Law

What role should international law play in the domestic legal sphere? The author of the Institutes of Justinian stated that ‘[e]very community governed by laws and customs uses partly its own law, partly laws common to all mankind’. Nevertheless, a certain view propounds that international law is an unstable or subversive intrusion into the processes of democratic sovereignty and the pedigree of national law. Such a stance, while persistent, denies social fact; the reach of international legal regulation is unprecedented and national bureaucracies increasingly operate beyond state boundaries. Such is the reality of the ‘Fluid State’ which, the editors of this volume suggest, will alter orthodox understandings of the interrelationship between international and national law.

Alexander Downer, when asked on the ABC in February 2003 about the legality of military measures against Iraq, was keen to emphasise Australia’s fidelity to international law: ‘We’ve reached a point where you either take international law seriously and ensure that Iraq does comply with international law or else you abandon the whole concept, at least in this case, of trying to enforce international law.’ But only a month after these comments, the federal government demonstrated its commitment to ‘enforcing’ international law by participating in an invasion characterised as illegal by the preponderance of states and international lawyers.

Geoffrey Robertson, the author of The Tyrannicide Brief, enjoys the same high public profile as those old lags who constitute the élite of Australian expatriates in London: Clive James, Germaine Greer, and Barry Humphries. In his case it is as a leading international human rights lawyer, the author of Crimes against Humanity (1999) and The Justice Game (1998), and host of the popular television series Hypotheticals.

The prodigious effort that went into the compilation of Dowling’s Select Cases was entirely consistent with his own approach to judicial office, including producing the copious writings that found their way into the book. As Dr Bennett put it in his biography of James Dowling (2001), industry and perseverance were the hallmarks of Dowling’s accomplishments. To produce the chronicle now published, the editors and their helpers followed Dowling’s notes through his nine volumes of cases, cross-referencing many to his 268 judicial notebooks. The cases were recorded by Dowling by hand and required considerable typing. They are arranged chronologically and according to subject matter. The book will not be a threat to Harry Potter but will endure as of considerable interest to lawyers and historians.

According to Aristotle, rhetoric is ‘the ability, in each particular case, to see the available means of persuasion’. In today’s parlance, the term is often used pejoratively, connoting an obfuscation of truth. This would come as no surprise to Aristotle, whose treatise on the topic, Rhetorica, demonstrated an acute awareness of the dangers posed by the adroit manipulation of the means of persuasion for dubious ends.

He said, she said. Is there any way to talk about this sad subject without taking sides? And a thought for a reviewer: how to resist the temptation to find a book a ‘good book’ if you agree with its arguments, and a ‘bad book’ if you disagree? I disagree with most of what John Hirst has to say in Kangaroo Court: Family law in Australia, but I’m trying to be fair. The essay is lucidly written (indeed, its message could hardly be clearer); it is extensively, if selectively, researched; and it raises important matters that we, as a society, need to think about.

One could be forgiven for thinking that Australia is suffering a litigation explosion. Newspapers have been full of reports of supposedly undeserving plaintiffs receiving million-dollar damages awards; governments have introduced legislation to limit pay-outs; local authorities and volunteer organisations have cancelled events due to concerns over public liability; and insurers have blamed rising premiums on unsustainable damages awards. Even the courts have joined the chorus: several leading judges recently declared the justice system to be in crisis due to increasing litigiousness, lawyers who stir up claims and a judiciary that has, according to one recently retired judge, ‘enjoyed playing Santa Claus’.

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.

It is comforting to think that the foundations of the legal system are sound. Perhaps this explains why there are so many common myths about the law, such as the notion that every legal problem has a ready solution, or that the law is essentially objective and value-neutral.

As students, litigants, witnesses and others who have suddenly become more familiar with the system of justice can attest, a closer look at the structure is usually disconcerting. This book, written by a professor of law, will be a revelation to those yet to become familiar with the cracks in the structure. It examines the fundamental concepts and assumptions that underlie law, taking nothing for granted. In the process, it explodes most of the myths.