, sometimes for the politicians, but actually threaten fundamental values in our society. Or they fail to recognize the full extent of the adverse consequences for some groups within society, particularly those who are less vocal or less well represented in the corridors of power.
As lawyers we not only know the law. We also become very familiar with the ways in which it affects people’s lives and interests.
Despite public references to lawyers and ivory towers, the reality is that collectively, we see the actual consequences for individual citizens and society, a view which government often does not have.
The law is the instrument by which most government policies are implemented. We should not be afraid to speak out, particularly if we see threats to groups within society, or to the values which the law upholds. You have no doubt heard the words of Pastor Niemöller concerning the rise of the Nazis in Germany:
First they came for the communists, and I did not speak out because I was not a communist;
Then they came for the socialists, and I did not speak out because I was not a socialist;
Then they came for the trade unionists, and I did not speak out because I was not a trade unionist;
Then they came for the Jews, and I did not speak out because I was not a Jew;
Then they came for me and there was no one left to speak for me.
Ends excerpt. For full speech: http://tinyurl.com/k4a4kpp
Excerpt from a speech to the QUT Faculty of Law graduation ceremony at the Concert Hall, Queensland Performing Arts Centre, on 9 Dec 2013.