Skip to 0 minutes and 4 seconds MARCIA NEAVE: Our law reflects many ethical and moral principles. If you think about the criminal offenses that exist, a lot of them mirror the Ten Commandments, “thou shall not kill,” for example– not all of the Ten Commandments. And so the law does to some extent mirror morals and ethics. But there is also behavior which is not caught by the law and there may be very well desirable reasons for that because if you try to make the law cover every moral slip, every moral wrong, it would intrude into people’s lives in ways that most of us would find quite unacceptable.
Skip to 0 minutes and 47 seconds And if you think about it, in the past, there were attempts to enforce what was then regarded as sexual morality and that resulted in some terrible unfairnesses. And just as an old example, we used to have a notion of illegitimacy. That is, a child born outside marriage was regarded as the word was “illegitimate” or a “bastard” and that child couldn’t inherit from their father and had faced all sorts of other social stigma and legal disqualifications. Now, that was a situation where what was then the morality of the time punished people who were completely innocent and that was very unfair.
Skip to 1 minute and 36 seconds PETER RA GRAY: Laws do change. Even if the written text doesn’t change, then the meaning attributed to it must change and those change whether you like it or not. We’re never going to catch up with fashion. Perhaps, we shouldn’t strive for that but we should strive to be not too far away from the expectations of the community in general.
Skip to 2 minutes and 2 seconds GEORGE HAMPEL: Judges are not there to tell people how they should live and how they should behave. It’s the community that creates the standards. The law is always behind community thinking. It can’t dictate community thinking. It reacts to it but unfortunately, sometimes the reaction is too slow. And it has been said that essentially, by definition, courts are conservative, in the sense that they will not rush ahead and get ahead of community feelings and issues. And this is one of the issues that’s being debated recently in terms of the charters of rights. Australia is the only country in the world, as far as I know– certainly in the common-law world– which doesn’t have a charter.
Skip to 2 minutes and 54 seconds And one of the arguments in favor of a charter is that in interpreting the law, judges apply the charter which reflects the community’s view about people’s rights. I personally for many years couldn’t see the need for a charter of rights because if the common law works well, it meets the need to evolve the law. But I’ve changed my mind. I think there is a need for it.
Skip to 3 minutes and 25 seconds NAHUM MUSHIN: I think the law for at times copes with a rapidly advancing society very poorly. I think the law has failed to keep up with some really significant scientific developments. I think of the whole area of assisted reproduction technology. Surrogacy, which I have quite a bit to do with, adoption, IVF, and related areas I think are really very seriously lacking. I think, for example, the issue of overseas surrogacy is something which has a really significant moral dimension to it and of which we are really very unfamiliar. And I think that we’re going to pay a significant price over the next coming decades.
Skip to 4 minutes and 34 seconds MARCIA NEAVE: I think that it’s often quite difficult to have laws which apply fairly and appropriately across cultures. So there will be some areas which still should be covered by domestic law. Quite often, when you’re thinking about law reform, you look at solutions that have been adopted elsewhere and you think, well, they’ve solved their similar problem to the one we’ve got in this why by having legislation which says this. And then you think about what effect it might have in our society and because of different social conditions, it might have unintended effects. So you’ve got to be a bit careful about just sort of taking something as a template from one place and applying it within your own society.
Skip to 5 minutes and 21 seconds GEORGE HAMPEL: In one respect, the law can fix everything but it can’t do that until the society as a whole has formulated its values to require its legislators to make law in accordance with those values.
Views from the Bench: Limping dinosaur
Watch Nahum Mushin (Former Judge, Family Court of Australia), George Hampel (Former Judge, Supreme Court of Victoria), Peter RA Gray (Former Judge, Federal Court of Australia) and Marcia Neave (Former Judge, Victorian court of Appeal) share their unique views on the law while reflecting on its place in society.
The law is like a limping dinosaur…
Law can be viewed as logical system to manage and govern human conduct. It could be said that the law is like a limping dinosaur chasing the ferret of reality. This analogy describes the inevitable delay between modern community thinking or values and a legal system’s codified representation of the same.
It’s not for the law to dictate community standards, but rather for community standards to dictate the law. So the law is necessarily conservative as it can not precede community thinking or values. This can cause issues.
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