Assignment 101 - This paper examines the extent to which the implementation of an international PDF

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This paper examines the extent to which the implementation of an international treaty to commit to discourage families from having more than two children, by non-coercive means, aligns or not with foundational liberal principles in Australian law. ...

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Assignment Topic: LAW101 Assignment 1 Word Count: 1732 I. Introduction The proposition for an international treaty whereby member countries commit to discouraging families within their jurisdiction, via non-coercive means, to have no more than two children is in alignment with the liberal, foundational principles of Australian Law. This comes with the caveat that the data provided in support of this proposal, and the conclusions drawn from that data, is accurate and scientifically sound. This means that the burden on the ecosystem does in fact threaten human civilisation with extinction due to scarcity of water and other resources, and that there is a link between this and regional violence. Australian law is based on several tenets which form its foundation. These are the existence of a social contract, a society that embraces the rule of law, a sense of rationality, the preservation of individualism, toleration of ideas and dissent, and a respect for liberty. 1 By testing this declaration against the liberal foundational tenets of Australian law, it becomes evident that the implementation of this treaty does in fact align with these principles, and in fact does so completely. II. Social Contract A core tenet of liberalism and a foundation of many legal systems is the idea that there exists a sort of contract between the state and the people it governs. 2 This social contract is a consensual exchange between the state and the citizens which must be freely given to be legitimate. 3 Thomas Hobbes theorised that without society, and the social contract, the natural state of people would be toward selfishness and the weak would be dominated by the strong. 4 Thus the social contract can be seen as an extension of a desire for fairness and equality whereby the citizens surrender some personal power and in exchange the state provides a certain level of security. 5 As with most contracts, each party must abide by the duties expected of it in order to reap the benefits due to them. In this regard, it can be seen that the proposed treaty is not only in line with idea of a social contract, but actually represents the state upholding its end of the bargain. If the state is responsible for the 1 Ciprian Radavoi and Stephen Norris, Australian Law in Context: Social, Political and Global Perspectives (Lexis Nexis, 2020) 2 Brian Skyrms, Evolution of the Social Contract (Cambridge University Presss, 2nd ed, 2014), xiii - xiv 3 Jeffery A. Thompson and David W. Hart, ‘Psychological Contracts: A Nano-Level Perspective on Social Contract Theory’ (2006) 68(3) Journal of Business Ethics 229; Betsey Sue Casman, ‘The right to privacy in light of the Patriot Act and social contract theory’ (Dissertation, 1500523, University of Nevada, 2011) 65-67 4 Thomas Hobbes, Leviathan (Penguin, 1985), 223 5 Thomas Hobbes, Leviathan (Penguin, 1985), 223; Jeffery A. Thompson and David W. Hart, ‘Psychological Contracts: A Nano-Level Perspective on Social Contract Theory’ (2006) 68(3) Journal of Business Ethics 229230

provision of security for its citizens, and it has identified a clear threat to that security, it follows that the state must step in to address that threat. Inversely, if the citizens require that the state provide security in regards to a threat, the citizens must then be willing to sacrifice a certain amount of power and liberty to allow that protection. In both regards, the treaty aligns with the principle of the social contract as described by Hobbes. III. Rule of Law In his Rhetoric, Aristotle maintained that laws had advantage as governance as they were decisions made after long consideration, contrasted with the short notice decisions made by courts. 6 This forms the basis of the rule of law foundational principle, which seeks to restrict arbitrariness in decision making by forcing those decisions to conform to defined and established rules. Essential to the rule of law is the idea that all persons within a society are subjected equally to the law, and that those laws are publically disclosed.7 Because of this, the rule of law can be seen as a societal attempt to promote fairness and equality whereby each citizen is given the opportunity to understand the rules and is subject to the same rules. Examining the purpose of the treaty under this lens immediately reveals that it passes this criterion. The terms of the treaty, as described, state that member countries would commit to discouraging families within their jurisdiction “by lawful (non-coercive) means”. Ergo, any action that would breach the spirit of the rule of law would automatically breach the terms of the treaty. Further, there already exists precedent for this kind of incentive in Australian law in the form of smoking and tobacco laws. The use of tobacco products is not banned in Australia. However, the practice is actively discouraged by preventing advertising, increased taxes, smoke-free laws, age limits, and packaging laws.8 The effect of these laws is not to make smoking illegal, but instead to make it more difficult or less appealing.9 IV. Rationality Rationality in liberal philosophy proposes that the world itself is structured rationally and, through reason and inquiry, this can be identified. 10 The core of this tenet is that knowledge flows from reason and decisions should be made on this basis, rather than a reliance on custom or non-rational

