Ghosh, Eric --- "Republicanism, Community Values and Social Psychology: A Response to Braithwaite's Model of Judicial Deliberation" [1998] SydLawRw 1; (1998) 20 (1) Sydney Law Review 5
[*] BA LLB Syd, PhD student, Law Faculty, University of Sydney. I am grateful for the detailed comments on some earlier drafts which I received from Margaret Allars, Colin Phegan and Wojciech Sadurski. I also wish to thank Chris Birch, Bernard Dunne, Lucie Ghosh and Liam Shaw for their helpful comments.
[1] “Passivism” and “activism” are defined in different ways: see Harwood, S, Judicial Activism: A Restrained Defence (1996) ch 1. I use the terms to indicate the degree of deference shown to precedent, the legislature and executive. Applying these terms is not always simple eg, a decision may be passivist in the sense that it follows precedent yet activist if that precedent is not deferential to the other branches of government.
[2] Dixon, O, “Concerning Judicial Method” in Woinarski, J (ed), Jesting Pilate (1965) 152 at 158.
[3] Mason, A, “Future Directions in Australian Law” [1987] MonashULawRw 6; (1987) 13 Mon ULR 149 at 158–9. He was Chief Justice between 1987 and 1995.
[4] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1. This decision, concerning native title, was followed in Wik Peoples v Queensland (1996) 187 CLR 1.
[5] In Australian Capital Television Pty Ltd v Commonwealth (No 2) [1992] HCA 45; (1992) 177 CLR 106, the Court decisions found a constitutional right to freedom of communication on political matters. See also Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104. On the other hand, Lange v ABC [1997] HCA 25; (1997) 145 ALR 96 indicates a more restrained approach, which may be reinforced by some recent appointments to the Bench. Another controversial decision (not relating to freedom of speech) has been Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, where Australia’s ratification of a Convention founded a legitimate expectation concerning the exercise of Executive discretion.
[6] This has included attacks upon the High Court’s perceived activism in Wik (above n4) by the Deputy Prime Minister and the Premiers of Queensland and Victoria. See, eg, the following articles published in 1997 in the Sydney Morning Herald: Woodford J, “Fisher Lashes High Court on Wik” (11 January) at 1 and “Borbidge Steps up Attack on High Court” (1 March) at 7, Millett, M, “Wik Anger: Premiers Seek Veto on High Court Judges” (19 February) at 1.
[7] Above n3.
[8] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 319.
[9] Finn, P, “Of Power and the People: Ends and Methods in Australian Judge-made Law” (1994) 1 Judicial Review 255 at 256.
[10] Above n4 at 30. Mason CJ and McHugh J concurred with Brennan J.
[11] Bell, J, Policy Arguments in Judicial Decisions (1983) at 185. Brennan J referred to Lord Devlin’s exposition of the consensus model, in “The Purpose and Scope of Judicial Review” in Taggart, M (ed), Judicial Review of Administrative Action in the 1980s (1986) 18 at 22.
[12] See Sadurski, W, “Conventional Morality and Judicial Standards” (1987) 73 Va L Rev 339 at 351–2.
[13] Above n8. See also his comments on being sworn in as Chief Justice: (1995) 183 CLR ix at xi.
[14] Bell above n11 at 189.
[15] Wellington, H, “Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication” (1973) 83 Yale LJ 221 at 248 referred to in above n12 at 367.
[16] Perry, M, “Substantive Due Process Revisited: Reflections on (and Beyond) Recent Cases” (1976) 71 Nw UL Rev 417 at 447 fn189 referred to in above n12 at 370.
[17] Above n12.
[18] Braithwaite, J, “Community Values and Australian Jurisprudence” [1995] SydLawRw 21; (1995) 17 Syd LR 351.
[19] Michelman, F, “The Supreme Court, 1985 Term – Foreword: Traces of Self-Government” (1986) 100 Harv LR 4. See also “Law’s Republic” (1988) 97 Yale LJ 1493 and “Bringing the Law to Life: a Plea for Disenchantment” (1989) 74 Cornell LR 256.
