Passing bull 191 – The people and the crowd

 

 

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.

Who is the victim?

If someone does something wrong to you, that hurts you, you are aggrieved.  You are, or at least you feel like you are, a ‘victim’ of their bad conduct.  My Oxford English Dictionary looks outmoded: ‘In a weaker sense:  One who suffers some injury, hardship or loss, is badly treated or taken advantage of, or the like.’  My Macquarie has ‘a sufferer from any destructive, injurious or adverse action or agency’. 

A victim is someone hurt by another.  So, the hurtful conduct need not be intentional, unlawful, malicious or wrongful in order for the person hurt to be described as a ‘victim’.

You also think that you are a victim if someone sues you – especially if you think that there is no basis for the suit.  The person suing you is hurting you by invoking the power of the state to order you to do things adverse to your interests, and to expose you to expense, anxiety, delay, and public sympathy or worse.  You might lose your name, marriage, job or profession, or solvency, or sanity, as a result of being sued.  In one kind of litigation – in the criminal law – the suit may lead to your loss of liberty.  In the U S, and in worse regimes, you might lose your life.

Take a simple case.  Betty is told that John tells people that she is a thief.  Betty is hurt and a victim of the conduct of John.  On legal advice, she sues John.  From that moment, John is a victim of the conduct of Betty.  And he is hurt so much more if he says that he said no such thing, or that he did and that it is true (which in our law is a defence). 

From that moment, each of both Betty and John claims to be a victim of the other.  In one sense, the litigation will determine not what happened – which is a matter for God – but which of John and Betty is held by the court to have had a better claim to be the victim.

It follows that in any case where there is an issue to be tried about what happened in fact, or who might answerable or liable in law, it may be at best misleading to describe one side as the ‘victim’ – if the inference is that the other side until judgment does not have an equal claim to that description.

That is so in any civil suit where liability is in issue.  The case is stronger in criminal cases where the law presumes that the accused is innocent.

Yet in one narrow class of case – those involving sexual offences – the complainant is often referred to as ‘the victim,’ when in a real sense that may be the issue to be determined by the court.  We do not find this leaning to one side in cases of blackmail, mental cruelty, child pornography, fraud, insider trading, minority shareholder oppression, predatory pricing, conveyances to defraud creditors, or misconduct in custody cases – or any others I know of.

This propensity to see a case from one side only is a problem that practising lawyers do not have.  People are in conflict just because they dispute what happened and what the court should do.  Those lawyers also know that the court does not stand in place of God.  Unless the parties settle their difference, the court will rule on which side prevails by its rules, and life will go on.

But sadly, as the man said, too often, everyone loses, and it is the case that everywhere the ceremony of innocence is drowned.  And, yes, the best lack all conviction and the worst are full of passionate intensity.

The preference for the case of one side as the victim in a small class of cases looks to me to have two things in common.  For the most part, it is not expressed by practising lawyers.  And it comes from people who have an argument to pursue, and who are content to have their position identified with the side of the person they see as the ‘victim’.

The title to the word ‘victim’ can hardly be determined by the order of the names on the writ – plaintiff or defendant.  There is a childish spat between a member of the Murdoch family and a member of the press.  Which do you think Australians regard as the victim – young Lachie or Crikey?  It looks to me that officers of the Federal Court will be offering free smiley koala stamps to any bystander who manages to keep a straight face in a farce for the ages.

Someone said that victims demand allegiance.  On one view, that propensity is the foundation stone of one major faith; and of the Collingwood Football Club.  But, it seems, some kinds of victims demand more allegiance than others.

So much is I think clear from a paper I wrote years ago when I sought to say what going to law was about after fifty years at it, including more than thirty years hearing and deciding cases on a sessional basis.  It began as follows.

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 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, 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.  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 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 happened at all.

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.

Common law- adversarial v inquisitorial – leanings in certain cases – experience in the law – facts of life about litigation in the world as it is – litigating in principle.Who is the victim?

Two problems in our democracy

The word ‘democracy’ describes one form of government.  It stands for what Abraham Lincoln called government of the people, by the people, and for the people.  It follows that the government will only be as good as the people of and by whom it is made and for whom it acts.

We in Australia follow the English version that developed from the eighteenth century.  People vote for candidates from two different political parties.  So does the U S.

