Franz Kafka’s writings include a work of speculative fiction called The Great Wall of China in which we learn that some years ago the “High Command”, pursuant to the so-called “piecemeal principle of construction”, completed a splendid wall—a structure praised by officialdom as a venerable work, although it is widely rumoured to be full of gaps and omissions. Who exactly comprises the High Command, or where it is to be found, no one knew then or knows now.
I was reminded of Kafka’s bizarre but prescient tale as I turned to the suggestion that contemporary times are characterised by vanishing borders and a belief that we now all live in a global marketplace which is indifferent to national boundaries. Has globalisation transformed the nature of nation-states to such an extent that politicians and the people they represent have a greatly reduced capacity to influence events?
With such thoughts in mind, one can appreciate the force of Kafka’s allegorical fantasy and its application to the twenty-first century. In many places, the High Command of the country in question may continue to draw upon local patriotism by pointing to the presumed presence of a magnificent wall to protect the country’s borders—its individuality—while simultaneously securing a reputation for far-sighted wisdom by making it clear to the global marketplace that free-traders will find enough gaps and omissions to move to and fro as they please.
Can Kafka’s Great Wall be regarded as a paradigm of globalisation in postmodern times? Borders remain but are incomplete. Lines of defence are praised but are full of gaps. The Great Wall’s counterpart in reality can be seen from space but seen online it can be reconfigured instantly by touching an iPad or a computer screen. We inhabit an information-saturated planet where most of what businessmen know will soon be stored in a new-fangled repository called “the cloud”. One doesn’t have to be Kafka or a digital whizz-kid to accept that we are living in a surrealistic age in which hackers can unleash a pervasive virus and multi-national corporations can move funds across borders at the click of a mouse.
What are the implications of this? The field of inquiry is vast so I will confine myself to some observations about law and literature, and the way in which ambiguities about national sovereignty bear upon the upholding of human rights. I will argue that, notwithstanding the tendencies associated with globalisation—its indifference to borders, its ominous presence—talk about rights and the provision of related remedies can’t be divorced from local ways and legal processes. The freedom to hold opinions and to speak freely may prove to be illusory unless human rights are properly understood in the community directly affected by what is thought and said. The customs and innate wisdom of the relevant community are likely to have a bearing upon rulings concerning such matters.
A wall of the kind envisaged by Kafka—an elastic barrier that is viewed as both strong and pliable—is a familiar concept in most advanced legal systems, for the law is accustomed to providing exceptions to a general rule and creating legal fictions that mask gradual changes to what appears to be an immutable custom. Moreover, in seeking to provide for the needs of society, by adhering to the never-ending quest for relevance, advanced legal systems have usually had to make provision for relations with the outside world. The Roman jurist Gaius, for example, began his famous Institutes by saying that “every people that is governed by statutes and customs applies partly its own peculiar law and partly law which is common to all mankind”. For Gaius and other jurists in ancient times, “natural” law was derived from the principle of order that is manifest in the physical universe and which is represented in mankind by its reason.
With the rise of the nation-state any lingering belief in natural law was swept away by the dictates of national sovereignty. Legal systems in the modern world proceed from the premise that law consists of the rules made or approved by the state. International law and rules in treaties will only be fully effective if they are incorporated within and applied by the governmental agencies of the domestic system, although international law and related reasoning undoubtedly have an important influence upon the development of domestic law.
In the aftermath of the Second World War and with the founding of the United Nations, well before the era of globalisation, the sovereign nations of the world saw merit in the development of an international system of rights and responsibilities. And so the Universal Declaration of Human Rights, adopted unanimously by the General Assembly of the United Nations in 1948, gave expression to the undefined notion of human rights reflected in the UN Charter.
The Universal Declaration and later covenants, which deal with matters such as torture, treatment of prisoners and racial discrimination, are now replicated in the domestic law of many countries and seek to protect a significant range of civil and political entitlements. These rights for the most part are vested in individuals although the province of international law had traditionally been concerned with the relationships between countries.
The Universal Declaration, while not of itself legally binding, has been a template from which various charters of rights have been developed within domestic legal systems. Examples include the Canadian Charter of Rights and Freedoms 1982, the South African Constitution 1996 and the United Kingdom Human Rights Act 1998. Domestic legislation of this kind has been enacted in two Australian jurisdictions but it remains a matter of debate as to whether the federal parliament should follow suit. For the time being, pursuant to powers vested in it by the Constitution with respect to international affairs and treaties, the federal government attends to enforcement of statutes that draw upon certain facets of the Universal Declaration and other international instruments. The Racial Discrimination Act 1975 is a well-known example.
