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.
With Compliments 