Us and the US
[The extracts that follow under this gravely ungrammatical title précis a book published in 2014 called ‘A Tale of Two Nations; Uncle Sam from Down Under’. That book sought to compare the key phases of history of the two nations under fourteen headings. That format will be followed in the précis. The chapter headings are Foreword;1 Motherland; 2 Conception;3 Birth; 4 Natives; 5 Frontiers; 6 Laws; 7 Revolution; 8 Migration; 9 Government; 10 Wars; 11 Race; 12 Wealth; 13 God; 14 Findings; Afterword. Each chapter is about 1400 words.]
In America, unlike England, the Puritan had his own way. He was in the majority and he made institutions to his own liking. The great American jurist, Roscoe Pound, said that ‘we are and long have been more thoroughly a common law country than England herself…..A fundamental proposition from which the Puritan proceeded was the doctrine of ‘a willing covenant of conscious faith’ made by the individual judgment in the first place. No authority might rightfully coerce them; but everyone must assume and abide the consequences of the choice he made’. Pound saw ‘an uncompromising insistence upon individual property as the focal point’ of the nation’s laws.
The notion of contracts between people does loom larger in America. ‘The precedent of the covenant which made Abraham and the children of Israel the people of God, furnished the religious basis for the doctrine….’ One result was to favour individual choice over some feudal relationship. This view brings to mind that Sir Henry Maine had said that ‘the movement of the progressive societies has hitherto been a movement from status to contract.’ In the Old World – feudal Europe – your rights mainly depended on the box that you had been put in by superiors in your hierarchy. You stood or fell on your status. A noble was worth more than free man who was worth more than a serf. In the New World, your rights mainly depended on what you had agreed to. You stood or fell on your contract.
The Puritans did not want to relax laws to allow fools to be relieved of their bargains. If you were silly enough to enter into a bad deal, you would just have to live with the consequences. There would be less sympathy for the loser. They did not want government interfering with freedom of contract to look after those who should have looked after themselves.
Pound was writing in 1921, but his views still resonate in a nation that is slow to pass laws to help those who falter in the great race of life. ‘Entitlement’ is potentially at least a loaded and dirty word in the U S. Dispensations that elsewhere in the West are facts of life have in America become grounds for threatening insurrection, and this difference comes at least in part from an American determination to maintain a felt primacy of each one of us over government.
‘Conservative’ is a label given to people who want to keep government as spare as possible so that government has as little as possible to do with them. They do not think that they should lose any rights unless they personally have agreed to the relevant change. They see laws that are meant to help the less fortunate as going backwards and making people depend on their status rather than their contract. At least in theory, people would rather stand on their own two feet than be allocated a seat in a drab government bus.
The pioneers were inevitably jealous of any government action, and Pound saw a ‘frontier repugnance to scientific law and the insistence of the pioneer that his judges decide offhand without study of what other judges may have done in European monarchies or in effete communities to the eastward.’ The customs of the times also led to a kind of starring role for the advocate, and that he be given as free a rein as possible. To this day American judges’ charges to juries are so much shorter than in Australia where suspicion or underrating of the jury has led to incomprehensible minefields for trial judges and an entirely unacceptable rated of aborted trials and retrials. You can still see this respect for the role of the jury everywhere in the U S today. They think little of putting a brawl about intellectual property between Apple and Samsung in front of a jury – it would be unthinkable anywhere else.
Empanelling a jury is like calling a parliament – you are calling on the people to give a decision and to express their will on issues that are central to their government. It is the primary safeguard that we have against abuse of power by any arm of government – legislative, executive, or judicial. It is the Americans who realise and practise this the best.
Another major difference with the Americans is the role of the Bill of Rights, and the consequently more political role played by the United States Supreme Court. Otherwise, as befits a common law country, the differences come from different rules and customs in the conduct of trials. The Americans have tended to avoid the rule that says that the loser pays, and they have been using contingent fees much longer than others. The rule about parties relates to class actions in which the Americans have been undoubtedly the pioneers. The Americans see litigation as a function of government and an exercise in social engineering.
Sir Lewis Namier said that the U S is ‘a refrigerator in which British ideas and institutions are preferred long after they have been forgotten in this country’.
The progress of the laws of Australia has been rather more sedate, as you might expect from a process that has remained determinedly English and that has eschewed experimentation and innovation. Right from the start, the Australian colonies were very different to the American in the way that their legal systems developed. The English brought to Australia a fully developed body of common law and constitutional law and an official whose duty it was to administer justice according to the rule of law. Given that Australia started as a British jail, it is not surprising that this was a strictly government job.
The authority of Phillip and Collins and others was set out in their commissions from the government on behalf of His Majesty King George III. The English parliament would then create legislative bodies in the colonies and courts to interpret or enforce the laws made in London or by colonial councils or parliaments. Then the English parliament made laws giving independence to the colonies. When the colonies decided to federate, they asked the mother parliament to pass a statute to that effect. The Constitution of the Commonwealth of Australia is contained in a schedule to an act of parliament in Westminster. Then the Imperial Parliament freed its former colonies from the power of intervention from London.
The jurisdictions of state superior courts are commonly defined by reference to those of the Royal Courts of Justice under Queen Victoria as adopted by English legislation, which is now in legislation of the states. The profession is still divided like the English between barristers and solicitors and wigs and gowns, and Father Christmas suits are still worn in crime. It would be hard to devise a more prosaic story.
But, prosaic though it may be, the legal system inherited by the Australians is in broad terms doing the job required of it – in large part because it is prosaic. It may be that Australians do not have the same taste for fireworks or theatre in the law that Americans do.
Another major difference comes in the attitude in the highest courts to issues that might fairly be described as political, and to what might for the want of a better word be called tone. Australian judges, by and large, are like the English in one respect. They understand that the most important person in court is the loser. Both sides, but especially the loser, must think that they have been given a fair go. If the Americans have done better in preserving trial by jury, and achieving political movement through the courts, the Australians have done better controlling the political heat in court and respect for the judiciary.