[20] Another leading republican scholar is Cass Sunstein: see, eg, his “Interest Groups in American Public Law” (1985) 38 Stan LR 29; “Beyond the Republican Revival” (1988) 97 Yale LJ 1539; The Partial Constitution (1993). Tushnet, M, Red, White, and Blue: A Critical Analysis of Constitutional Law (1988) and Ackerman, B, We the People: Foundations (1991) represent more ambivalent forms of republicanism; Sherry, S, “Civic Virtue and the Feminine Voice in Constitutional Adjudication” (1986) 72 Va L Rev 543 links republicanism to feminism. I am not suggesting that republican legal scholars favour unrestrained activism: see Michelman (1986) above n19 at 76; Sunstein (1993) at 149–53. Incidentally, there is a discussion of community values in Tushnet at 133–46.
[21] See, eg, (1993) 28 AusJPS (Special Issue: Australia’s Republican Question): Maddox, G, “Republic or Democracy?” at 9; Warden, J, “The Fettered Republic: The Anglo-American Commonwealth and the Traditions of Australian Political Thought” at 83; and Pettit, P, “Liberalism and Republicanism” at 162. See also (1992) 6(2) Legislative Studies (including Pettit, P, “Republican Themes” at 29) and Hudson, W and Carter, D (eds), The Republicanism Debate (1993): Melleuish, G, “Republicanism Before Nationalism” at 77; Davidson, A, “Republicanism and Democratic Reform” at 97. Not all work on republicanism has been prompted by the question of severing our British ties: see Williams, G, “A Republican Tradition for Australia?” (1995) 23 Fed LR 133; Fraser, A, “In Defence of Republicanism: A Reply to George Williams” (1995) 23 Fed LR 362; Williams, J, “‘With Eyes Open’: Andrew Inglis Clark and our Republican Tradition” (1995) 23 Fed LR 149; and Fraser, A, The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (1990), a summary of which is provided in Cullen, R, review essay in [1992] SydLawRw 17; (1992) 14 Syd LR 241.
[22] See, eg, Pettit (1993) above n21; Pettit, P, Republicanism: A Theory of Freedom and Government (1997). I intend to evaluate this elsewhere.
[23] Braithwaite, J and Pettit, P, Not Just Deserts: A Republican Theory of Criminal Justice (1990).
[24] Ziegert, A, “Judicial Decision-Making, Community and Consented Values: Some Remarks on Braithwaite’s Republican Model” [1995] SydLawRw 22; (1995) 17 Syd LR 373; Krygier, M and Glass, A, “Shaky Premises: Values, Attitudes and the Law” [1995] SydLawRw 23; (1995) 17 Syd LR 385.
[25] I am referring here to Hercules being confronted with a life choice between the seductive path of ease and pleasure and the difficult but more honourable path of duty: Moncrieff, A, Classical Mythology (1994) at 100. The source of this story is indicated in Guthrie, W, The Greeks and their Gods (1950) at 241.
[26] See text accompanying below n6019.
[27] Braithwaite, J, “A Reply: Broadening Disciplines that Dull as well as Sharpen” [1995] SydLawRw 24; (1995) 17 Syd LR 397.
[28] Id at 399–400; above n18 at 363, 365.
[29] Above n18 at 367–8.
[30] Id at 368 fn59.
[31] Id at 368.
[32] See below Section 2D19.
[33] Above n18 at 368.
[34] I sketch his justification for activism in “Republicanism and Judicial Activism” (1997) 8 (2) Polemic 12.
[35] The fact that a similar form of decision–making to reconciliatory dialogue can be couched in quite different terms is indicated in Michelman (1989) above n19 at 266.
[36] There are differences between pluralists, which I do not discuss, but instead, make statements which are consistent with the thought of the most important pluralist, R. Dahl: see, eg, his Who Governs? (1961). The republican legal scholar who provides the fullest discussion of pluralism is Sunstein: see above n20 (1985) and (1988) at 1542. See also Michelman (1988) above n19 at 1507. However, they both, particularly Sunstein, provide a depiction of pluralist thought which at points, involves some misrepresentation.
