“Law, at its very foundation, is conceived and derived from values.”
In this speech by Chief Justice James Allsop of the Federal Court of Australia titled “Values in law: how they influence and shape rules and the application of law”, he makes the case that law is fundamentally based on human values.
One aspect of that is to control human power.
In discussing Kable v DPP (NSW), he noted: “The Court held that the Judicature is vested with a form of power distinct and different from executive and legislative power; the power is based on pre-existing law (though part of the Judicature’s task is the law’s health and direction and so its change from time to time) and, as part of its essential fabric, the execution of judicial power is constitutionally required to be fair, equal and just. This is not rhetoric. These features are part of the defining character of the power. They are features that reach back to the rejection of inequality of status that was the foundation of the Ancient World, and to the recognition of one man or woman’s soul (however lowly she or he were born) as the spiritual equal of the soul of a king. The forging of the place of the individual and the recognition of her or his human dignity lie at the root of our conceptions of fairness and equality. They are the features that engender the consent, trust and respect of society in the administration of justice in its daily contact with people, often in circumstances that can be productive of distress, a sense of abject failure and crushing humiliation.”
He concludes: “We should accept that any system of law worthy of being called just must be founded on fundamental values. Part of that acceptance is the recognition that sometimes rules can only be expressed by reference to values or general concepts and cannot (unless incoherence is to be courted) be reduced to concrete, in-abstract propositions. …
The human beauty of the law does not come from the sounds of tongues, talking of grand ideas, so often making them seem physical, limited and prosaic by superficial language, taxonomical arrangement and metallic repetition. Rather, it is in the daily application of life that the dignity of the individual, the mercy of the soul, and fairness as part of the human condition inform the exercise of lawful power. In life’s small, selfish and mundane intersections, these values assume a daily modesty in expression, and in context. But that modesty in expression and in context reaches back towards essential humanity and towards the echoing inflection of the infinity of law. The human beauty of the law does not come from grand expression, but from modest application to the humans in question, to the conflicts in resolution, to the pages of the lives of people – in fairness required, in dignity expressed and accepted, and in mercy given.”
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