Professional Documents
Culture Documents
overview Foreword Preface 1.0 2.0 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 11.0 12.0 13.0 14.0 15.0 16.0 17.0 18.0 19.0 20.0 21.0 22.0 23.0 24.0 25.0 26.0 27.0 28.0 29.0 30.0 31.0 32.0 33.0 34.0 35.0 From Bondage To Freedom The Values And Institutions The Rise Of Western Civilisation Political Freedom And Democracy Economic Freedom Education Personal Liberty Moral Values The Family The Work Ethic Tradition Freedom And Responsibility Elitism And Merit Competition The Entrepreneur The Role Of Government
Role Of A Constitution The Rule Of Law Respect For Law And Authority Equality Freedom Of Expression Human Rights Pride And Patriotism The Reality Of Welfare Evolutionary Change And Conservatism The Consequences Of Reformism The Spirit Of Enquiry And Criticism The Attack On Order Change Coercive Utopians Counterproductive Reform Coercive 'v' Liberal Utopian A Better Future For Mankind Conclusions Appendix -Australian Values Study
Bibliography
Overview
An account of the values and institutions which contributed to the rise of western civilisation and the development of Australia and without which there would have been no Australian Achievement.
Paul Johnson, the eminent British historian and social analyst, after his visit in the early eighties to Australia concluded,
"The development of Australia rates as one of mankind's great achievements. With five years to go before the double century, one of the most advanced and prosperous societies on earth has been created. It is an achievement with few parallels in the history of human adventure. In the sixties the phrase "the lucky country" was coined. In fact there was little luck nothing but hard sweat and peril in the process whereby, for instance, poor men pushed broad-wheeled barrows hundreds of miles along a burning coastline to open up the Australian goldfields. There are far more tales of heroism and sacrifices in the penetration of the Australian outback than in the whole history of the American Far West".
Many individuals and groups have taken advantage of the bi-centennial celebrations to denigrate many important factors which have contributed to Australia's growth as a great nation. At the forefront of this abrogation is John Pilger. John Pilger is of course, well known for his decidedly anti-Western and anti-free market views, characteristics which have led one of Australia's leading journalists, Anthony McAdam, to say,
"In every documentary of Pilger's I have seen ... he has never failed to identify the primary scapegoat for the world's ills as the United States. America is always behind everything".
His current offering for the bicentennial year is no different. Costing more than one million dollars his series, "The Last Dream" is a harsh criticism of white Australia. Pilger said of the series,
"The whole idea of the films is that they'll be an antidote to the year of self-display and selfaggrandisement on the part of politicians, and to the whole notion that the Bicentenary ought to be a celebration. A commemoration, yes but I hope they will present another view than the idea of celebration".
In addition to the obvious controversy the series will create, Pilger's well known tendency for inaccuracy will also hopefully come under scrutiny. When referring to Pilger's earlier work, "The Secret Country", Anthony McAdam wrote,
"I suggest the term "pseudo-documentary". Pilger's effort was profoundly historically inaccurate; my claim, I believe, supportable if one examines the loading of the dice in his introduction, his choice of "talking heads" compounded by misuse of evidence and blatant inaccuracy in key areas".
Pilger is wrong in his comment about "self display and self aggrandisement". The agenda of the Australian Bicentennial Authority (ABA) does not focus on the values and institutions important to the Australian way of life. The ABA has no plans to celebrate aspects of Australian history most concerned with the bicentennial. An examination of topics selected and omitted by the ABA leaves the impression that the ABA has failed to focus on many things about Australia that most Australians are proud of. The ABA agenda focuses on "Living Together" as its theme and includes in its agenda issues such as multiculturalism, leisure and recreation, sport, religious diversity, arts, Aboriginal culture, links with Pacific neighbours, women's activities, the contribution of trade unions, education, youth, the aged, participation by the disabled and the Bicentennial flag and logo. Ignored by the ABA are the British heritage, European culture, European discovery and exploration of Australia, the development of the outback and the pioneer spirit and courage of early European settlers. The ABA also ignores the social, religious, economic, political and legal institutions and traditions which enabled Australians to open up an immense continent and to establish upon it one of the most stable, prosperous and harmonious societies on earth. These include democracy, private enterprise, the family, the legal system and the rule of law, the British Commonwealth and the monarchy, the British heritage, the Anzacs, the alliance with America, Christian traditions, high living standards, the work ethic, and private property, all of which have constituted the Australian Achievement. In overlooking the Australian Achievement and the most important aspects of the Australian Heritage, the ABA is attempting to sweep under the carpet the history and the values and institutions without which Australia would have no cause to celebrate its 200 years of modern existence. If Australians are to be given a fair presentation of their heritage, then both sides of the story need to be told. Hence, the "Australian Achievement Project", has two main items.
The first item is this book, The Australian Achievement: from Bondage to Freedom, which examines and explains the operation of those foundation values, attitudes and institutions which, in 200 years of endeavour, have taken a penal colony in an inhospitable land and raised it to the level of being a country of the highest rank among the free nations of the world. These factors include our traditions of democracy and economic freedom, the family, personal liberty, the common law and the rule of law, Judeo-Christian ethics, personal responsibility, initiative and innovation, independent institutions and realistic vision for the future. The second item involves the organisation in 1988 of a forum once a month in Sydney. The forums will also focus on the values and institutions that have been responsible during the previous two hundred years for moving Australia and the countries of the Western World from feudalism and colonialism to relatively prosperous modern democracies. Recordings of the forums on audio tape and video tape will be made and marketed. Well known public figures will take part in the forums.
The AAP wishes to publicise the values and institutions which have been important in the development of Australia. These should form the crux of any Bicentenary celebration - and are of continuing relevance after 1988.
The underlying purpose of the AAP is to provide Australians with an understanding of the values and institutions which have contributed to the rise and development of western civilisation, of which Australia is a part. The Australian Achievement Project will serve as a corrective to the negative portrayal of Australia's past which is being provided in many quarters. The patrons of the AAP are the Hon Sir Allen Fairhall, KBE, Associate Professor LJM Cooray, LLB(Cey), PhD(Cantab), PhD(Col), School of Law, Macquarie University and myself. The AAP is dependent on public subscription for its work. Any contributions will be gratefully received.
Preface
This is the preface to the first edition, with slight modifications and some additions. I was born and nurtured in a traditional and elitist environment in which classical liberal, religious and Asian values intermingled. The importance of integrity and individual responsibility, concern for human suffering and problems, and the vision of human interaction under divine inspiration as the basis for the establishment of a better world were the ideas that I imbibed from my earliest years. I embraced socialist and progressivist ideas whilst at university. Socialist and progressivist ideas based on concern for human problems led me to question seriously and reject many of the values and institutions of my early education and home environment. I felt they were not conducive to the confrontation of and solution to human problems and suffering. Socialist and progressivist ideas took a deep hold on me for about twelve years. Whilst studying at Cambridge I opposed the Vietnam war and was involved in the anti-war campaign. I came to believe that the Soviet Union was being unjustly and overly criticised and I was cynical about anti-Soviet propaganda. I was interested and involved in the political struggles in Sri Lanka. I supported the Socialist Constitution and was the chief intellectual apologist for it. I was, however, a continuing critic of the socialist government in Sri Lanka, pointing out the deep gulf between theory and practice. The consequence was that the possibility of political victimisation necessitated my emigration from the then socialist Sri Lanka. I arrived in Australia a refugee from Bandaranaike socialism without a penny in my pocket (due to exchange control laws) and was compelled to make a new start in an unknown country. While I was a socialist I took socialism seriously. I had struggles with my conscience in purchasing a family home, becoming a property owner and receiving inherited property. On deeper reflection and experience I have found socialism and progressivism wanting. I have come to believe that socialism and progressivism are in practice, as far as human development is concerned, retrogressive philosophies. I have been committed at various times to socialism and progressivism and also to the liberal tradition. Through this process of thought and experience, I have come to appreciate the evolved values of western civilisation. Socialist and progressivist ideas which influenced me at one time have been influential in the refinement of my liberal values. I have drawn from socialism's professed concern for human problems, for suffering and for a better world but I have rejected the foundations of socialist and (so-called) progressivist ideas. A better world for all, especially for the poor, can only be achieved through a revival of the values and institutions which were responsible for the rise of western civilisation (for reasons provided in various parts of this book). I have drawn from many philosophies and traditions in writing this book, including the liberal/conservative and socialist ideas. This is a book for the secular reader. My Christian beliefs underpin, but are nowhere specifically articulated. I suppose in a sense I do not belong anywhere. I am a cultural bastard (an Asian in a western environment). The emphasis I place on individual liberty and political freedom in a way which made me an oddity among
socialists. The highlighting of the problems posed by unrestrained liberty and the problems which liberty creates made me unpopular with liberals. My recognition of the value of strong government and limited government based on moral values are understood by few. Finally the focus on the transcending importance of spiritual, moral and family values and the common law, do not always fit in with the ideas of political philosophers. A new perspective has emerged in my thinking about the present and the future of Australia and the western world between the first and second editions. This is that there are many problems in the western world which are real. The first edition focussed on these real issues. There is a tendency to place too much emphasis on those problems. There is a section in the book which points out that so much of reform which is counter productive has been the consequence of a focus on a problem without a sense of perspective. There is an addition to this in the second edition that likewise the critics of what has gone wrong (including myself) have tended to focus on the problems, without a sense of perspective. There is a need to look at the positive as well as the negative. There is much still to be proud of and grateful for in western civilisation. Would Australians rather live in Australia or in Russia, Ruwanda, or many other parts of the world? This has led to small rewriting's of some sections of the book. Many have helped in various ways in the preparation of the first edition of this book. Their names (in alphabetical order) are: Val Bennett, Kenneth Brinsden, Niloufer Cooray, Noreen Cooray, Pauline Evatt, Chris Favotto, Lalin Fernando, Deborah Foster, Elizabeth Good, Malcolm Gracie, John Gully, John Hall, Gerda Hirsch, Cathy King, Ben Lexcen, Maggie Liston, Simon Lynch, Jennie Nicoll, Marjorie Nicoll, Iris Nyman, Carolyn Powell, Suri Ratnapala, Joan Rattray, Jane Rayner, Grant Reid, David Smallbone, Lynette Wagland, John Weir, Danielle Wright, Mustapha Yuksel and John Young. I owe a great deal to my research assistant David Smallbone, who indefatigably and with expedition and keenness of mind and intellect responded to the many demands I made. Lynette Wagland did much of the work on this manuscript- and responded to my many demands with expedition and efficiency, which often went beyond the call of duty. Tony Davies, Bob Day, Bill Fenner and Himani Perera have been of great help in the preparation of the second edition. Macquarie University and the New South Wales Institute of Technology (as it then was) provided facilities to me in the preparation of the First Edition. Macquarie University and the University of Sydney provided facilities to me in the preparation of the First Edition. I convey my grateful thanks to these institutions. LJM Cooray LLB(Cey) PhD(Cantab) PhD(Col), School of Law, Macquarie University, Sydney NSW 2109 December 1986 (First Edition) LJM Cooray, Faculty of Law, University of Sydney, Sydney NSW 2000 July 1996 (Second Edition)
The importance of freedom, subject to an important but narrowly defined role for government; free elections, political and civil liberties, representative democracy and limited government; a right to personal freedom; a right to freedom of speech and expression; economic freedom, subject to limited government regulation; equality of opportunity (which is different from equal opportunity); the importance of moral and ethical values, the spiritual dimension and Christianity; the family and family ties; a system of limitations, checks and balances on authorities exercising government power; the rule of law; respect for law and authority; law based on predetermined standards; procedural safeguards designed to check the abuse of power; the common law; the separation of powers and an independent judiciary; evolutionary change and reform, springing from and in tune with, community values and aspirations (as distinct from ideologically motivated, legislatively initiated and bureaucratically implemented reform); individual responsibility; honesty and personal integrity; discipline including self discipline; private property, subject to essential and limited government interference, as the only possible alternative to state property (the alternatives to private property being government ownership and control leading to feudalism, fascism, communism, etc); the profit motive and competition; the commitment of the individual to productive work; the recognition and encouragement of productive work, risk taking, initiative, innovation and enterprise; the entrepreneurial spirit and the sense of adventure; responsible elitism based on merit; concern for the genuinely poor and underprivileged; tolerance, respect for opposing views and pluralism within the context of a set of values shared by a significant majority; human rights and the primacy of individual liberty; the critical spirit.
These are analysed in various parts of this book. This list is not intended to be inclusive nor exclusive. There is considerable overlap and the entries are not necessarily in the order of importance. The list shows the essentially
evolutionary and non-ideological (at times anti-ideological) nature of the Western democratic order. Professor David Kemp in Freedom and the Rise of Western Civilisations Sydney (1984) pp 20-21 provides a succinct summary of these values and institutions drawing on Alexander de Tocqueville (Democracy in America ed JP Mayer, trans G Lawrence NY (1969) p 677)
"The Tocquevillian strategy to check the inexorable extension of the central power in the interests of preserving a degree of individual autonomy includes the independent election of different levels of government; "associations of plain citizens" which, by defending their "private interests against the encroachments of power [save] the common liberties"; a free press; the independent power of the judiciary; strict observance of procedures; strong insistence of the 'friends of liberty' on the protection of private rights from arbitrary power; and the explicit definition of a sphere of private rights free from interference. "
The question may well be asked, what is the basis for the assertion that certain values and institutions have been responsible for the rise of western civilisation? I can provide no theory nor empirical evidence to support these propositions. Neither the relationship which I have drawn, nor any other social or historical relationship, can be established as a scientific proposition. The conclusion represents my understandings based on my study of history, law, politics, government and the Bible in reasonable depth. More superficial encounters with readings in sociology, philosophy and economics have also influenced me. My practical involvements as a teacher, in politics, in journalism, in law, as a company director, in the working of government bureaucracies and committees and in religious organisations have deepened my understandings as has the experience of living and working for substantial periods among brown, black, white and yellow people on three continents and for shorter periods on the other two continents has also been a factor which deepened my understandings. The values and institutions which have contributed to the rise of western civilisation involve a balance between scope for freedom on the one hand and restraints on freedom on the other, so that the exercise of freedom by some does not detract from the freedom of others. Scope both for freedom and for self discipline and restrictions on freedom is necessary. Freedom is important but it is freedom tempered by a sense of responsibility, a recognised need for limited legal and, more importantly, for extra legal limitations on freedom. There is an important but restricted role for law and government and for other values and institutions which ensure that freedom will be exercised in a reasonably responsible way. The abovestated values and institutions form a package with economic and political freedom (subject to limited government and individual responsibility) as paramount. The necessary institutional checks and balances on freedom are important. Some of these are based on law and others are outside the legal system, such as religion, moral values, individual responsibility, tradition, family and discipline. These factors have, in the history of the Western democratic order been very significant in restricting the abuse of freedom and in avoiding anarchy. The evolved system involves a delicate balance. This balance has been evolved over the years. The phrase, "The western democratic order" (sometimes the reference is to the "democratic order") was selected after much thought, as a shorthand description of the above-mentioned
values and institutions. The word "western" has both a geographical and metaphorical connotation. The values and institutions of the western system were carried by colonists and immigrants to various parts of the world. Thus the term "western" includes Europe (the western part of the globe) and also those parts of the world in which persons of European descent constitute the majority for example, Australia, the US, Canada and New Zealand. Democracy is the most important characteristic of the western democratic order in the minds of many. It is a concept and a system with which most people positively identify. It is more difficult to explain and define. Democracy in the literal sense, rule by the people, is not a practical possibility in modern organised societies which occupy a large area of territory. The concept of democracy is analysed in section 4. The word "democracy" is not used by itself. The reference to the democratic order is intended to point to the many values and institutions which together were responsible for the evolution of made western civilisation and Australia what it is. The use of the word "order" is intended to have a broadening effect. The word "order" is used in conjunction with "western" and "democratic" as an expression to describe the values and institutions referred to above which were responsible for the rise and development of western civilisation. My first preference was to use the phrase "liberal democratic order". I did not use the phrase for the reason that the word "liberal" has been corrupted and is likely to be misunderstood in Australia as a consequence of its association with a political party. In political science it has many different connotations, with the American meaning of "liberal" differing from the use of the word "liberal" in Europe and Australia. If the word "liberal" were used it would have been in what may be called the "classical liberal" meaning. However, many who see the title may not have interpreted it in such a way. Nevertheless, liberalism and freedom (political and economic) in the context of limited government and individual responsibility were crucial in the rise and development of western civilisation. Unfortunately, a shorthand expression which includes the dynamics of freedom could not be found for a title
development and reduction of poverty has slowed down from the 1960's (except perhaps in science and technology). There is ample evidence to support this proposition for those who are willing to look at the historical development and compare life as it was a century or a few centuries ago with what it is today. The great achievements of private enterprise endured by and large for the benefit of the underprivileged have created a situation where life means very much more for most individuals than it did in the feudal era. The developments of the last two centuries up to the 1960s took place as a consequence of the evolved set of values and institutions referred to above. Limited government and freedom (restricted by law and other factors but nonetheless providing a significant area for free and independent action) were responsible for these developments. Individual effort and initiative within a known framework of legal rules and institutions and extra legal values and institutions, made possible the change. Gradual changes in the rules and the values and institutions themselves will permit further progress so long as the changes are evolutionary and come from a ground-swell of popular feeling. However, frequent tampering with the rules by over-ambitious reformers threatens to put an end to the whole development that began with the Renaissance and received a new lease of life from the industrial revolution. The extent of government control of the economy in Australia has in the last twenty five years increased from 28 to 43 per cent (as a proportion of GDP). Government regulation affects every aspect of life. Government regulations are drafted by human beings and administered by human beings with their imperfections and fallibilities. This deliberate tampering with the rules by short sighted reformists has put the system into reverse by strangling the relative freedom which was responsible for steady growth and development. A detailed examination of the great breakthroughs and inventions provides interesting data. It is significant that during the past one hundred and fifty years almost all of them have taken place in liberal societies. The reference is to the pioneering inventions which involved exponential advancement in science and technology. There have been developments in the Soviet Union and in other communist countries but these countries merely adopted the scientific discoveries made in the free world. It is fashionable in many quarters to denigrate the achievements, values and institutions of western civilisation and private enterprise in particular. Supporters of freedom are active (though without adequate exposure) in making the theoretical arguments to support their position. Whilst these are important, it is equally important to focus on the great achievements in historical perspective and in comparison to other cultural and ideological systems. The great achievement of private enterprise over about two centuries has been to reduce levels of inequality and to improve standards of living. In feudal times there were relatively few privileged and wealthy persons. The "masses" were exploited and lived in near poverty or absolute poverty. The great achievement of private enterprise was to bring into existence a large middle class and to reduce very significantly the areas of inequality. The successes of private enterprise are succinctly explained by Milton and Rose Friedman, Free to Choose, Melbourne (1980) pp 147-148: "In the past century a myth has grown up that free market capitalism increases such inequalities, that it is a system under which the rich exploit the poor.
Nothing could be further from the truth. Wherever the free market has been permitted to operate, wherever anything approaching equality of opportunity has existed, the ordinary man has been able to attain levels of living never dreamed of before. Nowhere is the gap between rich and poor wider, nowhere are the rich richer and the poor poorer, than in those societies that do not permit the free market to operate. This is true of feudal societies like medieval Europe and India before independence, and much of modern South America, where inherited status determines position. It is equally true even where central planning has been introduced, as in many countries, in the name of equality. Russia is a country of two nations: a minutely small privileged upper class of bureaucrats, Communist Party officials, technicians and a great mass of people living only a little better than their great-grandparents did. The upper class has access to special shops, schools and luxuries of all kinds; the masses are condemned to enjoy little more than the basic necessities. Industrial progress, mechanical improvement, all of the great wonders of the modern era have meant little to the wealthy. The rich in ancient Greece would have benefited hardly at all from modern plumbing running servants replaced running water. Television and radio the patricians of Rome could enjoy the leading musicians and actors in their home, could have the leading artists as domestic retainers. Ready-to-wear clothing, supermarkets all these and many other modern developments would have added little to their life. They would have welcomed the improvements in transportation and in medicine, but for the rest, the great achievements of western capitalism have rebounded primarily to the benefit of the ordinary person. These achievements have made available to the masses conveniences and amenities that were previously the exclusive prerogative of the rich and powerful." Williams supports this analysis: "It is arguable that the destruction of mercantilism, the industrial revolution, and the emergence of an essentially market economy, did more for the poorest, in material terms, than did some 1,800 years of preaching about charity. It is so easy to forget that life for the masses was, under mercantilism, nasty, brutish, and short. London and Paris were cursed with recurrent famine; indeed life expectancy at birth in France was, in 1800, 24 for males and 27 for females. In 1780 over 80 per cent of families in France spent 90 per cent of their income simply on bread. Yet in one century the very nature of poverty was transformed. The working populace in Britain quadrupled, and real per capita disposable income doubled between 1800 and 1850, and doubled again between 1850 and 1900. A sixteenfold increase in wealth and services is hardly adequately dealt with simply by sighing over the fiction of Dickens and Zola or of Marx and Engels, for that matter". (J K Williams, The Christian and the State, Sydney (1983) pp 18-19). Most of the benefits of western technology and capitalism have endured primarily to the benefit of the less privileged sections of the community. Poverty and injustice, which critics make much of, exist and will exist in any human society. Jesus Christ said, "the poor you will always have with you". However, the perspective which radical and not so radical reformers overlook is the extent of the change that took place under freedom. The strengths of private enterprise are also visible when the standard of living under capitalism is compared with the standard of living under communist and other totalitarian systems. Whether private enterprise is compared with what it replaced, namely feudalism, or whether it is compared with other available alternatives communist totalitarian regimes or dictatorships (feudal or semi-feudal, or fascist) private enterprise must rate head and
shoulders above its competitors. Critics of private enterprise do not consider this aspect, except to concede that capitalism is superior to feudalism. They do not focus on the extent of the superiority, nor do they compare its record with communism or with democratic socialist interventionism. Critics refer to the "crisis of capitalism" today. But if by capitalism the reference is to a system of free enterprise, such a system does not exist anywhere in the western world. Private enterprise has been so gradually strangled by government regulation and taxation that from about the 1960's onwards it has been incapable of reducing levels of poverty and inequality. Over a period of a few centuries limited government and private enterprise had been responsible for the gradual reduction of poverty and inequality.
narrowing the area of power of government. Trade unions, business organisations, social service institutions, religious bodies, the media and pressure groups representing feminist, consumer, environmental, aboriginal, homosexual and other views and interests, exercise considerable influence on governments and restrain and direct government power. Pressure groups give rise to special problems. The public choice theorists argue that pressure groups have in fact increased arbitrary government. In the absence of limitations, factionalism leads to the pursuit of separate ends, with the government gaining power to satisfy particular demands. There are non-legal limitations on governmental power which should not be undervalued. Freedom of speech and expression is one of the most important restrictions on exercise of power. In an age of investigative reporting and academic analyses of human problems, fear of criticism is one of the most effective restrictions on abuse of freedom for selfish ends. However, as the power of government grows, the area of free expression of individuals and institutions is adversely affected. Other non-legal restrictions include: the restriction on action imposed on politicians by the inevitability of the next election, tradition and values, the sense of duty (particularly of holders of public office) and individual integrity. Most of these values and institutions are under attack and their influence is diminishing. The distribution of power has two important advantages. Firstly, it greatly reduces the danger of centralisation of power with its attendant propensity for abuse. Secondly, the debate and discussion engendered in the process of decision making ensures the consideration of a wide spectrum of views, in contrast to totalitarian and authoritarian countries where decisions are made by the dictatorial few with little consultation and consideration. Decisions taken in this manner are more likely to represent broader interests of the people than the sectarian interests of particular groups. Governments are also restricted by financial restraints on spending, international fluctuations in trade and marketing, import and export considerations, balance of payment levels and other economic factors. Countries which call themselves democratic, have a representative system of democracy. It is suggested that this is the only form of democracy which is viable in the larger and more complex societies of today. The irreducible minimum of a representative democracy is the responsibility of the government to the people. In the Westminster system this responsibility is maintained by the principle of collective responsibility of Cabinet to Parliament and the accountability of the members of Parliament to the electorate at periodic elections. Where there is an institutional separation of the legislature and the executive, both branches are directly responsible to the people. Apart from the factors analysed above, four prerequisites for the operation of the representative democratic order may be mentioned:
1. A minimum level of education, enabling the bulk of the population to vote with some (perhaps hazy) idea of what it is all about; 2. A broad consensus, with no group having a significant following (whether political, racial, linguistic or religious) which is alienated from the system and working from outside to overthrow it; 3. Basic standards of life, living and welfare;
4. A degree of upward social and economic mobility providing avenues for persons of talent from the lower classes to move up the ladder, and the continued acceptance, by all classes, of this system.
