The best short description of the role of the law that I know is that the purpose of the law is: to encourage people to do what is good and to discourage them from doing what is wrong. It is to this end that the coercive power of the state should be bent. If this is an accurate statement of the object of jurisprudence then the initial question of what is right and what is wrong is inseparable from the law—and that is a question that does not lend itself to a purely rational answer. Or, to quote Justice Fullagar in Tatham v Huxtable, the law “is a system which has never regarded strict logic as its sole inspiration”.
The law is one of the most tangible expressions of public life in any society, and as well as expressing the public consensus of what is right and good, the law can also be used to try to shape public opinion. For this reason the law is one of the important battlefields in the war of ideas, and in this war lawyers are not merely dumb instruments in the hand of the combatants, they are players.
The City of Sydney Law Society has some twenty-six committees to advise the Council of the Law Society—not only on the practicalities of legal administration as it affects practitioners but also on which side of the battle it should take in a myriad of skirmishes. The New South Wales Law Society has expressed opinions on issues from the appropriateness of some anti‑terrorist legislation to proposals for same‑sex marriage.
In the ideological battles of public life the passing of a new law (or more especially a sequence of related laws) is often seen as a marker of “territory gained”. Over time, it may be sought to give the compelling impression that the tide in public opinion is moving in a particular direction—so that public opinion can be as much steered by new laws as be the source of it.
Once such a tide is started it and maintained, it can create the impression of an unstoppable juggernaut which crushes all those who throw themselves before it. And yet such juggernauts, seemingly so impressive in their rise, can suddenly evaporate like a mist. Nazism and communism were in living memory perceived as such unstoppable forces and today we see them as just historical curiosities—albeit disastrous ones.
But there are things that are more durable. In 2010 my wife Jenny and I had the privilege of travelling through Turkey which, as you might expect, necessarily includes visiting many archaeological sites and museums. Just as one can experience a surfeit of cathedrals in England one can experience a surfeit of ancient ruins in Turkey.
However, one thing that it is hard not to notice after a while is that around about 450 BC something very dramatic happened in Greece. Before then, the artwork and sculpture looks pretty stylised and primitive—then suddenly the timeless realism of classic Greek sculpture appears. This was the famous Classical Golden Age when Athens was politically free and democratic, economically prosperous, philosophically inspired and artistically fruitful. It was as if the world had suddenly come of age. Many of the names of this period are familiar to us: Socrates, Plato, Aristotle, Pericles.
Reading Plutarch’s The Rise and Fall of Athens, I came across a character whose influence was seminal just before that time but who has never become a household name. This was Aristides, who lived about 520 to 468 BC. Of him Plutarch writes:
What was particularly admirable about him was the strength of his purpose amid the ebb and flow of political fortunes. He was never unduly elated by any honours that were paid him, while he bore his reverses with serene composure and he believed it his duty to give his services to his country at all times freely and without reward, not merely in terms of money, but also of reputation.
Plutarch records how Aristides was pivotal in overcoming the petty rivalries of the time and maintaining the fragile alliance of Greek city-states that was essential to the effective repulsion of the invasion of the Persian juggernaut in 480 BC.
It seems that Aristides is little remembered outside of those who specialise in the classics and he left no legacy in poetry, art, science or philosophy. Yet reading of his influence at the time it is easy to suppose that the high tone he set for the character of public life in Athens deeply underlay and inspired much of its success in these other fields. He deserves to be better known, although he would not have craved the fame.
If we come forward two and a half millennia to the twenty-first century, we live in our own Golden Age, although we are as little conscious of it being a Golden Age as the Greeks of the fifth century BC would have been of theirs.
It is not widely known that in about the last twenty years the proportion of the world’s population living below the poverty line has reduced from 50 per cent to 25 per cent—due largely to the opening of market economies in China and India. By dint of the resilience of the free people through two world wars, most of the world today lives under some kind of representative government, and the tide of liberal democracy has not ceased to rise since the victories of the Second World War. We are now seeing the birth pains of freedom in the Middle East—and if anyone questions the virtue of liberal democracy then let them reflect that, although there have been many wars in modern times, there has not been a war between two liberal democracies. We have discovered the secret of world peace—and it ain’t Noam Chomsky.
One of the milestones of this Golden Age has been the celebration of the sixtieth anniversary of the reign of Queen Elizabeth—a period during most of which Great Britain has been in no desperate war and has enjoyed general and growing prosperity.
In 1897 Britain similarly celebrated, with great pageant, the Jubilee of Queen Victoria’s reign—also a long period of relative peace for that nation. As part of those celebrations the Royal Navy assembled a massive flotilla of 165 warships. Rudyard Kipling was deeply affected by this awesome display of military power. The spectacle led him, in counterpoint to this display, to write a now famous poem which became a hymn that is still widely used at Anzac services—it is called “The Recessional”. Rather than amplifying the magnificence of empire, Kipling, with remarkable prescience, draws attention to its transient nature—how all empires eventually fade. Presumably with this naval display in mind, he wrote:
Far-called, our navies melt away;
On dune and headland sinks the fire:
Lo, all our pomp of yesterday
Is one with Nineveh and Tyre!
Evoking the scene of all the VIPs leaving after the naval celebrations, he wrote:
The tumult and the shouting dies;
The Captains and the Kings depart:
Still stands Thine ancient sacrifice,
An humble and a contrite heart.
