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ERIC GHOSH[*]
This greater emphasis upon achieving just outcomes raises more acutely the question of how judges determine what justice requires, and the legitimacy of such determinations. It is in response to these concerns that Anthony Mason[7] have suggested that judges do not rely on their personal views concerning justice, but instead refer to community values. This understanding of the judicial role is manifest in judgments: the community’s “standards, their values, their circumstances are, to an unprecedented extent, being invoked directly to provide benchmarks of judgment in settling the shape, reach and application of individual rules and doctrines”.[9] In Mabo, for example, Brennan J (as he then was) suggested that a failure to recognise native title would be inconsistent with the contemporary values of the Australian people.[10]
Australian judges have not, however, come up with a novel understanding of their function. Indeed, it has been suggested that the most popular description by English judges of their role is the consensus model, in which judges limit themselves to community values.[11] This is also a significant approach in the United States.[12] It is not surprising that judges justify their decisions by claiming that they accord with the values of the community. In a democratic culture, being representative of the community is a source of political authority. Judges may feel that they can obtain legitimacy by deciding in accordance with community values, or at least by claiming that they are doing so. They are denied the legitimacy derived from democratic selection.
At the same time, though, judges are reluctant to equate community values with public opinion. Thus, Brennan J in Dietrich stated that the values judges rely on are not “the transient notions which emerge in reaction to a particular event” but are “the relatively permanent values of the Australian community”.[13] This finds a close echo in some English formulations.[14] It also bears similarity to the views of some American legal scholars. Wellington suggested that courts should refer to the moral ideals of the community, but should filter out “the prejudices and passions of the moment”.[15] Perry said that courts “should heed the basic moral principles to which social conventions subscribe and not discrete moral positions inconsistent with those principles”.[16] This refusal to equate community values with public opinion is also understandable: judges and legal scholars may regard public opinion on certain issues as less than enlightened. Often it is simply divided. If judges were restricted to changing the law only where this enjoyed community consensus, the progressive decisions which Mason and Brennan CJ support, such as Mabo, could not be made.
On the other hand, interpretations of community values which depart significantly from public opinion leave judges highly vulnerable to the charge that they are merely applying their personal views under the guise of community values, as Sadurski has demonstrated.[17] These interpretations position community values, quite problematically, between judges’ personal views and actual public opinion. However, the noted Australian criminologist, John Braithwaite, has proposed a conceptualisation of community values which attempts to give them an attractive and important place within judicial reasoning.[18] He suggests that we draw upon social psychology to distinguish community values from community attitudes. This frees judges from the constraints of majoritarian public opinion, since such opinion reflects community attitudes rather than values. He claims that it also allows judges to refer to community values in a way which improves judicial decision-making and enhances its legitimacy. While a distinction between general and particular principles underlies some other interpretations of community values, Braithwaite builds upon this distinction in an original way.
Braithwaite also suggests that the deliberative practices of judges should be modelled on republican dialogue. He refers here to “reconciliatory dialogue”, which is Frank Michelman’s model of judicial deliberation.[19] Michelman is one of several important American constitutional scholars who have drawn in the 1980s and 90s upon the political tradition of republicanism to support a leftleaning form of judicial activism.[20] Braithwaite’s reference to Michelman is welcome. Not only is judicial activism topical in Australia; so is republican political theory. Republican theory has been discussed here by legal/political theorists and interest in it has been sparked recently by the question of whether we should sever our ties with the British monarchy.[21] The Australian philosopher, Philip Pettit, has presented a republican understanding of liberty[22] and this provides the ethical basis for an important book on criminology.[23] Braithwaite suggests that it can be used to guide judges in cases where community values conflict.
The main purpose, though, of Braithwaite’s article is to propose an approach to community values. It is an approach which has serious difficulties, as Ziegert, Krygier and Glass indicate in their responses to his article.[24] In fact, a scent of absurdity hangs around it. Braithwaite says that judges should use certain surveys which indicate the values which almost all Australians agree with, as premises upon which they should construct their decisions. It is difficult to resist a smile as one visualises appellate judges sitting together, earnestly perusing their value surveys, in order to discover what implications values such as “allowing each individual to be treated as someone of worth”, “taking care to preserve your life and the life of others”, “having a mature understanding of life”, “having a world of beauty”, etc, have for the case under consideration.
Given this, why bother with an extended discussion of his model? While Braithwaite’s discussion of community values has seductive qualities, promising judges a path to legitimacy, which is broad, easy and soft to the feet,[25] even if we reconceive our judges in a republican spirit as less than Herculean,[26] it still seems that they are not in grave peril of succumbing to the false promise of Braithwaite’s value surveys. They do not need another critique to strengthen their resolve. Despite this, his model is worth revisiting: while it is flawed, it is provocative and imaginative. By considering community values, social psychology and Michelman’s approach to judicial deliberation together, we can come to a better understanding of the problems with the existing judicial practice of resorting to consensual community values while at the same time, exploring some larger questions.
My discussion differs in several respects from the critiques by Ziegert, Krygier and Glass. The main difference is that Michelman’s reconciliatory dialogue is used to assess Braithwaite (section 4). This has three advantages. Firstly, it points to additional difficulties with Braithwaite’s model. Secondly, Braithwaite uses his endorsement of republican deliberation to defend himself in his reply to the critiques.[27] It is by considering how reconciliatory dialogue fits with Braithwaite’s community values that one can best determine whether his reply is convincing. Thirdly, quite apart from its usefulness in assessing Braithwaite, reconciliatory dialogue merits attention. Another difference is that I try to indicate more clearly how the vagueness of community values poses a problem for Braithwaite (section 3B). A third difference is that I consider whether the strand of social psychology that Braithwaite relies on, supports his position (section 3C). Braithwaite partly attributes the failure of his critics to appreciate his argument to their lack of engagement with this tradition.
In section 2A, I provide some additional detail on Braithwaite’s and Michelman’s model. I present Michelman’s model in sub-sections B and C. In subsection D, I suggest that there is at least a superficial consistency between these models.
“CV” refers to consensual community values. This diagram gives a rather crude representation of the three elements of Braithwaite’s model. Perhaps the main omission is that I do not indicate that republican deliberation is to be used in deciding which consensual community values are relevant to a case and in balancing consensual values which when applied to a case, have conflicting implications.
Braithwaite says that a democratic grounding to judicial reasoning is provided if judgments are justified ultimately in terms of the laws enacted by a democratically elected parliament and community values.[28] While he believes that in the event of a conflict between legislation and community values, the former should take precedence, his main objective is to present an understanding of community values which suggests that these values should be a significant source of justification in judgments. He hopes that this will prompt a renovation of the law to bring it more in line with contemporary needs and aspirations.
However, community values only provide ultimate moral premises. Concerning the type of deliberative process judges should engage in, he wants them to be open to the diversity of ways of thinking in the community and to [11] engage in greater dialogue with their colleagues.[29] He refers here to Michelman’s reconciliatory dialogue, thereby inviting the reader to regard this as a model of the republican deliberation he seeks to encourage.[30] This second element of his model interlinks with community values: Braithwaite suggests that dialogue can assist judges to see the relevance of community values.[31] Braithwaite must also hope that judicial reference to community values could prompt reconciliatory dialogue: the aims of his approach to community values correspond with those of reconciliatory dialogue.[32]
Not only does reconciliatory dialogue provide the type of reasoning employed in interpreting community values; it is also used in considering which result maximises republican liberty. Braithwaite suggests that Pettit’s interpretation of republican liberty could assist judges in balancing community values which come into conflict when applied to a case. However, Braithwaite also refers to two other strategies for dealing with conflicting values.[33] The first is using empirical evidence on how ordinary citizens rank fundamental values. The second is using one value to suggest the applicability or weight of another value, for example, the rule of law suggests that happiness does not provide a justification for convicting an innocent person. However, the dependence of these two strategies upon community values means that I only refer to republican liberty as the third element of Braithwaite’s model – even if Braithwaite’s approach to community values is rejected, the question of whether republican liberty is an attractive substantive value for judges, remains.
