The Common Law And Human Rights
From Human Rights In Australia by LJM Cooray (1985)

The Common Law Origins Of Human Rights
Balancing Of Interests
Common Law Restrictions On Human Rights
The Need For Legislation
The Critics Of The Common Law

3.1 The Common Law Origins Of Human Rights

The absence of a Bill of Rights does not necessarily mean disrespect for human rights. On the contrary, the major personal liberties enshrined in modern constitutions are, to a great extent, derived from common law principles evolved in Britain. This is not to deny the influence of the continental European philosophers of the Renaissance and post-Renaissance period who influenced the development of the common law, the Bill of Rights in the US Constitution and the Universal Declaration of Human Rights.

Professor A V Dicey in his "Introduction to the Study of the Law of the Constitution" 9th ed (London, 1952) pp 200-1 described the right to individual freedom as

"part of the constitution because it is inherent in the ordinary law of the land" and "one which can hardly be destroyed without a thoroughgoing revolution in the institutions and manners of the nation."

He focussed on the importance of the judge-made common law.

We may say that the Constitution is pervaded by the rule of law on the ground that the general principles of the Constitution (as for example the right to personal liberty or the rights of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the Constitution.

The common law rights are a product of long evolved social values which are judicially articulated and interpreted.

"Its roots strike deep into the soil of national ideas and institutions". — C K Allen, 'Law in the Making' 7th ed, (Oxford, 1964) p 71.

These rights (it used to be argued) are ingrained in the national psyche and conduct and command respect. Such universal respect is essential to these rights as they co-exist with the sovereignty of Parliament.

Some of the common law liberties have from time to time been formally declared. Thus the Magna Carta of 1215 guarantees that

"no free man shall be taken or imprisoned or dispossessed or outlawed, or banished, or in any way destroyed . . . except by the legal judgement of his peers or by the law of the land."

Habeus Corpus
The Habeus Corpus Act of 1641 provided that no man could be put on trial except before the Courts

"by due process and writ original according to the old law of the land."

This was the freedom from arbitrary arrest. The Bill of Rights of 1689 guaranteed free elections to Parliament and prohibited excessive bail, excessive fines and cruel and unusual punishments. Among the other rights recognised by the common law and enjoyed by the people were the right to be informed of reasons for arrest, the right to a fair trial and the right to be presumed innocent until proven guilty.

Colonial migrants who enjoyed and cherished these rights established them in other parts of the world in which they settled. In the United States, these rights formed in part the foundation of a Bill of Rights incorporated in the Constitution. The Americans, however, made a radical departure from tradition by making Congressional power subservient to these rights. In Australia there was no attempt to entrench these rights in the Constitution and they continue to operate as part of the inherited common law tradition subject to statutory restrictions.

As mentioned before, these rights are grounded in the way of life of the community and are given recognition by the courts. In the absence of formal constitutional protections only a strong national commitment to these rights can save them from legislative invasion.

Unfortunately, in recent times, the crucial importance of these rights has tended to be forgotten in the course of searching for ad hoc solutions to social problems. This tendency has been the result of the pursuit of particular goals by special interest groups in disregard of long term damage to the foundations of liberty. Even persons who recognise the importance of these rights in their general application sometimes urge departures in relation to matters of particular concern to them.

Thus moral crusaders advocate the denial of rights to particular types of offenders. Social reformers in seeking to eliminate forms of discrimination down play the common law rights to free expression and free association. Modern regulationists even agitate for restrictions affecting the rights of privacy and livelihood. The end result is that agitation for short term solutions weakens the carefully evolved framework of rights which alone can ensure the long term survival of human liberty.

3.2 Balancing Of Interests

One of the greatest virtues of the common law system of rights is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community.

