Stella, by means of a trust

By skepticlawyer

It’s not often that the paths of commercial law and literature intersect, so when it happens, we tend to seize the opportunity with both hands. This post, then, is a discussion of the newly-founded Stella Prize for Australian women writers, and the legal instrument that will of necessity be the vehicle for its ongoing success: the trust. We wrote this post jointly, but came at it from different perspectives, even though we are both lawyers. Legal Eagle is a specialist in the law of trusts, up to and including lecturing it. Skepticlawyer is a lawyer who is also a writer, and who has received various awards–both academic and literary–thanks to generous benefactors who established testamentary and inter vivos trusts in days gone by.

Miles Franklin and ‘the Stella’

The Miles Franklin Award is Australia’s oldest and most prestigious literary award, established by testamentary disposition by (arguably) Australia’s most famous writer, Stella Maria Sarah Miles Franklin. First awarded in 1957 (to Patrick White, for Voss), it is known among literary awards for having few female winners: only 13 of us since the year of first award, but in reality only 10 — four times the prize went to Thea Astley. Including her as a single winner makes the sex disparity even more obvious.

Of course, with such a venerable prize, men should be expected to dominate, especially in the early years. A glance at literary (and other) awards from around the world shows the same pattern: women are nowhere, initially, but by the time the late 60s rolls around, the disparity begins to even out. The Stella Prize organisers have helpfully compiled a set of statistics illustrating this phenomenon. In every other literary award listed, women have won the prize more than 30% of the time. Most prizes hover between 35 and 50%. Including Astley, the Miles Franklin languishes on 26%. Counting her as a single winner, that figure drops to 20%. This is, as they say in the trade, statistically significant.

For some reason, the statistical levelling seen in other prizes hasn’t happened with the Miles Franklin, and a group of women writers and publishers have joined together to establish a new prize, the Stella, targetted at Australian women writers, because of it.

So far, so simple, right?

Actually, no. People have managed to get it into their heads that this is a form of affirmative action: here’s a particularly egregious example of the genre. Ms Flint (the author) needs to sit in on a few first year law subjects and learn that it’s only affirmative action when the government does it. Let us say that once again, slowly. It’s only affirmative action when the government does it. Hold that thought, now.

One of the reasons the fall-out over Andrew Bolt’s adventures in acrimonious Aboriginal commentary has been so, um, acrimonious… is because some of the moneys in question are government moneys, and they were (and are) targeted at members of a particular group, to the exclusion of everyone else. Andrew Bolt made a number of defamatory claims about prominent Australian Aborigines, but that issue is separable from the fact that many people (skepticlawyer is one of them) think that giving people government money by virtue of their membership of a given group is wrong, because governments ought to remain neutral among different groups (whether these be races, genders, religions, what-have-you). This neutrality is necessitated by the simple fact that all adult citizens have voting rights (in Australia, duties, thanks to compulsory voting) and people from all groups pay taxes (including some people who can’t vote, like those under 18 and non-citizens). The government, in a very direct sense, belongs to all of us.

The Stella Prize, by contrast, belongs to… ahem, the Stella Prize board of trustees. The trust is a discretionary one, to go to the appointed winner of the Prize as and when the judges so decide. The moneys come from who-knows-where, but emphatically not the government. The analogous prize for women writers in Britain is sponsored by Orange. Don’t like your mobile phone company sponsoring awards for women writers? Fine, don’t have your contract with them. Go to O2 or Vodafone instead. Let your fingers do the walking, and exercise your freedom of choice.

