‘Poetry, like the law, is a fiction’, wrote William Hazlitt in a critical essay of 1816. Hazlitt the critic took as his subject all aspects of his society’s culture, including the connections between law, literature and power. He analysed the rhetoric of the lawyers and the legislative acts of politicians as products of a legal imagination comparable with the literary imagination of the poets. He examined the effects of those imaginings on the people, who were subjects of the law as well as readers of literary fictions. With characteristic forthrightness, he appended an aesthetic judgment to the comparison: ‘Poetry, like the law, is a fiction; only a more agreeable one. Kieran Dolin: A Critical Introduction to Law and Literature
Hazlitt’s description of the law as being nothing more than the “products of a legal imagination comparable with the literary imagination of the poets” is an interesting point to start at when attempting to analyse why Western legal systems in general and the Australian legal system in particular see nothing wrong with discriminating between classes of people, citizens and non-citizens alike in both the structure and application of the law.
I have drawn some criticism for comparing the Australian legal system to that of Nazi Germany. While acknowledging that Australia’s 21st Century legal system is a long way removed from the 1930s and 1940s Nazi system, there remain many similarities that are worth exploring. The overriding similarity is that both systems empowered judges, for good reason, with the task of interpreting and implementing the law. The problem is that as the community becomes more conservative resulting in a movement to the right in all things political and legal, judges being part of the community are not immune to this process. The end result of this process, as in Nazi Germany, is that without any need on the part of the legislature to amend any laws, the interpretation of those laws by a more conservative judiciary result in a change in application and therefore a change in meaning of those laws. In the end truth is given to the notion that, “Poetry, like the law, is a fiction; only a more agreeable one.”
Readers may think that this reasoning stretches the analogy between literary fiction and the law too far; if so, the following may prove illuminating for some. A former Sydney barrister who primarily practiced in the now defunct NSW Worker’s Compensation Court regaled me on more than one occasion with this wonderful piece of legal reasoning. On the Australian life tables, Aboriginal males then had a life expectancy of seventeen years less than a white Australian male; part of the compensation payable in those days (we’re talking about the late 1990s here) was to do with pain and suffering, which in turn was connected to the Australian life tables. The barrister, who regaled me with this story and who was acting for the insurer, proudly boasted that she had managed to reduce the Aboriginal applicant’s potential insurance payout by over $250,000.00, because of the difference in life expectancy between Aboriginal Australians and the wider community.
When I suggested that this was racism to the barrister concerned, she responded with “maybe so, but it’s the law and my job is to get the best outcome I possibly can for my client”. A clear case of judicial discretion working to favour a wealthy, white insurer at the expense of an injured Aboriginal worker. It is worth noting that the same argument would not have worked had the injured worker been, for example, an Australian of Vietnamese, Lebanese or say Spanish origin.
The reason that situations like the one I described above are allowed to occur is that the Australian ‘just-us’ system is just that; something that is for ‘us’ Australians of non-Aboriginal extraction and not for those who can trace their cultural, spiritual and genetic links to the ‘Great Southern Land’, back 40,000 or more years.
We are all subjects of the law
You don’t have to worry about your little boong mate Marky suing you for fitting him up. When I’m finished with him he’ll be in the gutter where he belongs with all his other boong mates. You will be able to piss on him as you step over him on your way to work (Comment ascribed to an Australian Prosecutor)
William Hazlitt in his essay of 1816 set about examining “the effects of those imaginings on the people, who were subjects of the law as well as readers of literary fiction“. Because the law is fiction it is open to manipulation via skewed and self-interested interpretations by those who are tasked with ensuring the integrity of the ‘rule of law’. The aforementioned quote by an Australian Prosecutor is a point at hand.
One of the primary roles of a prosecutor is to ensure a fair trial for the accused; it is only through a fair trial that the interests of justice can be served. If a prosecutor is racially biased, how can any trial he/she is involved in be seen on any level as being fair and motivated purely to serve the interests of justice? To my mind the answer is clear and unequivocal that it can’t be seen in that way. There is an old legal principle that ‘Not only must justice be done, it must also be seen to be done’. This aphorism, drawn from R v Sussex Justices, Ex parte McCarthy ( 1 KB 256,  All ER 233) clearly indicates that even a mere whiff of bias can be enough to cause a judicial decision to be reviewed. On the basis of this precedent, it is apparent that every single case prosecuted by the aforementioned Australian Prosecutor involving the conviction of an Aboriginal defendant needs to be re-opened and new trials set down as speedily as possible. How can any court that is prepared to hear from a prosecutor who believes that all ‘boongs’ (a pejorative term for Australian Aborigines) belong in the gutter, be seen to be delivering justice? Obviously, the Australian Capital Territory Magistrates Court doesn’t have a problem with hearing from such a person. I wonder what the rest of the world would think.
In the words of Geoffrey Robertson QC, “No man ought to be tried in holes or corners or places when gates are shut and barred” (appealing for an open court for Julian Assange’s trial in Sweden as quoted by the chairman and chief executive of News Ltd, Mr. John Hartigan in a speech delivered at Bond University, February 12, 2011.) Shut and barred gates can be as much psychological as physical. While Hartigan was speaking out against the propensity of Australian Courts to issue suppression orders and Robertson about United States Military Tribunals, the same reasoning applies to courts that condone or otherwise accept racism within their own ranks.
An officer of the court, particularly a senior officer of the court such as a public prosecutor, have an obligation to pursue justice according to the dictates of the ‘rule of law’. How can the ‘rule of law’ be applied by a court when one of the court’s central players openly espouses such racist drivel as, “When I’m finished with him he’ll be in the gutter where he belongs with all his other boong mates”. In such circumstances it must always be borne in mind that a public prosecutor as an officer of the state is possessed of almost unlimited resources with which to pursue his/her racist agenda while a defendant, particularly an Indigenous defendant is more often than not in strained economic circumstances. It is in situations like this that the fiction that is ‘the rule of law’ becomes obvious for all to see.
Racism and ‘the rule of law’ in Australia
It is because law is a literary fiction like poetry that judges, prosecutors and indeed respondent barristers can manipulate the system to achieve outcomes that most right thinking people would find abhorrent on grounds of equality. While I accept that the poor and disadvantaged also suffer the same sort of outcomes, the outcomes while superficially the same are the product of their socio-economic circumstances alone. In the case of the Indigenous Australian, not only do they face the socio-economic hurdle when seeking justice, they also face the race hurdle. Even the most down-and-out white Aussie has a tendency to think themselves superior to an Indigenous Australian, regardless of their achievements. What would be an interesting area of study is how these tendencies by white Aussie jury members translate into conviction rates for Indigenous Australians and how these conviction rates in turn translate into incarceration rates in the hands of white Aussie racist public prosecutors and magistrates/judges?
He will not go behind his father’s saying,
And he likes having thought of it so well
He says again, “Good fences make good neighbours.”
(Robert Frost: Mending Fences)
Most educated people living in English speaking countries will have heard of Robert Frost; many will have read Mending Fences. People are unwilling to look beyond what they know from a bygone era to the realities of the present. One farmer insists on mending an unnecessary wall to the exasperation of the other with the only justification being that his father had told him that “Good fences make good neighbours.” That might be so, but I can assure readers that racist prosecutors, magistrates, judges, respondent barristers and public servants don’t make good neighbours if you happen to be an Indigenous Australian.