A debate about a legislative charter of rights is back on the agenda. In this article I argue that we need to look carefully at what is included in any bill of rights (BOR). For the purposes of this article, I define a bill of rights as “a contract between the state and the individual” and not between corporations and individuals. This discussion is for another time.
Together, we need to ensure that the rights included are what Isaiah Berlin calls (in Two Concepts of Liberty) negative liberties not positive liberties.
Negative liberties means man is “free to do what he wants to do and when he wants to do it without imprisonment or enslavement”. Think Adam Smith, Locke and Hayek. Man is treated as a passive being.
Positive liberties, however, mean “man is obliged to do something for someone else”. Think of the ash heap of history: Hegel, Marx and Lenin. Man is treated as being an active being.
Of course, liberties overlap but negative liberties generally favour the individual, positive liberties the community. The latter (positive liberties) almost always curtailed the former (negative liberties) in a brutal centralising apparatus. In what follows I will show that positive liberties limit the scope of policy ideas and leads to unaccountability.
A bill of rights is counterproductive
A classic positive liberty - a right to equality - can be counterproductive due to judicial activism. I define judicial activism as “judgments at odds with the views of a majority of the voting populace”. As Jack Straw reveals “the UK charter of rights had judges interpreting the law the way we never intended or imagined it could be interpreted”.
Consider, however, how a bill of rights can be counterproductive in advancing equality itself.
First, in California a citizen’s initiative (Proposition 8) struck down a judicial judgment where a “right to equality” led the court to conclude that marriage included gay couples. A better approach would have been introduced civil unions (as they have now under the status quo) then marriage. Noble intentions, but the outcomes are subpar: the means do not justify the ends. The courts simply end up making things worse (due to their decisions being too abrupt), aggravating social progress. Clearly, judicial activism has been a source of public alienation.
Second, consider Mabo and the public attitude towards land rights. John Howard used Mabo to advance reforms which some have argued severely limited land rights for a number of Aboriginal communities. A better approach, by either the judiciary or the legislature, would be to give land rights to non-nomadic Aboriginals (like those in the Mabo case) then introduce incremental agreements on the mainland without the need for litigation. Recall mining companies ran a huge scare campaign to give us the Wik decision, arguably setting back land rights to pre-Mabo days. Again, noble intentions, subpar outcomes.
Historically, incremental, reasoned approaches by the legislature, not abrupt approaches by the judiciary are the way to go. Gay marriage gets struck down; land rights get denigrated - judicial legislation is an easier target for scare mongering than Parliamentary legislation.
Judicial activism, especially when positive liberties are involved, are often downright counterproductive (arguably, causing more woes for minorities than it cures). True, judicial activism may bring greater awareness of minority issues, but if you want awareness without removing democracy from the equation and to make citizens intellectually enlightened and informed then campaign for citizen initiated referenda. It is the height of arrogance to suggest that judges, acting as philosopher kings, should have a say on which policies are valid.
Former Chief Justice of the WA Supreme Court, David Malcolm agrees. A BOR is often a one-way ticket to judicial activism: it overvalues the powers of unelected, unaccountable judges. Parliament does not make the difficult decisions anymore. Instead, they are shifted to the judiciary.
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