21 May 2021
Dear Reader,
The lead feature this issue is a guest piece from Prof Augusto Zimmermann on threats to the rule of law. We also include a report on last night’s book launch by Senator Claire Chandler, a link to an excellent little article on some of the special difficulties nowadays faced by growing boys, and a full programme for our upcoming Colloquium (25-26 June).
With best wishes always,
David Daintree
THE FIGHT TO SAVE THE RULE OF LAW IN AUSTRALIA
By Augusto Zimmermann
Although its meaning is always open to debate, an underlying theme in legal theory is that the rule of law provides at least part of the solution to the problem of abusive, external control over the life, liberty and property of the citizen. That so being, the realisation of the rule of law necessarily implies that ‘government can act only through law and law checks the power of government’.
According to the late Emeritus Professor of Jurisprudence at Birmingham University, Owen Hood Phillips, ‘historically, the phrase [‘Rule of Law’] was used with reference to a belief in the existence of law possessing higher authority — whether divine or natural — than that of the law promulgated by human rulers which imposed limits on their power’.
First coined by Plato and Aristotle, this ideal of legality was later rediscovered and further elaborated by Christian scholars — notably Thomas Aquinas — during the Middle Ages. As Aquinas famously stated: ‘Once the king is established, the government of the kingdom must be so arranged that opportunity to tyrannize be removed. At the same time, his power should be so tempered that he cannot easily fall into tyranny’.
Accordingly, wrote the late American legal philosopher Charles Rice,
Aquinas’ analysis is a prescription for limited government, providing a rational basis on which to affirm that there are limits to what the state can rightly do. His insistence that the power of the human law be limited implies a right of the person not to be subjected to an unjust law.
Central to this legal tradition is a conviction that the principle of separation of powers comprises ‘a critical aspect of every system of government which hopes to combine efficiency and the greatest possible exercise of personal freedom’. The concept of the rule of law rests upon the historical truth that whenever power becomes too concentrated in the hands of a person or a few individuals, the risk of arbitrariness increases as a result.
On the other hand, the practical achievement of the rule of law requires a ruling elite willing to subject itself to institutional checks and balances. Yet, when law becomes a vehicle (and at times equally useful camouflage) for the exercise of unrestrained power, legality is then transformed into an instrument for repression or at least top-down direction of subjects, and nothing more. This may occur when governmental action becomes more valuable and important to the population than any respect to the rule of law. As Sir Ivor Jennings famously noted:
If it is believed that the individual finds his greatest happiness, or best develops his soul, in a strong and powerful State, and that government implies the unity of the nation behind a wise and beneficent leader, the rule of law is a pernicious doctrine.
St Thomas Aquinas regarded as one of hallmarks of tyrants that they deliberately undermine all forms of solidarity among their subjects, thus preventing them from joining in the various compacts and associations by which ties of friendship and trust can be generated.
Unfortunately, I have never witnessed so much hatred and disdain amongst the fellow citizens of this country. According to The Australian’s Chris Kenny,
‘some of the worst aspects of our society have come to the fore through panic buying, hysterical reporting dependency and, from some, a masochistic desire to take orders’.
The response to Covid-19 is prompting a remarkable number of Australians to treat fellow citizens as potential carriers of a deadly disease. As noted by Henry Ergas,
‘being surrounded by people wearing masks coats daily life with a deep glaze of oddness, casting ourselves and everyone around us as simultaneously risky and at risk, contaminable and contaminable’.
I have noted also how many Australians have developed an utterly distorted view of government, or what governments can do for them. Such people expect everything from government. They clearly worship at the altar of the state, believing in government as the ultimate provider of all good things. Call it a form of idolatry if you wish.
It is now patently clear that our political class is developing a real taste for arbitrary power and control over a fearful population that has lost any sense of human dignity. These politicians have never had such an energising time as this. They are so full of importance and power that one can only expect them to continue running the nation in such a heavy-handed manner.
This is very serious and the average citizen seem entirely oblivious to the threat posed to the future of our nation. This is not only about the national economy but also the preservation of the rule of law and protection of fundamental rights and freedoms, which have been considerably undermined as a result of this compromise of constitutional principles.
I speak as a legal theory and constitutional law academic concerning these matters. I am deeply worried about the dreadful consequences of draconian measures created under the pretence that they were necessary to fight the coronavirus. These measures violate the Australian Constitution and unleash unprecedented socio-economic consequences, which threaten our very way of life and what it means to live in a free and democratic society.
I conclude this short paper with a sober reminder to my fellow citizens that the future of our nation is at stake, and that, indeed, ETERNAL VIGILANCE IS THE PRICE OF LIBERTY.
Augusto Zimmermann PhD, LLM, LLB, CIArb, DipEd is Professor and Head of Law at Sheridan Institute of Higher Education, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is also a former Law Reform Commissioner in Western Australia (2012-2017) and President of the Western Australian Legal Theory Association (WALTA). Professor Zimmermann is also the main editor of ‘Fundamental Rights in the Age of Covid-19’ (Connor Court / The Western Australian Jurist, 2020).
RECLAIMING EDUCATION
Remembering Golding’s Lord of the Flies: Allegra Byron writes about the bias against boyhood in modern western schools.