Conclusion

Moliere’s M Jourdain discovered, to his astonishment, that he’d been speaking prose all his life. In considering cultural exceptionalism regarding bodies we might ask whether many of Australia’s judges and legislators are unacknowledged speakers of legal pragmatism, unacknowledged because they do not refer to theorists such as Minow, Posner and Holmes and indeed rarely characterise legal decision-making in terms of legal theory as such.

That lack of acknowledgment is unsurprising, given that proficiency in legal theory or possession of a law degree is not a prerequisite for election to a legislature and that the judiciary looks for practical solutions rather than aiming to develop philosophical constructions that are engaging in academic seminars but are of uncertain value in dealing with the realities of disputes before the bench.

What is practical? The introduction to this chapter suggested the conceptual validity of legal pragmatism is indicated by the extent to which it provides a useable understanding of the law, ie an understanding that is conceptually coherent and consistent with the operation of the justice system. In dealing with disputes about blood and bodies Australian courts are guided by precedent in interpreting statute law and making sense of discretion. That precedent has the predictive character highlighted by Holmes’ encapsulation of law as “The prophecies of what the courts will do in fact” and “prediction, the prediction of the incidence of public force through the instrumentality of the courts”.^[757] Practicality, in lower courts, means decision-making that is consistent with precedent and unlikely to be overturned on appeal.

What we can see in looking at the snapshots in the preceding paragraphs is that Australian law is accommodating difference on a practical basis, with scope for decision-making by authorities that recognises conflicting cultural values and beliefs but does not necessarily privilege a particular faith, ethnicity or other identity. Minow and Spelman comment that legal insight comes

not from turning away from human relationships in search of some essential form of reason, but instead from encountering the differences among people, the critical perspectives afforded by the facts of our differences, and the struggle to move between contexts in the search for temporary solutions to our problems.^[758]

In practice Australian law-making and implementation has that concern for context and Kantian respect for diversity and dignity rather than enshrining absolutes.