Thursday, November 08, 2007

COMMENT: Damnit Janet! haven't you heard of the common law?

It’s official. When it comes to law, Janet Albrechtsen is no conservative. Here’s why.

Albrechtsen’s spray on the ALP and ‘activist’ judges the other day is evidence (if ever any was needed) that she simply doesn’t believe in the English common law tradition. She writes:

The Howard Government has stacked the High Court with stodgy conservative judges. You know the type. Judges who have that old-fashioned view about democracy under which politicians and the people make the laws and judges implement them.

She summarises the impact of judge-made law as follows:

There is little predictability or certainty. The rule of law becomes no obstacle for significant social change.

Albrechtsen must have skipped her undergraduate law lecture where the concept of common law as judge-made law was explained. Then again, given the key role the common law plays in Australian law, it seems Albrechtsen may have skipped attending lectures altogether.

I guess Albrechtsen must be opposed to the various Sale of Goods Act legislated in the various Australian states and territories as well as at Commonwealth level. Those acts involved codification of basic commercial law developed by English judges over centuries. As far back as 1988, the NSW Law Reform Commission noted that noted that the preamble to these Acts mention their intention “to codify ... the law relating to the sale of goods". You’d think someone with a PhD in commercial law would know that.

Albrechtsen must also be opposed to basic common law concepts such as negligence, the result of nasty left-wing Che Guevara-worshipping House of Lords judges like Lord Atkin in the 1932 English decision of Donoghue –v- Stevenson. I mean, look what happens when activist judges give judicial expression to the “Good Samaritan” propaganda of that radical communist Jesus Christ, as reported in Chapter 10 of the revolutionary extremist manual known as The Gospel According to Luke.

Albrechtsen goes further, rallying against

... progressive judges who have staked out their preference for ambiguous human rights and international law.
She resents the appointment of judges committed to nasty trendy left-wing types of causes. You know. Communist socialist anarchist leftist PC-ist causes like human rights.

The horror! Judges standing up for human rights? And judges making law as they have been for over 1,000 years?? We’d better start donning “Howard-07” t-shirts as

Labor may end up appointing judges who have nothing but disdain for politicians and parliament and, yes, the people.

True conservatives support the status quo, and insist on only gradual change. By almost wanting to do away with the traditional role of the common law, Albrechtsen has shown why (at least in legal matters) she is a radical revolutionary.