That mode is in trouble here, and in the UK and the US.  Two issues may not be logically connected, but they have a common source – the readiness, willingness, and ability of the people to make the system work.

The two-party system can only work as well as the two parties.  So much is axiomatic.  The people as a whole have very little say in, or control over, the composition or conduct of the two parties.  We have whole statute books about companies, partnerships and clubs, but next to nothing about political parties. 

It is at best odd that our governance depends on institutions outside our control.  How would it be if we allowed our education and health systems to be run by bodies that are not answerable to us – except when we get a chance to vote against those whom they have kept in office?

This anomaly was highlighted recently when a party in government in the UK badly misgoverned, but instead of resigning and allowing the electorate to choose, the government left the appointment of a new leader to the members of one party.  That small group was a tiny part of the people as a whole.  It proceeded by its own rules, which were written for the benefit of that party, and in particular for the benefit of those members of the party in control of it at that time.  Those rules were tailor-made to produce a disaster, and they did.  To the lasting damage of the U K and its people.

In Australia, people are taking action by voting for and securing the election of very competent people whose stand is expressly premised on a rejection the major parties.  If that change continues, the two-party system will be over here.

It may be worse in the U S where at any one time it is impossible to say who is responsible for the conduct of either party, or the formulation of its objectives.  And they do not appear to have a leader of the opposition. 

That leads to other bad problems – like hopeless promises about what the party might do if it gets into power.  If one party does win a change of government, much of its energy is devoted to sharing the spoils by appointing people to offices where they do not have to account for themselves as they would under the Westminster System.

The two-party system needs two parties by definition.  Government will therefore only be as good as the opposition.  That proposition is as inherent in our democracy as competition is to our capitalism.  If the opposition is weak, it does not do its job in policing government, and the standard of government drops.

The opposition party in both Victoria and the Commonwealth at present is in a very bad way.  That is obviously unhealthy for all of us.  We are used to governments going rotten because their opposition has not kept them honest.  Had the Labour Party in the U K not been so fractured, the result of Brexit may well have been different.  The disaster of Trump only occurred after the Democrats put up a candidate as flawed as Jeremy Corbyn – and that statement is large.  In each case, the people as a whole were badly hurt by the failings of one party – that were capitalised on by a party that was not much better.

The parties described as ‘conservative’ – a quite useless and misleading term – are weak in Australia, possibly worse in the UK, and a squalid disaster in the U S.  What chance then is there of the people in any of those nations getting decent government?

The parties named ‘Labour’ here and in the UK at least have a history, although that label is troubling for many whose collar is not blue, and if that party wants to be in the race, its members dictate that its policies are hardly different to those of the ‘conservatives.’ 

That too is unhealthy almost by definition in a two-party system.  Adversaries don’t usually sing hymns of praise from the same song sheet.  In the result, we have two desultory mobs that look sadly alike – except to their war weary old warriors or those bystanders whose livelihood depends on conflict.

But there is a worse problem.  A decent opposition does not just attack the policy of the government.  It offers an alternative policy that it will put in place if elected.  That is a necessary function for it in a two-party system.  It is no good just saying ‘No’, and putting a spoke in the wheel – and picking up your bat and ball and going home.

It was in a book about the Revolution – Leaders of the French Revolution – that the wonderful English historian, Dr J M Thompson, set out the ground rules.

…an Englishman …. has been trained to exercise his party spirit in the game called the Party System; and among the rules of that game – not always observed [1929] as they should be – are the obligation to sink personal differences in party loyalties, not to criticise your opponent’s policy unless you have a better one that you are prepared to carry out yourself, and in case of national crisis, to help rather than hinder whatever government may be in power.  But party politics in the French Assembly meant a very different thing….so majority legislation might be merely partisan, and minority criticism merely destructive and irresponsible.

Before you condemn that as too old and too far away, remember that it comes down to us from those who invented the whole bloody game.