Michelman’s model can also be divided into three elements. He uses republican theory for three purposes: to justify a model of deliberation which involves reconciling four themes, to defend judicial activism, and thirdly, to provide more pointed, substantive guidance in actual cases. However, my critique of Braithwaite only depends upon the four themes of reconciliatory dialogue and their associated activism. I merely touch upon Michelman’s political justification for activism.[34] Also, I do not evaluate Michelman’s four themes, either in terms of their substantive merits or how well they relate to republican theory. In applying Michelman’s model, I am assuming that it is broadly attractive. However, one can accept this, without necessarily agreeing with all aspects of Michelman’s four themes or indeed, without accepting that republican theory is the best theory in which to express and justify these themes.[35] In critiquing Braithwaite, I adopt an internal standpoint – I use the second element of Braithwaite’s model (Michelman’s reconciliatory dialogue) to assess its first element (community values). This is not, then, a radical critique which questions Braithwaite’s goals; instead, it suggests that Braithwaite fails to achieve his objectives.
The republican political tradition was taken up by some constitutional scholars because they felt that it provided an attractive vision of the American constitutional system, which contrasted with the dominant tradition of pluralism. The pluralist perspective sees American politics as characterised by groups of largely apathetic citizens who generally mobilise only to pursue their selfinterest. [36] Politicians also act to further their self-interest: they may, for instance, favour interest groups which promise to deliver them the most in campaign finance. Republicans are concerned that the dominance of self-interest ensures that political outcomes often satisfy powerful groups rather than the disadvantaged, or the community as a whole.[37] Against this, republican theory provides a captivating vision of citizens deliberating together as equals in pursuance of the public good. In a republican system, private preferences are not treated as given, as things to be accommodated through deal-making: instead, they are scrutinised to see whether they are consistent with the public good.[38] The public good is not understood as an objective entity – republicans do not state what it is, but they do regard it as something which can be best achieved by citizens with different perspectives, striving conscientiously together to reach the correct decision.[39] The republican ideal is consensus: the hope is that through deliberation, a position can be reached which all citizens can accept as a reasonable interpretation of the public good.
To outline briefly its history, republican political theory traces back to Renaissance Florence, with Machiavelli as the most important thinker. He drew upon classical Greek thought, in particular, Aristotle, who had provided an arresting, idealised depiction of the Athenian polis,[40] describing it as a system marked by liberty, where the citizens rule and are ruled in turn.[41] The historian, Pocock, suggests that Aristotelian thought was relied upon by thinkers such as Machiavelli, in order to escape the limitations of a customary community based on Christianity.[42] Instead of action being based on tradition and virtue being understood in Christian, apolitical terms, Machiavelli believed that only a community of active citizens dedicated to the common good can effectively respond to changing circumstances.
Republican theory took root in 17th Century England and from there, it was transplanted to America, providing the form of discourse used in the constitutional debates, which followed independence.[43] Michelman believes that republicanism has some presence in American constitutional history and its attractive aspects should be revived. He is not suggesting a radical democratisation of the American political system: he believes that it is difficult to locate the republican ideal of selfgovernment in the American people, given the problems of scale.[44] While Michelman suggests that politicians should behave in a republican manner, he nevertheless places greater faith in the judiciary – they are, to a substantial extent, divorced from the pluralist factors which infect the political process and unlike the public, they have the opportunity to deliberate fully on matters.[45]
Republican deliberation requires judges to be open and sensitive to different perspectives and to strive conscientiously to reach decisions which further the public good. This is not achieved by timidly deferring to majoritarian public opinion or to parliament. It may seem strange, though, how the republican ideal of popular self-government can justify judicial activism.[46] However, republican theory does not involve an unqualified endorsement of mass participation together with a naive optimism that such participation leads to civic virtue. Instead, it is also concerned with the fragility of civic virtue, with the frightening ease with which politics can degenerate into a ruthless pursuit of self-interest. I mentioned that Aristotle provided a depiction of direct democracy which was a source of inspiration for republican thinkers. However, Aristotle also suggested that where societies are divided into classes, pure democracy may be inappropriate, because the poorer, more numerous class might adopt policies which favour their class only rather than reaching a balanced accommodation with the interests of an aristocratic class. Such accommodation is more likely with a mixed constitution, in which different classes do not directly participate in government, but are represented in institutions, which distribute power amongst the classes.[47] For example, the Roman Constitution was interpreted by the Greek historian, Polybius, as a mixed constitution, with monarchic consuls checked by an aristocratic Senate, and the Senate checked by the democratic power of the people.[48]
However, instead of institutionalising different interests in different bodies, the classes can be represented in a single body consisting of members representing the different classes. Michelman suggests that the republican understanding of representation is virtual representation.[49] With virtual representation, you feel represented by someone not because you elect that person, but because that person is like you, in significant respects. That person may, for instance, be a member of your class, thereby giving this representative an understanding of your interests. The representative’s role is not to extract the best deal for his or her class, but to ensure that the class’ interests are properly taken into account in deliberations aimed at achieving the public good. Michelman suggests that we envision judges as our virtual representatives.[50] He does not elaborate on this, but presumably he is not suggesting that Americans look, for instance, at the Supreme Court to determine whether there is a judge who belongs to his or her class. Michelman must mean that we conceive of judges as a virtually representative body if they properly take into account our perspectives in striving to reach the best decision.[51]
(i) Reconciling Commonality and Individuality
Michelman elaborates upon what republican deliberation requires. He suggests that the notion of positive liberty, which is exercised by engaging in republican deliberation, makes demands on us which reflect conflicting aspects of our relationship with our communities.[52] On the one hand, there is ethical situation – an understanding of normative deliberation as a social process, based on commonality. This reflects an aspect of republican theory: it stresses our reliance on a community of shared meanings to provide us with our values. Thus in Renaissance Italy, republicanism was used to suggest an alternative to the Christian world view.[53] Instead of virtue being understood in an apolitical sense with individual Christians participating in a divine plan, virtue was conceptualised in political terms – values are the product of community interaction. On the other hand, there is individualism: the ability of individuals to reflect upon and obtain some distance from social roles and values. This is also a republican theme: the Enlightenment project contrasted with the unconscious acceptance of values and social roles which was seen as typifying customary societies.[54]
There is a tension between these aspects. Common values are necessary to create a sense of community, enabling interaction which has a chance of achieving some consensus on what the public good requires. At the same time, diversity is required if the community is to be challenged to assess current practices and deliberate carefully upon the common good. Deliberation, then involves both commonality and individuality. Michelman refers to several approaches including Habermas’ ideal speech situation and Rorty’s pragmatism, which try to reconcile these conflicting demands. He says that the themes of history, identity, responsibility and dialogue are common to these approaches.[55] Together, they constitute reconciliatory dialogue. By drawing on Habermas, Rorty and some intellectual movements currently popular in America, such as pragmatism, communitarianism, feminism and poststructuralism, Michelman gives a modern flavour to classical republican thought.
(ii) The Four Themes
The history theme points to history as part of the shared cultural understanding which provides us with a sense of ourselves and of our society. Our sense of identity provides, in turn, a basis for normative deliberation. In suggesting that judges should justify their decisions as interpretations of legal and historical material, Michelman turns to Dworkin.[56] With Dworkin’s “law as integrity”, law should be understood as if it is an unfolding narrative created by a single person expressing a coherent conception of justice. It is, of course, the work of diverse individuals, but judges should strive to interpret the law in a way which gives it the coherence one would expect if the law had a single author. In deciding between legal arguments, the judge should accept the argument which best contributes to the ongoing narrative, which best accords with the principles of justice which underlie the law, understood in its entirety and within its historical/political setting. Dworkin says that by adopting “law as integrity”, judges affirm the principled character of our community. In such a community, people “accept that they are governed by common principles, not just by rules hammered out in political compromise”.[57]
While history provides us with a sense of identity, Michelman mentions identity as a separate theme, to remind us of the conflicting demands of ethical situation and individualism. The theme of history stresses ethical situation.[58] However, our identity is not merely a product of history: we can distance ourselves to some extent from historical traditions which upon reflection, no longer appear attractive. Michelman’s third theme, responsibility, warns against the comforts of legal abstraction, hiding or overlooking actualities of social disadvantage. Instead of adopting a stance of helplessness in the face of legal doctrine, traditions etc, judges should accept that acting creatively is an option available to them and they must accept responsibility for the choices they make.
Michelman says that his dialogic theme expresses a vision of social choice being participatory, exploratory and persuasive rather than specialised, deductive, or demonstrative. This fits with his vision of judges being part of a community, contributing to public discussion rather than being seen as outside politics. Instead of judges adopting an authoritarian posture as experts declaring the law, Michelman posits a more egalitarian stance: judges, as members of the community, conscientiously reaching for the best decision. They do not attempt to foreclose disagreement or debate in the community through a tone of objectivity or elitism – instead, they honestly acknowledge the discretionary, value-laden character of their endeavour.
