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Campbell, Tom --- "Can the Law Deliver Social Justice?" [2001] UWSLawRw 4; (2001) 5(1) University of Western Sydney Law Review 43


Tom Campbell

I have to start with a quotation from an inspirational legal philosopher, Roberto Mangabeira Unger, a Brazilian who is Professor of Law at Harvard University and a leading critical legal studies person, someone who is deeply concerned with rendering law, and through law society more just and more humane. In his recent work What Should Legal Analysis Become?, Unger writes:

[H]ow can we change legal analysis so that it may fulfil its primary vocation in a democratic and enlightened society: to inform us, as citizens, in the attempt to imagine our alternative futures and to argue about them.[1]

For Unger, to theorize about law you need imagination and creativity. You need to be able to take our culturally inherited concepts such as law, liberty, justice, rights, and shape them anew into different patterns so that we can envisage new possibilities, to break out of our old assumptions, to enlarge our ideas so that we can conceive of a different form of social and political life and then talk about that together.

Unger himself does this brilliantly in relation to our ideas of property and liberalism. I have sought to do the same sort of thing with rights in the book The Left and Rights[2] . Rights is a concept, which has become very much identified with individualism, with ultra-liberalism or libertarianism, with limited government, but which I believe can be reinterpreted in a more communal and socialist way. Now as a philosopher, my contribution was to try to make sense of the idea of socialist rights, a very small part of a much larger social movement to realise rights as collective achievements for social beings. If this works, then when we think about rights it will be as natural to think about the right to health, or the right to work, or the right to be part of a community, as it is quite properly for us to think of freedom of speech and the right to own property and so on.

In this lecture I want to take up the same sort of challenge in relation to law and justice, to try to think imaginatively, creatively, even radically about how we view law and what we can expect from it by way of justice. To do that I suggest we might have to free our minds up about what talk of justice amounts to, and what it could amount to in a post modern world. We may have to mentally disconnect from ideological stereotypes and work through some new combinations of ideas.

My particular suggestion is that we give justice a more limited connotation than it has acquired in contemporary political rhetoric, indeed in most contemporary political philosophy. Like all ideological terms that have a nice warm favourable connotation, the language of justice has been stretched to the point of obscurity. Aristotle perhaps can help us here with his distinction between justice as a very general term and justice as a particular virtue. A particular virtue he had in mind was pretty general in fact, but it was a steadfast intention to give every person their due. I want to be somewhat more specific than that and say that when we talk of justice we should be thinking of a combination of two ideas, ideas of equality in some fairly literal sense and ideas of desert.

First of all is the belief that all human beings matter equally, and therefore, it follows that it is right that they enjoy equality with respect to the principle benefits and burdens of life as a first step. But then this is modified to take into account differential deserts, so that we may have just inequalities. Justice as equality, modified by desert is what I take justice to be in its specific meaning - something I label The Moratorium Analysis. Most obviously, this involves such things as rewarding people for benefiting others or punishing them for damaging other people, but it spills out into a general idea of treating each other as responsible human beings.

To some of you this might seem almost repulsive as a focus for justice, or for others it might seem rather too obvious, and certainly to nobody it would seem to be imaginative or creative. Justice as desert does sound indeed to be a very traditional idea associated with some of the most inegalitarian societies in human history.

As to that charge, or the part of the charge that I might be peddling a platitude here, I can only point to the fact that most analyses of justice these days simply identify justice with what is in general morally or legally right with respect to fundamental human relationships. This is simply far too broad to be helpful. It is surely often right to show mercy rather than seek justice, right to protect important liberties, even if this involves some unfairness. Moreover, it is often surely wrong to be cruel and vicious. Wrong for reasons quite other than the injustice that may be involved in so doing. I would argue that if we attend to our considerable discourse on morality we will see that justice is not the be-all-and-end-all, the totality of morality, even in relation to politics, and far from the only basis for morally right social relationships.

When an effort is made to be more precise, to distinguish justice as a particular value in most contemporary analyses, what usually is suggested is that justice is the overriding moral consideration in determining what is right in human relationships so that, whatever is morally important in public affairs is thereby part of justice.

In his book on the theory of justice, the great John Rawls[3] in 1974 set the agenda for political and legal philosophy over the next twenty years.

Justice, according to Rawls, is the first virtue of social institutions. That is rather an obscure phrase for capturing what he means by the priority of justice. He explains it in terms of something he calls lexical priorities, something which must be first satisfied before you go on to try and substantiate any other objective. For instance, no system of social relationships can be accepted which is unjust until you have got it to be just, then you can go on and pursue your other objectives.

