ABSTRACT
We have considered the positivist and democratic disadvantages of empowering courts to override legislatures through the application of abstract and overriding principles, such as freedom of speech. These disadvantages arise from the fact that in determining the specific content, scope and force of these principles the courts are involved in highly controverisal political questions. This amounts, it is argued, to an ascription of massive, unaccountable and politically arbitrary power. This critique presupposes that there is a feasible alternative, namely the legislative establishment of rules which embody and convey precise political choices in the form of specific rules establishing positive rights ·and duties which can be impartially applied and subject to meaningful political debate in a framework of electoral accountability. It is to this question that we now turn in an examination of the prospects for attaining rule governance in the sphere of defamation law, a particularly vexing and contested area of law which bears on freedom of expression. ·
LEP does not itself indicate a preferred approach to the substance of defamation law beyond its general commitment to significant freedoms, effective democratic government and formal justice as a necessary condition of substantive justice. However, the previous chapters make it clear that good .positivist law requires the preselection of specific legislative objectives which identify public purposes that enable us to formulate rules, at the appropriate level of specificity, anc~ provide a background for the understanding of the regulations which require or permit particular actions. In the case of defamation this is superficially easy. Defamation law, it might be assumed, is designed to protect the good name and reputation of individuals against unwarranted and damaging assertions and innuendoes. To damage or destroy a person's reputation is to inflict serious injury which it is an injustice to ignore, thereby justi-
fyingtheregulationofcriticismoftheconductandcharacterof otherpeople.