Big businesses on the other hand, are sometimes less willing partners, forced to co-operate in this process for the purpose of survival. In return for their acquiescence, they expect patronage and protection for their interests. The unfortunate aspect is that the interests of big business seldom coincide with those of the smaller entrepreneurs, farmers, the general public and the economy as a whole. The concurrence or silence of big business participants tends to foreclose further debate on economic issues by those representing the private sector interests. It is clear that corporatism in Australia consists of an unequal bargaining process in which the economic and ideological interests of socialist governments and unions predominate. It is a masterful political strategy for imposing minority views on the majority under the guise of pluralism. It has substantially eroded the principles of democratic government which require the government to be responsible to Parliament and Parliamentarians to be responsible to the electorate. The threat to representative democracy which arises from this type of corporatism is that the process, when institutionalised, can displace the principle of government according to popular wishes. The pursuit of this strategy has been so successful that it is almost presumed that once a deal has been struck between these powerful groups, it is no longer open to question. Democracies everywhere are in danger of being hijacked by bureaucracies and special interest pressure groups. Public accountability is giving way to government by coercive deals. Political power is shifting from the populace to the powerful organisations. The inevitable victors will be the coalitions which seek to control society for their ideological or parochial ends. In the United States and Britain this process has been arrested or slowed down due to the efforts of Reagan and Thatcher. These two leaders took their policies directly to the people. They courageously weathered the abuse and ridicule heaped upon them by the new establishment, comprising pressure groups, the media and the education system. They were vindicated by their respective electorates. The Reagan and Thatcher strategy contrasted sharply with that of Bob Hawke. Hawke mistrusted the electorate and conducted government by erecting facades of consensus through unrepresentative summits. The opposition did not adequately challenge Hawke and the pressure groups and appeal to the majority of the people. The tyranny of the majority is not often a problem in the history of democracy. At times of war or perceived national danger, majority hysteria can run amok. However, for the most part the majority are generally apathetic about governmental issues and are concerned about the immediate issues in their day to day lives. The major problem of modern democracy is that of the tyranny of a minority, and particularly a minority with a strong ideological fervour, which purports to be representative of the majority or a wider group, but is not so representative. Left wing trade union leaders, purporting to represent workers, are not representative of all workers. The Women's Electoral Lobby is not representative of the women of Australia, yet it exercises enormous power in Canberra on social issues. The captains of industry invited to the Hawke Summits, were not representative of the mass of small business people who constitute (or constituted - they are a decaying group) the basis of private enterprise and entrepreneurship. Unrepresentative public affairs media (along with trendy/left forces) enjoying low public esteem, as demonstrated by the Australian Values Study set the agenda of public debate in Australia.
The basic problem of modern democracy is the tyranny of unrepresentative minority and pressure groups who have captured government, opposition, the media and the education system. The analysis of the Australian Values Study 1985 (section 35) demonstrates that the policies of neither of the main political groupings in Australia (Labour and the Coalition) were attuned to the values of the Australian people at that time. There must be questions about the extent to which there is divergence between values embodied in government policies and the values of the Australian people.
5. Economic Freedom
The nature of political freedom and its dependence upon economic freedom 5.1 5.2 5.3 5.4 Political And Economic Freedom Two Sides Of The Same Coin Private Property Governments Managing The Economy And The System Of Economic Freedom Growth Of Government
5.1 Political And Economic Freedom - Two Sides Of The Same Coin
The importance of the role played by economic freedom in the rise of western civilisation cannot be over emphasised. One of the difficulties of assessing the importance of economic freedom is that it is inextricably connected to political freedom. Both from logical and historical standpoints, it appears that the two types of freedom represent the two sides of the same coin. The importance of political freedom is fundamentally linked to the conviction that an individual should be at liberty to pursue his or her own ends in a manner that he or she thinks fit. This is the essence of economic freedom. Conversely it is economic freedom which makes independent political action possible. Political freedom, by which is meant rights such as the right to vote, the right of free association and the right to free expression, enables individuals to determine who their rulers shall be and how they shall be ruled. This freedom has been decisive in the rise of western civilisation but it would have amounted to little except for the fact that it enabled society to be organised in such a fashion that individuals were left with the autonomy to pursue their own happiness. This freedom to seek self fulfilment generated the tremendous prosperity that we now enjoy. Milton Friedman says: "The preservation of freedom is the protective reason for limiting and decentralising governmental power. But there is also a constructive reason. The great advances of civilisation, whether in architecture, or painting, in science or literature, in industry or agriculture, have never come from centralised government. Columbus did not set out to seek a new route to China in response to a majority directive of a parliament, though he was partly financed by an absolute monarch. Newton and Leibniz; Einstein and Bohr, Shakespeare, Milton and Pasternak; Whitney, McCormich, Edison and Ford; Jane Addams, Florence Nightingale and Albert Schwietzer; no one of these opened new frontiers of human knowledge and understanding, in literature, in technical possibilities, or in the relief of human misery, in response to governmental directives. Their achievements were the product of
individual genius, of strongly held minority views, of a social climate permitting variety and diversity." (Milton Friedman, Capitalism and Freedom, Chicago (1962) pp 3-4). What Friedman refers to is not the freedom or the privilege of electing leaders. He refers to the freedom to be left alone to pursue one's own ends for one's own motives. In the early history of liberalism, the value of political freedom was considered to be its ability to limit governmental power and to protect individual autonomy. In other words, political freedom was considered to be the means by which economic freedom was realised. It is ultimately economic freedom which inspired mankind to the achievements on which modern civilisation is founded. Today, regrettably, a very different view of political freedom is in vogue. It is taken to mean the power whereby we may compel governments to provide people with material benefits. Pressure groups - especially those having strong media backing may successfully influence governments to provide their constituents with material and other benefits at the expense of the rest of the community (the vast majority). Political freedom is used to empower governments. What is happening is a surrender of individual autonomy to an authority which is incapable of satisfying the demands placed upon it. The prosperity that western countries enjoy today is not the result of governmental action. Governments have succeeded in maintaining order and providing welfare for the needy and not so needy. The system can legitimately be asked to provide welfare for the genuinely needy. But the expansion of services and activities which governments have undertaken in modern times has occurred at enormous cost to economic freedom, which formerly served as the engine of advancement in science, in culture, and in material prosperity. By the misuse of political freedom, in making demands on governments, those economic freedoms which in the past helped in the conquest of poverty, ignorance and misery are being slowly undermined.
indistinguishable from the very notion of individual freedom. As Professor Alice Tay states in Law and Society: the Crisis in Legal Ideals, (E Kamenka, R Brown and A Tay eds Melbourne (1978)) p 10: "Property is that which a man has a right to use and enjoy without interference: it is what makes him as a person and guarantees his independence and security. It includes his person, his name, his reputation, his chattels, the land that he owns and works, the house he builds and lives in and so on. These things are seen as his property in early law because they are seen as the verification of his will, as the tangible, physical manifestation of his work and his personality." The alternative to private property is government property. Government owns and controls individuals to the extent it owns and controls property. Feudal and communist systems illustrate the truth of this simple and basic proposition which is so easily overlooked. Carson argues that all rights depend on property: "The law may be stated in this way. All rights are dependent upon property. They are dependent upon property for their conception, their delineation, and their exercise. It follows from this that the system of property ownership will determine what rights can be effectively established within a society. Since a right cannot be firmly established unless it is tied to a property base, changes in the property system will tend to be reflected in the rights that can be exercised. And the right of the individual to the ownership of private property is essential to the establishment of individual rights. Even those asserted rights which are in reality government privileges masquerading as rights, depend on property. For example, the United Nations Declaration of Human Rights asserts that "Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control". Food, clothing, shelter, medical care, and so on are certainly property. Thus, the "rights" named depend on property for their exercise. In these cases, however, it is the property of others that is involved rather than that of the claimants. If governments establish these "rights" they must fulfil the claims by confiscating the property of those who possess it and conferring it upon the claimants. That such action is an assault upon private property there should be no doubt. That governments which simultaneously assert the right to private property and then confiscate it to fulfil other rights have adopted contrary principles there should be no doubt. Their assertions of "rights" are in conflict with each other. But my main point is that anything which is established as a right depends on property." (Clarence B Carson, "Property Basis of Rights" in The Freeman, September (1980) p 23).
5.3 Governments Managing The Economy And The System Of Economic Freedom
One of the big modern issues in Australia is about "government" managing the economy. John Naisbitt has said that only a stable economy can be managed and then we do not need management. An economy cannot be managed when it is changing and not stable. The complexities of modern interaction make management of the economy impossible. The cynicism expressed about government management of the economy does not deny the role of law in the economic arena. The idea of a managed economy, where government acts on the basis that it is capable of reaching and under a duty to reach, into every area of human activity in relation to money and money's worth, through a wide ranging and comprehensive economic plan and regulatory laws, is inconsistent with the values and institutions of the western democratic order. The need for a system of limited government and law is recognised and the basis on which limits may be imposed are analysed (see sections 16 and 26). Law also has a role in the control of banking and money and in promoting competition by placing restrictions on restrictive trade practices. The main problem arises from those who would argue that there are problems and injustices which demand economic regulation. It is likewise argued that it is simplistic in relation to a modern economy to support a system of limited government. The proponents of wide ranging economic regulation (like regulation in other fields) identify problems in human interaction. They do not, however, consider whether, given the unpredictable nature of human interaction and the multitude of economic transactions involved, regulation can be evolved as an effective alternative. This is a dimension which is ignored in a mountain of literature in the field of economics and, indeed, in all areas of academic endeavour. Spencer in The Man versus the State, London (1940) pp 29, 30, 31, 34, provides some of the answers to those who see the need for economic regulation: "... The extension of this policy, causing extension of corresponding ideas, fosters everywhere the tacit assumption that Government should step in whenever anything is not going right. "Surely you would not have this misery continue!" exclaims someone, if you hint a demurrer to much that is now being said and done. Observe what is implied by this exclamation. It takes for granted, first, that all suffering ought to be prevented, which is not true: much of the suffering is curative, and prevention of it is prevention of a remedy. In the second place, it takes for granted that every evil can be removed: the truth being that, with the existing defects of human nature, many evils can only be thrust out of one place or form into another place or form - often being increased by the change. The exclamation also implies the unhesitating belief, here especially concerning us, that evils of all kinds should be dealt with by the State. There does not occur the inquiry whether there are at work other agencies capable of dealing with evils, and whether the evils in question may not be among those which are best dealt with by these other agencies. And obviously, the more numerous
governmental interventions become, the more confirmed does this habit of thought grow, and the more loud and perpetual the demands for intervention. Every extension of the regulative policy involves an addition to the regulative agents - a further growth of officialism and an increasing power of the organisation formed of officials. ... He contemplates intently the things his act will achieve, but thinks little of the remoter issues of the movement his act sets up, and still less its collateral issues. ... Even less, as I say, does the politician who plumes himself on the practicalness of his aims, conceive the indirect results which will follow the direct results of his measures. ... Dwelling only on the effects of his particular stream of legislation, and not observing how much other streams already existing, and still other streams which will follow his initiative, pursue the same average course, it never occurs to him that they may presently unite into a voluminous flood utterly changing the face of things". The system of economic freedom has, when it has had scope to operate, clearly proved superior to any system of centralised planning or management. The market order (far more efficiently than bureaucrats) can allocate resources and effort according to the needs of the people, expressed by the people themselves. It therefore produces goods and services in such quantities and of such quality as the people themselves demand. The market produces the goods in response to demand and rewards effort. The market is the only type of order consistent with the freedom of the individual. Whenever the market has been allowed to flourish, it has produced great wealth and emancipated people from poverty. On the other hand, planned economies have consistently failed to meet the expectations of people. In democratic societies the market has been progressively interfered with to the point that it is becoming incapable of producing goods and services as efficiently as it has done in the past. Ironically, these "failures" have been blamed on the market itself and not on the forces that interfered with and dislocated it. These notions arise from a fundamental misconception that the market is something which can be manipulated or controlled to produce particular results. The choice available is between a system where decisions flow from the activities of and the interaction between hundreds and thousands of consumers, subject to media and public comments and criticisms and a reasonable degree of governmental input on the one hand, and a system where decisions are taken by a massive government bureaucracy far removed from the individuals, the providers and the consumers, on the other. The choice is between the imperfect market involving the interaction of individuals subject to public comment and limited government and an imperfect giant bureaucracy. If the reality that regulation will be in the hands of fallible human beings, purporting (as an implicit consequence of their assumption of power) to be omniscient and infallible, is realised and the record of bureaucracies is considered, the rational and common sense choice applicable to the vast majority of situations is clear.
The placing of limitations on the power of governments through a system of checks and balances has been an essential factor in the rise of western civilisation. Paradoxically the current in democracies has, in the last half-century, been flowing in the opposite direction that of increasing centralisation of State power. The limited gains of liberal and representative democracy are being lost. The tide has turned towards accumulation of powers in the hands of the executive, with the substitution of the Government for the King. The Government is now very much more powerful than the feudal King ever was. It has more material resources and more bureaucratic machinery than any king ever had. It is also equipped with the products of modern science and technology and able to impose prohibitive restrictions on individuals and groups. The potential for corruption, abuse of power and exploitation is growing. It is unrealistic to ignore the size of government or to deny that government should have a role. The time is ripe for an attempt to roll back, over a period of time, some of the accumulated powers of government. The evils and abuses resulting from exercise of government power receive minimum exposure (compared to the increasing effort by academia, the media and the left in politics to exaggerate and distort the problems created by private enterprise). Proposals to increase governmental power could with advantage be made subject to stringent cost benefit analyses. These analyses should seek to ensure that where powers are being demanded by government or government authorities, to overcome stated evils and abuses, those making such a case should be asked to evaluate:
i. ii. iii. iv. the loss of individual freedom; the financial and other burdens; the manner in which government power actually functions and a comparison of the costs and the benefits.
The failure of so many regulatory schemes as a consequence of the inevitable imperfections of legislators, bureaucrats and judges, arising from their human fallibilities should be taken into account in relation to (iii).
6. Education
The importance of education in the life of a nation and the rise of civilisation cannot be underestimated. It is a half-truth to say that education is necessary in the modern world. Education has always been necessary to preserve the human race from a lapse into rude ignorance. Education is the medium by which civilisation is preserved and fostered. It is, therefore, both a tool and a virtue. Education is essential to the preservation of tradition, the perpetuation of the accumulated learning and experience of past generations, the training of persons of learning and expertise in various essential fields (such as the various trades and professions) and the communication of discoveries and inventions. Above all these, education equips individuals for the prudent conduct of their lives. The import of these statements must be qualified both in terms of the efficacy of education and by defining the nature of education. Firstly, education cannot make a man good or evil. It can just as easily produce a clever devil as a benevolent sage. The world has seen many examples of evil genius, even amongst men of culture and taste. Francis Bacon may stand as a salient example. He strove to make all knowledge his province and yet his sense was corrupted by immoderacy and a callous spirit. He was beaten by a better man. Secondly, the most that education can do is to create an awareness of the difference between good and evil. Similarly, education cannot make a person prudent. It can supply him with knowledge but it cannot induce him to make use of it. Nevertheless, how shall he be prudent without knowledge? Forethought is limited by foreknowledge. Moreover, a well educated man becomes accustomed to putting his knowledge to good use. Thirdly, the benefits of education must be correctly attributed. There is much that masquerades as education but is entirely destructive, misleading and foolish. True education is the imparting of knowledge to the individual together with the disciplined development of the student's intellectual faculties so that he is able to fully and correctly discern, understand and apply it. Its characteristics must therefore be objectivity and discipline. The former is relevant to the substantive content of instruction. The latter is relevant to the methods of instruction and examination. The former is the necessary prerequisite of the latter. Any theory that emphasises subjectivity, independent evaluation even with objective criteria, or that asserts that knowledge itself is a purely subjective individual criterion, is unworthy of the name of education. Any system which fails to uphold and instil discipline is not worthy of the name of education. Any system which is not solidly founded upon a core of substantive knowledge (eg mathematics, grammar, literature, Latin, science, history, music, etc) is not worthy of the name of education. The production of a socially coherent body of "socially well-adjusted" persons is the goal, not of education but of indoctrination. Education does not aim at the mechanical reproduction of subjective views. In the context of the inherent limitations of the human mind, education aims and reaches towards (however imperfectly) a concept of truth and the development of faculties of objective assessment. It relies upon the propensity for truth to prevail through
objective enquiry, discussion, analysis, appreciation and discrimination. Truth and objectivity in an absolute sense are unachievable by human beings - but what is crucial is to strive towards the ideal with an awareness of human imperfections. True education is beneficial to personal development in many ways. It assists a person to rise above banality and sordidity, lifting him out of cultural barbarism and acquainting him with civilised culture. It illuminates his mind with learning, the thought and experience of generations uncounted. Giving him knowledge it helps him to understand the world, his place and his duties. It helps him to rise above his circumstances, even adversity, to master his destiny. History, theology, moral philosophy and poetry help him to realise more fully the range of action which is open to him and the implication and consequence of various actions. True education instils discipline, discernment, refinement and subtlety of thought. It develops a capacity to appreciate nobility. It strengthens the mind, develops its finer sensibilities and irradiates it with grace and beauty. The incidence of education of a high standard is a mark of a civilised nation. It is both a contributing factor towards and a result of, such eminence. It helps to produce responsible, productive, prudent, creative and erudite citizens. It is necessary for the preservation of knowledge and tradition and to the processes of constructive technological and institutional development. However, it is only true education that can further these objects. The substitution of a system founded upon false principles can only be destructive of the general welfare, since it undermines the benefits and virtues that true education conveys and that are necessary to the maintenance of civil standards.
political conduct. Freedom is also ineffective if there are no effective remedies for infringement or no safeguards to ensure fair trials. Procedural and evidentiary safeguards are of no avail unless there is an impartial and independent judiciary. The combined operation of these principles alone can guarantee the effective enjoyment of personal freedom. A fair trial, before deprivation of liberty and punishment, is the ultimate institutional safeguard of personal freedom. Protection against abuse of the investigatory process is of no avail if a person can be unfairly tried and convicted. The most important principle relevant to a fair trial is the presumption of innocence. In common law jurisdictions it means that an accused person is entitled to an acquittal if the prosecution fails to prove the commission of the offence beyond a reasonable doubt. The rule itself is inflexible, although the accused may sometimes be required to prove certain facts peculiarly within his knowledge. This principle, more than any other, demonstrates the concern that a citizen should not be deprived of his personal liberty except on the most cogent proof of guilt. However, even this hallowed principle of the common law is undergoing considerable derogation by legislation. There exist about 220 provisions in Commonwealth legislation alone that place the persuasive burden of proof on the defendant. Professor G de Q Walker, Crisis in the Rule of Law, paper delivered at the Mont Pelerin Conference, Sydney, 23 August 1985. Apart from the presumption of innocence, a person facing trial in a common law court is entitled to the protection of detailed procedural and evidentiary rules. These rules have been developed to ensure, among other things, adequate notice of charges, adequate opportunity to prepare the defence, adequate representation, exclusion of doubtful evidence and the effective conduct of the defence through means such as the examination of witnesses and the making of legal submissions. Additional safeguards may include trial by jury, public trial and the prevention of prejudice by unfavourable publicity. Until very recently, in most western countries infringements of personal liberties were strongly resisted and there was constant agitation for the enlargement of these freedoms. The personal liberty enjoyed by individuals in democratic countries is too often taken for granted. The difference between living in Australia and in a totalitarian state is not appreciated. If the importance of personal liberty were not taken for granted and was appreciated, there would be more concern about the implications for personal liberty of the gradual increase in the size of government.
crime. A certain measure of interference with traditional forms of protection may be inevitable for the prevention of greater harm to the community and its way of life. The challenge is to overcome these problems with minimal damage to the traditional freedoms. There is a real danger that the importance of personal liberty may be forgotten or devalued in the search for ad hoc solutions to the pressing problems of modern society. There is a tendency in Australia, as in many other democratic societies, to regard due process requirements as dispensable when they concern offences which governments or interest groups consider to be prejudicial to particular social objectives. A notable manifestation of this attitude is the establishment of the bureaucratic Commonwealth Human Rights Commission and related Commonwealth Commissions and the various State AntiDiscrimination Boards, as authorities to try to make determinations on acts of alleged discrimination, and violations of human rights, without any regard to the procedural and evidentiary safeguards described above. It is significant that there are some who call themselves "liberals" who are unconcerned about the serious violations of personal liberty involved in the recent bills and acts conferring and seeking to confer powers on the Human Rights Commission. The attempts to deny to some individuals their due process rights cannot be lightly dismissed. The fact that it was attempted shows that influential groups were prepared to regard the offence of sex discrimination as even more heinous than felonies such as murder or robbery. The existing powers of the Human Rights Commission show that, in the eyes of their proponents, these new offences are of such gravity that perpetrators do not deserve their fundamental rights to a fair trial. This is an extremely dangerous trend which is reminiscent of totalitarian socialist "justice". In communist countries the most serious offences are those which jeopardise the economic and political life of the Party. Even crimes such as murder and theft are considered to be deviant political behaviour. This notion of criminality is based on the central concern for social control and social engineering, the belief that all other considerations must give way to the politically determined priorities of society. Societies founded upon respect for personal liberty show a fundamentally different conception of justice. In such societies the due process of law has a value that transcends all other interests. The procedural and evidentiary rules evolved over a long period of time and have become established owing to the conviction that in their absence personal liberty is at great peril. This conviction stems from the knowledge that any benefit that may be gained by dispensing with due process is outweighed by the enormous damage that it causes to the foundations of liberty. The tendency to create extraordinary offences and extraordinary procedures arises from regulationist and interventionist government. Several developing countries which inherited democratic political systems have faced this dilemma when they have sought to tread the path of socialism. These countries adopted economic policies which called for state ownership of large sectors of the economy and the imposition of rigidly controlled exchange systems. As a result, every violation of the exchange rules and every offence against state property became of vital concern to the economic survival of the nation. They found that it was impossible to manage the national economy by recourse to the ordinary laws of the land. This situation led to the creation of special courts and special procedures for the trial of novel forms of economic crimes. Thus, in many cases the rule of law was irretrievably compromised.
Western nations have yet to face this type of crisis. However, it is not too early to realise that if social control is practised excessively it will create a demand for novel forms of regulation and law enforcement which will gradually undermine the foundations of personal liberty. This is already happening in Australia.
Dishonesty to oneself and one's neighbours has a way of returning upon one's own head. The liar creates a falsehood, which he must ever go to greater lengths to maintain if he is to avoid public disgrace. It can become his living nightmare. At the same time he is less able to face up to his disgrace because his practice of lying corrodes the courage which he needs in order to face the truth. The pursuit of truth is a related and equally important value. It is necessary in order to be well-informed and in order to respond appropriately to real issues. It is necessary to the attainment of knowledge, which is necessary for all forms of progress. Responsibility for one's actions is one of the most vital principles of a civilised society. An absence of personal responsibility is a licence for disorder, anarchy, oppression and dependency. Personal responsibility is the basis of the criminal law, the law of contract, the law of civil wrongs and the law of trusts. Responsibility to higher authority is the basis of accountability. Responsibility to others (of a person in authority) for dangerous things and irresponsible persons (eg minors) is the public basis of the safe and orderly regulation of those things and persons. Personal responsibility cannot be evaded with excuses. In assuming the independence, authority and power of responsibility, the risk of failure and answerability is also assumed. In assuming the power to do good, the power to do wrong (for they are the same power) is also assumed. In assuming the power of independent action, the possibility of independent disaster (whether or not of one's own making) is likewise assumed. Thus, if a person forgoes responsibility he forgoes freedom, for responsibility is simply the moral character of freedom. Anyone who claims freedom claims responsibility. They cannot be divorced. Personal misfortunes, unfortunate circumstances of upbringing and social disadvantage cannot justify wrongdoing. It cannot make wrong right. It may in certain circumstances be offered in mitigation. Personal misfortunes do not abrogate personal responsibility. (It is indeed, an enormously patronising attitude to the poor to regard poverty as a cause of crime). No matter how unfortunate an individual's circumstances may be, he is still responsible for his actions. Each man is responsible for his own moral condition, for what he becomes, for good or evil. Outside forces can have only so much influence upon a person's virtue as they are allowed to have. The effect which those forces have upon a person's character is determined purely by his response to them. Freedom and responsibility cannot be claimed when all goes well and then denied when things go wrong. Any teaching which denies this and which denies responsibility or excuses irresponsibility, promotes wrongdoing, waste and imprudence. Every man is responsible for two things, the moral character of his conduct and the natural price or burden which his freedom (according to its extent) exacts from him. Duty is the fount of right behaviour in the face of temptation to ulterior advantage. It is the sense of duty which hardens the will, to proceed in the face of drudgery or adversity. Duty is the mother of discipline. Without a sense of duty parents abandon their children, spouses are deserted, battle-lines left undefended, clients left unattended, studies and labours left incomplete, responsible offices left vacant. Fairness in interpersonal relations encompasses honesty but also includes avoidance of abuse of privilege, of taking inordinate advantage of another's kindness, not taking advantage of
another's obligation, not imposing oneself upon another's generosity. The principle is best summed up in the maxim, "Do unto others as you would have them do unto you ". It is thus permeated by a spirit of equity and goodwill. Concern for one's immediate neighbours involves that care which human sensibility craves and that generosity which human frailty and necessitous circumstances must rely upon. It is more personal and therefore not so demeaning as a public welfare cheque. It is less open to fraud. Respect for property is no less important than respect for person. Indeed, respect for property is one species of respect for person. Property is the stuff of personal independence. It is, therefore, an economic foundation of freedom. A society in which respect for property diminishes is one in which freedom diminishes. Robbery and the destruction of property diminishes personal independence, renders impossible particular activities and constitutes a personal affront. Expropriation of private wealth by the state substitutes a society founded upon state patronage for one founded upon individual freedom. Private property is an essential adjunct of individual freedom. As stated, to the extent that government controls property, government controls people. Loyalty and a sense of duty toward one's spouse and children is the mainstay of family life. Sir Robert Menzies said that the family is the "foundation of sanity and sobriety". Strong families are necessary to nurture the young, give them values and discipline, care for the old and provide comfort and security for all members. A strong commitment is necessary to make a strong family. This includes loyalty, fidelity and a sense of duty. A nation of weak families is a nation in poverty, welfare dependency and depravity. The work ethic is the foundation of production, wealth, independence and dignity. Financial security and welfare depend upon work. Investment growth (and therefore, employment) depends upon the wealth which accrues from productive work. Work instils personal discipline, channelling energies into constructive purposes. Finally, keeping faith (keeping one's word) is important for the same reasons as honesty but is especially important for economic stability. Keeping faith means honestly performing contracts. Keeping faith is synonymous with reliability. These are some aspects of traditional morality. The list is not meant to be exhaustive but the emphasis is deliberately upon personal duties and responsibilities. This principle of traditional morality constitutes the basis of the common law. They also constitute a moral code which provides the necessary restraints that maintain freedom. Freedom exists only in a society where people respect the rights and freedoms of others. Moral systems are essentially built upon definitions of the nature of Man. Therefore, in seeking to answer the question, what kind of morality is important, it is necessary first to ask the question, what is Man? The conflict between traditional morality and New Class values is not a conflict between morality and neutrality. Any pretence that it is, is simply a rhetorical device in an attempt by the "new class" to place their views above criticism and to gain ground in the public education systems. It is a conflict between incompatible definitions of the nature of Man. The conflict is complicated by the fact that there are more than two such views. The differences between some of these are not always appreciated, with the
consequence that there is, in practice, some degree of syncretism, that is, the construction of views which are composites of elements which are mutually incompatible. Many definitions might be formulated and many different nuances might be captured. However, there are four basic kinds of views which may be encountered. One kind is the socialist view of Man as a race or species. Another, is the anarchic view of Man as an absolutely autonomous individual. A third traditionally accepted view is the view of Man as an individually created being, in the image of God. This last view implies subjection to a higher law, responsibility to a higher authority and respect by each individual for every other individual. The structural emphasis, therefore, in the traditional system of morality is upon individual autonomy subject to a duty to respect other people and a responsibility to exercise one's freedom in a lawful manner, that is, in accordance with the laws and institutions (such as the family), of God. The emphasis is clearly upon right behaviour in interpersonal relationships, personal duties and personal virtue and culpability. A fourth view would identify broadly with the third without the theist and religious dimension and stance By contrast, under the socialist view, paramount emphasis is upon the race or species. The prime socialist virtue is subordination of the individual to the group. Man is the group. The will, the advantage, the happiness, the prosperity of the group is paramount over that of the individual. The consequence of this view is the development of a concept of social justice which entails more and more regulation of individual enterprise, and "rights" to welfare and social planning (and compulsory implementation of social plans) on an ever increasing scale. The anarchic view focuses upon the individual as absolutely autonomous and therefore, free of all external constraints and obligations. Man is an individual, self-made, alone in his pristine independence. Whatever is expedient to him is moral or rather, nothing at all can be immoral for him. Because his autonomy is absolute, he is not constrained to respect the autonomy of others. He is subject to no higher law and to no higher authority. He is his own god. Conflict can only be resolved by pure power (whether in victory and defeat or in compromise). This view is completely relativistic. It is possible for socialists to allot a subordinate place for the anarchic view within the socialist system on the basis of a doctrine that where ideology and policy has no interest, anarchy should prevail. This has led to the combination of policies of personal (especially sexual) permissiveness with policies of socialist intervention and regulation in most other areas of human activity. According to this adaptation, each man is his own god, subject to the higher speciesgod. This is the moral ideology of the "New Class". The religious dimension may also be accommodated within the socialist view on the basis that where ideology and policy have no interest, religion can be accommodated. Attempts are also made to justify socialist ideology by reference to the Bible (Christian Socialism and Liberation Theology). The anarchic ideal has also frequently been confused with the traditional view, as an exaggeration of the individualism of the traditional view. This complication has increased the difficulty which liberals find in defining the limits of liberty, which has led at times to a departure from morality and a capitulation to relativism (including a feeling that misconduct and false thinking cannot be criticised). This, in turn, has led to a failure of will, amongst some of those who are personally committed to traditional values, to defend those values. Traditional morality is inestimably important. Without it, all kinds of injustices and oppressions against individual persons are sanctioned; not the distorted and imaginary
oppressions of Marxist theory but the real oppressions which arise when men forget the golden rule: love your neighbour as yourself. The abandonment of traditional morality is the cue for expropriation of private property, heavy taxation, theft, waste, compulsory association, totalitarian thought control, sexual exploitation, disloyalty to family, impoliteness, social engineering and genocide, not to mention impiety. The values of a society derive from its spiritual and moral foundations. When those foundations are destroyed a vacuum exists and people can be manipulated according to the ideology and power ambitions of ruling elites.
