Balancing Of Interests
From Common Law Methodology v Law Reform by LJM Cooray (1985)

One of the greatest virtues of the common law system of rights is to be found in its capacity to balance the individual interests in liberty with limitations on liberty based on the common concerns and interests of the community.

There are always difficult questions concerning the restrictions that ought to be imposed on human rights in the public interest. For example, some persons may consider that publications tending to cause racial disharmony are obnoxious to community values and should therefore be penalised. Others may consider such publications as legitimate exercises of individual freedom but may on the other hand consider the publication of obscene matter more harmful to the community. Some people find no justification for placing restrictions on alcohol but will consider the promotion of heroin trade or consumption totally unacceptable. It is apparent therefore that different people perceive danger to themselves and the community differently. The question then arises as to which particular concerns and interests ought to be protected by placing restrictions on individual rights. In other words the law-maker faces the difficult task of determining the boundaries of permissible and impermissible conduct.

In the modern era, there is a growing belief that the solutions to human problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalisation or imperfect empirical investigation, based on academic ideas divorced from practice. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which are inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilisation. However, it represents an evolved public morality which is a sound basis for the formulation of legal precepts.

The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. In deciding these disputes the courts draw upon precedents embodying the public morality which have been developed over the ages. These principles, in the words of Charles Frances, QC, in an unpublished paper:

"represent the collective legal wisdom distilled over many centuries from the finest legal minds in the English speaking world for the express purpose of defining, protecting and enforcing human rights and obligations".

Through the process of disputation, debate an impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject.

The question may be asked, what makes the courts superior to politicians, bureaucrats and academics as custodians of individual freedom and public interest? Three reasons may be given. One is the impartiality and competence which is associated with courts functioning in the common law tradition. Despite frequent attacks and attempts to denigrate these qualities they remain real in the public eye. Public confidence in the judicial system, as demonstrated by surveys, (not withstanding academic and political attacks) surpasses its confidence in political institutions, the bureaucracy, the media and academia. This confidence itself encourages and promotes the impartiality and dedication of the judiciary. A second factor is that unlike political institutions, the common law courts have no licence to arbitrary action. Common law judicial discretions unlike legislative and executive discretions, are strictly limited to the application or adjustment of already established norms and standards. Thus there are inbuilt restraints in the judicial method which ensure a greater degree of certainty and fairness. A third factor is that the common law itself is a product of reasoned disruption where individual rights and duties are claimed and evaluated. No comparable process obtains in the political system in which many abstract ideas are influential and prevail and aggressive pressure groups exercise influence without regard to reason, justice or community values.

It is however, not suggested that legislation in a modern technological age is never necessary or useful. The common law method, like all human creations, is imperfect. It must be supplemented by legislative action. The complaint regarding the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a superior wisdom indulge in structuring and ordering society in disregard of the community consciousness and values. It is this kind of legislative activism that leads to progressive erosion of human rights under the colour of safeguarding public interests. In contrast the common law method assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights on the basis of the customary ways of the community. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves.

One of the problems of applying the common law method nowadays is that socially dangerous situations can arise suddenly and the common law response (relying as it does on appropriate litigation coming before the courts) may not be sufficiently rapid to avert harm. In such situations legislative safeguards are necessary. But although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of the proposed restrictions. The common law approach gives priority to community perceptions and values (including moral and religious sensibilities) rather than to the views of lobbyists and political activists. What is important in such an approach is attempted objectivity and impartiality. In other words, the modern legislator who contemplates placing a restriction on liberty should approximate his role to that of the common law judge and operate within the common law methodology. Yet many law reformers believe they possess a superior wisdom to effect far-reaching social changes. Only by relying on the common law methodology can the perceptions and priorities of the community be ascertained.

The common law approach is also characterised by the importance attached to personal freedom and the freedom of speech and expression and the freedom to hold and enjoy property. The precedence given to these rights (explained in chapters 5, 6, 7 and 8 of LJM Cooray, Human Rights in Australia (Sydney, 1985)) flow from their indispensability for the enjoyment of all other rights and liberties.

If such an approach is adopted in relation to the alcohol and heroin example cited above, the answer would not be difficult to reach. Firstly an objective approach will demonstrate that the community and medical perception of the danger posed by heroin is far greater than that posed by alcohol. (Alcohol is not necessarily addictive - and many people drink in moderation. It is not possible to take heroin in moderation or without dangerous side effects.) Having as far as possible objectively measured the community perception, the legislator should then similarly balance the interest of freedom as against the necessity to prevent the perceived harm. When this is done the answer may be in favour of freedom in the case of alcohol and in favour of prevention in the case of heroin.

In the common law system fairness and objectivity in the resolution to disputes is sought to be ensured by time tested procedural and evidentiary rules. Thus a person is presumed innocent until proven guilty. There are rules for the exclusion of doubtful evidence and rules that guarantee a fair hearing. There are no comparable safeguards in the legislative method of determining rights and duties. As such, the onus on legislators embarking on restrictive schemes is even greater.

The common law has been described as an insecure foundation of liberty as it is subservient to statute law. This view of common law, though not entirely incorrect, lacks the appreciation that the common law when it genuinely operated (before it was overlaid and undermined by legislation) was largely an expression of the norms of conduct generally observed by the community. Therefore the protection of common law rights is guaranteed by the national conscience. In practice this mode of protection has often shown a better record than those of many countries possessing ambitious "law reform" initiated legislation.

The Bill of Rights incorporated as Amendments to the US Constitution was drafted by representatives of all significant political groupings. The drafters and the judges who interpreted it valued common law rules of procedure and evidence, recognised common law restrictions on freedom, reflected the spirit of the common law and ensured that such rights were administered and protected by the common law courts. The various proposals put forward in Australia, by contrast, contradict the above principles. LJM Cooray, Human Rights in Australia (Sydney, 1985); LJM Cooray, A Comment on the Bill of Rights (Sydney, 1985); LJM Cooray, The Hawke Government Referendum Proposals (Sydney, 1985).

However, it has to be recognised that the crucial factor for the effective common law protection of human rights is a pervasive national commitment to such rights. In order to achieve this, it is necessary that public awareness and public vigilance be maintained at all times. In the final analysis it is such public consciousness that inspires legislators and judges to uphold the principles of human liberty.