[37] For some problems with pluralism, see Held, D, Models of Democracy (1987) at 196–201. In this paragraph, I am presenting Michelman’s and Sunstein’s depiction of republican theory – this depiction is controversial. See, eg, Pettit (1997) above n22 at 27.
[38] Sunstein (1988) above n20 at 1548–9; Michelman (1986) above n19 at 27.
[39] Sunstein (1988) above n20 at 1554.
[40] For a summary of the republican tradition as interpreted by Pocock and Wood, see Dahl, R, Democracy and its Critics (1989) at 24–30 and Craig, P, Public Law and Democracy in the United Kingdom and in the United States of America (1990) ch 10.
[41] Aristotle: The Politics (Penguin Books, 1992) Bk VI(ii) at 362.
[42] See Pocock, J, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975) chs 3, 7.
[43] See Appleby, J, Liberalism and Republicanism in the Historical Imagination (1992) ch 13.
[44] Michelman (1986) above n19 at 65 fn352.
[45] See Michelman (1988) above n19 at 1537.
[46] Michelman admits that this is rather curious in (1986) above n19 at 60. Various commentators have also found it odd, suggesting that the emphasis should be on enhancing popular participation rather than defending judicial activism. See, eg, Abrams, K, “Law’s Republicanism” (1988) 97 Yale LJ 1591; Brest, P, “Further Beyond the Republican Revival: Toward Radical Republicanism” (1988) 97 Yale LJ 1623.
[47] Aristotle’s views on a mixed constitution, contained in above n41, are complex and not entirely clear. A good discussion is contained in Blythe, J, Ideal Government and the Mixed Constitution in the Middle Ages (1992) ch 2.
[48] For a brief description of the Roman Republic, see Maddox above n21 at 17–21. See also Blythe above n47 for Polybius’ views on the mixed constitution.
[49] Michelman (1986) above n19 at 51, drawing partly upon Wood, G, The Creation of the American Republic 1776–1787 (1969) at 173.
[50] Michelman (1986) above n19 at 73.
[51] Pitkin, H, in The Concept of Representation (1967) at 178–9 states that for Edmund Burke, the ultimate test of whether a group is virtually represented is whether its interests are being properly looked after.
[52] Michelman (1986) above n19 at 31.
[53] Above n42 ch 3; Michelman (1986) above n19 at 37.
[54] Above n42 ch 3.
[55] Michelman (1986) above n19 at 33. He refers to each of the themes in the plural, eg, the themes of history, but it is more convenient to refer to each in the singular, although each contains a collection of ideas.
[56] Dworkin, R, Law’s Empire (1986) cited in Michelman (1986) above n19 at 66.
[57] Above n56 at 211.
[58] Michelman does, however, mention with the theme of history that “our conversations now ought not to foreclose future conversations”: (1986) above n19 at 33. However, the emphasis of this theme is on our dependence upon the past; by stressing this, there is less overlap with his identity theme.
[59] Id at 36.
[60] Id at 76.
[61] Id at 33.
[62] Above n18 at 351–2. I am not implying that consensual community values cannot be used in other ways: see above n12 at 359. They can, for instance, be used to justify refusal to change the law because there is no consensus in favour of change. Even when they are seen to support change, this may be overriden by other factors: see, eg, above n8 at 321 per Brennan J.
[63] Above n3.
[64] Rokeach, M, The Nature of Human Values (1973).
[65] Above n18 at 354.
[66] Id at 359.
[67] Id at 360–1.
[68] Id at 361–2.
[69] Id at 352, Michelman (1988) above n19 at 1521.
[70] Above n18 at 365.
[71] Id at 364.
[72] See text accompanying above nn13–6.
