otherwise. It islegal constructivismthat captures best the significant‘legalism’
of Australia; the presumption that the law is the best tool to make the world a
better place. So, whereas positivists might pin their hopes on science in
making the world a better place; and moralists on morality; and liberals on
freedom, in confronting any problem legal constructivists will reach for a new
law. Is a low voter turnout a problem? A law making voting compulsory is the
answer. Are strikes are a problem? Make them illegal.^31 Being dismissed arbi-
trarily is undesirable; clearly that action should be outlawed. The uncompeti-
tiveness of Australian business is costly to national welfare: its illegalization
will be the remedy.
This legal constructivism is essentially‘Benthamism’, the philosophy of
societal technology on legal stilts. Thus, the prospect arises of Australian
exceptionalism being the issue of one of the most celebrated and censured
of social philosophies (see, for example, Collins 1985); oneflourishing in
Europe at the very time of the European settlement of Australia, although
unknown at that time—let it be marked—in the USA. Trollope (1873, p. 239)
observed‘our colonists of Australasia are...as impatient of the doctrine of
natural rights as the editor of the Quarterly Review’. He should have added,‘or
Bentham’.
3.5 Disharmony in the Spheres
None of the various‘provinces of life’that have been the units of analysis of
previous sections constitute a candidate for the explanation of Australian
exceptionalism to the exclusion of the others. They all may be operative.
They may actually be complementary in effect. Thus, the labour movement
draws strength from both‘human machines’and from fraternity (or, at least,
its mythology); here the spheres of fraternity and societal technology are
reinforcing. Yet the tension between fraternity and societal technology may
be still more important. They easily make for a set of contrasts: efficiency
versus equity; authoritarian versus anti-authoritarian; high-minded versus
broad-minded; humourless versus humour-filled; doctrinal versus attitudinal;
productivity versus pleasure; Albert Jacka VC versus Sir John Monash GCMG,
KCB, VD; the paltry rationalism and frigid sanctimony of a Justice Higgins of
(^31) Historically, Australia has been a country of many strikes, and of many laws banning strikes.
The statute books of the states are the most blatant: the NSW Industrial Disputes Act of 1908 is one
example. In Commonwealth law since the beginning of‘Conciliation and Arbitration’in 1904,
strikes have been,‘broadly speaking’, illegal for the parties covered by a current award (i.e. almost
everyone in an‘industry’). The Fair Work Building Industry Inspectorate currently announces on
its website that‘strikes are only lawful if protected industrial action for a proposed industrial
agreement has been authorised by the Fair Work Commission’.
William O. Coleman