In terms of our everyday idea of justice, this seems to me to be a nonsense. The pursuit of justice as an ideal is something that we could be at all day and every day without a limit of time or attention. In the meantime we surely have to get on with some other morally desirable objective as well, such as providing food and shelter, and health care, preventing war and environmental disaster, and unemployment, even if we cannot do so while being entirely just in the process.

If families were to spend all their time seeking to treat each other with scrupulous justice they would not be able to get on with the many other things that family life is all about, and the same applies for society. I reject the primacy of justice, especially if this is held as a definitional matter or as an unchallengeable dogma, and I find this rather liberating.

Once we give up the idea that justice must have priority over all other ideals such as humanity, (the virtue of dealing with people who are suffering and in pain), liberty (enabling people to make something of their lives by their own actions), and utility (the technical term for the general pursuit of happiness and well being), then we will be less concerned about my analysis of justice as being in terms of equality plus desert. We will be able to look at it more objectively to see what weight we want to give to this factor of justice in our social relationships.

This non-prioritising moratorium conception of justice is helpful in re-imagining what sort of a society we might want to have. I am not saying that justice is unimportant; justice is of great importance. It is important that we be given equal weight as human beings, be treated as responsible agents, accountable for our conduct, but this is not the be-all-and-end-all of social life and political life. Many academics are rightly suspicious of desert and merit as concepts, and certainly desert is much misused as a concept used to justify indefensible inequalities. But we go much too far in rejecting the moratorium idea of justice altogether.

These same theorists are happy to accept the notion of what is called artificial or institutional desert. Thus, if a prize is offered for the fastest runner in a race then the person who gets there first is in some sense the person who deserves the prize. In legal philosophy we call this formal justice. Formal justice involves treating people in accordance with the currently authoritative rules, whatever they happen to be. It is this form of justice that we should expect, but often do not get from courts. These theorists are less happy with what may be called natural or moral desert. That is the idea I am interested in, the idea that people as individuals can take credit or blame for what they choose to do of their own free will, and may be rewarded or disadvantaged by reason of what is traditionally called their moral goodness or badness.

Thus, when we give moral praise to someone who decides to help others and succeeds in so doing, we want to say that somebody deserves the praise and help or whatever the rules may be, and indeed this basic idea of moral desert is one we would use for changing, developing and adopting new rules rather than saying we should simply follow the existing ones.

Why is natural desert in that very fundamental moral sense rejected by most philosophers these days? Because, I suppose, it is held that the capacity to choose well or badly, to achieve our objectives indeed, even to try to do something, to have will power, are some things which we either have or do not have. We can hardly praise our brain for having them; they are merely facts about our natures, our genes, our environment, or our upbringing, just like the colour of our hair. It makes, ultimately, no basic sense to praise or blame people for these qualities. It might be useful to praise good behaviour and condemn bad conduct because it may encourage the one and affect the other and reduce it. But it makes no sense to say that individuals deserve this praise or blame, for human conduct is determined in advance as our ever-expanding knowledge of the human genome is alleged to confirm, and on this view there is no such thing as justice in my moratorium sense. Rather we should simply strive to maximise happiness or liberty or equality, or whatever we value, without reference to the idea of moral responsibility or just deserts as fundamental moral ideas: or to put it in a somewhat different language without regard to the substantive justice of the rules and goals we seek to achieve, that is without reference to the deserts of those involved.

The rejection of moral desert is a pernicious belief adopted for inadequate reasons which is quite impossible to live by as individuals and quite disastrous to adopt from the point of view of social policy. For although desert justice may not be the be-all-and-end-all of a good society it is, I think, an essential ingredient. Having said that, I am more than happy to admit that human freedom of choice is greatly exaggerated and that people are given far more credit and discredit than they actually deserve. I believe this as a matter of fact. That the moral differences between individuals are nothing like so great as they would have to be to justify the extent of inequalities of treatment and condition that exist in all societies or all the severity of the punishments that we inflict, even in the developed societies.

Indeed, it is now a paradox of contemporary thought that desert is primarily a basis for reducing inequalities rather than justifying or sustaining them. This may surprise you, because I believe that our conceptual schemes have developed, (which have developed of course in the hurly burly of political conflicts of the past), have formed ideological packages, and in these packages desert is primarily associated in our minds because we inherit these ideas with justifying severe punishments and greater disparities in economic rewards. It is a right-wing concept pointed to harsh penalties and greater rewards for the worldly successful. But let us be imaginative and creative; that is, let us ask whether this need be so.