6 Stanford University, Stanford Encyclopedia of Philosophy, (online at 23 July 2020) ‘The Rule of Law’ 7 Stanford University, Stanford Encyclopedia of Philosophy, (online at 23 July 2020) ‘The Rule of Law’; Raff Donelson, ‘Legal Inconsistencies’ (2019) 55(1) Tulsa Law Review 15-16 8 ‘Smoking and Tobacco Laws’ Department of Health (Web Page, 23 July 2020)

9 Ibid 10 Felix E. Oppenheim, ‘Rationalism and Liberalism’ (1964) 16(2) World Politics 341-343; Shaun Young, Beyond Rawls: An Analysis of the Concept of Political Liberalism (University Press of America, 2002) 25-26

impulses.11 The principle of rationality places an emphasis on the idea that people are able to both understand and explain the world they exist in, and are therefore able to find and address problems within it.12 Rationalist thought will suggest how goals should be pursued, however it won’t necessarily dictate these goals.13 Returning to the treaty, it can be readily seen that committing to the treaty is rational. Under the assumption that the data presented is factual and the methodology is sound, it is logical to also assume that the predicted outcomes are probable. It may also be assumed that survival is preferable to extinction. If the measures outlined in the treaty increase the chances of survival, and continuing in opposition to these measures will likely cause extinction, then it must therefore stand to reason that the adoption of the treaty is the rational and favourable choice. As such, the adoption of the treaty is in alignment with the rationality tenet of liberalism. V. Individualism The concept of individualism in the context of liberalism places the importance of individuals over that of groups or collectives.14 Individualism recognises that an individual has a right to freedom, selfrealisation, self-determination, and autonomy. 15 An important aspect of the individualism principle is that each individual should be able to determine their own interest within society rather than necessarily follow the structures set out for them, although it does not preclude them from doing so. 16 Personal freedoms and individual rights are paramount and take priority over dictates of authority, regardless of the greater societal benefits. 17 In regards to the proposed treaty, it must be established whether the treaty interferes with individual autonomy and self-determination. Once again, the key to the treaty and the aspect that allows it to conform to the principles of liberalism that underlie the Australian legal system is the focus on noncoercive means. Each individual, regardless of the treaties existence, is able to continue to make the choice whether or not to have additional children. Similar to anti-smoking legislation, actively discouraging a behaviour does not constitute a ban on that behaviour. Citizens may of their own volition still choose to act in a way contrary to the desired behaviour. On this basis, the individual’s right to autonomy and self-determination is preserved.

11 Peter J. Steinberger, ‘Rationalism in Politics’ (2015) 109(4) American Political Science Review 750 12 Shaun Young, Beyond Rawls: An Analysis of the Concept of Political Liberalism (University Press of America, 2002) 29-31 13 Peter J. Steinberger, ‘Rationalism in Politics’ (2015) 109(4) American Political Science Review 754 14 Stanford University, Stanford Encyclopedia of Philosophy, (online at 23 July 2020) ‘Liberalism’ 15 George Simmel, ‘Individualism’ (2007) 24(7-8) Theory, Culture & Society 67 16 Ibid 68 17 Stanford University, Stanford Encyclopedia of Philosophy, (online at 23 July 2020) ‘Liberalism’

VI. Toleration Toleration is the willingness of the state to allow people to think, speak and act in ways which are disapproved of. 18 This includes protest, vocalisation of dissent, and acting in a manner contrary to the desired behaviour.19 In the context of the proposed treaty, this would mean actively protesting the existence or content of the treaty, expressing objections to the treaty, for example in social media, or ignoring the content of the treaty and having more than two children. If the principle of toleration is met completely, then each of these activities should be permissible in spite of the treaty. With regards to the principle of toleration, the treaty does not violate this tenet. The treaty prescribes a doctrine of non-coercion, which does not indicate the suppression of dissent. In the instance that the treaty were to be signed, so long as the state did not suppress dissent, and allowed discussion and protest, the principle of toleration would not be breached. Australia has historically demonstrated a willingness to allow the legislative discouragement of certain actions and inactions, while still allowing the vocalisation of dissent. For example, Australia-wide protests were allowed that condemned the “No jab, no play” legislation that requires children to be vaccinated before attending childcare or kindergarten.20 VII. Liberty Liberal philosophers such as Adam Smith and John Stuart Mill have helped define the principle of liberty as the freedom to develop one’s own abilities and capabilities without external interference. 21 Liberty can be classified as positive or negative. Positive liberty is the ability for an individual to take control of their own life and realise their purpose. 22 Negative liberty is the absence of constraints and obstacles that would prevent this actualisation. 23 Contextualised within the framework of the Australian legal system, this can be seen as being allowed to develop and grow without sabotage by government, and with the government preventing the interference of others. 18 Shaun Young, Beyond Rawls: An Analysis of the Concept of Political Liberalism (University Press of America, 2002) ; Margaret Jenkins, ‘Political Liberalism and Toleration in Foreign Policy’ (2010) 41(1) Journal of Social Philosophy 112 19 Margaret Jenkins, ‘Political Liberalism and Toleration in Foreign Policy’ (2010) 41(1) Journal of Social Philosophy 112 20 ‘Australia-Wide Protests Against No Jab No Play!’, Australian Vaccination-risks Network Inc. (Web Page, 24 July 2020) 21 Scott John Hammond, Political Theory: An Encyclopedia of Contemporary and Classical Terms (Greenwood Publishing Group 2009) 134; Stefan Collignon, ‘Negative and positive liberty and the freedom to choose in Isaiah Berlin and Jean-Jacques Rousseau’ (2018) XII(1) Journal of Philosophical Economics 36 22 Scott John Hammond, Political Theory: An Encyclopedia of Contemporary and Classical Terms (Greenwood Publishing Group 2009) 223 23 Ibid 224

