*Pic: Rembrandt: ‘Two old men disputing’ 1628 (detail)
First published July 13
While writing my previous article on The Good Samaritan, ( http://oldtt.pixelkey.biz/index.php/article/the-good-samaritan-give-directly-to-refugees ) it occurred to me that if the lawyer in the parable had been more interested in getting a legal and moral (rather than a religious) answer to his question ‘Who is my neighbour?’, he could have done no better than approach former Senior Lecturer in Law and long-time contributor to the Tasmanian Times, Max Atkinson.
Like all great teachers who wish to introduce their students to ‘the best that has been thought and said in the world’ on the subject, Max would almost certainly have directed the lawyer—as he did all of his several thousand law students—to read Lord Atkin’s seminal judgment in the famous case of ‘Donoghue v. Stevenson’, which founded the modern common law of negligence.
The simple question to be determined in that case was whether the manufacturer of a bottle of ginger beer with a snail in it was liable for injury to a person drinking it. The great contribution of Lord Atkin to modern jurisprudence was to recognise that:
… there must be and is some general conception of relations, giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence … is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay…
The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question “Who is my neighbour?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
Anyone wondering about the relevance of this way of thinking to contemporary political discourse could do no better than read Max’s article on ‘Janet Albrechtsen’s Jurisprudence’, originally published on ‘Eureka Street’ and republished here:
This article provides not only a passionate defence of the role and duty of judges to interpret the law—not make it up—when the law is unclear, as it usually is in contentious cases. It also provides an analogy for moral and political argument based on the interpretation of community values.
His thoughtful analysis demonstrates how misconceived are arguments based on the mere opinions, assertions or beliefs of individuals—as if such opinions, assertions or beliefs were themselves self-evident moral values. The person who claims ‘a fundamental belief’ about something like gay marriage is not thereby absolved from the need to defend it with reasons.
Had the lawyer wanted to enquire further into the assertion that the law must be ‘based upon a general public sentiment of moral wrongdoing’, he would probably then have been encouraged by Max to go away and read Ronald Dworkin’s seminal 1966 article ‘Lord Devlin and the Enforcement of Morals’, which challenged the alleged right of the community to criminalise homosexuality based on majority public outrage and belief in its immorality.
A conscientious legislator who is told a moral consensus exists must test the credentials of that consensus. He cannot, of course, examine the beliefs or behavior of individual citizens; he cannot hold hearings on the Glapham omnibus. That is not the point.
The claim that a moral consensus exists is not itself based on a poll. It is based on an appeal to the legislator’s own understanding of what our shared morality requires. That is inevitable, for whatever criteria we urge him to apply, he can apply them only as he understands them.
A legislator who proceeds in this way, who refuses to take popular indignation, intolerance and disgust as the moral conviction of his community—[and one who rejects arguments based on ignorance or rationalization of factual evidence, prejudice, emotion, insincerity, lack of coherence or the mere parrotting of other people’s opinions]—is not guilty of moral elitism. He is not simply setting his own educated views against those of a vast public which rejects them. He is doing his best to enforce a distinct, and fundamentally important, part of his community’s morality, a consensus more essential to society’s existence in the form we know it than the [public] opinion Lord Devlin bids him follow.
No legislator can afford to ignore the public’s outrage. It is a fact he must reckon with. It will set the boundries of what is politically feasible, and it will determine his strategies of persuasion and enforcement within these boundries. But we must not confuse strategy with justice, nor facts of political life with principles of political morality.
If the lawyer then asked for a real life example of a politician who espoused such a philosophy in practice, Max would have cited Edmund Burke and his famous address to the electors of Bristol in 1780, in support of his own long-held view that the proper nature of the duty of an elected representative to his electorate:
… is to act in the best interests of the community and with respect for principles he or she sees him/herself sharing with other citizens. This is different to the duty of electors, who are free to vote their interests and have no duty to educate themselves on policy before they vote.
No-one has described this duty of members better than Edmund Burke, widely seen as the father of conservative political philosophy:
‘It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living ... Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.’
… Burke did not contribute to philosophical debates. He prided himself on being a practical man, not a ‘dabbler in abstractions.’ But he did, it seems, have an intuitive sense that a judgment based on informed conscience is necessarily a conscientious judgment of relevant values, and perhaps the closest anyone can get to an ideal of moral truth on contested social and political issues—that is, issues which lead politicians to appeal to values to justify their views.
If the lawyer showed any further interest in the nature of this public morality, Max would have enthusiastically launched into a discussion of first principles about the nature of our shared values and the importance of moral reasoning based on their interpretation.
He would have quoted Kant to support his conviction that we should act only on those rules or principles that we can universalize without contradiction and which treat people as ends, rather than merely as means to other ends, interests or purposes.
