Understanding history is crucial for law reform and good lawyering
Michael Kirby AC CMG
As a high school student, former justice of the High Court of Australia Michael Kirby AC CMG loved history – in particular the calamitous times between the world wars. His father had been a “great exponent of history”, he said, teaching his children that learning about history would greatly prepare them for later life.
Learning from the historical experiences of past generations - not just the modern era but dating back to ancient times – is crucially important if one is to properly appreciate and practice law, he said.
“With constitutional law, it’s impossible to understand the Australian constitution without first understanding the English constitution, and the struggles of parliament and the people against the crown,” Mr Kirby advised.
“And the common law demonstrates that the law is not set in stone but continues to evolve, and that evolution is described in the history of communities and how they respond to particular problems.”
“In law, you’re never far from history.”
Law students and lawyers coming through the ranks must be able to ask questions about where we’ve come from and where we’re headed, and then extrapolate the values of the past in their application to the present.
Such an understanding better prepares lawyers for the legal quandaries of contemporary society, he deduced.
“If you’ve got the techniques of lawyering, you can pick up particular areas of law because you have those techniques, but if you have never learnt the legal history or considered the legal values, then it is unlikely you’re going to do that later in life,” he opined.
Mr Kirby observed that the obstacles to be overcome by the new generation are different from those he himself faced, such as the extraordinary pressures placed upon students, both externally and self-inflicted, leading to high rates of anxiety and depression.
But what he learnt from his own struggles – “going along with the pretense about my sexual orientation, pretending to be other than I was” – was the necessity of confronting and questioning, in order to do something for the next generation.
“What was surprising was how few lawyers questioned the previous laws against gays, the previous laws that discriminated against Aboriginals or women or people of different races under [the] White Australia [policy],” he recounted.
“Inculcating a willingness to question is a very important feature of a proper legal education and the legal experience.”
“Lawyers have a duty because they have considerable power upon the content and implementation of the law to do what they can do to constantly renew it.”
Mr Kirby feels Australian lawyers can be overly complacent about such law reform, and the historical precedents that might necessitate such legislative overhaul.
Law reform is, unfortunately, not sexy enough to warrant attention, he noted with regret.
“It’s a tragedy, because [law reform] is, in a sense, an audit of the effectiveness and justice of the legal system,” he said.
“If you don’t keep the law up to date, and have institutions to help parliament do that, the result is going to be disaffection and cynicism about the law, and ultimately a failure to attend to law reform leads to corruption in society as people use other means to get around the failure of lawmakers.”
He feels that he personally did not do enough to effect law reform over the course of his legal career. As a result, he strongly encourages younger lawyers and law students to be more involved and be more questioning.
The new generation must not retreat from asking the hard questions, he concluded. Today’s legal professionals must understand history, challenge it where appropriate, and effect change where needed.
Copyright Doraisamy and Field 2016-2017