[73] Quite apart from Braithwaite’s understanding of community values, reference by Australian judges to community values has been criticised for its vagueness, eg, Finn above n9; Lane, P, “The Changing Role of the High Court” (1996) 70 ALJ 246 at 248; Horrigan, B, “Is the High Court Crossing the Rubicon? – A Framework for Balanced Debate” (1995) 6 Public LR 284 at 305–6, although he somehow feels that this vagueness might be addressed through guidelines and debate.
[74] Krygier and Glass above n24 at 388–9.
[75] Above n4. The High Court declared here that the common law recognised traditional rights to land derived from Aboriginal customary law, even though many had assumed that such rights were not recognised, since British sovereignty over Australia was asserted using the enlarged doctrine of terra nullius, ie, the indigenous inhabitants were an unsettled people, or they had no settled law. Brennan J wrote one of the main judgments, with Mason CJ and McHugh J concurring.
[76] Id at 42.
[77] Ziegert above n24 at 375.
[78] This is not to deny that many of the opinion polls published overstated the extent of public opposition to the decision: see Goot, M, “Polls as Science, Polls as Spin: Mabo and the Miners” in Goot, M and Rowse, T (eds), Make a Better Offer: The Politics of Mabo (1994) at 133.
[79] Above n12 at 378 cited in above n18 at 362.
[80] Above n12 at 379 cited in above n18 at 362.
[81] Above n12 at 396–7 and Giving Desert its Due (1985) at 71. Krygier and Glass also refer to reflective equilibrium in describing moral reasoning: above n24 at 395.
[82] Pauline Hanson is an Independent member of the Federal Parliament.
[83] By this, Braithwaite means factors based on self-interest or prejudice, which are inconsistent with the public good.
[84] Above n27 at 403.
[85] Above n64 at 17. For a simple exposition of Rokeach, see Penner, L, Social Psychology (1978) at 177.
[86] This example is taken from Ball-Rokeach, S and Loges, W, “Choosing Equality: The Correspondence Between Attitudes About Race and the Value of Equality” (1994) 50 J Soc Iss 9 at 11–12.
[87] Above n64 at 12, 28. The distinction between instrumental and terminal values has been criticised: Schwartz, S, “Are There Universal Aspects in the Structure and Contents of Human Values?” (1994) 50 J Soc Iss 19 at 26–7.
[88] Above n64 at 52.
[89] Id at 162.
[90] Id at 51, 55.
[91] See Schwartz above n87 at 26 for some arguments in favour of ratings and Miethe, T, “The Validity and Reliability of Value Measurements” (1985) 119 JPs 441 for arguments in favour of rankings.
[92] Above n64 at 6.
[93] Braithwaite admits their universal nature in above n18 at 354–5. For a discussion of how universal they are, see Schwartz above n87.
[94] See below Section 4B(ii)40.
[95] See text following above n3310.
[96] Rokeach, M, and Ball-Rokeach, S, in “Stability and Change in American Value Priorities 1968– 1981” (1989) 44 Am Psychol 775 at 778–79 found using the value survey that the ranking of equality slipped significantly in America between 1971 and 1981 and this explains the ambivalence by the white population towards measures to assist blacks.
[97] Above n64 ch 8.
[98] Id at 215–6, 228.
[99] Id at 241–2. This is a simplified account; for a full description, see ch 9.
[100] Id at 263. The posttests were 3 weeks, 3–5 months and 15–17 months after the experimental session. See id at 241–2.
[101] Id at 276–7.
[102] See id at 260.
[103] Habermas, J, in Between Facts and Norms (trans Rehg, W, (ed) 1996) at 279–86 argues that Michelman places too much emphasis on identity reasoning.
[104] Above n4 at 109.
[105] Speech in Redfern Park on 10 December 1992 at the Australian launch of the International Year of the World’s Indigenous Peoples. This is reprinted in Moores, I (ed), Voices of Aboriginal Australia: Past, Present, Future (1995) at 377. See also Attwood, B, “Introduction: The Past as Future: Aborigines, Australia and the (Dis)course of History” in Attwood, B, In the Age of Mabo: History, Aborigines and Australia (1996) vii at xxxiii.