The emphasis on the Judeo-Christian ethic is not intended to devalue other religions. The analysis points to the historic importance of the Judeo-Christian ethic in the development of western civilisation. The underlying moral precepts of all major religions exhibit a remarkable degree of similarity. The shared common morality which is focused on in this part could just as well have been derived from the basic teachings of another religion. The reference is to "basic moral teachings" which are not always reflected in religious hierarchies and even less so in states which have an "established" religion. The common law is based on and influenced by the Judeo-Christian ethic. See section 18.2. The emphasis on liability based on fault is the underlying ethical foundation. There is something called civic morality, a shared body of values based on the Judeo-Christian and ancient republican traditions, that is the underpinning of western society. The history of western civilisation was intimately bound up with individual responsibility. An individual had an obligation to be a consciously good person. Absolute freedom leads to anarchy. Law and moral values in interaction sought to creatively channel freedom in the western democratic order. "These people are constantly saying, 'Give me a consistent conceptual value. I say, 'honesty', and immediately they come back with 'I can think of plenty of times when you shouldn't be honest'. Well, you know what my answer is to that? 'So what? Mostly, overwhelmingly, it's better to be honest than dishonest.' And people have got to know that. People have to feel connected to a shared moral community. There is a yearning for morality that, I think, is genetic - and far too many of us in this society have a hole in our souls because, day to day, it just isn't there. Why do you read 'Pride and Prejudice'? Just for character and narrative? No, because it's a powerful way of saying 'Here's what noble behaviour is' look for the real and watch out for the sham." A system based on limited government will lead to anarchy and exploitation of the weak by the strong, in the absence of values outside the legal system which are accepted by the community. A question frequently posed is: why cannot the working out of a set of values be left to the individual? A system of authoritative moral values is for most people essential for decent and honest conduct. There may be individuals who can work out by themselves a code of conduct. But they will constitute a very small minority in any society. An intelligently worked out code of conduct requires intelligence, intellectual effort and a great deal of personal integrity. It is a common human characteristic to find and rely on reasons to support a position which is in one's own selfish interests and to exclude there from competing reasons and the interests of others where they would lead to a different position. These factors tend to make fair conduct difficult even in the context of a devised authoritative code of morality. It is very difficult for an individual to devise such a code and to put it into practice without constantly catering to his own selfish needs and subjective perspectives. There is another reason why subjective individual morality should be subordinated to a general code of moral conduct. The subjective morality of different individuals will often conflict with the values of others. A harmoniously ordered society is therefore possible only when all persons are subject to a code of conduct regarding which there is general agreement.
However, such a code will be consistent with freedom only if it reflects the accepted general norms and does not seek to control human behaviour in all its details.
many centuries by British judges reacting to particular human situations on the basis of Christian values. The Christian moral values which were influential in the development of the common law are similar to the values of other great religions. Thus, though the common law was consciously developed on Christian principles, its base may be found in principles of morality which are common to the messages of all the great religions. The basic issue is whether law based on the basic morality common to all major religions is to be defended or a movement towards a law based on ideas of material equality and influenced by Marxist philosophy, is to continue.
should not be translated into law, but they should nonetheless, in the arena of public debate, assert the importance of these values and the social sanctions attached to breaches thereof. An example of the above distinction (moral values translated into law and moral values subject to social sanctions) may be provided with reference to laws governing, and the public attitude to, homosexuality. Homosexual acts in private among consenting adults should be tolerated and not be visited by criminal sanctions. But it does not follow that homosexuality should be publicly condoned and encouraged. It does not follow that the law should provide similar benefits to homosexual partners (and also to "de facto spouses") as to married persons, that homosexuality should be publicly presented in schools as a legitimate alternate life style, that public money should be used to promote homosexual life styles and activities, or that public comment on the undesirability and unnaturalness of homosexuality should cease. Toleration of life styles alternative to the family, which do not offend the law, is part of liberalism. But this does not mean that they must be given moral sanction, recognised by law and subsidised from the public purse. Supporters of moral values may support liberalisation of laws which are harsh in their operation (eg homosexuality among consenting adults). However, they have failed to stand up for moral values and to emphasise their importance in community life. Many who have enjoyed the benefits of family life are not willing to stand up for marriage and the family. While supporting legislation which decriminalises homosexuality among consenting adults, they are not willing to stand up and express views about homosexuality. They have failed, in a free society, to articulate the need for the observance of certain values. There has been an absence of sustained rational argument, by those who believe in traditional moral values, to oppose (so-called) progressivism and to distinguish between the productive and counter-productive aspects of (so-called) progressivism. The running on these issues has been left to social moralists whose simplistic ideas and intolerant outbursts have not always constructively helped the development of those community moral values which are necessary to give meaning and depth to freedom. Moral values have been attacked by socialists, progressivists and the libertarians. Some socialists, emphasising regulation and social systems, belittle moral and individual responsibility. Common, broad based values are not seen as ennobling. They are regarded as restrictive and repressive. Some libertarians, stressing the importance of the freedom of the individual, have also been responsible by silence and sometimes by active espousal of near absolute freedom, for the decline in commitment to broadly agreed values. The libertarian, by emphasising the success at any cost ethic, has been responsible for fostering an epidemic of amorality, which on another plane liberals have professed to deplore. An unembarrassed sense of morality is essential to formulation of public policy and determination of the role of government, as well as to the life of the culture and civilisation. A shared morality has been a significant facet in the rise and development of western civilisation. The fragmentation of that morality is one of the tensions of the present. While emphasising "moral values", it is important at the same time to avoid both moral absolutism and unconditional moral relativism (ethnocentrism). A system of morality based on the values common to all religions, subject to free inquiry and discussion can alone make practical application of moral values possible.
The emphasis on morality and Christian values does not mean that all things which have been done in the past in the name of Christianity, the Church and moral values, as well as the extremes of regulation. Absolute freedom leads to anarchy. The regulationists point to the problems that freedom creates but freedom is meaningful only where there are mechanisms, both legal and social, to ensure that freedom is not abused beyond socially acceptable limits. The excesses of the past in the name of morality and Christianity needed to be tempered and moderated. Permissiveness, in many areas, is going too far in the opposite direction. Many civilisations (notably that of Rome) which have fallen prey to sloth and permissiveness have declined and fallen. It is not yet too late for western civilisation to heed this important lesson of history. The Judeo-Christian system of ethics has been influential both in the development of law, particularly the common law, and in moulding community values. Its influence in both areas has been reduced in recent times.
9. The Family
The family has been an important part of western civilisation, indeed, of all civilisations and of primitive cultures too. Parental care and nurture is important even in the animal world (particularly among those closest to man - apes and monkeys). The family provides meaning, continuity and purpose in the lives of individuals. It provides a nurturing and protective environment in which children can progress to adulthood and the best environment for the care of the aged, the disabled and the young. "There is no engine of progress, security and social advancement as powerful as the family, particularly the bourgeois family whose customs and ethics defined western civilization during the two centuries before the Great Unravelling of recent decades. There is no instrument of economic growth, savings and investment, job creation and job training as effective as the middle-class family. There is no cultural institution as ennobling as family life. There is no better way to rear the young, protect the weak or attend the elderly. None." (William J Gribbin, in July 1986 National Review p 33).
Monogamous Marriage And Family
George Gilder in Wealth and Poverty New York (1982) pp 88-89, 90-91,92, persuasively outlines the importance of the family: "Indeed, after work the second principle of upward mobility is the maintenance of monogamous marriage and family. Adjusting for discrimination against women and for childcare responsibilities, married men work between two and one-third and four times harder than married women, and more than twice as hard as female family heads. The work effort of married men increases with their age, credentials, education, job experience, and birth of children, while the work effort of married women steadily declines. Most important in judging the impact of marriage, husbands work 50 percent harder than bachelors of comparable age, education, and skills. The effect of marriage, thus, is to increase the work effort of men by about half. Since men have higher earning capacity to begin with, and since the female capacity-utilization figures would be even lower without an adjustment for discrimination, it is manifest that the maintenance of families is the key factor in reducing poverty. A married man, on the other hand, is spurred by the claims of family to channel his otherwise disruptive male aggressions into his performance as a provider for a wife and children. These sexual differences alone, which manifest themselves in all societies known to anthropology, dictate that the first priority of any serious program against poverty is to strengthen the male role in poor families ... ... poverty stems largely from the breakdown of family responsibilities among fathers. The lives of the poor, all too often, are governed by the rhythms of tension and release that characterize the sexual experience of young single men. Because female sexuality, as it evolved over the millennia, is psychologically rooted in the bearing and nurturing of children, women have long horizons within their very bodies, glimpses of eternity within their wombs. Civilised society is dependent upon the submission of the short-term sexuality of young men
to the extended maternal horizons of women. This is what happens in monogamous marriage; the man disciplines his sexuality and extends it into the future through the womb of a woman. The woman gives him access to his children, otherwise forever denied him; and he gives her the product of his labor, otherwise dissipated on temporary pleasures. It is love that changes the short horizons of youth and poverty into the long horizons of marriage and career. When marriages fail, the man often returns to the more primitive rhythms of singleness. On the average, his income drops by one-third and he shows a far higher propensity for drink, drugs, and crime. But when marriages in general hold firm and men in general love and support their children, lower-class style changes into middle-class futurity. The key to the intractable poverty of the hardcore American poor is the dominance of single and separated men in poor communities. Black "unrelated individuals" are not much more likely to be in poverty than white ones. The problem is neither race nor matriarchy in any meaningful sense. It is familial anarchy among the concentrated poor of the inner city, in which flamboyant and impulsive youths rather than responsible men provide the themes of aspiration. The result is that male sexual rhythms tend to prevail, and boys are brought up without authoritative fathers in the home to instil in them the values of responsible paternity: the discipline and love of children and the dependable performance of the provider role. ... It was firm links between work, wealth, sex and children that eventually created a futureoriented psychology in the mass of western European men ... "The act of marriage is necessarily one which stands centrally in the whole complex of social behaviour." In particular it stands centrally to a man's attitude toward time, and thus toward saving and capital. Conversely, a condition of widespread illegitimacy and family breakdown can be a sufficient cause of persistent poverty, separating men from the extended horizons embodied in their children. An analysis of poverty that begins and ends with family structure and marital status would explain far more about the problem than most of the distribution of income, inequality, unemployment, education, race, sex, home ownership, location, discrimination, and the other items usually multiply regressed and correlated on academic computers." The breakdown of the family poses problems for the system. Traditionally, the family has played an important part in the maintenance of law and order. It is not possible to have policemen on every street. Control which parents traditionally exercised over children (a control which is no longer effective in the same way) helped to maintain law and order. The breakdown of the family and the decay of discipline in the schools which the progressivists (so-called) have engineered has contributed in a very large measure to the growth of teenage vandalism, crime, drugs and alcoholism. The escalation of these problems from the 1960's onwards corresponds to the decline of the family and familial discipline and to the growth of permissiveness. A teacher argued here, that the breakdown of school discipline which has accelerated over the last five years is the result of reduced family discipline. Children come to school from a nonauthoritarian and indulged background. Their parents have no control over them - so how is it possible to expect schools to exert real control over them? They have grown up in an environment bereft of authority, discipline and respect, they therefore have no concept of
respect - they cannot understand discipline. Schools can do little to fill this lacuna, yet they are often critically identified as the cause of this moral decay. The answer to this is another question: how did discipline break down? The ideas of educationists, especially in the tertiary sector, have played a prominent part in the relaxation of discipline in society and school. This includes the attack on and undermining of moral values. The decline of the importance of the family unit creates not only social consequences but also economic effects. "An ever increasing proportion of nations' families can no longer fulfil the basic function for which the family exists to act as the primary system for the delivery of welfare, health and education services to the young, the sick and the old". Newsweekly, August 20, 1980, p 16. When these primary services are greatly reduced, or even totally disappear, they do not cease to be essential. Children have to be fed, cared for and educated. The sick must be treated, the old must be assisted. All that happens is that the services of great economic value, once performed by the family without economic cost, are transferred to the government, which has to pay handsomely to ensure that the same services are provided by professionals, teachers, doctors, nurses, social and welfare workers, the proprietors and staff of hospitals and homes for the aged and other individuals and institutions. This is one of the basic reasons for the explosion of welfare expenditure which has far-reaching budgetary and economic consequences. The common law and the western tradition provided special benefits and protection to the intact family. This was a recognition of the moral and practical importance of the family unit. The claim that other units (de factos and homosexual partners) which lack the moral and practical advantages of the traditional family deserve equal recognition and state patronage cannot be supported. Toleration of alternate life styles is a part of a liberal order but it does not follow that such life styles can be supported by the law and the state (see section 8.4).
The person who works a four day week instead of five days is unemployed for one day. His level of prosperity must fall. If he is paid for five days while only working for four, the cost of unemployment is simply transferred to the employer as a cost of employment. This must make employment less worthwhile to employers and will therefore cause unemployment to increase. More work, on the contrary, generates more production and more wealth. The more wealthy a person is, the greater the proportion of his income that he will invest. More wealth means more investment, which means more employment (although an inflated wage structure may weaken this effect). The fact remains, then, that work produces wealth, which must benefit not only the individual but the whole economy. Indeed, it must be said that the widely accepted notion of retirement while still fit to work (especially when that means dependency upon a state pension) is inconsistent with the work ethic. It may be noted that retirement often has a detrimental effect (where continuing activity has not been planned) upon a person's morale, health and financial security.
10.3 Discipline
Discipline consists of more than punishment, at the hand of authority, for wrongdoing. It includes self discipline; the regulation by a man of his own heart and mind, the cultivation of discernment, virtue and noble tastes and sentiments and the suppression of unbalanced passions, vice and mean dispositions. Discipline therefore, is a way of life. The undisciplined man is a slave to passion, luxury and sloth. He entertains dreams on a large scale but the reality of his existence is sordid. On the other hand, the disciplined man is a free man. His judgment is sound because he is trained and experienced in responsible judgment. His means are independent. His life is free of the debilitating influence of vice. He is able to discern between that which seems good and that which is good. Although discipline does not consist merely of punishment, at the hand of authority, for wrongdoing, this external discipline is nevertheless very important, as an essential part in training the individual to be self-disciplined (by means of punishments, rewards and warnings). This is necessary and proper, both for the sake of the individual and society at large. This external discipline is necessary, for example, in schools, in order to induce the recalcitrant student to concentrate on his studies and observe proper behaviour as well as to protect the other students from a corrupting and disruptive influence. Punishment may, at times, seem harsh but it is justified by the miscreant's guilt. A failure by authority to impose discipline leads to the proliferation (under personal licence and peer pressure) of indiscipline and the influence of bullies. The decay of discipline in our society is reflected in the increasing numbers of people who resort to violence and crude behaviour when provoked. Discipline is necessary for all achievement, especially great achievements. Without discipline there can be no scientific advances (eg no penicillin), no entrepreneurial, industrial or technological achievement (eg no mass-produced motor car), no settled system of law and order, no literary achievement, no exploration and development of a new land (eg Australia
since 1770) and no proclamation of religious truth, because all of these matters require the careful, vigorous, sustained application of trained and balanced minds and bodies. Discipline goes hand in hand with hard work. Discipline makes it possible for a man to endure the rigour of hard work. Discipline directs work, making it fruitful and excellent. On the other hand, discipline is fruitless without work. Australia could not have been developed without either of these factors.
Arthur Koestler encountered a form of the shirk ethic as it was institutionalised among English labourers. In November 1940 he escaped from Portugal and made his way to England, at that time the last bastion of western resistance to Hitler. He joined an Alien Pioneer Corps to "Dig for Victory", which his company of refugees was very willing to do. They asked if the ritual tea-breaks, with the march to and from the canteen, could be eliminated to gain almost two hours of digging in the day. "The CO appreciated our laudable zeal and explained that we had to have our tea-breaks whether we liked it or not because the British Pioneer Companies, plus the local trade unions, would raise hell if we did not. That was about six months after Dunkirk". Arthur Koestler, "The Lion and the Ostrich", in Bricks to Babel - A Selection from Fifty Years of Arthur Koestler's Writings, New York (1980) p 37. This type of anti-productive mentality was lampooned in the film "I'm All Right Jack". A German migrant found something similar in Australia after the war. A skilled fitter and something of a perfectionist in his work he made a mistake on a job shortly before the 5 o'clock hooter. Determined to make good his error and complete the task he kept on after the hour. A shop steward approached and told him to down tools. He protested that he only wanted to fix the mistake that he had made, otherwise the job would have been done by the end of the day. The shop steward insisted that nobody should be made to work beyond the approved hours; the fitter said he was not being made to work, the mistake was his fault and he wanted to put it right. In the course of this discussion the job was put right and he went home, perplexed. Next morning a manager called him to the office to warn him that the next time he worked after the hooter the shop stewards would call all the men in the factory out on strike. This form of shirking, policed by the unions, is a manifestation of the misguided "class war" between capital and labour, as though labour gains something by cutting the returns to capital. Another form of shirking has a more rational basis in self-interest. This was shown in the case of repairmen in a public sector monopoly who made sure during the week that there was work left over to be done at overtime rates on the weekend. The amount of overtime could be adjusted to meet special needs at the time, so the carry-over tended to increase before Christmas. The shirk ethic is promoted by the intellectual revolt against "repression" and "discipline". It is policed by some unions as a part of the class war and it is encouraged by systems of rewards and payments that are based on inputs (usually of time) rather than outputs.
"What people will do in given circumstances depends enormously upon their habits; and good habits are not acquired without discipline. Most of us go through life without stealing, but many centuries of police discipline have gone into producing this abstention which now seems natural." (Portraits from Memory and Other Essays, London (1956) p 15). Times have changed and it is apparent that stealing and other breakdowns of traditional discipline no longer seem unnatural. This is shown in many ways. Shoplifting is now proceeding on such a massive scale that the retail industry is not prepared to publicise it for fear of making things worse. In many schools the teachers are subjected daily to threats, swearing and harassment sometimes amounting to assault. Vandalism including arson in schools, and casual violence are widespread, while standards of manners and dress have declined even among students of the better schools. Aggressive bad sportsmanship, accusations of cheating and abuse of umpires has become a feature of most sport, even cricket, which used to set the highest standards in this regard. Children are quick to copy their heroes in these practices. Discipline has broken down in many homes under the influence of the doctrine of permissive child raising, perhaps unfairly blamed on Dr Spock. Many parents are intimidated by the shifts of fashion in child-raising practices and live in fear of harming their offspring by harsh restraints upon their "natural" and "creative" instincts. Even if parents do not endorse permissive principles, the absence of widely accepted standards of good behaviour results in many children missing out on the guidance and limits which they need in order to develop a sense of responsibility. The erosion of discipline in society has its most powerful roots in the home and the school, since these are the institutions which have the most powerful formative influence upon the child. Permissive child-rearing practices, have come into vogue due to the influence of modern psychology, have imparted the false notion that disciplining the child, and particularly punishment, is to be contrasted with love. Moreover, this is considered harmful to the child's personality, possibly to the point of inducing so-called psycho-sexual repression. Even in families which are still committed to traditional values there is a greater tolerance of misbehaviour, particularly of filial disrespect, than that tolerated prior to the rise of the modern doctrines. Probably this is to be attributed more to the translation of permissive practices into a peer pressure amongst children than to neglect by traditionally minded parents. The breakdown of the family structure is having an accelerated effect upon this process, not merely through the logistical difficulties which single parents must face in attempting to maintain discipline but also in the poor example which divorced parents set to their children. In schools, the practices of permissiveness are also well advanced, particularly in public schools, to the point where the NSW State Government is now attempting to improve behaviour by advertising and by the threat of expulsion. Such advertising is unlikely to be effective. It cannot provide the personal approach which is so necessary to discipline. A short explanation of the fact that undisciplined people do not succeed in life cannot substitute for the personal impact of reprimand and punishment for particular wrongful acts and explanation of the proper standard of behaviour in particular instances. In short, it cannot have that moral force and efficacy which is most essential in assisting the child to develop self-discipline and a respect for moral principle. Similarly, the threat of expulsion is too
extreme to be of much assistance in the day to day maintenance of order in the classroom and the playground. The breakdown of discipline in the school and the family is a most powerful influence in the general decline of discipline in society. That decline increasingly manifests itself in the amount of violent crime; robberies, assaults with deadly weapons, rapes, murders and brutal sex-murders. The extent of this sort of crime has increased far beyond that which would have been contemplated thirty years ago. It has little to do with the availability of weapons, since the knife has been available for many centuries. Moreover, the trend is not confined to violent crime. "White-collar" crime has also increased dramatically. Associated with the decline of discipline and the rise of the doctrine that discipline is to be contrasted with love, is the rise of doctrines of determinism and erosion of the principle of personal responsibility. This, again, is at the instance of modern psychology. These doctrines are not new. They have existed at least since their modern formulation by Freud but their penetration into social policy and much of judicial thinking has been relatively recent. Criminals are excused (almost as often in practice as in theory) on the basis that they come from an "underprivileged" background or that they have undergone traumatic or hurtful experiences at some point in their lives or that they "never had a chance". Psycho-analytic theories draw causal links between bad or unfortunate experiences in childhood and bad behaviour later on. This then becomes an excuse for failure to impose lawful discipline, the theory being that the miscreant is a victim of circumstances, with a damaged personality (which needs to be rehabilitated); a person who is therefore not responsible for his own actions. The dehumanising effects of such a philosophy upon wrongdoers must be obvious. The miscreant will either be cynically contemptuous of a penal system which rewards his misbehaviour with weak rhetoric and ineffectual penalties or, he will come to believe that he really is so deterministically bad that he can never be any different. He is not treated with the dignity that befits a responsible man. Punishment is becoming an outmoded concept. He becomes a defective unit, requiring rehabilitation, to which the magnitude of his crime is irrelevant. Therefore, the penalty ceases to fit the crime and the way is paved for imprisonment to be applied without reference to the concept of guilt. The unfortunate implications of such developments include the possibility of imprisonment and "psychiatric treatment" of persons who do not meet criteria normally set by academic, technical or political elites. This, in fact, is the fate of many religious believers in the Soviet Union. In Australia the doctrine has not been applied to the full extent of its implications. The main practical problem remains the soft treatment of significant criminal acts (leaving the community increasingly at the mercy of criminals). One recent example is the Granville train disaster hero who later embezzled over one quarter of a million dollars and received a relatively light sentence on the ground that his crime was supposedly induced by a psychological condition, referred to as "survivor's guilt," which he developed in response to his fortunate escape from death in the Granville train disaster. The missing dimensions of these psychological doctrines are (i) the positive value of discipline and (ii) personal responsibility. Discipline and punishment do indirectly affect personality but the overall effects are positive, if correctly administered. Discipline cannot be classed with gratuitous violence. Discipline and punishment are essential to personal
development because they involve recognition of the dignity of the individual, the moral capacity of the individual (ie the capacity to know right and wrong), the freedom of individual actions and, therefore, the moral responsibility of the individual for his actions. The erosion of discipline (focusing on the unfairness to the individual of punishment) is directly responsible for the increasing incidence of violence and irresponsible actions referred to above. Any adverse effects of discipline on the individual must be evaluated against the problems so evident in modern society which reflect the policies of the anti-discipline establishment. Any theory which fails to recognise these principles and which fails to recognise the value of discipline and punishment, treats the human being as a behavioural machine, purely "conditioned by circumstances". Discipline is not to be contrasted with love. Rather, those who avoid discipline harm not only their child, but also society. Discipline promotes the discharge of personal duties and a healthy self-respect and a willingness to assume personal responsibility in the face of problems, difficulties and temptations. Punishment is therefore, an act of love. The second missing dimension of modern psychological doctrines is that of personal responsibility. By drawing causal relationships between bad or unfortunate experiences in early life and bad behaviour at later stages, these theories fail to allow, firstly, for personal reaction to experiences and secondly, for the fact that mere explanation does not provide justification. The failure to allow for these factors is based on the conception of human behaviour as deterministic; inevitably mechanically reactive to events and circumstances. Such an approach does not allow for free human action. It does not allow for the spiritual nature of man. It would be foolish to deny that bad or unfortunate experiences may be deeply upsetting, unsettling and traumatic but it is even more unrealistic to deny that human responses to such events are free and therefore, variable (and therefore, responsible). It follows that an explanation of the past experiences which contribute to a person undertaking an improper action cannot therefore justify that action, for the simple reason that the experiences are not determinists of the action. The erosion of authoritatively imposed discipline is contributing to a generation of persons in which a significant number have low self-esteem, are unwilling to assume personal responsibility and a helplessness in that they believe that they cannot alter their behaviour or exert any influence over their destiny. So many people are not growing up with the spiritual reserves to face difficulties, deal with problems, resist temptations and discharge duties. This analysis must not be taken to uncritically endorse the extent of discipline and punishment in past ages. A great deal could have been done to humanise discipline and punishment and provide fairer standards. The unreasoned attacks on discipline and punishment have prevented this. The pendulum has swung too far in the opposite direction.
