A Hard Look at Holism and Consequentialism in Hard Cases
| Date | 01 September 1985 |
| Author | Suzanne B McNicol |
| Published date | 01 September 1985 |
| DOI | 10.1177/0067205X8501500302 |
| Subject Matter | Article |
AHARD LOOK AT HOLISM.AND CONSEQUENTIALISM IN HARD
CASES
SUZANNE BMcNICOL*
In any
field
of
law
...
there may arise the rare "landmark" case in which acourt,
usually a final appellate court, concludes that the circumstances are such as to
entitle and oblige it to reassess the content
of
some rule or set
of
rules in the
context
of
current social conditions, standards and demands and to change or
reverse the direction
of
the development
of
the law. 1
The importance
of
the feature
of
holism to some theories
of
law and adjudi-
cation cannot be over-emphasized.
It
is
sometimes used as avital ingredient
in atheory
of
law -hence, to Professor Dworkin, the law
is
a"seamless
web"; it
is
complete, determinate and consistent.2At other times, holism has
been used in adescription
of
the common law -hence, to Lord Scarman,
the common law "knows no gaps: there can be no casus omissus".3 Still, at
other times, it appears not so much as adescription
of
law but as amethod
or technique -hence, aholistic approach to adjudication
is
one which
assumes that legal decision-making does not proceed
in
vacuo but always
against abackground
of
asystem
of
relatively well-established rules,
principles, standards and values.4
It
is
intended in this paper to explore the concept
of
holism and to argue
that it
is
fundamental to both atheory
of
what law
is
and to atheory
of
adjudication.
It
will be suggested that holism exists in two senses -in its
primary or central sense it
is
used to describe law as agapless system
of
rules,
principles, policies, standards and received values. On the other hand, it will
be argued that holism in its secondary sense represents ajudicial approach
to legal problems which does not deny that specific gaps arise from time to
time in alegal system. Aholistic approach in this secondary sense
is,
however,
an approach'which confronts legal questions with
an
"overall perspective"S
which
is
obtained from an un,derstanding
of
legal rules, principles, standards
and the entire legal enterprise. Furthermore, such aholistic approach recog-
nizes that there are some standing aims
or
values in each branch
of
the law
which can be used to formulate legal principles to
fill
acknowledged gaps.
If
holism in its primary or central sense
is
fully appreciated and accepted,
then this will help to explain some apparent inconsistencies and flaws in cer-
tain arguments put forward by eminent jurists such as Professor Dworkin.
For
instance, if it
is
recognized how important holism was to Dworkin's
description
of
law, then his apparent failure to take into account the distinc-
tion between the "unsettled rule" variety
of
"hard case" and
the
"no-rule"
*BA LLB (Hons) (Melb) BCL (Oxon) Barrister and Solicitor, Victoria; Lecturer in Law, Monash
University.
1Jaensch v
Coffey
(1984)
58
ALJR
426,
448
per
Deane J.
2R M Dworkin, Taking Rights Seriously (1978) 115-123 (hereinafter referred to as TRS).
3McLoughlin vO'Brian
[1982]
2All E R 298, 310.
4H L A Hart, "American Jurisprudence Through English Eyes: The Nightmare and the
Noble Dream" (1977)
11
Ga
LRev 969, 979.
5Jaensch vCoffey supra n
1,
450 per Deane J.
1985] Aboriginal
Land
175
of
aprinciple
of
this
sort
does
not
serve
the
ends
of
justice, it
must
be dismissed;
otherwise it would become the master instead
of
the servant
of
justice. Obviously,
the
ordinary principles
of
judicial inquiry are requirements
for
all ordinary cases
and
it
can
only
be
in
an
extraordinary class
of
case
that
anyone
of
them
can
be
discarded.52
6CONCLUSION
Much has been written on the political, economic and social implications
of
Aboriginal land rights. Legislation aimed
at
giving recognition to tradi-
tional Aboriginal ownership
of
land continues to prove controversial, both
as to its philosophical basis and in its particular terms. The purpose
of
this
paper has not been to enter into that controversy but rather to explore the
consequences for Anglo-Australian law
of
that recognition.
The hearing
of
land claims in the Northern Territory, determinations by
the Aboriginal Land Commissioner and challenges to those determinations
in the High Court
of
Australia
53
have made it necessary for those involved
to come to an understanding
of
the complexities
of
traditional Aboriginal
ownership
of
land, to
see
it as part
of
a"government
of
laws, aqd not
of
men", and to accord it aplace (within the relevant legislative framework)
in the Anglo-Australian system
of
registration
of
title and dealings with land.
