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Labor party supporters will struggle to keep its achievements in the public mind in the face of its many faults, and a cumulative sense of failure it is unlikely to be overcome before the next elections. It is therefore worth reflecting on the ideas which separate the major parties and guide their policies, to better weigh past failures against future prospects.

A need to return to first principles, and get a clear sense of what they mean in practice, is even more important when we consider the role party leaders play in the fortunes of the nation, the ease with which factions can replace them, and the degree to which their flaws are magnified by the doctrine of party unity.

The dominant philosophical concerns at the heart of the Liberal Party are individual freedom – especially the freedom to engage in commercial enterprise – and conservatism. But the relationship between these two ideas is fraught, and has in practice compromised ideals of freedom.

Part of the reason is that much conservative thinking obscures a black hole – a moral vacuum. This is not to say conservatives are less conscientious or responsible, only that conservatism is not a moral position – it offers no means to justify opinions onimportant and divisive issues like the Iraq War, the apology, pokies reform and same sex marriage. From time to time this is evident as when Janet Albrechtsen, in the last episode of QandA for 2010, spoke on same sex marriage: ‘I fundamentally believe’, she said, ‘that marriage is between a man and a woman’; but she could not say why she held this belief.

Leaving aside the possibility she was confusing a definitional argument about the meaning of the word ‘marriage’ with a moral argument, it is tempting to suggest this kind of fundamentalism – my conviction is so strong that no further reason is needed – points to the lingering influence of ‘post-modernist’ thinking, and the scepticism about values it is taken to justify. But the truth is it has always been difficult to find anything which could be said to constitute a political philosophy in conservative claims.

Take Edmund Burke, the father of conservatism in the Western intellectual tradition. In his own time Burke was seen as the great pragmatist, and probably a utilitarian, but there is now a strong case that his thinking was from the outset saturated with Natural Law ideas. Burke himself proposed no general moral or political theory; he saw his politics as based on Prudence, which he insisted was his guiding principle in all matters. The question is whether conservatism in politics can ever be more substantive than this.

The question is relevant because prudence, as a strategy or disposition, is compatible with any political theory, whatever values it endorses. The aim of prudence is to minimise risk – to avoid action if there is a serious risk of costly failure, or if success risks consequential harm. Accordingly, we find the late HLA Hart, a celebrated legal philosopher, speaking of the ‘innocuous conservative principle’ that long standing institutions and practices are likely to have advantages not immediately obvious to thecasual observer.

Conservative philosophy, so understood, tells us not to throw babies out with the dishwasher, not to waste pounds to save pence or fix things that ain’t broke, and to shut stable doors in time. But in real-life cases it is more ambivalent; is it more conservative to respect the views of professional science bodies and distinguished academies on climate change (because of their peer-reviewed and empirical ie. ‘conservative’ science) or to support views arguing against major social change? Is it more conservative – in terms of moral risk – to rule out torture as a policy choice?

For some conservatives the moral and political vacuum is filled by religion. They think the policy they disapprove of (be it morning-after pills, voluntary euthanasia or a needle-exchange program) is against the will of God which, they might explain, is found in the Scriptures, or in the Natural Law revealed by theologians like Thomas Aquinas. If there is serious doubt on the question, they may consult the authority of the church, which for Catholics is made easier by a formal hierarchy headed by the pope.

Others may dispute their reading of the text, the claim that it expresses God’s will, the concept of Natural Law, and whether a religious interpretation is correct. They might say – with Galileo – that because man’s reason is also a Divine gift, the natural laws of science are likely to provide better evidence of God’s will, and that ancient scripts must be read in their light. They might also find attractive an argument used by Bentham’s disciple, John Austin – a devout Christian – who reasoned that, if God is both omni-rational and omni-benevolent, utilitarian principles must be prime evidence of his will. In all these cases the idea that same sex marriage is wrong rests on reasons we can, with effort, understand.