This is the ethic of the gambler, and it is not particularly novel. What may be novel is the state sponsorship of this ethic by way of the state lotteries and Lotto, and the sophistication of the promotion for these things. A particularly impressive example of this phenomenon appeared during the Brisbane Commonwealth Games with the theme "Be a winner!". After exciting scenes of famous sporting achievements by Australians came pictures of people watching their Lotto numbers come up, then caressing the new Rolls or walking down the front steps of their new mansion. "Success can be easy" was the message. For a dollar or two and perhaps the effort of scratching a lottery ticket you can end up rolling in money. This message undermines the idea that hard work and application are required for success. The other advertisements for Lotto, lotteries and scratch-ems are almost as bad. They help to promote the idea that success or just "feeling good" should be available without intelligence and effort. This is the mentality of the gambler, the drug addict and the parasite.
11. Tradition
The Internationale contains a line "No more tradition's chains shall bind us." This is one of the fundamental ideas of socialist/progressivist thinking. Man must be freed from tradition. Reason is to be the guiding light. The devil can cite scripture for his purposes. Reason can often be used to support any position. If men and women are freed from tradition, the experiences of history and the family environment, they can be manipulated and used by ideological and religious leaders, eccentrics and maniacs. If tradition declines, ideologues can mould and influence individuals. Edward Shils has produced a monumental book entitled Tradition, The University of Chicago Press, 1981. David Armstrong, writing in Quadrant, October (1982) p 71, summarises his argument thus: Shils takes a wide view of what tradition is. For him it is anything transmitted or handed down from the past to the present. Material objects (the Iliad, the Parthenon), beliefs, images, practices, institutions, can all be tradita, that is, things handed down. The handing down of them constitutes a tradition. He does demand a certain persistence or recurrence through transmission, because tradition has to be distinguished from mere fashion. (Is it the case that a society where traditions are weakened becomes a prey to fashion?) Shils says that there must be three generations to yield a tradition, although the generations might be no more than the 'generations' of school children at a school. This wide definition, of course, makes it easier to defend the view that human society cannot function in the absence of traditions. But is there a coherent narrower definition to be found? In any case, the handing on of particular beliefs, practices etc., or constellations of such beliefs and practices, in a recurrent pattern, is something that occurs. What Shils may ask, are such patterns of handing on to be called if not traditions? Shils distinguishes between substantive traditions and second-order traditions. One of the important features of the western democratic order is that while it has recognised the importance of tradition, it has also made possible change and modification of tradition. Primitive and earlier societies were often held back by a single body of tradition which tended to be rigid and unbending. In modern states, individuals live in a multi-traditional society. Diverse or even incompatible beliefs and practices exist. Different models for belief and conduct are available. An individual can make a choice between them. This is the product of freedom-related ideas. The question then arises whether an individual who makes a choice between traditions is free of tradition? The answer is that he will not make such choices unless society has developed a certain tradition: the liberal tradition of making a free choice between traditions. This is what Shils means by a second-order tradition, which is a tradition concerning traditions. The basis of tradition is reason and experience. Experience is perhaps as important or more important than reason. Experience extends beyond reason and mental horizons and embodies factors which people only dimly perceive and cannot rationally explain but which contain elements of truth and understanding, based on accumulated experience.
What is the relationship between liberalism and traditionalism? Liberalism is vitally connected to tradition to the extent that tradition represents those rules of conduct which grow in a spontaneously ordered society. Classical liberalism promotes these traditions in opposition to rules which are dictated by authority. There are, however, other so called "traditions" which are inimical to freedom and which in fact have been destroyed by liberalism. These "traditions" usually concern special privileges for particular persons and classes (such as the nobility). These are traditions only in the sense of long observance or, more accurately, long enforcement. They are not traditions in the philosophical sense. What is happening today is that the latter type of false tradition is re-emerging in the form of the cliches supporting authority. If tradition is to play its part in human progress, its development must be unimpeded by dictate. Neither "we" nor "they" should dictate tradition. As a young person in an eastern environment influenced by western learning, I often decried tradition. I asked for rational explanations, which those who upheld the tradition could not provide. I then ignored and ridiculed the tradition. But years later I came across some explanations which rationalised the tradition. The problem with traditions is that since they have been handed down over a long period of time, the rational bases are either not known by those who uphold them or cannot be lucidly explained. There are often reasons to support traditions but, to the extent that tradition is based on experience and observation, it cannot always be effectively rationalised. This is true of the values and institutions of western civilisation. There is a rational basis for the traditions. However, they are embodied in evolved institutions based on experience. The rationalisation is often not provided. In this context, it has been easy for the socialists/progressivists to attack many of the values and institutions of the system. Reason and the intellectual approach have formed the basis of the attack on tradition. The socialist/progressivist attack emanating from academia (and influencing the wider social and political culture) has operated by focusing on the counter-productive aspects of traditional values. These are exaggerated and distorted. The defects are not balanced against the benefits. The intellectual sets up his own view, which he then parades as objective fact or theory. His analysis often proceeds in violation of the basic dynamics of human nature and human interaction. Such analyses do not take account of the existence of other possible viewpoints. The accumulated experience of the ages is discounted. Tradition is important in any culture or civilisation. A wedding in, or a tour by, the British Royal family illustrates this factor. The outpouring of adulation and affection which the British Royal family enjoyed until recently, not only in Britain, but in parts of the Commonwealth and even in the United States, emphasises the yearning of people for traditional values. Continuity in an era of change is something which people need and desire. Part of the fall in the popularity and the standing of the monarchy is due to the abandonment of traditional standards of morality in the younger generation of royals. There are more worthwhile traditional values and institutions than the monarchy. The unfortunate aspect is that these have been subjected to unceasing attack and destabilisation by progressivists (so-called). The valuable traditional values and institutions which have been undermined did not have the pomp and pageantry of royalty to sustain them. Incidentally, this example demonstrates the importance of ritual, mystique and pomp to sustain institutions. The courts of law would not be the same without the accompanying traditions which the progressivists want to remove. They successfully did this in the case of the Family Law Court
- and this no doubt contributed to (without being solely responsible for) the problems in the family law area. Traditions develop gradually over centuries and keep on developing - a spiritual and cultural dynamic growing out of the endeavours, sacrifices, experiences and trials (when the cross is rejected) of a people who possess an inborn sense of their ancestry, religion, social customs, language, literature, music, games etc. This way "core values" are established and passed on from father to son/mother to daughter, like name or property, and become a way of life that is both virtuous and enduring. The essentially British traditions of family pride and integrity, dignity of the individual, law and order, "stiff upper lip" self discipline, tolerance of and respect for others goodwill (including eccentrics), tenderness towards the lowly and less fortunate, "playing the game" etc. These are spiritual, moral and cultural values deposited firmly in the minds of a people, real but indefinable, which can only be lived and experienced. However, they can be symbolised, the symbol becoming integral to the tradition itself, and the supreme symbol is the Queen, in whose office and person is gathered together all that is best in the nation. She is the embodiment of the nation's spirit and traditions, and what it stands for. The national flag (when it has a real meaning, as Australia's has) is a symbol too, albeit a lesser but still very important one. With respect to traditional institutions, it is not the institution itself that is the tradition, but the way the institution conducts itself that is the tradition. This applies to the monarchy, family, parliament, and the law. The courts are not the tradition, but the legal processes and standards are. The parents in each generation build the nation's traditions into their children's consciousness, and mental and moral attitudes and actions. Traditions give assurance of continuity and permanence to freedom. If a people neglects or despises traditions, or allows them to be undermined, they will lose their freedom very quickly and easily. Australians have never had to fight and bleed and die for freedom or its retention on their own soil. They need to hold their traditions (Anzac) in the very highest esteem - and their symbols (flag) if they are to have the will to keep their freedom and repulse the attacks being mounted against freedom. The western democratic order, as worked out in practical action, has involved the balance of competing factors. TS Elliot focused on the problem of change and continuity when he wrote of knowledge and action without purpose and meaning: The endless cycle of idea and action, Endless invention, endless experiment, Brings knowledge of motion, but not of stillness; Knowledge of speech, but not of silence; Knowledge of words, but ignorance of the Word. Ardis Whitman encapsulates the creative aspect of tradition which is responsive to change: "We must cherish our yesterdays, but never carry them as a burden into the future. Each generation must take nourishment from the other and give knowledge to the one that comes after."
must exorcise the idea that if you do something wrong it is not your fault but the fault of society around. ... The encouragement of variety and individual choice, the provision of fair incentives and rewards for skill and hard work, the maintenance of effective barriers against the excessive power of the state, and a belief in the wide distribution of individual private property ... they are certainly what I am trying to defend. Let our children grow tall (and some grow taller than others), if they have it in them to do so. We must build a society in which each citizen can develop his full potential, both for his own benefit and for the community as a whole: in which originality, skill, energy and thrift are rewarded; in which we encourage, rather than restrict the variety and richness of human nature. ... It is not my job, nor the job of any politician to offer people salvation. It is part of my political faith that people must save themselves. Many of our troubles are due to the fact that our people turn to politicians for everything. Freedom, subject to law and individual responsibility, is basic to the western democratic order.
Elitism in one form or another is unavoidable. The choice is between productive, merit based elitism and retrogressive elitism. Communist nations which set out to destroy all privileges have only succeeded in establishing the most entrenched forms of bureaucratic hierarchy. They have created impregnable bastions of elitism based not on merit or competition but on political power. In democratic societies there are attempts to prevent elitism, particularly in public institutions. Managers are being replaced by committees and Presidents and Chairmen are being replaced by "convenors". Nevertheless, in their actual functioning these bodies become stratified into a pecking order with some being "more equal than others". Decisions are taken but when things go wrong no one claims responsibility. Alternatively, they become ineffective and useless forums; nett burdens on the institutions they are supposed to serve. Elitism which rewards endeavour, and which places the most gifted in positions of responsibility, is the hallmark of a progressive polity. But elitism in this sense cannot be maintained without legal and moral sanctions. It requires guarantees of freedom and checks upon power to ensure that authority is not abused. In short, it can only operate within an institutional framework which promotes freedom and inhibits corruption. In a market order a certain form of elitism is unavoidable. A person whose abilities, skills or other qualities are in demand is likely to be more respected and more economically powerful. This, in itself, is not an evil as those who desire his service freely concede that position. It is the only way in which an impersonal market can operate to the benefit of all. The qualities that are respected may be very diverse, eg, skill, diligence, effort, honesty or even possession of capital wealth. People who possess such qualities provide services for economic gains or less tangible social gains such as reputation. The important factor is that in a market order elitism is unlikely to last unless the elite pays its price by some service desired by others. In a non market order (such as feudalism, socialism or fascism) elitism will persist where there is no such mutual benefit. Responsible and merit based elitism is desirable in public institutions, subject to one important qualification. That is, the power of public institutions should be limited. Today, officials who constitute the bureaucratic elite are gaining powers to control the lives of citizens to an alarming extent, reminiscent of the powers of the feudal barons. The first task is to define and limit the power of government. The second is to choose the right people to exercise the powers.
which insulates the individual from particular forces or circumstances which he does not regard as conducive to his personal welfare. It is clear then, that competition can be enormously constructive, although it can also be destructive if it turns to the mutual destruction of competitors. That, however, is merely to say that, like most good things, it is capable of being turned to abuse. The only alternatives to competition are monopoly and oligopoly (which is the darker side of co-operation). These systems are incapable of fostering the maintenance of standards (since this is not necessary under monopoly and oligopoly) and they operate against the principle of personal independence. Co-operation can be beneficial, but so often it is beneficial only for the erstwhile competitors and harmful for the market. The dark side of co-operation is the collusive "deal" where the co-operators lose their independence and market standards drop. Co-operation should not be elevated to the level of the market. It needs the external discipline of competition in order to realise its full potential. Therefore, co-operation is appropriate only within competitive units. The contrast in attitudes towards competition in sport and competition in the economy or education is one of the strange features of modern society. It sometimes appears that competition in sport has grown in intensity (with standards of sporting behaviour in decline), while competition in the marketplace and in the classroom has become frowned upon. This has happened, in part, because "progressive" social planners struggle against others in the struggle to meet standards. The "new class" of social engineers has trained its artillery on areas of power and influence. Sport is not yet one of those areas, but education certainly is. In their efforts to cramp competition in the marketplace, they have willing allies in the firms who are already established because their interests are served by any restrictions on the entry of new competitors. Attitudes to competition are confused by misplaced analogies and false ideas about the nature of competition in Darwinian evolution and in economic systems. Darwin's theory was widely interpreted as a picture of nature "red in tooth and claw", a "knock down drag out" contest leaving only the strongest and fittest standing. But the notion of "each against all" in nature is false. Lions depend on the survival of the species that they prey upon and they do not in any immediate sense compete with each other. Within the extended family of the pride of lions there is a high degree of co-operation in catching and sharing the prey. Groups of lions may compete with each other, and with other predators who are "in the market" for the same prey but success in this competition depends on skill and efficiency in hunting, not on a physical clash of the rivals, like a battle. Occasions where two starving animals compete for the same piece of food (and hence survival) are not typical, though they can occur under conditions of severe scarcity. Similarly, some kinds of needless competition can be created in economic and social systems where state controls frustrate the market mechanisms that balance supply and demand. This is described next in education.
Competition has a more rational justification when high performance is required for access to prized employment opportunities or higher education. But a "cut throat" aspect of competition in this situation is produced by scarcity of places in higher education, and this is due to state controls on the supply. This "good" is provided free of charge and demand has to be artificially kept under control by rationing. Many young people are denied access, many choose to take courses that have little intellectual content or practical value and many have to settle for their second or third choice for a course. Higher education should be available to all who reach an adequate standard and have some positive motivation to pursue a course of studies. This situation could be achieved by charging fees so that supply could adjust to demand at the level of individual courses. School leavers who do not value higher education enough to pay for it would do something else and children from poor families could be helped in various ways, ie means-tested scholarships, low interest loans, or loans to be repaid during subsequent employment. At the same time, competition for entry would shift from the struggle against others to the struggle to meet standards. The "new class" of social engineers has trained its artillery on standards as well as upon competition, and it is standards that need to be protected rather than competition. This means that, among other things, external assessment is required. The concept of striving to improve oneself and one's capacities in relation to standards of excellence could, to some extent, displace the relatively crude notion of competition against others in the classroom. This concept also has a place in sport, as described below.
scoreboard, but if they keep doing their best to the end then psychologically and morally they are not losers. Of course, this is a restatement of the original spirit of the Olympic Games, that it is taking part that matters, not winning. Much could be said about erosion of this spirit in the modern Olympics. It is also the spirit of the old poem: For when that one Great Scorer comes To mark against your name, He'll mark not that you won or lost. But how you played the game. The state of foul play in sport is uneven, with some sports going downhill and others improving. Rugby League is a game especially prone to mayhem due to the fact that it is a body contact sport and to score one must literally crash through the enemy line. Not long ago, many of the forwards were professionally employed on week days as pugilists and standover men. This situation has changed in the last twenty years for various reasons. There is more emphasis on speed and fitness, so that teams cannot afford the luxury of thugs unless they can keep up with the play. Trial by video ensures that virtually everyone in NSW is subjected to slow-motion replays of crippling fouls on star players, where previously only people at the ground (and not all of them) would have noticed such events. The NSW League has made spasmodic efforts to clamp down on violence and this has clearly had some effect. Jack Gibson imported the Vince Lombardi attitude from the US and deliberate foul play has been practically eliminated from teams coached by Gibson and his imitators. This is most noticeable at Parramatta where Gibson and two of his protgs have coached since 1976. The Lombardi approach pays off in pragmatic terms; under his guidance from 1959 to 1968 the Green Bay Packers took out seven championships. Similarly, Parramatta since 1976 has been the most successful club at all grades by a fair margin (1987 being an exception). Fair play can be encouraged by appropriate rules of the game, backed up by strong referees to police the rules and appropriate penalties for transgressors. Tendencies to indulge in foul play can also be inhibited by community rejection of such tactics.
Sakharov to be treated for a heart condition in the west. All the cases provided above are maintained by the inability to link markets, discover new production techniques, to do as one pleases, or to think outside the boundaries of official dogma. In other words, the absence of entrepreneurship. The market order tends to generate goods and services to cater to the demands of the customer. More precisely, individual producers and sellers produce the goods and services, acting on the basis of their appraisal of the wants of the customers. If they are correct in their judgement then they will prosper, if not, they will not attract buyers and they will fail. Within a free market order, entrepreneurs have to take risks because the last word lies with the potential buyers, the consumers. Ludwig von Mises pointed out in The Anti-Capitalistic Mentality, Illinios (1972), "In the market of a capitalistic society the common man is the sovereign consumer whose buying or abstention from buying ultimately determines what should be produced and in what quantity and quality". This involves an element of risk for the entrepreneur and in return for the risk he demands a reward this is the profit margin. Profits serve the dual purpose of rewarding the successful entrepreneur (that is, the person who caters best to the wants of the public) and providing capital to develop the business. This may take the form of investment in updated plant for increased efficiency and lower prices, it may involve expansion into new products and new markets, it may involve the takeover of less thriving firms in order to put their resources to more productive use. Profits cannot be obtained by exploitation, unless the market is not free (a situation considered below). They are obtained by bringing the factors of production together in a creative manner that makes the resulting product worth more in the market than the sum of the individual components. In addition, the entrepreneur may find new ways to satisfy the wishes of consumers. The entrepreneur, within the private enterprise system, has been a target of attack. Entrepreneurs are supposed to be driven by unbridled greed to maximise their profits at the expense of workers and consumers. They use monopoly powers to exploit the workers with low pay and hazardous working conditions. And in modern times they have perfected various means of exploiting consumers as well, especially by advertising and control of the markets to force people to buy things that they do not really need or want. This overlooks the dimension that entrepreneurial impulse is diverted to antisocial ends when markets are distorted by law and political interference. Everyone acts as an entrepreneur to a greater or lesser extent in making use of their resources and assets to satisfy their wants and to do the best for themselves. In open markets entrepreneurs do the best for themselves by providing better or cheaper goods than their rivals. But another way to improve their position, and to minimise their risks, is to obtain government support to close the market to other competitors. The result can be a state-protected monopoly or a market where some firms have favoured status, for example by tariff protection against foreign competitors. Under these circumstances the monopolists can indeed exploit the consumers but this so-called "monopoly capitalism" is not a product of free market forces. It is a result of those forces being eliminated or reduced by government edicts. Where governments are prepared to make such edicts then a great deal of entrepreneurial flair will be diverted into lobbying and other activities that serve political purposes to obtain more favourable trading conditions, at the expense of the people. This results in guaranteed profits without the risks of the open market.
The extreme form of the closed market is the socialist state or the state-run monopoly. Here the profit motive is absent, as is consumer choice. Those who see profits and market competition as the root of evil in the capitalist system close their eyes and minds to the inefficiency of state monopolies, and the way that consumers are invariably in a worse and more exploited position. Glaring inequalities persist because people with the right political or bureaucratic connections obtain access to the best of everything that is available. This is explained by the fact that the entrepreneurial impulse is not eliminated in state-controlled systems, it is simply turned to ends other than satisfying the wishes of consumers. At the upper levels of state-controlled systems (including the public service in western democracies) people struggle for power and influence, with a tendency to empire building. At lower levels the entrepreneurial flair of the "common man" is diverted to minimising the expenditure of effort or creating alternatives to productive work (ie restrictive work practices). The socialist attack on entrepreneurs, profits and open markets has been supported by the conservative and capitalist vested interests which were threatened by the transition from feudalism to democratic capitalism, or who fear the integrity of market forces. The industrial revolution ushered in a "market society" where individuals were to some extent forced to make their own way in the world, replacing the "status society" where people tended to take the rank and station of their parents. This created a great deal of tension and resentment among members of the upper classes who did not have the qualities required for success in the new system. The result is a highly conservative tradition of thought that sometimes nearly matches the extreme left in its hostility to capitalism, profits and the market order. There is also a strand of Christian objections to profits, or "excessive" profits, especially in the form of interest on investment, condemned as "usury".
also recognises the dangers of anarchy in the context of a human race which is tainted with evil. The assertion that the human race is tainted with evil, is intended to convey the idea that there exist standards of virtue and perfection and the human race as a whole falls short of these standards. The liberal philosophy is sceptical of every claim that humanity or human nature can be made to be virtuous. It is the very suspicion of evil, and the belief in the fallibility of those who claim to be both virtuous and all-knowing which directly drives liberalism to advocate the limitation and decentralisation of power. Lord Acton's aphorism bears repetition ("Power corrupts: absolute power corrupts absolutely"). Liberalism affirms moral values and opposes relativism. It does not succumb to the false dogma of moral neutrality. It is pertinent at the conclusion of a discussion of the role of the state according to liberal theory, to compare the liberal theory with some current tendencies in state practice. Firstly, the current reform mindset focuses upon problems and provides sweeping solutions without regard to their wider ramifications. In this way, the fine adjustments which the common law has made between rights and duties have been overturned in vast blocks. The balance of order has been upset. For example, in the field of family law, attention was given to the traumas undergone by litigants in efforts to prove fault. "No-fault" divorce was introduced as a solution without consideration of the effect of such a measure upon the status of marriage and the rights of innocent parties. The liberal system by contrast, requires that adjustments to the system should be carefully thought out so as to be consistent with the underlying rationale of the system. Furthermore, because of the complexities and unforseen factors involved reforms should be introduced slowly and incrementally. Secondly, the fault basis of law is being deeply eroded (as in the family law example). See section 18.2. Thirdly, the state has arrogated to itself power to determine and control and even to extinguish the independence of other institutions. An example is the many regulations placed on the medical profession. Furthermore, it arrogates to itself the power to redetermine social mores (as in Anti Discrimination legislation). Fourthly, the state frequently exempts itself from subjection to the law, confers favours, legislates in respect of particular persons (for their advantage or disadvantage), and denies due process to accused persons (as in the case of the disciplinary procedures of various Anti Discrimination Boards). Fifthly, the state is abolishing the distribution of powers by undermining the system of checks and balances. The delegation of wide ranging legislative power to the executive, the grant of judicial power to politicised executive tribunals and the politicisation of the public service are examples. The modern state greatly exceeds the liberal ideal of limited government. To a significant degree it has become the destroyer of liberty. See further section 26.