Act only on that maxim whereby you can at the same time will that it should become a universal law.
Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.
Max would reject the prevailing moral subjectivism, relativism and scepticism. He shared Dworkin’s understanding of the nature of moral argument and truth. We must, he believes, always have
… due regard for humility and open-mindedness in the quest for moral truth—it is ultimately a co-operative enterprise.
The truth is in the best reconciliation of the present controversy with the best interpretation of values we see ourselves as committed to defend, as evidenced in the body of decisions, practices and institutions we support. The best answer is the only guide we can have to the ‘right answer’. That there is a right answer is assumed by all participants.
This is the logic of Dworkin’s model of law, and which applies no less to the kind of moral arguments—ordinary, everyday social and political disputes—where parties argue from principles or more abstract values eg. fairness, they see themselves as sharing.
The enterprise is irrational if they do not believe, first, that they do share certain values and, secondly, that one answer is the right answer, irrespective of who, or how many, support it.
Few readers of Max Atkinson’s articles in The Mercury for over 40 years or on the Tasmanian Times, The Drum, Online Opinion, Eureka Street or New Matilda websites during the past decade would have heard of, or know very much about, Lord Justice Atkin, legal and moral philosopher Ronald Dworkin, the British politician Edmund Burke or even the famous philosopher Immanuel Kant.
They would however be very aware of Max’s advocacy for the decriminalization of homosexuality, for the recognition of gay marriage, for conscience votes in Parliament, for freedom of speech, for the protection of whistleblowers, for the rule of law, for civil liberties, for anti-corruption legislation, for a banking Royal Commission, for reform of political donations etc.
They would also be aware of his strong stand against our involvement in the Iraq and Afghanistan wars, against the use of torture and his alarm at our uncritical alliance with the US, which recently threatened to lead us into yet another unjust and potentially catastrophic war in Korea.
If they read his articles comparing the policies of the major parties on social justice and egalitarianism, they would have been struck by his recurring focus on the principle of fairness, which he regards as fundamental to democracy.
His positions on all these issues are based on first principles—exemplified in the above quotes—which speak to the fundamental unity and integrity of law, morality and politics at the deepest level.
It is illuminating to carefully re-read his many and wide-ranging articles with this in mind. What they reveal is an extraordinarily sophisticated and perceptive intelligence, arising out of a deep moral conviction, in the service of more enlightened public discourse on many of the important political issues of the day.
It is characteristic that all his articles hang together, because of the coherence of his underlying principles and the consistency of his analytical approach. Thus, each article is representative of—and illuminated by—all the others. It is this that gives his work such impressive integrity, continuing relevance and importance.
Take, for example, his consistently strong principled position on our involvement in the Iraq and Afghanistan wars. His starting point, in all his many articles on this subject, is his natural human compassion for the victims of war and his fundamental moral intuition that such human suffering can only be justified, if at all, in the most extreme and exceptional circumstances.
He invariably argues on the basis of principles, based substantially on ‘just war’ theory and our most basic community values, which have been incorporated into international law. These prohibit the use of violence except as a last resort and restricted to proportional self-defence from imminent attack.
To justify war one must argue on widely accepted moral grounds, as nations do when they appea l… to principles of justice and humanity which underlie the right of self-defence in international law and a claimed right to intervene in a civil war.
Politicians are fond of arguing on the basis of national interest but it is clear that this can never justify what is otherwise an unjust war:
International law is quite categorical on this point; it prohibits discretionary wars fought to serve national interests; otherwise nations could, like school bullies, justify violence simply by pointing to the spoils.
This is despite an often-voiced claim that ordinary moral values do not apply in the world of foreign relations, such that regime change, extra-judicial killing, torture etc. can be justified in other ways, mostly by appeal to ‘the national interest.’
But this ignores what it means to argue from a moral position, which requires coherence, arguably in the name of integrity; the claim that one can have two sets of rules, one moral and the other pragmatic, is just a pretext …
Having discerned the relevant moral and legal principles, Max then proceeds to forensically and systematically evaluate the reasons our Government has advanced for military intervention and the evidence upon which those reasons are based. He finds both wanting. The first argument, based on the threat to national security, was always specious at best: the evidence simply did not support it as credible. The second argument, based on the alliance, also foundered because, on further examination, one discovers that it cannot operate on its own: ‘The alliance, in short, assumes that the war is independently justified.’
Many of the problems with justifying a war that has already been entered into could, he argues, have been avoided—along with enormous suffering—had we taken much more care in the decision-making process before embarking on these ventures.
The problem lies in a system which gives the Government a power both to wage war and to avoid formal hearings to test its factual basis; it is compounded by two factors, the habitual delegation of personal judgment by elected members to party leaders, and the re-enforcement of this habit by a doctrine of party unity. The consequences of this self-subordination have been appalling.