Much crime is surely the result of deprived social backgrounds of bad luck, and much success is due to inherited circumstances, and good luck. In which case the desert theory provides grounds for fewer differentials, not more. You might say, as a core example, how on earth could the top 2 percent of Australians be said to deserve their greatly enhanced share of wealth? Moreover, before classifying desert as an essentially conservative and inegalitarian notion, do remember that on the analysis of justice and proffering, it is not overriding or all encompassing as a political value. The virtue of humanity requires, for instance, that even the very undeserving should not be treated cruelly and more than that, liberty may justify as tolerating injustices in the distribution of wealth which are not fully merited in the interests of promoting significant and fulfilling ways of life.

Nevertheless, justice is important enough that we cannot afford to lose sight of it. It is a fundamental presupposition of a tolerable society that we seek to treat and recognise each other as responsible individuals, responsible for and to society and not just for and to ourselves, and more can have an important role in capturing and promoting this ideal. Hence, I argue, the importance of ensuring formal justice, that such rules as we have are fairly and properly administered and applied so that we hold individuals responsible in terms of the forms of conduct that they know are permitted or prohibited, and to which they are able to conform if they choose to do so. But more important still is the matter of getting the rules and substance right so that they do realise the objective of people getting what they deserve, amongst other objectives, that is the matter of substantive justice.

Such concerns are very apparent in criminal law where several basic principles may not all have been adhered to in order to exhibit a commitment to justice as desert. No one should be found guilty of an offence for conduct, which was not clearly identified as an offence prior to the conduct in question - that is one example. The intention to do the act should be a pre-requisite of criminal guilt and only conduct that is morally wrong should be criminalised. Punishment should be proportional to the moral gravity of the offence, and I suppose even more basic, but equally connected with desert, no one should be punished for something that they did not do. Well that is the theory. Can the law deliver this sort of justice?

At this stage we have to step back and distinguish, here or abstract, two sets of institutions that can, either separately or together be thought of as the law.

First there is law as courts, lawyers, prisons, law students - that group of people, roles and institutions. We can also think of the law as government, not in all its aspects certainly, but government in so far as it is the institution which makes laws and governs through laws, which are then administered by officials, including those administering the law in the first sense. Liberal law is to produce justice in the criminal law. This means first the governments must provide criminal laws which are substantively just, which reflect some judgements as to morally wrong conduct which ought to be criminalised, and then in addition to that you need the system of police and courts to administer these laws accurately. But even then, given that hopeful ideal, can the criminal law really secure justice in the sense of giving people what they negatively deserve? Well, it is very obvious that this is possible only in a very rough and ready way.

One of the problems of aspiring to this moral ideal of desert or justices of desert is that it is something in the end that only God with his power and capacity, if he exists, could achieve, for human institutions which seek to do it, can only achieve something which is approximate. No doubt we can do a great deal better than we currently achieve; there is plenty of room for moral criticism of current criminal laws, plenty of imperfections in the court processes and in a lack of resources and legal aid, and amateurism in the sifting of evidence, and there are the great limitations of course in the detection and prosecution of crime. Nevertheless, we do as a society put considerable efforts into ensuring the persons accused of serious crime are properly represented and tried in an impartial court and given the benefit of serious doubts. Even this justice in the moratorium sense, does it really move towards reflecting natural desert? Would a court not have to go into the detailed history and context of each person and each offence to make an accurate judgement on the moral culpability of the person involved? Such thoughts have been developed a great deal in modern theories of justice to the point where people say that justice cannot be achieved at all via rules, it must be a particular, individualised judgement about a total, complex situation including all the relevant matters and factors about those involved in it.

Yet, surely all the law can do is to have regard to our individual merit and demerit. Did the person break the existing rules and so on? Real justice would have to be much more concerned with the particular individuals in their very specific context, untrammelled by pre-existing norms which we simply have to apply.

