Bill of rights vs. common law (letter)by Lucy SullivanNews Weekly
, May 30, 2009
Professor David Flint AM ("A successful conservative party ready to rebuild", News Weekly
, November 22, 2008) was absolutely right to oppose the introduction of a bill of rights which will, in Australia, stand in opposition to the democratic endorsement of our country's laws as achieved under the Westminster system.
It was the intrusion of the European and American concept of generalised, theoretical rights, supervised by the judiciary, that opened the way to the current judicial arrogation of the government's legislative powers. A bill of rights would exacerbate this cancer of our legal system.
Appeal to theoretical rights is also lethal to the operation of the common law, which deals far better with the reality that individuals' rights are so often in conflict with one another.
The body of common law, stretching over centuries, has evolved a "best practice" as to how to proceed when rights conflict, e.g., which of them should be given precedence, to what extent, and in what circumstances.
The ad hoc
deliberation of a presiding judge is no match for the evolved wisdom of centuries as regards what constitutes the general good when conflicts of rights occur.
A case taken to court in the US in the early days of IVF and embryo freezing illustrates the problems that can arise when rights are disengaged from their long expression in common law.
A couple who had stored an embryo subsequently separated. The husband married again, and asserted his right in the embryo for implantation in his new wife (this having become, for some reason, his only chance of having his own child).
His former wife, however, asserted her right in the embryo to prevent this proceeding.
How does one decide between these two equal and opposite rights purely on the basis of a bill of rights enshrining the parents' rights, individually, to control their fertility, pursue their happiness etc?
After a series of conflicting decisions, the issue was finally decided by recourse to case law, the precedent being that the mother has priority in the care and custody of a couple's children - the embryo's potentiality being judged analogous to a born child.
This tested and practised precedent of itself brought a sense of proper resolution to what had seemed an intractable competition between identical inviolable rights.
A further substantial advantage of remaining with the common law is that, unlike a bill of rights, it gives guidance to the individual on how to proceed in cases of conflict - when to insist on a right through the courts and when, in the name of sanity, to relinquish it.Lucy Sullivan,