Passing bull 191 – The people and the crowd

Featured / Geoffrey Gibson / 2 Comments

 

 

When people come together to vote for parliament or to serve on a jury – rather similar exercises – we feel good about each other.  But if we see them come together as a lynch mob, we are revolted.  We are revolted because people following the herd instinct are behaving more like animals than human beings.  Most of us are very worried about the crowds behind the gillets jaunes in France.  People have there taken to the streets not just to protest against government but to try to bend the government to do its will.  That is a plain denial of parliamentary democracy.  That kind of government can only work if the overwhelming majority of people accept the decision of a majority.  But ever since 1789, the French have claimed the right to take to the streets to stop government taking a course they do not like.  The result is that France has not been able to push through unpopular reforms in the same way that Germany and England did.  And the result of this triumph of the people is that the people are a lot worse off.  That in turn leads to the gillets jaunes and to the President’s not being able to implement the reforms for which he was elected.  And so the cycle goes on – until one morning the French get up and see a scowling Madame LePen brandishing a stock whip on her new tricoleur dais.  She will have achieved the final vindication of the crowd – the acquisition of real power by real force.

The Bagehot column in The Economist this week is headed ‘The roar of the crowd.’  It begins: ‘The great achievement of parliamentary democracy is to take politics off the streets.’  Well, the English achieved that – but not the French.  The article goes on to refer to street protests being invoked to express ‘the will of the people.’  That bullshit phrase is or should be as alien to the English as it is to us.  It is dangerous nonsense advanced by people over the water like Rousseau – one of most poisonous men who ever lived – Robespierre, Stalin, Mussolini, Franco, and Hitler.

The article also refers to social media –the worst misnomer ever – as ‘virtual crowds online.’  It quotes an 1895 book The Crowd; A Study of the Popular Mind as saying of crowds that they show ‘impulsiveness, irritability, incapacity to reason, the absence of judgment of the critical spirit, the exaggeration of sentiments’ and says that the crowd debases the ordinary person – ‘isolated he may be a cultivated individual; in a crowd, he is a barbarian.’  That is because he has handed over the keys to his own humanity.  All this is just as spot-on for social media as it is to those whom Farage whipped up against Muslims, or those for whom Trump did the same, or those who marched last night in favour of Brexit and did so to a ghastly drum-beat that made them look so much like the English fascists from the 1930’s.

For our system to work, people have to show at least some restraint and toleration.  At least two forces are in my view at work in Australia working against us and in favour of the herd instinct of the crowd.  One is social media.  The other is the Murdoch press.  The first is obvious.  As to the second, a New Zealand observer said there were two reasons for the immoderate restraint and toleration of their government to a crisis of hate – the leadership and empathy of the leader of their government, and the absence of the Murdoch press.  In Australia, Sky News after dark regularly parades Pauline Hanson while Bolt and others defends her and while in The Australian columnists attack Muslims as jihadis in something like a frenzy.  And it was just a matter of time before they spitefully turned on the New Zealand Prime Minister and the ‘Muslimist Aljazeera’ – and of course those middle class pinkos at Fairfax and the ABC.

The people behind social media and the Murdoch press are wont to preach about freedom of speech.  The sad truth is that they go to the gutter for the same reason – for profit.

Two more points.  The current disaster in England started when they went and tested ‘the will of the people’ and got an equivocal answer – yes, leave, but on what terms? – with a majority too slim to permit a simple solution to a difficult problem to be found and implemented.  Now we have the awful and degrading spectacle of parliament behaving worse than the crowd.  And people who got where they are on a vote from the people are with a straight face saying that it would be wrong to ask the people again now that everyone knows what lies were told and who has been the worst behaved.  Indeed, their Prime Minister says a second vote would be a ‘betrayal of democracy.’  Some say an election would be better – when both major parties are hopelessly splintered and there is no reason at all to think that a reconfigured group of those responsible for the present mess might do better.

The real betrayal of democracy has taken place in America.  Trump appealed to the crowd to reject the ‘elites’ – people who know what they are doing.  Neither he nor almost everyone in his government has any idea about governing.  But his betrayal is more elemental.  A President is elected, as Lincoln said ‘of the people, by the people, for the people.’  Trump could not care less about the people.  He is only interested in that ghastly minority that is called his ‘base.’  And since he thinks his base wants him to abandon affordable health care, he will try to kill it.  And to hell with the people.

It’s not just that the policies of people like Farage, Hanson and Trump are revolting – it’s the people they get to work with them that are also revolting.

It looks like the hour of the crowd is with us again and it may never have looked worse.

Bloopers

But Trump bends history to his will.  May simply bends under the will of others.

The Weekend Australian, 30-31 March, 2019.  Mr G Sheridan

It is an interesting view of the strong man.  Amazingly, the editorial was even sillier.

New Book Extracts II

/ Geoffrey Gibson / Leave a comment

War against Humanity

Our present discontents

One problem is that people in government and business who should be looking after us prefer to look after themselves. Our community is being trumped by their egos.

When the babyboomers like me were born at the end of World War II, Australia was heading for a period of sunny growth, peace and prosperity. The organs of government and business that we had inherited from England were working well enough. Our prosperity was underwritten by what we found under the ground and what we could grow above it. We were about to be enlivened by migrants first from Europe and then from Asia and Africa – to our never-ending betterment.

Our condition was famously defined by the remark of Donald Horne that ‘Australia is a lucky country run mainly by second rate people who share its luck’. That is still the case, in spades, but no sane Australian then or now would ever dream of living elsewhere.

Government was then as now both timid and mediocre, but the party that might now be labelled ‘progressive’ had just shot itself in the head – again – leaving us with a generation of one-party rule.

Business was staid and protected. Our parents had survived the Depression and the war. They would never be as free of care as us, but they mowed the lawns listening to the footy or cricket in their suburban refuge, while waiting for us to be their triumph and bring home the bacon on the ‘broad, sunlit uplands’ envisioned by Winston Churchill. We were truly blessed to have been born there and then. (Provided, as a male mate mordantly remarked, you were a boy.)

In those days, most of the girls waited to be married. The boys, if they were not stupid, were assured of a free university education. (And we beneficiaries of that system are horrified that others now deny it to our children and grandchildren.) For the boys who were not so fortunate, or not disposed to engage in what technical education there was, there were at least two courses open to them that may have seemed dull to some, but which were both respectable and provided an assured future – the civil service and working for a bank.

All that has gone – in the space of one lifetime. Our whole understanding of communal life – life in our community – has shifted. And that shift has been inward toward the ego rather than outward toward the community.

All too often now when we deal with government or business, we are invited, if not made, to do so on the phone or online, or both. This of itself is threatening for those of my generation who now feel our age. We are not then dealing with a human being, but a robot in the form of a computer that feeds into our laptop or mobile phone.

And we have meekly surrendered.

For the most part, we are not dealing with a man or woman in government or business who can take responsibility for a decision and the action of the department or company that they represent. And who can therefore discuss with us the reasons for the decision and how it might be best implemented – or perhaps altered or withdrawn.

The decision will usually mean far more to you than to them, and in most cases, they will have much more power and resources than you. And the capacity to live with a bad decision or failure of process. Robots do not lose sleep, hit the bottle, have trouble with the tax man or a cranky bank manager, or get divorced. Or get insulted by an ATM that refuses to issue money, or get a threatening notice for being late with some response.

The Adversarial Trial

1

Conflict

A court of law – the place that Sir Owen Dixon called ‘the judgment hall’ – is a combat zone.  People go there to fight.  It may not look that way to you, but it certainly does to most of the punters.  A court room is a scene of conflict.  For ‘conflict’, the Oxford English Dictionary gives us ‘an encounter with arms; a fight; especially a prolonged struggle’.  That is very apt for this note. 

The court sees two types of conflict.  What are they?

People generally go to law because they have been hurt and they think that the law might be able to give them some form of redress – in the writ that starts their legal action, their lawyer often asks for ‘relief.’  That is a good word for what they want.  They believe that someone has done them some harm by breaking their word or their trust, or by some careless act, or by some other harmful conduct that some precedent or statute enables the court to do something for them in return.  The conflict starts with a perceived wrong, and the victim believes, usually with legal advice, that if they go to court, the process of the law will help them to deal with that wrong.  They hope to come out better off than they were before suing.

If a stranger runs into the back of your car, or bad mouths you in the press, you are put into a position of conflict.  By and large, only deranged people enjoy conflict or seek to create it.  Most of us try to avoid it, or we at least try to reduce the risk or extent of it. 

But some conflict is worse than others, and this is why although it is hard to think of any good litigation, some litigation is worse than others.  The conflict is usually worse if there has been a breakdown in a previous relationship, especially one of trust, say between business partners or husband and wife, or where the parties have to live together, and the conflict is eating into their lives, as in a fencing or nuisance dispute between neighbours.  The resulting litigation is likely to be a lot more wounding and stressful – and the wounds incurred are likely to take much longer to heal, and to be even more beyond the kind of relief that a court can direct than wounds suffered in conflict between strangers.  Purely commercial brawls might involve money and face, but they are a lot less wearing than cases where real people have real lives on the line.

So, the first form of conflict arises from the conduct that leads to the legal action.  Then, if the person wronged does go to court, there is another form of conflict.  The initial conflict is resolved by a process that in itself entails conflict.

Under our process, which goes back for many hundreds of years, the judges do not sit under a palm-tree, make such inquiries as they think fit, and then pronounce some decree that they think is right to resolve the conflict.  That system has not appealed to us – as someone said, he who sits under a palm-tree knows not where the nut may fall. 

Under our system, each side presents their side of the case according to the rules laid down for this kind of contest, and the judges award the decision to the party found to have the stronger case under those rules.  We do not hold an inquiry into some kind of abstract truth.  That kind of thing is far too grand or, too ambitious, for our taste.  We leave that kind of inquisition to foreigners and royal commissions.

The great legal historian F W Maitland compared our judges to cricket umpires – people who stand there silently and respond to the question: ‘How’s that?’  Sir Daryl Dawson put it this way (in a criminal case, where onus plays a bigger role):

A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted, and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side.  When a party’s case is deficient, the ordinary consequence is that it does not succeed.

Put differently, the party with the stronger case wins and the one with the weaker case loses. 

It would be silly to suggest that mistakes are not made or that innocent people do not get hurt under our model.  What we have is a kind of judicial duel where the prize goes to the side that is found to have the stronger case – and in the process, both sides, including the eventual winner, can get badly hurt.

People thinking of going to court to resolve some conflict need to understand these things.  In an attempt to resolve their conflict, they are taking it to another level, and to a process that involves its own kind of conflict, often in a very public way.  There must be the risk that in escalating the conflict, they are making it worse.  They are certainly raising the stakes.