Some quick answers. Yes, of course, courts can only get at moral guilt indirectly. It is their job to apply rules, not to make them up. It is their job to assess the particular conduct in question in terms of existing rules and not assess the moral credit on the balance of the individuals who come before them overall. Something more direct does come in with sentencing. But even this is less personalised than a fully moral assessment would be. Nevertheless, we take this as being the main area in which particular judgements get made which relate to moral merit. Hence, our difficulties with mandatory sentencing of any sort, whether or not the mandatory sentences are regarded as being too severe and out of proportion to the morality of the offences or not. But put this together with our social and political duty to help to make the criminal law better and what we regard as morally unacceptable conduct and the system can become a rough and ready attempt to do justice as desert. I believe that we have to hold to the idea that that is something that the legal system's criminal law can do more or less. It makes sense to say that they can all do it better, and to affirm that this is a proper goal for them to pursue - that is, we should not give up justice because we are bound to fail in the objective to some degree.

Justice and social justice

You will be saying by this time that this was not the title I had been given. I was actually asked to talk about social justice. If the title were Law and Justice, then you would have expected me to be talking about these matters, which might be regarded as individual justice. Does the law convict the guilty and only the guilty? Are the rules of contract toward property and so on inaccurately implied in disputes between individuals? Are aggrieved individuals able to have their day in court and have their grievances justly dealt with? That is the individualised justice that we normally expect from law, not social justice. When we talk about social justice you would expect me to address issues relating to the comparative well being of different groups. What can the law do for the poor, for blacks, for women, for refugees, for the old? Issues of health services, education, employment, and the distribution of wealth. The stable concerns of the welfare state, these are the concerns of social justice. The topic of law and social justice suggests a much wider range of topics than I have been discussing so far.

In fact I believe that in many respects this is a false and misleading antithesis. At least one method of providing justice for groups is by doing justice to the multitude of individuals who are members of groups. For social justice is achieved incrementally, very often case by case as well as wholesale. One of the reasons we get excited about legal decisions concerning individuals is that these set the precedents for what is to happen to that sort of individual in the future. What indeed are groups, but individuals of a certain sort? It is a bit of a rhetorical question and you could argue about that.

The judgment, for instance, in favour of Eddie Mabo[4] , is not just a judgment about Eddie Mabo and his claims. It is about all traditional owners of land in the Australian jurisdiction, and in the great global legal system we are told is emerging by implication potentially in the world. I would argue that other social justice issues also have to do with fundamental ideas of desert as well as prior equality and in this way are tied in with formal justice as well.

It is one of the great disadvantages of contemporary theories, that most theories cannot explain why formal justice and substantive justice are called by the same names that were in a common category of justice.

Until comparatively recently we have instinctively looked to law for individual justice and to politics for social justice. If you are wrongly accused of a crime, if you are cheated in business then look for a lawyer. If you are unemployed, poor, or have inadequate local health care, look to the ballot box and the media. Interestingly, the highly undesirable thing in this is changing. More and more citizens of developed societies are looking to law not politics for solutions to problems of social and not just individual justice. That is, we have reduced hopes of politics and politicians and increased hopes of courts and judges.

I suspect that when the question “Can Law Deliver Social Justice?” was asked, what was in the mind of the person asking, was whether we should look to the courts as guardians of human rights, for social

justice, a function governments now seem unwilling or unable to provide. This is perhaps a major constitutional issue of our time. Should we transfer power over the articulation at least that part of social justice involved in human rights to the courts, rather than governments? Should we make judges in the potentially unlimited sphere of human rights, at least, the government of thought? Would the well being of disadvantaged groups, the injustice of a society, not be better addressed by the High Court than by Parliament, by the likes of Sir William Deane rather than Mr John Howard?

To this I give the resounding answer no, and not because I am in favour of Mr Howard particularly. For two reasons, I believe we should retain as the task of the elected Parliament to give substance and detail to human rights. Only then have human rights enforced by courts, and without any power of substantive judicial review whereby courts can declare legislation invalid because it contravenes what they interpret as being required by human rights. My first point will be that a bill of rights for Australia is not the way to go to achieve social justice and indeed in some senses it is a contradiction to do that because it violates the right of self-determination. Secondly, with respect to the capacities of democratically elected governments, it is simply wrong to say that they cannot achieve social justice through enacting laws.

To deal with the second one first. Libertarian ideology has convinced the majority of politically influential people today that the task of government is not inclusive of enacting social justice. This is wrong in fact and morally unacceptable. Most obviously, social justice can be achieved in large measure (perhaps that is exaggerating) through law by means of progressive taxation, and I would suggest that that is a major means of redistribution, which is by no means out of date in this context. Within that I can only address a small argument and the argument will relate to whether the redistribution that we can bring about by progressive taxation is in fact in line with what I have been putting forward as an idea of justice as desert. I would point out first that progressive taxation, if severe enough, reflects the desire to approximate what I call prior equality. The egalitarian aspect of social justice, from which we begin as a template before we make adjustments for differential desert, can achieve something roughly approximating to that benchmark.