Perhaps a more potent way of foreclosing debate is to use a single case to formulate rigid general rules, that is, rules which determine how a broad range of cases should be decided. Michelman is not against the formulation of general rules: it is through formulating rules that we converse on what our commitments should be, and obtain some consistency in decision-making. However, Michelman cautions judges against overreaching and thereby foreclosing debate concerning cases which differ in significant respects from the case the judge is deciding. Judges should recognise the limitations of their knowledge and view their decisions as exploratory rather than definitive. Also, their decisions are made in a participatory spirit, not only in the way that judges place themselves within a wider interpretive community, but also with respect to their collegial relationships: he approves of judges who refer specifically to the arguments made by other judges sitting on the case, rather than making self-contained pronouncements.[59] With this theme, Michelman feels he departs from Dworkin: Dworkin’s mythic judge, Hercules, is the heroic individual who single-handedly constructs the nation’s traditions into an attractive whole.[60] Michelman’s judge is simply a member of an interpretive community, adding to republican conversation. Finally, Michelman includes openness to otherness, within his dialogic theme. He sees this “as a way towards recognition not only of the other, but also of oneself”.[61] Reconciliatory dialogue, then, involves judges conceiving of themselves as our virtual representatives, making decisions which reflect a sensitivity to conflicting aspects of our identity and a willingness to engage in some activism. I will now explain how Braithwaite’s approach to community values appears to further reconciliatory dialogue.
D. Braithwaite’s Community Values
Mason and Brennan CJ suggest that progressive decision-making is based on community values, not the judges’ personal values. By attempting to place judicial reference to community values on a sound theoretical footing, Braithwaite is supporting a practice which is associated with and is used to defend judicial activism.[62] He seems, then, to be promoting the responsibility theme of reconciliatory dialogue: instead of adopting a stance of helplessness in the face of the law, judges should recognise that they have a choice to respond creatively to community needs and should take responsibility for the choices they make. Mason also associates progressive decision-making with open acknowledgment of the competing policy considerations which are at stake.[63] He contrasts this with a formalist style of legal reasoning, which presents legal conclusions as if they follow in a logical, deductive manner from precedent. In defending this type of decision-making, Braithwaite also seems to be promoting Michelman’s dialogic theme, with its endorsement of openness. Furthermore, Braithwaite attempts to place a democratic stamp upon progressive judicial decisions by suggesting that they are based on the community’s own values. Similarly, Michelman seeks to support judicial activism by connecting it with the democratic value of citizens deliberating upon the public good.
Braithwaite’s conceptualisation of community values relies on distinguishing them from community attitudes. Drawing on the work of the influential social psychologist, Milton Rokeach,[64] he says that an attitude is a set of beliefs about a specific object or situation (for example, slavery) while a value “lifts us above attitudes about specific objects and situations, to more ultimate goals that affect how we should judge a wide sweep of objects and situations” (for example, happiness or human dignity).[65] There are only a limited number of values because they tend to be standards grounded in a finite number of universal human needs. Braithwaite states that empirical research on the guiding principles of people’s lives indicates that most values are characterised by high consensus both internationally and in Australia. He relies on a value survey conducted by Valerie Braithwaite. Values which attracted a consensus of 98 percent or more included human dignity (allowing each individual to be treated as someone of worth), equal opportunity for all (giving everyone an equal chance in life) and the rule of law (punishing the guilty and protecting the innocent). John Braithwaite regards values not rejected by more than ten percent of the sample as values attracting consensus in the Australian community.[66]
Braithwaite states that those who accept that moral truth exists, even if they have widely differing accounts of it, can accept that it is more likely to reside in community values than in community attitudes.[67] One reason for this is that attitudes are more dominated by distorting factors such as self-interest or prejudice. He says:
Across a range of situations, people acquire an appreciation of the value of equal respect, partly through personal experiences of unequal respect in a number of those situations. However, when it comes to a specific object – say, Aborigines – particular histories of dominating practices in a person’s life distort the moral truth of equal respect ....While attitudes within Australia are racist, patriarchal, homophobic and bigoted in a great variety of ways, the consensus Australian values listed in [the value survey] ... are not.[68]
His distinction between community values and attitudes cautions judges against taking a deferential approach to public opinion. Like Michelman, Braithwaite supports judges’ freedom to make decisions which are ahead of public opinion.[69] Furthermore, Braithwaite’s belief that values are purer than attitudes seems to resonate with the republican suggestion that principles which are concerned with the good of society as a whole should take precedence over principles derived from a narrower perspective. Braithwaite also displays some awareness of the limitations of his consensual community values. Anticipating the criticism that the values are so obvious and general as to offer little guidance to judges, Braithwaite suggests that they only provide initial premises for judicial deliberation; they do not determine results.[70] The determination of results in cases should be based on rich deliberation where a plurality of community attitudes, interpretive principles and empirical data is available to inform the dialogue.[71] Before considering whether this appearance of harmony between Braithwaite’s community values and reconciliatory dialogue withstands scrutiny, some exploration of the relationship between values and attitudes is necessary. It is required not only in order to evaluate Braithwaite’s approach but is also relevant to the judicial practice of referring to consensual community values. Braithwaite’s association of consensual community values with general rather than particular moral principles is not novel, as indicated earlier.[72]
The responses following Braithwaite’s article argue that the general principles or values which Braithwaite relies on, are unhelpful.[73] Thus, Krygier and Glass state that cases turn not on whether judges can consider certain values, but instead involve disputes on how to apply these values – a knowledge of general values does not take us far in resolving disputes.[74] One of the reasons Brennan J gave for rejecting the line of authority which suggested that the common law did not recognise native title, was that this position was inconsistent with the contemporary values of the Australian people.[76] Consulting the value survey, it would seem that one of the values relevant to Mabo is equality of opportunity. However, to know that 98 percent of the sample in Valerie Braithwaite’s value survey believe in equality of opportunity does not take us far in resolving the case, partly because the phrase “equality of opportunity” leaves undetermined who is owed equality, what goods it applies to, what concept of equality is used, and fourthly, what weight the equality principle has.
Elaborating upon these four indeterminacies, some people may feel that Aborigines are not owed equality of opportunity because they are likely to waste any opportunities they are given. Secondly, the principle of equality can be applied in an assimilationist way: Aborigines should have an equal opportunity to pursue the good life, which is a Western lifestyle with no attachment to indigenous traditions. Thirdly, even if the good life is understood to include a plurality of lifestyles, equality can be interpreted in a formal sense: if Aborigines wish to live on or conduct activities upon particular land, they may do so if they purchase these entitlements. Alternatively, equality can be understood in a substantive sense, by taking into account distinctive characteristics of Aborigines, for example, they were the original occupants of this land and their present situation is such that to expect them to purchase traditional rights is unfair. Finally, people may agree that equality requires recognition of native title, but nevertheless oppose native title because they feel it is inconsistent with the more important value of maximising national wealth.
In summary, the fact that almost all people support equality of opportunity gives us no guidance in deciding whether native title should be recognised or not. That equality of opportunity can mean different things to different people is not only possible, but likely in modern societies. As Ziegert says, this multiplicity of perspectives stems from the diversity and complexity of the contexts of individual human development.[77] Nevertheless, there may be broad agreement that equality of opportunity is a positive value. The diversity in the community is reflected not in people accepting or rejecting the value, but in interpreting the value in different ways.
Braithwaite would claim that he is aware of the vagueness of the values he lists. He relies on their vagueness to suggest how judges can refer to them, without being overly constrained by the beliefs actually prevalent in the community. Relating this to Mabo, a problem with Brennan J’s assertion of consistency between recognising native title and Australian values, was that the public reaction to the decision was characterised by dissensus.[78] Some people probably believed that granting Aborigines native title rights was giving them more than they deserve. Braithwaite would argue that Brennan J’s statement still stands because this opposition can be attributed to community attitudes rather than values.