One of the first things that the lawyer has to tell someone complaining of the hurt flowing from some felt wrong is that it is highly unlikely that as a result of legal process they will be put in a position as if that wrong had never happened.  They are now worse off than they were before the wrong was done, and the probabilities are that they will stay that way, even if they ‘win’ in the court battle. 

This is important.  To go back a bit, they may or may not come out of court better off than they were before suing, but they are quite unlikely to end up as if nothing bad had ever happened at all.  You might compare the process to that of a surgeon asked to operate to deal with an injury or illness.

Paraplegics who get millions would hand them all back, even with a few more zeroes, if they could be put back to the way they were before the accident.  Money is very imperfect in measuring pain and suffering.  If someone instructs you to insert a clause in a contract requiring one party to ‘make the other whole’ after a breach, you should tell them that this may or may not be possible in dollars, but it will very likely be impossible for other purposes. 

It is fundamental in considering any legal action, and whether to settle it once it has started, that the party claiming to be wronged is quite unlikely ever to return to their position before they suffered the wrong.  They’ve taken a hit, and we can’t just wipe out the effects of that hit.  The law cannot rewrite history.

And this goes for the other side as well.  No sane person wants to be sued.  Some know that it is coming, because they know they have done something to upset the person suing, but often the writ will come as just as nasty a surprise to the person sued as would a slap in the face. 

But once the party is effectively sued, they too are likely to have suffered a form of harm – the anxiety, cost, and risk flowing from being sued – that they will never entirely get over – even if they ‘win’ the case.

The point is that in both these kinds of conflict, neither side is ever likely to feel quite as well as if the relevant events – the initial hurt or the resulting legal action – had never happened.  They are both behind scratch – and, sadly, often one side or the other has a lot of trouble getting over that simple fact of life.

The Pursuit of Happiness

What I believe

I

Well, then, I am not a dog or a cat.  The Wolf and I were close – but not that bloody close.  I was born a human being.  This means a lot to me.  I can think and talk in a way that cats or dogs can’t.  If I was a baboon, we would not be having this conversation – even if you were all baboons. 

Our humanity is a comfort to us since we live on a planet that revolves around one of the countless millions or billions of stars in creation.  For me, the whole notion of humanity is basic.  Too many of us take it for granted.

I believe that human beings evolved from animals on earth.  I am told, and I believe, that this process of evolution was completed round about 200,000 years or so ago, in that part of Africa that is now thought by some to be one of the most backward parts on earth.  (Being first is not therefore everything.) 

I believe that humans started moving out of Africa about 70,000 years ago.  I forget when they first arrived down here in Australia, but I believe that two things that distinguish us from the gorillas are cutlery and courtesy.  Those figures for time are very rough, but that hardly matters – we can hardly grasp the extent of those times as they are.

My part in time is therefore minute – much less than a drop in the Pacific Ocean or a grain of sand in the Sahara Desert.  If you reflect on the inconceivable vastness of the universe, my part in space is even smaller. 

If there is a God, He or She must have a very big filing cabinet.  I do not believe in God as most people understand that word.  The idea of God does not answer any questions for me.  But if I could, I would pray that there is no God with the personality that many religions seem keen to describe.  The Bible and the Koran both speak of atrocities by or in the name of God.  And history suggests that too many of the worst wars and atrocities were suffered because of strife with or within the faithful – the latter being the more savage.

When I say that I don’t believe in God, I mean just that.  I am not saying that there is no God.  It is, if you like, a matter of personal choice.  Whether you follow Arsenal or the Storm is a matter of choice, and people usually arrive at a choice of God in a similar way to choosing their footy team – by inheritance or by chance.  The most devout Muslim may have been an equally devout Hindu had she been born next door or over the road. 

Others have a different view about God.  That is their perfect right, and good luck to them – as long as they don’t try to inflict their views on me.  I, for my part, find it handy to use the term God when I am talking, even though I personally do not believe in one.  I am, if you like, a God-fearing doubter.

Some believe in a God.  Some don’t.  But no God has a majority, and most people accept that all Gods have no foundation – except theirs.  Their faith is that they have drawn the best ticket in the lottery.  The only difference between me, a doubter, and others, believers, is that I cannot find it within myself to allow an exception.

 I am therefore like the great legal historian F W Maitland who said he dissented from all churches – although on another occasion, he described himself as a ‘very Protestant agnostic’ – a label I could live with.

About twenty years ago, I did an online philosophy course at Oxford: ‘Does God exist?’  (Philosophy was my major in my Arts Degree, and I have topped it up at summer schools at Cambridge and Oxford.  I will come back to this.)  I was mortified to learn, as were other members of the class, that the tutor had written a book endorsing Pascal’s wager.  Pascal said that God may or may not exist, but if He did, it was worth your time to offer some form of allegiance.  That looks like an each-way bet – not something a decent God would smile upon.  (And here I refer to Groucho Marx.  He said he would not want to join a club that would take him as a member.)

But there is an underlying truth.  Many versions of God are offered to us.  People who commit to one are in a lifelong gamble that theirs is the contender best placed to suit them.  But the arithmetic is inexorable – most must be on a loser because they do not, like the Greeks or Romans, countenance multiple gods. 

Very few believers face that quandary squarely.  Gibbon said:

The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. And thus, toleration produced not only mutual indulgence, but even religious concord.

The superstition of the people was not imbittered by any mixture of theological rancour; nor was it confined by the chains of any speculative system. The devout polytheist, though fondly attached to his national rites, admitted with implicit faith the different religions of the earth. …. The Greek, the Roman, and the Barbarian, as they met before their respective altars, easily persuaded themselves, that under various names, and with various ceremonies, they adored the same deities.  

Since in my view nothing can come from nothing – that’s one thing King Lear got right – there can be no answer to the mystery of creation. 

There is a fire station on the peak of Mount Victory in what white people call the Grampians in Victoria.  I like to visit it at least once a year.  If you look down and out over a valley between various mountain ranges, you will see our bush as God made it, or as the blackfellas first saw it.  And at dawn or dusk, you will see our bush move through the kinds of colour changes that bedazzled Monet.  We can document moments in the development of time and space – but not how it all began.

And just as I cannot conceive of nothing, I cannot conceive of infinity or eternity.  Or God.

I certainly do not believe in any afterlife.  The idea now sounds fanciful to me.  I have no wish to keep going when I die.  I agree with Einstein – once is enough for me, too.  Or, as someone said in War and Peace, when you die, you either get the answers to all your questions, or you stop asking them.  I fancy the latter.

Indeed, the idea of an afterlife may be fine.  Like the idea of God.  But which manufacturer, and which model?  And how much do you want to pay?  And do you really want to live forever – and never die?

Then there is the problem with religious texts – scripture.  Two of what for me are the more obnoxious notions to enter the West from the East are these.  There is only one God, and he can and does prefer one people or tribe over others.  And humanity was infected by an original sin that called for divine intervention, and that sin was committed by a woman.  Is it possible to imagine two better ways to sow the seed division on earth?  The priests promptly put a woman in the Godhead and insulted and degraded her sisters on earth.  The first of the two notions has sentenced the Middle East to eternal war.

And that is before you get to jihadis or caste, or the Latterday Saints, Scientology, Voodoo, Southern Evangelicals, the Orthodox Church in Russia, Islam in Iran, Buddhism in Burma, the Settlers and Exclusionists in Israel, or the Australian Christian Lobby. 

The priestly caste tends to look after itself rather than the flock, and to align with the earthly establishment.  They resent the notion of liberty.  A left leaning cleric is close to being a contradiction in terms.  And they have no compunction in building an establishment on the teaching of one sent to tear down the establishment.

I was therefore liberated by the observation made by Wittgenstein (and a Greek or two before him) that you do not live to see your own death.  This suggestion may look self-evident, but not many people accept what follows from it.  After you’ve gone, you have nothing to worry about – you are not here, or anywhere else.  Turgenev wrote a fragment reflecting on death.  Its title is ‘Enough’.  Its last words are those of Hamlet: ‘The rest is silence.’ 

What more can we say?

Why do so many wish for life after death – to be immortal?  Who wants to live forever?  After three hundred years or so, the heroine of The Makropoulos Case has had enough.  She felt that infinite life had no meaning – it only has meaning when it is finite.  There is something permanent about death – but infinity has no end by definition.  I would not like to explore the difference.

It is certain that each of us must die.  But it is a miracle of chance that any of us was ever born.  And it is an even greater miracle that I was ever born.  That could only have happened after millions of years of pure chance in the development of life and then human life.  I – and Mac and Norma before me – am just one product of this flirtation with immeasurable chance.  How and why Norma and Mac met and conceived me was beyond them and me.  Granted the accidental nature of my whole universe, I can hardly complain that my time must end.

………We are such stuff

As dreams are made on, and our little life

Is rounded with a sleep.

A Royal Commission

/ Geoffrey Gibson / Leave a comment

The note below, The Promised Land, was, I think, published before the tragedy at Bondi.  When the Royal Commission was set up, some had misgivings.  Where would the appointed civil servants be able to draw the line? 

Of late, that problem has flared up.  Protagonists on opposing sides have sought to use the Commission to score political points.  It is not right that an inquiry into a national tragedy, that is mired in ancient international conflicts and blood feuds, should become a petty party-political spat.  This polity of ours deserves better. 

I gather that Josh Frydenberg is agitating on behalf of his political party, while also representing those with an acknowledged interest in the working of the Commission.  He must know that the interests of those two groups are different.  He is therefore in a position of a conflict of interest.  In my view, he is very wrong to act in this way.  He should know better.

And I see that those who set up the Commission foresaw this kind of problem.  The Letters Patent requires the Commission to ‘ensure the inquiry is conducted in a professional, impartial, respectful and courteous manner, including appropriately managing any actual or perceived conflicts of interest.’ 

That ordinance might show an abundance of caution, but it is more than enough for the Commission to tell Mr Frydenberg to get on his bike.

And that goes for his canaries and the usual suspects in the press.  For a price, they give new meaning to the word drivel – or, if you prefer, bullshit.  This is then another sordid instance of the death throes this mob have been undergoing for a generation.  Yet it comes while some among us are suffering real pain for events beyond their control or responsibility.  The malcontents should be ashamed of themselves.  When you are a loser, it is better to go quietly.

The Promised Land

Whether the promisor is Almighty God, or His Majesty King George III, promising land to a select few is at best problematic if other people are in settled occupation and enjoyment of the land.  Where do they go now?

But it gets worse when God and ethnic distinctions are involved.  Where one group sees its members as different to those of another, they rarely think they come out of it as the worse off.

So much is clear from the history of Canaan, Australia, and Palestine. 