[106] Grube, J, Mayton, D and Ball-Rokeach, S, “Inducing Change in Values, Attitudes, and Behaviors: Belief Systems Theory and the Method of Value Self-Confrontation” (1994) 50 J Soc Iss 153 at 161.
[107] Gray, D and Ashmore, R, “Comparing the Effects of Informational, Role Playing, and Value- Discrepancy Treatments on Racial Attitude” (1975) 5 J Appl So P 262 referred to in Grube et al, above n106 at 169. Rokeach also found that the evidence of changes in attitudes with respect to the general equality question rather than equality for blacks was not as strong: see text accompanying33 above n99. See also above n64 at 262.
[108] For extensive discussion of attitudinal change, see Eagly, A and Chaiken, S, The Psychology of Attitudes (1993).
[109] See above 17Section 2C(ii).
[110] See text following above n83.
[111] See above Section 2C(ii)18.
[112] Above n27 at 400.
[113] See above Section 2C(ii)19.
[114] See text accompanying above n8327.
[115] Above n18 at 360.
[116] See Fish, S, Doing What Comes Naturally (1989).
[117] Above n18 at 363.
[118] Id at 360.
[119] Id at 369 (my emphasis).
[120] See Fitzmaurice, C and Pease, K, The Psychology of Judicial Sentencing (1986) at 19.
[121] See above 16Section 2C(i).
[122] Above n18 at 364–5.
[123] Id at 365.
[124] For an argument suggesting that accountability is conceptually separate from control, see Uhr, J, “Redesigning Accountability” (1993) 65 AQ 1 at 13.
[125] This is not to deny a connection betwen constraint and communication: in communicating with an audience, we are usually constrained by our perception of what that audience will accept and find attractive.
[126] See above Section 2C(ii)17.
[127] Dworkin, R, Taking Rights Seriously (1977) at 134–6.
[128] Bell, D, “The Supreme Court, 1984 Term – Foreword: The Civil Rights Chronicles” (1985) 99 Harv LR 4 referred to in Berns, S, Concise Jurisprudence (1993) at 104.
[129] A person engages in strategic reasoning when their goal is not communicating “the truth” but achieving an effect upon the listener. In this context, “the effect” is creating a sense of belonging to a community seeking to implement the most enlightened understanding of values such as liberty and equality. This may involve deliberately downplaying diversity.
[130] Mentioned in above 17Section 2C(ii).
[131] Cornell, D, “Institutionalization of Meaning, Recollective Imagination and the Potential for Transformative Legal Interpretation” (1988) 136 U Pa LR 1135 at 1204 fn225. Michelman refers to this article with approval in (1988) above n19 at 1513–4. However, Habermas above n103 believes that Michelman’s model stresses ethical situation. This might suggest a role for some strategic reasoning.
[132] See text accompanying above n10535 for Keating’s statement. See also Sadurski’s argument about attitudes being constitutive of values, above Section 3B26.
[133] See text accompanying above n4914.
[134] There is a substantial research literature suggesting that “the key factor affecting the perceived legitimacy of authorities is procedural fairness”: Tyler, T and Mitchell, G, “Legitimacy and the Empowerment of Discretionary Legal Authority: the United States Supreme Court and Abortion Rights” (1994) 43 Duke LJ 703 at 746. The authors state that the most important factor determining citizens’ acceptance of the Court’s authority to make decisions relating to the permissibility of abortion is not their personal views on abortion but their general views on the legitimacy of the Court. This was in turn most significantly dependent on judgments of the court’s procedural fairness, in particular, whether judges were “trying to be fair” and “consider[ed] people’s opinions”: id at 776–7.
[135] See Markus, A, “Between Mabo and a Hard Place: Race and the Contradictions of Conservatism” in Attwood above n105, 88 at 91.
[136] See above n120.
[137] See Parkinson, P, Tradition and Change in Australian Law (1994) at 218; Santow, G, “Aspects of Judicial Restraint” (1995) 13 Aust Bar R 116 at 124–7. On formalism, see Posner, R, The Problems of Jurisprudence (1990) at 38–42.
