Legal riddles

Stereotypes, generalisations and assumptions are everywhere in our lives. I wonder how often we actually stop to think what exactly is the basis for most of our opinions? For instance, during most of history the majority of people thought that human flight was impossible.

A contemporary perception is lawyers are greedy ambulance chasers inciting people to litigate. This is one factor, amongst others, that erodes a sense of personal responsibility. When things go wrong, we look to blame others. The result is a litigation explosion which undermines community cohesion and trust. This may be true to a certain extent but is it the whole story?

Litigation: Past and Present and Professor Bryan Horrigan’s Adventures in Law and Justice are two books that deal with common misconceptions about the law. Given that big legal questions arise from so many political and moral problems, the breadth of Adventures in Law and Justice is wide, making it an excellent introductory book to the major issues facing the Australian legal system. It is also worthwhile reading for those more experienced with the law.
Horrigan has a broadly postmodern approach and applies a coherent philosophical method to his topics. To dismiss Adventures in Law and Justice on ideological grounds would be to miss the point, which is to delve into the big legal questions.
Many conservative commentators write endlessly of the divide between ‘elite’ and ‘common’ opinion. While it would be foolish to deny the existence of this gulf, it would be too easy to label it as a sign of how irrelevant ‘elite’ thought is. Instead, what I think it signifies is a gap, in Horrigan’s words ‘a nationwide gulf in public understanding about law and government’. Horrigan eloquently argues for a more rigorous and philosophical approach to resolving the important questions at a time when public debate is

sensationalised and shallow.

Questions of native title and the treatment of asylum seekers continue to be, two of the most divisive issues in Australia. One of the things common to both is the use of a perceived divide in opinion between ‘chardonnay socialists’ and the ‘battler’. This rhetorical device is used to manipulate existing prejudices and misconceptions for the benefit of powerful interests. Adventures in Law and Justice deftly deals with these and other major questions, such as the republic, a bill of rights, and the war against terror, sweeping away the sensational claims that tend to cloud the debate.

Adventures in Law and Justice also presents a challenge; to improve public legal knowledge. Horrigan says, ‘… community legal literacy remains largely unprioritised and relatively under funded in government plans’. In our democratic system public legal and political literacy is of supreme importance.

Adventures in Law and Justice makes a powerful case for legal and political reform and attitudinal change. As Maxine McKew writes in the foreword Horrigan is ‘iconoclastic’.

McKew also recognises that, ‘we’ve never been more litigious’. Many would likely agree with her. Does the evidence support this claim? Litigation: Past and Present is a collection of essays edited by Wilfred Prest and Sharyn Roach Anleu. It provides much needed quantitative and qualitative data on the subject of litigation. Prest and Anleu tackle issues such as case management, judges’ workloads, approaches to indigenous activism in court and legal access, in a thorough manner.

Litigation also takes an historical view, examining litigation in a range of contexts from medieval England to contemporary Australia. I was amazed to find dramatic increases and falls in the volume of cases in early modern English society. Litigiousness, it seems, is not just a contemporary issue.

While some may find a book dedicated to the topic of litigation boring—and Litigation: Past and Present is more academic in style than Adventures in Law and Justice—it has important public policy ramifications. Especially in light of recent tort law reform.

Tort law, particularly the tort of negligence, has often been blamed for the insurance industry crisis that has swept Australia, threatening access to medical care and the continuance of valuable community services. State parliaments responded by curbing some of the common law legal rights we possess, placing caps on compensation payouts. Yet Prest and Anleu point out other factors were also contributors, such as the HIH collapse.

According to Prest and Anleu, the media—with the assistance of certain interest groups—has helped to maintain the appearance of a ‘litigation explosion’. The response by Australian governments has been to water down our legal rights, thereby exposing insurance companies to less risk. Prest and Anleu draw broad implications regarding power relations, particularly between our governments, media and well-funded interest groups, and law reform in democratic societies.

Godfrey Moase is a law student at the University of Melbourne.

Litigation: Past and Present, Wilfrid Prest & Sharyn Roach Anleu. UNSW Press, 2003. isbn 0 86840 550 7, rrp $65.00

Adventures in Law and Justice: Exploring Big Legal Questions in Everyday Life, Bryan Horrigan. UNSW Press, 2003. isbn 0 86840 572 8, rrp $39.95



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