Braithwaite also indicates that he is aware of arguments which stress the importance of attitudes rather than values. He refers to a substantial article on community values in which Sadurski states that “it is not the case that people agree about the fundamental principles while disagreeing about some other, less basic values [read ‘attitudes’]”.[79] Sadurski says that the specific attitudes are “the proper test of what one means by the general principle... it is not that they may follow from the principle under certain interpretation, but rather they are constitutive of it”.[80] Braithwaite suggests that this approach undermines the distinction between values and attitudes, a distinction which has analytic and normative advantages. I assume that Braithwaite means that the distinction is useful in describing moral reasoning (an analytic advantage) and in helping us to engage in “better” moral reasoning (a normative advantage). However, Sadurski’s endorsement of Rawls’ reflective equilibrium indicates that he accepts that a distinction between values and attitudes has these advantages.[81] It is worth considering these because they indicate some points at which Braithwaite has gone wrong.
Reflective equilibrium suggests that moral reasoning involves reference, backwards and forwards, between general principles (similar to Braithwaite’s values) and particular moral judgments (Braithwaite’s attitudes). We may formulate some general principles in order to explain particular moral judgments that we make. Conversely, we may draw on general principles to formulate views on particular issues. In this way, we attempt to obtain a system of beliefs which is internally consistent and attractive. Our attitudes inform our values and our values inform our attitudes.
Sadurski’s statement that attitudes are constitutive of values, might appear to ignore the role of general principles in shaping our attitudes. It might suggest that general principles are merely labels which we place upon sets of attitudes. However, Sadurski is simply pointing out that a survey which indicates consensual support for a value can be misleading. Suppose a survey indicates a consensus in favour of freedom of speech, but at the same time, many people do not accept the right of others to make speeches against religion. Suppose further that we feel that the right to make anti-religion speeches is an essential ingredient of freedom of speech, that it is partly constitutive of freedom of speech. We would then deny that there is a consensus in favour of freedom of speech, despite the fact that most people claim to support this freedom. We can still accept that general principles are useful in moral reasoning. If someone supports the freedom to make speeches in favour of particular religions but not against religion, we might persuade that person that the freedom that they do support has a rationale which encompasses a general principle favouring freedom of speech. Once this general principle is accepted, we could suggest that an intolerant attitude towards anti-religion speeches is inconsistent with this. While that person may not agree, the construction and defence of general principles here might lead, at least, to some clarification of and reflection upon moral beliefs.
While reflective equilibrium suggests that general principles help us to achieve greater consistency in our beliefs and thereby engage in better moral reasoning, it does not suggest that values are “purer” than attitudes. Braithwaite says that because values are more abstract than attitudes, values are less likely to be distorted by the prejudices that people bring to specific objects: people may agree with equality of opportunity in the abstract, but prejudices may prevent them applying the principle to a particular group, such as Aborigines. However, what if the withdrawal of benefits from Aborigines is central to what some people mean when they espouse equality of opportunity? In the light of Pauline Hanson justifying her highly publicised opposition to various benefits being provided to Aborigines on the grounds of equality, this is a plausible stance.[82] In this case, attitudes which Braithwaite would regard as prejudiced are inextricably bound up with support for a general principle.
On the other hand, considering general principles may induce some people to consider what is best for society as a whole. The problem, though, is that the value survey gives us no indication of what people have in mind, when they approve these principles. Some people may be considering impure factors;[83] others may have neither pure nor impure considerations in mind but might simply react to the values on the basis that they have vague, positive associations. Even if community support for equality did represent purer considerations, this has limited significance unless it translates into a shared commitment on how that principle applies to, say, native title. It would be dishonest to use people’s support for equality of opportunity to suggest consensus in favour of native title if those people do not in fact support this implication. It might be argued that if it was not for people’s prejudices against Aborigines, people would agree that equality does require the recognition of native title. However, there is unlikely to be a consensus on whether certain attitudes towards Aborigines are prejudiced or reasonable. If judges determine what is prejudiced and what is not, then what in effect is being said, is that if opponents of native title did not have views which the judges find unjustifiable, then those opponents would have agreed with the judges. This is obviously not very helpful.
To sum up this section so far, I began by elaborating on Krygier and Glass’ and Ziegert’s point that Braithwaite’s community values are susceptible to many interpretations. I then mentioned that Braithwaite is aware of this and in fact relies on this to suggest that judges have considerable freedom to depart from public opinion while still referring to community values. This sub-section has suggested that vagueness does pose a problem for Braithwaite’s claim that values are likely to be purer than attitudes. Also, even if values are purer, it is unclear what significance a consensus on them has, unless it translates into a consensus on particular issues. This does not involve denying that the value/attitude distinction has analytic and normative advantages. Braithwaite might, however, argue that by failing to consider the insights into values provided by Rokeach and other social psychologists, I have also failed to appreciate the importance of values. In his reply to his critics, he says that:
Decades of psychological research demonstrate that values do behave in systematically different ways from attitudes. Neither critique really engages with the difference between attitudes and values as articulated by the psychological research tradition.[84]
I will now consider whether this tradition supports Braithwaite.
(i) The Value Survey
In suggesting that social psychologists make a distinction between values and attitudes, Rokeach was reacting against mainstream cognitive social psychology which focused on attitudes in explaining behaviour.[85] Rokeach argued that this ignored the centrality of values in our belief systems: only a few dozen values encompass all the general standards that we use in determining our attitudes and actions. By contrast, attitudes are highly particular: we may not only have attitudes for each object we encounter, but our attitudes towards an object may vary depending upon the situation in which it is encountered. Thus, while some white people may hold favourable attitudes towards blacks as athletes or entertainers, they may not react favourably to the possibility of a black family moving in next door.[86]
Rokeach used a value survey in which respondents had to rank two lists of 18 values in order of importance. One list consisted of instrumental values, the other of terminal values. Terminal values concern desired end-states, for example, a comfortable life, a world at peace and equality.[87] Instrumental values contain modes of behaviour which are instrumental to the attainment of these end-states: they include being ambitious, cheerful and clean. The value survey can indicate similarities and differences between groups.[88] Drawing on a national sample of American adults conducted in 1968, he found that men placed a higher value upon a sense of accomplishment while women placed greater importance upon a world at peace. Furthermore, Rokeach found that different attitudes correlated with different rankings of values. Racist attitudes, for instance, correlated with ranking equality low and cleanliness high.
However, he does not claim that we can determine people’s attitudes precisely using the value survey: it is only “predictive of various kinds of gross behaviors”.[89] Nevertheless, he felt that his value survey provides a powerful and economical instrument for researching people’s belief systems: it is easy to administer and to complete, so it can be feasibly given to a broad sample of the population, unlike attitude surveys which are typically long and complex.[90]
The value survey has proved to be a popular tool for social researchers. Braithwaite seems to be implying that in dismissing his approach, his critics are oblivious to this research. If the value surveys are as useless as his critics suggest, why are they so popular? However, there is a critical difference between the way Braithwaite and social psychologists use the value survey: social psychologists are generally concerned with the relative importance of particular values, unlike Braithwaite. Rokeach elicits this information from respondents by requiring them to rank values, while some other researchers, including Valerie Braithwaite, have preferred a ratings system.[91] Her survey prompted respondents to choose between seven response categories spanning rejection to accepting a principle as of “the greatest importance” in guiding the respondent’s judgments and actions. Acceptance was itself divided into four levels, but in John Braithwaite’s presentation of her survey, they are all combined into one acceptance category, with the only two other categories being “reject” and “neither reject nor accept”.
This reduces the element of differentiation which is so central to the value survey. Rokeach regarded his relative conception of values as a major distinguishing feature of his approach to values.[92] He suggested that while the values contained in his survey are universal, individuals and cultures differ in how they rank these values.[93] Knowing that people support a value such as equality does not enable us to predict their attitudes and behaviour – prediction only becomes possible when we consider their support for equality relative to other values. By removing this source of cultural differentiation, John Braithwaite’s list can be more aptly described as displaying world community rather than Australian community values. This is a problem for Braithwaite, since these community values are supposed to connect the judiciary with the Australian community, and thereby bolster the legitimacy of our courts.[94]
Braithwaite does envisage the possibility of judges considering how Australians rank the values as one of three strategies for dealing with community values which conflict in their application to a particular case.[95] However, it is difficult to imagine a case where community values cannot be seen to pull in different directions. Why then, does Braithwaite not propose that judges use a value survey containing rankings, instead of suggesting that it may be used, along with other strategies, where appropriate? Perhaps the reason is that once we consider how Australians rank the values, we get closer to their attitudes: the ranking of values is supposed to allow for some prediction of attitudes. Once we consider rankings, the appearance of consensus could evaporate: our community might split, for instance, on the relative importance of liberty and equality. Worse still, it may indicate that the average ranking of equality is low or has slipped.[96] This information is not likely to encourage judges to take a stance in favour of a substantive conception of equality. It is not surprising, then, that Braithwaite assigns a rather uncertain role to value rankings in his model – the predominant use for the value survey is without rankings. He thereby uses the value survey in a markedly different way from social psychologists.