Since the discussion of any of these is fraught in Australia just now, I will pass over it in silence, and leave it to others.

The following texts command varying assent depending on where in the world the reader is standing.

But of the cities of these peoples which the Lord your God gives you as an inheritance, you shall let nothing that breathes remain alive.  But you shall utterly destroy them: the Hittite and the Amorite and the Canaanite and the Perizzite and the Hivite and the Jebusite, just as the Lord your God has commanded you, lest they teach you to do according to all their abominations which they have done for their gods, and you sin against the Lord your God. 

Deuteronomy 20:16-18

And when Joshua and all Israel saw that the ambush had taken the city, and that the smoke of the city ascended, then they turned again, and slew the men of Ai.

And when Joshua and all Israel saw that the ambush had taken the city, and that the smoke of the city ascended, then they turned again, and slew the men of Ai.

And the other issued out of the city against them; so they were in the midst of Israel, some on this side, and some on that side: and they smote them, so that they let none of them remain or escape.

And the king of Ai they took alive, and brought him to Joshua.

And it came to pass, when Israel had made an end of slaying all the inhabitants of Ai in the field, in the wilderness wherein they chased them, and when they were all fallen on the edge of the sword, until they were consumed, that all the Israelites returned unto Ai, and smote it with the edge of the sword.

And so it was, that all that fell that day, both of men and women, were twelve thousand, even all the men of Ai.

And Joshua burnt Ai, and made it an heap for ever, even a desolation unto this day.

For Joshua drew not his hand back, wherewith he stretched out the spear, until he had utterly destroyed all the inhabitants of Ai.

Only the cattle and the spoil of that city Israel took for a prey unto themselves, according unto the word of the Lord which he commanded Joshua.

And Joshua burnt Ai, and made it an heap for ever, even a desolation unto this day.

Joshua 8:24-30

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and, as it were, the national God of Israel; and with the most jealous care separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

Gibbon, Decline and Fall of the Roman Empire

Fight against those who have been given the Scripture and believe not in Allah nor the Last Day, and forbid that which Allah hath forbidden by his messenger, and follow not the religion of truth, until they pay the tribute readily, being brought low.

And the Jews say: Ezra is the son of Allah.  And the Christians say: their Messiah is the son of Allah.  That is their saying with their mouths.  They imitate the sayings of whose who disbelieve of old.  Allah himself fighteth against them.  How perverse are they?

They have as lords beside Allah their rabbis and their monks and the Messiah son of Mary, when they were forbidden to worship only one god.

Koran, Surah IX: 29 -31

Long before the rise of Babylon and Athens, the early Australians had impressive achievements.  They were the only people in the world’s history to sail across the seas and to discover an inhabitable continent.  They bred a brave procession of coastal and inland explorers; they were brown Columbuses, Major Mitchells, and even Dr Livingstones, I presume.  The aboriginals who occupied Australia also found, over a long stretch of time, many edible plants, valuable mines which they worked, new medicines and drugs, manufacturing techniques, and a miscellany of resources ranging from the raw materials of their cosmetics to the hidden pools of water in deserts.  They succeeded in adapting their ways of life to harsh as well as kind environments; and several large regions of Australia supported more people in ancient times than they have supported in recent times….

Europeans were now about to enter Australia.  The contrast between the ways of life of the British Isles and the Aborigines was almost the most dramatic contrast in the world.  The British brought so many ideas and goods which Aborigines could not begin to imagine.  They brought all the results of the 10,000-year-old neolithic revolution and they also brought the first results of the new industrial and scientific revolutions.  They brought sheep and shears, horses and harnesses, cattle and pigs, and a variety of dogs and cats.  They brought fruit trees, and tropical and temperate vegetables unknown to Aborigines.  They brought fences and carts and large permanent houses and ocean-going ships.  They brought an ability to distil spirits, brew beer, and make wine, hazardous activities in a continent where alcohol was virtually unknown.  They brought skills in weaving wool, in making linen and leather.  They brought the art of writing and printing, of keeping accounts, of hoarding information in books and food in barrels, kegs and sacks.  They brought thousands of laws, all devised more than 20,000 kilometres away.  They brought firearms, not of high accuracy, but demoralising when first seen and felt……Here was an utter contrast in peoples, for they spoke very different languages, had very different histories, religions, and contrasting attitudes to property plants and livestock.  In their use of the land and technology they were ages apart: in short, even with goodwill on both sides they were incompatible.

Geoffrey Blainey, The Triumph of the Nomad

The basic elements of the Imperial Problem during the American Revolution must be sought not so much in conscious opinions and professed views bearing directly on it, as in the very structure and life of the Empire; and in doing that, the words of Danton should be remembered – on ne fait pas le procès aux revolutions.  Those who are out to apportion guilt in history have to keep to views and opinions, judge the collisions of planets by the rules of road traffic, make history into something like a column of motoring accidents, and discuss it in the atmosphere of a police court.

Sir Lewis Namier, England in the Age of the American Revolution

The God has not been invented who could even dream that any of such issues can be solved by mortals, and many would be happy if we had never invented any God at all.

PS

In another note, written many years ago, I said this after the references to the Koran.

A painful doom awaits those Jews and Christians, or at least some of them. Both Jewish rabbis and Christian monks are accused of devouring the wealth of mankind and hoarding. They are given tidings ‘of a painful doom’. They are to ‘be heated in the fire of hell, and their foreheads and their flanks shall be branded’. Elsewhere the injunction is expressed simply as ‘slay the idolaters wherever ye find them, and take them (captive) and besiege them, and prepare for them each ambush.’

But to return to here and now, it may be that murder is the only crime that is worse than driving people off their land.  The person guilty of the first murder, we are told, was punished by being driven off his land.  We know all about that here in Australia.  The most real attempt to atone for that wrong was thwarted by crude political manoeuvres of the party of Mr Frydenberg and its press sponsors and drivers.  And the former member for Kooyong now wants to present himself as the champion of the oppressed.  The word is chutzpah.

New Books Extracts

/ Geoffrey Gibson / Leave a comment

The War against Humanity

Some apply the term liberalism  to this bundle of values. The Americans spoke of inalienable rights to ‘life, liberty, and the pursuit of happiness’. Others might prefer the more emphatic statement of the Germans at the start of their Constitution.  ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’

When we speak of the kind of community that we want to live in here in Australia, we tend to mention notions like a belief in human worth or dignity, universal rights, the prospect of each of us being able to flourish, the government needing our consent to act against us, and a subscription to the notion of the rule of law that gives us reasonable prospects of protecting those rights.

The English philosopher John Locke went mostly unread outside universities in England, but he had great influence in the revolutions in America and France. He said that those in government hold power on trust for the people, and that the people would judge whether their trust has been respected.

You can source the emphasis on respecting the worth or dignity of each of us in either the teaching of the Jewish or Christian faiths, or in their secular statement by people in that phase of European history known as the Enlightenment.

Immanuel Kant was the most famous thinker (or philosopher) of the Enlightenment. Kant said dignity (or worth) was part of our humanity.

In the kingdom of ends, everything has a price or a dignity. … Skill and diligence in work have a market price; wit, lively imagination and humour have a fancy price; on the other hand, fidelity in promises and benevolence from basic principles (not from instinct) have an inner worth… Hence morality, and humanity, insofar as it is capable of morality, is that which alone has dignity.

You might be uneasy at the seeming loftiness of some of this, but we are not talking about the dignity of the mayoral robes of office or of the imposing personage at the head of the long table in the BHP boardroom.

No, we speak of dignity in the sense of intrinsic worth – a word Kant invoked in discussing this ‘principle of humanity’. The first meaning of dignity in the Oxford English Dictionary is ‘the quality of being worthy…worth…desert’. We speak of that worth being intrinsic because we see it as deriving from the fact that we are human – and nothing more.

Perhaps we don’t give enough attention to the fact that we are humans, not animals. To take just one example – mature reflection on the fact that we should not behave like animals would lead to an immediate improvement in behaviour in question time in federal parliament.

But in one way, ‘dignity’ may be a little like an elephant. We may have trouble defining it, but we know one when we see one. And we certainly know it when we see the flat opposite – as we do in, say, in governance in Russia or China or Iran. Very few of us could live comfortably in any such regime. It would be a nightmare for many reasons, but at base because they show no respect for you or me – respect that we are owed just because we are human.

Indeed, you can find respectable authority that, under Roman law, ‘any affront to the dignity of the individual was actionable’. Our common law never got close to that position, but the Americans are committed to the proposition that ‘all men are created equal’ – as Lincoln observed at Gettysburg.

There is another way in which we recognise dignity. If we think that a person treats us with respect, we tend to respond in kind. And the opposite applies – if they don’t act as if we are worth their time or respect, we give it straight back to them. You see it on TV with those hard-nosed hit-merchants who do not bother to hide the leer, jeer or sneer when confronting their adversary – someone from the ‘other side’ – like a Democrat brave or mad enough to go on Fox News. And so, confrontation promotes confrontation, and our public life continues its descent in a way that is beyond mere gorillas.

But there is more to our basic notions of communal life than notions of dignity or worth. Together with the sentiments that some address as liberalism, there is something else that matters to us here in Australia and those nations that we respect – except for the United States. We may have a sense of compassion for those not doing so well – like the sick, the aged, or the unemployed – but we go further and recognise that it is a function of government to look after such people. We think that they deserve more than just our sympathy, and that they need and that they should get help from us through our government.

The English had accepted that view about the responsibility of government for looking after the poor from at least the time of Queen Elizabeth I (1533-1603). That was a long time ago, but it never took hold in the New World over the water. That nation was founded by stern Puritans who saw both success and failure as coming from God. The Puritans were gladly ushered out of England, but they had the numbers in America. What is sometimes called the Welfare State is an essential part of our governance. It is in practice irremovable here. That has never been so in the U S.

It is worth pausing on this huge chasm between us and America. In the sixteenth century, before white people had even seen America, the English people had assumed obligations for their poor that would have been abhorrent to their Puritans back then, and which still look at best alien to Americans today. By 1563, the English had made a law for the compulsory levy for the maintenance of ‘impotent, aged and needy persons’. The Oxford History of England records that the English accepted that the poor were ‘a charge on public benevolence’ and that ‘responsibility in the matter could not be left to the conscience of the individual, but must be enforced by law upon everyone’. The distance from this very old English position to that in America now is as deep as the Atlantic.

The concern for welfare found one of its earlier and clearest statements when two future prime ministers of England presented what would be called the People’s Budget in 1908. In June of that year, Lloyd George, the son of a Welsh cobbler, introduced a bill for an old age pension to the House of Commons. In doing so, he stated the premise of what came to be called New Liberalism.