In this short paper I will not attempt to explore all the implications of the debate concerning the incorporation in domestic law of precepts derived from the Universal Declaration. It has been argued in certain quarters that such precepts run contrary to conventional views about state sovereignty, even though, as we noticed in earlier discussion, the very notion of state sovereignty in an age of globalisation is being called into question. It has been argued also that human rights law is essentially a construct of the Western democracies and rights talk may simply mask or blunt the desire for change in countries with a different background.
These criticisms raise significant issues but I will put them to one side for present purposes in order to look at another important matter, namely, the contention that because human rights are usually defined by the use of abstract or general language they are difficult to interpret and do not always provide ready answers to specific controversies. There is considerable force in this critique. Astute law-makers have always been conscious that if rights are presented simply as a series of high-minded abstractions they may soon become invisible because their application to the ups and downs of daily life is not entirely clear. So let us pause to take a closer look at the Universal Declaration, bearing in mind that by and large its language is replicated in similar domestic instruments.
The preamble notes that disregard for human rights has resulted in barbarous acts. It foreshadows the advent of a world in which human beings will enjoy freedom of speech and freedom from fear and want. The text that follows begins with eleven articles that seem to echo the US Constitution and the French Declaration of the Rights of Man in proclaiming the right of everyone to life, liberty and personal security. There are further articles dealing with rights in civil society such as the right to own property and the right to free movement. Other articles give effect to ideas drawn from the Athenian polis concerning democratic political rights. These articles include the right to participate in government through periodic and genuine elections.
Article 18 provides that everyone has the right to freedom of thought, conscience and religion. Article 19 states that “everyone has the right to freedom of opinion and expression”, which includes “the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. There are further rights concerning standards of living although some of these could be regarded as essentially aspirational assertions. Moreover, Article 29 acknowledges that limitations on rights are permissible “for the purposes of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of democratic society”.
It is immediately obvious that there is room for disputation as to what activities are in fact protected by the right to freedom of expression. This is due to the generality of the language used and the prospect that rights may be curtailed to some extent by the presence of other equally important rights and limitations referable to communal needs. Are defamatory or pornographic publications protected by the right to freedom of expression? Is racial vilification protected? A host of examples can quickly be brought to mind of dubious utterances or activities on the borderline of legitimacy.
Inevitably, in countries professing an adherence to human rights, it will be left to a court or a tribunal to resolve controversies about such matters in the course of defining the ambit of the right. If a matter in contention is difficult in the sense that the governing text is too broad and there is no precedent applicable to the dispute, then the adjudicator may have to fall back on whatever line of reasoning is available in order to arrive at a ruling that will be acceptable to others in the legal profession and can be explained to the ordinary citizen. It may be necessary to draw upon local knowledge and the adjudicator’s own sense of justice. A discretionary approach of this kind arguably vests too much power in the judicial arm of government but, on the other hand, it serves to clarify the exact nature of the right.
It will be apparent from this overview that we live in a world that is being rapidly reconfigured by global finance (and related shenanigans). There is an increasing realisation that the economies of the world are inter-connected; that electronic gadgetry now makes it virtually impossible to impede the free flow of money and information. It is clear that what has happened on the international stage in times past has had a profound effect upon the rights of citizens throughout the world. Nonetheless we ought not to assume too readily that borders will disappear entirely. The international human rights system still relies upon national implementation for its validity. Nation-states and local judges continue to bear the principal responsibility for working out how laws concerning human rights are to be applied.
If there be any merit in this analysis, some force in the suggestion that particular rights such as freedom of expression will only be truly visible so long as they are seen to have a specific content, a spirit consonant with local circumstances, then more will have to be said about the values underlying the right to think and speak freely. We must also look at the way in which issues of infringement are to be resolved in difficult cases.
There are various assumptions underlying the case for free speech. Freedom of expression is thought to be inherent in the process of advancing knowledge and discovering truth. It is said to be necessary for democratic participation in decision-making, with the result that change can be achieved openly and peacefully, rather than by clandestine activities and insurrection. Above all, free speech and the entitlement to think as one pleases are essential for individual fulfilment, the prospect of making the most of what one is, of standing up for one’s self.
The reasons usually provided for favouring an individual’s right to freedom of speech, as against a conflicting right or a communal need, bring us back to the question of infringement. The resolution of a dispute is often explained in terms of the balancing of competing rights, as if discrete but potentially conflicting rights—the right to freedom of expression and the right to due process, for example—are simply pushed up against each other until the resulting “balance” miraculously appears. But, in truth, where exactly the balance is to be struck will sometimes depend upon attitudes deeply rooted in the traditions of the particular community, at times upon political necessity—what is thought to be permissible in a time of peace, to take an obvious example, may not be quite the same as what is apt in a state of emergency.