If you’re a private individual, or a company, you can give your money to someone else for whatever reason you like, whenever you like, subject to very few prohibitions (illegality, for the most part). It is perfectly legal to make discriminatory dispositions under trusts. There are a number of cases where a will or a trust has purported to confer property on a relative as long as the relative worships in a particular religion, marries someone of a particular religion, or does not marry someone of a particular religion, as the case may be. Legal Eagle collected quite a few of these in a recent lecture she gave to Melbourne’s Adam Smith Club:

Clayton v Ramsden [1943] AC 320 (bequest to daughter forfeited if she did not marry someone “of Jewish parentage and of the Jewish faith” – held to be void); Re Harris [1950] VLR 192 (trust for certain persons of the Jewish faith who had Jewish spouses – held to be valid); Re Allen [1953] 1 Ch 810 (disposition to person who must be a member of the Church of England to be effective – held to be valid); Re Hurshman (1956) 6 DLR (2d) 615 (bequest to daughter forfeited if she married a Jewish man – held to be void); Re Kearney [1957] VLR 56 (trust for persons who were Roman Catholics and not married to Protestants); Church Property Trustees Diocese of Newcastle v Ebbeck (1960) 104 CLR 394 (bequest to sons only given on the condition that their wives converted to Protestantism); Re Tuck’s Settlement Trusts, Public Trustee v Tuck [1976] 1 All ER 545 (bequest to son predicated upon marrying a Jewish wife – held to be valid).

As Legal Eagle notes, this kind of disposition is less common these days, and if the instrument is not carefully drafted (the courts dislike the imposition of penalties) it may be void. There is nothing, however, to prevent private individuals and companies from ’employing their capitals’ (to use Adam Smith’s phrase) to confer a benefit on a class, race, sex, religion or group.

Indeed, Miles Franklin did this herself when she established the award that bears her name. Her will (scroll down and click to embiggen) stipulated that ‘[the] prize shall be awarded for the Novel for the year which is of the highest literary merit and which must present Australian Life in any of its phases.’

Testamentary freedom

Now, with trusts generally and testamentary trusts in particular, one of the most important legal principles to get one’s head around is the importance of respecting the intentions of the testator (for a mortis causa disposition, as Miles Franklin did in her will) or settlor (for an inter vivos disposition, as the Stella Prize board are doing). People do not endow trusts worth millions for sh*ts and giggles. They expect their wishes to be respected, because it takes a great deal of money to endow an annual prize of decent size (the Miles Franklin is a growing perpetuity, the mathematics of which is explained here). Unfortunately, people (typically non-lawyers and non-accountants) sometimes forget this. Those who make casual calls to ‘change the terms’ of the Miles Franklin award need to understand just how dim a view the courts take of fiddling around with the testator’s intent. The issue is that the testator is dead. The law proceeds on an assumption that it should try to enforce the testator’s intent where that is legally possible. Nonetheless — as always — there are some exceptions to this (eg, testator’s family maintenance applications, where the relatives of the deceased sue to get provision in a will).

Indeed, courts are so concerned to make sure that the settlor’s wishes are carried out with charitable trusts that they have developed a doctrine called cy-près (“as near as possible”) whereby if a charitable trust fails, courts will find the nearest possible alternative to the settlor’s wishes. So, for example, in Public Trustee v Attorney General of NSW (1997) 42 NSWLR 600, the testator left money on trust for the “Federal Commission for Aboriginal and Torres Strait Islanders” (‘FCATSI’) which had ceased to exist some 8 years before her death. The Court looked at the purposes of FCATSI, and whilst it was not minded to create a trust to fulfill all those purposes, it did find that the testator had showed a general charitable intent towards indigenous people and thus applied a cy-près scheme.

Freedom to alienate or gift

Disagree all you like with the Stella Prize board, query their assumptions, argue that ‘prizes of one’s own’ are old hat — you can do that until you’re blue in the face. What you can’t do is accuse the Stella Prize board of affirmative action or discrimination… because the Stella Prize board aren’t the government. And, like you or me, they have every right to dispose of their property as they wish. We no longer live in a society where the government tells us how to ’employ our capitals’ or directs us as to whom we ought to will our estate on death. We used to live in that sort of society, and the inheritance aspect of it was called ‘primogeniture’. Here’s Adam Smith on primogeniture:

When land, like movables, is considered as the means only of subsistence and enjoyment, the natural law of succession divides it, like them, among all the children of the family; of an of whom the subsistence and enjoyment may be supposed equally dear to the father. This natural law of succession accordingly took place among the Romans, who made no more distinction between elder and younger, between male and female, in the inheritance of lands than we do in the distribution of movables.