That kind of rule, convention, or practice has fallen away in the last generation.  It may or may not be coincidence that it reared up immediately when a black man was elected as President of the U S for the first time, and the Republicans – predominantly old and white and paradigms of platformed mediocrity – resolved to do all they could, and to cheat as hard as they could, to stop President Obama doing just about anything – whatever the cost.  Decent people around the world looked on in horror as erstwhile guardians of the constitution simply went on strike and stopped the government dead, and did all in their power to stop a once decent nation catching up to being within about a century of the rest of the west on universal health care.  So, the Americans preferred the model of the French Assembly shown by Dr Thompson as at, say, 1793.

And some very mediocre people who did not know any better followed their example in Australia.  The worst instance was the quite irrational opposition to any responsible policy on the environment, which left us as an international dunce, with life threatening consequences at home for the rest of us.

The other party committed the reverse sin.  Instead of opposing a policy on refugees that had been manipulated just to win one election, it decided that discretion dictated that it should swallow its principles.  And we tried to pretend that other nations did not notice our falling off.  We just observed the standard practice of binning the Sermon on the Mount when politics rule the game, and with not one blush to be seen.

So – there is a sketch of one problem of three democracies.  And it is one for which the people as whole are plainly answerable – although there is not much sign of that.

The other problem is another case of our failure as a people.  

In our world, if we want someone to do something for us, we usually have to do something for them in return – and that generally means that we have to pay to get what we want.  The service we get depends on what we pay for it. 

People in Australia and England expect a very high level of service from government.  From just about the time the Commonwealth of Australia came into being, we have been part of what is called the Welfare State.  We expect government to provide services in health and education and to look after the infirm, aged and unemployed.  That is a fact of our political life, and one reason why the word ‘socialism’ is useless here.  The U S has a very different approach to government, and it is one that the rest of the western world simply could not countenance.

If something goes wrong in Australia, people demand to know what ‘they’ will do about it.  But although we demand and expect full protection and support from our government, we are not sensible or mature enough to have a rational discussion about how we pay for it. 

The word is tax.  We are not as coy as the Americans, but that is not saying much.  As it seems to me, we have not been game to collect enough tax from people who could afford it – people like me.  I would scream and groan – I have done that anyway – but the funding of the services we expect from government would have a rational basis. 

Even a slight invitation to the dance puts people in a tizz – after the politicians have put the frighteners on them.  The scare about capital gains and franked dividends was cowardly and callous – and also showed a scary ignorance in the financial press

Our failure to reach this level of sense and maturity leaves our politics sadly predictable and banal, with very ordinary people being bitchy on the fringe, and not looking at the world as it is.

As best as I can see, the first problem only looks like getting worse.  Accordingly, we are unlikely to deal with the second.  The inherent risk in any democracy is that government will not govern in a way that people will not like in the short term, when that is precisely what they need for the long term.

The case looks much worse in the U S.  The Puritans killed off the English way of dealing with poverty, and they did so on doctrinal grounds.  The Founding Fathers elevated the English Bill of Rights into the Constitution and turned the Justices of the Supreme Court into lawmakers in areas we may prefer not to see our lawmakers entering – including those relating to guns and God.  The English never refer to their Bill of Rights; in the U S, it has trashed the joint.  And they have been unable to keep God out of government, with results that are nauseating – not least for God.  The Civil War inflamed the cancer of race, their Original Sin.  The nation then refuses to look after those who don’t do so well.  They show a Darwinian coldness that is unconscionable to us.  And those who were supposed to guard the constitution have wrecked it by tolerating, then electing, and then submitting to an amoral fraud and a coward.  And too many American people want to believe obvious and venomous lies.  The politicians have cheated and vandalised all the way.  Government in the U S is now so low that it cannot even do its first job – protect the people by keeping the peace.

And, so, we the people all get what we deserve.  Or, as someone said, if you pay peanuts, you get monkeys.  If we are not prepared to do enough or pay enough to do better, we don’t deserve it.  The short point is that we do not do enough or pay enough to make our democracy work well.  The problems with our democracy are not with government or the parties, but with us.

Politics – two party system – Westminster – Left/Right – Conservative/Progressive – Liberal/Labor – Independents.

Passing Bull 341 – Another day at The Age

It is not fair of Nine.  On Mondays, we can get Downer in the AFR and Brandis in The Age.  Today in The Age, George is on about Gough.  A mate said that is like asking a child to paint the ceiling of the Sistine Chapel.  That is a clean 10.  Straight to the pool room.

