Letter: On Legal Realism (2015)
To Tony, Good Health!
It was good to catch up - and was a pleasure to meet some of the younger lecturers. For a moment, I remember the magic of watching one of my Ministers sign a regulation I had prepared into law. But that was a long time ago. I am now feeling my age : unlike the young, I no longer believe in the magic of law making.
Simply changing the law, doesn’t always change behavior.
A couple of years ago, quite by accident, the Commonwealth Government (then acting as the law maker for the Australian Capital Territory) repealed Easter. Specifically, it repealed the old Calendar Act – the legislative device by which the Gregorian calendar was adopted into the British Empire.
At that time, we were blissfully unaware of the consequences of this error – and the possibility* that the Australian Capital Territory had reverted for about 20 years - from 1984 until 2005 - back to the Julian system (by that stage about 13 days into the future of the Gregorian calendar). [This is not the time to let the uncertainties of the old law of desuetude muck up a story, so I will save that torture for my law students.]
When the error was discovered in 2005, it was remedied without remark and without the need for further metrification or nomenclature change.
Despite the repeal, life went on, without missing a beat.
People celebrated Easter as they had for centuries, and no one was the wiser.
Simply changing the law, doesn’t change behavior. To change behavior, much more is required.
Let’s say it wasn’t an accident – that we really wanted to change the calendar.
This has in fact happened a couple of time in the past.
The Julian reform introduced in 46BC by Julius Caesar on the advice of Sosigenes of Alexandria. It formalized a solar calendar with months at fixed lengths where one year had 365 days, 12 months and every 4th year was a leap year with 366 days. [Note similar rational change fostered by Khayyam.]
A couple of years later, Emperor Augustus fiddled with the number of days in August (his month - to make it equal in length to Julius’s July). This change cemented in place the legal pattern of days and months we still use to this day.
However, the Julian reform gradually moved out of synch with the earth’s rotation.
This inconvenient result was remedied on the basis of legal policy advice (deriving from the first official council of the Christian Churches in 325 AD, at Nicaea) which led, in 1582, Pope Gregorius XIII declared that the day after 4 October 1582 should be 15 October 1582. He also set in place a refinement to the leap year rule.
All three of these attempts were deliberate and successful attempts to change the law in relation to time.
However, there have been some spectacular failures here – one of the most recent attempts, during the French revolution (a brave attempt to give each day its own special name) is now long forgotten.
The implementation of the successful reforms took great planning and effort – the Gregorian reforms took great heart ache and almost 400 years to finalize.
In 2005 the Australian Capital Territory Legislative Assembly remedied the mistake previously made by the Commonwealth and changed time again – this time to bring us back in to line with the rest of the world – and to make a millisecond adjustment as we moved to a new system of determining time.
We got lucky - the change went without notice and without any of the angst that accompanied the other reforms – but then, we were not really changing people’s behavior.
Legal Rationalist – Legal Realist
So how should we approach successful law reform – how can we make laws that actually change people’s behavior?
There are some who say that our law should be rationally unfolded from the basic conditions of our lives and a set of basic principles.
Others that say that any real assessment of the law will lead to the conclusion that law is indeterminate and a judge can square off competing legal principles in determining legal cases. In order to make law work, we have to find ways of directly influencing behavior.
Many years ago, as I sat in your lecture theatre, we were taught how our law had developed to its present lofty state through a process of rational intellectual development. We were taught to approach the law in a rational manner and left here as legal rationalists, convinced that the law can be deduced from first principles.
But within the real world, in the 1970s, ACT law was pretty chaotic. Hundreds of unexamined imperial enactments – repealed in every other jurisdiction in the world - continued to apply in the ACT. The rest of the statutory provisions were poorly organized and the treatment given to legal issues was very uneven:
- The law provided significant guidance to the manufacture of tallow.
- It fixed the price and size of a loaf of bread.
- The number of letters that could be included on a grave stone was set in accordance with church law.
At the same time, many of the legislative challenges facing a modern state were unexamined:
– the legislation here permitted anticompetitive market practices,
– ignored the reality of domestic violence; and
– ignored the need to recognize a diversity of domestic relationships.
Faced with this chaotic state, it is difficult to remain a legal rationalist. I came to distrust those who, like the English philosopher Hart, place trust in the application of a priori reasoning or logic only.
Instead, over time, I have joined the ranks of the legal realists.
Law is made by human beings – it is subject to human foibles, frailties and imperfections.
While we may aspire to rule by law, in reality our law is inherently indeterminate - the results of any given case are seldom dictated by either judge made law or statute law.