(ii) Value Self-Confrontation
However, Braithwaite’s view that judges should justify their decisions by reference to values seems to receive support from Rokeach. I mentioned that Rokeach believes that values determine attitudes and behaviour. He argues that changing values is the best way to achieve enduring changes in attitudes.[97] This suggests that judgments might be more persuasive if they involve attempts to change values. It is worth considering, then, Rokeach’s views on value and attitudinal change.
Rokeach says that the ultimate purpose of our belief system is to maintain and enhance our self-conception. We want to perceive ourselves and want to be perceived, as moral and competent.[98] Our self-conception is the most central aspect of our belief system – it is activated in virtually every situation we find ourselves in, since we routinely judge our performance for its bearing on our identity. The next most important aspect of our belief system is our values: as our guiding standards, they are closely associated with our identity. Below values lie attitudes and behaviour. These are all related, so that a change in self-conception should lead to changes in values and in related attitudes and behaviour. The more central the aspect of our belief system changed, the more enduring and far-reaching should be its effects on other aspects of our belief system and our behaviour.
Rokeach tested some of his ideas with his “value self-confrontation” exercise. This involved a pretest in which the experimental and the control group filled out a questionnaire measuring attitudes towards equal rights for blacks and for people in general.[99] A week later, students completed the value survey. The experimenter then pointed out to the experimental group only that a previous group of students who did the exercise had on average, ranked freedom first but equality only sixth: this suggested that those students were much more interested in their own freedom than in the freedom of others. This was confirmed by the fact that students who ranked equality low were least sympathetic to the aims of civil rights demonstrators. The experimental group was then encouraged to reflect upon the rankings they gave to the values. Through posttests, Rokeach found that there were significant changes, for example, those who ranked equality low and registered anti-black attitudes, ranked equality higher in the first posttest. A change in attitudes towards a pro-black position was manifested to a greater extent in the second posttest. Rokeach suggests that this lag probably indicates that value change preceded attitudinal change.[100] Rokeach also found some behavioural changes in a direction sympathetic to minority groups. Significantly more students from the experimental than the control group responded favourably to a letter sent three to five months after the experimental session, asking them to join the “National Association for the Advancement of Colored People”.[101] Significantly more students from the experimental group had changed their academic major to one concerned with problems of ethnic minorities, within two years of the experimental session. Rokeach attributes these changes to the experimental session. It was designed to create dissatisfaction in students who ranked equality low and had anti-black attitudes, by suggesting that these students were selfish. This would motivate changes in values and then attitudes and behaviour. Rokeach is not suggesting that value self-confrontation can be used to manipulate change in any direction. The control group also changed its attitudes in the posttests, in a direction favourable to blacks though to a lesser extent than the experimental group: this may have been induced by the liberal environment of American universities in the late 60s.[102] Clearly, if students, on reflection, preferred a racist self-conception, less racist attitudes and behaviour could not be expected.
Assuming that Rokeach’s analysis is correct, what implications does this have for judicial reference to community values in Mabo? To the extent that there are social pressures to avoid a racist identity, it might suggest that judges have a better chance of obtaining enduring support for native title and at the same time, other decisions they have or will make favouring disadvantaged groups, if they do not discuss native title as if it is only a technical legal question, but instead, relate it to relevant values which are in turn, connected to self-perception. Indeed, Michelman, with his themes of history and identity, also regards values and questions of identity as highly important in moral reasoning[103] and this approach is evident in practice. Deane and Gaudron JJ’s comments in Mabo that our nation as a whole must remain diminished until there is an acknowledgment of and a retreat from the injustices involved in the dispossession of Aborigines, is clearly an appeal to the community’s sense of justice and also its identity.[104] So too was former Prime Minister Paul Keating’s statement that coming to grips with Aboriginal ownership presented a defining moment for our nation: “There is no more basic test of how seriously we mean... that Australia is a first rate social democracy, that we are what we should be – truly the land of the fair go”.[105]
However, Rokeach makes claims about the importance of values in promoting attitudinal and behavioural change which are inflated. As a whole, subsequent studies show that value self-confrontation is very effective in inducing change in the way respondents rank values, is somewhat less effective in changing attitudes and considerably less effective in modifying behaviour.[106] To the extent that value self-confrontation did induce attitudinal and behavioural change, the change was not to attitudes and behaviour generally associated with the values which underwent change, but instead only to attitudes and behaviour directly implicated by the experiment. Thus, one study which also used black-white relations as the equality issue, found some changes in attitudes towards blacks, but not in attitudes towards women.[107] We cannot, then, expect that successfully appealing to the community to value equality highly in the context of native title, will lead to the community engaging in some general appraisal of their attitudes towards other equality issues. There is no firm evidence to suggest that appealing to values and self-perception is the most effective way to achieve enduring change to attitudes, rather than simply, an effective way.[108]
While Braithwaite suggests that by ignoring social psychology, the critics of his paper failed to appreciate the importance of values and hence his own approach, Braithwaite uses the value survey quite differently from social psychologists. Nevertheless, Braithwaite’s reference to social psychology does at least alert readers to the fact that substantial research has been done by social psychologists on moral reasoning. While Rokeach makes inflated claims concerning values, his analysis does raise the question of whether judges could perhaps tie legal issues more often to values and self-perceptions.
In the next section, I apply Michelman’s themes of responsibility, dialogue, history and identity to Braithwaite’s approach and the judicial practice of referring to consensual community values.
I suggested in section 2B that Michelman wants judges to model themselves on republican discourse: they should be open to multiple perspectives in their deliberations upon the public good. Judges enjoy distinct advantages in following republican dialogue: unlike the public, they have the opportunity to deliberate at length on matters and unlike politicians, they are largely removed from pluralist pressures. Judges should not, then, be overly deferential to public opinion or to parliament.
Braithwaite’s distinction between values and attitudes is also aimed at avoiding such deference. However, Braithwaite’s distinction contrasts generality with particularity, rather than distinguishing between norms which are accepted after republican deliberation, as opposed to self-interested preferences which people hold unreflectively. While it is understandable why norms which emerge from republican discussion should enjoy a privileged status over norms which have not, it is unclear why values should be privileged over attitudes. While Braithwaite sees abstraction as distancing us from prejudice and self-interest, Michelman reminds us with his responsibility theme that abstraction can distance us from instances of social disadvantage and thereby help us to avoid accepting responsibility for the consequences of the decisions we make.[109] I have mentioned that people’s prejudices against Aborigines may be inextricably bound up with their support for equality of opportunity – they may support this principle partly to register disapproval of the special benefits they believe Aborigines receive. Furthermore, even if in approving general principles, people’s concerns were averted from particular prejudices and directed towards what is best for society as a whole, this has limited significance.[110] However, we can now point to an additional problem: in approving equality of opportunity, people may have a formal conception of equality in mind, not in order to strip Aborigines of benefits, but because they fail to consider how this principle would affect Aborigines. This problem can be avoided with contextualised reasoning, where one tries to reach an appropriate result given the particular factors implicated by that situation, without claiming that the result reached is appropriate for a broad class of cases. Instead of the distancing involved with abstraction, absorption in particulars can promote “better”, empathetic understandings. Michelman, however, suggests that the need for contextualised reasoning must be reconciled with the need for rules.[111] Braithwaite’s privileging of general principles is inconsistent with this reconciliation.
On the other hand, in applying community values to a particular dispute, Braithwaite favours reasoning which is contextual.[112] He might argue that while abstraction may lead judges to favour a formal conception of equality, when they apply this in a particular case, they may discover it is inappropriate and adopt instead a substantive conception. However, this does not counter the criticism that at the conceptual level, his distinction between values and attitudes privileges abstract principles, rather than achieving a balanced appreciation of generality and contextuality. It simply suggests that this conceptual problem will not lead in practice to difficulties, because any privileging of abstract principles which flows from using community values as the premises of one’s argument will be neutralised by reasoning which is contextual. The existence of a conceptual problem, though, is not one which Braithwaite can dismiss easily – he aims to provide an attractive conceptualisation of community values which would justify judicial reference to them. To view community values as purer than attitudes and therefore a sound foundation for judicial deliberation is misconceived.