The treaty and any subsequent incentives or disincentives will have no effect on negative liberty. The state, if it remains non-coercive, should not impose barriers to reproduction such as imposing sanctions or penalties for having more than two children or outright forbidding it. This doesn’t mean that the state cannot incentivise not having more than two children, or that the state can’t reward those that do conform to the desired behaviour, only that it cannot actively penalise that don’t. Similarly, the treaty has no bearing on whether an individual is able to take control over their own life, and as such the treaty cannot be in violation of positive liberty. On this basis, the adoption of the treaty aligns with the fundamental principle of liberty. VIII. Conclusion The adoption of the treaty is in alignment with the core liberal values that form the basis of the Australian leadership. If a social contract exists between citizen and state, it conforms to the expectations set upon each party. The treaty’s requirement that lawful, non-coercive methods be used means that it will align with the rule of law. The treaty is based on evidence and logic, so it reconciles with the principle of rationality. The treaty does not preclude behaviour that is in opposition to its goals, so it cannot be in violation of the principle of individualism. The non-coercive requirement of the treaty does not forbid protest and dissent, which allows it to align with the principle of toleration. Finally, the treaty will not interfere with liberty, either positive or negative, as it seeks to discourage instead of control behaviour. For these reasons, the treaty as proposed by the United Nations will align with the liberal principles that form the foundation of Australian law.

Bibliography A Articles/Books/Reports Betsey Sue Casman, ‘The right to privacy in light of the Patriot Act and social contract theory’ (Dissertation, 1500523, University of Nevada, 2011) Brian Skyrms, Evolution of the Social Contract (Cambridge University Presss, 2nd ed, 2014) Ciprian Radavoi and Stephen Norris, Australian Law in Context: Social, Political and Global Perspectives (Lexis Nexis, 2020) Felix E. Oppenheim, ‘Rationalism and Liberalism’ (1964) 16(2) World Politics 341-361 George Simmel, ‘Individualism’ (2007) 24(7-8) Theory, Culture & Society 66-71 Jeffery A. Thompson and David W. Hart, ‘Psychological Contracts: A Nano-Level Perspective on Social Contract Theory’ (2006) 68(3) Journal of Business Ethics 229-241 Margaret Jenkins, ‘Political Liberalism and Toleration in Foreign Policy’ (2010) 41(1) Journal of Social Philosophy 112-136 Peter J. Steinberger, ‘Rationalism in Politics’ (2015) 109(4) American Political Science Review 750763 Raff Donelson, ‘Legal Inconsistencies’ (2019) 55(1) Tulsa Law Review 15-44 Scott John Hammond, Political Theory: An Encyclopedia of Contemporary and Classical Terms (Greenwood Publishing Group 2009) Shaun Young, Beyond Rawls: An Analysis of the Concept of Political Liberalism (University Press of America, 2002) Stefan Collignon, ‘Negative and positive liberty and the freedom to choose in Isaiah Berlin and JeanJacques Rousseau’ (2018) XII(1) Journal of Philosophical Economics 36-64 Thomas Hobbes, Leviathan (Penguin, 1985) B Other ‘Australia-Wide Protests Against No Jab No Play!’, Australian Vaccination-risks Network Inc. (Web Page, 24 July 2020)

‘Smoking and Tobacco Laws’ Department of Health (Web Page, 23 July 2020)

Stanford University, Stanford Encyclopedia of Philosophy, (online at 23 July 2020) ‘The Rule of Law’ Stanford University, Stanford Encyclopedia of Philosophy, (online at 23 July 2020) ‘Liberalism’...