Most of the verses close with the familiar echoing, “Lest we forget, lest we forget.” But what is it that we must not forget?
In 2011 the Law Society President held a Thought Leadership Panel Discussion on “The Intersection of Culture, Religion and Australian Civil Law” and invited as panellists Sheikh Haisam Farache, Rabbi Jeremy Lawrence and an Anglican priest, Reverend Andrew Sempell. In our ever‑shrinking world this is a very live issue, as the law is informed by ethics, and ethics is informed by our paradigms of belief—of which there are obviously more than one. It is no easy question to answer—how should religion inform the law?
We have seen instances in Western history of religious tyranny where the moralist is given more power than the jurist considers wise—such as with Puritan England of the seventeenth century, or the Prohibition years in the United States in the early twentieth.
The theologian discerns scripture as the ethicist discerns philosophical virtue, the jurist discerns practical justice, the legislator discerns a balance of competing interests, and government discerns sound administration and fiscal responsibility. Each has a proper contribution to good law and government.
In our mental laziness, we may seek simple answers to the question of framing good laws. However, there is no simple answer, as each of these disciplines has a role and they stand in a healthy and robust tension with each other.
Some would discard the theologian altogether, but theology is grounded in scripture, and scripture itself arose from the great cauldron of 7000 years of civilisation and has persisted through that cauldron for the last three millennia. That is not something at all to be lightly discarded.
By contrast, the philosophical speculations we associate with the secular ethicist, when it is not grounded by some durable canon of thought, are as notoriously subject to fads and fashions as the clothing industry—but more dangerously so. The Terror of the French Revolution is one of the fruits of unanchored philosophical speculation, and Russia’s October Revolution is another. We could add the Social Darwinism of Nietzsche that sponsored in turn German militarism and the Nazi movement. Importantly, and what should be a grave warning to us, each is a case where a civilised nation descended into the worst barbarism.
It seems to me that in framing sound laws, rather than seeking simple answers, it is the work of decent folk in every generation to wrestle conscientiously with the tensions within and between the various disciplines, drawing on that robust dialogue and the wisdom of the ages.
The great juggernaut of modern public life is political correctness, today maintained like a priestly class by the professors in the humanities faculties of Western universities, with its notorious vilification of dissent which threatens the practical freedom of speech and which will sacrifice all truth, godliness, science, public health, prosperity and freedom to its Great Cause—a vague cause that like the monster, Hydra, constantly appears with a different head. Although it manifests in many guises over many years—its message, a seductive one, is always the same. It says: “The gate that leads to life is wide and the road is easy and many go that way.”
It involves following this easy rule: If you happen to be a member of a victim class then you cannot be expected to take responsibility for your actions, for your faults have been determined by what has been done to you—and if you are not member of a victim class then it is your moral responsibility to uncritically indulge those who are. It is so simple you could teach it to sheep—four legs good, two legs bad.
Once the victim class was just the workers but, with the growth of general prosperity, it has been forced to broaden its categories—and there is never a shortage of groups willing to accept such favoured treatment. As with the Hydra, you cut off one head and it comes back with two.
It is more than curious that, a quarter of a century after the complete and ignominious collapse of communism, the intellectual elite of our universities are still captivated by the Marxist mindset. It is a mindset which typically holds an open contempt for liberal democracy, prosperity, and civil society as we experience it—as if these were just the natural state of our being and not phenomenal historical achievements won through bitter contest and diligent labour and only preserved by careful vigilance.
Although there are precious few who still defend them, bourgeois ideals are still mocked as if we lived in the most prudish period of Victorian England. Perhaps it is time we revisited those bourgeois ideals. Perhaps it is time we revisited the gentle Spirit who gives them such power.
In the face of the juggernaut of political correctness we can easily feel frustrated and powerless—and incredulous of its destructive sway.
Going back to Kipling’s “Recessional”, I had always supposed the words “Lest we forget” to be addressed to some kind of national consciousness—as a warning against patriotic hubris. But in fact there is no national consciousness, only individual consciousness.
Rather than just being a warning against jingoism, the poem can also be seen as reassurance to individuals of the experience that certain things are durable. Kipling writes, “Still stands Thine ancient sacrifice, an humble and a contrite heart.” Still stands … this is what endures and this is what overcomes.
This was also one of the great themes of Tolkien’s Lord of the Rings. The juggernaut of Sauron’s massive army was poised to strike, seeming to inevitably crush all freedom and light—but it too was shown to be just a mere passing shadow and was ultimately defeated by the ordinary goodness, courage and resilience of a single person, a small nobody—but one who was prepared to carry the individual burden that he had been assigned. In ancient Greece, the near‑forgotten Aristides was also such an individual.
In such quiet heroes do our hopes lie—and if we would truly wish to be instruments for good in the world, then we should look first to character rather than to causes.
As I conclude my term of office, I would say that what I have learned from the experience of these years is how much this is true. Further, my belief is that it is in the genuine warmth of our fellowship that the strength of the profession and ultimately the preservation of the rule of law is truly to be found—for we will never find the courage to defend that which we do not love.
Kenneth Harkness delivered this speech to the City of Sydney Law Society on November 14 to mark the end of his three-year term as the society’s president.