Janet Albrechtsen's jurisprudence

Donoghue v Stevenson, the 1932 House of Lords case of the snail in the ginger beer bottle, is the most famous decision in the law of civil liability, familiar to all law students for its unifying principle - foreseeability of harm - to explain past cases where courts had found liability for negligent injury. This principle provided a general justification for 'a wilderness of single instances' and a basis to extend liability to new areas. Students are told that it freed judges from the rusted shackles of ancient categories of liability (actions 'on the case') but in reality it freed their minds, at least for a time, from the cobwebs of a superficial theory of precedent. However that may be, the idea that a duty of care arises for creating a risk of harm is now the backbone of modern tort liability.

The reasoning which achieved this is the speech of Lord Atkin, read in light of his historical scholarship - his explanation of the issues at stake in earlier, seminal cases. It is not the reasoning of a politician arguing for legislation. There is no appeal to benefits likely to accrue from 'making' a new legal principle to further extend tort liability, much less any consideration of the costs to manufacturers and insurers and ultimately to the competitiveness of British industry. None of these important economic or utilitarian factors played any role at all.

Instead Lord Atkin did what Gerard Brennan CJ intimated all responsible judges do - he pursued an ideal of justice implicit in any theory of precedent viz. that like cases be treated alike. In doing so he offered a better explanation than previous judges had of what constituted their 'likeness' - what differentiated past cases where plaintiffs could sue for negligence from cases where such actions had failed, as well as cases where unimaginative lawyers advised clients not to sue because they could find no specific precedent in the law reports.

This logic of argument is what makes Lord Atkin's speech a paradigm for Dworkin's model of Hercules. He was not searching for an explicit verbal formula - a generalized statement of liability hidden somewhere in the past cases (there were none), but asking himself if the reasons given for a duty of care in these cases, read in light of earlier and later judgments - as well as cases yet to come - provided the most coherent foundation for negligence liability. While this conception of principled reasoning continues to baffle Dworkin's positivist critics, good judges simply take it for granted; it would, in fact, be hard to find a more precise account than in the opening quote.

The issue of conceptual philosophy then, is whether the principle of risk - foreseeability of harm - is the product of a supposed right to make a legislative 'choice' (in which case if Lord Atkin had chosen to protect industry this would, according to 'realists', be just as valid), or a requirement of substantive consistency in interpreting past authorities; whether it was a more principled view of the theory of precedent because it was more sensitive to the difference between inconsistencies and exceptions. That is, more sensitive to the values which give point to this distinction.

The second example is the 1954 case of Brown v. Board of Education, where the US bill of rights provided legal protection when, from ignorance, prejudice or self-interest, a community through its government were treating a minority as second-class citizens. Racial segregation in US schools had for decades rested on a widely shared belief, reflected in Supreme Court rulings, that the equal protection clause of the Bill of Rights allowed 'equal but separate' schools. The Court rejected this on evidence that it led black children to see themselves as inferior, thus institutionalizing prejudice and defeating the ideal of fairness implicit in this constitutional guarantee. The case deserves to be celebrated because of its jurisprudential integrity - that it restored priority to legal principle over judicial opinion - not its political correctness.

Brown's case is a dramatic reminder of the social and political consequences which may flow from an interpretation of constitutional principle - of the immense changes it may force on government to avoid the sacrifice of individual rights to majoritarian goals; which is why so many critics (who, depending on whether they are 'personal' or 'property' rights, range across the political spectrum) believe no court should have this authority. They might not question the values which underlie our rights but they want elected politicians, not judges, to interpret them.

The case for an Australian bill has stalled precisely on this point, because those who favour it cannot meet the conservative objection that unelected judges who interpret abstract principles are making political decisions; they have no answer because most of them share this belief.

If legal principles are - as Dworkin has argued over the past half-century - 'weighted' standards which also have a point, there is no reason in either fact or logic why judges cannot be charged to make decisions based on judgments of their weight as well as their meaning and requirement, in accordance with past decisions whose authority no one disputes. This is no more a 'political' act than the judgments they make of 'non-democratic' common law principles on a daily basis.

The argument for a justiciable bill of rights rests on the fact that interpreting legal principles, as described in the second quote from Brennan CJ., is an intrinsically judicial exercise in Dworkin's sense and because - as in Brown's Case - it is the only way to defend our most basic rights when the community, or its representatives, finds it expedient to deny them, or simply does not care.

Albrechtsen does not seem to realise she impugns the integrity of the judges when she accuses them of making a decision based on a personal political preference when they knew, or should in her view have known, that the law required a verdict for the Government. It shows how far this popular idea of judicial responsibility, with its lazy appeal to post-modernist thinking, has seeped into the body politic.

She offers no support other than that her view of the law is different. She set off under full sail with a strong breeze, but foundered on the rocks and shoals of a notoriously superficial theory of law; she should have paused to ask herself, before setting course, why no appellate judge has ever taken it seriously.