5. the rule of law (including the fault principle), 6. democratic institutions and the political sovereign. A brief explanation of (i) to (iii) follows; (iv) to (vi) are analysed in sections 16 to 18 and 4.
not everything can be explained and articulated by verbal means. This is particularly true in the area of human action and conduct (as distinct from the area of investigation of the scientist). This does not mean that the human mind does not schematise experience and that all opinions which cannot be explained are unfounded in reality. The truth is often the converse. It is for this reason that "common sense" is entitled to respect. The accumulated experience encapsulating the wisdom and foolishness of the values and institutions of the western tradition provides guidance. The role of philosophers and the importance of common sense are briefly referred to above. The common law statute law delineation of freedom as well as the basis on which legislative change could legitimately be introduced are relevant in this context. See analysis in section 18.5.
ii. existence of rights of freedom of expression, freedom of person and freedom of property iii. a judiciary separated from the executive and the legislature which has power to control unlawful acts of the legislature and the executive, and which in fact exercises this power; iv. limitations and controls on use of wide discretionary or emergency powers. See also section 4.4. An organised state may have a constitution, but constitutionalism means something more than just having a constitution. It means government subject to a just constitution and body of law. Thus, it could not be argued that constitutionalism prevailed in countries such as the former Soviet Union merely because they had a constitution. There are also countries which maintain a facade of constitutionalism. For example, in Singapore, there is a system of constitutional government (government in accordance with law and the constitution, Parliament, Cabinet system and a judiciary) but with numbered election ballots (so that the way an individual votes can be identified), a tame judiciary and permanent emergency powers legislation. In South Africa under apartheid there was a constitution and respect for it, a separate judiciary, but no universal adult franchise and permanent exercise of emergency powers. In Sri Lanka and India under Mrs Gandhi, there was a system of constitutional government co-existent with a permanent state of emergency. When there is a state of emergency the government can by-pass Parliament as a law making body and create emergency regulations which confer wide powers and govern under these powers.
Australia stands at the apex of the judicial system, with a descending order of courts at various levels. The powers of the Queen under the Constitution are generally exercised by her representative, the Governor General. The powers which the Constitution vests in the Queen and the Governor General are exercised in accordance with conventions. This means that in practice these powers are generally exercised by the Prime Minister, the Cabinet and the public service. But there are exceptional situations when reserve powers of the Crown are intended to be invoked. See LJM Cooray, Conventions, The Australian Constitution and the Future, Sydney (1979) chapter 2. The judicial arm consists of a hierarchy of courts.
legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve. Governments everywhere have obtained by constitutional means powers which those men had meant to deny them. "(F A Hayek, Law, Legislation and Liberty, Volume 1, Rules and Order (1973) page 1). Although Australia has a constitution which is conceived in the liberal tradition and is meant to be the supreme law alterable only by the people according to prescribed procedures, it has undergone substantial changes at the behest of legislative majorities sanctioned by the High Court, claiming increasing powers for government to act in the public interest. The High Court's attitude to the interpretation of the Constitution has reflected a departure from constitutionalism to the idea that a constitution should be responsive to needs of the time. This approach which is based on a misunderstanding of the role of a constitution is threatening to create a form of absolutism. Hayek makes the following comment about modern constitutionalism which is relevant to Australia. "Constitutionalism means limited government. But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. As a result it has already been seriously suggested that constitutions are an antiquated survival which have no place in the modern conception of government. And indeed, what function is served by a constitution which makes omnipotent government possible? Is its function to be merely that governments work smoothly and efficiently, whatever their aims?" (F A Hayek, Law, Legislation and Liberty, Volume 1, Rules and Orders (1973) p 1).
The problem with the US Bill of Rights has been that after the New Deal, it was construed by judges who have re-interpreted its philosophical basis. The US Bill of Rights has provided some significant limitations on state power in the US. In the hey-day of American liberalism, if not for the Bill of Rights, there would have been far more interference with individual freedom, with the consequence that the US would be a less free place than it is today. The basic problem with the proposed and rejected Murphy, Evans and Bowen Bills of Rights was that they did not limit government power. What provisions they contained for limiting power were cancelled out by provisions which enabled government organs to avoid the effect of these limitations. The limitations on power were rendered nugatory. These Bills were Bills of Rights in name only and were frauds perpetrated on the public. A Bill of Rights provides rights to individuals to protect themselves from the encroaching power of government. Not only did these Bills not contain effective provisions to limit government power, they provided means by which governments could extend and expand their power. Checks and balances A true liberal system contains many devices for division of power in society through checks and balances. This system operates through i. the law and the Constitution and ii. interaction between individuals and institutions in a free society. (ii) is analysed in section 17.6. The following analysis focuses on the first factor, which operates through a Constitution. The distribution of power among organs through a system of checks and balances in the Constitution and law "The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another." Montesquieu, The Spirit of Laws, B XI, Ch 6. After defining the three kinds of powers of the state legislative, executive and judicial, Montesquieu enunciated and justified the principle of separation of powers. The principle is founded on Lord Acton's assumption, "Power corrupts; absolute power corrupts absolutely". The concentration of all powers into the hands of one individual or group must place them in a position to abuse that power and thus to instil fear into the common man. Power, by its very nature, can only be checked or regulated by power. Therefore, in order to guard liberty against the abuse of power, it is necessary to distribute powers into many independent (or at least semi-independent) centres. When this is done the man who holds power must fear the reaction of other power centres to any abuse of power by him. He must fear the capacity of his potential victims to seek the aid of his rivals. He must especially fear the reaction of his rivals to any attempt by him to expand his powers at their expense. His ability to hide his own transgressions or to intimidate his opposition must be less. He will be vigilant to protect the proper sphere of his own office from encroachments. His policies must
be acceptable to the community and the temptations which beset him must be less. He will be more likely to take pride in the regular and proper conduct of the duties appropriate to his office. Furthermore, the distribution of power enables the authorities responsible for each power to be constituted in different ways so as to suit the particular nature and demands of each office. For example, the judicial power requires a depth of technical legal learning and a mind trained in the processes of adjudication and legal reasoning, a professional integrity and ethos and the existence of a professional corps which is not necessarily appropriate to executive or legislative power. In the same way, the demands of executive government for leadershipresolve, strength, dispatch, continuity and consistency require one person or a small compact group, while the requirements of legislation for wide and extensive consideration and generality of conception would demand a legislature consisting of many, with representatives of every section of the nation. Because each kind of power requires different methods, the combination of them in one person or body must suffer the detriment of the unsuitability of that body, constituted in one way, to the methods required for the proper use of each power. A system of checks and balances retards both corruption and the improper conduct of the several affairs of the state. The system of checks and balances begins with the separation of judicial, executive and legislative powers, as Montesquieu envisaged. However, it goes much further. The system of checks and balances operates also within each branch of the state, in the division of powers between state and federal governments and the distribution of powers between the state, other institutions and individuals in the community. Within the legislative sphere, power is distributed between the component parts of Parliament (Senate, House of Representatives and the Governor-General). The power of each House is diffused amongst its many members. A majority is necessary for the House to act. Each House has a different constituency and/or is elected in by different methods. Parliament in general is elected by the country at periodic intervals and is therefore constrained by the necessity of being responsive to the electorate. Within the executive sphere ministers, besides having the duty to govern in the interest of the whole nation, are obliged to work with an impartial public service, where such traditions of impartiality prevail. (The principle of impartiality has been undermined in recent times by governments' policies of politicisation of public services.) An impartial public service acts as a brake upon favouritism, corruption, discontinuity, nepotism and inefficiency. On the other hand, executive decision-making and policy determination remains in the hands of the ministry. Within the Westminster system the ministry is further constrained by the reserve powers of the Crown (which may, for example, be exercised to dismiss a ministry which attempts to govern unlawfully) and, more immediately, by ministerial responsibility to Parliament. Within the judiciary, power is distributed amongst a hierarchy of courts. Judicial discipline is ultimately enforced by the appeals process. Furthermore, the selection of the judiciary from an expert profession trained in the canons and traditions of the law and equipped by experience for the administration of justice and the determination of questions of law provides for a high standard of competence and professionalism. Judicial independence is guaranteed by tenure of office subject only to the ultimate disciplinary threat of removal by the Governor or Governor-General on the address of both Houses of Parliament on grounds
of misbehaviour (ie, Parliamentary impeachment), except in NSW where judicial independence has been undermined by the establishment of a judicial tribunal. Under federal constitutions there is also a division of powers between states and the centre, usually by a divided allocation of subjects of legislative power. It bears emphasis that the system is not merely one of separation of powers. The system is one of powers balanced against each other so as to check one another. Thus, each House of Parliament must concur in order to enact statutes. Where judicial review prevails, statutes are subject to judicial review. Executive actions are also subject to judicial review. In federal systems, the upper houses of federal Parliaments usually consist of representatives of the states. In Westminster systems the executive ministry is responsible to Parliament. Ministries are restricted by civil service impartiality. The above analysis constitutes a bare outline of the doctrine of checks and balances. It is not meant to represent the actual state of affairs in the modern state. In actual practice the doctrine of checks and balances is being undermined at every point of its practical application on the basis of a false doctrine of democracy which regards majority rule as the sole criterion of constitutional propriety, forgetting that the very purpose of democracy is to act as a check, amongst many checks, upon powers in order to provide a balance which is conducive to the individual liberty of every person. The main example is the fusion of executive and legislative powers. Modern legislation does not recognise any criteria as to the proper nature of laws. It increasingly resembles the particularity of executive regulation. On the other hand, modern Parliaments have become the mere rubber stamps of executive governments and have delegated wide legislative powers to the executive. The result has been the creation of almost unlimited executive prerogatives, ostensibly exercised in the name of the people, but nevertheless acting increasingly as a public dictatorship. This analysis may be concluded as it began, by reflection upon the words of Montesquieu: "But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both. " The Spirit of the Laws, B XI, Ch 6. The system of checks and balances operates outside the law within the political system democracy, the electoral system, free expression and criticism, the media and the existence of strong and not so strong countless independent institutions also operates as a system of checks and balances on those exercising private and public power. The system of checks and balances operates not only at a constitutional level, but through the rule of law (section 4), through the existence of independent institutions (section 17.6) and free expression and association . Federalism A related basis on which the power of legislatures and governments may be limited is as a consequence of a division of power between the centre and the states in a federal system. The division of power has the effect that each party to the federation is restricted in its exercise of
power by the existence of other units. The Commonwealth government is compelled to share its power with the States and the States' power is restricted by the power of the Commonwealth and the powers of the other states. The emphasis on states' rights in the context of burgeoning Commonwealth power is unfortunate. It tends to neglect the more important dimension that the division of power between the Commonwealth and the States was intended to limit the area of Commonwealth power.
the Commonwealth, contrary to the intentions of the drafters and contrary to the wishes of the people as expressed in successive referenda. There are thus serious problems with the Constitution, which demand attention. The Constitutional Commission and its agencies as established, were incapable of addressing and did not relate to the real problems of the Constitution. The reason most commonly advanced by the advocates of constitutional reform is that the constitution, being drafted in the circumstances of the last century, has become unsuitable for present needs. This type of argument, however, begs the question of what are the needs of the present times? The general tenor of the reformist argument is that present circumstances require greater powers for government, in particular, the central government, in order to more effectively manage the economic and social life of the community. The reformists seek to modify the constitution in order to eliminate what they perceive to be obstacles to the achievement of this object. But the fundamental question remains whether this is an object which the community desires. The pathetic record of the attempts at reforming the constitution reflects the fact that the reformists have failed to address themselves honestly to this question. The electorate has time and again rejected proposed alterations to the constitution which have tended to increase the powers of the central government. There is a clear message in these popular reactions, but the reformists refuse to heed it. All statistics indicate that the majority of Australians do not identify their well being with the enhancement of the powers of government. But this is a fact that the reformists seem unwilling to recognise. There are two underlying perspectives which pervade the attitudes of the reformists and the work of the Constitutional Commission and its agencies. They are (i) a belief that further expansion and centralisation of government power is essential and beneficial and (ii) the Australian people are ignorant and uneducated and therefore the superior wisdom of the Constitutional reformers must enlighten the people. The belief in centralisation and increased government power is an ideological point of view. The reformers, however, treat it as a self evident fact of life. To them more government is required to deal with the problems of Australia and the changing conditions and the complexities of modern life demand more government. There is no appreciation of the existence of an alternative philosophical view nor of the strong argument that the ideology of freedom and limited government was responsible for the movement of western society in Australia from feudalism and abject living conditions for the vast majority to a prosperous modern democracy with reasonable living conditions for the vast majority. See also comments on public choice theory. There are many reasons for the failure of referenda in Australia. However, the most significant cause for the failure of referenda in Australia is generally overlooked. Twenty-six of the thirty-eight referenda questions posed involved attempts to enlarge the Commonwealth's power at the expense of the states. Only two of these twenty-six were carried, the social services proposal and the 1967 proposal to delete a discriminatory reference to Aboriginals in the Constitution, where no counter-argument was put. Whereas the High Court since the 1920's has been consistently increasing the area of Commonwealth power, contrary to the intention of the draftsmen, and undermining the federal compact, the people have consistently opposed the enlargement of Commonwealth power. The less populated states have always been suspicious of domination by the centre and by New South Wales and Victoria.
This is the main factor in the failure of referenda. It is an eminently reasonable stance which has been adopted consistently by the large majority of the Australian electorate. The less populated states entered the federation only as a consequence of guarantees provided by the Constitution, many of which the High Court has ignored. In this context they can scarcely be expected to grant more power to the centre. Proponents of constitutional change have tended to equate centralism with reformism and also centralism with nationalism. This equation is false. The ever-increasing size of government is widely recognised as being at the root of many of the problems which face Australia and other democratic countries. The people have been more perceptive in realising this than the so-called "reformists", who have wanted to centralise power in Canberra under the illusion that centralised power equals reform and is a recipe for good government. The argument put by so-called "reformists" is that the voters are conservative, they are deceived by emotive propaganda, they must be educated and the constitution must be changed with changing times. These arguments tell us more about the persons who use them than about the voters. They illustrate the contempt which many reformists have for the people of Australia, and the elitist perspective that they, and they alone, know what is best. They believe with unashamed arrogance that through centralisation of power they can solve complicated human problems. The Labor Government's approach to constitutional reform is based on a conviction that a constitution should serve the aims of a government which holds power at a given moment. The Labor politicians and theorists seem to be at a loss to understand why the electorate, which endorses their policies from time to time does not also accede to their requests for more constitutional power. There is a simple explanation for this reluctance. When political parties make promises they do not demand greater powers. When the electorate considers particular benefits offered to it, the prospect of constitutional change does not enter into its calculations, for such offers are not made conditional upon the grant of more powers (or extra taxation for that matter). But when government proposes constitutional changes, the electorate considers them specifically and, as the record shows, generally rejects them. If the promises of political parties are made conditional upon the grant of more powers or the restriction of liberty, there is no doubt that the public will reject both the benefits and the demand for power. The Labor Party in particular has never had the courage to tell the public the cost of its programs in terms of money and liberty. Instead it adopts programs and then seeks to gain more power for their implementation through subterfuge. The Labor approach is based on a misconception of the role of a constitution. A constitution is not an instrument for particular times but a charter for posterity. That is not to say that a constitution should remain permanently inflexible. What it means is that a constitution by its nature is not something that can be changed at will to accommodate the wishes of transient majorities in parliament. The Australian Constitution undoubtedly reflects the values of its Founders. There is a case for altering a constitution when values change. But this is easier said than done. How are present community values to be determined? Is a transient majority in the Commonwealth Parliament or a group with a philosophical bias which calls itself a Constitutional Commission competent to decide? What issues should be put to the people? But there is a more important issue which arises in relation to the present attempt to change the constitution. Should a constitution be pliant to momentary pressures or should it represent a longer-term compact insulated from the vicissitudes of majoritarian impulses? Can a
constitution in a meaningful sense operate on the principles of expediency? Any discerning observer will concede that even in the United Kingdom where the parliament is supreme there are fundamental, enduring principles which require observance if that form of government is to endure. In a society such as Australia where there is pronounced diversity of interests (regional, economic, social, ethnic, etc) the need for constitutional certainty is even greater. In such a society the terms of association have greater claim to observance. But we need not go so far. History is quite clear that there are no inevitable trends in social perceptions. What is popular social policy today can be rejected tomorrow. It is evident that the assumptions on which the present proposals for amending our constitution are made, have already been rejected by most Australians. A constitution which is pliant to short-term majority opinion cannot serve its purpose. It cannot protect minorities or individuals. It will be a manipulated statute which will sooner or later fall prey to demagogues and dictators.
The safeguards in liberal constitutions and constitutional theory have been undermined in various ways some of which surface in sections 16 to 18. The Existence Of Independent Institutions The existence of a multitude of independent institutions is one of the most characteristic features of western civilization, reaching back to ancient times. This feature reached its height during the middle ages and is still important today, although in a truncated form. It was the formative framework for many of the values, conventions and institutional processes which are taken for granted today, setting the civilised tone of western society. The notions of law and legal rights, of personal liberty, of free endeavour and freedom of thought, of authority and the concept of jurisdiction, of the freedom to stand out, the idea that justice is better than compromise or arbitration and that right is superior to expediency and conformity, the Western value of independence and the responsible individual all these can be traced to this principle of independent institutions for their institutional and cultural establishment. These characteristics of institutions can be traced at two levels. The first level is the independence from state and from one another, of the various kinds or categories of institutions, such as church, state, university, professions, trade and mercantile, cultural and sporting associations. The second level is the independence and diversity within each of these main categories. For example, the diversity of denominations within the church and of orders, localities, institutional structures and charitable organisations within the various denominations. Within and associated with the state, there are various independent and semiindependent spheres of power and association, such as the branches of the armed services and their civilian associations (such as the RSL), the civil service, the judiciary, the legislature and its several Houses, the executive government, state and federal governments and free cities. Similar patterns apply for the other groups, and it is only necessary to add that there is considerable overlap and interaction between all of the various groups and institutions which go to make up the cultural activity, unity and, at the same time, diversity of society. The existence of independent institutions is important for two reasons. It is I. conducive to cultural freedom and II. essential for cultural vitality. Independent Institutions Conducive To Personal Freedom The existence of a multiplicity of independent institutions is conducive to personal freedom. In a society characterised by such an interdependent structure, the individual has the option of entering into, or giving his allegiance to, any one (or perhaps more than one) of these institutions. Furthermore, he has the option of leaving one in which he is engaged and transferring his allegiance to another. This affords him a measure of direct protection from abuse at the hands of any one of, or even a collusion of, the various groups and institutions. The man who is persecuted in one denomination may join another. The man who is persecuted in the civil services may go into business. Further, this primary measure of protection gives rise to a secondary measure of protection by means of the principle of competition. The existence of a range of alternative independent institutions not only provides a remedy for the dissatisfied man; it also provides an incentive for his associates to promote his satisfaction if they wish to retain his association.
There is a further aspect of this system as it relates to personal freedom. This is the possibility of neutrality. It may be that the individual does not care to associate with a particular institution which wishes to foist itself upon him. Indeed, he may not care to associate with any institution at all. Independent Institutions Essential For Cultural Vitality The existence of a multiplicity of independent institutions is essential to the cultural vitality of society. Such a system avoids the sterility of a system where every aspect of human life and activity is directed by a single power (totalitarianism). The sterility of totalitarianism is the result of the monopolistic direction of all the varied affairs of human activity by persons whose expertise is confined to one area (usually political survival skills) in conformity to the precepts of a totalitarian ideology and the censorship of all activity which is not in conformity with the precepts, and conducive to the goals, of that ideology. On the contrary, a system of independent institutions allows for the free and direct expression, in various activities, of those differences of emphasis and opinion which are born out of differences in education, training, scholarship, experience, purpose and natural taste. By allowing for these factors, a free society is much more likely to attain to the highest and truest virtues in the various fields of its cultural activity, unencumbered by any ideological straight-jacket. Furthermore, the personal freedom in such a society allows the individual who is not aligned to any great institution to make his own contribution. This is an essential part of cultural vitality because, so often, it is the individual of genius, who dares to be different, who is the instigator of cultural advancement. One man can achieve more than a committee. Many individuals have been influential in the fields of science, philosophy, religion, art and music, law, trade, government and so on. Such men can have only very limited opportunity in a system where all power is centralised. They will have only such opportunity as the central power chooses to afford them. The Advantages Of Independent Institutions Being Undermined The advantages that institutional independence give our society are personal freedom and cultural vitality. Such a system is not inherently divisive or destructive. Some institutions and individuals compete, react to each other, debate, argue, co-operate, make exchanges, advise each other and persuade each other. In so doing, they are interdependent from a basis of independence. The result, on the whole, is a society which is cohesive and healthy rather than divided by firmness of incommensurability. But even where there is division, that is far healthier than an artificial unity which consumes all originality, efficiency, vitality and life itself. To repeat Lord Acton's aphorism: "Power corrupts: absolute power corrupts absolutely". Just as within the state a division of powers, a system of checks and balances, makes for a wellregulated state, so a healthy society is characterised by a very wide distribution of institutional power. Such a distribution has gone into the formation of the west in general and Australia in particular. In that distribution, the state had its place and did not trespass into other jurisdictions. The modern state, however, has overleapt its boundaries. It is fast consuming the jurisdictions of once independent institutions and reducing them to shells or to instrumentalities of the state. Many have come to depend upon state patronage either through
state monopolisation of cultural markets or simply by accepting state funding and spending to an extent which makes them reliant on the continuation of such funding. Modern Australia has received the legacy of a free society. It remains to be seen whether that legacy will be preserved.
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The Rule Of Law Supremacy Of Law The Concept Of Justice Discretion The Doctrine Of Precedent Common Law And Statute Retrospective Legislation An Independent Judiciary Limits On The Power Of The Legislature The Moral Dimension
Restrictions on the exercise of discretionary power. The doctrine of judicial precedent. The common law methodology. Legislation should be prospective and not retrospective. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive. ix. An underlying moral basis for all law.
The concept of justice has three facets - interpersonal adjudication, law based on fault and an emphasis on procedures. Interpersonal adjudication This aspect of the concept of justice is based upon the rights and duties of the individual person. The liberal concept of justice is an interpersonal one - resolution of conflicts between individuals. Individuals can suffer or perpetrate wrong. Individuals can be punished, protected and granted restitution. Justice is an interpersonal thing. It consists in upholding that which is right and due as between persons. Social justice which involves society and groups is a concept which is directly antagonistic to the liberal idea. It is a concept which is nebulous and non achievable. Its proponents increase state power to effect it, with counterproductive results. Even between persons, absolute justice is frequently unattainable. The best result which is practically and logically possible is not necessarily the perfect result. For example, in motor accident cases where one person suffers brain damage due to the negligence of a drunken driver, it is practically impossible to grant full restitution to the injured person. He can be compensated for medical expenses. He can be awarded a sum sufficient to improve his situation. He cannot be restored to his pre-accident condition. His brain damage cannot be repaired. It can only be ameliorated. It is not easy to determine a just punishment for the drunken drivers. In other cases, perfect justice is logically (rather than physically) impossible. Such cases arise in situations where there are legitimate interests on both sides but the interests are in conflict. Only one can prevail. Someone has to lose. Justice requires that the better interest should prevail but that does not mean that there is no merit in the inferior interest. The law of adverse possession provides an illustration where the conflict is between an owner who has abandoned his land and another, professing to be the owner, sells it to a person who takes possession of it and improves it. There is merit (and possibly demerit) on both sides. The best that can be done is to develop rules to help ascertain which side has the better right. Between persons, justice consists in upholding right behaviour and the courts can adjudicate between persons. Resort to the courts is only considered when a problem (a conflict) exists. The role of the judicial process is, therefore, the resolution of conflicts. Perfect justice cannot be dispensed by the state. The role of the courts is to deal with injustice once it has already occurred. The traditional emphasis upon adjudication and non-recognition of so-called social welfare rights is evident in the protection which the law traditionally afforded to private property. The idea of redistribution of wealth is completely alien to the common law. A rich man cannot be sued by a poor man merely for being rich. Taxation was prohibited to the executive government, being confined rather to the representatives of the nation in Parliament, who were expected to be jealous defenders of their individual liberty and property. Inter-personal adjudication is practical and realistic. By its very nature it deals with the real problems which arise between individuals, instead of those problems which arise solely in the minds of ideologues. Law based on standards and fault The second facet of the liberal concept of justice is that a person should not be disadvantaged
or punished except for fault (intentional, reckless or negligent wrong doing, strict liability applying in exceptional circumstances). The idea of fault is the golden thread that runs through the fabric of the legal order. The Magna Carta contains one of its early manifestations. But the whole of the common law relating to crimes, civil obligations and property rights is characterised by the notion that fault underlies punishment or deprivation. A system of sanctions based on fault presupposes known and pre-existing standards of conduct which bind the community. The Australian industrial relations system is fundamentally structured on notions of distributive justice and undefined policy. It enables tribunals to vitiate contracts, to penalise certain classes and to reward others on the basis of unpredictable considerations, although in recent times employers have become their predictable victims. Consumer protection laws similarly disregard contractual rights and obligations in compensating losses incurred by consumers. In the field of family law, fault has been all but rendered irrelevant in the annulment of marriages, grant of custody, award of maintenance and the settlement of property. The examples can be multiplied. The idea of commutative justice which has characterised the laws and customs of most civilised societies is now being progressively replaced by distributive justice. Commutative justice aims at correcting the violation of pre-existing rights. It seeks to give back to one what has been taken away from him or to give him adequate compensation in lieu of it. Distributive justice on the other hand aims at distributing wealth according to egalitarian schemes. In practice, distributive justice results in the creation of new rights and liabilities in substitution for those traditionally enjoyed or suffered under the law. These rights are created in accordance with the ideologies, prejudices, or subjective opinions of individual bureaucrats or members of tribunals who make decisions. Powerful pressure and interest groups influence those making the decisions. The law is particularised and rendered uncertain, thus undermining the foundations of justice and liberty. Due process The third feature of the liberal concept of justice is the emphasis on procedures. The liberal does not believe in the possibility of achieving equality, democracy, justice, the public good and other ideals through legislative and prescriptive action. Such a task is too complex for the human imagination, conception and execution. An emphasis on procedure is one of the foundations of the rule of law. Procedures provide for limitations on power. Procedures provide that before judicial, legislative or executive decisions are taken, a series of checks and balances are in place to mitigate against the possibility that the decisions will not be hasty, ill-conceived or based on corruption, passion, ideology or eccentricity. The key institutional and procedural characteristics of a liberal legal order include rights which ensure that a person is not disadvantaged except according to rules of procedure and evidence established by law, which ensure a fair trial. These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process, such as the right not to be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty. The rules of procedure, evidence and natural justice also protect individuals from arbitrary governmental action and illegal deprivation of private rights. They are essential to the protection of individual rights of personal freedom and private property.