These problems of the sick, the infirm, of the men who cannot find a means of earning a livelihood … are problems with which it is the business of the State to deal. They are problems which the State has neglected for too long. (Emphasis added.)

Lloyd George was joined in what became a bitter and nation-defining campaign by Winston Churchill. Both were members of the Liberal Party, although Churchill had been a member of and would return to the Conservative Party. They were at least in part following the example of Bismarck in Germany – a Prussian Junker who has never been hailed as ‘liberal’ or ‘progressive’. But those statements would be seen as heresy today by many if not most in government in the USA. The poor are part of ‘the business of the State’? Tell that to the Trump family and the MAGA crowd.

So, we are not talking about values held universally. And that history also shows how inept if not useless today are terms like ‘socialism,’ ‘left’ or ‘right’, ‘liberal’ or ‘conservative’.

The Pursuit of Happiness

What is a profession?

In a tax case that I heard at the Victorian AAT a long time ago, I referred to the Oxford dictionary of a profession – ‘a vocation in which a professional knowledge of some department of learning is used in its application to the affairs of others, or in the practice of an art founded upon it.’  That seems about right, and I was happy to find that nurses come well within the term, a proposition that I embrace every time I receive their attention. 

I will only refer to my profession, although I think it has a lot in common with medicine.  Other areas may now be fraught, and the old standing of both law and medicine as an independent profession has altered fundamentally in my lifetime as government has taken over to a large extent the regulation of each.

It is as well to recall that we are speaking about human beings.  By definition, they are fallible, and the punters will draw their shares of idiots and ratbags.  The public think we charge too much, and often they are right.  But within the time of about one generation, professional earnings have been dwarfed by the telephone numbers handed out to the leaders of business – as often as not to people with little skin in the game, a scanty tertiary education, and minimal risk. 

Oddly enough, that imbalance may serve to reinforce the old professional values.  Or it may propel us to the dustbin of greed.  The great American judge and jurist Oliver Wendell Holmes, who had stopped three bullets during the Civil war, posed this question: ‘How can the laborious study of a dry and technical system, the greedy watch for clients and practice of shopkeeper’s arts, the mannerless conflicts over often sordid interests, make out a life?’

Let us look at the main ingredients of a profession. 

Calling

The word ‘vocation’ is not so often invoked now.  And the quota systems for law and medicine at our universities now obscure the issue.  At least in law, many appear now to take the course not to practise law, but to put it in their C V for politics or merchant banking.  And when you look at the major accounting and advisory firms, it is difficult to see ‘calling’ having much play – except for the trolls responding to the siren call of the dollar.

But I know of very few lawyers who appear to have been motivated solely by the prospect of high earnings – and I know of no decent or successful lawyer in that category. 

I would be surprised if the position were different in medicine.  It would I think be very difficult to succeed in either if you did not feel a real pull to get down to it, and feel the richness of some expertise in a worthy endeavour that has its own cherished hierarchy and history.  It’s not like going into a monastery, or even the Freemasons, but there is a lot more to it than Avon calling, or signing up with Twiggy Forrest or Rupert Murdoch.

Learning

In the two major professions, you are usually looking at a minimum of five years at university – followed by training on the job.  The universities leave it to others to take off the nappies.  That can be messy, and disappointing – at either end – but I enjoyed it – with six readers at the Bar and countless articled clerks.  I now enjoy a luncheon coterie with judges and King’s Counsel that serve as juristic god-children – and faithful friends and supporters.  I still enjoy mentoring students, just as I enjoyed introducing wide eyed graduates to the facts of life in or out of the forensic gutter.

You only get where you want to go by experience.  That is the way of the common law (the case law developed by the judges by applying the doctrine of precedent).  The countries that follow Roman law and the codes tend to embrace the rational rather than the empirical approach.  We favoured trial by jury in the adversarial mode.  The Europeans favoured the inquisitorial mode before a judge alone. 

Our drift in that direction unsettles old-timers like me.  Too few people see the vast difference in cast of thought between England and Europe.   The Roman law derived from codes and codification is its preferred mode of growth.  Roman lawyers look for formal elegance.  The Code Napoléon is a good example.  The common law eschews theory, grand designs, and codification.  It arrived, as if by accident, over a period of time – the product of trial and error in applying the doctrine of precedent to events that unguided chance throws up. 

One is the rationalist view of the world.  The other is the empirical.  Ultimately that philosophical divide is reflected in the logical divide between deductive and inductive reasoning.  From our point of view – that of the common law – there is a lot of truth in the well-known statement of Oliver Wendell Holmes that the ‘life of the law has not been logic, but experience.’  Jonathan Bate in The Genius of Shakespeare sawa similar divide in literature.  ‘The Shakespearian temperament was seen to match the English temperament: empirical, sceptical, unsystematic, ironic.’  That is spot on.

We speak of art and craft rather than science.  We will leave it to AI to reduce us all to algorithms.  We don’t trust high theory – or intellectuals.  We have too much respect for what Kant called ‘the crooked timber of humanity.’  The result is that we only learn from practice.  Judi Dench spoke of a drama teacher who told her students that she could not teach them how to act, but that she could teach them how to learn to act.

In one episode of The Human Universe, Bryan Cox showed a Japanese sword-maker at work.  His family has been doing it for centuries.  It takes months for one sword to emerge in this age-old process.  In one episode, the maker appears to shake as he holds the blade to the fire.  He is, we are told, infusing the blade with his soul.  That is called alchemy. 

When I heard old jurists like Justice Cardozo talk about alchemy in the law, I used to dismiss it as romance.  I don’t now.  I saw it one day forty years ago when Neil McPhee, QC cross-examined a witness in a way that escaped both the witness and his counsel.  They were dead meat served bland.  You can’t teach cross-examination – let alone finesse like that.  I sat there mesmerised.

And that is why hot-shots who come in just to make money usually come a gutser – very publicly.

The Adversarial Trial

Controlling the hearing

While a great amount of court time is spent on directions for steps to be taken before the hearing, not much time is spent at the hearing in controlling and expediting the process.  The trouble is that nearly every direction that a court gives before the hearing requires a party to do something, and that means that the lawyers have to work, and that means that the bill keeps going up.  But we rarely see the court giving directions that are designed to reduce the bill. 

Most lawyers work on a meter – on an hourly or daily rate.  The more hours or days they spend on a job, the more they get paid.  It is not in their financial interests to do their work so as to reduce as far as possible the time that they spend on the job.  Two or more generations ago, this was done not by paying them for time spent but by paying them a lump sum.  They were not paid to read the brief or to prepare for the hearing – they got a fee for the whole brief to appear.  It was called a brief fee, and if, say, that was enough to cover a couple of days in court, counsel would not be minded to take much longer.  You could rely on them for that.

The courts therefore have an interest in controlling the time that counsel take to conduct the trial.  They have more than an interest in doing so, because their main job is to provide a fair hearing, and they do not do that if they allow the hearing to get of hand so that one or both parties cannot afford to go on.  Indeed, it is sometimes hard to avoid the conclusion that some judges just sit there blandly in the God-given hope that eventually the combatants will run out of steam and surrender – at which point the judge most graciously congratulates them on their wisdom.  And delay usually hurts the weak more than the strong.

It was perhaps inevitable that parliaments would relieve tribunals from being obliged to follow the rules of evidence, because undue technicality could frustrate their doing their jobs, and because not many understand the rules.  But most of the law of evidence just applies logic or common sense or basic notions of fairness.  Unless you apply some notion of relevance, you may never finish.  If one side is going to say that a witness for the other side is mistaken or lying on a point, that should be put to that witness while they are in the box so that they can deal with it.  If one party can call a witness about what happened, but does not, they are open to the comment that the inference is that the witness would not help them.  These are all matters of common sense that any tribunal should apply.

And if it has any sense, it should apply the rule that says that if an answer is given to a question that is not related to a fact in issue but merely goes to credit, then that answer is final.  The other party cannot call evidence to contradict it.  Otherwise, you are exposed to an infinite regress.  The failure to observe this rule is one reason why cross-examination takes so long.  Another reason is the delusion held by so many at the bar that cross-examination is a no-fly zone for the laws of evidence.  There is a general miasma about this which I think has contributed greatly to the length of hearings.

Not many people now can cross-examine.  They don’t get enough practice.  Rather, they get together a large pile of documents, which it has cost the parties a fortune to assemble, and let the witness know that he or she is going to be invited on a long and painful journey.  Tabbed court books of documents and computer files have contributed to this deterioration.  So far as I know, it is still the law that if you call on the other side to produce a document, you can be compelled to tender it.  In our paper-crazed condition, that law is barely heard of now or even remembered.

So, one way to control the hearing is by applying rules of logic and sense.  Another way is by fixing time limits.  If we got through, say, half a dozen witnesses between 10 am and 11.45, I could apportion the time remaining until lunch between counsel for their addresses.  They might want to go on after 1 pm, but gastric juices then play their part.  Nor did I hesitate to tell counsel that cross-examination was too long, going nowhere, or just plain unhelpful.  ‘How will this questioning assist this process?’ 

I do not know how judges can just sit there while cross-examination goes on for hours or days in an apparent attempt to revive trial by ordeal.  If counsel have not scored a real hit in an hour, it is time to intervene.  It is your job to provide a fair and sensible trial: to put people out of pain, not to extend it.

Judges are properly wary of quotes for time given by barristers – especially if their chance of getting a start improves with a low quote.  For your own purposes, you might double the quote.  For their purposes, you might halve it. 

I chaired a public inquiry in a very sensitive and much publicised matter.  I had four lay people around me who had full-time jobs and little time to spare.  (One was the late Ron Casey of Channel 7 and World of Sport.)  Senior counsel for both sides gave a considered estimate of four months for a hearing to start much further down the track.  We told them we would start shortly, and that they could have four days – and we held them to it. 

Sometimes you have to put your foot down.  No organ of government has unlimited means, and every organ of government bears some responsibility for dealing with its cost.  The great Lord Mansfield recognised that lawyers are the main cause of delay – together with litigants without merit.

Before leaving the discussion of the hearing, I might mention another issue that may affect the nature and the length of the hearing.  You would think that the questions was he negligent or was he honest would attract the same kind of inquiry as the questions was he in a position of confidence or did he act unconscionably?  But because of our history of common law and equity, that may not be so. 

Sarah Jenyns, who was born in 1865, ‘conducted a matriarchal business in corsets and surgical appliances.’  The business was hugely successful and involved her seven children.  In 1946, she transferred the business to a company, but she did not ensure that each child took shares, ‘and thereby [she] planted the seeds to this litigation’. 