But when land was considered as the means, not of subsistence merely, but of power and protection, it was thought better that it should descend undivided to one. In those disorderly times every great landlord was a sort of petty prince. His tenants were his subjects. He was their judge, and in some respects their legislator in peace, and their leader in war. He made war according to his own discretion, frequently against his neighbours, and sometimes against his sovereign. The security of a landed estate, therefore, the protection which its owner could afford to those who dwelt on it, depended upon its greatness. To divide it was to ruin it, and to expose every part of it to be oppressed and swallowed up by the incursions of its neighbours.

The law of primogeniture, therefore, came to take place, not immediately, indeed, but in process of time, in the succession of landed estates, for the same reason that it has generally taken place in that of monarchies, though not always at their first institution. That the power, and consequently the security of the monarchy, may not be weakened by division, it must descend entire to one of the children. To which of them so important a preference shall be given must be determined by some general rule, founded not upon the doubtful distinctions of personal merit, but upon some plain and evident difference which can admit of no dispute. Among the children of the same family, there can be no indisputable difference but that of sex, and that of age. The male sex is universally preferred to the female; and when all other things are equal, the elder every-where takes place of the younger. Hence the origin of the right of primogeniture, and of what is called lineal succession.

The effect of primogeniture was a great deal of undeveloped and poorly developed property, something Smith went on to note, both in his native Scotland and elsewhere:

There still remain in both parts of the United Kingdom some great estates which have continued without interruption in the hands of the same family since the times of feudal anarchy. Compare the present condition of those estates with the possessions of the small proprietors in their neighbourhood, and you will require no other argument to convince you how unfavourable such extensive property is to improvement.

Be thankful we live in a world that has followed Smith (and the Romans) when it comes to testamentary freedom and the freedom to use, alienate and gift our property. The alternative really doesn’t bear thinking about. It’s certainly an alternative that paid scant respect to women — as Smith takes pains to observe.

There’s something about trusts

As lawyers, it pleases both of us to see trusts used for things like the Stella Prize; indeed, a prize for women is wholly consistent with the history of the trust, which has long been used to defend the property interests of women, minorities and non-citizens — in both the civilisations that developed it.

Before we go on, we should briefly explain what a trust is. Basically, in very simple terms (without getting into any of the controversies in this area) a trust involves a separation of legal and beneficial ownership. The trustee holds the legal title of the property, but equity presumes that the beneficiary is the actual owner of the property. The trustee is obliged to hold the property for the benefit of the beneficiary. However, one can also have a charitable purpose trust in Anglo-Australian law – a trust where property or a fund is held on trust for the purposes of a particular charity or charitable purpose – the law is explained briefly here. (In contrast to the common law, the Romans allowed non-charitable purpose trusts, as will be evident from the Roman law section of this post.)

Trusts in England

Maitland called the trust “the most distinctive achievement of English lawyers”. The trust was designed to get around the feudal incidents of landownership, and began to be widespread in the late fourteenth century. The landowner granted legal seisin in his holdings to a group of trusted friends or relatives whilst retaining use of the lands. As with trusts in the present day, there were a number of advantages, many relating to tax and inheritance:

  • The true owner did not have to pay feudal dues when he inherited under this method.
  • If the landholder was under the age of 21, there was no temporary loss of control of a fiefdom through wardship.
  • The feudal lord could not force a young heiress to marry.
  • The land-holding could not escheat, or revert back permanently to the overlord, when the land-holder died without a legal heir.
  • The land-holder was able effectively to bequeath his land to whomever he wished, and was no longer bound by the custom of primogeniture where the eldest son alone had the right, on payment of the appropriate feudal relief, to inherit, that is to demand to be re-enfeoffed with his father’s land-holdings by his father’s overlord.