(i) Community Values and Diversity
Turning to the dialogic theme, Michelman favours a deliberative process which demonstrates a sensitivity to the diversity of beliefs and perspectives in the community.[113] This raises the question of whether Braithwaite’s community values could lead judges to demonstrate greater sensitivity to diversity. I have suggested that Braithwaite’s claim that community values represent the purer moral positions of the community, about which there is a consensus, ignores those understandings of the values which are tied to impure considerations.[114] It thereby downplays diversity. However, in now considering the value survey, I ignore his claim that values are purer: Braithwaite says that one can accept that community values ought to ground judicial deliberation without accepting this claim.[115] The alternative rationale he offers for referring to community values also downplays diversity, but I set this aside as well – I discuss it in the next sub-section.
How can the value survey assist in recognising the perspectives which exist in the community? Clearly, the community’s different interpretations of values such as equality of opportunity, cannot be simply read off.[116] Instead, when a judge sees this value in the survey, that judge will apply his or her own understanding of how equality can be interpreted. The value survey cannot communicate community beliefs to an out-of-touch judge, but only to a judge who is already in touch. Braithwaite would not deny this. He might suggest, though, that the survey could remind judges about community beliefs they already know about or more importantly, prompt them to discuss community values with others and thereby discover perspectives not previously considered. However, if judges deciding Mabo are concerned about relevant policy considerations and discuss these amongst themselves, it is difficult to imagine what additional considerations would be prompted, by consulting the value survey. They would surely realise that the value of equality is relevant to the case without the survey. If the judges are not concerned with policy considerations, it is unclear how the value surveys could trigger interest in them. Indeed, due to the motherhood nature of the values, the formalist judge may find the value survey rather amusing, confirming the judge’s view that there is nothing relevant for judges outside legal material. It is difficult to conceive of a role for the value survey in prompting an awareness of additional policy considerations in judges who are interested in such considerations or in prompting an interest in policy factors in judges who are formalists.
(ii) Community Values: Connecting the Judiciary to the People
If Braithwaite’s community values did prompt an awareness of the diversity of perspectives in the community, this would provide a connection between the judiciary and the people. However, Braithwaite sees community values as also establishing other links between judges and the community. He suggests that by drawing on community values, the judges obtain a democratic foundation for their decisions: by following Australian community values, judges refer directly to the authority of the Australian people.[117] He also says that this can provide a rationale for reference to community values if his claim about values being purer than attitudes is not accepted:
... one can justify values-grounding and reject attitudes-grounding because of the empirical evidence that the people can agree on their values but not on their attitudes (combined perhaps with some view that the people should ultimately be sovereign in a democracy).[118]
For this democratic foundation to be a meaningful one, it surely must constrain judges to a significant extent. Indeed, Braithwaite says:
The straightforward option for implementing judicial responsiveness to community values would be simply for judges to discipline themselves to reason from values that empirical research shows to be consensually shared in the Australian community, just as they discipline themselves to reason from the law.[119]
It is true that consensual beliefs in the community provide a constraint upon judicial deliberation. By virtue of their membership of our community, judges have a sense of what arguments step outside the confines of what is acceptable. Such arguments do not occur to them or alternatively, they avoid them: to do otherwise would risk their credibility and possibly the legitimacy of their court. This is different from saying that judges know what the community agrees on: studies suggest that people tend to overestimate the extent to which their personal values are shared.[120] However, we all have perceptions as to what arguments are acceptable and to the extent to which we share these perceptions, we can say that community values constrain argument. Without these constraints, the issues to be decided and the options which need to be considered, would be unmanageable. Also, the possibility of achieving acceptance of decisions would be much diminished. As Michelman says, republican deliberation requires recognition of our commonality and our differences.[121] With Mabo, we might suspect that there is a consensus that Aborigines should enjoy equality of opportunity, at least in a formal sense, to pursue legal claims. Thus, it is probably inconsistent with community values to deny Aborigines standing (ie, access to the courts) because they are Aboriginal. In this way, the range of possible arguments is limited. However, whether there is indeed a consensus on Aborigines being entitled to standing is not something on which value surveys can provide assistance. While Braithwaite implies to the contrary, it is difficult to see how the value survey could provide additional constraints upon judges. By giving the impression that community values constrain judges to a greater extent than they do, Braithwaite understates diversity.
However, Braithwaite also suggests another way in which community values can connect the people to the judiciary. He says that while legislators are ultimately accountable to the people for the way they conduct their deliberations through the ballot box, judges cannot be, if their independence is to be assured.[122] He says:
Nevertheless, an accountability problem remains when judges apply moral precepts to resolve the indeterminacies in the law. A way to solve it is for judges to conduct their deliberation in ways that require them to justify decisions ... in terms of community values... .[123]
Legislators, then, are accountable to the people in the sense that the people control them, through the ballot box. Judges, on the other hand, are accountable to the people, not because the people control them, but because judges must account to the people through justifying their decisions to them by reference to their values.[124] Presumably, Braithwaite feels that by referring to the community’s values, judges can defend their decisions in terms which are meaningful to the community and thereby account to the people. Braithwaite is relying here not on the value surveys constraining judges to certain arguments, but instead hoping that the surveys can assist judges in communicating with the community.[125] However, it seems to me that it is only if community values prompt judges to relate cases to the most relevant perspectives in the community and explain clearly why one perspective is preferred over another (ie, Michelman’s dialogic theme), that community values will help judges to communicate with the community. As explained in the previous sub-section, the value survey is not helpful in assisting judges to recognise the diversity of relevant perspectives. The value survey, therefore, has little role to play in judges accounting to the community.
It might be argued, though, that my emphasis on recognising diversity ignores the role that judges should play and perhaps are expected to play in reinforcing the community’s sense of commonality. This may require being less than open about the extent of diversity. It is arguable that Michelman’s history theme permits this. The question of whether the history theme can support the use of community values in a way which exaggerates the extent of consensus in our community is not only relevant to Braithwaite’s approach but also judges’ approach to community values: judicial reference to them, such as Brennan J’s in Mabo, often exaggerates consensus.
(i) Constructive Interpretation of History
I mentioned earlier that Michelman adopts Dworkin’s approach to legal reasoning, in which judges accept legal arguments which best fit with the principles of justice which underlie the entire body of law, understood within its historical and political setting.[126] This body of law should be interpreted in its best light so that one can discern attractive principles of justice from it. This approach fits well with Michelman’s emphasis on history as an important aspect of our identity, an identity which in turn, informs moral reasoning.
However, Dworkin’s approach seems at odds with transparency in reasoning: it suggests ignoring negatives in favour of positives. Dworkin interprets American constitutional history as a gradual and not always coherent movement towards the realisation of egalitarian principles. He is able to interpret American constitutional history and texts in a positive light, as a working out of liberal philosophy, partly through use of a distinction between concepts and conceptions. The framers of the Constitution, in using terms such as liberty, were not intending to compel a particular interpretation of these terms, but instead, were referring to general concepts amenable to different interpretations at different times.[127] Past interpretations can be seen as attempts to reach the best understanding of principles such as liberty, attempts which may not always have been successful, from our perspective.
Derrick Bell, on the other hand, sees American constitutional history as a history of granting “just enough equality” to comply with international opinion and assuage the anger of oppressed groups while maintaining the privileges of the white majority.[128] If American judges are required to formulate legal rules which reflect their conception of America’s constitutional tradition, we would want them to adopt Dworkin’s rather than Bell’s interpretation, regardless of which interpretation they felt was closer to the truth. Furthermore, if they felt that Bell’s interpretation was in fact closer to the truth, it may be better for them not to acknowledge this. Otherwise, people may regard a Dworkinian interpretation of history as merely providing a rationalisation for judicial decisions already made, rather than genuinely providing a grounding for the making of decisions. This would seem to suggest that some strategic reasoning might need to be accommodated within Michelman’s history theme.[129]
Since Michelman does not acknowledge that his theme of history might entail some strategic reasoning, it is not surprising that he offers no guidance on how this sits with his dialogic theme. One possibility is to privilege the dialogic theme and say that strategic reasoning should only be permitted to the extent to which it does not challenge openness as a dominant characteristic of reconciliatory dialogue. Michelman’s identity theme is useful here.[130] This theme reminds us that our identity is not only dependent upon tradition, but also involves individualism: it involves reflection upon traditions and rejection of those we find unattractive. Where we face a tradition which is so unattractive that it is only with considerable “creativity” that we can render it into a form which provides a basis for enlightened principles, rather than attempting this exercise with the deception that this entails, we should simply acknowledge that the tradition is unattractive, and we need to depart from it. On the other hand, a model which accepts some strategic reasoning, so long it is not “too much” seems less than appealing. Indeed, Cornell suggests that Michelman is, implicitly, concerned to avoid Dworkin’s “pretending”.[131] Whether strategic reasoning is implied by Michelman’s history theme need not be resolved here: the next sub-section suggests that even if it is implied, Michelman’s model still fails to support Braithwaite’s approach to community values. I deal with two aspects of the history theme: Dworkin’s concept/conception distinction and its possible downplaying of diversity.