Limitations on free speech such as suppression orders or rules concerning contempt of court or libel are inseparable from community membership. The question of whether or not to regulate the freedom is bound to be a local one. The answer to a particular dispute about the extent of the right to freedom of speech will be less than sufficiently convincing if the adjudicator relies solely upon abstract principles that are either so broadly expressed as to be devoid of content or coloured by some ideological agenda from overseas. It is at this point that the nature of the narratives brought into existence by historians and storytellers can be seen to bear upon the marking out of the case for free expression.
Freedom of speech is thought to cover not just language used precisely by educated elites but also the utterances of those who may have important things to say but sometimes lack the skill to say them neatly. An old wives’ tale may point to some piece of folklore passed down from one generation to the next, some clumsy piece of wisdom typical of that community, but evoking the presence of an ongoing partnership between the living and dead. T.S. Eliot put it this way in Four Quartets, his profound meditation upon the past and the folly of seeming to be wise:
And what the dead had no speech for, when living,
They can tell you, being dead: the communication
Of the dead is tongued with fire beyond the language of the living.
Words jotted down in a diary or an old letter, the poet intimates, words that might have seemed ordinary or inconsequential when first uttered, may turn out to be revered beyond the grave if the author becomes famous or dies a martyr. A few old words in a dusty deed-box may finish up igniting fierce passions at the reading of a will. A tattered deed may reveal essential but seldom mentioned truths about a family, or even a community.
Eliot’s ruminations are a reminder also that in looking at words we are concerned with meaning. This is a matter not only of dictionaries and rules of grammar but also of context: what do the words convey to the mind of a reasonably well-informed audience with some background knowledge as to the ways of the community? We start with an assumption that people will use words and grammar in a conventional way, but it can become apparent that for want of education or due to local vernacular they’re not doing so, and we adjust our interpretation of what they say accordingly. This enables us not only to choose the intended meaning when a word has more than one dictionary meaning but also to understand the speaker’s meaning when he or she has used the wrong words.
Mrs Malaprop had a habit of using the wrong words but was still capable of conveying her meaning. When she says that the person in question is “as obstinate as an allegory on the banks of the Nile”, we reject the conventional or literal meaning of allegory as making nonsense of the sentence and substitute “alligator” by using our background knowledge of things likely to be found on the banks of the Nile and choosing one which sounds rather like “allegory”.
Further, in seeking to interpret a contentious utterance that may or not be protected by the freedom to speak freely, we must also take account of the fact that meaning can be conveyed indirectly, by hints and silences, by the art of irony whereby what is said must be taken to imply some meaning to the contrary. This is evident in Kafka’s account of a recently completed “Great Wall” which seems in fact to be far from complete, being principally renowned for its many gaps and omissions—a show of strength riddled with insecurities.
To a discerning literary critic, Kafka’s allegory The Great Wall of China or other works from the same period such as The Radetsky March by Joseph Roth, may seem to reflect a deep historical pessimism related to the decay and ultimate collapse of the ramshackle pre-war Habsburg empire. The ironies in these works, the ambiguities and veiled humour, have to be construed accordingly. To a lawyer, these works, albeit fiction, ought to suggest, at the very least, that a writer with a Middle European background might be inclined to speak in a guarded way, without the direct free-wheeling tone of a Mark Twain or some other boisterous product of American democracy, although the right to speak being exercised is essentially the same in both cases.
It seems to follow that judicial officers, even those with an extensive practical knowledge of their own legal system, will benefit by constantly pondering the ambiguities of language and the unpredictable ways in which meanings can be affected by tone and different cultural backgrounds.
But careful reading or listening will not be sufficient in all cases. Words and phrases are often laced with ironies or contradictions that can only be deciphered in a court of law by reference to the surrounding circumstances. A famous trial in England that led to a death sentence turned upon the meaning of a few words shouted out to a burglar brandishing a pistol on a London rooftop. “Let him have it!” the burglar’s accomplice shouted, whereupon the police officer confronting the burglar was shot dead.
What did the words mean? Let him have it in the sense of “Let the police officer have the gun and we’ll both surrender”? Or did the words mean, echoing the language of various comic books and gangster movies (which the evidence showed the two criminals were in the habit of reading), let him have it in the sense of “Pull the trigger and let him have a bullet in the chest”? And if it transpires that the words, properly construed, were meant in the latter sense—as indeed they were found to be—could the right to freedom of speech be thought to justify or excuse such an utterance, a command fraught with hazard and undeniably detrimental to the welfare of the community as a whole in challenging the authority of the police to make an arrest?
