We’re going to do some serious philosophy. I’m sure some of you will be thinking: “Spare us all the abstractions and cut to the chase about what it really means for law and policy.”
Please try not to do that. That’s not how philosophy works. The philosophical questions I’ll examine do have consequences for law and policy, and we’ll get to them. But you have to keep the questions separate: abstract principles first, deductions about policy later.
I’m going to talk about two philosophical matters that there’s a Catholic position on, one relevant to Mabo and one relevant to the Voice. Just to be up front about it, I’m in favour of the Mabo decision but against the Voice, but that’s not the point. I’m not strongly invested in either position. It doesn’t matter if you think the other way round. My talk is not mainly polemical, it’s to explain the philosophical issues involved, so the polemics can proceed properly informed.
Taking philosophy seriously
But first, a few remarks on taking philosophy seriously. Some traditions of thought are pro philosophy, some anti. In religion, Catholics are in principle for philosophy, while Protestants have rather taken to heart St Paul’s warning: “See to it that no one takes you captive through hollow and deceptive philosophy”. Many secular thinkers too are rather loath to, for example, look into the foundations of ethics, perhaps for fear of finding there aren’t any.
In law, roughly speaking, the continental tradition is pro philosophy and the Anglophone one anti. Continental law descends from medieval Roman law, which applied scholastic method to extract general principles from the deposit of ancient Roman law; it has remained seriously theoretical. By contrast English law preferred precedents to principles and trusted to the bluff good sense of the British yeoman, who was under no obligation to explain why he thought anything. That attitude is very visible in that saying of Sir Owen Dixon (the Chief Justice of Australia, 1952-64) that, “An enquiry into the source whence the law derives its authority in a community, if prosecuted too far, becomes merely metaphysical.” That is significant not only for his grossly anti-intellectual claim, but for his assumption that an Anglophone audience will nod in agreement with putting “mere” before “metaphysical”.
That is going to generate a problem when Anglophone Catholics who take their natural law metaphysics and abstract standards of justice seriously become lawyers, even judges. What will give? Let’s see.
Law and justice
The first question to be addressed, the one relevant to the 1992 Mabo decision, which recognised native title in Australia, is, “What is the relation of law to justice?”
To get an idea of what that is asking, consider a parallel question: “What is the relationship of accountancy to arithmetic?”
Accountancy is an institutionalised practice that deals with monetary obligations and can develop standards that have to be consistent but can be added to. Arithmetic, on the other hand, deals with pre-existing non-social facts, existing in some abstract realm of numbers, such as, “7+5=12”. Does accountancy have to respect arithmetical facts – is arithmetic normative for accountancy? Well, it is. If you have contracted a debt of $7,000 and add to it a debt of $5,000, the practice of accountancy should recognise you as having a debt of $12,000.
Catholic theory says, that exactly the same is true of law and justice – the principles of justice are hard facts in an abstract world of natural law, as much as the laws of arithmetic are. The social, institutionalised practice of law is not at liberty to change them and must be guided by them. On that view, the very purpose of law is to implement in the real world the abstract standards of justice.
Some other people in the legal world, however, have a different philosophy of law. People like Owen Dixon and Dyson Heydon (a High Court justice, 2003-13), who would dismiss talk of abstract justice as “merely metaphysical”. They conceive law more on the model of traffic rules – to coordinate life, we need to reach a consistent decision on which side of the road to drive on, then we stick to the rule consistently so everyone knows what to do. There’s no mention of justice as such in that position.
No need to give that school more of the oxygen of publicity at the moment, though I’ll look at one of their complaints shortly.
Eight standards of justice
Let’s go back to those, such as Catholic philosophers, who think that law implements standards of justice. What standards, for example? I’ll just list a few – eight of them – to give an idea of the sorts of very general standards of justice that do inform our laws in Australia:
- According to what’s sometimes called “Western individualism”, punishment for crime should be confined to the individuals who did it. There should be no reprisals on their kin as in indigenous law.