18.3 Discretion
The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion. The existence of widespread discretion is therefore directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of mere reason. An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favour. Discretion, on the other hand, undermines justice. Discretion may exist in the context of executive, judicial and legislative branches of the modern state. Executive discretion is the most dangerous of all forms of discretion. This is because its impact upon the citizen is immediate and uncertain. Legislative discretion is uncertain but not immediate. Judicial discretion is immediate but not uncertain. Executive discretion, in suffering from the effect of immediacy additional to uncertainty, is open to the greatest possible abuse. The administrator has immediate unfettered power over the individual who stands at his mercy. The opportunities for arbitrary, insolent, discriminatory, intrusive and corrupt activity as well as totalitarian social engineering, are maximised at this point.
which is the soundest basis for the formulation of legal precepts (subject to comments below relating to modernisation and legislation). The Virtues Of The Common Law 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 Francis, QC, in an unpublished speech "... 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 and 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, (notwithstanding 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 commit arbitrary acts. Judicial discretions, unlike political 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 disputation where individual rights and duties are claimed and evaluated. No comparable process obtains in the political system in which ideological considerations often prevail and aggressive pressure groups exercise influence without regard to reason, justice or community values. Common Law Needs To Be Supplemented By Legislation Legislation in a modern technological age is necessary and useful. The common law method, like all human creations, is imperfect. It can usefully be supplemented by legislative action. But modernisation is not the same as social engineering. Under the guise of modernism, social activists are implementing their policies. 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. The common law restrictions on freedom are expressed in the form of criminal offences, civil wrongs and liabilities arising out of the sanctity of contract. When these restrictions are examined it is not difficult to see their relationship to the public morality and in particular to
the religious beliefs and values of the community. For example, criminal offences such as murder, rape, theft and fraud are acts universally condemned by the ethical systems of all major religions. Such offences constitute the core of the restrictions on human conduct recognised by civilised societies. Even in the absence of major religious influence, civilised communities consider such acts reprehensible and impermissible as they jeopardise human survival and well-being. Each common law crime thus protected an institution or value which was considered to be of fundamental importance. Offences such as murder, rape and assault protected personal physical integrity. Crimes such as larceny, fraud and cheating protected private property. Apart from crimes which were considered as prejudicial to the community as a whole, the common law developed other restraints against causing harm to person, property and reputation by recognising numerous torts or civil wrongs. These as well as actions based on contract enabled individuals to sue for damages. Together they formed a corpus of rules determining the boundaries of permissible and impermissible conduct. The development of the common law of torts in more recent times demonstrates the dynamism of the system to accommodate the needs of changing social and economic conditions. Employers' liability to provide working conditions and training adequate for the safety of workers is one example. The application of the law of nuisance to owners of property which through neglect causes harm to others is another example. One of the problems of applying the common law method in the modern era is that circumstances posing dangers to society can arise suddenly and the common law response (relying as it does on appropriate litigation coming before courts) may not be sufficiently rapid to avert harm. In these circumstances it becomes necessary to create safeguards by legislative action. In such situations, although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of proposed restrictions. The common law approach gives predominance 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 objectivity and impartiality. In other words, the modern legislator who contemplates placing a restriction on liberty, should approximate his role closer to that of the judge than to that of an ideologue or a person with received wisdom to effect far reaching changes in the public interest. It is only by such means that we can determine the perceptions and priorities of the community. The common law approach is also characterised by the importance attached to personal freedom, the freedom of speech and expression and the freedom to hold and enjoy property. The precedence given to these rights flows from their indispensability for the enjoyment of all other rights and liberties. In the common law system, fairness and objectivity in the resolution of 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 Critics Of The Common Law The critics of the common law are never tired of pointing out the problems that have arisen as a consequence of common law decisions. In a world of imperfect human beings reacting with each other in an uncertain and accident prone environment, problems are inevitable. Yet the strength of the common law is appreciated if it is compared to other legal systems of the past and the present. If comparative studies are conducted, the record of the common law will appear infinitely superior to that of every other legal system the world has known except the civil law tradition. The judiciary is not totally impartial and value-neutral. But impartiality is an ideal which the common law judiciary strive towards, even if imperfectly. In this context, is the solution for a lack of impartiality and the human failings, to abandon any pretence of objectivity and move to a position where rights are adjudicated upon by people who may be biased and who are freed from all the common law restrictions which aim to control and limit bias and arbitrary action? Is the establishment of tribunals with social activist and biased judges or administrators an improvement? The present trends do not inspire. Can it be said that modern activist-dominated tribunals (eg the Human Rights Commission) will be an improvement on the traditional court in which the presumption of innocence and rules of evidence and procedure are important? Although common law courts have not been value neutral, they have tended to express the prevalent values of the community. This is consistent with the idea that the law should be the emanation of the popular consciousness and not the arbitrary will of an individual or group. The common law is subservient to laws passed by Parliament. In Australia as in England, the common law has been overlaid by statute and exists today in an emasculated form. The common law therefore, does not, as it once did, offer protection for individuals, against the over reaching and ever-expanding power of government. In England, the common law safeguards have had no discernible effect on the rise of Parliamentary supremacy, the growth of the welfare state and the expansion of government. In fact, just as much as eighteenth and nineteenth century English government inspired constitutionalism, twentieth century English government has set precedents for expanding the powers of government at the expense of constitutional limitations. This has happened in Australia too.
later call "the rules of just conduct". Madison refers to "the good of the whole", "the common good", "the public good" and "the interest of the people" in relation to the proper aim of government. However, Madison's idea of the public good is very different from that of the modern interventionist. Delegation of the law making function is inevitable in the modern state. The objectionable aspects of delegation which have undermined the rule of law are: the sheer magnitude and volume of delegated legislation, the abdication by Parliament of its duty to lay down "general principles" and the inordinate extent of uncontrolled discretions that have been conferred on the executive. The control by Parliament over "general principles" is important for the functioning of the democratic order. Parliament is elected by and responsible to the electorate. A governing political party in Parliament is elected on the basis of its manifesto which then constitutes its mandate. If Parliament is restricted to legislation on "general principles", electoral control over Parliament and also over the executive is a possibility. The executive must act within the confines of laws passed by Parliament - otherwise it will be subject to the doctrine of "ultra vires" (acting beyond authority) and its actions will be invalid. The people may compare legislation with the Party manifesto and pass judgment. Thus the control over Parliament and the executive by the electorate breaks down due to: i. the sheer volume of delegated legislation, and ii. delegation to the executive of legislative power on matters of "general principle".
are not averse to creating new sources of authority. Powers are vested in bureaucrats and tribunals such as the Human Rights Commission which are not subject to the procedural and other limitations of the common law and which, therefore, provide far greater scope for abuse of power. These are not referred to as "authoritarian" by those who establish the structures or their supporters.
Government attempts to promote equality by positive action and discrimination have many undesirable consequences. Three consequences may be noted. 1.
If rewards are based not on achievement and effort but on fairness, what inc work? 2. Who is to decide on fairness? 3. What are the criteria of fairness? In recent times, the liberal idea of equality of opportunity has been subverted and transformed into a concept which may be termed equal opportunity. Equal opportunity departs from the orientation upon personal freedoms which is inherent in the liberal concept of equality of opportunity. Equal opportunity means an equal chance of participation in any activity, public or private, where there is any opportunity of participation. The compulsory imposition of anti-discrimination programmes upon private firms is an example of equal opportunity in action. It will be seen that equal opportunity is actually inimical to the liberal concept of equality of opportunity because it interferes with the freedom of others to pursue their vocations or private interests as they see fit. There is an inescapable, inevitable and fundamental conflict between the ideal of fair shares and freedom. Action for equality must necessarily involve government regulation and reduce liberty. Government regulation must necessarily restrict liberty. The consequence is that there is a difference between the ideal and reality. Government measures to promote equality are drafted and implemented through politicians and bureaucrats with all their human failings. There is a wide gulf between theory and practice wherever equality based policies have been tried. The end result of a movement towards equality of outcome in the hardline communist countries has been a state of terror. Russia, China, with evidence provided by the trials of the Gang of Four of atrocities within China, and the genocides in Ethiopia and Cambodia, offer clear and convincing evidence. And it must be emphasised that even terror has not equalised outcome. There are studies which establish that there was more inequality in the Soviet Union and the other communist countries than in the western representative democracies. The less extreme measures taken in democratic socialist countries in the name of equality of outcome have shared the same fate to a lesser extent. Where they have succeeded beyond equality of opportunity, governments have restricted individual liberty. They have failed to achieve their objectives. They have failed to establish fair shares. The most important reason for the failure of equality based policies is that such policies invariably mean government control which diminishes freedom. Experience shows that restrictions on economic freedom inevitably affect political freedom. One of the myths of radical socialism is that it is possible to preserve political freedom while destroying economic freedom. Experience proves this claim to be false. Popular ownership is the ideal. Government ownership and centralisation of power is the necessary consequence. Equality based policies aim to impose equality but, in fact, increase inequality. This is not merely because they directly attack equality of opportunity in the sense of freedom to pursue an interest or vocation, but because by destroying incentive they inhibit that individual initiative which has been responsible for modern economic progress, growth and
development. Modern economic development has systematically raised the lot of the ordinary man to a level of prosperity undreamed of in past ages, when such prosperity was confined to a few. This development was the direct result of individual initiative and endeavour within a system which allowed individual incentive and free activity. By directly impinging upon individual incentive and free activity, egalitarian policies and programmes actually inhibit the process of economic growth and development, thus inhibiting the only mechanism in history by which inequality has been systematically, successfully and continuously ameliorated on a large scale.
which does not know what the people feel and think is in a dangerous position. The government that muzzles free speech runs a risk of destroying the creative instincts of its people. Freedom of speech is also important to government because when criticisms of a government are freely voiced, the government has the opportunity to respond and answer unfair comments and criticisms about its actions. On the other hand, when freedom of speech is restricted, rumours, unfair criticism, comments and downright falsehoods are circulated by word of mouth. These have a habit of spreading across the length and breadth of the country through conversation and surreptitiously circulated writings. The government is in no position to answer these views, because they are not publicly stated. It is in a government's interest to have criticisms in the public arena where it can answer its critics and correct its mistakes. The government generally has access to electronic and print media far in excess of individuals and groups. It is able to present its view only if the opposing views are in the open and known. Finally, the freedom of speech is the single most important political right of citizens, although private property is required for its operation. Without free speech, no political action is possible and no resistance to injustice or oppression is possible. Without free speech elections would have no meaning at all. Policies of contestants become known to the public and become responsive to public opinion only by virtue of free speech. Between elections the freely expressed opinions of citizens help to restrain oppressive rule. Without this freedom it is futile to expect political freedom or, consequently, economic freedom. Thus freedom of speech is the sine qua non of a democratic society. Freedom of speech involves toleration of a great deal of nonsense and even of matters which are in bad taste. There are those, among them notably Justice Douglas of the American Supreme Court, who have argued for near absolute freedom of speech and against the restrictions based on many of the common exceptions. In Roth v US 354 US 476 (1957) a case about obscenity, Justice Douglas said in dissent: "The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the Judge or jury thinks has an undesirable impact on thoughts but that is not shown to be part of unlawful action is drastically to curtail the First Amendment." Problems arise where some people call for groups such as National Action to be made illegal as tending to encourage racism. In a recent incident at a University, where National Action had set up some tables to distribute literature, tables were overturned and groups of students shouted against racism. Those who attempt to resort to such tactics to stifle presentation of an opposing view give the impression that reason and logic are not on their side. Freedom of speech has as its necessary corollary the expression of a wide range of views, some of which of course will be unpalatable, or clearly wrong. However, the alternative of placing the agenda for public discussion in the hands of paternalistic bureaucrats (who as human beings will be fallible and will have subjective views and personal prejudices) whose rulings often cannot, or can only with difficulty and cost, be reviewed in the courts, is increasingly becoming the norm. It is an undesirable and unfortunate trend. The attacks on Professor Geoffrey Blainey are symptomatic of developing trends. History demonstrates that problems have arisen in multi-racial, multi-lingual and multi-religious
societies. Professor Blainey's view should be freely expressible as part of the public discussion about our immigration policy, along with any other views, without him being subjected to personal and vituperative abuse or threatened with violence. The process of public debate provides an opportunity for an evaluation of his views.
violence. New laws which enable prosecution at a much earlier time are both unnecessary and exceedingly vague (and therefore potentially dangerous) in their operation. Indeed, the freedom to make such statements is an important safety valve which society needs in order to lessen the likelihood of resort to physical aggression. Tensions of a racial nature are bound to develop in all walks of life and should not be suppressed. A heated public debate does not necessarily lead to, and is far more desirable than, violence. Those in Australia who are proponents of the fashionable term "Multiculturalism", mostly politicians, journalists and certain segments of academia (very few of whom are actually migrants), make strange bedfellows with those who promote the latest version of the Racial Discrimination Act. Indeed, it seems that most of these people wear two night-caps. They cannot be ignorant of what Italians feel about Greeks, Ukrainians about Russians, Chinese about Vietnamese, Turks about Armenians, Indians about Pakistanis, Nigerians about Ghanians, or Croats about Serbs and vice versa. Australia's attitude to all this should be that we welcome immigrants from any country, with the stern proviso that their national politics be firmly left at home. But the transformation of theory into reality may at times be more aptly described as metamorphosis, except that this time the butterfly can be uglier than the caterpillar. One simply cannot legislate to prevent people from holding what may be racist attitudes, especially migrants who could have fought against each other in the World Wars. The best we can do is to educate and attempt to change attitudes and let time heal these wounds as new generations of Australian-born children leave these views behind. Certainly legislating to make these thoughts inexpressible is only likely to harden people's feelings and prolong the whole process. Professor Lauchlan Chipman has this to say about the amendment (quoted above) proposed by the Human Rights Commission: "It is not excessively dramatic to say that not since the Second World War have we seen proposals for limiting freedom of expression as restrictive as some that are currently under discussion. All of them derive from the progressives of the new class and more importantly all of them are put forward in the name of protection of the innocent from hurtful speech. At first, the proposed amendment might seem unexceptionable; something that only racists or people insensitive to the hurt caused by racists would oppose. And indeed, as is so often the case, people who oppose this amendment in good faith will be called racists. (Regular readers of Quadrant will recall that the present Commonwealth Attorney General was, as Shadow Attorney, not averse to using parliamentary privilege to describe Quadrant contributors who criticised multiculturalism as "sophisticated" and "more dangerous" racists. Late last year the Evans speech was cited at a multiculturalism conference in Adelaide as proof that this writer "hated ethnics"). One thing that is particularly worrying about the Human Rights Commission's proposed amendment is that it has deliberately chosen (it considered the alternative and rejected it) to construct the offence in terms of objective consequence rather than intended effect, in a way that is modelled on the defamation laws of most States. Thus if a newspaper were to report, in good faith, claims about the comparative alcoholism rates among Aborigines and nonAboriginal Australians... and as a result a minority of the readers were reinforced in an intolerant attitude to Aborigines, an offence may have been committed. Now we will be hastily reassured that the proposed legislative amendment is not intended to extend to "bona fide public discussions", scientific reports, or works of art (the latter exemption no doubt intended to save Wagner and Irish jokes).
It is difficult to imagine anything more ludicrous than the Human Rights Commission making judgements about whether something is a work of art, whether a public discussion is bona fide, or whether a report is genuinely scientific. It is not just ludicrous. It reeks of all of the classical dangers of censorship. Moreover it is doubtful if it will achieve anything in relation to its declared and legitimate objective of diminishing racial tensions. (Comparative English legislation actually correlates with a rise in overt racist activity, and in the proportion of racist smut which is anonymous.) It may succeed in having Adolf Hitler's Mein Kampf banned in Australia, unless it qualifies as a work of art. "(Quadrant, May (1984) p 24).
New South Wales, former federal Commissioner for Community Relations and former Immigration Minister, Al Grassby, is reported to have called for the removal of Clive of India from New South Wales school libraries on the ground that it is racist. To quote Professor Chipman again: The arguments given for removing these books from school and municipal libraries could be extended to removing them from all libraries. The arguments are essentially those offered by Plato in Book X of The Republic. Indeed the parallels between Plato's Republic, Oceania in Nineteen Eighty Four and the new illiberalism in Australia are striking. In all cases, a publicly educated elite, sure in its values but untrusting of the rest of the community to quickly endorse or understand its values, adopts a paternalistic (The Republic) or Big Brotherly (Nineteen Eighty Four) protective role. Plato's Guardians, and the new moralists of the new class in Australia, who are associating themselves with such very worrying agencies as the Commonwealth Human Rights Commission (itself an interesting specimen of Newspeak terminology, of which more below), various Anti-Discrimination and Equal Opportunity Boards, and a number of other advisory boards and ad hoc panels with direct access to Attorneys-General and other political leaders, have a remarkable amount in common. Like The Party in Nineteen Eighty Four, under the sternly protective but nonetheless sibling image of Big Brother, these people believe that not only do they know the truth on important matters of social order, but they know it with a certainty which justifies them in legislating for the implementation of this certain truth by whatever measures are necessary. Like Plato's Guardians, they fear that the lower classes (Orwell's proles or quite simply "ordinary people") will be too lethargic, weak-minded (the effects of prior "structural social conditioning") or too weak-willed to achieve voluntarily the rapid implementation of these selectively revealed goods.(Quadrant, May (1984) p 28).
The most common approach of the critics of the arguments of the right is to attack the man rather than the idea and to use denunciations without resort to rational argument. The descriptions and associations used by Labor Ministers of the Crown include: racists, fascists, imperialists, conceited Coalition of privilege, troglodytes, neanderthals, drones, thugs, persons who are cold of eye and hard of heart, lunatic fringe academics, failed and frustrated ex-public service mandarins, simple minded avaricious millionaires, mercenaries of the money markets, born again political inquisitors of the National Farmers' Federations, clandestine clubs, flag waving, anthem singing, Queen toasting phonies, economic fantasies, incoherent ravings, the black and sinister hand of this clandestine and subversive force, politically an evil view, men of straw, branch of the Ku Klux Klan, persons with an obsessive desire to maximise profits through tax evasion. The public policy debate in Australia is dominated by abusive rhetoric. Some socialists have, over the years, perfected the art of suppressing opposing views through tactics involving abuse of opponents and of propagating their own views by vigorous assertion and catchy slogans. A key strategy is to heap abuse and ridicule on opponents. Those who call for de-regulation and privatisation are called the defenders of privilege, the exploiters of the poor and the divisive elements of society. Those who support national defence and opposition to the global threat of communism are labelled as war mongers and adventurers. Those who call for the reduction of the size and cost of government are portrayed as uncaring persons who are insensitive to the problems of the less fortunate. All critics of socialist policy are generally branded as extremist, the presumption being that the left alone are rational and reasonable. They present all social problems as a conflict between the rich and poor and the caring and the uncaring. They assert that their policies alone serve the poor whilst everyone else is only interested in entrenching the privileges of the rich. The word racist, accompanied by abuse, is freely applied to those who are not in any sense racist. There are rational arguments against multiculturalism, based on the amount of money which is wasted by bureaucrats, that it ferments inter-communal disharmony, that ethnics are prevented from joining the mainstream of Australian life and enjoying the opportunities for advancement, and other counter-productive effects. The word racist is applied to those who oppose indiscriminate Aboriginal land rights and point to the waste of a great deal of money on certain bureaucratic schemes. Many who oppose land rights would support expenditure on special medical and educational programs for Aboriginal people and for mining royalties (not veto powers over mining) in relation to genuine (as distinct from fictional) land rights claims. Socialists sell their programs by couching them in slogans. They are touted as promoting justice, equity and the quality of life. They resort to arguments by vigorous assertion, or as Professor Leonie Kramer calls them, "arguments by slogans, labels and cant phrases". By such means they have created an impression that socialist policies have brought about present levels of prosperity in society. When these propositions are challenged the left and their allies react with abuse and meaningless denunciations. There is strong support for socialist ideas by dominant elements within sections of the media (the print media, TV and ABC radio). It is this support which has enabled socialists to smother their opposition and to proclaim themselves as the guardians of the public interest and the aspirations of mainstream Australia. With the assistance of the media, they have managed to control the agenda of public debate and to intimidate the political opposition into
submission. The fear of abuse and smear have made liberal politicians fearful of asserting their own principles and beliefs. Democracy cannot be said to consist of a definite set of rules and precepts. Even if it is accepted that there are some factors which are relevant to the concept of democracy, observance of these alone is not sufficient. It is possible to observe the letter of democracy and violate its spirit. The most important element in the spirit of democracy is respect for opposing views, and what flows from this a spirit of give and take in which compromises could be arrived at in an atmosphere of genuinely rational debate. This would include not only respect for opposing views, but a way of arguing which avoids unscrupulous exploitation of half-truths, personality assassination, appeals to base emotionalism, consistency of argument rather than changing arguments and ideas for political expediency, concern for fairness and equity, an ethical perspective and so on. It is often quite possible, indeed easy, to win an argument by foul means. The trend in modern politics towards some individuals getting their own way, winning a majority to their side by intellectual shock tactics and riding roughshod over the truth must be roundly condemned. Strictly speaking, no democratic rules have been broken, except the crucial one of intellectual and moral honesty. And the wholly inadequate justification for such actions is "it is politics" or "the ends justify the means" or "we do not agree with the tactics adopted but we agree with the ends". Freedom of expression, accompanied by debate, is one of the cornerstones of democracy. What is needed is a vigorous and open debate about socialism versus liberalism, liberalism versus marxism, private enterprise versus government enterprise, the pros and cons of private enterprise, etc. This debate should be conducted on the basis of an exchange of reasons and without resort to name calling, an impugning of motives or argument by slogans and vigorous assertion. There are three reasons (operating separately or together) which are responsible for the tactics of argument by abuse, sloganism and character assassination. 1. The tactic may be the consequence of a belief in the inherent superiority of the point of view espoused and the deficiencies in the opposing point of view. 2. It may be adopted as a debating tactic in the context of a supportive media designed to put down opposing views without the necessity to resort to rational argument. 3. As a corollary to (2), this type of argumentation operates to deter individuals and institutions from entering into public debate with those who use these tactics. Whatever the motivation, it demonstrates a lack of faith in democracy. It demonstrates an undermining of the spirit of democracy which involves a commitment to fairness and decency. It also involves a violation of the basic principle of a democratic society that a decision should be made after free exchange of views in the belief that the better opinion will triumph. Whatever way one looks at it, this totalitarian attitude and mentality is dominant and destructive of democratic processes.
freedom of speech and expression, freedom from arrest or detention except under authority of law, freedom from cruel, inhumane or degrading punishments and the right to a fair trial by a competent and independent court, freedom to enjoy lawfully acquired property, equality of persons before the law, freedom of assembly and association (including public meeting and withdrawal of labour), freedom of thought, conscience and religion, freedom to contract, freedom to engage in a trade, profession or occupation, freedom of movement within a nation and across national borders. Some of the above freedoms are analysed in various parts of this book, see sections 5, 7, 20 and 21.
age, to provide adequate standards of living and education to all citizens, to rapidly develop the country, to distribute the social product equitably, to eliminate economic and social privilege and disparity, to ensure social security and welfare, to develop the culture and languages of ethnic groups, to protect the environment, to safeguard the independence, sovereignty, unity and territorial integrity of the country and to promote international peace and co-operation. The analysis above refers to three types of rights, 1. the traditional rights primarily involving protection of individuals from government, 2. ethnic and religious rights and 3. social welfare rights. It is important to distinguish between the different historical and conceptual bases of these three categories of rights which are loosely termed "human rights". Such differences between them are often blurred or ignored, with serious consequences for the operation of fundamental freedoms. Since the second world war, there has been a great emphasis on human rights other than the classical civil liberties: on socio-economic rights, and on the rights of groups or classes or nations. The recognition that the promotion of socio-economic rights, as rights to benefit from the state, stand in great tension with civil liberties may be often deliberately obscured, but it is nevertheless widespread and it is, of course, a correct recognition. The traditional civil liberties, many have correctly recognised, require institutional settings, historical traditions, a sense of community. The socio-economic rights can, in principle, be granted by the state, even by a state which suppresses all non-state organisations and institutions. Very different kinds of societies may be involved. ... The attempt to elevate human rights, in any particular formulation, uncritically, as urgent, unhistorical, abstract demands is not only based on intellectual error but is like most propaganda and moral indoctrination inherently unstable and unable to cope with genuine criticism. Human rights can only be understood, and therefore must be taught, in the concrete contexts in which they arise and have to be implemented. This is the social context of concrete history and real politics. There is also, in an important sense, a concrete human context. This is best portrayed by world literature, or at least by the great literature of the world, and not by shallow declarations and proclamations.(E Kamenka What are Rights? paper presented at the Conference on "Teaching Human Rights", University of Sydney, November 1978, p 11). The third category commonly included within the term "human rights", namely "socioeconomic rights", raises basic questions regarding the meaning and operation of human rights. The recognition of this category as rights has created certain contradictions within the concept, leading to the weakening of civil liberties. The consequences of such recognition and the conflict that arises between civil liberties and socio-economic "rights" creates many problems. See LJM Cooray ed, Human Rights in Australia, Sydney (1985) Chapter 5. Such "rights" are not recognised as rights properly so called by those who believe in the primacy of civil liberties. There are human needs. Yet where a need exists, however compelling, a right cannot be said to automatically spring into existence.