When the fiefdom was held by a group of feoffees, the death of the beneficial holder was legally irrelevant to its continued holding by them. They simply allowed the lands to continue to be used by the deceased’s heir. Of course, the difficulty arose if the group of trusted friends turned out not to be so trustworthy after all. Who would enforce the rights of the true owner of the land? In the event, the Chancellor opted to do so.

Obviously, the use (old name for trust) was not popular with the King, as it represented a way of getting around feudal dues. One of the most profitable dues arose from the wardship of a minor, because military obligations attached to the ownership of lands, and because minors could not perform those obligations, the Crown administered the lands of minors during their minority. But with the use, this wardship was no longer necessary.

Henry VIII attempted to stamp out the use with the 1535 Statute of Uses, which sought to “execute” the use by providing that the beneficial owner was also the legal owner. But of course, lawyers had a tricky way of getting around this by just putting two layers into the trust (with X holding on trust for Y holding on trust for Z). The first trust was from X to Y was “executed” so that Y became the true owner, and the second owner (Y) became the trustee of the second trust for the use of Z. Hence the modern trust was born.

One reason why the trust was a useful institution in English law was because of the common law doctrine of ‘coverture marriage’. Blackstone explained as follows in his Commentaries on the Laws of England:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

As Blackstone explains, an adult unmarried woman was considered to have the legal status of ‘feme sole‘, while a married woman had the status of ‘feme covert‘.  While a feme sole had the right to own property and make contracts in her own name, a feme covert was not recognized as having legal rights and obligations distinct from those of her husband. Through marriage, the woman’s rights and obligations became those of her husband. It has been argued that Blackstone’s interpretation of coverture was far more conservative than the practice that actually occurred, but according to his account, the wife’s property became the man’s upon marriage — hence the plot twists common in Victorian novels, and in Sherlock Holmes stories.

However, a number of equitable doctrines such as the trust were developed by the Court of Chancery to allow women to own property beneficially, even if they could not own property according to the common law. Equity also created some doctrines that allowed married women to hold property by themselves (such as the “separate estate”) but as Regina Greycar points out here, these doctrines largely benefited wealthy women. This is the sort of legal drafting involved (well worth a look).

In modern times, the trust has continued to be used to determine the proprietary interests which arise upon breakdown of a marriage, with the constructive trust and the resulting trust being used as a mechanism by courts to divide proprietary interests other than according to the legal title. These doctrines have now been overtaken by the Family Law Act 1975 in Australia. Until recently, same sex couples still had to have recourse to the common law, while de facto couples were covered by State legislation (eg former s 285 of the Property Law Act (Vic)), but this has recently been amended.

Incidentally, the phrase “the law is an ass” originates from Oliver Twist, when Mr Bumble is informed that “the law supposes that your wife acts under your direction” (as a result of the unity of man and wife via coverture marriage). Mr. Bumble replies “If the law supposes that … the law is an ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

Trusts in Rome

Trusts in Rome took two forms — the usufruct was their version of our inter vivos disposition (and is the reason the earliest English trust was called ‘the use’, although beyond the name, there was no copying; the law in both places developed independently), while testamentary trusts were called fideicommissa. The Roman trust was directed to different ends from that of the English, and protected different persons. There was no restriction on citizen women’s testamentary capacity or ability to take, for example, so the complex subterfuges designed to evade coverture or primogeniture are absent from Roman law. Marriage and cohabitation (concubinage) were both governed by the law of contract, and Roman law kept the man and woman’s property separate as much as possible: D.24.1.1, including on divorce or separation: G.1.137a.

It is only with the Emperor Augustus–as part of his broader pro-family, pro-citizen agenda–that we see laws constraining testamentary freedom and capacity to take; they’re minor compared to what the English had to contend with, but still very real. In AD 9, Augustus enacted laws prohibiting Roman citizens from willing property in Italy, Sicily and Cisalpine Gaul to non-citizens, and laws against leaving legacies to people (aged between 25 and 50 for women, and 25 and 60 for men) who had no children. This was directed, it would appear, at homosexuals (pathicii, cinaedii) and lesbians (tribades). The Romans were not notable homophobes, but they did expect everyone to be ‘paired off’ eventually. Indeed, life-long celibacy was considered frankly weird, far odder than same-sex attraction: D.28, generally. Many Romans also saw homosexuality or lesbianism as a ‘stage’ one went through when young.