There are always difficult questions concerning the restrictions that ought to be imposed on human rights in the public interest. For example, some persons may consider that publications tending to cause racial disharmony are obnoxious to community values and should therefore be penalised. Others may consider such publications as legitimate exercises of individual freedom but may on the other hand consider the publication of obscene matter more harmful to the community. To take another example, some people find no justification for placing restrictions on cigarette sales or advertising but will consider the promotion of heroin trade or consumption totally unacceptable. It is apparent therefore that different people perceive danger to themselves and the community differently. The question then arises as to which particular concerns and interests ought to be protected by placing restrictions on individual rights. In other words the law-maker faces the difficult task of determining the boundaries of permissible and impermissible conduct.

In the modern era, there is a growing belief that the solutions to these problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalization or imperfect empirical investigation, sometimes based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which are inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilization. However, it represents an evolved public morality which is the only sound basis for the formulation of legal precepts.

The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. In deciding these disputes the courts draw upon precedents embodying the public morality which have been developed over the ages. These principles, in the words of Charles Francis, QC, in a talk delivered at the Professors World Peace Academy Conference on November 12 1984

"represent the collective legal wisdom distilled over many centuries from the finest legal minds in the English speaking world for the express purpose of defining, protecting and enforcing human rights and obligations".

Through the process of disputation, debate and impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject.

The question may be asked, what makes the courts superior to politicians, bureaucrats and academics as custodians of individual freedom and public interest? Three reasons may be given. One is the impartiality and competence which is associated with courts functioning in the common law tradition. Despite frequent attacks and attempts to denigrate these qualities they remain real in the public eye. Public confidence in the judicial system, as demonstrated by surveys, (not withstanding academic and political attacks) surpasses its confidence in political institutions, the bureaucracy, the media and academia. This confidence itself encourages and promotes the impartiality and dedication of the judiciary. A second factor is that unlike political institutions, the common law courts have no licence to arbitrary action. Judicial discretions unlike political discretions, are strictly limited to the application or adjustment of already established norms and standards. Thus there are inbuilt restraints in the judicial method which ensure a greater degree of certainty and fairness. A third factor is that the common law itself is a product of reasoned disputation where individual rights and duties are claimed and evaluated. No comparable process obtains in the political system in which ideological considerations often prevail and aggressive pressure groups exercise influence without regard to reason, justice or community values.

It is however, not suggested that legislation in a modern technological age is never necessary or useful. The common law method, like all human creations, is imperfect. It can usefully be supplemented by legislative action. But modernisation is not the same as social engineering. Under the guise of modernism, social activists are implementing their policies. The complaint regarding the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a superior wisdom indulge in structuring and ordering society in disregard of the community consciousness and values. It is this kind of legislative activism that leads to progressive erosion of human rights under the colour of safeguarding public interests. In contrast the common law method assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights on the basis of the customary ways of the community. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves.

3.3 Common Law Restrictions On Human Rights

The common law restrictions on human rights are expressed in the form of criminal offences, civil wrongs and liabilities arising out of the sanctity of contract. When these restrictions are examined it is not difficult to see their relationship to the public morality and in particular to the religious beliefs and values of the community. For example, criminal offences such as murder, rape, theft and fraud are acts universally condemned by the ethical systems of all major religions. Such offences constitute the core of the restrictions on human conduct recognized by civilized societies. Even in the absence of major religious influence, civilized communities consider such acts reprehensible and impermissible as they jeopardise human survival and well-being. However, the religious basis of the common law is undeniable as religion and public morality were co-extensive, particularly in early times. As Lord Denning says of the common law theory of crime:

"In order that an act should be punishable, it must be morally blameworthy. It must be a sin." The Changing Law, (London, 1963) p 112.

Each common law crime thus protected an institution or value which was considered to be of fundamental importance. Offences such as murder, rape and assault protected personal physical integrity. Crimes such as larceny, fraud and cheating protected private property. Freedom of speech was restricted to protect reputations (libel and slander), religious sensibilities (blasphemy), public morals (obscenity), the independence of the judiciary (contempt) and the lawfully established system of government (sedition).

