Conditions of observability

Captain James Cook
Sir Nathaniel Dance-Holland, Captain James Cook, c. 1775

Conditions of observability’… includes a reminder that we can be the reason why we don’t see elephants in the room.

Tunnel vision happens when we notice certain things but not others. A variation is when we notice something, but join the club which says it’s not to be talked about. This is the ‘elephant in the room’ or, according to the idea of pluralistic ignorance (PI), it’s how we think about ourselves, thinking about the elephant in the room. PI happens when we don’t speak up thinking no one else shares our concerns, when they actually do.   

Our struggles with our perceptions and with our inclinations to try to stay within the group, are two areas of key concern in law and ethics. In fact, in all areas of knowledge, in life and in society.

During his life, distinguished criminologist Stanley Cohen created a classification system about ‘denial’, important in many areas, including Holocaust Studies. Cohen said that denial can be classified as conscious and unconscious, literal, interpretative and implicatory.

In literal denial, we say: ‘No, you are wrong. The thing you say happened, didn’t happen’. In interpretative denial, we say: ‘You are right, something happened. But you misinterpret what it was’. Finally, in implicatory denial we say: ‘You’re right, that thing happened, but I wasn’t implicated. I’m not responsible’.

As tunnel vision can lead to conscious and unconscious denial, and both can have appalling effects, it is important to ask what can be done about tunnel vision. For everyone involved in law, for people studying, teaching, practising, adjudicating, using, making and wanting to change law – tunnel vision can relate to what law is, how it works and what it does.

What are lawyers to do when they see elephants in the room? This question has come up in two new Master of Legal Practice courses I’ve taught this year. The first, Law and Organising for Reform Justice and Inclusion and the second, Law, Lawyers, Justice: Regional, Rural, Remote. One issue is how clients can teach lawyers about elephant detection and how praxis - a lively and critical re-examination of practice and theory – can help.

The idea of ‘framing a problem’, also called ‘problem representation’, can be great for helping us to see assumptions, standpoints and power relations at work in naming certain things, rather than others, as ‘the problem’. For example, is criminality the cause of grossly disproportionate Indigenous incarceration rates? Are weaknesses in international law responsible for current elevated threats to international peace and security? Do attitudes and choices of the poor, account for poverty? Can taxpayer funds be saved by threatening to withdraw, or withdrawing, Centrelink benefits from those with drug and alcohol addictions?

Another example involves current debates about whether there should be an Australia Day and if so on 26 January. This debate involves problem representation. For example in relation to British settlement, which pictures apply? Imagine three options. First, Captain Cook as rendered in the painting by Sir Nathaniel Dance-Holland in about 1775. This image is majestic showing Cook as a man of substance, poise and accomplishment. Next, somewhat similar, a representation of Captain Arthur Phillip, in bas-relief on a Royal Doulton Toby Jug, for the sesqui-centenary of British settlement in 1938. Here Phillip is seen on 26 January 1788, leading his soldiers in raising their mugs to salute the British flag. Phillip and his compatriots revel in a glorious historical moment. The final image is the 2013 bust of Cook by Jason Wing. Here, eyes and mouth are seen through the black knitted balaclava. This Captain Cook is dressed as a robber and a thief. Part of the national collection of the National Gallery of Australia, the artwork is titled ‘Captain James Crook’.

In thinking about the conditions which cause us to see things in particular ways, the idea of tunnel vision can help. I think it helps alert us that we can be the reason why we don’t see elephants in the room. However, the problems aren’t only about seeing elephants because once we do, the next big challenge can be how to avoid herd mentality and forms of denial.

Martin Luther King said that the arc of the moral universe is long but it bends towards justice. If this is true, I think it involves us getting better at recognising and responding to injustice. This is a vocational issue for people working in law because, after all, justice is what legal systems are for.

Updated:  10 August 2015/Responsible Officer:  Director, GDLP/Page Contact:  Program Coordinator, GDLP