The clash of rights is a factor which the United States courts and citizens are very familiar with. An example of a conflict of rights is where the right of free expression of the press to coverage of news stories may clash with the right of an accused in a criminal case not to be prejudiced by adverse publicity of allegations made against him prior to trial or in a pre-trial hearing. American journalists generally would not show such an obvious lack of understanding of the basic principles underlying fundamental rights as is demonstrated by the above quotation. The above article is just one of numerous examples in contemporary Australia where so called rights are claimed without reference to conflicting rights and basic common sense. 22.53 Exaltation Of Particular Rights One of the real problems in the human rights arena today is the failure by the Human Rights Commission and many who profess to be concerned about human rights to appreciate that human rights are complementary to each other. The pursuit of one particular right without regard to others is self defeating and destructive of the overall framework of rights which is essential to the operation of specific rights. Human rights activists overlook this dimension. Some rights such as the right to equality of persons before the law, freedom of speech and freedom of person and property are more important than other rights. If one right must prevail over another a rational basis must be provided. This involves an examination of the two rights, an evaluation of the importance of each and the context within which they operate.
A dangerous byproduct of the welfare state and the growth of government is a profound attitudinal change in society which makes people demand more and more and contribute less and less. This transformation of the social psyche has taken place imperceptibly to the point that it unconsciously pervades the entire society. The preoccupation with rights (particularly state created social and economic rights) has become an obsession. Although this is not an intrinsic evil, the pursuit of rights becomes self defeating when it is unaccompanied by the commitment to duties. The pressures exercised by interest groups have become the dominant feature of the modern era. These demands come not only from the poor and the underprivileged, but also from privileged academic, bureaucratic, social and business groups. At the same time there is a deafening silence on the question of individual responsibility. The interventionist welfare state has become a super patriarchal entity from which individual members have come to expect solutions to all problems. Rights are being demanded and duties forgotten. The Bible emphasises duties and responsibilities (not rights). The Ten Commandments are duties. Duties have been more important than rights in the Australian Achievement. The emphasis on rights to the near exclusion of duties and responsibilities in modern society is a challenge. There is a grave danger in the push towards legislative recognition of subjective (so-called) rights in response to the demands of politically influential pressure groups. A duty-centred society is preferable to a right-centred society. If individuals are concerned about their duties, responsibilities and obligations, they cannot but be concerned about the rights and freedoms of others. A right-centred society is one in which individuals assert their rights. They are encouraged by the Human Rights Commission and like Commonwealth and State bodies, to demand rights, with no consideration for the effect of those demands on other people, eg the right to protest and demonstrate conflicts with the right of pedestrians and motorists to use the public roads for the purpose for which roads are built. Governments and pressure groups which focus on rights, give no thought to how rights can operate in the absence of a climate in which the importance of duties is emphasised. There is no end to the so-called rights which can be demanded. A right-conscious society, in effect, recognises a few rights and neglects many others. The rights that are recognised are those which are demanded by the powerful, the aggressive and the nasty. There cannot be a right without a duty. An endless cacophony of demands by interest groups for rights has become a dominant feature of the modern Australian State (fed by legislation which encourages these demands). At the same time there is a deafening silence on the question of individual responsibility. The time has come to realise and to emphasise that rights, whether material or political, depend on the discharge of duties. Wealth and prosperity are created by effort. Only continuing effort can sustain them. Western societies through effort have achieved a level of prosperity unparalleled in history. History has continually demonstrated that the greatest of civilisations decline and fall when they succumb to indulgence at the expense of discipline and endeavour. The fate of Egyptian and Roman civilisations are prime examples. It is not too early for Western Civilization to heed the supreme lesson of human experience.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
Welfare In The Western Democratic Order Political History Of Charity Wealth And Poverty Welfarism No Longer Restricted To Poor Welfare Restricted To The Genuinely Needy Private Enterprise And Reduction Of Poverty Soak The Rich Welfare And Increasing Government Keep The Poor, Poor Welfare As Disincentive To Work The Origins Of The Welfare State
iii. The object of modern welfare policies is not the alleviation of poverty but the equalisation of wealth. Although the two ideas marginally overlap, they represent totally distinct goals. Each of these points is analysed separately.
the totality of needs - needs of education, health, "welfare", and "security", the last two being open ended concepts that could receive almost any content. (Neil McInnes, "The Politics of Needs - or, Who Needs Politics?" Human Needs and Politics (ed Ross Fitzgerald) Sydney (1977) p 242).
individual's capacity to satisfy his own needs. Welfare is no longer the entitlement of the poor or needy but is the expectation of all persons. All this entails a price. The financing of the pervasive welfare system requires taxation and regulation. The welfare bill is met by taking away personal incomes and personal freedom. The modern welfare system is established and maintained on the pattern of taking individual wealth and distributing it to the public at large. The underlying principle of the welfare state is that the state and not the individual should bear primary responsibility for personal well being.
The statistics in 24.7 emphasise that the economic support for government bureaucracy and regulationary programs falls on the relatively lower income groups. The reason is that they are the more numerous. The relatively few wealthy persons constitute a minute fraction of the total population. Likewise their considerable combined wealth is insignificant compared to the total income of the lower income earners. The consequence is that regulatory programs and welfare which benefit the relatively wealthy, must be paid for by the relatively less wealthy. The main winners from Affirmative Action and Anti-discrimination policies are relatively affluent upper middle class women. The costs of these policies are borne by the lower income groups. The operation of Medicare, the education system, environmental policies and many other government programs endure to the benefit of the wealthy and the relatively wealthy and are paid for by the lower income groups.
Unfortunately, most of my son's friends are unemployed. They had no need to work as at 18 years of age they receive unemployment benefits of $88.20 a week, plus they can earn up to $30 extra a week without jeopardising their benefit. Most of these boys are excellent sportsmen, six of them live in an old rented house. They have a combined income of $529.20 a week and can earn another $180 a week without affecting their unemployment benefit. Usually they don't bother because $529.20 per week is quite enough. Well, my son is just a little bitter. He is paid around $160 a week clear for a six-day working week. The money is fine for the time being but his lifestyle in comparison to his friends is appalling. You see, the fibreglass and resins they use have inherent problems to the user but that is something you have to put up with. Its a hell of a job to keep him motivated. The good life is all around him and obviously he would like to join his friends on the coast - laugh, drink beer, catch a few big waves, maybe make love in the mornings or live in Bali for a couple of months. How do you know that lifestyle? Its really living! Follow the sun to Red Bluff in winter, spear a few rock lobsters, take up with a good-looking girl, enjoy life to its fullest. Life on the dole for an intelligent, motivated, organised, single young man is quite pleasant. Why should they strive and work and learn a difficult and sometimes dirty trade? Why should they work in cold draughty sheds or rise each day at 5.30 a.m. when their friends are sleeping in. Do you blame my son's friends for their preferred lifestyle? I don't. They have it made, thanks to our generous Government. Tomorrow is another day. My question: Can we afford this situation? I think not. What do you think? Richard Fordham, Hollywood, WA Modern welfare encourages young people to pursue a life of leisure which provides no opportunities for advancement. An individual finds commitment and meaning in life in productive employment - which the welfare system in effect denies to these people by providing incentives to opt out. The education system is also partly responsible. The undermining of discipline and the basics in education has not prepared individuals for the real world of work and discipline. The common argument which is adduced in response is that the unemployed are not unemployed by choice. Many business people advertise jobs and cannot find those willing to take them up. Many unemployed are choosy about jobs. They reject jobs which require hard work. Their education and training has not prepared them for the commitment and discipline that is required for regular employment.
that the way in which modern democracy operates has been conducive to the prevalence of special interests over the interests of a genuine majority of people. What passes for majority opinion is often a deal struck amongst collusive interest groups and government. The important reason why the welfare state was not resisted was because the public was neither aware nor informed about the costs entailed in terms of money and personal freedom. At elections, governments merely promise welfare. They do not at the same time demand extra revenue or enlarged powers. If such demands accompanied the promises it is highly unlikely that the people would accept them. Once elected on such a platform, governments assume that they have a mandate to impose taxes and to regulate personal lives and the economy in order to deliver on their promises. There is more recognition of economic realities as a consequence of the recession and unemployment (yet the words of welfare activists showed that they understand nothing). But it is difficult if not impossible to withdraw benefits which have been conferred in the past. However, there is another explanation of the growth of the welfare state which is rarely considered in the discussion of public policy. That is the extent to which the proponents of socialisation and big government have perfected and applied the art of public deception. The recent and contemporary political history of Australia is replete with evidence of such deception.
estimates, unemployment stands at almost 11 per cent. In 1966, the average income earner paid 16 per cent of his earnings in income tax. Today he parts with a quarter of his earnings in income tax and a further 15 per cent in indirect taxes and other imposts. Although welfare spending increased by $18 million (from 18 per cent of the Commonwealth Budget to 28 per cent) poverty has actually become more widespread. That is not all. An ambitious attempt to nationalise health care has left the hospital system in deep crisis. The public education system from primary to tertiary levels has been undermined and weakened. Governments are unable to cope with their essential function of protecting the citizen against rising crime. The expansion of government into areas previously regulated by private arrangement has actually provided opportunities and encouragement for corruption and fraud by both officials and private citizens. The growth of government is the consequence of governments undertaking many tasks which could have been, all things considered, better left to private enterprise. This is illustrated by the following examples: Government hospitals cost $320 per head per day to run while non-government hospitals cost $150 to $160. (Dr Paul Nisselle, President of the AMA). In NSW it costs the Government Urban Transport Authority $3.20 per kilometre to run a bus compared with $1.60 for private buses (R. Travers Morgan P/L Transport Consultants). In Australia's government electricity producing authorities, output per man is about onethird of private producers in Germany who use similar technology (Dr Peter Hartley, Centre of Policy Studies, Monash University). In 1980/81 the management cost of the government-owned Medibank Private took 50 per cent more out of members contributions than the major private Health Insurance Funds IPA Review, Vol. 36, No 3. Despite the fact that both TAA and Ansett operate under identical market conditions, Ansett put in a performance that was several percentage points better than TAA (Dr Robert Albon, Australian National University). Private laundries in Victoria can clean hospital linen for up to 16 per cent less than the Government's Central Linen Service (Victorian Department of Health). Prior to privatisation, the Commonwealth Bank's performance in terms of returns on assets and earnings per employee was inferior to that of the private banks in Australia (Paul Coughlin and others, Graduate School of Management, Melbourne University). The above illustrations are extracted from Facts, Autumn (1986) p 4. Figures can provide a misleading perspective on the nature and extent of government activity in Australia. The proponents of bigger government will argue that by comparison to Scandinavian countries, Australia rates very favourably. The figures quoted are the government expenditure component of GDP. This in itself is not an argument. It is not an achievement that Australia is not at the top of the big government ladder. Figures are often misleading because they are compiled according to different criteria in different countries. The definition of public servant and public enterprise varies. Problems arising in this context
include the manner in which statutory institutions (such as ABC, Telecom) and public-private sector joint enterprises (Qantas) should be classified. Figures also do not demonstrate the extent to which some Australian regulations are avidly anti-business and anti-private enterprise. Governments in Sweden may spend a far greater amount as a percentage of GDP. A great deal of this money is expended on welfare and government activity. On the other hand, Swedish governments have tended to tax small businesses, but leave them relative freedom (by comparison with Australia) for entrepreneurial activity. In Australia small business is more heavily regulated and is subject to active discrimination. The industrial system in Australia is regulated in a manner which finds no comparison anywhere in the democratic world. The Fringe Benefits Tax is an example of anti-business activity. A Fringe Benefits Tax imposed on the person who receives the fringe benefit is legitimate. Levying the tax on the business is symptomatic of the exploitative and antibusiness attitude in Australia which finds few parallels in the democratic world. The closest parallel was the United Kingdom which, however, under Thatcher has dismantled some of the most obnoxious features of the anti-business attitudes. Supporters of interventionism are prone to refer to OECD figures to argue that on a comparative level Australia's public sector is not as "big" as those of other OECD countries but under the OECD definition, general government outlays include only those public enterprises which mainly produce goods and services for government itself or primarily sell goods and services to the public on a small scale. Australian budget statements, however, define the public sector as including all public authorities. This is a more realistic measure of the public sector. Academic supporters of interventionist government activity focus on the OECD figures rather than the measurement adopted by the Australian government, which is more realistic. Government regulation and control cannot be entirely measured by figures, though figures provide a valuable indication. Mancur Olson, The Logic of Collective Action, Cambridge (1971) p 133, argues that Australia has some of the highest import tariffs in the west. He calculates that "their levels of protection are two or three times the level in the OECD and the United States and four to five times as high as those of Sweden and Switzerland ... the impact of protection levels that are uniquely high by the standards of the developed democracies is made even greater by the small size of Australia ..." Australia has also the most highly regulated system of industrial relations in the democratic world. Some of the other factors peculiar to Australia mentioned in this chapter combine to present Australia as one of the most regulated countries in the free world, if the effect of protection levels and industrial regulation is taken into consideration. Paul Johnson in his book History of the Modern World, London (1983) demonstrates how in England government spending as a proportion of the gross national product fell from 15% to 8% between the years 1830 and 1890. This period, he also documents, witnessed the longest sustained period of rising living standards in that nation's history. This combination of
economic and social advancement in the context of individual liberty was in the view of Paul Johnson "not only the most important event in secular history but the most beneficial". The gradual improvements in living standards and the slow but sure reduction in poverty from the Industrial Revolution to the early part of the twentieth century took place in the context of limited government and individual freedom. But as the size of government began to grow in the twentieth century (from the 1950's) progress in the slow reduction of poverty process began to taper. There is an inescapable connection between the growth of government in the last few decades, in the western world, and the increase in the levels of poverty, together with the tapering off of the rise in living standards. The growth of government marks the end of the long period of the gradual reduction of poverty. The industrial revolution emerged within a political environment which gradually minimised the role of government. Paul Johnson points out that this development took place not because of the state but in spite of the state and "was made possible largely through the withdrawal of government from economic affairs". The western democratic order has made possible a greater degree of freedom and provided better avenues for expression of views and human action than has existed at any known point in the history of organised societies occupying a significant area of territory and containing a large population. These commonsense perspectives and lessons of history are being lost. Big government is growing bigger. If the present trends are not reversed, the indications are that the optimum levels of liberty have been reached and the future will witness a steady decline. Private enterprise has been an essential factor in the development of liberal and representative democracy. Restrictions on economic freedom except those which are essential unduly restrict the scope of freedom. Freedom has never been more important than today, when there is an aggressive, fractured but extremely effective challenge to freedom from those who criticise and exaggerate the evils of private enterprise, calling for bigger and bigger government and for ever expanding government expenditure on a variety of activities. The argument has been made above (section 3) about the trickle-down effect of expansion of the private sector which reduces inequality and provides higher standards of living. Christ said, "the poor you will always have with you". This a statement of a realism, not of cynicism. The process which operated through the nineteenth century and up to the 1970s was gradually reducing levels of poverty and inequality. Recent figures for the US together with general historical perspectives demonstrate that, as government became bigger, the process has gone into reverse in the last decade. Up to the 1970s, the rich were getting richer and the poor were getting less poor. From the 1970s onwards, the very rich are still getting richer, the employees in the government sector, with indexed incomes and fat superannuation, as well as private individuals who, and organisations which, receive benefits and patronage from governments, are holding their own, but the poor are getting poorer and many others are finding that standards of living are falling. The cause is the growth of government. A standard response of regulationists to the pleas for smaller government is to argue that this amounts to support for the laissez-faire system which in the nineteenth century was
responsible for exploitation and suffering. The problems of nineteenth century Europe arose not from laissez-faire but from the then existing feudal based laws and regulations, administered by government, which prevented the formation of associations of workers (trade unions) and in other ways discriminated against workers. The present argument is not for laissez-faire (no government), and not even for small government, but for prevention of increases in, and for gradual reduction of, the magnitude of modern government. As government grows, expenditure correspondingly increases. Such expenditure is met in four ways: i. by direct and indirect taxation; ii. by other government payments and charges, eg exorbitant and unnecessarily high telephone fees, postal and electricity charges, which reflect the waste and the inefficiency of government; iii. by borrowing, which pushes up interest rates; or iv. by printing more money, which causes inflation. All these factors, especially the first, affect private business that alone can provide full employment. There is a direct correlation between growth of government (and government expenditures) and unemployment. One of the often repeated socialist demands is that government take action to deal with unemployment. How can government create jobs? An employee must be paid a wage. Where will the money come from for the payment of his wage? A great deal of the money for most government servants and those in statutory enterprises comes from the tax payer and other government revenue which consists largely of various types of levies and charges on taxpayers. A major part of the money to pay for government jobs must necessarily be extracted from private enterprise and individual taxpayers. Government enterprises such as Telecom (restricted competition introduced recently) and Australia Post pay employees from profits. Yet these monopolies are characterised by excessive charges in the case of the former and notorious inefficiency (as well as high prices) in the case of the latter. Other government commercial enterprises such as the railways, electricity commissions and Qantas function at a loss. The taxpayer is subsidising these. Government commercial enterprises are exempted from many of the taxes, levies and charges which private institutions must pay. There are other government departments and educational institutions where the entire burden of paying for the employees falls on private companies and individuals. On the other hand, the private sector, by and large, pays its employees out of its own earnings. Some private enterprises are supported by government. These are not examples of private enterprise and should be phased out. They are properly characterised as part of the public sector or as constituting a private/public sector. The employees in the private sector earn their keep. The common sense and practical dimension which those who demand government job schemes ignore is that most government jobs must be paid for by individuals and business.
regulations on human action and initiative and the financial costs of regulation for business, for those affected and for government (the financial costs for government being borne by the tax payer). The spirit of free inquiry is now competing with a critical spirit. There is now a "critical spirit" in education, media, politics and society which has been directed towards criticism and not evaluation. A further dimension is that the education system and the public affairs media close themselves (with varying degrees of aggressiveness and intolerance) to those contrary viewpoints and perspectives which relate to freedom and the achievements of the western democratic order. The standpoint which prevails is that of increasing denigration of freedom, of private enterprise and of related values and institutions. The prevailing belief is that government regulation can solve problems and that there must be more of it. This new critical spirit is running in a narrow channel and is becoming self destructive. It is no longer open to other views and philosophies - including those which were responsible for the rise of western civilisation. Freedom and tradition are consciously and unconsciously suppressed and censored in politics, the media and academia. The abuse of the critical spirit has been spearheaded by the social science faculties, departments and schools within universities in the western world. Social scientists are suffering from an inferiority complex. They have watched with awe and envy the achievements of science and technology and the extent to which the spirit of free inquiry has been responsible for such achievements. Social scientists, in trying to emulate the real scientists, have overlooked the fact that they write about things which are affected in different ways by human behaviour. A nation or a society or a section of a nation or society consists of individuals and each individual is in some respects an island unto himself. Individuals are not subject to inevitable movements as the objects dealt with in the sciences are. Human behaviour is determined by countless variables, including free choice. In this context it seems futile to attempt to develop absolute or near absolute concepts, theories and solutions for human problems in the same way, or almost the same way, that scientists in the natural and physical sciences attempt to develop concepts, theories and solutions. Social scientists too often do not realise the factors which limit and inhibit the studies they are pursuing. The above comments are not intended to deny the inherent value of all empirical social science research. There has been much valuable research. But a great deal of research has emanated from the social sciences which ignores or fails to give due weight to basic common sense perspectives, the values and institutions of the western order, the lessons of history and the reality of a world composed of individuals each one different from the other. The values and institutions of the western democratic order constitute a pretty rotten system if particular facets or problems are analysed, without a sense of perspective. It is a pretty rotten system until the alternatives are considered. What is needed is not merely criticism. It is necessary to proceed beyond criticism to evaluation. This is what most critics of the system fail to do. They fail to look at the negative and positive factors and to proceed therefrom to make a fair evaluation and only then to suggest possible reform. Commonsense (which is not common) leads to the perspective that there are no easy (or sometimes even difficult) solutions to human problems, be they in relation to law, government, politics, society, the economy or whatever. The problems of our times have been
compounded by those seeking quick solutions to human problems. The simple commonsense answer is that there are often no solutions other than the band aid remedies so reviled by activists. In seeking to apply half-baked, narrowly focused solutions to complex problems and relationships, the activists are themselves guilty of "band aid" quackery. Human beings and the forces of the environment (fire, water, winds, etc) being what they are, there will always be problems - great problems. Will freedom and limited government or ever increasing government regulation by law makers and bureaucrats be more likely to help humankind to cope? Which is the better alternative? This is the issue but it is seldom viewed in these terms, particularly by academics and would be regulators.
28. The Attack On The Values And Institutions Of The Western Democratic Order
Freedom is not an absolute concept. Freedom must be tempered by the laws necessary to preserve it. Freedom would be meaningless if any individual had the freedom to assault another. Freedom is restricted by a complex of laws. Freedom, it has been shown above, is tempered not only by law but by a series of values and institutions. The values and institutions of the western democratic order involve a balance between freedom and liberty on one hand and law and legal and social values and institutions which place restrictions on freedom on the other. It is a system which has gradually evolved over a long period rather than one which has been consciously created. In this sense it stands in contrast to the coercive systems in which a few attempt to mould individuals and institutions. The values and institutions of the western democratic order are under attack and the extent of freedom has gradually diminished in the last few decades. Free enterprise is under attack and escalating government regulation is weakening it. The idea of limited government has been replaced by that of an ever-growing state and bureaucracy. Respect for law and order and legal procedures is declining. Commitment to the work ethic is diminishing. Discipline is being undermined. The family is disintegrating. Religion and moral values are no longer as influential as they used to be. Tradition is ridiculed. Conservatism, with its emphasis on considering what is tried and tested before rejection, is a value considered to be outdated. The idea of gradual change is being rejected by a growing group of arrogant politicians, bureaucrats, academics, trade unionists, feminists, environmentalists and others, who believe that they have the answers to complicated human problems and whose reforms are often counter productive. The attack focuses on both the area of freedom and the restrictions on freedom. The explanation lies in a distorted critical spirit which, without evaluation, proceeds to analyse specific problems. Where the system permitted freedom, that area of freedom is under attack. Where restrictions on freedom have existed, these restrictions are likewise devalued and under attack. The attack on freedom, particularly economic freedom, needs no illustration. The figures provided in section 26 provide a dimension on the growth of government, which inevitably diminishes freedom, with consequences for individual freedom and private enterprise. However, at another level, the movement is designed to destroy restrictions on freedom. The family, religion, tradition and moral values are under attack. The sexual revolution, abortion on demand, removal of restrictive provisions in drug laws, attacks on the powers and authority of the police (which is indirectly an attack on law and order) and the calls for accountability of ASIO are other examples of attacks on the restrictions on freedom inherent in liberal values. An analysis of the manner in which proponents of change argue and operate provides an understanding of the manner in which a great deal of regulation has been put into place and existing laws and values undermined. The emphasis is on a problem human suffering,
exploitation, injustice, illogicality, etc. From this analysis of problems the transition is made to either the need for reform and regulation through legal enactment and powers vested in the bureaucracy, or for the destruction of existing law and moral values. A problem requires a solution and the solution is change (euphemistically called reform). The strengths of the existing system are often not appreciated and the costs of the reforms are often not evaluated. The self-styled reformist utopian will argue that the problems are so pressing that there must be government activity. The economists will speak about the problems created by freedom and the need for planning. The argument that there is a "need" for planning in a particular situation, when asserted by itself in the context of human problems, appears to be a compelling one. The regulationist or economist, however, does not consider whether planning, given human imperfections, will make the problem lesser or worse. The need is there, and therefore, with scant regard for human fallibility and all the problems and costs, the plans are made and then implemented. The argument is often made that the complications of modern life make planning essential. For the reasons adduced in the previous paragraph, the basic issue is not whether planning as an isolated issue is essential or not. The issue is whether planning can be effective - whether it will reduce or multiply the problems. See further sections 5.4, 16 and 26. A paradox which is often not appreciated is that the more complicated the society, the more difficult it is to plan. It becomes more difficult to understand the competing elements involved and the complexity of the nature of individual action and interaction. The more complicated the economy, the more difficult or impossible planning becomes. In a relatively underdeveloped social and economic system, planners with reason and common sense can pick schemes which will succeed and allocate resources on the basis of who will be the winners and losers. The modernisation of Japan, Singapore and South Korea it is said has been based on the ability of governments to pick winners. However, this strategy, even if successful in a period of relative underdevelopment, will not necessarily be repeated in a more complex structure, in which making intelligent choices is more difficult, if not virtually impossible. Another often overlooked dimension is that a great many of the problems in private enterprise do not arise from freedom and the market. They arise from government regulation. Monopolies or domination by a few large players are the product not of the market but of government regulation. It is government protectionism and government laws which provide the context in which monopolies are established. The two airline duopoly in Australia was based on legal protection, as are the broadcasting and telecommunications industries. The examples can be multiplied. Many of the problems which the critics say are due to the operation of freedom and the market are in reality the consequence of government intermeddling in the market. Government regulation that goes beyond the basic principles enshrined in the criminal, torts and contract law, generally does not succeed. Regulation is established and creates problems. The case is then made for more regulation. The blame is placed on freedom and the market, rather than on ill-conceived regulation, which is in reality the root of the problem. Failed regulation breeds more regulation in an attempt to correct the failures. The argument is often made that the original regulation did not go far enough. The problem often is that the original regulation itself was ill-conceived and unnecessary or went much further than was necessary.