A subsequent transfer to one son was attacked.  He was said to have been in a position of confidence when she was vulnerable.  The trial in Queensland had to be before a jury and it ran for 28 days.  The evidence revealed that Mrs Jenyns had her foibles – she could have walked straight out of a novel by Patrick White.  She claimed to be in touch with the Almighty; she fell into periods of silence when she would only communicate in paper; and she had developed a taste for rum, whisky, and opiates.  She was a living land-mine for litigation.  As the joint judgment of the High Court (Dixon, CJ, and McTiernan, and Kitto, JJ) said:

There were conflicts of expert and other evidence characteristic of such issues, but doubtless the root cause of this controversy lay in the unusual nature of Mrs. Jenyns’ personality and the complex and inconsistent psychological elements forming it.  In a woman of proved business capacity, and considerable practical experience, possessing a peculiar understanding of her specialized trade and its profitable exercise, never separating her business and family life and always striving to dominate in both, and yet long accustomed to profess that her actions were guided by direct communications from a divine source, lacking all sense of the incongruous in the purposes for which she vouched heaven as her authority, temperamental in many of her attitudes and judgments, uninhibited either by a sense of humour or a fear of ridicule, it must have been difficult as she advanced in age to distinguish in her what was merely temperamental or perhaps histrionic from what was irrational, and difficult to judge whether her less rational expressions and ideas had any bearing on her business instinct and understanding and how far family predilections competed in her judgment with practical considerations affecting her own business advantage.  One curious feature of the case is that at the trial Mrs. Jenyns was still living and might have been called as a witness.

The Queensland Supreme Court set aside the transfer of shares that was attacked.  The High Court allowed the appeal on the merits.  The High Court commented on the obvious difficulty in running a case like this before a jury, and in in the kind of language that we associate with that Court, it said:

The jurisdiction of a court of equity to set aside a gift or other disposition of property as, actually or presumptively, resulting from undue influence, abuse of confidence or other circumstances affecting the conscience of the donee is governed by principles the application of which calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the donor.  Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. 

Their honours referred to the remarks of an English equity judge made not long after the Battle of Waterloo: ‘A court of law works its way to short issues, and confines its views to them.  A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case.’

For better or for worse, that difference in the trial process may still be with us every day – even in humble statutory tribunals. 

The other worrying thing about this case is that apart from allowing the appeal on the merits, the High Court held that the whole action was outside the powers of the statutory officer who sued, and that the action should have been dismissed on this ground alone.  It looks like the point was not noticed until the parties got to the High Court.  The conversations between the parties and their lawyers might then have become a little strained.

Three New Books

/ Geoffrey Gibson / 1 Comment

Each of the six books I have published commercially was put out by one of a quartet of commercial publishers.  One was Australian Scholarly Publishing.  It is now preparing the three books referred to below. 

At my age, longevity is not on the menu, and I will be limited in my contribution to the process.  Feel free therefore to spread the news. 

I set out below the blurb and Foreword for the three books and I will publish extracts later.

The War against Humanity

The Decline of Courtesy and the Fall of Dignity in Government and Business

Blurb

Are you afraid?  Do you trust government or business?  Do you ever get to speak to a sensible person?  Some corporates pay their chiefs fifty times those left under them – the fewer, the better.  An essential arm of government, the professional civil service, died two generations ago.  We are the playthings of robots and inured to discourtesy and inhumanity.  Inequality brings inequity.  1984 came generations before the AI fission that now threatens us.  Quo vadis?

Foreword (Extract)

The principle of humanity

In 2018, a Boeing aircraft for no apparent reason plunged to the earth killing all on board. Less than a year later, another Boeing of the same model suffered the same fate. More than three hundred people died in these crashes. In each case, the fault was found to be a failure in the computerised mechanisms that resulted in the pilot’s not being [BS1] able to override the robot driving or flying the plane. Boeing struck a deal with regulators and was then prosecuted for fraud for reneging on it. So, with the guidance of Groucho Marx, they struck another deal.

These frightful tragedies made headline news all around the world. And yet all of us in our everyday life continually suffer every day because people we deal with hide behind, and cannot or will not override, robots. Our very humanity is being challenged and undermined in almost everything we do.

We are in truth facing a war against humanity – and the hideous revenge of the robots.

We that were once young chatter about a movie that was made shortly before we babyboomers arrived, and which we have seen so often – Casablanca. What is the secret of its aura or alchemy? And what is it about so many of those on the screen that continues to enchant us – to put us under their spell – again and again?

It is clear enough with Ingrid Bergman, and her provoking veneer of propriety – the hats are just a bonus. But plain Humphrey Bogart? Just what is it that sets him so far apart – and so much higher than the rest?

Well, he is not afraid to show us when he is hurt. You have to see it on the big screen to catch the look of white terror in his eyes when Ilsa walks back into his life at Rick’s in Morocco. This is very high theatre, indeed. It’s the kind of look the Commendatore could have extracted from Don Giovanni. 

And there is something else. Bogart looks like he takes the trouble to think. Perhaps that’s what gets us in. He thinks. And he feels. The great man is, after all, human – just like the rest of us. The tough guy is in fact vulnerable. And the woman is downright sexy as well as being sublimely beautiful. If there were any robots in Casablanca, they came in Nazi uniforms, or from the usual suspects.

The Adversarial Trial

Gone with the Wind

Blurb

At common law, juries decided issues of fact and the stronger case won.  Under the inquisitorial mode, a dossier is compiled, and the judge inquires into a kind of truth in a massive judgment.  The result resembles a sandpit for the rich and infamous.   A veteran lawyer looks at the lack of courage in the profession to accept responsibility.  This book is not just for lawyers, but Justice Nettle says it should be essential for those aspiring to the Bar.

Foreword

This book is about how to practise law in litigation.

The five papers in this book come from different phases in a lifetime spent in the practice of our law.  That time now spans more than half a century.  I spent it as a barrister or solicitor – I have never been too fussy about the distinction – with more than thirty years presiding over statutory tribunals on a sessional basis.  My professional life was seasoned with many enlivening sojourns at the universities of Cambridge, Harvard and Oxford. 

For the last twenty-five years or so, my focus has been on analysis and writing about the law or related issues in its history, literature, and philosophy.  I have done so in far too many papers and books (of an embarrassingly large number).  This used to be called jurisprudence, but the time of the jurist has passed.

I have therefore seen the practice of the law from many angles – including a time in 1985 drawing a bill for an act of the Victorian Parliament to regulate lawyers’ fees (which the lawyers persuaded John Cain to drop before I got run out of town).

There is a theme common to the five papers.  It is the failure of our profession to deliver fair and timely justice.  This comes from a lack of experience and a failure of nerve.  As a result, it would be tart to say that our sovereign is in breach of his obligation not to sell, or to delay or deny justice – tart, but not unfair or wrong.  And Magna Carta is still part of our law – what might be called a ‘sovereign’ law.

The citation from the end of King Lear gives the reader what auctioneers call ‘Fair Warning’ that you are entering the zone of a Grumpy Old Man – and I know what fate awaited that Grumpy Old Man.  (It was only partly foreseen in Hamlet.)

But I do think that we as a profession have been far too lax, at least in the civil cases discussed here, in dealing with symptoms of a very obvious decline in the way that we discharge our professional obligations to the people whom we have the honour to serve.

Trial by jury in civil actions has all but gone from our common law in my lifetime, as we have veered toward the Roman or European model of inquisitorial dossier – or docket.

And a prime reason for the decline in the practice of our law is our failure to teach and learn the history of that law – which is just history in a phase of momentary arrest.

Another reason is the failure to apply the basic laws of evidence – that embody logic, fairness, and common sense.  No-one should be appointed to hear and determine legal issues until these rules are second nature.

I apologise for the repetition in these papers.  My bad form on these subjects is contained in the previously published papers referred to near the end of the Notes to this book.  In addition, I think the Victorian Bar News published a censored version of the paper on The Law of Evidence – as I recall it, a gaggle of editors thought I was insufficiently respectful of the Bench.

In my view, my generation has badly let down those following us.  I fear for my grandchildren and children even.  I don’t think we have done as much for them as our parents did for us.

The Pursuit of Happiness

Staying Afloat in a Profession

Blurb

Not many go to God wishing they had spent more time at the office.  A seasoned professional looks at how to build a platform for life around a profession.  The curse of technology allows us now cheaply to furnish our spirits with the fruits of civilization – literature, music, the drama and communion of sport, art, the cellar, the kitchen, the bush, and the world.  Sense and sensibility.  If you’re just there for the money, you’ll go mad.

Preface

The great German historian Theodore Mommsen richly enjoyed life both inside and outside the academy.  He wrote prolifically, but that did not stop him siring sixteen children.  He is one of those scholars who had done all the hard work at the bottom – so that when he pauses to make a large observation, we listen to him.  He knew what it was to get fulfilment in large if not equal measure at both home and at work. 

In his magisterial History of Rome (which brought him a Nobel Prize), Mommsen said:

When man no longer finds enjoyment in work, and works merely in order to attain enjoyment as quickly as possible, it is a mere accident that he does not become a criminal.

If you work mainly for the tax man or the bank manager, you will learn the sad truth memorably stated by an English philosopher that the life of man may be ‘solitary, poor, nasty, brutish, and short’.

Publishing a book on your personal philosophy may not be a good move in Australia.  Nor would it do to publish one under the title of one chapter of this book – ‘What I believe’.

But I have been allowed to lead a full life both within my profession and outside it, and I want to try to pass on some of that good fortune.  It may help others struggling to maintain what is called ‘life balance’ if I set out what I see as the reasons that my luck still holds.

I have written the book for anyone trying to get where they want in a profession or business while becoming more fulfilled elsewhere, but the material may be of use or interest more generally.

After a discussion of what is entailed by membership of a profession (which draws heavily on a chapter in The Making of a Lawyer, Hardie Grant, 2008), there is a chapter on my underlying beliefs, and a chapter each on the furniture of the mind and life outside the profession.  The final two chapters illustrate underlying themes – something like what used to be called a ‘commonplace book.’

I am suspicious of business plans, and even more suspicious of ‘life projects’, but there is something to be said for taking time now and then to reflect on what it is all about.  We should in my view proceed on the footing that we only get one go at this, and the old saying was that you will not hear someone on their deathbed saying ‘I wish I had spent more time in the office.’

I have been fortunate.  The law is just history in a state of mild arrest.  It requires stabs at prediction after logical analysis and a sniff of the zeitgeist.  Then you try to find the point and express it.  Then there is the drama of the contest.  So, all the strands of my interests, training, and experience come together.  Shakespeare is a good example.  As is test cricket.  Or Gibbon.  Not many people are so lucky.  