- Conviction for crime should require considerable evidence of guilt – rational evidence.
- Standards of justice bind all. There’s no room for the position that “The King can do no wrong” (on the grounds that “wrong” is by definition what the King forbids).
- Hence, government should be limited by constitution.
- Contracts should be voidable for moral reasons like fraud and duress.
- Societal arrangements are subject to the requirements of justice as well as interpersonal ones — arrangements such as minimum wages.
- Natural rights are prior to legal rights and the law must respect them.
- As is well known, Catholics make a lot of trouble over bioethics and conscientious objection on the grounds that actually existing laws may conflict with absolute ethical standards. (Thomas More’s famous saying about himself, “The King’s good servant, and God’s first”, makes a good motto for conscientious objection to laws.)
I want to read you statements by two Australian Catholic jurists that are rather extreme expressions of the justice-first philosophy of law.
The first concerns international law, which is a tricky subject because there is no legislature, no agreed court and no secure enforcement mechanism — there’s only custom that hopefully might be informed by moral principle. In writing of the natural law basis of international law, as founded by Thomas Aquinas and the 16th century philosopher Francisco de Vitoria, the lawyer says,
“This basis gave international law a rich philosophical foundation which was a source of unlimited development. In it there is a reservoir of rules for all situations and cases. A law based on natural law can never grow out of touch with the current needs of nations.”
That’s a young William Deane (a High Court justice, 1982-95) writing in 1957.
Equally confident in the ability of abstract ethical standards to inform law was Gerard Brennan (Chief Justice, 1995-98). Lawyers, he says, have moral duties beyond simply applying the law they find in place. Most remarkably, in a speech on ‘Commercial law and morality’, he said:
Moral values can and manifestly do inform the law … Sometimes the impact of the moral matrix is obvious, as when notions of unconscionability determine a case. More often the influence of common moral values goes unremarked. But whence does the law derive its concepts of reasonable care, of a duty to speak, of the scope of constructive trusts — to name but a few examples — save from moral values translated into legal precepts?
Who’s to say what’s right?
The anti-philosophy crowd are not happy with that. They have a standard complaint about this high-sounding talk of justice and natural law. If people demand justice, whose standards of justice will apply? Won’t activist judges just apply their own personal standards, which will change from judge to judge and from generation to generation? Owen Dixon says: “the conscious judicial innovator is bound … by no authority except the error he committed yesterday”.
It’s absolutely right to worry about activist judges imposing their changeable standards; but as a philosophical objection to natural law theory, it’s completely wrong. Actually, it’s an instance of one of the worst rookie errors in philosophy, which is to switch from ontology to epistemology.
Let me explain. “Ontology” is about what is; “epistemology” is about how you know. If someone says, as a matter of the ontology of numbers, “7+5=12”, it’s a bad move to reply “Who’s to say? Intuition is fallible, you know, and you can enter wrong numbers into a calculator. The next generation might want to update to 7+5= 13.7.” That switches from ontology to epistemology, and it is done so to evade the ontology.
It’s a gross mistake, because the nature of numbers is unaffected by your knowledge of or mistakes about them. Ontology first, epistemology second.
The Catholic position is that the most basic principles of justice are like mathematical principles – inherent in nature, and changeless, though possibly better understood as time goes on.
So, when Deane and Brennan got to the Mabo judgement, and, as they admitted, overturned the precedent according to which Australia in 1788 belonged to no one, they had an answer ready to accusations that they were imposing their private judgement. They weren’t, they said, imposing anything outside the law. They claimed they had discovered that the precedent was logically incompatible with a deeper principle of the law, or value that informed the law, the principle of equality of persons.
Their idea was that regarding the indigenous people of 1788 as having no title to land denied their equality with white people. That deduction could be debated and we don’t have time to do that. But Deane and Brennan did have the upper hand, philosophically, in pointing out that appealing to a deep principle of the law to overturn a precedent is not the same as judges imposing their private and changeable opinions.