Max believes it essential, in all but emergency situations, to hold Parliamentary Committee hearings, with court-like powers and functions, before seeking Parliamentary approval to justify military intervention.
Such hearings, with access to intelligence and official advice, are a quasi-judicial means to clarify facts and identify issues; they are the best way to lessen the risk of going to war without good reasons, and the best way to see if these reasons still hold.
However, this still leaves the problem of how our elected members should respond to their findings.
But the heart of the problem, and a reason why major parties are now so much on the nose, has been a self-serving view of the duty of an elected representative, which puts party policy (and especially the need to avoid an appearance of internal dissension) above the duty members owe the public, which includes the duty to act in accordance with community values …
This brings us back to a central and persistent focus of Max’s work: the duty of our elected representatives to act on their own best judgment and conscience.
It is worth going back to Edmund Burke, the great conservative political theorist, to be reminded of why issues of principle call for personal judgment. Burke would have condemned members acting as delegates of parties just as he rejected their acting as delegates of the public; in both cases they must give up their conscience to others.
The failure of members to accept personal responsibility to judge issues of principle means leaders are vulnerable to polls and media just as much as they are to hubris and personal ambition; if there was more attention to this preliminary issue, members would need to defend this moral fence sitting; this would be a giant step towards a more responsible, because more intrinsically democratic, system.
What these extensive quotes reveal is a coherent philosophical framework for the analysis of arguments put forward to justify political decisions on a variety of contentious moral issues. What is so impressive about Max’s work, however, is his careful application of his deeply thought-out philosophical framework to the particulars of each case. This is no armchair philosopher. His interests lie in the practical world of addressing real-life legal, moral and political issues which are part of normal everyday public discourse. And his range of interests is impressive.
A major preoccupation throughout all his articles is a need to clarify what fairness means and why it matters.
One such value—perhaps the most important because it is arguably the foundation for the above rights—is the principle that a government must treat all citizens with equal concern for their interests and equal respect as members of the community.
In political theory it means each citizen has equal value.
This broad principle of fairness calls for treatment as equals, which is not the same as equal treatment—those who break the law are treated differently for that reason and those who choose not to work cannot complain when others reap the rewards of their industry …
It offers a guide for politicians who have no clear sense of the duty they owe the community, or how it relates to the duty they owe their party. If arguments over the requirement of fairness and freedom are a natural and necessary part of any political system which respects these principles, governments must, in much the same way as courts of justice, look to the best interpretation.
In this context, Max takes a more nuanced position concerning the relationship between acting on party platforms and deciding matters of conscience. He
‘suggests a way to reconcile Burke’s theory of political duty, based on personal conviction, with the co-operation and support needed for any political enterprise to succeed - to reconcile the primary duty members owe the community with the duty of loyalty a political party needs to govern and to fulfil its promises. The key is in the difference between issues of principle, which are matters for conscience - and judgments of party policy, where members are free to defer to party authority and arguably have a duty, based on democratic theory, to do so.
Max’s central focus throughout his articles is on public morality: discerning the relevant moral values in the community—respect for individual dignity and freedom, equality, fairness, honesty, etc—and interpreting their meaning and application to the particular facts of the public issues of concern. This, in his view, ought to be the central concern of our elected representatives.
Although politicians often talk about values, few ask themselves what it means to act on principle. It means acting on a conscientious judgment of values we assume we share—at a certain level of abstraction—with the community at large; it also means acting on one’s own judgment… But it rules out acting on what others might think or prefer.
Acting on principle is the same thing as acting on conscience. Although it may appear paradoxical to say so, it follows that private conscience is the ultimate safeguard of public values. The same point, and the same criticism, is relevant when politicians of major parties defer their own judgment, not to popular opinion, but to a doctrine of party unity, as with the apology, same-sex marriage, and many other important issues.
On the issue of gay marriage, for example, Max’s primary focus was on the nature of the public recognition bestowed and the unfairness of the discrimination that deprives similarly committed couples from sharing in it simply because of their sexual orientation.
As always, Max is quick to point out the difference between community values, which our elected representatives must discern and apply, and popular opinion on moral issues, which they must ignore.
Sadly, what is missing in the … approach is any sense of concern for those who, regardless of the progress in removing material discrimination, are deprived of the rich moral and symbolic meaning which marriage bestows on the commitment to a loving union.
The media, for one reason or another, tend to reflect their glib but convenient assumption that community values are the same as popular opinions on moral issues …
The assumption here, shared by all who participate in the debate, is that the ‘right’ answer lies in the best explanation of the practice or institution in terms of values we see ourselves as sharing, however abstractly conceived…and must be sought in the values themselves, not in opinions, conventions, social practices or institutions which reflect popular views, however distinguished their authors and regardless of the numbers in support.