[138] For Mason, see above n3. Brennan CJ admits the possibility that judges’ perception of contemporary values could be coloured by their personal opinions: above n8 at 319. He recognises that judicial policy has a role in interpreting the common law, but does not extend this to statutory and constitutional interpretation; with the latter, the Court “can do no more than interpret and apply its text, uncovering implications where they exist”: Theophanous above n5 at 143. With respect to three other High Court judges, see McHugh, M, “The Law-making Function of the Judicial Process” (1988) 62 ALJ 15; Kirby, M, “In Defence of Mabo” in Goot and Rowse above n78 at 67; Dawson, D, “Do Judges Make Law? Too Much?” (1996) 3 Judicial Review 1. However, judges find it easier to recognise the creative element in decision-making in extra-curial statements than in their judgments.
[139] Krygier and Glass above n24 at 392.
[140] Braithwaite above n27 at 399.
[141] Krygier and Glass above n24 at 392.
[142] Id at 393 quoting MacCormick, N, “Argumentation and Interpretation in Law” (1993) 6 Ratio Juris 16 at 26.
[143] Krygier and Glass above n24 at 395.
[144] It also raises the question of to what extent Dworkinian interpretation constrains judges from applying their favoured ideology. Altman, A, “Legal Realism, Critical Legal Studies, and Dworkin” (1986) 15 Phil & Pub Aff 205 at 231 suggests that it does not, provided the favoured ideology is of significance in the political arena. This is relevant to Krygier’s approach to legal interpretation, despite the fact that Krygier argues that Dworkin does not acknowledge the extent of constraints judges face: Krygier, M, “Thinking Like a Lawyer” in Sadurski, W (ed), Ethical Dimensions of Legal Theory (1991) at 67.
[145] See, eg, Braithwaite’s quotation from Brennan J in above n18 at 351.
[146] Id at 353.
[147] See Perelman, C, The Idea of Justice and the Problem of Argument (1963) at 1–29 for an analogous argument showing that treating like cases alike is a requirement for any conception of justice.
[148] Above n27 at 398.
[149] Krygier above n144 at 87.
[150] Michelman (1989) above n19 at 266.
[151] Michelman (1988) above n19 at 1514.
[152] Above n27 at 401, 404–5.
[153] One could also suggest that their relevance is heightened to the extent that these problems are also found in justifications by politicians and other decision-makers. A feature of Michelman’s approach is that he models judicial decision-making on a broad, political ideal.
[154] In negligence cases, for instance, courts must declare what care the reasonable person would have taken in the circumstances in which the defendant was placed – one formulation suggests that the reasonable person is the person of average prudence: see Fleming, J, The Law of Torts (7th edn, 1987) at 97. However, “it is important to realise that [the ‘reasonable man’] is a fictional character, the reference to whom is a thin disguise for the value judgment which is made by the judge”: Hepple, B and Matthews, M, Torts: Cases and Materials (4th ed, 1991) at 247. See also Conaghan, J and Mansell, W, The Wrongs of Tort (1993) at 37–45, although the English position on professional negligence differs from the Australian position
[155] See Twining, W, Karl Llewellyn and the Realist Movement (1973) at 214–5; Mason, A, Book Review of Coper, Freedom of Interstate Trade Under the Australian Constitution [1983] UNSWLawJl 16; (1983) 6 UNSWLJ 234 at 236.
[156] On the compensation issue, see Pearson, N, “204 Years of Invisible Title” in Stephenson, M and Ratnapala, S, Mabo: A Judicial Revolution (1993) 75 at 83 and for a more extended discussion, McNeil, K, “Racial Discrimination and Unilateral Extinguishment of Native Title” (1996) 1 Australian Indigenous Law Reporter 181 at 219–20.
[157] Above n10435.
[158] I am, of course, still considering justifications which do not depend upon the influence that a republican style of reasoning might have upon the substantive outcomes that judges reach.