To be fair to Augustus, his laws were compassionately drafted — they did not apply to the testator’s ascendents and descendants to the third degree, or to cognates to the sixth degree, who could take regardless of whether they were childless: D.28.5.6.2. Marriage or concubinage by the statutorily excluded childless also allowed them to take half the willed sum, an incentive that produced a number of notably insincere couplings–as noted by satirists at the time.

What Augustus’ laws did do was invalidate, at a stroke, the giving of legacies not only to non-citizens and non-biologically related citizen friends who were childless, but to institutions, like temples or libraries or other corporate bodies. They also further widened the gulf between citizens and non-citizens: citizens, remember, already enjoyed extensive privileges, ranging from speedier adverse possession of immovables (to a common lawyer, realty), rights of appeal, trial by jury and access to welfare provision (which, bizarrely, was sometimes made heritable: D.31.87pr). Insert Starship Troopers joke here 😉

The response of Roman lawyers to what they considered a notable instance of government nanny-statism was to come up with both purpose trusts and innumerable clever spins on the testamentary trust.

In one of the ironies of legal history, Augustus also passed laws (in the same year as his inheritance laws, no less) ensuring that these new trusts were properly enforced, thereby shooting his own legislation in the foot, at least among the middle and upper classes. Every Roman will we have discovered where there is a desire to benefit either a foreigner or a childless person outside the family contains a provision ensuring that they take subject to the trust, not to the will. When it comes to purpose trusts, the bodies benefitted are notable for their sheer efflorescence of strangeness and diversity: trusts for the maintenance of temple prostitutes, to be held by the high priestess (valid), trusts directed at ‘all the late-drinkers’ in a particular pub, to be held by the publican (valid, subject to information about how many late-drinkers there actually were), trusts subjecting an heir to a duty to buy and manumit another person’s slave (valid, subject only to satisfaction of the other dispositions from the estate, first). There are many others collected in D.31; they make amusing reading.

The desire to avoid the payment of tax is also identical, and Roman lawyers came up with a system of entailing that allowed a trust to be made subject to another trust, all in favour of ‘unascertained persons’. This kept property in the family for generations and also evaded the payment of land tax. In the context of Roman society and culture, it is odd indeed — the entail is fundamentally feudal, and Roman society was most un-feudal. But then, people hate paying tax. Hadrian passed legislation making these ‘entails’ ineffective beyond four generations: D.31.1.88.66. This, of course, amounts to the Roman version of the rule against perpetuities.

Roman trusts law has passed with varying changes into the law of France and Germany, where trusts are known respectively as fiducie and Treuhand. The latter gives us the lovely ‘Treuhander‘ for trustee, which is one of those instances where the German word is vivid and clear even to a non-German speaker.

Trusted history

If nothing else, the history of the trust in both its civilisational manifestations illustrates the refusal by people from all sorts of backgrounds to let governments tell them how to ’employ their capitals’. It also suggests that people of goodwill will make skillful use of the law to route around some of humanity’s more unattractive attitudes: sexism, xenophobia, bigotry. Those people who object to the organisers of the Stella Prize so ’employing their capitals’ would do well to bear that legal history–of which this post is but the merest outline–in mind.

17 Comments

  1. kvd
    Posted October 11, 2011 at 3:19 am | Permalink

    Just reading the later terms of Miles Franklin’s will, two things intrigued me. Firstly that she ‘requested’ her trustee to be ‘guided’ by the judges’ recommendation – in non-lawyer terms, a non-binding ‘direction’? And secondly, I had always thought of this award as an ‘award for books’ whereas she specifically mentions the possibility of ‘a play for radio or television, or such other medium as may develop’. That’s pretty far sighted for 1950s Australia.

