An earlier article ('Attacking the High Court judges') argued that Janet Albrechten's criticism of judges in the Malaysia asylum case was misconceived; this article asks what vision of law could explain the views she expressed. She said what the Prime Minister had said earlier - to universal criticism - that the judges made a political decision not a legal one. But whereas Gillard was upset because they did not support her asylum policy, Albrechtsen began well; she said they would be wrong to make a political decision if the law was clear and settled, as in her view it was.
Almost all lawyers reject the Prime Minister's view and support this statement of principle - judges should not make political decisions and should apply the clear law. If Albrechtsen had stopped here, and not felt obliged to say they were 'entitled' to rule as they did, her argument would still be wrong but at least intelligible. The reason it is wrong is that her assertion that the law was clear and settled is manifestly untrue.
It is refuted by the fact that senior counsel could not agree and, after argument from both sides and careful study of the Act in light of long-settled principles of statutory interpretation, our most authoritative judges were unable to reach a unanimous decision. What further evidence does one need to conclude the law is unclear?
This is not to deny that Albrechtsen's view of the law may, in the end, be correct. Academic journals are full of articles by eminent scholars who argue, often persuasively, that wise judges have made wrong decisions - which is why good law schools will encourage students to read both majority and dissenting judgments in key cases. But we need a good deal more than this to justify her claim that the judges abused their office to make a political, not a legal, decision.
Lawyers who did jurisprudence will recognise a theory of law which is part of a family of ideas known as 'legal realism', which emphasise the influence of personal values and innate dispositions - sometimes referred to as the 'subjective factor' - in decisions. Harsher critics of this movement, a product of American law schools, believe it began with harmless platitudes and, after decades of scholarship, managed to translate them into clichés and homilies.
The theory makes a dogmatic claim: where there is no clear rule it says judges can or must decide (there are variations), not by arguments of legal principle, but by choosing a social policy or goal and writing a judgment to give it effect. Because, so the theory says, judges cannot help doing this, they ought to do it as well as they can, and openly. When Albrechtsen says appellate judges have 'a wider berth' to interpret law as they please she is putting her version of this realist theory.
Hence the majority were in her view wrong, not because judges have no right to legislate policy, but because the law being clear they had no right to move into legislative mode. Why she thinks the law was clear and the High Court wrong remains a mystery, but it may not be unfair to see in it something of the same fundamentalism underlying her views on same-sex marriage.
Much more important, because it is central to debate on an Australian bill of rights - and more generally to the logic of moral reasoning - is the idea that judges cannot avoid 'making law' when called to interpret abstract principles. Nearly all critics of a bill of rights - and many supporters - think judges must 'legislate' where the law is silent or unclear.
Since virtually every case likely to arise under the fuzzy principles of a bill of rights will by definition be a case of unclear law, it follows that such a bill cannot be a statement much less a safeguard of our rights, but a licence to judges to grant us whatever rights they deem fit, according to whatever criteria seem to them appropriate.
This leaves us with an invidious choice between 'activist' judges who use the discretion to make law based on their personal values and political ideologies - which is clearly undemocratic - and conservative judges who, in order to respect democratic principles, must deny a remedy to victims of injustice, including the injustice of laws made by yesterday's judges.
A striking feature of the debate is that reformers and conservatives agree there can be no such thing as unclear or inchoate or implicit law. Most seem unaware, however, that this is a contested claim in conceptual philosophy, much easier to assert than to defend. This philosophical issue, which has prompted several books and hundreds of articles in recent decades, is by far the most important debate in contemporary jurisprudence.
This is due to the influence of one man. When Ronald Dworkin was appointed to the Oxford Chair of Jurisprudence in 1969 he had already laid the foundations for his refutation of legal positivism, a general theory of legal reasoning which also underlies the view that unclear law means no law. There is no space here to attempt even a summary, only to convey something of its logic (succinctly captured in the first quote from Brennan CJ) by looking briefly at two cases - one a ruling famous in Anglo-Australian civil law - the other a decision ending racial apartheid in US schools, an ideal of justice beyond the reach of democratic authority, state or federal.