Secular conservatism is different because it relies on empirical claims which can in principle be tested against the evidence. The most ambitious empirical claim to justify a conservative policy was made in an address by Sir Patrick Devlin, a distinguished appeal court judge, to the British Academy in 1959. He argued that society had a right to preserve itself by using the law to punish immorality, reviving an idea used to justify ‘victimless’ crimes – homosexuality, bigamy, adultery and prostitution, and non-sexual offences to do with drugs, suicide, vagrancy, loitering and gambling.

His speech began the famous ‘Hart/Devlin’ debate of the mid-sixties, between himself and Herbert Lionel Adolphus Hart, who held the Oxford Chair of Jurisprudence. Devlin argued that, because morality was a ‘seamless web’, failure to maintain it (if necessary by use of the criminal law) could destroy the moral fabric of society. His Maccabean lecture had an immediate and lasting impact, in part because it resonated with an intellectual mood best captured in a Times’ editorial the next day:

‘There is a moving and welcome humility in the conception that society should not be asked to give its reason for refusing to tolerate what in its heart it feels intolerable.’

Which drew from a correspondent in Cambridge the tart reply:

‘I am afraid that we are less humble than we used to be. We once burnt old women because, without giving our reasons, we felt in our hearts that witchcraft was intolerable,’

Devlin, a civilised and scholarly judge, set a high threshold – society had the right to criminalise private conduct if public feeling had reached a concert pitch of ‘intolerance, indignation and disgust’ and this test could not, in his view, justify making homosexual acts illegal. The debate had major consequences for criminal law; it led to the Wolfenden Committee Report which adopted the liberal stance argued by Hart, who defended JS Mill’s view that there was a realm of private morality not the law’s business. It led to major reform of laws dealing with victimless offences.

The reforms were, by and large,adopted in Anglo-western countries such as Australia, New Zealand and Canada, and were a major boost for liberal principles. Over time there came a wider acceptance of the idea that citizens had the right to live by their own values, so long as their actions did not harm others, or limit their freedom to do likewise.

Conservative opposition to reform of homosexual laws in Australia made this a long-drawn out and painful process. The reforms began in 1976 in South Australia under Don Dunstan, with resistance in each state from both Labor and Liberal administrations, the common theme being that the public was ‘not yet ready’, a mantra which ignored the idea that politicians might have a responsibility to prepare the way, leaving the task to anti-discrimination lobbies. Tasmania, the last state to decriminalise homosexual acts in 1997, acted only when it was clear the federal government would use its external affairs power to force the issue.

While the debate on same-sex marriage is broadly part of an unfinished task of taking liberal principles seriously, the specific offence is to a principle of fairness rather than freedom – it is no less serious an affront to human dignity, but the gist of the complaint is unfair discrimination. Because the Liberal Party philosophy has no general principle of fairness, it finds this argument unpersuasive – in fact it barely understands it.

This is surely the most charitable explanation for shadow Treasurer Joe Hockey’s inability to demonstrate his party’s support for egalitarian values when challenged by Linda Ma during Tony Jones’ Q and A of May 14th. It goes to the heart of the Party’s reluctance to accept the role of fairness, along with freedom, as hallmarks of the good society. It is why party leaders treat appeals to fairness as a form of envy – they cannot see the difference:-

Linda Ma: The question was what measures would you take to protect egalitarianism in Australia?

Joe Hockey: Well, the first thing is to rile against division. To rile against division on the basis of how much you earn.

Linda Ma: What reforms?

Joe Hockey: What do you mean what reforms? Leadership comes from the heart as much as anything else and it’s about what you believe our nation to be. We are a nation of equals. That’s the starting point and frankly…

The show ended with a question to Hockey on gay parents asking him why, given his belief that all Australians are equal, he thought he and his wife ‘made better parents than Penny Wong and Sophie’. Hockey, with no deep commitment to fairness, could not see the insult to Wong; and with no coherent political theory, he saw no need to justify the discrimination – he sat puzzled and discomfited as the show ended, the audience watching in embarrassed silence.

We also need to keep this risk in mind when we look at what the major parties have to offer.

First published: 2012-05-28 05:00 AM

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Barrie Cassidy, ABC Drum: Bizarre scenes and shifting mood in Parliament