When I was researching these matters around 2000 for my book, Corrupting the Youth: A History of Philosophy in Australia, I wrote to Deane and Brennan and asked them if natural law theory had played a role in their approach to Mabo. Deane wrote back and said yes; and that also appears in Tony Stephens’ book about him. In that book Deane says:
“The basis of natural law is the belief that some things are innately right and some innately wrong, flowing from the nature of things, including our nature as human beings. That approach provides a philosophical basis for seeing such things as human rights as going deeper than any particular act of Parliament or what have you. That is not exclusively Catholic. It runs through Christian belief.”
Brennan also wrote back to me. He said “That’s interesting” — and nothing else. After my book was published, his son, also a lawyer, Father Frank Brennan SJ, gave a talk in which he said I’d got it all wrong. From the text of his talk, it wasn’t evident to me that he’d read what I wrote. He doesn’t mention asking his dad anything either.
The most extensive answer from the other side came from a speech given by Dyson Heydon to a Quadrant dinner in 2002 – 12,000 words in the written version, so he had every opportunity to make himself clear. He defends Owen Dixon’s “strict and complete legalism”, abuses “judicial activists” at length, and criticises Mabo. So what does he think about the possibility of logical conflict between precedent and deeper principles? Not mentioned. What does he think about abstract standards of justice? Not mentioned.
A natural if unsympathetic conclusion might be that a non-Catholic education has a tendency to deprave and corrupt the sense of justice inborn in the human conscience. I think that’s not true; but it does seem to degrade the ability to talk any sense about it.
Philosophy and the Voice
Now we get to the Voice. Some philosophy is relevant to it, but a different part of philosophy.
There are many questions about the Voice – about whether it’s a recipe for a lawyers’ picnic, whether it will do any good for remote communities, whether it’s unifying or divisive, and so on. Good questions, but everyone’s saying “Don’t bother me with that carping detail. It’s the great moral issue of our time, we must reconcile with the indigenous people after 200 years of oppression, we must be on the right side of history, etc.”
I want to look at a more basic question.
The Voice proposal is “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.”
Is there an entity (or entities), Aboriginal and Torres Strait Islanders, that could possibly have a Voice? The first word of the Uluru Statement is “Our”, as in “Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations, etc”. Who divided Australians into “We” and “The Rest”? Does that make sense and is it all right? Australian historian Henry Reynolds wrote recently: “If the Indigenous voice to parliament referendum fails it will be one of the most consequential events in the fraught history of relations between Indigenous Australians and the wider community.”
Does it make sense to speak of “relations” between an indigenous Australian community and a wider community? Possibly, but it does call for some philosophical examination.
Is there a single Aboriginal people?
Whether there is such a thing as an Aboriginal and Torres Strait Islander people is a question in the field of philosophy called social ontology. Ontology, as I said earlier, deals with what exists. Social ontology deals with collectivities of people, such as families, tribes, clubs, corporations, and nations, and asks how seriously you should take them. Are there really such things, or in what sense are there really such things?
The simplest philosophical position would be to say that only individual people exist, and any collectivities – families, companies, clubs, courts, nations – are pure fictions. They’re just made up by, for example, legal acts, for convenience and they don’t exist in any more serious or more natural sense.
Some such things probably are fictions. A single small office in the Cayman Islands can fit thousands of shelf companies because they don’t have much reality to them – they’re just created by legal fiat and aren’t groups of people. A random sample of people taken for an opinion poll is a set in the mathematicians’ sense, but it isn’t a social entity. But are families or tribes just fictions like that?
Whether a fictional view is philosophically defensible or not, it isn’t the Catholic position. Three collectivities of people play a crucial role in Catholic theology.
The first is a tribe. In the Old Testament, the Jews are God’s Chosen People and play a special role in the history of salvation. They’re not an artificial or fictional unity, they’re an entity singled out by God to adopt collective practices and obey his laws.
