The court divided. Justice Brennan was in the minority. His minority judgment has been seen (incorrectly in my view) as a “”natural law” position as distinct from a “”positivist” position. And even though he was in the minority in this case, it has been seen as part of a general swing by the High Court towards the “”natural-law” view of the world.
Natural law goes back to ancient times and has taken many forms. Broadly, it appeals to some higher form of universal morality beyond church and nation. Legal positivism, a creature of the scientific age scoffed at this, arguing that the only law was the law factually promulgated and enforced by the state. The positivists argued that natural law was a lot of unprovable wool.
In the face of continuing world horrors, however, the natural-law position is now gaining more respectability. Murder is murder, rape is rape, we all know that, so it doesn’t matter if the “”positive” law in Bosnia at the time allowed it _ to put the natural-law position at its crudest.
In the sterilisation case, a strong natural lawyer might say: sterilisation is wrong (unless life-threatening) no matter what the written law says. Brennan has, quite wrongly it seems to me, has been put in this camp. In Mabo, for example, his critics suggested his view boiled down to: “”It is morally right that Aborigines should have land, so we will push the law to one side and give it to them.”
The concern of some critics is that the High Court is plucking principles from the air on natural-law grounds, instead of basing their decisions solidly in law.
The reason Brennan got branded as a natural-law judge in the sterilisation case was his statement: “”The starting point has to be the fundamental principle, plain and incontestable that every person’s body is inviolate.”
It sounds like the stuff of a moral code, and the stuff that has caused the Mabo critics to shudder. Those critices argue that judges should interpret and apply the law, not muck about with high moral principle. And they singled out Brennan _ especially as he had made a speech just before Mabo saying a Bill of Rights would be a good thing.
In fact, Brennan’s judgment in the sterilisation case is strongly “”positivist” and anti-natural law.
His “”incontestable” principle was only a starting point. He acknowledged that if the law plainly stated that the body could be violate, he would enforce that law. “”Courts have the function of declaring the law, including the law which confers and governs their jurisdiction, but they cannot enhance their powers in order to give effect to a view that the enhancement is needed,” he said.
In other words, judges cannot say: “”We need to grab a bit of extra power for ourselves here so we can deal with this new problem.”
He said, “”If the courts were able to assume powers which are neither part of their inherent or traditional jurisdiction nor part of a jurisdiction conferred by the legislature, the assumed powers would be despotic, uncontrolled by legislative prescription or other law.”
So unless there was a specific power granted to the Family Court, he argued, it could not be invented just because it might be a “”good thing” or convenient in the eyes of some judges. The general welfare power, which the Family Court had, would not do that, so the state-law prohibition against “”convenience” sterilisation would apply, just as, for example, a state law demanding children go to school or a child be sent to a reform school for stealing would apply in the face of the Family Court’s general custody power.
Agree with it or not, Brennan’s judgment is not natural law, but legal positivism to the core. Fears that judges are plucking moral principles and natural law from the air are unfoudned.