The indeterminacy of law is sometimes summed up by Jerome Frank’s observation that a judicial decision might just as well be determined by what the judge had for breakfast.
I have come to believe that legal concepts, terminology and values are indeterminate and that, to the extent that legislative activity can successfully influence outcomes, it should be based on experience, observation and experimentation.
Today, some call this evidence-based law making. I am a bit distrustful of objectifying the process too much - plenty of examples exist in other jurisdictions where evidence has been manufactured to justify a particular course of action.
Ok, so I am talking about ways of changing behavior.
The key determinants of law reform are experience, observation and experimentation.
I want to briefly outline the different forms law reform may take.
I want to look in detail inside a law reform exercise. – and to demonstrate this, I will outline the development of defamation law in the ACT, focusing on three specific elements: the defense of truth; the intersection of the law with the principles of negligence; and the offers of amends process.
And finally I will look at the challenges facing law reform into the future.
The mechanics of law reform - inside a real law reform process
Defamation Law Reform - A poor beginning
Some consider defamation law to be simply about the exercise of power.
Commonwealth inaction in the ACT meant that at the time of self government, ACT defamation law consists simply of the common law as modified by the Defamation Act 1901 and the Defamation (Amendment) Act 1909.
The 1901 and 1911 Acts (inherited from NSW) were archaic. For example, the laws provided:
that a right of action for oral slander shall extend to all defamatory words for which an action might have been maintained before 24 August 1847, and
that a plaintiff or prosecutor in whose favour judgment is given may levy damages directly out of the presses used in printing the defamatory article.
The Acts themselves were based on reforms suggested by a select Committee of the House of Lords in the nineteenth century. They dealt with issues of concern at the time, particularly discrimination against former convicts.
Notwithstanding this unhappy state, the ACT had become the jurisdiction of choice for commencing defamation actions around the country from the 1970s to the 1990s.
The state of ACT law left many in the ACT feeling uncomfortable – some thought it strange that that laws of such antiquity would govern such an important area of our law.
In 1989, the ACT Attorney General Gary Humphries argued:
“If we rank the rights we enjoy in civil society according to our capacity to enforce them, then our right to assert our good name, versus our right, say, to claim misappropriated property, to be granted a divorce, or to have access to personal information - would rank so low as to be almost non-existent… Barriers to an action in defamation are so great as to render it a privilege few in society can realistically expect to exercise.”
The development of defamation law in the ACT
The reform process has taken 15 years and has involved changing the law of every Australian jurisdiction – and by any objective standard, the process achieved what it set out to accomplish.
The reform process took three phases: in the initial phase, the Community Law Reform Committee examined and reported into the law; in the second phase, Attorney General Humphries introduced radical change into the ACT parliament; in the third phase, this radical approach was adopted by every other Australian state and territory.
The first phase
In 1990, after completing the self-government exercise, I was asked to establish a law reform methodology for the ACT, and to take charge of the development of the civil law.
In establishing the Community Law Reform Committee, I was privileged to work with a number of ACT judges: Justice Kelly, Chief Justice Higgins and President Crispin.
Initially, I worked closely with my good friend, Justice Kelly – who only died late last year.
In 1990, Attorney General Collery gave the committee a major reference on the law of defamation.
At the time, the great bulk of the law of defamation could be found within the common law – two old NSW statutes continued to apply to the territory, but about the only relevant impact of the statute law was that it modified the defense of truth.
When I first looked at this area of the law, I found almost no publicly accessible law on the matter. Initially, I took a rational approach, rights based. I argued that if people were required to comply with the law, the law should be accessible and comprehensive – it should be a code.
On the basis of his experience, Justice Kelly opposed codification; while he thought it sensible to provide a number of new statutory defenses, he thought that codification would lead to injustice and inflexibility.
Justice Kelly and I only fought the once – and it was in relation to this issue. It was a long quiet fight which he pursued over many years. In the end, I do not think the differences between he and I were matters of any real significance. It was more an opportunity for this gentle man to chide me about the value of the shambolic architecture of the common law and his implacable protection of the right of the judges to chose their own path in the search for truth and justice.
So – what is defamation law about?
In legal terms, a person has a cause of action for defamation if another publishes defamatory accusations or charges about the person to at least one other person.
For centuries, the courts have formulated the test for determining what is defamatory.
To balance the uncompromising nature of this tort, the judges had devised a series of defenses – the chief defense being that of truth.
For example, while it is a defamation to tell the world of the atrocities of a murderer – an action for defamation will be defeated by proof of the atrocity.
However, sometimes truth is inconvenient.