Apart from crimes which were considered as prejudicial to the community as a whole, the common law developed other restraints against causing harm to person, property and reputations by recognizing numerous torts or civil wrongs. These as well as actions based on contract enabled individuals to sue for damages. Together they formed a corpus of rules determining the boundaries of permissible and impermissible conduct. The development of the common law of torts in more recent times demonstrates the dynamism of the system to accommodate the needs of changing social and economic conditions. Employers' liability to provide working conditions and training adequate for the safety of workers is one example. The application of the law of nuisance to owners of property which through neglect causes harm to others is another example.

3.4 The Need For Legislation

One of the problems of applying the common law method in the modern era is that circumstances posing dangers to society can arise suddenly and the common law response (relying as it does on appropriate litigation coming before courts) may not be sufficiently rapid to avert harm. In these circumstances it becomes necessary to create safeguards by legislative action. In such situations, although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of proposed restrictions. The common law approach gives predominance to community perceptions and values (including moral and religious sensibilities) rather than to the views of lobbyists and political activists. What is important in such an approach is objectivity and impartiality. In other words the modern legislator, who contemplates placing a restriction on liberty, should approximate his role closer to that of the judge than to that of an ideologue or a person with received wisdom to effect far reaching changes in the public interest. It is only by such means that we can determine the perceptions and priorities of the community.

Secondly, the common law approach is also characterised by the importance attached to personal freedom and the freedom of speech and expression and the freedom to hold and enjoy property. The precedence given to these rights (explained in chapters 5, 6, 7 and 8) flow from their indispensability for the enjoyment of all other rights and liberties.

If such an approach is adopted in relation to the tobacco and heroin example cited above, the answer would not be difficult to reach. Firstly an objective approach will demonstrate that the community and medical perception of the danger posed by heroin is far greater than that posed by tobacco. (Tobacco is not necessarily addictive — and many people smoke in moderation. It is not possible to take heroin in moderation or without dangerous side effects.) Having as far as possible objectively measured the community perception, the legislator should then similarly balance the interest of freedom as against the necessity to prevent the perceived harm. When this is done the answer will be in favour of freedom in the case of tobacco and in favour of prevention in the case of heroin.

In the common law system fairness and objectivity in the resolution of disputes is sought to be ensured by time tested procedural and evidentiary rules. Thus a person is presumed innocent until proven guilty. There are rules for the exclusion of doubtful evidence and rules that guarantee a fair hearing. There are no comparable safeguards in the legislative method of determining rights and duties. As such, the onus on legislators embarking on restrictive schemes is even greater.

The common law has been described as an insecure foundation of liberty as it is subservient to statute law. This view of common law rights, though not entirely incorrect, lacks the appreciation that the common law when it genuinely operated (before it was overlaid and undermined by legislation) was largely an expression of the norms of conduct generally observed by the community. Therefore the protection of common law rights is guaranteed by the national conscience. In practice this mode of protection has often shown a better record than those of many countries possessing ambitious constitutional charters on human rights.

The Bill of Rights incorporated as Amendments to the US Constitution was drafted by representatives of all significant political groupings. The drafters and the judges who interpreted it valued common law rules of procedure and evidence, recognised common law restrictions on freedom, reflected the spirit of the common law and ensured that such rights were administered and protected by the common law courts. The proposed Australian Bill of Rights, by contrast, contradicts every one of the above principles.

However, it has to be recognised that the crucial factor for the effective common law protection of human rights is a pervasive national commitment to such rights. In order to achieve this, it is necessary that public awareness and public vigilance be maintained at all times. In the final analysis it is such public consciousness that inspires legislators and judges to uphold the principles of human liberty.