In addition, and again only roughly, the resources raised from government in that way can be used massively through supporting effective criminal and civil justice systems and even more through the providing of institutions for fair equality of opportunity, particularly in education and other welfare services, so that the competition for social goods reflects more of desert and less of good fortune. In this sense, desert can be encouraged to operate in part through the market place as well as through the courts and government. However, there is a more profound objection lurking here, perhaps to seeking social justice through progressive taxation, and this is based on the ideal of justice itself. Because I think it is possible to argue that the disillusionment with the welfare state, which is part of our current political viewpoint in many circles, is based on a sense that the welfare state is systematically unjust by taking from the deserving and giving to the undeserving, from those who create wealth and giving it to those who do not. Is this not the basic problem of the welfare state, in that it rewards the undeserving? My own view, is that there is a small element of truth which has been greatly exaggerated and this is a problem you could have with all law, that is all law that involves the seeking of aims through general rules.

In the technical terms of this debate, law, or rule based law is both over and under inclusive. Let me explain with the example given by Fred Schur, a great legal philosopher in my view, who gave an example of why we have rules. Take the rule, no dogs in the restaurant. Here you have a clear purpose, it is thought that dogs are unclean beasts and produce lack of hygiene and so we have a rule no dogs, with perhaps the odd exception, guide dogs and so forth. Inevitably that is going to be over-inclusive, because some dogs are extremely clean and tidy. I wash my poodle every day and she is a good deal cleaner than my Uncle Jim. The rule is excluding dogs it should not exclude. On the other hand, there are many smellier and less hygienic creatures than dogs that are not, expressly at any rate, excluded. It is under-inclusive as a rule in relation to its purpose of dealing with hygiene in restaurants.

This will be true, it is argued, in relation to whatever objective you have in law and we are simply misleading ourselves if we think that any law can be precise in achieving its objectives.

We have, of course, to argue that it is nevertheless worthwhile having the rules, but I am making the point once more that justice is bound to be rough and ready. Moreover it is certain in this case, unless you combine your progressive taxation of a fairly severe sort with the capacity to use the funds in question to produce the sort of equality of opportunity in relation to health and education, then you have not got anything that could even begin to approximate to a system that is seeking to produce a basic equality which is modified primarily only by differences of desert, remembering of course that there are also other justifiable reasons for inequalities which have to be weighed.

I could say many other things here about why people have lost faith in government producing justice through rules. I have just given one example of that and clearly there are many more, including the argument that it is simply inefficient to do so.

I want to go on now to the other side of the argument. The converse of the anti-welfare state position is the Bill of Rights movement. This movement, which has been so successful in the last twenty or thirty years of the discourse of human rights, has perhaps all but displaced social justice. I do not know if you think that is true, but I think it is a very interesting ideological fact. We do not talk about social justice that much. We talk more about human rights and this goes with the assumption, very often, that to be in favour of human rights (and who could be against them?) means to be in favour of an entrenched bill of rights articulated and administered by courts and by law in the first sense. Now this is not as significant a feature of Australian politics, as it now is in almost all other developed countries. But there is a recent manifestation of it in the spasmodic development of implied rights on the basis of our constitution, a constitution that deliberately excluded a US-style bill of rights.

I now have in mind the string of free speech and defamation cases stemming from the case of Australian Capital Television[5] in establishing an implied right to freedom of political communication. Now while one might say that after the failure of the last referendum, on constitutional change, there is to some extent a re-emergence of the case for at least having a bill of rights. But it is still not a dominant thing in the Australian context as it is in most other parts of the developed world at this stage.

These human constitutional rights primarily identify with civil and political rights, and very frequently where they are adopted make much impact in areas of narrow legal justice, evidence of procedure and so on. Indeed the main business of juridified human rights very often seems to be the protection of accused and convicted persons against procedural failures in the criminal justice system, although there is a great deal of activity in other areas such as racial and general discrimination.

For many people, when civil and political rights take the stage, social and economic rights can and must follow. The same basic logic that justifies using courts to curb the capacity of governance to harm individuals, points to the need for courts to consider the deprivations of those minorities, the economic and social deprivations of those minorities who are left behind in the political system. In theory at least, international government and economic, social and cultural rights have the same standing, same status as the government and civil, political rights. It is certain that in principle, almost any of the traditional issues of social justice can be encompassed by an intolerably complete system of basic rights. Now Australia is somewhat backward in this respect in that it does not have a US-style bill of rights.