There is a piece on the Lehrmann trial by Julia Quilter, an associate professor in the School of Law at the University of Wollongong.  The writer looks at the trial from her perspective ‘as a researcher of sexual assault trials for the past 20-plus years.’  And also from the perspective that ‘40 years on, the mission to transform sexual assault trials, and rid them of rape myths that work profoundly to the disadvantage of victims of sexual violence, remains unfinished.’  The question then is: How do you reduce the disadvantage to the complainant in one sort of case, and not others, without at the same time working to the disadvantage of the accused? 

You do not have to be Sir Owen Dixon to know that experience of forensic contests tells us that one story is good until the other story is told.  (That’s from memory.  You get the same in the Bible.)  The complainant says one thing.  The accused says she is lying.  The law says that his case has to be put fairly and squarely to the complainant in the witness box – otherwise the judge gets very angry.  But that does not look to be the perspective from which this piece is written.

Take one example.  The writer is concerned that in ‘an estimated 50% of sexual assault cases, the complainant’s intoxication is a familiar line of defence scrutiny’, the suggestion being that ‘the complainant cannot be said to be a reliable witness’ – even though the fact is that ‘the scientific research literature shows that a witness who was drunk at the time of the events is no less likely to be inaccurate about central issues, even if their recall about peripheral details is imperfect’. 

The Wollongong lawyer is briefed to appear for a man charged with attempted murder.  Her instructions are that a critical witness against her client was seriously drunk at all relevant times.  Counsel for the Crown objects to cross-examination about sobriety, and refers to the scientific research literature.  That could not happen.  What if the indictment also alleges rape and the witness is the complainant?

The Lehrmann trial was very sad for all involved.  I am yet to hear a clear analysis by a disinterested person with the relevant expertise about how it could have been determined more fairly and decently.

A few pages on in the paper, we get Abbie Chatfield.  Abbie is a ‘TV, radio, and internet personality.’  She has a dog called Mr Handsome Walter.  She gets most of her news from TikTok and Instagram.  Her guilty streaming pleasure is ‘obviously Real Housewives’.  What’s the vice Abbie wishes she could give up?  ‘Sleeping with toxic people…’

Well, no one should accuse The Age of being cloistered. 

I am doddering to the time when I will join the Wolf looking for kangaroos that do not exist in Wombat Forest, but there are some things down here I will not miss.

The American Difference

(In three parts)

Part 1

Reports of my death, said Mark Twain, are grossly exaggerated.  We hope that is the case with the United States – sad though that may be for Messrs Putin and Xi.  But the decline of America has been so swift, and the failures within the nation so widespread, that friends of America in Australia and elsewhere are as distressed as they are alarmed.

Donald Trump was obviously a symptom of the fault lines that had opened up long before he started riding upon and adding to them.  Those rifts go right back in the history of this young nation.

Since 1776 –a dozen years before the English opened a jail here in Australia – the Americans have been growing further apart constitutionally from their English parent, in ways that we have not seen in other former English colonies. 

Here’s how one aging Australian lawyer views the relations of those diversions to the current American decline.

Two different world views

When England began settling the new found land across the Atlantic, the main body of law exported in the world was Roman law.  It derived from codes, and codification was its preferred mode of growth.  Roman lawyers look for logical structure and formal elegance.  The Code Napoléon is a centrepiece.  This legal system was imposed from above with occasional encroachments from below.

The common law of England was flowering.  It would match and then supplant Roman law across the world.  It was developed by English judges.  It 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 cases that unguided chance threw up. 

This kind of law was supplemented by Magna Carta, the legislation of the Reformation, and in the 17th century it would supply the political backbone to enable the English parliament to become supreme over the king.  This system was generated from below with occasional additions from above.

This divide between the world’s two main systems of law was matched by the vast gulf between two different world views.  This is the enduring difference between the Anglo-Saxon views on history and philosophy, and those obtaining across the Channel.  It is the difference between Aristotle and Plato, Chaucer and Dante and between two distinct approaches to the law – the intellectual purity of the codes and the practical application of the common law. 

Some of us tend to optimism; others tend to be cautious.  Some of us like to formulate a theory or scheme and then see if we can conduct our affairs accordingly.  Others like to see what we did in the past as a precedent and guide for what we might do in the future.  We call one the rationalist view of the world.  We call the other the empirical. 