In the mid-nineteenth century, the NSW legislature intervened in the judge made defense of truth to require two elements to be established: not only must the publication have been true, it must also have been made for the public interest.
For a decade we struggled with a number of competing strands: should the law be expressly stated; should we revert to the common law formulation of truth, should we provide for a separate and new law of privacy.
However, while tutoring me in the learnings of the common law, Justice Kelly introduced me to a new and terrifying area of the law.
He commissioned me to study the actual progress of defamation cases through the courts – and as part of that process I studied the law concerning procedural steps applicable to defamation proceedings. As part of this study I looked at each of the procedural steps taken in all defamation proceedings initiated in the ACT Supreme Court from 1985 to 1988.
These lessons, in which Justice Kelly delighted, taught me that it was not enough to progress legal change through simple changes to the substantive law – real legal change had be pursued through changing the dynamics of the legal system itself.
The ACT Community Law Reform Committee’s inquiry into defamation was completed in 1995. In its report, the Committee conducted a broad review and critique of the law relating to defamation and recommended the passage of a new Defamation Act to clarify and reform the law. The Committee found that the ACT substantive law of defamation was highly fragmented and that the existing statutory provisions are antiquated. The primary reform goal of the Committee was to reorganize and renew the substantive and procedural law of defamation. A secondary goal of the Committee was to develop ACT law within a legal framework consistent with the development of a uniform Australian law of defamation.
The report was shelved following strident attacks by the private profession. The local press published a humorous cartoon suggesting that hell would freeze over before we saw reform in this area.
The second phase
Attorney-General Humphries continued to press for significant reform of the law.
In 1998 he published a cut down version of the Community Law Reform Commissions report.
He did not pursue codification, but a scheme designed to provide incentives to early resolution of issues. He struck at the disincentives the laws build in to early settlement or resolution of an alleged defamation.
In 2001 the ACT Assembly debated and passed the radical Defamation Act 2001.
The Act was radical because it introduced provisions dealing with the resolution of disputes without litigation and established a new defense based on the absence of negligence.
The Defamation Act 2001 was subsequently incorporated into the Civil Law (Wrongs) Act 2002.
In the Third phase, Attorney General Stanhope worked to harmonize Australian law.
The ACT and NSW worked together to weld the Australian states and Territories into a single body of law.
At common law, the most important defense for defamation is truth alone. At the time of self-government, this remained the case in most common law countries and a number of Australian states (particularly Victoria).
In 2006, Attorney-General Stanhope and the other Australian Attorneys agreed to revert to the common law test – truth-alone. The elimination of a public benefit test was expected to simplify the procedural rules dealing with defamation cases leading to faster and less expensive outcomes.
They also agreed to retain a defense of qualified privilege at common law.
Building on the radical changes in the ACT by Attorney-General Humphries, the benefits of the ACT’s ‘no-negligence’ defense has been incorporated into the law providing for a defense where “the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person”.
The offers of amends process
In 2001, the ACT legislated a comprehensive “offer of amends” process. The ACT process was a radical attempt to focus attention on the availability of non-litigious processes.
Previously, there were few structural incentives for potential litigants to seriously attempt to resolve the dispute. The ACT adopted the new provisions to focus the attention of parties at an initial stage of discussions on reputation rather than reparation.
This approach was also adopted by the national law.
The reform of the law of defamation started from a humble base. Using a series of different reform methodologies, it advanced through a series of law reform processes - Law Reform Committees, to Ministerial Inquiries and Intergovernmental Experts Committee to final form.
At each stage, the process was challenged by significant interests.
The argument whether defamation law is a part of the law of tort and amenable to the general law that applies to tortious actions or whether it is a separate creature simply grouped with torts for reasons of convenience has raged for many years and is worth considering.
In the American states the balance has tipped irrevocably in favor of the first option.
In the other western jurisdictions, the English common law has not gone so far.
Our uniform law takes color according to the tenor of the common law. Perhaps, eventually, our judges will adopt the US approach - but we are some distance from that day.
Our challenge is how to remain relevant in the future
We have seen how the ACT and the rest of Australia has taken the fist step in moving to a defamation law. There are no simple answers in any other area of law.
There is no alternative other than hard solid research.
I have enjoyed lecturing - both to legal students and policy officers. Too often law-making is seen as the province of the expert, when it should be within the reach of all. Still, there is art involved in the weaving of a law, all the more so because those who will challenge laws are master embroiderers.
This is one of a series of letters (2000-2020) that explores issues from slavery, law reform, deontic logic, plague and legal theory. Some were originally included in a legal text "Lessons" (2019) prepared for teaching legal theory to legal students. Others simply address or reflect on issues of the moment.
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