3.5 The Critics Of The Common Law

The critics of the common law are never tired of pointing out the problems that have arisen as a consequence of common law decisions. In a world of imperfect human beings reacting with each other in an uncertain and accident prone environment, problems are inevitable. The strength of the common law is appreciated if it is compared to other legal systems of the past and the present. If comparative studies are conducted, the record of the common law will appear infinitely superior to that of every other legal system the world has known except the civil law tradition. The common law and civil law traditions are both products of evolving democratic societies. Notwithstanding their differences they have a great deal in common. Many of the important features of the common law referred to above are recognised, though perhaps in a different form, in the civil law. The common law however, is infinitely superior to all other systems, including socialist systems. Many reformists draw their ideas indirectly if not directly from socialism and marxism. If the common law is compared to socialist and marxist experiments its superiority becomes evident. An example of reformist legislation which entirely overturned the common law is in the family law area. The common law system created problems, but the reformist legislative package which replaced it has created innumerable problems and appears far inferior to the common law rules. This is not to argue that the common law rules were adequate. Modernisation was essential. But the new legislative package did not seek to modernise the common law principles. It refashioned them in a counterproductive manner.

It is said in this chapter that the evolved wisdom and thought of the centuries should be given due weight. Human rights movements in the twentieth century are a continuation of a long philosophical movement and common law experience. The human rights activists who promote particular views, often ill-conceived and based on their subjective values and personal considerations, brush aside this evolved wisdom and thought without rational analysis. The evolved wisdom has been almost entirely discarded in the Evans Bill of Rights and the approach of the Human Rights Commission. There is a need to adapt the evolved wisdom in dealing with the problems of modern times. The movement to radically undermine or discard the evolved wisdom must be fiercely opposed.

A criticism of the above approach was mounted by a person who read the manuscript in the following way:

"The validity of the assertion that the traditional common law judicial and adversarial system is " essential" to the effective enforcement of human rights is debatable. Because of the limited role of a two-party adjudication system, other mechanisms might be better able to effect change in matters of general social concern.
This argument which smacks of " administrative convenience" or something similar could be abandoned, if the proposition that the common law judiciary is indeed impartial in human rights litigation is correct. "Impartiality" includes freedom from prejudice and value-neutrality This claim cannot be made in most jurisdictions in the light of prevailing methods of judicial selection, recruitment and training."

It is not necessarily asserted the adversarial system is inherently superior to its continental competitor — the Roman law influenced investigatory tradition. Both systems are designed to protect the rights of the accused who may be innocent. But they operate to protect the accused through rules and procedures in different ways. Each system has worked out a balance between the rights of the accused and the interests of justice. Tinkering with the rules of either, by transferring from one to the other, may upset the balance and be counter-productive.

The common law safeguards operate during the trial. The civil law safeguards are pre-trial. To provide a mixture of the civil law pre-trial and the common law trial procedures (as some reformists would like to) would weight the balance too heavily in favour of the accused. Convictions would be very difficult, if not impossible.

It is however strongly argued that there must be provision derived from common or civil law to protect the accused which cannot be waived or derogated from in cases of "general social concern" .

The important transcendental factor is the need for clear principles and provisions derived from common law or civil law to protect the accused, which cannot be waived or departed from in cases of "general social concern". What is a matter of "general social concern"? What is often put out as a matter of general social concern is a matter of concern to academics, bureaucrats and activists. What is said to be a matter of "general social concern" may be a matter of concern to particular individuals and not necessarily be a matter of concern for a significant section of the community.

The judiciary is not impartial and value-neutral. But it is an ideal which the common law judiciary strive towards, even if imperfectly. In this context, is the solution for a lack of impartiality and the human failings, to abandon any pretence of objectivity and move to a position where rights are adjudicated upon by people who may be biased and who are freed from all the common law restrictions which aim to control and limit bias and arbitrary action? Is the establishment of tribunals with activist and biased judges or administrators an improvement? The present trends do not inspire. Can it be said that modern activist dominated tribunals will be an improvement on the traditional court in which the presumption of innocence and rules of evidence and procedure are important? There is only one answer to this question based on reason and common sense.