(ii) Does History Support Community Values?
Turning to the first aspect, some parallels can be drawn between Dworkin’s approach to past traditions and Braithwaite’s approach to community values. Just as Dworkin attempts to show how reliance on history can nevertheless permit progressive decisions, Braithwaite attempts the same with community values. While Dworkin relies on a distinction between concepts and conceptions in order to allow judges to escape the strictures of the actual beliefs that people held in the past, Braithwaite suggests a distinction between values and attitudes to enable judges to escape the confines of beliefs presently held. We can regard past and present community attitudes as provisional attempts to express correct understandings of concepts such as liberty. In each case, judges should feel free to regard these attempts as less than successful and endeavour to substitute a better understanding. Just as Dworkin suggests that the framers of the United States Constitution, by referring to values such as liberty, were not intending to enshrine their particular attitudes in the constitution, one can suggest that the community does not expect judges to defer to majoritarian attitudes, but instead to draw upon their values: it is in this sense that the community understands, or should understand, judicial reference to community values.
These parallels suggest that Braithwaite’s approach to community values complements Dworkin’s approach to past traditions: together, they give us a sense of belonging to a community which attempts to reach correct understandings of values such as liberty and equality. Following this approach in Mabo, judges could say that the community values equality; while it interprets this in many ways, the judges believe that the best interpretation requires recognition of native title. It could be argued that the value survey has the advantage of providing empirical evidence that the Australian community values equality. However, to say that the community values equality, but cannot agree on its implications for native title, is to exclude the possibility of native title being regarded as a defining issue, that is, unless Australians accept native title, they cannot claim that they support equality, as Paul Keating suggested.[132] This problem can be circumvented, though, by saying that the value survey shows that the community claims that it supports equality; while the community interprets this in different ways, the judges feel the most attractive interpretation requires recognition of native title. There is, then, an interesting parallel between Dworkin’s approach to history and Braithwaite’s approach to community values. It suggests a permissible way in which reference can be made to community values. However, why not simply say that the principle of equality requires, in our view, the recognition of native title? Little is gained by saying that the value survey indicates that the community approves of equality, although they interpret this in different ways.
The second aspect of the history theme I consider is downplaying diversity. If it is permissible to engage in historical interpretation which downplays diversity for the sake of reinforcing commonality, why not do the same with community values? Perhaps Brennan J’s reference to contemporary values favouring recognition of native title could foster common agreement on native title: people who are undecided or opposed to native title, might change their minds in order to conform with what they now understand to be contemporary values. However, this seems unlikely. While we may at least provisionally accept judges’ interpretations of history, we tend to feel more confident in assessing community values ourselves and are therefore less likely to defer to judicial opinion on this. Also, while we may change our views in order to win social acceptance, this may not be social acceptance by the community at large, but instead, by the groups we interact with. To this extent, reference to community values will not be persuasive: we wish to know which values are socially acceptable to our own groups. I mentioned before that Michelman wants us to conceive of judges as our virtual representatives.[133] We may regard them as such if we feel that they are like us, perhaps due to a similar social background. If we regard Brennan J as our virtual representative, his recognition of native title may lead us to believe that this is the view which our social group expects us to hold. Whether Brennan J referred to consensual community values or not would have little bearing on whether we come to this conclusion.
However, I also mentioned that rather than focusing on whether particular judges resemble us, we could regard judges as our virtual representatives if they show a proper appreciation of our perspectives and interests, in coming to their decisions. Reference to consensual community values could render it less likely that we see judges in this way. Such reference is not only unlikely to convince those who do not share the values which are supposedly consensual. It could alienate them: by ignoring their views, judges fail to treat them respectfully. This could, in turn, undermine the judges’ credibility and the legitimacy of the court.[134] The lack of persuasiveness of reference to community values was perhaps a factor which motivated Hugh Morgan, the mining executive who played an important part in the opposition to Mabo, to make his comment that as far as he was aware, “the only public record... of Justice Brennan’s investigations into contemporary Australian values” were conversations he held with his son Father Frank Brennan “over a glass of cleansing ale”.[135] Brennan J’s reference to community values was useful ammunition to suggest that the High Court had got it wrong, and that people should feel alienated by these unrepresentative judges.
Perhaps the court could have acknowledged to a greater extent the opposition which exists in the community to any departure from formal equality in treating Aborigines, and explained why formal equality is inadequate here. With respect to legal positivists, it could be acknowledged that some people may feel that such decisions should be left to parliament and the court could have then explained more fully why it was appropriate for the court to change the common law. This approach seems more likely to persuade people to support native title, than assertions of a consensus in favour of native title. Of course, many opponents of native title may remain unconvinced. However, Michelman’s republicanism is not based on the assumption that with persuasive reasoning, consensus will be achieved. Instead, it suggests that it is worthwhile to seek the ideal of a judiciary attempting to engage with the community as a whole, in discussion of the public good, rather than ignoring a significant section of the community.
I have suggested that reference to consensual community values is unlikely to be persuasive. Why, then, do judges employ this poor form of rhetoric? Perhaps, they sometimes believe their own rhetoric: we have a tendency to assume our own views are more widely shared than they in fact are.[136] A second possibility is that it is simply a way of avoiding an acknowledgment of the element of personal choice involved in decisions. From Michelman’s perspective, this is partly a product of judges and the legal culture they inhabit, lacking an attractive model of decision-making which permits honest acknowledgment of the discretionary component of decision-making. This applies a fortiori to Australia, where formalism has held sway for a longer period than in the United States.[137] Our High Court judges have acknowledged the discretionary element in decision-making to some extent, but reliance on community values indicates a reluctance to fully acknowledge its role.[138] Braithwaite attempts to refine a practice which is symptomatic of a problem in the legal culture, rather than addressing that problem directly.
(iii) Do Community Values Undermine History?
In the previous sub-section, I argued that Michelman’s history theme, through its adoption of Dworkin’s concept/conception distinction, parallels a way of referring to community values which does not downplay diversity. I also argued that even if the history theme permits strategic reasoning, it does not support references to community values which exaggerate the consensus in our community. Indeed, Braithwaite’s approach to community values might undermine this theme, by reducing judges’ incentive to follow it: by promising an alternative way in which judges can provide us with a sense of commonality which can ground enlightened action, it makes constructive historical interpretation seem more dispensable.
However, Krygier and Glass’ response provokes consideration of whether Braithwaite abandons the history theme, leaving judges free to engage in activism, unconstrained by precedent and traditions. They claim that Braithwaite assumes that one can separate legal interpretation into two steps: firstly, consideration of the “legal” material such as precedent, legislation and constitutions, and secondly, consideration of extra-legal material (for Braithwaite, community values) when the legal materials prove inadequate.[139] They refer to Dworkin’s insight that all material is considered together, in the one process. However, Braithwaite states in his reply that community values should inform the reasoning process from the start.[140] Nevertheless, Krygier and Glass say that some readjustment of Braithwaite’s framework to accommodate Dworkin’s insights cannot save Braithwaite: Braithwaite “ignores the assumptions and normative understandings which attach themselves to legal texts, and he fails to see that any consideration of popular values is not direct but mediated by way of these assumptions and understandings”.[141] Judges do not ask, “what would be the best aim or principle to pursue here?”, but ask, “what aim or principle is plausible or available in the light of the existing legal materials?”[142] It seems that Krygier and Glass are suggesting that Braithwaite is advocating a shift in judicial deliberation away from interpreting legal material and towards judges renovating the law to suit their personal understandings of community values. They would regard this as inconsistent with democracy – judges are unelected and do not enjoy some superior moral vantage point: they too are swayed by interest and are often unreflective about their attitudes and values.[143] Judges should limit themselves to interpreting the law.