The second is the family, modelled on the family of Mary, Joseph and Jesus. Catholic thought regards the family as the natural unit that is the foundation of society.
The third collective entity is the Catholic Church itself, which is believed to be explicitly founded by Jesus to carry on his work. St Paul calls the Church the “body of Christ” so as to compare its unity to the unity of a human body. It probably should count as the world’s oldest institution, and everyone knows that Catholics make a big production of the Church as a visible institution with lots of organisation, following orders from the boss in Rome and policing the boundaries with excommunications.
So what makes a serious social entity like a family or tribe real, whereas a random sample of people isn’t? The answer is not very mysterious: the people in a real social group see themselves consciously as being members and having a common purpose, common rules and traditions, and normally reinforced by actual social interactions in pursuit of that purpose. So “the Australian people” has a degree of reality because of the people’s common traditions, language, voted-in institutions, commitment to obeying laws and mutual help, border patrols etc. The Warlpiri and Yolngu peoples have some credibility for similar reasons – they have their own traditions, languages, self-recognised identity and internal interrelations.
What counts as a credible social entity?
Now, what about the “Aboriginal and Torres Strait Islander people”? Does that name a credible social entity? The question is not just about who counts in it; it’s whether the whole concept makes sense as a social entity. The case is much harder to make. And if the case is not good, there’s nothing for the Voice to represent or that “we” (the rest of us) could possibly reconcile with.
The great majority of those with some indigenous ancestry have no special standing or mutual interrelations that constitutes them as a real collective entity. They don’t have cultures, traditions, interrelations, or even one of the necessary conditions for forming a real social entity. Their recognition of their ancestry, or, as we say, deciding to “identify with” it doesn’t make them a separate social entity any more than it does for Chinese or Latvian Australians.
The moral perception behind the push for the Voice that “we must finally reconcile with those people we’ve treated badly for two centuries …” is flawed because there is no “those people”. That is the point behind the claims by leaders like Jacinta Price and Warren Mundine that the Voice is “divisive”.
Social entities across time
The reference to ”two centuries” brings up another philosophically problematic aspect — identifying social entities across time. Senator Pat Dodson says that the “Historic bill recognises wounds of our past.” His use of “Our” attempts to identify a people across time, as if he shares in wounds to past members. Does that make sense? We don’t have time to go into it, but obviously he needs to justify his identification with people across the whole continent who had land stolen two centuries ago.
There is a case, as I said, for the Warlpiri and Yolgnu peoples forming genuine social entities (which doesn’t mean separate or separable from mainstream Australian society, of which they’re genuinely also part). It’s also true that those groups have some commonality among their interests. But the Voice isn’t designed for them. They’ll be greatly outnumbered by the rest of those allowed in (not to mention outshouted by Langton, Pearson, Dodson and others with high-level communications skills).
As I said, I don’t feel strongly about the Voice. My prediction is that it will get up and proceed to make a fool of itself like ATSIC (Aboriginal and Torres Strait Islander Commission) did, without doing either much good or much harm.
But the error of regarding Aboriginal and Torres Strait Islander people as a separate entity has much more harmful consequences than that. I’ll just mention one. In 2013 the Australian government set up a Royal Commission into Institutional Responses to Child Sexual Abuse to inquire into abuse 30 and more years in the past – but not one to inquire into rampant sexual abuse in remote indigenous communities now and in the past.
Bess Price (a Warlpiri elder who was later a minister in the Northern Territory Government) asked whether remote communities counted as “institutions” as per the Commission’s terms of reference. The answer was no. She responded: “Aren’t we Australians too?” The implication of the government’ reply was that No, indigenous people aren’t Australians with the same protections against abuse and violence as we have.
That’s what you get from an ontology that counts them as different.
If equality is a value that informs the law, as Deane and Brennan said in the Mabo decision, you won’t achieve it by making toxic mistakes in social ontology.
This is a slightly edited version of an address given in Sydney to the St Thomas More Society and the Catenians in May.