  2. kvd
    Posted October 11, 2011 at 9:11 am | Permalink

    The other memory that this post stirs is regarding cy-pres ‘schemes’. Years ago now, in a little village I was living in, the sole remaining trustee of a Protestant ‘Union Church’ decided to sell up and transfer proceeds to the church authorities. Amid much uproar and a new surge of religious fervour (also not wanting some rich git to turn it into a holiday pad) I ended up as one of the trustees representing the present day incarnations of what were origionally the Pressies, Methos, CofE’s and I forget the fourth, in a village boasting a population which was half Roman Catholic – and it was some of that faith who were in fact the staunchest supporters of retaining the church.

    So, after sorting out the new trustees I was asked to ask a client, one of Sydney’s largest law firms, to investigate a variation of the deed so that the RC’s might be included within this new found flock. They kindly spent some time on this pro bono, but unfortunately their advice, which had raised the slight possibility of varying the deed via said cy-pres, came down in favour of no potential action. It seems this particular benefactor had created two other Union Churches in surrounding villages – all of which were specifically for the use of the origional four Protestant denominations, so they felt/advised that the courts were unlikely to allow a variation allowing the dreaded RC’s any right, interest or favour.

    The church still operates, and is a popular community focus, and the only memorial garden in its grounds is in dedication of the tireless work of the founding secretary – a most devout Roman Catholic lady, since passed on.

  3. Patrick
    Posted October 11, 2011 at 11:36 am | Permalink

    Great post guys, not sure 90% of it was relevant to what appeared to be the primary point but I was much more interested in that 90% than the primary point anyway so thanks!

  4. Jonathan D
    Posted October 11, 2011 at 2:11 pm | Permalink

    I’m surprised to read that law classes would teach that ‘affirmative action’ must refer only to what government does or requires. In normal use, it seems to do quite well with the broader (and more logical) meaning. Ms Flint’s argument against the award she claims “smacks of” affirmative action is certainly grounded on what she says the outcomes are, not who is doing or whether it should be legal.

    This is true even if it is useful to use it as a shorthand for government action in a legal setting, where there are good reasons to consider government actions differently to those of individuals or groups. Of course, Bolt could make a better argument if he showed any awareness of the difference and/or what the aims of such public or private payments might be.

  5. Posted October 11, 2011 at 2:38 pm | Permalink

    People can do whatever they like with their money, subject to the constraints of illegality and public policy only. Sometimes you’ll be taught this in introductory law subjects, sometimes in ‘equity and trusts’, sometimes in property or commercial law. And yes, modern law students (brought up on a diet of people busy-bodying about private spending habits as though private persons, both natural and juridical, have to account to the public in the same way as the government does) are often shocked.

    However, when right-leaning commentators forget how hard people have had to fight historically for the right to ’employ their capitals’ as they wish, we have entered the realm of ‘post-modern conservatism’, not to mention ‘you fail capitalism forever’.

  6. pete m
    Posted October 11, 2011 at 7:43 pm | Permalink

    Andrew Bolt made a number of defamatory claims about prominent Australian Aborigines

    Are you sure?

    No judgment was made on this. Any comment by the Court was obiter.

    To conclude something was defamatory is to risk being held accountable yourself for your statement. I believe his public interest defence would have been assessed differently by a Court in a defamation suit.

    He was found to be in contravention of causing insult and offence to a group on the basis of their race. Bad boy. Don’t use cutting language again.

    People dislike trusts because they see them as a vehicle for rich people to hide assets and income. Sadly there is some truth to this opinion.

  7. Posted October 12, 2011 at 5:42 am | Permalink

    Pete M.

    Statements are defamatory because they say something bad about somebody. Then potential defences kick in.

    If a defence succeeds (including, I might add, justification, ie, truth) that doesn’t stop the original statement from being defamatory even if it was totally true, it just means that there is a defence to any claim in relation to the defamatory statement.

  8. Posted October 12, 2011 at 5:51 am | Permalink

    Incidentally, SL (and LE to the extent applicable), I’m still not quite sure where you get your core thought that it’s only affirmative action when the government does it. I’m holding on to that thought but it seems a bit of a hot potato.