More on egotism

/ Geoffrey Gibson / Leave a comment

When discussing egotism and Donald Trump, I referred to the writing of Pieter Geyl, a Dutch historian I greatly admire, in discussing the kind of person who does not show sympathy for any others.  Geyl wrote a book – in part while imprisoned by the Nazis – Napoleon: For and Against.  One thing about French historians is that you rarely wait more than a page or two before learning where they stand.When discussing egotism and Donald Trump, I referred to the writing of Pieter Geyl, a Dutch historian I greatly admire, in discussing the kind of person who does not show sympathy for any others.  Geyl wrote a book – in part while imprisoned by the Nazis – Napoleon: For and Against.  One thing about French historians is that you rarely wait more than a page or two before learning where they stand.

Michelet reveled in the ‘People’ and saw in Napoleon a ‘mere self-seeking adventurer, the betrayer of the Revolution, and of the peoples.’  For good measure, he accused Napoleon of cowardice.

Taine came from a radically different position.  He was no friend of ‘the people’.  This is was what Geyl says was Taine’s view of Napoleon.

The complete egoist is a solitary being, irretrievably cut off from his fellow men.  He is self-insulated against all spontaneous feelings of sympathy, admiration or pity…. So intense is his egoism that he is unable to conceive of any other driving force in other men.  This great realist is morally blind, and his scorn for men leads him into stupid blunders…. He surrounds himself with servants instead of collaborators.  If someone inclined to independence compromises himself in his service…. he rejoices at the greater hold over the man this will give him.  Napoleon demands the performance of turpitudes…. He can see men only as instruments.  He hounds on his ministers, his generals, his officials, even his puppet kings, his brothers, like a slave-driver.  His harsh commanding voice easily takes on the accents of brutality, even of a refined cruelty.  He wounds, he humiliates, he tries to break spirits.  The lot of those nearest to him was far from enviable.  Strict etiquette and a tone of eternal constraint prevailed at the court.  Everyone trembled before the master, who could not cease, even for a moment, to be a master.

That describes any degenerate Roman emperor; that moral train wreck called Donald Trump; and any man utterly unfit for any form of public trust.

Later Geyl gives the views of Mme de Rémusat, which are very similar to those of Mme de Staël. …. he was completely heartless, without any spontaneous human feeling, nothing but self-love and accomplishing all his works in a whirl of egoism and crafty calculation…. So conscious of these qualities in himself that he measured all others by the same standard, thus committing the greatest psychological errors.  He was quite unable to believe in disinterested charitable action.  If he was forced to admit their existence, he only despised the doer, doubly despised him, for he started with a low opinion of mankind in general….

There is, someone said, nothing new under the sun.

The ultimate question – in an early play

/ Geoffrey Gibson / Leave a comment

The other day, I got scolded, again, but fairly, for remarking that we humans are like Hottentots dancing around the rim of a live volcano.  It keeps coming back to me.  All history tells me that we humans can go back to the primal slime from which the apes came, and we can behave like savages.  King Lear looked at our condition when we go out of our minds and become like flies to wanton boys.  (You may recall that Titus, the hero in Titus Andronicus, goes wild when a fly is swatted.)  The madness that Carlyle saw in the hearts of men is, therefore, properly a matter for high art on the stage or screen.

My most recent reference to the Hottentots came in discussing the reference of the Dutch historian Pieter Geyl to the moral cowardice of those who refused to intervene in the savagery of the September massacres during the French revolution.  While discussing how moral cowardice is on show in the U S in the refusal of the senators and others to control Trump, my eye fell on a remark about Napoleon that Geyl attributed to Madame de Staël:

He is the complete egoist, for whom human sympathy does not exist, for whom men are despised tools, pieces on a chess board.

That sounds just right.  I know what she meant – and I recognise the type of person.  But when I looked for such a character in Shakespeare, the really bad guys – like Aaron, Richard III or Iago -did not seem to fit the bill. And, then, with some encouragement from our editor, I came to Saturninus, the feckless emperor of Rome in Titus Andronicus.

You may recall that the play opens with Saturnine making a spoiled-child plea for the purple.  The hero, Titus, returns from the wars against the Goths.  He orders a human sacrifice.  The victim is a son of the queen of the Goths, Tamora.  Then Titus refuses the purple and offers it to Saturnine who sets out to prove the villain.  After the failure, of Saturnine to secure the daughter of Titus, Lavinia, as a bride, Titus in a fit kills his own son, and Saturnine marries Tamora.  We meet the black monster of evil called Aaron, who will play around with Tamora – and we are set for a revenge play to beat all other revenge plays.  Sons of Tamora rape and mutilate the daughter, and meet their end being served up to their mother in a pie.  Then Titus snuffs out Lavinia, and there is more carnage in the end than with Hamlet or King Lear. 

Whatever else this play is about, therefore, it is not civilisation.  And if the hero in one of this writer’s tragedies has to have a fatal flaw, Titus is as flawed as you could get.

Saturnine is a man – well, someone – for whom human sympathy just does not exist.  He is like a cardboard cut-out who moans about the injustice that the world foists on him.  And he is a world class whiner.

Why, lords, what wrongs are these! Was ever seen

An emperor in Rome thus overborne,

Troubled, confronted thus, and for the extent

Of equal justice used in such contempt? (4.4.1-4)

The spoiled child rises to the highest office – and feels persecuted.  Trump would not have surprised this playwright.

The play is loaded with references to honor and to Rome.  The forest sees the savagery – the barbarous.  But what the play tells us is that the city of Rome is more savage and barbarous than any forest.  The whole play blows to smithereens the notion that ancient Rome was civilised.  Shakespeare was here doing to that myth what he would do to the myth of medieval chivalry in Falstaff and the mockery of ‘honor’.  (The turn of the Greeks comes in Troilus and Cressida in which the poster-boy hero Achilles is seen as a jerk.)

This point has not been sufficiently noticed. May I make three observations?

First, ancient Rome was built on slavery and a protection racket called empire.  Oxbridge may have been content to indulge in the myth when England ruled the waves and an empire, but not after it quit India at the behest of a half-naked fakir – and then got used to losing in cricket to the erstwhile colonies.

Secondly, ancient Rome, at least under the emperors, lacked the first requirement of a civilised nation.  You won’t find it discussed by Kenneth Clark in his great series on Civilization –but he was an art critic.  As our greatest jurist, Sir Owen Dixon, reminded us, ‘the rule of law’ was foreign to Roman Law.  (Elsewhere his Honour commented that ‘the supremacy of the law’ is an idea that we owe to the Middle Ages.)  The king is under the law because the law makes the king; all people are equal in the eyes of the law; and we cannot lose any rights except under the law.  We are to be ruled by laws, not people.  There you have the sine qua non of civilization – which you do not get in the David of Michelangelo.

There is not a whiff of it in Titus Andronicus. The contrary is the case.  Rome is a ‘wilderness of tigers’ and arbitrary caprice runs unchecked.  There is one horrifying example.  A ‘clown’ – a battler from the bush according to my Everyman edition – brings to the court a letter that Saturnine does not like.  The response?  ‘Go, take him away, and hang him presently.’  (4.4.44) All of Gibbon might be an essay on caprice.

There is a related issue.  Sir Ronald Syme in The Roman Revolution said that the constitution of the Roman republic was a ‘sham’.  Not a small claim from a distinguished historian (and a Kiwi).  The failure to have a mode of succession – on one occasion the Praetorian Guard put the purple up for auction – was an essential part of the decline and fall of the Roman empire.  This play begins with an example of the damage to the fabric of Roman society.

Gibbon said:

Such was the unhappy condition of the Roman emperors, that, whatever might be their conduct, their fate was commonly the same.  A life of pleasure or virtue, of severity or mildness, of indolence or glory, alike led to an untimely grave; and almost every reign is closed by the same disgusting repetition of treason and murder.

So much for civilization.  Gibbon said that the wonder was not that the empire fell, but that it had held on for as long as it did.  And he hoped that the world would never see its like again.  As might we all – because of the dreadful picture painted in this play.

Thirdly, ancient Rome was characterized by cruelty that we could not tolerate today. At the period of this play, the Romans had not been exposed to the Ten Commandments, much less the Sermon on the Mount, and their religion looks as dodgy as their constitution.   

Put to one side throwing Christians to the lions.  Open Tacitus or Gibbon at just about at any page and get ready to be revolted.

Here are comments on Tacitus from a book of mine about historians:

Eventually, Sejanus over-reaches and is murdered.  What Professor John Burrow describes as ‘the appalling ruthlessness of Roman political atrocity’ is pitifully depicted in the treatment of the son and daughter of Sejanus in one of the cruellest passages of Western history.

The general rage against Sejanus was now subsiding, appeased by the executions already carried out.  Yet retribution was now decreed against his remaining children.  They were taken to prison.  The boy understood what lay ahead of him.  But the girl uncomprehendingly repeated: ‘What have I done?  Where are you taking me?  I will not do it again!’  She could be punished with a beating, she said, like other children.  Contemporary writers report that because capital punishment of a virgin was unprecedented, she was violated by the executioner, with the noose beside her.  Then both were strangled, and their young bodies were thrown on to the Gemonian Steps. 

The Gemonian Steps were next to the prison.  They were called the Stair of Sighs.  After execution, dead prisoners were thrown on to these steps, and then dragged to the Tiber.  This is a soft translation – another has it that the daughter was violated by the executioner ‘with the rope on her neck.’  It is on any view an appalling moment in Western letters.

All these issues are canvassed in Titus Andronicus.  It is not therefore surprising that Tony Tanner concluded his Preface by saying that it touches on issues of great moment –

What does our Roman heritage – and we in the West are all inheritors of Rome – really comprise and stand for?  And – is it possible ever to delimit and demarcate the ‘barbarous’?

They are truly issues of great moment – and the Hottentots are my answer.

Someone said we go to great writers for the truth.  Titus Andronicus is for me a great play that exemplifies this insight.  It is not a work of history, but a work of art to be performed in the theatre.  I am reminded of the advice given to me by a tutor, Dr David Smith, at Cambridge, that I should read Carlyle’s The French Revolution not as history, but as a work of art, like an opera or epic poem. 

And because we are dealing with our greatest writer, we should not be pigeon holed.  There are whiffs of Greek tragedy and commedia dell’arte that look odd in Elizabethan theatre, but this play blazes with explosive insight and drama.

There is a lot of snootiness about Titus Andronicus.  Auden dismissed it out of hand.  Learned people in search of a genre refer to Seneca.  (When did you last see his work on the stage?)  This play brings to my mind Brecht, Ionesco, and Picasso.  Or Waiting for Godot.  Or De Chirico and Jeffrey Smart.

