One issue that I want to address later is clarity in language and the importance of recognising variations in definitions. This is not a comment on the discussion on that post or on LE's The Art of Law, but on my own recognition that I may be using certain words in a different way to others.
I grew up in a world in the which the idea of progress, of advancement, was deeply embedded. To the people of that world, the First and Second World Wars and the Great Depression were part of living memory. I make this point because the idea of progress survived despite personal experiences of cataclysms that demonstrated the frailty and uncertainty of life.
This was also a world in which the now disparaged Whig view of history was still dominant. I say disparaged. Here I quote one commentator from the Adam Smith Institute, a UK Libertarian think tank:
"The Whig view of history" is more often than not now used as a pejorative. When first coined it was to describe a narrative where everything just got better all the time. Whiggish people (almost universally the Great and the Good among white men), Whiggish politicians (this is all for your own good!) and Whiggish activists (we know what is right for you!) enabled civilisation to scale previously unheard of peaks of delightfulness. Certainly it's true that many things done were imporvements, but it always carried the overtone that the next set of Whiggish ideas would enable the scaling of ever yet more ecstatic mountains of joyousness. You can't argue against those ideas, for, see, civilisation is made up of all the ideas that we have previously so righteously proposed.
Just at present, I am reading some material on the work of Dr R B Madgwick in establishing and developing the Australian Army Education Corp during the Second World War, work that flowed on to the establishment of adult education at the New England University College. I will write something on this later, for it provides an interesting context for some current discussion in Australia.
For the moment, I simply want to note that Madgwick held and acted on the Whig view of the capacity for human improvement.
Law and the court system occupied a particular place within the Whig view of the world. Courts and law could be corrupt; the idea of the venal lawyer has a very long history. However, the courts and common law were also seen as one of the key underpinnings of British freedoms. To those holding the Whig view, the genius of the common law lay in its capacity to evolve.
Growing up, I would not have called myself a Whig. The term was restricted to those of particular political persuasions in, was part of the history of, the UK.
To those on the left today, the Whig view of the world has been discredited because of linkages with Empire and England. To those on the economic right today, the Whig view of the world has been discredited because it is seen as interventionist, paternalistic.
Despite these changes, I find that I still hold many Whiggish views, including my belief in the possibilities of progress and human advancement.
This explains my personal discomfort at what I see as detrimental changes in the legal system, changes that I am seeking to understand. To my mind, I accept that this is simplistic, the law and legal system have become increasingly complicated and mechanistic.
Now that we as a society have apparently rejected the idea of progress and human advancement, it seems to me that it leaves the law as just another control device.
My friend and colleague Noric Dilanchian has a new post, Is more law a good thing? Like Noric, I am absolutely staggered at the way in which Australian minister Anthony Albanese apparently wants to use the volume of legislation passed as a measure of Government performance.