There has been an unprecedented attack on the values and institutions of the western order from many quarters which have had a cumulative effect. Among those who have done most damage to the values and institutions of the western democratic order are people who call themselves "liberals" or who support "liberal values" but get carried away on particular issues by concern for manifest human problems and support counter productive reformist trends and proposals. The public affairs media in Australia and the western world in general (though to varying degrees) are not supportive of these values and institutions, which are fiercely attacked in some quarters. A similar attitude prevails in social science sections of tertiary institutions, the school education bureaucracies and teacher unions (although not necessarily amongst the rank and file). Politicians have been influenced by ideas emanating from media and education. Many politicians may substantially agree with the values stated in this book. Some may disagree. Politicians who do agree may not have the courage to stand up for all such values because of party discipline, the ridicule and largely sloganised and unreasoned comment which would follow from the media and the left (and also from some of their political colleagues). The Australian Values Study (section 35) provides interesting food for thought for a lacklustre Opposition which (a few exceptions apart) has a shadowy public commitment to the values and institutions of the order. It demonstrates the extent of commitment and support of the Australian people (outside politics, the media and the education hierarchies) for the basic values and institutions of the democratic order. There is a divergence between belief and practice. One of the causes of this divergence is the ethos and culture in law, politics, education, academia and the media which encourage conduct contrary to beliefs. Both major political parties have moved away from the values and institutions of the western democratic order under the influence of the demands of special interest pressure groups and, in the case of the ALP (and of some in the Liberal Party), because of the influence of ideology and (socalled) progressivist ideas. Australia waits for a political leader who has a true commitment to the western democratic order, translates its values into policies, proclaims those policies, exposes the failures and counterproductive nature of regulationism and (so called) progressivism, is willing to stand against the virulence and noise of the small opposing elite and to absorb the criticism and reap an electoral harvest.
29. Change
The history of the last one hundred years and more demonstrates the changes and reforms that relative freedom has brought about. It bears repetition (because it is so often overlooked) that in a little less than one hundred years mankind has moved from the age of the horse and buggy to travelling in space. There has been more change, more development and more reform in the last one hundred years than perhaps in the entire period of man's inhabitance of this planet, as a consequence of the existence of a greater degree of freedom, coupled with individual responsibility. It is significant that as government regulation has grown, the long period of rising living standards, development and reduction of inequality has tapered off. The 1970s saw a period of decline, reversing the trend of the previous two centuries. Modern reformers purport to effect changes through legislation and bureaucratic action. However, the effects of these changes through government regulation are invariably counter productive. Government regulations purporting to effect reform and change often have the opposite effect, inhibiting change. The free action and interaction of individuals and institutions, subject to limited government intervention, provides more scope for change and reform than does government action. The practical aspect of modern reformism is bureaucratic central planning. This involves individuals dreaming visions of the future. On the other hand, freedom and liberalism rely upon the interaction of individuals and institutions to lead mankind forward into the uncertain future. Galileo and Newton, those responsible for the industrial revolution, Locke and other philosophers and politicians who fought for limited government against the power of autocratic kings and feudalism, inventors and innovators, entrepreneurs and Adam Smith had no conception of where they were leading mankind. The changes beginning with the industrial revolution, leading to voyages into space, were essentially an unplanned movement based on freedom, limited government and human interaction. This unplanned movement is now susceptible to being over-directed and channelled by regulationists who call themselves reformers. Freedom leads to change. Regulation leads to stagnation, corruption and authoritarianism. The social democrats and single issue crusaders, in alliance with more extreme elements, carry through piecemeal reforms. Thus, each piece of legislation is examined by itself. No cost-benefit analysis is made of legislation. The proponents analyse with exaggeration the weaknesses and injustices in the existing system. Since each piece of legislation is considered separately there is no appreciation of the cumulative effects of legislation inter alia on freedom and the government budget. Thus, the task for the opponent of legislation is difficult. Proponents of legislation invariably argue that effects of limitations on freedom in relation to particular legislation are insignificant (underplaying the limitations) and justified in the public interest (a vague and ill-defined concept which lends itself to subjective definitions). The extent of freedom has been, is being and will be undermined by Acts of Parliament and regulations made under them, which,
separately examined, do not seem over burdensome but in their totality have major consequences. Reforms are often formulated and enacted into law without consideration of all or even some of the relevant factors detailed above (see sections 5.3, 5.4, 26 and 27). Reformists generally focus on genuine problems but not infrequently they tend to distort and exaggerate the nature of the problem. The words "counter productive" are used to emphasise that while the reform may yield certain benefits, they are counter balanced and outweighed by the disadvantages which are not foreseen, or if foreseen, are brushed aside when the reforms are drafted. Reformists, by trying to achieve too much through over regulation and over taxation, miss out on the practical and constructive reforms which can be effected. The effects are counter productive whether they are inspired by violent revolutionaries or by impractical social democrats with unrealistic ideals.
of Marxism but are influenced by the Marxist and Marxist-influenced critiques of capitalism and property relations are, so far as the effects of their actions are concerned, substantially nihilistic. They are nihilists in the sense that they are committed to the undermining and even the destruction of existing values and institutions - but their alternatives are not viable. For some, a combination of regulation and government expenditure derived from taxation will be enough. Others have blueprints for a new society based on unreal and impractical ideas such as participatory democracy, social justice, equality, etc. They are against what "is" and their prescriptions for the "ought" are unrealistic. It is in this sense that their influence can be viewed as nihilistic. They are not revolutionaries and therefore they do not appear dangerous. But their capacity to gradually destroy without constructive alternatives is easily underestimated. Communist regimes have been established in some countries by the forcible overthrow of the existing system. This will not happen in Australia and other representative democracies with a strong industrial and democratic infrastructure. The danger of Marxist socialist and other critiques of the tradition must be viewed in a nihilist sense. The problems of the near future for countries of the liberal democratic order lie not in a Soviet or communist style state or in a socialist state (socialism cannot ever be put into practice except in small voluntary communities). Nor is there a danger at present of a bloody revolution which would overthrow, in a short period, representative democracy, the capitalist system and its infrastructure. The threat that exists is of a gradual and slow undermining of the western democratic order and the growth of control over the majority by a partnership between big government, big bureaucracy, big unions, big business, big media and government-favoured pressure groups (feminist, environmental, peace, Aboriginal, etc). Two examples may be provided of the modus operandi of the reformists and coercive utopians. Labor when it controlled States in Australia, and the present Commonwealth government, has enacted draconian industrial safety laws which impose very heavy and unfair penalties on employers. An employer will be liable even if a trespasser or thief enters his property, slips and hurts himself. It is not possible to quarrel with attempts to provide for safety. But the regulations provide for punishment and fines upon an employer who may be guilty of no negligence. The implementation of the New South Wales Act involved the employment of one hundred inspectors to police the Act and only two persons to educate the public about safety. Safety could be emphasised through an educational campaign. Business, bearing the burden of spiralling workers' compensation costs, would readily accept an argument that more regard for safety will lead to a reduction in the insurance premiums. The emphasis is on regulation, not education. There is a more serious implication in penalising employers who have not been negligent. The provision seeks to apportion loss not on the basis of fault but on the basis of what is (spuriously) considered "equitable". The favoured interpretation of "equitable" is that the person who is more able to afford the loss is required to bear it, irrespective of fault or innocence. The concept of fault lies at the foundation of justice in that it is essential to a system of individual responsibility and individual rewards. See section 18.2. The Australian Parliament established a Human Rights Commission. The early emphasis was on education - a research institute promoting thought and informed and balanced debate about voluntary respect for, and the importance of human rights. The papers which have emanated from the Human Rights Commission and allied agencies, at considerable cost to the public, have been papers stating the case for more regulation. The Human Rights
Commission is not concerned about the totality of human rights. Such an analysis must take account of the importance of freedom and the need for duties and responsibilities. A right cannot exist without a corresponding duty. Human needs do not create human rights. But the Human Rights Commission is encouraging and inciting some sections of the community to demand rights without any regard for the philosophical and historical perspectives which should be paramount. It is also unconcerned about the notions of duty and responsibility. It selects or manufactures rights and exalts these "rights" over and above the important and basic rights of the liberal tradition which include freedom of property, freedom of expression, the right to a fair trial, due process and equality of opportunity. These basic rights, that have collectively been responsible for a great deal of development and progress, are being undermined by a series of new social engineering "rights" created out of the air, as it were, and contrary to evolutionary development and western philosophy. See further, LJM Cooray, Human Rights in Australia, Sydney (1985). Lenin, Stalin, Hitler and Pol Pot are the twentieth century examples which illustrate the difference between idealism and reality, the theory and the practice of coercive utopianism. The internal threat that faces the democratic capitalist tradition is not of a Hitler or a Lenin but of numerous little Lenins and Hitlers, not committing mass murder, but springing up all over the place, becoming increasingly influential and trampling on the rights of individuals, imposing their biases and limited ideas upon the mass of the population, with invariably counter productive effects. The real enemies of society today are not necessarily evil men not the murderers, not the rapists, not the unscrupulous businessmen and not the aggressive trade unionists. The most dangerous enemies of society are men and women with impractical ideals who have the arrogance to believe that they have the solution to complicated human problems and who wish to use the police power of the state to impose their ideas on the public. The reformists have been referred to above as idealists. This is somewhat misleading. Idealism is present to a lesser or greater extent but it is not all idealism. They occupy the moral high ground on public issues. However, there are other motivating factors which are glossed over and which are not adequately emphasised. A significant motivating factor, especially among the affluent reformists (many reformists tend to be affluent) and especially in politics, the bureaucracy, academia and the media, is what may be termed "false guilt". They feel guilty about the advantaged economic and social position which they enjoy and they take an easy way out. They retain their comfortable lifestyles. They support a cause or causes and ask the government to act to coerce other people to make the sacrifices. It is very easy for urban folk to be concerned about Aboriginal land rights whilst requiring the farmers or the mining companies to make the sacrifices. These sacrifices will in the long run affect everyone but they do not have the foresight to understand this dimension. It is easy to ask the farmers and mining companies to make the sacrifices. This easy concern is a twentieth century phenomenon. The reformists of earlier times made sacrifices of blood, tears, toil and sweat. But the so-called reformists of the twentieth century take the easy way out. They make no sacrifices. They retain comfortable lifestyles and ask the government to act. They are generous with other people's wealth. Perhaps when the government acts and the bureaucracy is set up they can obtain a position with a comfortable salary, a lucrative consultancy or a research grant. Perhaps the most powerful factor motivating some reformists is envy of wealth and achievement. Envy of those who are achieving and doing better. This envy operates even
with a person on a $100,000 a year income or even a $200,000 a year income. They are envious of the Murdochs, the Packers, the Bonds and the Holmes a'Courts. This is an important factor in the make up of many coercive utopians. The envy of wealth and achievement is a very important factor, though many of them will immediately deny it if confronted with the issue. They are very seldom confronted with the issue. The characteristic of the reformists is their unrealistic analysis of human problems. They ignore the experience of history and human nature. Academic analyses of human problems are becoming more and more abstract and divorced from the realities of history and human nature. The dimension which the coercive utopians miss is that a better world requires better human beings. It is not possible to make people better or law abiding or richer by laws and regulations. They focus on structures. Their emphasis on regulation is an emphasis always on changing the structures. Their belief is that if the structures and institutions are changed human beings will change. Capitalism and business are made the scapegoats for every problem. The fact, that in pre-capitalist and primitive societies human beings have not been much different, is ignored.
a correlation between freedom and limited government and reduction of inequality and progress. Supporters of the values and institutions of the western democratic order can identify with some of the concerns for, and the analysis of, human problems and suffering on which reformists focus. The point of difference between the interventionist reformists and liberals lies on the grounds that 1. the former's policies often are based on unachievable standards and an absence of understanding of human interaction; and 2. their emphasis on the power of law to achieve those ends. The consequence is that the reformists' efforts invariably create more problems than they solve. The supporter of freedom may often agree with the sensible reformist in his analysis of problems but would argue that an attempt to use law made by imperfect humans and administered by imperfect bureaucrats and judges is often counter productive. Thus, for example, a supporter of freedom may be equally as concerned as a regulationist about discrimination against women but would see the need for education rather than regulation. He would doubt the wisdom of special legislation and suggest the better enforcement of the general law because legislation in such situations will lead to discrimination and create more problems than it solves. The reformists do focus on genuine problems, injustices and inequalities. They have made a contribution to the establishment of equality of opportunity, in the context of their concern for the underprivileged and the disabled. However, the problem today is that they exaggerate and distort such problems and they get away with these approaches because the challenge and counter arguments are very weak. Their solutions are not infrequently impractical, utopian and counter productive. It is the counter productive aspects of reforms which must be highlighted. By trying to achieve too much through over regulation and over taxation, they miss out on the practical and constructive reforms which can be effected. The words "counter productive" emphasise that, whilst the reforms may yield certain benefits, they are counterbalanced and over-balanced by the disadvantages which are not foreseen or, if foreseen, are brushed aside when the reforms are drafted. They become visible when the reforms are implemented but the counter productive aspects of reforms are seldom properly highlighted. An example would be the vast sums of money spent on Aboriginal welfare, a very small part of which actually reaches the intended beneficiaries. The major part of the money is being creamed off by bureaucrats, academics, researchers, social workers and by persons of mixed white and Aboriginal parentage who have few or limited contacts with the life and culture of Aborigines. The basic problems are compounded by a demanding populace and pressure groups who want just about everything. These groups are encouraged by activists and politicians. Individuals and groups (radical and conservative alike) make increasing demands on government and employers, without considering the overall implications From where will the government get the funds? What will be the effects of more taxation on individuals and
business? What will be the effects of higher wages on profitability of business enterprises and levels of employment? Australia's ills are attributed to changes abroad as well as to lack of will, failure of nerve, moral decay, selfishness and laziness, and the shattering of community feeling. One can find signs of all of these, but the key may be something else: the fact that the regulationists and welfarists are encouraging the people to ask for just about everything from the government without considering or fully understanding the costs. They want freedom as well as order, individual liberty as well as equality, safety as well as the benefits of risk taking, a wide-open society as well as less crime, material wealth as well as spiritual worth without stopping to think that each of these values takes something away from the other. To use an ungainly but accurate expression, they have forgotten the trade-offs. Equality of opportunity and provision for the genuinely underprivileged are within the rationale of the liberal system. The emphasis of the reformists is no longer on merely providing for the really poor and reducing inequality. The emphasis is no longer on extending avenues for equality of opportunity, but is directed towards equality as a goal towards providing equality of outcome. The movement is now for equality and for the elimination of economic and social privilege, disparity and exploitation, which has very fundamental implications for freedom and enterprise. This is accompanied by the resounding cliched phrases and arguments which go with the egalitarian message, and the envy and hatred of success, capitalism and wealth, even when privilege is based on effort and ability. A significant aspect of this movement is the increasing body of non-Marxists and antiMarxists within all the political parties who are striving towards unrealisable ideals. The contemporary challenge is posed by unrealistic aspirations towards equality, democracy, justice, accountability, peace, etc, unreasoned attacks on authority, law and order, hierarchical structures, family, free enterprise and the profit motive and the call for elimination of economic and social privilege, disparity and exploitation and so on, which all have as their necessary consequence the need for more government activity, more government funding and ever decreasing levels of freedom. A society that places equality above freedom, as history has shown, ends up losing both. The critical spirit has spawned analyses of human situations. From it has sprung the naive belief that where there is a problem there is a solution and the machinery for implementing the solution is government money plus bureaucratic regulation. A great deal is said about the supposed crisis of capitalism. But capitalism has, in the sense of free enterprise, died long ago in the over regulated economies of so-called capitalist countries. The real crisis is of the mixed economy, with too many government inputs, excessive welfarism, juvenile ideas of justice and equality and the weakening of free enterprise, which is slowly becoming incapable of supporting the expansion and development that it has engendered in the last one hundred years or so. The reformists argue that a contrary approach to theirs overlooks human need. The answer is that those who are advocating unrealistic levels of expenditure and regulation by government do not realise that, notwithstanding the apparent benefits of such activities and payments, in the long run the recipients and the public are likely to suffer as the productive sectors of the economy become less able to function effectively. The consequence is that the recipients, particularly the poor, end up worse off than they were before. The effects of many reform
movements are counter productive. This is not confined to the economic area. The peace movement, children's rights, affirmative action, the attempts to weaken discipline and authority, conservation, attacks against the family, educational reform and anti-hierarchy movements are all examples of critical perspectives which make some genuine points but which, when pushed beyond reason and commonsense, have counter productive effects and result in counter productive change. Milton Friedman said in the Preface to William E Simon,A Time for Truth, Sydney (1978) xii: The view that if there is a problem, if there is something wrong, the way to deal with it is to pass a law, set up a governmental agency (staffed, of course, by the intellectuals urging this solution), and use the police power of the State to correct it, is a superficially appealing view. It is simple, as well as simple-minded, and appeals to our natural impulse to take personal credit for the good things that happen and blame a "devil" for the bad things ... that freedom and competition are far more effective than the visible hand of the bureaucrat is a sophisticated, subtle view which is far harder to get across. It requires thought, not reason, to comprehend. It does not lend itself to ringing phrases, to high-flowered sentiment, to promises to particular people or particular groups. Moreover, the market has no press agents who will trumpet its successes and gloss over its failures; the bureaucracy does. A perceived market failure or injustice within capitalism is for some a reason for government activity. Such advocates do not realise that the choice is between the imperfect market (subject to investigative reporting, which is an important barrier upon actions) and imperfect legislators and imperfect bureaucratic activity. If a rational choice is made, bearing in mind the record of bureaucracies and government commercial enterprises, there will be a great deal less pressure for government activity and funding. Many academic, media and bureaucratic studies are published about the abuses which exist within the liberal democratic order. By comparison there are few studies of the abuses which exist within government bureaucracies and particularly within government commercial enterprises. A better sense of perspective will be obtained if there is a greater focus on such aspects. While conscious of acts of injustice which are perpetrated under private enterprise, the regulationists are unwilling to realise that the alternative to private enterprise is public enterprise, which is invariably worse in most respects. If the economic cake is to provide shares to the underprivileged it must grow in size. The enemies of the free society distrust wealth. But that wealth must be created and it is created by entrepreneurs. The coercive utopians are talkers and planners but not creators and doers. Their policies of excessive government regulation and over-taxation have, in the latter half of this century, had the consequence of preventing the size of the economic cake from expanding, even of making it smaller. They seem blind to the reality that their policies based on hatred of capitalism, lead to a smaller economic cake and that the smaller economic cake is not even more fairly divided. A great deal of money is creamed off by the bureaucracy and special interest groups and does not reach the poor and underprivileged sections of the community. It is necessary to understand western history and tradition, its achievements and its failures before any type of reform is likely to be successful. Reform movements have proceeded essentially by focusing on existing problems without consideration of the existing advantages. This has been the route to a great deal of counter productive reform. Productive reform must be based on:
i. an understanding of and a pride in the achievements of the order and its dynamics ii. a realistic and common sense awareness of the weaknesses iii. the wisdom to realise the weaknesses that can be reformed by law and those which cannot iv. a recognition of the role of education as distinct from regulation
34. Conclusions
Honig has this to say about America and it is equally true of Australia: The jury is still out on whether you can take a huge country, keep it pluralistic, enshrine liberty and individual development and not have it fly apart. That has always been the tension in this society. Can you combine individual push with common social purpose? Well, that should be our task, to make sure that it does survive - because we are still a beacon for the rest of the world. I truly believe that we have something remarkable to say about how you form a society and how you live a life. The main problems which face western society today are: the growing incapacity of the political system, the family, education processes and society to produce sufficient responsible citizens with a sense of public duty and the drift towards careless individualism, discontented egoism, nihilism, destructive values and mindless idealism. There is no threat of a violent revolution to overthrow the system and establish a Marxist state. The danger that exists is twofold. First there is the gradual destruction of much that is worth preserving, with little that is constructive being put in its place, because of unfair criticism of what "is" and "mindless idealism" in relation to what ought to be. Second, the growth of government leads to control of individuals and institutions as well as drying up the springs of initiative, innovation, enterprise and individual responsibility, creating dependency and, most importantly, giving rise to groups which obtain a disproportionate part of the resources of the country, exploiting the majority. The values and institutions of the western democratic order are far from perfect. Perfection or anything near perfection is an unobtainable ideal. Reform must proceed in this context. The wrong ideas and turnings in the reform process have been analysed above: ideologically based reform which rejects community values, the liberal tradition and the evolved solution; the practice of avoiding evaluation by focusing on the weakness of the system and ignoring its strengths; and the identification of modernisation with social engineering. The main problem of the future is of the critical spirit, which has made a tremendous contribution to western civilisation, running riot in a narrow, counter productive manner, destroying what exists without practical and viable alternatives. Communism consumed the Soviet Union, China, Cuba, parts of Eastern Europe, and other countries through the forcible destruction of one system and the establishment of another. There are both positive and destructive aspects of communist states, with the destructive aspects definitely in the ascendancy. However, the problems that face well-established representative democracies with strong private enterprise infrastructures, are big government, the control of the many by a few and a gradual undermining and destruction of the system without constructive alternatives. There is no danger of a Soviet type or any other communist type state being established in Australia or the western democracies. The long term future, if the present trends continue, will be characterised by the following developments. Increasing economic problems and growing unemployment. A gradual undermining, without viable alternatives, of the values and institutions which have contributed to the rise and prosperity of western civilisation. Increasing government regulation and bureaucratisation (which limit individual freedom and the scope for effort, motivation and achievement). A growing demand for government activity and welfarism. Inability of governments to cater to such demands. The use of civil
disobedience, violent dissent and terrorism by dissatisfied groups, causing inconvenience and disruption and the inevitable counter reaction of governments (whether socialist or of any other complexion) involving restrictions on civil liberties. The placing of restrictions on trade union and industrial activity. A state which maintains the institutions and trappings of liberal democracy but has accumulated reservoirs of bureaucratic power, limiting civil liberties and using escalating emergency powers to stifle dissent and control violent groups. A central government which cannot exercise adequate control over its bureaucracies, and favoured private organisations. In this respect there would be a fundamental difference from a communist state. Nor will the internal security forces be as efficient and ruthless as those of the communist state. There could be a partial withering away of the state - a bureaucratic giant monster in which few things work as intended (but not a withering away of the State as in Marxist theory nor the rise of a brutal repressive and oppressive state as in Marxist practice) This is the future prospect, unless the force of ideas and common sense can cause a change in direction. The attack on the values and institutions of the western democratic order has been highlighted. I have not painted a rosy picture. I do not want to end on a note of pessimism. What of the future? There are reasons for pessimism and for optimism. A great deal depends on how supporters of liberal values respond to the challenges of our times. The analogy has been drawn between Rome and western civilisation. The fall of Rome was preceded by permissiveness and growth of bureaucracy and welfarism but there ends the analogy. Rome did not have the benefit of scientific and technological development. Roman civilisation in its creative periods did not have the civilising influence of Christianity and Christian based morality which, despite the faults and failures of the Church and individual Christians, has been the driving force in the liberal tradition. I leave you with Macauley's words, "It's a great time to be alive." It is a great time to be alive and a great place in which to be alive. Would you rather be alive now or in 1850 or 1750 or 1550 or in medieval times? Would you rather be in Australia or in Russia or in Chile or in Libya or in South Africa? There is hope for the future if concerned liberals can rise up and face the problems and challenges of our times. The future depends on individuals rising up to challenge the coercive utopians and the proponents of permissive nihilism. George Orwell puts into the mouth of Winston Smith, the tragic hero in Nineteen Eighty Four, the oft repeated thought that if there was to be a hope for the future it was in the proles (the masses outside the governing bureaucracy and the party). In the real world of 1984 and beyond, in the education system, the public affairs media, the bureaucracy and the political system, anti-liberal ideas are vocally and influentially dominant and growing in influence. Many (but not all) who hold contrary ideas are intimidated into varying degrees of timid silence or qualified and halting comment. The hope for the future must lie in the common sense of ordinary people and the innate yearning for freedom and life which has been constant throughout human history. The common sense of people must be tapped before it is obliterated. An epitaph for western civilisation? From bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance;
from abundance to selfishness; from selfishness to apathy; from apathy to dependence; and from dependence back again into bondage.
More than 90% of all young people aged between 18 and 34 years of age want to marry. Young people in that gap were asked if they intended to have children and more than 96% of them said that they wanted to have children. 75% believe that a child needs two parents. In families where there are two parents involved, more than 90% of families do not have areas of conflict in the family. 80% of Australians interviewed said they believed that the family was the most important institution within the Australian community. 96% of Australians said they believed a religious faith was a positive factor in family life. 3 out of every 4 Australians believe that Australia needs to give more encouragement to entrepreneurs and investors, and more people see the visionary as more likely to contribute to solving social questions than parliament, the courts, the public service or the Labor Party. 83% of Australians take a great deal of pride in their work. The significance of these views must be seen in the context of the denigration of many of the values that people believe in by their education and media systems, and the failure of the conservative parties to effectively stand up for these values and institutions. The left, with the connivance of the media, have been allowed to set the agenda of public debate. Thus, sensible and well-reasoned right wing perspectives are labelled as extremist, reactionary, etc. On the other hand, social engineering schemes and even extreme policy decisions are presented in the guise of moderation. The reason is that the right (including the Liberal/Country Parties), with a few exceptions, have not stood up for values which are likely to gain widespread community support and which are in tune with liberal principles. They have also not been willing to attack social engineering schemes and demonstrate their true radical, counterproductive nature. If such an onslaught were launched, ridicule could be expected from sections of academia and the media. However, the public would be very receptive. The political opposition must lead such an onslaught but it does not have the guts to do so. It does not (a few exceptions apart) challenge the agenda of public debate laid down by the left and the media. The Opposition do not realise that there are many issues which will help them win an election. If they fashion politics based on community values and stand up for them they will be characterised by the government and the media as reactionary, extremist, conservative etc. Other slogans and epithets will be used to denounce such policies. However, a very responsive chord with the electorate will be struck. Inherent in this process is an ability to endure and challenge media and ALP ridicule, provide convincing counter arguments and win the debate with the public.
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