This raises the question of whether Braithwaite is providing a model which supports or encourages extravagant judicial activism.[144] This does not appear to be Braithwaite’s intention. He is attempting to support the existing judicial practice of relying on community values, and this is associated with mildly progressive decisions, not extreme activism.[145] He does permit reference to community values when interpretive gaps remain or where changing circumstances require adaptation of the law.[146] The discovery of gaps and circumstances requiring legal change would be informed by consideration of community values. However, this need not lead to inappropriate eagerness to change the law: adherence to precedent can be supported by a number of Braithwaite’s community values. By limiting retrospective changes to the law, the doctrine of precedent might be seen as promoting “freedom”. It could also be argued that by reducing law-making by unelected judges, the doctrine promotes the value of “rule by the people”. Thirdly, the doctrine of precedent is intended to ensure that like cases are treated alike: this is necessary for any conception of “equality of opportunity”.[147] Finally, taking past judgments seriously is consistent with “tradition”.
Nevertheless, Braithwaite admits that he is less optimistic about legal traditions than Krygier.[148] While Krygier celebrates the constraints legal traditions place upon judges (this serves the useful function of differentiating judicial from legislative decision-making, for instance), Braithwaite is concerned that these traditions can inhibit just outcomes. Braithwaite’s political stance is more radical than Krygier’s, which is not to deny that Krygier sees innovation as an important and positive aspect of legal traditions.[149] Does Braithwaite’s suspicion of legal traditions place him at odds with Michelman’s history theme? Like Braithwaite, Michelman wants to ground judicial deliberation upon democratic norms rather than the norms of the legal profession.[150] Unlike Braithwaite, Michelman emphasises the importance of history in achieving progressive change. It is not just that Michelman emphasises the self-revisionary aspect of the law,[151] while Braithwaite stresses closure and lawyers’ self-interest.[152] While this is true, it should be recognised that Braithwaite is attempting to strengthen a progressive aspect of existing law, by rationalising the judicial practice of referring to community values. Instead, a more important difference lies in the fact that Michelman sees history and our interpretation of it, as helping us to define ourselves as a community of principle. This, in turn, provides a basis for deliberation on the common good. Michelman wants this understanding of history incorporated in judicial decision-making. These ideas are not apparent in Braithwaite’s model.
In this sense, Braithwaite does not seem to adopt Michelman’s history theme. However, I suggested that Braithwaite’s approach is not necessarily inconsistent with accepting that the doctrine of precedent is important. My main concern with Braithwaite’s community values is not that his conceptual analysis implies lack of regard for legal traditions and material, but rather, his distinction between community values and attitudes is problematic and reference to the value survey is unhelpful and perhaps counterproductive. The “democracy” problem of Braithwaite’s model is not that it favours extreme activism, but that it makes unconvincing claims which appear to give a democratic gloss to judicial decisionmaking.
I suggested in my introduction that judicial reference to consensual community values is not only found in decisions and extra-curial statements by some of our most senior and influential judges, but is also important overseas. Braithwaite’s association of consensual community values with general rather than particular principles, his downplaying of diversity and his use of these values to legitimise judicial decision-making are also features of this practice and this gives Braithwaite’s model additional relevance. I also mentioned that legal scholars as well as judges have attempted to distinguish consensual community values from public opinion in an attractive way. The fact that all these attempts have failed, suggests that it may be time to give up.
My discussion does, however, have implications which extend beyond this practice. A virtue of Braithwaite’s model is that it not only makes provocative claims about consensual community values and their appropriate place in legal reasoning but also invites consideration of social psychology and Michelman’s model. It thereby touches upon some broad questions concerning judicial decisionmaking. A fundamental characteristic of legal (or moral) reasoning is that it involves oscillation between general and more particular principles. Braithwaite’s claims, Rokeach’s theory and Michelman’s responsibility theme together provoke a re-examination of the relationship between these principles and their role in moral reasoning. Two other issues concerning judicial decision-making are the extent to which judges openly acknowledge the plurality of relevant perspectives which can be brought to bear upon legal issues and the legitimacy of their determinations. Considering Braithwaite’s approach to community values against Michelman’s model stimulates a discussion of these issues as well. The relevance of these issues is heightened to the extent to which the problems associated with reference to consensual community values occur in judgments or parts of judgments which contain no reference to these values.[153] I have suggested that reference to consensual community values may be a manifestation of a general approach to judgments which is inconsistent with reconciliatory dialogue. Avoiding an acknowledgment of the element of personal choice in decisionmaking is one aspect of this and is apparent not only in references to a fictional consensus but also in unsupported assertions of a community average opinion or standard of conduct.[154] It is also, of course, evident in formalist reasoning.
Why does it matter if judges follow reconciliatory dialogue? I conclude with a consideration of why Michelman regards it as important. Perhaps the main reason is that a republican model of deliberation is most conducive to attaining results which further the public good. Decision-making procedures do influence outcomes, from the republican perspective. It can be argued that part of the decision-making procedure is the style in which judgments are written. A style which requires an acknowledgment of multiple perspectives and an attempt to engage in conversation with them, rather than ignoring or dismissing them summarily, is more likely to prompt judges to think through the issues carefully. One could say that republicanism not only rejects the view that judges’ moral positions cannot be moved and that deliberation with others is a waste of time, but also rejects the proposition that writing judgments is merely about rationalising decisions already made.
Brennan J’s judgment in Mabo is different from the decisions which Michelman criticises: they are decisions in which judges failed to empathise with a minority group and instead, deferred to views adopted by other branches of government. While my use of Mabo has perhaps obscured the republican belief that outcomes are at stake in the choice of procedures, using a mildly progressive decision has an advantage: it indicates that a lack of republican dialogue is not necessarily associated with conservative decisions. Secondly, it points to the complexity of decisions – they do not fall neatly into formalist and non-formalist modes of reasoning.[155] Brennan J’s reference to consensual community values occurs in a judgment which also contains much careful reasoning and at points a lack of reasoning, for example, on why compensation under the common law for extinguishment of native title was not accepted.[156] One cannot seize on a single reference to community values to characterise an entire judgment. Brennan J’s reference to community values is worth considering because it is a manifestation of an approach to legal reasoning which, judged against reconciliatory dialogue, is problematic.
Apart from its effect on the substantive outcomes that judges reach, is it important that judgments exhibit a republican model of reasoning? I suggested that it could enhance popular acceptance of judgments and the legitimacy of the judiciary. Also, it may have a positive impact upon public debate: there is the general influence of providing a model of reasoning for the community, and secondly, judicial reasons could contribute to debate on particular issues, through voicing perspectives which might not otherwise be heard. However, with Mabo, most people formed a view of the case without reading it, but instead based their understanding of it on the result and views expressed in the media. The audience of reasons for judgment is largely an elite one, consisting of lawyers, academics and members of the wider community with a special interest in the case. Furthermore, it is shaped by pluralist considerations. What mobilises lawyers to read cases is often a brief to further the interests of a client. Non-lawyers may read a decision because they feel that it has the potential to affect their interests. Hugh Morgan’s attacks on Mabo were not those of an ordinary citizen genuinely troubled and alienated by what appeared to be a lack of republican sensitivity in Brennan J’s judgment, but instead were the statements of a mining executive trying to orchestrate a political campaign in order to neutralise the adverse effect that Mabo threatened to have on mining company profits. The controversy over the decision was largely driven by its results and the interests it threatened, not by the justifications offered.
It is perhaps unrealistic to expect that the reasoning provided by a court has a substantial influence upon public acceptance of decisions, or upon the general standard of political dialogue in the community. However, it may be that reasons can influence a particular debate, independent of the result the court reached. Acknowledgment in Mabo of the appalling impact of white settlement upon Aborigines[157] might have led to some greater public awareness of this and some greater understanding of the present plight of Aborigines, than would have occurred if the Court had reached the same result, but restricted itself to formalist reasoning. However, if the evidence suggests that reasons for judgment have a marginal effect upon public debate, we are limited to a narrower justification for a republican style of reasoning.[158] We would have to retreat to a position of valuing a republican judiciary simply because it expresses the ideal of positive freedom, an ideal which is treasured, even though it is doomed to have limited influence in our community.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/1.html