Michael Kirby

Two years ago, Pulitzer Prize-winning author Joseph Lelyveld published a partial biography of Mahatma Gandhi (Great Soul: Mahatma Gandhi and His Struggle with India, 2011), which outraged public opinion in India and served as a vehicle for the self-promotion of leading politicians who railed against the supposed contents. Although the book was not yet available on the subcontinent, and so had not been read by the politicians, populist calls for its banning came thick and fast. The controversy could be traced back to a review of the book in the Wall Street Journal by an admirer of Gandhi’s nemesis Winston Churchill. The reviewer claimed that Lelyveld’s book allowed the reader to conclude that Gandhi ‘was a sexual weirdo, a political incompetent and a fanatical faddist’, not to mention a homosexual and a racist, something that the book itself did not say.

In the days when every Australian law student studied legal history, one of the famous cases we were taught was about James Somerset. Taken from Africa, probably in his early teens, Somerset, in 1749, was by the laws of Virginia made a chattel of his master, Charles Steuart. Twenty years later, Steuart took Somerset to England, where he continued to serve as a slave for two years until, in October 1771, he fled his bondage. Steuart had Somerset seized and put on board a ship bound for Jamaica, there to be sold in the slave markets. Abolitionists rushed to the King’s Bench in London, where they obtained a writ of habeas corpus. This required the ship’s captain to bring Somerset to court with a justification for his detention. Fortunately, the presiding judge was Lord Mansfield, who declared that slavery did not exist in England. He uttered the famous order: ‘Let the black go free.’ The law of England was too pure and no slave could live in it. Habeas corpus was the remedy.

In life, timing is everything. Charles Darwin’s classifications of the species appeared in England at a moment when religious dogmatism was not powerful enough to suppress his notions about evolution. In the 1940s Alfred Kinsey turned his attention from gall wasps to the scrutiny of human sexual behaviour. He would not have got away with it in rural Indiana but for chance events, including a great university president (Herman Wells), who defended his work and was probably himself homosexual.

The centenary of the first sitting of the High Court of Australia was celebrated in the same courtroom in Melbourne in October 2003. There followed a conference in Canberra reviewing the decisions of the Court over the course of a century. The papers of that conference will shortly be published for a legal audience.

In advance of that book, CUP has published sixteen essays to give a more general audience an idea of the role the High Court has performed in the leading issues in which it has been involved. The writers are assigned important decisions or major themes. They explain the background. They describe proceedings in the High Court and (whilst it lasted) the Privy Council. They put their subjects in context and evaluate their significance in terms accessible to an informed lay reader. This book contains plenty of new insights that combine to make it a commemorative volume, but without many of the defects normal in that genre.

This is not an easy book to read. It is crammed full of ideas, literary and musical allusions, and theories about law and justice. The author’s basic thesis – that law is a concept imperfectly realised, continuously reinterpreted, and always in flux – is not really controversial in legal circles in Australia today, let alone novel. The most influential legal scholar in Australia’s history, Professor Julius Stone, taught that simple truth to generations of law students in Sydney between the 1940s and the 1980s. Now, Desmond Manderson is the first director of the Julius Stone Institute for Jurisprudence at Stone’s old law school at the University of Sydney. He has taken up Stone’s grand theme, adding some fresh insights of his own. He has done so in this handsome book, beautifully published by the University of California Press. And there is much that is good and useful in it. But his gems are sometimes maddeningly hidden in a torrent of words that succeed in obscuring the ideas the author wants to get over to the reader.

The huge changes that have occurred in Australia in the space of a century were reflected in the recent centenary of Federation celebrations in Melbourne. They were evident, for example, in the repeated acknowledgment of Aboriginal Australians and in the selection of a young female Asian-Australian to speak on behalf of the future.