    Seems to me that you are trying to wrestle between affirmative action by the government (which you think is bad) and something certainly very akin to affirmative action by a charitable trust, which you accept because it is people doing something with their own money – hold the question of the favourable treatment of charitable trusts both as to the permitted perpetuity, purpose rather than beneficiaries and in relation to tax.

  9. Patrick
    Posted October 12, 2011 at 6:25 am | Permalink

    Marcellous, I’m pretty sure that one of the reasons they didn’t use defamation was a genuine chance that some of the complainants didn’t have a reputation to speak of – in which case there would simply not be any defamation for Bolt to defend.

    Also, the point of affirmative action being restricted to governments appears obvious – everything people do is ‘affirmative action’ in a sense – we naturally, if not consciously, seek to promote those we consider deserving on whatever grounds over those we don’t. As libertarian-minded people SL and I think that this is fine even though we reserve our right to call you a fool.and worse for your choices. When the government does ‘affirmative action’ however they impose legal and putative enforceable limits on this largely subconscious process. This then taints everything, including, worst of all, that we no longer associate achievement with merit. That is what we object to.

    Pete M, maybe governments should tax better – just a thought!

  10. Posted October 12, 2011 at 6:56 am | Permalink

    To be fair to the plaintiffs’ accounts of their pasts, Bromberg J did point out that they were uncontested. In Heiss’ case in particular, many of the allegations were provably false, within minutes, including (bizarrely) the claim about her colouring. She’s darker and more obviously Aboriginal than my former partner, who is never confused for anything other than Aboriginal.

    The other allegations about her mainly concerned recent and easily obtainable employment records, not ancestry. A stronger defo case is harder to imagine, frankly.

  11. Jonathan D
    Posted October 12, 2011 at 10:04 am | Permalink

    Patrick, perhaps it is more generally a bit like ‘discrimination’. We naturally choose between things on whatever grounds, and this has been called discrimination, but colloquially ‘discrimination’ often stands for ‘unfair discrimination’. If the meaning completely shifted, there might not be any problem with that, but in practice a large range of discrimination is presented as automatically unfair, without explanation or possibly even any thought on the matter.

    I can see why those of a legal and/or libertarian bent would like to restrict “affirmative action” to the objectionable sense, especially since, like discrimination, so much of the broader sense is fairly unremarkable or at least uncontroversially legal. But it seems pretty clear to me that many do use the term to emphasise deliberate actions made by the government or otherwise, and that makes sense too.

    Either way, in the linked article Flint (who stops just short of actually calling the prize affirmative action, so perhaps does even agree with yourself and SL on the definition) wasn’t saying anyone should be stopped from offering such a prize. She points out that in her view the prize has one of the downsides associated with affirmative action – simply exercising her right to call the proponents (not quite?) fools. I don’t see how we can infer that she has “forgotten” any right of the proponents.

  12. Patrick
    Posted October 12, 2011 at 12:08 pm | Permalink

    Non capische. It is not ‘generally a bit like’ discrimination, it is exactly discrimination. For the reasons you cite it is called affirmative action to get away from its inherent unfairness.

    So your second paragraph is a bit arse-about, those of ‘a libertarian bent’ (is that a sexual or political preference?) would rather just call it what it is: discrimination. It is those of a delicate rose-lefty complexion who need to obfuscate and euphemise. It is a testament to their role in modern ‘discourse’ that the term has become the accepted meaning.

  13. kvd
    Posted October 12, 2011 at 12:16 pm | Permalink

    It is a testament to their role in modern ‘discourse’ that the term has become the accepted meaning.

    Thus acknowledging [email protected]’s point?

2 Trackbacks

  1. […] we have both written in considerable detail about the use of private trusts to support literature and the arts, in a longer piece on the new Stella Prize and the history of the law of […]

  2. By Skepticlawyer » Ode to Property Law on April 30, 2012 at 6:36 pm

    […] was when the law was amended to allow women to own their own property. As we have explained in this post, the common law doctrine of couverture marriage meant that the woman’s property became the […]

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