This process leads him to reject not only the use of plebiscites but also the prevailing moral scepticism and relativism, which asserts that everyone’s opinions are of equal worth and that therefore democracy means no more than majoritarianism.
His analysis favours of a much more nuanced understanding of the pursuit of moral truth, based on our best interpretations of the relevant values applied to the most rigorous examination of the relevant facts of each particular case.
In conclusion, the fact that arguments on issues such as same-sex marriage persist does not show there cannot, in principle, be a right or best answer—in terms of being more consistent with our shared values (on political matters especially values of humanity which argue for fairness, freedom, compassion and human dignity) than competing answers; it merely reminds us there is no agreed means to demonstrate or verify such a claim. But if this is the case there is no reason to suppose we ever reach the limits of reason—that we ever reach a point where we must give up the interpretive exercise and look for another way.
Readers interested in exploring this dimension of his thinking could do no better than read Dworkin’s great work ‘Justice for Hedgehogs’, which endorses and defends this approach to interpretative truth in considerable detail. The following short video of Dworkin explaining his understanding of the relationship between law and morality and the concepts of liberty and equality provides an excellent introduction to this way of thinking:
Max’s work also exemplifies the kind of principled moral reasoning about issues of public concern best described and demonstrated by philosopher Michael Sandel in his inspirational and very popular ‘Justice Harvard’ lectures, which are a ‘must view/listen’ for anyone seriously interested in public discourse:
In the very first lecture, Sandel introduces the famous hypothetical of the ‘trolley tram dilemma’ and he draws the following implications from the discussion.
How, then, can we reason our way through the contested terrain of justice and injustice, equality and inequality, individual rights and the common good?
One way to begin is to notice how moral reflection emerges naturally from an encounter with a hard moral question. We start with an opinion, or a conviction, about the right thing to do: “Turn the trolley onto the side track.” Then we reflect on the reason for our conviction, and seek out the principle on which it is based: “Better to sacrifice one life to avoid the death of many.”
Then, confronted with a situation that confounds the principle, we are pitched into confusion: “I thought it was always right to save as many lives as possible, and yet it seems wrong to push the man off the bridge.” Feeling the force of that confusion, and the pressure to sort it out, is the impulse to philosophy.
Confronted with this tension, we may revise our judgment about the right thing to do, or rethink the principle we initially espoused. As we encounter new situations, we move back and forth between our judgments and our principles, revising each in light of the other. This turning of mind, from the world of action to the realm of reasons and back again, is what moral reflection consists in.
This way of conceiving moral argument, as a dialectic between our judgments about particular situations and the principles we affirm on reflection, has a long tradition. It goes back to the dialogues of Socrates and the moral philosophy of Aristotle.
- ‘Justice’ by Michael Sandel, Farrar, Strauss and Giroux, 2009, p.28
The goal is to achieve what philosopher John Rawls described as ‘a state of reflective equilibrium’—a state of balance or coherence among a set of moral convictions arrived at by a process of deliberative mutual adjustment among general principles and particular judgments based on a careful examination of the relevant facts.
What all these great minds share is the conviction that principled legal, moral and political discourse is a never-ending collaborative endeavour in ‘the common pursuit of true judgment’. This is something celebrated with reverence in Rembrandt’s great masterpiece and something that I have been privileged to enjoy with Max Atkinson for more than 40 years—the better part of half a lifetime! His influence on my own thinking and writing has been profound, for which I am eternally grateful.
No-one during that period has done more than Max to raise the standard of public discourse in Tasmania. He is a public intellectual of the first order. We are lucky to have him here. And the Editor of Tasmanian Times is to be congratulated for recognising his quality and for publishing his work. Long may it continue!
The archive of his articles on this site—from which I have taken just a small but typical sample of representative quotes—is a treasure trove of legal, moral, political and philosophical wisdom, which is fascinating to explore and instructive to reflect upon, as I found to my delight whilst preparing this all too brief survey of the principles underlying his published work.
I commend it to the reader: http://oldtt.pixelkey.biz/index.php?/category-article/150
For Max, above, in the spirit of Rembrandt’s ‘two old men disputing’!
*Scott MacInnes has a background in teaching, law and conflict resolution. He is now retired and has written occasional articles about politics, morality, aesthetics and faith, and how these relate to each other. In a previous life, he was a mature-aged student of law under Max Atkinson in 1978 and later relieved him as a part-time Lecturer and Tutor in Torts while he was on sabbatical leave in 1981 and 1984. He has spent the past 40 years trying to understand what Max’s lectures were really about! For other articles by Scott MacInnes go to: http://oldtt.pixelkey.biz/index.php/category-article/155