Aproper understanding
of
these matters
is
important, not only in the
interests
of
Aboriginal claimants but also for mining, pastoral, fishing and
other interests that may be affected by grants
of
land and for governments
that enact and must apply the legislation in which recognition
is
effected.
It
is
important too for the wider Australian community which has been called
upon to try to understand the philosophy underlying land rights legislation,
to consider its implications for them and their children and to assess for them-
selves how far the legislation meets alegitimate demand.
S2
In re K(Infants) [1965]
AC
201, 238.
S3
There have been further challenges since this paper was delivered:
Re
Kearney; ex parte
Northern
Land
Council (1984)
58
ALJR
218;
Re
Kearney; exparte Japanangka (1984)
58
ALJR
231;
Re
Kearney; ex parte Jur/ama (1984)
58
ALJR
243.
174 Federal
Law
Review [VOLUME
15
of
a
land
claim hearing.
Some
of
the
areas
claimed
have
been
very extensive;
the
Warlpiri
claim involved
land
about
the
size
of
Victoria.
Many
of
the
sites
on
the
claim
area
were visited
but
it was
not
possible
to
see all
of
them.
Field
trips
conducted
by
claimants
and
anthropologists
are
often
filmed
and
used
as
part
of
the
evidence. Sometimes
the
inaccessibility
of
awitness
or
his
or
her
inability
to
travel
to
the
venue
of
the
hearing
is
catered
for
by
the
use
of
film
and
video.
Before
each
land
claim
an
anthropologist
is
appointed
to
act
as
consul-
tant
to
the
Aboriginal
Land
Commissioner.
The
function
of
the
consultant
is
to
be
present
during
the
hearing
and
at
the
end
to
prepare
a
report
com-
menting
on
the
strengths
and
weaknesses
of
the
claimants' case
and
on
any
other
evidence
of
an
anthropological
nature.
If,
at
any
time
during
the
hear-
ing, it seems
that
some
traditional
owners
may
have
been
overlooked, it is
the
consultant's
task
to
make
inquiries
to
clarify this
matter.
The
consul-
tant's
report
is
distributed
to
all
those
participating
in
the
hearing
and
the
consultant
is
present
for
cross-examination
if
required.
Avisit
to
a
storehouse
of
sacred
objects
is sometimes seen
by
claimants
as
an
essential
part
of
their case.
To
see these objects
and
to
have
their
significance explained
may
be
compelling testimony, as is
the
performance
of
ceremonies.
51
From
time
to
time
during
the
hearings claimants seek
to
give evidence
on
arestricted basis. Usually
the
evidence involves
the
performance
of
ritual
or
the
viewing
of
sacred objects. Very
often
the
restriction is
that
women
should
not
be
present. Given
the
gender
of
the
Commissioner
and
of
coun-
sel, this ordinarily presents
no
great problem. Objection is
taken
to
the
filming
of
sacred
objects
and
of
some
ceremonies
and
to
the
recording
of
the
oral
evidence
accompanying
them.
In
those
cases
the
practice is
to
ask
one
of
the
anthropologists
present
to
summarize
what
had
taken
place
in
a
form
that
would
not
give offence
to
the
claimants
if
the
material was
made
public.
More
difficulty is encountered in
the
case
of
evidence
by
Aboriginal
women
of
asecret
nature
or
the
performance
by
them
of
particular
ceremonies
and
visits
to
their
particular
sites.
On
afew occasions
women
have
not
wished
any
male,
other
than
the
Commissioner,
to
be
present. This creates problems
for
counsel
but
it is generally
overcome
because
of
the
presence
of
female
anthropologists
who
can
report
to
the
parties, again
in
a
summary
way,
what
has
taken
place.
On
one
occasion a
report
on
puberty
rites was
made
availa-
ble only
to
counsel
and
advisers
who
were female.
When
restrictions
of
this
sort
are
attached
to
the
reception
of
material,
there
are
competing
interests
at
play.
In
the
course
of
the
hearing
of
a
land
claim
the
rules
of
natural
justice, as
they
have developed in
regard
to
administrative inquiries, should operate.
As
ageneral rule
the
Commissioner
ought
not
to
receive
material
which
has
not
been
made
available
to
those
participating
in
the
inquiry,
and
as
ageneral rule
those
participating
should
be
given
the
opportunity
to
dispute
testimony
and
to
make
comments
upon
it.
But
these
are
general rules
and
I
take
comfort
from
some
remarks
of
Lord
Devlin, in a
quite
different
context:
But aprinciple
of
judicial inquiry, whether fundamental
or
not,
is
only ameans
to
an
end.
If
it can be shown in any particular class
of
case that the observance
51
LRe, "Oral vWritten Evidence: The Myth
of
the 'Impressive Witness' "(1983)
57
ALI
679.
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