I shall conclude with the question: are we lucky on this matter or are we just left behind? Well, I think we are lucky. For a start there is simply no reliable method of impartial thought, reflective equilibrium, laws or integrity that can enable us to trust any elite group to get the right answer about what human rights mean in practice. The issues of disagreement about human rights are simply immense. What are these rights, apart from certain very abstract statements? When may they be overridden? What is the proper balance of right against right or right against social good in a democratic society? The most recent monumental attempt to answer such questions is the work referred to by John Rawls.[6] He set out to establish not just a method of determining what our basic natural rights are, but providing an outcome for that method. He comes up with some very nice conclusions; he says each person has an equal right to the most extensive total system of equal basic liberties.

What are equal basic liberties you ask? They are what all of us would want, whatever else we want. Now nobody has agreed with what we all want, whatever else we want. That is totally impossible, even if we are thinking of ourselves as being in his original position. Then he has another nice principle that social and economic inequalities are to be arranged so that they are both to the greatest benefit of the least advantaged and attached to offices and positions open to all, under conditions of equality of opportunity. The first one is indeed attractive but certainly not agreed. The greatest benefit of the least advantaged principle is only one part of, perhaps, a humanitarian view.

But as you will see, there can be no agreement about what even such principles can mean in practice let alone that these are the principles that we would adopt. According to Rawls, social contract methods and laws themselves have had to retreat into a colloquial claim about his theory being simply a means of attaining consensus in a US-style liberal democracy. All that is left is a method, which I do not think anyone who studied it would be happy to hand over to the judges and say: well, you are at an impasse, use the Rawls method and you will come up with something which will be uncontroversial for all right thinking persons! Could they be applied to the theories of Habermas and his ideal speech situation? He will not tell us what we are going to get out of that because he wants real dialogue, and of course we do not know what real dialogue is going to produce because it has produced it yet.

Similar points can certainly be made about the great guru of constitutionally protected human rights, Ronald Dworkin[7] who divines in the American legal system a commitment to what he calls equal concern and respect, which he gets to via a view of, or interpretation of, history. It is mainly US, mainly constitutional history about the judicial articulation of the great moral affirmations embodied in the US constitution and its cases as being the guide that we can safely follow against the political system. So yes, the idea of human equality, and the importance of liberty are powerful and important, but I do not think we can have any real agreement about what they mean in practice, to the point where we can safely hand over a set of human rights to courts and ask them to get on with it. There are great judges, but on the whole I have to say, I do not think judges are great enough, or could be great enough as human beings to face that task.

In conclusion, if you want to approach the question of “Can the Law Deliver Social Justice?” you first have to be clear about what sort of justice you want. Sorry about that, it is hard work, but you have got to do it. I suggest equality plus desert as a working idea. It is certainly one of the core ideas of a civilised society.

Then I suggest that we should continue to look to elective governments and democratic politics to turn these accepted social and political programs into something which is concrete enough to actually put into practice, and this should be done by enacting laws, general rules, and not by ad hoc administrative dictates and spending of funds.

Enacting laws cannot, I agree, directly address itself to substantive justice which reflects the particular merits of those involved, but it must be part of a system whose rationale and objective is social justice, in that sense which exhibits respect for the capacity of individuals to act responsibly and indeed the capacity of groups to do so as well.

And this is a system that is undermined, not strengthened, by moving towards the chimera of entrenched bills of rights as a solution to our problems of social justice. Yes, Australia is a lucky country not to have a bill of rights and I hope we continue that way.

[1] RM Unger, What Should Legal Analysis Become?, London, Verso, 1996 at 1.

[2] T Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights, London, Routledge & Kegan Paul, 1983.

[3] J Rawls, A Theory of Justice, Massachusetts, Belknap Press of Harvard University Press, 1971

[4] Mabo v. Queensland (No 2) (1992) 175 CLR 1.

[5] Australian Capital Television Pty Ltd v. Commonwealth [1992] HCA 45; (1992) 177 CLR 106.

[6] J Rawls, A Theory of Justice (revised edition), Oxford, Oxford University Press, 1999.

[7] RM Dworkin (ed), The Philosophy of Law, London, Oxford University Press, 1977.

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