If you like technical terms, this divide is reflected in the logical split between deductive and inductive reasoning.  (If you want the Honours Course in Philosophy I, you might compare the a priori – knowledge held before experience – [the rationalist view] – to the a posteriori – knowledge gained after experience [the empirical view].)

Those brought up in the Anglo-Saxon or empirical tradition fear that those who pursue the other approach are at risk, if they are zealous enough or too confident, of thinking they have the answer – and that others are not just mistaken, but demonstrably wrong.  Such people are a threat to communities that depend on tolerance and restraint – as any democracy must do.

If you ask the view of the common lawyers, it may not be long before you get to the Inquisition, and the grosser effusions of absolutism in Russia, Italy, Germany and Spain last century.  England saw hardly any of it – because of the stability baked into it over the ages.

Let me give a simple and quite possibly biased case.  The French nation had been at the point of imploding for some time before 1789.  French intellectuals read the philosopher Rousseau’s Social Contract and then sought to apply it in their heroic Declaration of the Rights of Man.  ‘Bliss was it that day…’. Then the French fell into an abyss of evil and misery – that lasted, off and on, for a century. 

When the English came to deal finally with their king in 1688, they did what they had to do, got in a foreign army to allow the transition, and then settled their constitution in its present form by the Bill of Rights.  There was hardly any bloodshed in England, and the English, as Macaulay exulted, have not had a revolution since.  Later the philosopher John Locke wrote a rationalisation.  It is a fair bet that the number of British MPs who have ever read Two Treatises of Government could be counted on the fingers of one hand.

The statesmen, for that is what they were, who brought in the Bill of Rights, would have been appalled to be described as ‘Revolutionists.’  They had no time for the innate rights of man.  Their credo was that the liberties of Englishmen were bound up with the maintenance of the common law.  The revolutionists of 1776, 1789, and 1917 were, by comparison, out of this world.

And there is one issue we should bear steadily in mind, but which we forget in this context.  It is the rule of law.  This is a doctrine or principle that is, or should be, fundamental to what we refer to as civilisation.  It is a conception that was foreign to the Roman system.  It belonged only to the common law, by which it has been preserved and transmitted.  You can’t get a more fundamental difference than that.

Origins

The origins of the English, and their near neighbours, are lost in time – as are the invasions by the Romans, Germans, Scandinavians and Normans (but not those invasions contemplated by Napoleon or Hitler).  An indistinct, misty model suits the English just fine.

The birth of the nation called the United States can be pinpointed to 1776 and identified in two documents.  You might think that the young nation might therefore be less susceptible to Romance or duplicity, but the opposite looks to be the case.  The Americans immediately began to invoke savoury pipe dreams about their birth on 4 July 1776 – just as the French would do after 14 July 1789, and in the glorification of their Emperor Napoleon. 

But the American house is one the foundations of which we can still examine.  Americans still tend to see their nation as white, and the advent of the white people to their land is very recent – after the English had been nation building for a thousand years. 

The descendants of the colonisers and settlers, as in Australia, would rather not talk of what happened to their First Nations.  To suggest that in their conduct the white colonisers adhered to their faith is to mock both God and Christ.  This is a stain that we two nations share.

Puritans and paternalism

Most nations in the West seek to look after their failures – the poor and the afflicted.  The U S does not.  Why is this so?

The Puritans were in the minority at home.  In America they had the numbers.  The difference is as deep as the Atlantic.  The Puritans had God, an agenda, a devotion to the notions of covenant and contract, zeal, and an ineffable conviction of their own rectitude and mission – and they quickly learned never to let God get between them and a dollar.  Even those gentle Quakers cashed in. 

The Puritans were therefore real pains in the bum, and the English were glad to be rid of them – and allow them to show their venom at Salem.

Bur their zeal, sense of mission, and their other and higher allegiance to God made the Puritans at best dicey as democratic bedfellows.  They were hostile to compromise – which is essential in our system.  And they were slippery about the notion that the majority prevails (a weakness that the French also showed after 1789).  How could mere mortals talk down to God?