We don’t put Michelangelo or Mozart in a box – and it is worse than folly to try that on with Shakespeare.  It is therefore a relief to read Jonathan Bate -the play is ‘not a self-indulgent spectacle of barbarism, but a profound meditation on how human beings cope, or fail to cope, with extreme suffering’.  That sounds to me like a meditation on the place of human sympathy.

This play is very hard to put on.   But its exposition by Julie Taymor in the film Titus is the best performance of a play by Shakespeare, on stage or screen, that I have ever been privileged to see – by the length of the straight at Flemington.  If I have said anything useful here, it probably comes from my time with that movie.

Saturnine and Trump lack sympathy and mock our humanity.  These spoiled children are soulless – empty vessels.  They are takers not givers.  They have no time or space for friends or God.  (Manning Clark may have said that the hand of the potter faltered.) 

Shakespeare by his art painted the picture, and Julie Taymor by her art allowed us hope.  The rest, someone said, belongs to the madness that is art.

Moral Cowardice

/ Geoffrey Gibson / Leave a comment

The French people were convulsed by violence on 14 July 1789 and during the years following.  Perhaps the worst came in 1792 in what are called the September massacres.  Panic seized the people and they held mock trials to massacre hordes of people in the jails.  There was a display of mad violence and slaughter that would have amazed and terrified a Zulu or Hottentot.

In a book called Events in France 1789 to 1794, I said:

The fear of enemies, within and without, preyed on Hébert and Marat and others.  The sense that the patrie really was en dangère – which puts at risk the heads of those found on the wrong side – led to the ghastly eruptions known as the September Massacres.    ‘Let the blood of the traitors flow.  That is the only way to save the country’, croaked Marat.  People in prisons were seen to be enemies of the people, no matter what their crime had been.  The fear was that they would be liberated by any army that reached Paris.  At various prisons men broke in to slaughter the inmates.  From about a thousand to fifteen hundred people, mainly ordinary criminals, were killed. 

It was common to set up a cruel mockery of a hearing where the suspect could be examined while listening to his or her predecessor being slaughtered behind the door.  One survivor of the Abbaye recalled that they used to watch the butchery so as to try to learn how to die with the least pain when their turn came.  ‘Man after man is cut down; the sabres need sharpening; the killers refresh themselves from wine-jugs.  Onward and onward is the butchery; the loud yells wearying into base growls.  A sombre-faced, shifting multitude looks on; in dull approval; in dull approval or dull disapproval; in dull recognition that it is a Necessity.’

Danton, the Minister for Justice, does nothing to stop what might be called the first terror. What can we now say or do except to reflect: ‘Of such stuff are we all made; on such powder-mines of bottomless guilt and criminality – if God restrain not as is well said – does the purest of us walk’?

The September massacres of 1792 are not just a case of inmates of gaols being no worse than their gaolers, or what might happen when power is given to those who are least to be trusted with power. Nor is it just a case of venomous force of envy and the cruelty of the revenge of the dispossessed. Nor is it just a case of the danger of rule by the people – it is a case of the danger of rule by people.  The mainstay of the rule of law is that we are ruled by laws, not men and women. The September Massacres are the jurists’ final nightmare – lynch mobs licensed by a failed state.

I shall come back to the horror of the French nightmare, but here is a comment on the massacres by the great Dutch historian Professor Pieter Geyl, in a paper written in 1954 about the famous French historian, Jules Michelet.  (It is in Debates with Historians that I have referred to before – a book of great beauty and learning.)

The worst, however, was that the event had demonstrated the impotence of the Convention.  To me the way in which that assembly allowed itself to be tyrannized over by the Paris Commune (in which the lowest elements now had the upper hand, as Michelet admits) seems an undeniable proof of moral cowardice, dishonouring the revolution.

In my book referred to above, I said:

The events that occurred in France between 1789 and 1794 are commonly put under a heading or label of ‘the French Revolution’.  There was of course no such thing.  A lot happened in France during those years – and there is no agreement on the relevant span of years.  Some people stop applying the label in 1794; some when Napoleon became Emperor in 1804; some when Europe was finally rid of him in 1815.  There is no doubt that one form of government in France had been removed by violence – by definition, a revolution had occurred.  But if the process of revolution continues until a new form of government is installed that is as stable as the last, then you will get a whole range of answers.

That conclusion seems to me to be inevitable.  And you can say the same about the references to ‘the people’.  Whole libraries have been filled with arguments about what kind of person, or class of people, did what to whom in what is called the French Revolution.  It follows that a reference to what ‘the people’ did in ‘the Revolution’ will be at best sloppy.  To English philosophers in 1954, any such statement would be nonsensical.

But Michelet gloried in both.  While things were going well.  But when it comes to the September massacres, it is not ‘the people,’ but ‘three or four hundred drunks.’  Or those ratbags in England and Pitt’s gold.  ‘The French people and the Revolution were guiltless.’ 

That is a fair summation by Geyl, but you will see from his reference to ‘dishonouring the revolution’ that he is caught in the same snare.  How do you dishonour a process?  And while some celebrated the revolt, others, such as Marie Antoinette, did not.  Whose side would you be on?  And if history is written by the winners, who won?  Looked at, say, from the scene of the bloodbath at Waterloo in 1815 – or the succession of bloodbaths that disfigured France throughout the nineteenth century, and which led to disasters like Sedan and Dreyfus – and Pétain?

Michelet gloried in ‘the people’, but for Geyl, Michelet shows in his ‘sentimentality about the bloody maniacs of 1793/4, moved by the new revelation of eternal truths, but also by hatred and fear, something positively repulsive’.  Geyl then goes on to refer to ‘national self-conceit’ and the Jacobins ‘and the crushing self-confidence with which, no doubt against the large majority of the French people, they upheld the General Will.’ 

Then: ‘Can the use of that term the people in the interests of a minority dictatorship more patently betray itself for the juggling trick it is?’  He later refers to ‘necessity the tyrant’s plea’ and the statement of Michelet that France undertook for the rest of the world the war ‘which between 1792 and 1815 cost her ten millions of her children’.  Geyl coolly remarks that in saying that, Michelet ‘credits the account of France with the wars of Napoleon, in whom he saw a despot, but who is nevertheless supposed to have fought for the liberties of mankind.  Indeed, he cannot at any time mention Waterloo without the bitterest resentment.’

Here was the historian who, Geyl says, referred to the Church as ‘the wily seducer of the stupid crowd’.

I feel impelled to ask whether in order to enjoy ‘moral freedom’, one should not be on one’s guard against making a fetish of unity; ought not conceited chauvinism to be regarded as a snare; and taking a more general view, should not one disdain to spare one’s illusions the touch of rational criticism?

This is wonderful analysis and writing.  And it matters on at least three grounds.

First, we may look like Hottentots dancing around the rim of a live volcano that may at any time claim us.  Carlyle – I will not say how often I have read his account – saw all this.

One other thing, or rather two other things, we will still mention, and no more:  the blond perukes; the Tannery at Meudon.  Great talkers of these Perruques Blondes: O reader, they are made from the Heads of Guillotined Women; the locks of a Duchess, in this way, may come to cover the scalp of a cordwainer, her blonde German Frankism his black Gaelic poll, if it be bald.  Or they may be work affectionately, as relics, rendering one suspect?  Citizens use them, not without mockery; of a rather cannibal sort.  ….  Still deeper into one’s heart goes that Tannery at Meudon; … ‘There was a tannery of Human Skins; such of the Guillotine as seem worthy flaying: of which perfectly good wash-leather was made; for bleaches and other uses.  The skin of the men, he remarks, was superior in toughness (consistance) and quality of shamoy; that of the women was good for almost nothing, being so soft in texture …’  Alas, then, is man’s civilisation only a wrappage, through which the savage nature in him can still burst, infernal as ever?  Nature still makes him: and has an Infernal in her as well as a Celestial.

All that was beyond Michelet – and is now ignored by most of France.  Only the numbers would have surprised Carlyle, or Geyl, a sometime prisoner of the Nazis, about Auschwitz.

Secondly, the west is experiencing a pestilence of politicians claiming to speak for ‘the people’   The politest term for them is charlatan or mountebank, and one thing we do learn from history is that in the violence of a revolution, scum rises to the surface.

Thirdly, the moral outrage expressed by Geyl, especially at ‘moral cowardice’, is a reminder that we should call things for what they are – not least at the moral cowardice shown by those one-time pillars of the Washington community in failing to do their duty in curtailing a common criminal and sometime dictator who preposterously claims to stand for ‘the people’.

Why do they fail?  They are scared, and they are ‘tyrannised over’ by a false leader and his henchman.  Even Michelet asked if the Convention was ‘an assembly of cowards’. 

If Michelet could ask that of the French, the good people of the United States can ask it of themselves.

The weight of this sad time we must obey;
Speak what we feel, not what we ought to say.
The oldest hath borne most: we that are young
Shall never see so much, nor live so long.

Foxtel

/ Geoffrey Gibson / Leave a comment

Mayhem in the Philippines

This open letter comes from a twenty-year subscriber to Foxtel, an eighty-year-old lawyer, who is close to the exit.

I wish to give a subscription to someone close to me.  After a long and difficult discussion on the phone yesterday with the Philippines, I agreed that Foxtel would deliver a box to my friend, that they would confirm the new account by email to me, and that I would be charged one year’s subscription when the box was delivered. 

I got no email, but I got charged $1000. 

My friend got a Do Not Reply email from Australia Post saying a package from Foxtel was on the way.  She got nowhere on the phone with the Philippines.

We were both left in the wilderness.

I called the Philippines again today.  It was equally painful.  At first, they said that they had emailed my friend – but could not send me a copy – or confirm receipt from me of $1000.  After further wrangling, they agreed to email me.  I finally got an email – Do Not Reply, of course – acknowledging the payment – and welcoming me to Foxtel!  No mention of my friend. 

But it is a start.

Robots are debasing humanity, and their rich owners could not give a damn.

I have a disclaimer.  I am in the course of publishing a book: The War against Humanity, The Decline pf Courtesy and the Fall of Dignity in Government and Business.  Foxtel is already a prominent culprit.   See below.  This is just the latest insult.

Our governments are not acting on these failings, because they are guilty of similar misconduct.

We the people, and the law, need to combine to deal with these outrages.

These companies go out of their way to be unreachable – untouchable even.  They may not be smash hits in parts of India.  A box of Jaffas therefore to someone who can give me an email address at which I might reach a human – perhaps even in Oz. 

And I should say I have no issue with the Philippines.  They have produced some of the finest nurses to have treated me – nightmares for Pauline. 

When she gives up her present place, Pauline could be a real goer at Foxtel.

Foxtel extract in book.

