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The rule of law is under threat

As published in Lawyers Weekly 22 October 2020

In a recent Lawyers Weekly interview, former ACT attorney-general Bernard Collaery, says that legal practitioners are under threat and need to be awake to the changes to the Rule of Law, in that it is being eroded and is under threat. He presently faces charges brought against him by the federal government for conspiracy and through this experience believes that our profession is in trouble.

I agree that our profession is on the verge of demise in its present state but question Mr Collaery’s implication that the solution lies in the need to restore the Rule of Law. I see that whilst the Rule of Law has served its purpose, I’m of the view a more sophisticated society no longer needs the hand of a stern parent via a hierarchical structure. We would be better served in a more collaborative approach to governance. I would go further to question the need for law at all and say that intuited guidelines, operating on a momentary basis is the way forward.

My views have been criticised on two points in particular:

1. The law of the jungle would ensue; and

2. we would have no certainty.

The law of the jungle

I say the law of the jungle is alive and well and operates behind closed doors. Indeed, Bernard Collaery recognises the existence of lawlessness and is concerned that our profession is close to being oppressed.

What is oppression?

Wikipedia defines oppression as being a “malicious or unjust treatment or exercise of power, often under the guise of governmental authority or cultural opprobrium.” Mr Collaery defers to the existence of governmental excesses of power, which operate in secret and need exposure. Further, lawyers are no longer perceived by the public as trusted professionals in that laws are manipulated to benefit the wealthy.

Is this not the same as the law of the jungle?

Certainty and the rule of law

I have said for some time that the law is not certain and recently experienced this firsthand as a client in the family law system. Yet how can it be certain when it is called to cover all permutations and combinations of a fluid existence? Despite all impartial intentions, interpreting law is unavoidably tinged with our own biases. Take the recent Full Court of the High Court of Australia case: Love v Commonwealth of Australia [2020] HCA 3. Here we have the best legal minds in the country dealing with the same law and the same set of facts, yet we have three judges in the affirmative, three in the negative and one undecided. No certainty of outcome there.

Indeed, is it not our role as lawyers to vigorously defend our client? In doing so we must ‘interpret’ the law to suit our client’s purposes. Yes, of course we have a prime duty to the court, however, the public wants a lawyer to ‘win’ for them. We are slanted to deliver on that promise. It’s a game.

Mr Collaery, in my view, rightly points out that by merely taking instructions we lawyers can be seen to be conspiring to break the law.

The antonym for oppression is freedom.

Would a journey back to the Rule of Law offer us freedom?

In Dr Tyson Yunkaporta’s latest book, “Sand Talk”, he provides insight by showing us “how indigenous thinking can change the world”.[1] He discusses sustainable systems as being ones that are constantly moving, where every unit “requires velocity and exchange in a stable system or it will stagnate”.[2] Our systems, to survive, need to be self-renewing as opposed to being closed systems where the exchanges go only one way.

As with most closed systems, I believe the Rule of Law had a used-by date that has long passed. The legal system with its stagnant patriarchal and hierarchical nature, draws the power upward only. There is no exchange of energy throughout the system and as such is consuming its own power. We are now starting to experience this as being unsatisfactory and unsustainable.

Moreover, what we are experiencing is legal fetishism. Precedent law, for instance, looks to the past to predict future outcomes. We have created law based on our collective limiting subconscious beliefs that we need protection from each other. Yet those laws we sought to protect us are now paradoxically controlling us. The system perpetuates the fears we are each holding onto.

The solution is to dissolve the collective unconscious fear that believes we are limited, and that we don’t trust in ourselves. We can do this by exploring the possibility that, as Dr Yunkaporta describes it, an “infinitely interconnected, self-organising, self-renewing system” could, and indeed does, exist if we choose it.

A unifying system flows, as opposed to stagnates, by allowing equal distribution of power to all within the system. That power comes when we are each allowed to self-validate and take responsibility for all our experiences. As we move post-COVID, many of us want freedom. We are beginning to see that we are an ill-informed and controlled society, and for us to begin to make empowered life-choices we need valid information, not parenting.

When we are truly able to make authentic choices for ourselves, we are free. The Rule of Law cannot offer this freedom.

[1] Tyson Yunkaporta, “Sand Talk”, p46. [2] Ibid p59

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