The Mabo Edict is an exercise in law reform very much within the law reform tradition
This approach may be summarised in a number of propositions:
There are many adverse consequences of the "here's a problem reform" process. The reformists seek to achieve change through legislation and bureaucratic action which has many pitfalls not foreseen and not understood by the purported reformers. The cumulative effects of the totality of regulations on freedom, the economic cost to the tax payer and business and other side effects are not appreciated. The word "cumulative" in the previous sentence requires emphasis. The reformer focuses on a particular problem and legislates. The cumulative effects of numerous and manifold efforts to deal with problems involve a massive interference with individual freedom and a burden on the individual and business taxpayer (cost to business is always passed on to the consumer).
These pitfalls are summed up thus:
The extension of this policy, causing extension of corresponding ideas, fosters everywhere the tacit assumption that Government should step in whenever anything is not going rightly "Surely you would not have this misery continue!" exclaims someone, if you hint a demurrer to much that is now being said and done. Observe what is implied by this exclamation. It takes for granted, first, that all suffering ought to be prevented, which is not true: much of the suffering is curative, and prevention of it is prevention of a remedy. In the second place, it takes for granted that every evil can be removed: the truth being that, with the existing deficiencies of human nature many evils can only be thrust out of one place or form into another place or form, often being increased by the change. The exclamation also implies the unhesitating belief, here especially concerning us, that evils of all kinds should be dealt with by the State. There does not occur the inquiry whether there are at work other agencies capable of dealing with evils, and whether the evils in question may not be among those which are best dealt with by these other agencies. And obviously, the more numerous governmental interventions become, the more confirmed does this habit of thought grow, and the more loud and perpetual the demands for intervention.
Every extension of the regulative policy involves an addition to the regulative agents — a further growth of officialism and an increasing power of the Organisation formed of officials.
He contemplates intently the things his act will achieve, but thinks little of the remoter issues of the movement his act sets up, and still less its collateral issues. ... Even less, as I say, does the politician who plumes himself on the practicalness of his aims, conceive the indirect results which will follow the direct results of his measures. ... Dwelling only on the effects of his particular stream of legislation, and not observing how much other streams already existing, and still other streams which will follow his initiative, pursue the same average course, it never occurs to him that they may presently unite into a voluminous flood utterly changing the face of things. (Spencer:1940:29,30-31,34)
Ultimately the basic factor (discernible in the Mabo Edict) which infects the modern reform tradition 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 as 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 an ungainly but accurate expression, they have forgotten the trade-offs.
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 destructive agents of change are, to use another hackneyed phrase, people who want to have their cake and eat it at the same time — people who focus on a perceived injustice without a sense of perspective and the total consequences of proposed reforms.
What are the solutions to injustice? The answer is that there are no solutions to complicated human problems. The productive and beneficial areas of human history are those where there has been a constructive effort to face up to problems where people and law operate in accordance with basic morality, possess a sense of realism working in tandem with 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.
The common law methodology (a concept of wrong doing based on fault, evolutionary change involving slow and gradual development, precedent, inter personal justice as distinct from social justice, due process, standards and principles - all of which prevent ad hoc law making) will not lead to Utopia. But they offer a firmer basis for dealing with the problems of living than philosophies of modern age reformers and progressivists (so called).
The argument is not made that the common law is superior to statute or that the common law should prevail over statute. But that "the common law methodology" (not the common law) is the best guide for productive and beneficial law reform (whether legislative or judicial). (The "common law" methodology is explained in Cooray 1985:18-26 and Cooray 1992).