Ultimately the basic problem of modern law reform is a futile search to reconcile irreconcilables and the refusal to acknowledge tensions and contradictions. Law reformers want freedom, as well as order, individual liberty as well as equality, safety as well as the benefits of risk taking, a wide open society as well as less crime, material wealth as well as spiritual worth, individual liberty as well the collective good and economic and social regulation and political freedom — without stopping to think that each of these values take something away from the other. To use two ungainly but accurate expression: they have forgotten the trade-offs. They want to have a cake and eat it at the same time.
The most destructive agents of change of the common law were not the marxists, the neo-marxists, the fascists and other extremists. They are, and always have been a minority, though the small percentage of persons who reject fundamentally western civilisation and/or seek solutions in violent action or civil disobedience is increasing. The agents of change were to use another hackneyed phrase, people who want to have their cake and eat it at the same time.
What are the solutions? My answer is that there are no solutions to complicated human problems. The productive and beneficial eras of human history are those where there has been a constructive effort to face up to problems where society and law respect basic morality and possess a sense of realism tinged by idealism.
The basic deficiency of so much of modern reform and progressivism (so called) is that it has not been predicated on an understanding of the values and institutions which were responsible for the rise of western civilisation (of which Australia is a part). These have been consistently undermined. These values and institutions, which reflect the wisdom (and also the foolishness) of centuries of development, have been attacked rather than creatively developed to meet the emerging and genuine problems of modern life.
Moral values, standards and institutions will not lead to a utopia, but they offer a firmer basis for dealing with the problems of living than philosophies of modern age reformers and progressivists (so called).
Philosophers have searched in vain for a theory which will underpin permissible restrictions on freedom. John Stuart Mills' views on this subject have been subjected to sustained and devastating critique by modern liberals as well as egalitarians. Modern liberals search for a new theory. The search for the theory to explain the permissible limitations on freedom (like a search for a theory of social change) amounts to searching in a dark room for a black cat which is not there.
Theories undoubtedly offer assistance. However, no single theory can accomplish the task. The answer lies in the work of philosophers and men and women acting in the real world. The concepts, principles and methodology of the English common law (as it existed at the beginning of this century) offer the most workable answer to this complex problem which has yet been provided. It is not a complete or logically defensible answer. The simple reality is that no complete and logically defensible answer can be provided. No theory or concept can be developed which satisfactorily explains the complexities of human interaction in an uncertain world. Theories and concepts constitute aids to understanding, but no single theory or concept can provide a complete or even a near complete answer.