I will attempt to draw together these various observations about the distillation of meaning and limitations upon the right to speak freely by referring finally to a recently decided Australian case—the Andrew Bolt case—which neatly illustrates the way in which the right in question may be curtailed by countervailing rights or a need to consider the public interest. It highlights also the importance of understanding local circumstances: in this case facts and matters related to the so-called “history wars” in Australia that might seem mystifying to a stranger.
The complainants contended that a Melbourne journalist, Andrew Bolt, had written a piece implying that, as lighter-skinned individuals of part-Aboriginal descent, they had “chosen” to identify as Aboriginal because of the financial or career benefits such a choice conferred. This was said to infringe section 18C of the federal Racial Discrimination Act whereby it is unlawful for a person to do an act in public if the act is reasonably likely in the circumstances to offend or insult another person or a group of people, and is done because of the race, colour or ethnic origin of the other person or all of the people in the group.
Justice Mordecai Bromberg found that the words complained of amounted to a breach of the statute. He held that fair-skinned Aboriginal people, or some of them, were reasonably likely in all the circumstances to have been offended or insulted by the imputations. He said that Bolt’s article included a liberal use of sarcasm of a kind that had “a heightened capacity to convey implications beyond the literal meaning of the words utilised. It is language which invites the reader to not only read the lines but also to read between the lines.”
The judge then had to consider whether the breach was balanced by the protection of free speech in the exceptions contained in section 18D of the statute. These exceptions included statements made for “any genuine purpose in the public interest” and fair comment that was “an expression of a genuine belief held by the person making the comment”. The judge concluded that because certain of the facts underlying the journalist’s views (albeit views genuinely held) had been distorted, a finding against the journalist was justified. His Honour held that the incursion into freedom of speech involved in such a ruling was no greater than that which might have been inspired by the law of defamation.
The judge’s verdict gave rise to considerable controversy. The president of a civil liberties group, Liberty Victoria, noted that the judge was required to weigh in the balance the right to be free of racial intolerance and discrimination on the one hand and freedom of expression on the other. The ruling may have been justified in the particular circumstances of the case due to the degree of hurt experienced by the nine complainants. Nonetheless, his organisation’s view was that the relevant statutory provision had been drafted too widely because the subjective test of whether certain individuals felt offended and insulted was too low a hurdle for the protections of the Act to be triggered.
The same commentator touched also upon another important issue. This concerned the public interest in the free communication of ideas and opinions as an avenue to truth and a form of involvement in democratic decision-making. He noted that the question of whether the provision in question might transgress the Australian constitutional protection of freedom of public and political communication has not yet been tested by the High Court. It could therefore be fairly assumed that “this issue may not have run its race yet”.
In various ways the Andrew Bolt case raises the question of whether the racial vilification provisions of the relevant statute constitute too great an incursion on freedom of speech. That famous iconoclast of the French revolutionary era, Voltaire, was heard to say two centuries ago: “I disapprove of what you say, but I will defend to the death your right to say it.” The spirit of Voltaire’s saying was reproduced eventually in the Universal Declaration. The French philosopher would argue, no doubt, that in seeking to protect freedom of speech, that which lies at the core of individuality and decision-making, there should be allowance for some degree of over-zealous or careless expression of thought, for we cannot expect every citizen to make his feelings known with the precision we have come to expect from a university professor or a judge. But, as I have attempted to show in earlier discussion, how the freedom is interpreted is likely to vary from place to place.
It emerges, then, that the Universal Declaration, which is sometimes loosely represented in contemporary rhetoric as a law “common to mankind”, has influenced domestic law in most countries of the world. To that extent, like the phenomenon known as globalisation, it has played a part in diminishing the effect of national sovereignty. Nonetheless, in the field of law, it is too early to suggest that borders between countries are steadily vanishing. The reality is that in strict analysis international covenants have to be incorporated within the domestic law of nation-states in order to be fully effective, domestic legal systems are still governed by local rules and related judicial attitudes, and the scope of each right will generally be conditioned by the context in which it is to be exercised.
Striking the right balance between freedom of speech and other considerations—such as countervailing human rights or the public interest—will usually be a complex and difficult exercise. In certain cases the adjudicator may finish up having to look at local habits and customs, and sometimes even at works of literature which shine a light upon the ways of the community. The vitality of the rights to think and speak freely depends upon this process of inquiry. For rights to be truly visible they must be generally respected and capable of enforcement in the place where enforcement counts.
This is an edited version of a talk given at the Association for the Study of Australasia Conference, Hyderabad, in December. Nicholas Hasluck’s latest novel, Dismissal (HarperCollins), about the Whitlam government’s downfall, was reviewed by Patrick Morgan in the September Quadrant.