Relevance versus facts and value

When Chief Justice Tom Bathurst of the New South Wales Supreme Court concluded his speech at the opening of the law term dinner, guests could have been forgiven for thinking they had been witness to a persuasive argument on the relevance of trial by jury.

True. They had been. But Mr Bathurst used the event to stake a much wider claim; a claim that has the potential to inject new life into a fractured social system.

His Honour began by asserting that the criminal justice system in NSW was experiencing a 'crisis of confidence'. He concluded by exhorting his legal colleagues to enliven debate, to ensure information is accurate, relevant and accessible, and to put their trust in citizens as jurors to act intelligently, fairly and diligently.

It was what he put in between the bun, however, that made the burger.

If my reading is correct Chief Justice Bathurst places a high degree of trust in the wider community but it is not reciprocated. At the same time, he is not so enthusiastic about the news media - arguing that poor perception of the criminal justice system is fuelled by 'talkback radio and tabloid journalists trading on the demand for shock and scandal'. Accurate information, he said, increases confidence in the system and this comes from broadsheet newspapers, government publications and educational institutions. The Sydney Morning Herald and Daily Telegraph coverage of the speech would have reinforced his opinion.

It was his plea to the legal community to invest more in communicating with the public to improve trust and expectations that resonated most. In this, Mr Bathurst urged defence lawyers to 'spend time on matters of relevance'.

Relevance is defined as pertinence to important current issues, while relevancy, also a noun, is the quality or fact of being relevant.

While we do not want to get bogged in semantics - what constitutes an important issue, for example - we must consider why Mr Bathurst chose to speak of 'matters of relevance' rather than David Hume's popular concept of 'matters of fact' and 'matters of value'. After all, lawyers use the word 'matter' to represent a case. Not all cases, however, are based on matters of fact.

I suspect Mr Bathurst was anticipating the meaning in his remarks would be interpreted much more widely. Relevance, for example, was applied generously throughout the carbon tax campaign. When a politician made a speech from one side of the razor wire or the other an opponent questioned its 'relevance'. In the scientific spaces both sides questioned the relevance of the matter being put forward by the other. For all its scientific underpinnings, one might have assumed that every piece of evidence and every scrap of information had relevance.

Chief Justice Bathurst provided a link to this by suggesting that distrust of the criminal justice system is in part due to misinformation - the media prefer to inflame rather than inform and politics encourages fear mongering rather than educated debate.

From this point Mr Bathurst plotted a course that took him away from the relatively manageable precipice at which the criminal justice system stands, and towards a much deeper and more complex part of the social system.

In seeking to increase trust in the criminal justice system Mr Bathurst is looking to reify society. This is not a bad thing. In seeking universal respect for the criminal justice system his real message was to those stakeholders who use moral relativism as a wedge to split off their own agenda from the core social values. He was speaking indirectly to those who hold that their own version of absolutism, or fundamentalism, is equal to every other value system thus giving them free-rein to attempt to assert their absolutism over what they see as the immorality of moral relativism.

Moral relativism can be used as a positive or negative weapon depending upon how you are looking at it. For the traditional Australian Catholic or Protestant, relativism erodes traditional values, beliefs and thus morals. It was no coincidence that the chief justice and 50 of his colleagues, on the morning of the start of the law term, attended St Mary's cathedral in Sydney for what is known as Red Mass - an annual service for those seeking or dispensing justice to seek guidance.

As Stephen Croucher attempted to discover in a survey of British and French Christians and Muslims the question of morality is tied tightly to the question of what it is to live one's life within universally understood notions of right and wrong.

Moral relativism is the capacity to see all value systems as equal, all societies being of equal value and all cultures being privileged. There is no room for imperialism - for the idea that there is some universal value to which everyone must adhere.

Part of the problem for the debate on gay marriage in Australia lies in the moral absolutism of the major religions and the moral relativism of those advocating gay marriage.

It is also the problem for the carbon tax though in a more complex sense it lies outside the traditional values but within a moral framework represented by the two-party political system.

Moral relativism and moral absolutism are difficult concepts to apprehend. They are difficult because the language of theory is privileged over the language of practice - the very concept that relativism attempts to avoid. When someone says "it's all relative" they are most frequently attempting to avoid conflict or avoid deep discussion because they have no real grasp of its meaning. The gap between the complex language, or narrative of theory, as we now like to call it, and the narrative of practice, is enormous, as Mr Bathurst rightly implies. When we attempt to construct a narrative, or language, around an issue so that it can be communicated to relevant stakeholders - any issue; gay marriage, ethnic diversity, carbon tax - we must use the language that the stakeholders we are pitching to will apprehend and thus, applaud the action or policy to which the narrative is attached.

The carbon tax narrative was underpinned by moral relativism (advocates) and moral absolutism (opponents). The question must be why the wider community has divided in absolute and relative terms and why it no longer places trust in its institutions such as the criminal justice system.

Chief Justice Bathurst provided some thought-provoking answers when he argued for respect for the criminal justice system - it should be viewed in absolute value terms.

If you use internet banking you expect your bank to act in absolute terms - no oughts or ought nots; simple absolutism every time you access your account. The same is the case with every socioeconomic action, so why is it not the case in sociopolitical actions? Most often it is due to the nature of the narrative and the capacity of the relativists to frame an argument that, while coherent, is also difficult to rebut.

For the advocates of the carbon tax the issue is clear - scientific evidence points to global warming. However, is it in fact clear? Is it a social issue constructed around the idea of cultural and thus, moral relativism?

To Hume's concept of matters of fact versus matters of value we can add his empirical observations that moral conclusions cannot be deducted from non-moral premises – something 'is' or 'is not'; it cannot be 'ought' or 'ought not'.

Without knowing that we do, so many of us hold to Hume's doctrine in our daily working and private lives - there is little time for prevarication - if we don't leave now, we will miss the train and be late for work. The train will not wait while we consider what ought to happen.

The Chief Justice has constructed an interesting platform for the continuation of the narrative on community participation in criminal justice and thus, participation in the framing of policy in the wider public sphere.