Should freedom ignore fairness?

At the heart of liberal thinking is a deep commitment to freedom, and the idea that we are responsible for the choices we make in life - the individual and society are better off when we choose our path, and take responsibility for the success or failure of our lives. At its best it recognises the natural constraints on choice - lack of access to education and jobs due to prejudice, illness, disability, lack of funds, the wrong parents and other vicissitudes of fate; hence the free tertiary education of the Menzies era.

At the heart of labor philosophy is a deep conviction that a political community must treat citizens as having equal worth, meaning equal concern for their interests and equal respect for themselves as individuals. It need not mean equal treatment because fairness is contextual - the criminal is treated fairly when he gets the punishment he deserves and a gambler when he can enjoy his risk-gotten gains. If we choose the life of a beachcomber we cannot complain when others reap the rewards of their commitment. But if we value freedom, fairness argues for all to have the choice. If, however, we confuse fairness with equality, there is a risk we will dull the aspiration to live a life of value and imagination.

Much of the destructive force of politics comes from a belief that these ideals of freedom and fairness, because they are often in conflict, are incompatible. The belief is seen in arguments that public spending to iron out inequities of opportunity must compromise a sacred value; it is seen in metaphors about the primrose path, slippery slope and thin end of the wedge, and in charges that the other side is 'ideological' - its interpretation of ideals is set in concrete. It is also seen in a failure of intellectuals to rise above the fray - one can peruse editions of Quadrant with no sense of the substantive merit of arguments appealing to freedom, social justice and human rights - it is lost in a crusade against 'political correctness'.

In America the polarisation is now extreme and political argument is at a fever pitch of intolerance and anger. Government is limited by the compromises inherent in a system which sees 90% of Republicans in Congress, and an indecent number of Democrats, receive funds from the NRA, and because Supreme Court judges think abstract Constitutional principles, such as the Bill of Rights, license them to shape the law as they see fit. It sees 'conservative' justices cite theories of original intent to protect the commercial interests of arms manufacturers but without limiting the right to bear arms to flintlocks and blunderbusses. It means corporate America can, after the Citizens United Case, bid for government at open, public auction.

Australians across the political spectrum are appalled at the actions of Republicans who oppose the Obama health care legislation, and their readiness to risk national security and global financial stability to repeal watered-down versions of a national health scheme. Likewise at the power of the mainstream media and the health industry to persuade working-class Americans that even this degree of social welfare is a betrayal of national values. They are dismayed to learn that, if the US minimum wage had kept pace with productivity since 1960, it would now be $22 an hour instead of $7.25.

While Australia does not face these risks or anything like them, the standard of political debate is not much better and is likely to get worse. In the remainder of this paper I would like to outline two reasons why.

The first is a doctrine of party unity which requires elected members to represent party leaders, not the public. It means Howard and Downer could, for the sake of long-term security and trading interests, take the nation to war in Iraq without a single member willing to support a parliamentary inquiry to examine the evidence. (The same failure is especially shameful in the case of Labor because it was, it said, against the war.) It means Liberals can refuse an apology under one leader and celebrate it under the next - and if you read Brendan Nelson's speech it is difficult to see why; but it is sad and disturbing to see so many elected representatives unwilling to take a stand on such grave moral questions.

The problem with the doctrine of unity is that it denies politicians owe this duty to the community - the source of their salaries and offices - it lets them off the hook of an obligation to inform themselves and make conscientious judgments of party policy and moral principle; and so they lose the habit and the community loses this resource - to say nothing of a sense of honour for which men and women have given their lives through history. It is why this idea of political duty was repudiated by Edmund Burke in one of the most famous speeches in the history of British politics - it is long overdue for prosecution.

It is, however, unlikely because of the belief that Labor lost the election due to a lack of party discipline, seen in disputes over the leadership. No-one, least of all the media, will now distinguish a demeaning struggle for personal power from substantive questions of political morality such as the Iraq War, the apology and same-sex marriage - but the arguments underlying Burke's priority of conscience must eventually re-surface.

The second problem - an affliction of the Liberal party - is the belief that conservatism is a political philosophy when it is arguably nothing of the sort. Liberals ignore what Burke had to say about the duty of elected members, but miss no opportunity to appeal to his authority as the 'father of conservative political philosophy', when they decline to address issues of social justice, human rights and personal freedoms which - heaven forbid - reach beyond the law of contract and trespass on conventional and religious doctrines dealing with human relationships.

Burke saw himself as a practical man, not a 'dabbler in abstractions'; with the exception of a treatise on aesthetics he did not publish philosophical papers and cannot easily be put into a philosophical box; in recent decades leading scholars have argued that his writing is rich in Natural Law ideas, when for over two centuries he has been portrayed as a pragmatic, utilitarian thinker. His pre-eminence as a conservative rests largely on his Reflections on the Revolution in France, published in 1790, and his efforts to discourage the spread of Jacobin ideas. But he supported the American Revolutionaries and did what he could for Irish Catholics.

Burke saw Prudence as a governing principle in all political affairs and the same cautionary principle - look before you leap and don't throw babies out with the bathwater - led the late HLA Hart, a distinguished legal philosopher, to assess conservatism - somewhat dismissively - as a reminder that long-established practices and institutions are likely to have benefits not immediately obvious to the casual observer. In this common sense meaning it is compatible with almost any political philosophy, certainly one based on Labor ideals.

It has, however, been re-assessed over the years and is now seen as a theory about the limits of human understanding. Those who take this view believe it is not merely hard to foresee the consequences of major change, but impossible to evaluate due to the complexity of the task, and because we cannot know the role of moral ideas in intuitive judgments which, over time, shape institutions. Martin Krygier, in his excellent essay, 'In praise of Prejudice', in his Civil Passions (Black Ink, 2005) conveys something of the appeal of this idea and contrasts it with Kant's commitment to reason. He cites a passage from Burke which justifies his fame as an advocate for prudential government, and could be read as support for the modern view.

This is intriguing and not just because, as Krygier points out, it draws on post-modernist theory to help justify conservative political ideas. If this is how value is created it argues for faith in intuitive judgments by practical men with good intentions, and scepticism of those who insist on reasoning from principles as well as coherence in the reasoning. Perhaps we should keep this in mind when we next hear someone cite Keynes on practical men being the slaves of yesterday's theories.

However that may be, there is a simple, practical test for honest politicians. We need to ask if the conservative theory attributed to Burke and explained by Krygier can withstand a history of resisting social justice reforms which even conservative liberals now accept. The list begins with the great Reform Bill of 1832, and includes the abolition of slavery, universal suffrage, age and disability pensions, the basic wage, unemployment relief, employee and road-accident compensation schemes, as well as national health cover, no-fault divorce, legal aid, and endless regulations to constrain markets in the public interest.

The two problems I have outlined are closely connected because, when politicians give up the doctrine of unity and its demeaning practice of self-subordination, and rely on their own judgment and conscience, they will be making the best judgment they can of the requirement of values they respect, such as the prime values of freedom and fairness highlighted in this paper. A full defence of this claim would take more argument than is possible here, but is implicit in the fact that taking a stand 'on principle' is also a synonym for acting 'on conscience'.