Foxtel

This happened a few years ago.  It was a Friday evening – 5 pm.  Just in time for the BBC on the war in Ukraine.  Followed by some footy.  It had been a long and traumatic day.  The shift of the final pieces of furniture into the new flat. 

Moving is traumatic – like a divorce in reverse gear.  The TV cabinet was one of the last pieces to come in.  (I must hide the TV.  Looking at a blank screen is not good – for me or the décor.)  That meant reverting to the old small TV that could fit in the cabinet.  Eduardo and his mate from Colombia made the switch and linked up the TV to the Foxtel box. – and it worked.  Bravo Eduardo!  But on pouring a red and turning it on – no signal from Foxtel.

BUGGER. 

You don’t need that after a day of moving.  Why did it work before but not now?  Well, I had little option but to ring Foxtel.  God knows how much I fear and detest that process.  I had endured five weeks with only the BBC because I did not wish to ring Foxtel.  It ranks with Telstra for pure bastardry.  What prompted the six week lay-off was that after an abortive hour or so on the phone, I got on to someone by SMS.  Bonzer – you ring me on the blower and we will fix it in no time.  Sorry, mate – not allowed.  Oh, go on.  No. I simply cannot.  I am not allowed. 

What was implied but not express?  I need the work and I will lose it if I depart from the Foxtel script – even just to be sane and decent.  And in the name of God, don’t let anyone even dare to suggest that Foxtel employs me! 

This is the point.  Even if you ever get through to a human being, you are speaking to a unit of communication rigidly controlled by a robot.  The people are forbidden to use what minds they may have.  They have in truth been converted into robots.

So, I take a gulp of red and make the call.  Just after 5 pm.  The process would conclude in darkness at about 7.30 pm that night.  Bob – the names are fictitious – had that strained, artificial voice we are used to at call centers.  Brusque, syrupy, script reading trying to mask nervous ignorance and straight fear.  Stick to the script.  Deviation not allowed.  For example, Bob could not process the fact that the removalist who had made the connection was not a Fox technician.  And the fact that I was operating the TV manually without a remote – at that stage of the move – sounded prima facie suspicious.  That provoked about two consultations with management.  In God knows what parts of the planet at either end.

The darkness of night descends every time you wander out of the trouble-shoot program.  Bob puts me on hold from time to time to get help.  He does not get it.  After about thirty minutes, Bob accepts that the issue is beyond him.  I ask why the set worked before but not now.  Every time, the answer gets more convoluted.  Way above Bob’s pay level – or that of anyone within cooee of Bob or me. 

One time we stop so that Bob can ring me back.  That makes me very nervous, but he manages to bridge the gap safely.  We discuss getting a technician.  It was of course ludicrous to suggest that Foxtel might be able to do that over the weekend.  Which happens to be the time when people who follow sport – that is, most Australian subscribers to Foxtel – most want it.  But Bob has continuing trouble with the schedule for technician calls.  He will ring me back.  Again.

The second call was too much for Bob.  After half an hour, I decided that Bob must have fallen down a very big hole.  Back to the blower.  Thank God for the relief and sustenance of the red.  But Sue has to start again from scratch.  I just want to know when the technician will be here.  No – there is a process that must be followed.  We must exclude all other causal factors.  (Did Sue see herself as Hercule Poirot?  Or David Hume?  Or Jean-Paul Sartre?)  This is after the usual delays and recorded warnings and lies. 

So, I have to prove my identity.  Again.  The person to be called back has to prove he is not a mirage or a fraud – and he might be wobbly on the first by now.  Sue had trouble matching my email address.  I gathered this may have been what sent Bob clean off the rails.  By the end, Sue gathered from what I had said and from Bob’s notes that I just needed to be told when the technician would arrive.  After more than two hours all up, Sue could not tell me – except that she thought it would be Monday, and that I would get an email about it – followed by an SMS.

I did get an email.  It was of course ‘noreply’.  Your function is to be neither seen nor heard.  We robots are not quite perfect yet.

In fairness, I should say that when I actually got to deal with a human person on the service call, he was a model of sense, practicality and courtesy.  Mark might be the Platonic form of the handyman.  Mark hails from England – around Milton Keynes.  We discussed the bus trip from Cambridge to Oxford – by the time you get to Milton Keynes, you might be sea-sick from the roundabouts.  (Going to the loo is not a good idea for the boys on that bus.)

Top bloke, Mark – pity about the outfit for whom he was subbing.

Twelve days later the box started giving trouble again.  The following day, I settled on the sale of my house, and I was looking forward to a rest with Mozart’s Idomeneo followed by the footy on TV – Easter Eve with a 2010 Bordeaux.  The box was completely gone now.  Another evening and celebration ruined by Foxtel.  On the blower.  Fifty-eight minutes – say a half of football.  As it happened, Regina was understandable and appeared to know what she was doing.

But a day or two later, the box failed again, and I settled for a broken service for a while before taking my life into my hands and picking up the phone again.  Then the box got the staggers seriously.  Some nights I had to reboot; some nights, not.  Then I got a rude SMS saying the direct debit had not been good for the fee for the service call.  I might be penalized or disconnected.  There should have been no fee because the fault was not with Eduardo, but with the Foxtel box.  So, I try to log in to pay a fee obtained under false pretenses.  The robot refuses the Password.  I apply for a new one.  Even then they lie.  ‘We have sent you an email.’  No, you have not.  Still, the robot kindly informs you that you may try again! 

And then comes the insult to beat all insults.  The robot asks you to sit a little test – to prove that you are not a robot!  It’s like when you see your contact at the bank for the fourth time in a week, but before they actually do something, you have to produce your driver’s licence to prove your identity.

I tried by SMS.  That failed.  So, I went to talk directly to the robot on the phone.  Five minutes active typing.  Did my father’s father fight on the Western Front for this kind of humiliation of his descendants?

And so it goes, as Kurt Vonnegut said a propos the bombing of Dresden.  Truly, truly – George Orwell let us off lightly with Big Brother.

Now a month or two later, I made a written complaint and got a ‘No reply’ response.  So, I just endure having to reboot almost every time I turn the box on at night.  Then after another period in the waste land, I got a new box after talking to a very pleasant lady who sounded like she may have been auditioning for the role of Flower of Delight in the next production of Kim.  Then the problem recurred in the new box.

Is it possible to conceive of a business being run honestly and decently when it prevents its customers from talking to them?

And don’t these outfits, and those who run them, know or care about the rage we feel at the contempt that they show to us?  This is a bad product sold by a bad company that is an unattractive child of two unattractive companies.

Just look again at the statement of ‘Foxtel Values’ in the inscriptions at the start of the book.  As bullshit goes, this is transcendental.  And is it lawful for directors of a trading company to say that customers come first – ahead of the shareholders?

Corruption in the United States

/ Geoffrey Gibson / Leave a comment

The staggering corruption of government in the United States prompted me to look again at what Sir Lewis Namier, the great English historian said about corruption in England in the eighteenth century.  It was Namier who rewrote the history of that time by looking at how the whole machinery of government was run on what they called patronage and we call corruption.

Here are some citations from his writing.  What strikes me about the Trump family is how brazen they all are and how tamely acquiescent their victims are – and the people are the victims.  Namier was talking about bribery while Trump specialises in enrichment – but the same moral or ethical considerations apply.  And at least in Australia, I think the same legal consequences follow.

The proper attitude for right-minded Members was one of considered support to the Government in the due performance of its task…But if it was proper for the well-affected Member to co-operate with the Government, so long as his conscience permitted, attendance on the business of the nation was work worthy of its hire, and the unavoidable expenditure in securing a seat deserved sympathetic consideration.  …. Bribery, to be really effective, has to be widespread and open…

Trade was not despised in eighteenth-century England – it was acknowledged to be the great concern of the nation; and money was honoured, the mystic common denominator of all values, the universal repository of as yet undetermined possibilities…. A man’s status in English society has always depended primarily on his own consciousness; for the English are not a methodical or logical nation – they perceive and accept facts without anxiously inquiring into their reasons or meaning.  (England in the Age, etc., 2nd Ed, 1961); ‘…. Fox would probably have found it easier to account for his fears than for the money…

On Charles Townshend: He did not change or mellow; nor did he learn by experience; there was something ageless about him; never young, he remained immature to the end…Conscious superiority over other men freely flaunted, a capacity for seeing things from every angle displayed with vanity, and the absence of any deeper feelings of attachment left Townshend, as Chase Price put it, ‘entirely unhinged’.

I have put emphasis on the extent of the moral collapse.

The work of Namier generally led me to say.

The English aristocracy survived, almost alone in Europe.  They had been able to reach an accommodation with the Commons in shaping the English constitution, and they reached an accommodation with business and money in shaping British trade.  This triumph of the English aristocracy is unique in all Europe, and the failure of English historians to notice it, let alone celebrate it, is a sad reflection upon the provincialism and specialization of too much of English historical writing. 

Namier saw it plainly, but he was from out of town.  Maitland frequently stressed the need for a comparative outlook, and was deeply interested in German history.  French historians such as Marc Bloch and Georges Lefebvre laced their analyses of the history of France and Europe with comparisons with what was happening across the Channel, and their work was so much more illuminating as a result. 

But English historians do not often return that serve.  How often do you read in English history how the French law of derogation precluded the French lords from engaging in trade?  For example, under the heading La Noblesse et L’Argent, (The Nobility and Money), Georges Lefebvre remarked that ‘the French lords envied the English lords who became rich on mixing with the bourgeoisie and who, thanks to their Parliament, formed the ministry and government of the nation.’

The English lack of interest in Europe has borne fruit, and is currently celebrating a kind of mordant vindication, but the mind-set may also be at risk of being described as insular – definitively insular – with all the darkening and proud exclusion that that state of mind entails.

Sadly, the United States as it stands is a very different beast.

Good news about U S

/ Geoffrey Gibson / Leave a comment

Most Australians look on sadly at the horror currently on show in the US – in large part because most of us are fond of it.  Here are two items to cheer us up.

First, the World Cup has been terrific – in spite of the glitch put on by two corrupt men who found and deserve each other.  As has been the case in my six visits there, visitors are charmed by the hospitality and the willingness to do business of the hosts in some of the world’s great cities.

Secondly, the U S press, the Fourth Estate, has excelled itself – in showing up the failures of all other estates.  I have followed Maggie Haberman for years.  She is joined by the Australian Jonathan Swan as consummate professionals in the book Regime Change.  It is a very disturbing work – that is now saluted in an editorial in The New Yorker.  (OK – they have tickets on themselves, but they have courtesy – they sent me a knockback so charming that I framed it.)  The book reminded me of the dark days of Vietnam and Nixon.  The U S has faults, but we learn about them from Americans – like Woodward and Bernstein, and Haberman and Swan.

All, then, is not lost.