Sunday, April 22, 2007

Law and democracy

A predictable boilerplate criticism of human rights charters by Janet Albrechtsen in The Australian. But such charters can always be revised by governments, the fact that democratically-elected governments chose not to do so is their decision, as has been the case with the Racial Discrimination Act probably the closet to an Australian bill of rights. The bogy called up by conservatives of individual pieces of legislation being struck down as contradicting rights charters is a largely mythical one. WE could point to the hypocrisy of those who are happy to see government’s constrained by international trade agreements, but there is a more significant point. Their real concern is administrative law, that decisions might be challenged as unlawful. Says she:Now it's true that, armed with a charter, a judge will be able to hijack government policy. Therein lies the problem. You may disagree with some government policies, but at least you can boot out politicians when they get things wrong.Notice the use of 'policy' rather than 'law'. The point is not that one might disagree with a policy, but that a policy might be unlawful. A 'government' actually consists of thousands of individuals and agencies, and it is quite possible that one of these could act illegally according to legislation that a government has passed. In 1988 I was a Tax office clerk, should anyone who disagreed with my decisions have simply voted against the federal government in 1990? Perhaps Albrechsten accepts the argument of George Bush and Hugo Chavez for that matter that executives can legislate by decree. There is a current of left-wing opinion that counterpoises good 'law' to evil 'politics', but much of the right has its own demagogic view of a good 'politics' (=governments they like) versus evil 'lawyers' never law. A pragmatic view would be that there is range of manners in which the state’s legitimate violence can be exercised, courts are part of the state but have distinctive roles. There are right-wing discourses that do oppose law to politics; Hayek’s work and right-wing libertarianism, but the later in particular is not taken because of its lack of popular appeal. Its proponents such as Peter Saunders (some of the time) fantasise about a political consensus for right-wing libertarianism that given barriers to entry in the political market would be undemocratic, just as was the desire for a bipartisan consensus on the republic.

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