The title of this book is reminiscent of those dreary volumes by the now forgotten Communist rulers of Eastern and Central Europe in the 40 years following World War II. It is also one to which that early 20th century aphorism is appropriate: don't judge a book by its cover or, in this case, its title. For despite the title the book is in effect a collection of stimulating and scholarly essays on a range of important, current legal issues.
But first a word about the author, a fascinating subject in his own right. He was born in Poland, his immediate family surviving the Holocaust. He arrived in Australia as part of the great wave of post-war immigration in that country. After a brilliant university career—during which, as a prominent student politician, he was involved in a widely publicized campaign to draw attention to the plight of indigenous Australians—he became the principal private secretary to the then Prime Minister, Gough Whitlam, and then permanent secretary to an Australian government department. Returning to the law he quickly built up a practice as a leading barrister in Sydney, before appointment as Chief Justice of New South Wales in 1998. It was a surprise when he did not become Chief Justice of Australia when that position became vacant in 2008.
To the outsider, the first part of the book on the establishment and development of the Supreme Court of New South Wales may seem to be a specialist subject. But the story has a contemporary ring, dealing with the recognition of fundamental freedoms and the role of an independent judiciary in what had been an authoritarian society (a penal colony). In the New South Wales context this occurred in the aftermath of Australia's first and only military coup, the Rum Rebellion of 1808, and importantly through the landmark judgments of the (first) Chief Justice, Sir Francis Forbes, such as an 1823 decision to strike down legislation aimed at financially crippling a fledgling newspaper, The Australian, which was critical of the government.
Indeed Spigelman has a keen interest in history, and it is a recurring motif of the book. So, too, are the fundamental values he draws from it: ‘[T]here is a great deal of wisdom deeply embedded in institutions which have grown and adapted to changing circumstances over long periods of time’. Among the fundamental values he distils are the rule of law, which he calls one of the great institutional traditions of our civilization; professionalism, ‘the law is not only a business or a job’; and personal autonomy, the adversary system empowers people to participate in decisions which affect their lives to the maximum degree possible. These values require vigilant maintenance, as well as adaptation to contemporary circumstances. Spigelman refers to ‘a plurality of organising principles for our social institutions [which] is as important to the health of our society as biodiversity is to our ecology’. He discusses the concept of a fourth ‘integrity’ branch of government and explores parallels between the common law notion of a fair trial and empiricism.
Professional ethics is high on Spigelman's agenda. He is concerned to ensure that lawyers understand their professional duties, and that in turn the public understand the importance of professional integrity and judicial independence in the system of separation of powers. Spigelman warns against the tendency for lawyers to foster ‘prolixity as an art form’. His paper ‘Are Lawyers Lemons?’ explores the role of regulation in controlling the legal profession and advocates something like the precautionary principle of environmental law to counterbalance the assumption that competition necessarily promotes the public interest. Scepticism is also applied to modern trends in judicial administration such as the utilization of techniques such as ‘performance indicators’. However, Spigelman takes judicial administration seriously and there are detailed explorations of such aspects as the principles of open justice, legitimacy, fair trials, judicial comity and judicial collegiality.
The interplay between these fundamental values and new challenges is explored through several topics. A notable example is with commercial litigation, and the impact of microeconomic reform, technological change and globalization of the provision of legal commercial services. In several pieces Spigelman examines economic rationalism and the law, competition in the legal profession and the specialized nature of the commercial list jurisdiction of the Court. He critiques the dominance of ‘monomania’ in social institutions, such as the divine right of Kings and, in recent times, the divine right of markets.
Spigelman is one of Australia's most eminent serving judges. The book is an exploration of his broad academic interests and his contribution to the civil discourse about the polity and justice. The context is contemporary Australia, but the issues are those faced by lawyers and judges everywhere. The speeches are leavened with literary allusion and humour. The book is to be highly recommended.