The Puritans therefore had a suspicion and mistrust of government.   These attitudes still disfigure the U S today.  Then the Puritans were morally doomed in the eyes of Cotton Mather.  ‘Religion brought forth prosperity, and the daughter destroyed the mother.’  In building its empire, the mother country threw the Sermon on the Mount clean out the window.  White Americans did just the same at home.

Well before the Pilgrims set sail for their promised land, the English had come to terms with dealing with the poor.  There was a deeply held view throughout English history, at least from feudal times, that the people at the top had to show at least some care for those below them, that the winners should spare a thought for the losers.   They saw that they should look after the impotent and poor – as a matter of public duty.  

Starting in 1536, and leading to more comprehensive laws under Queen Elizabeth I, the English parliament accepted that the state had to accept the responsibility for the failures and victims of society.  They did not do so from any sense of charity or Christian benevolence, but from hard politics – the poor could become vagrants and vagabonds and threaten the peace – just as they did at the Capitol in Washington on 6 January 2021. 

Paternalism therefore came with the changes to English government wrought by the Tudors.  It would be amplified in 1908 when two future prime ministers of England – Lloyd George and Winston Churchill – brought in the People’s Budget, which was premised on the notion that the problems of the sick and infirm were ‘problems with which it is the business of the State to deal.’

(I may here add a footnote that bears on the difference between the common law and a code of law.  The law about charity has always been tricky – and sensitive politically.  In my state, Victoria, the court applying that part of the common law called equity must still reach a conclusion by reference to the ‘spirit and intendment’ of the preamble of a statute of Elizabeth I.  That is daunting the first time you have to do it, and generations of lawyers derided this law as a preposterous relic – until they tried to replace it.)

The common law said that the Puritans brought English law to the colonies.  But they did not bring these poor laws, and the failure of the U S to deal with its beggars and massive underclass now scandalises the world – and not just the West.  It shows a hard, mean, Darwinian side to the American state that we do not see in the people we meet.  It conforms with the Puritan concentration on the individual – and holding him to his bargain, or his fate.  When we speak of people championing their rights as individuals, are we saying anything more than that they put themselves above the community?

And as the Tudors found, this is not just hard and mean, but bad policy.  As is the dreadful attitude in the U S to the role of government in the provision for public health.  They have not just got the worst public health system in the West – they also have got the dearest. 

Here we have the ultimate triumph of theory – in the form of ideology – over common sense and ordinary experience.  We might look for the real driver of this mess, but it is not tart to say that the U S looks to be about a century behind Europe on the Welfare State, and six centuries behind the mother country in dealing with the downtrodden. 

The sad result is that too many Americans are not interested either in what they can do for their country, or what their country can do for them.

Two revolutions

We saw that the revolution in England in 1688 was comparatively bloodless.  The English had been house-training their kings since 1215, and they were about to embark on training their aristocracy – a process that they would complete by trimming the House Lords for its reaction to the People’s Budget.

What the Americans call the War of Independence involved a frightful civil war between Patriots and Loyalists that is rarely discussed now.  (And that may be where they trace their fascination with that weasel word ‘patriot.’)  Appalling crimes against humanity were committed on both sides, ‘atrocities such as we have known in our day in Ireland,’ said Winston Churchill.

No one could call the American Revolution democratic.  The very notion would have appalled men of the wealth and standing of Jefferson, Washington, Franklin and Adams.  Of course, there was not a woman to be seen.  This show belonged to men only, and wealthy establishment men at that – men who could subscribe to the Tory view that a nation should only be governed by those who have a stake in it. 

But more than one hundred years ago, the English nation elected as their Prime Minister a grandson of an Italian Jew, who went on to become the closest confidant of the most powerful monarch in history; more than eighty years ago, the English elected as their Prime Minister a man of Scottish descent who represented the labouring class; and about forty years ago they elected their first woman Prime Minister. 

Americans now have had their first black President, and they are still dealing with the after-shocks, but it took them nearly two hundred years to elect a Catholic as president, and they are yet to elect to that office a woman, a working man, or a Jew.  They had the chance to elect a woman, but opted for an aged, white property developer, who, as predicted, duly trashed the joint.  Is the Great Republic, then, no more than a fusty conservative relic?

The sins of the Founding Fathers lay not in their wealth, slave holdings, or crassly patrician views, but in their duplicity.  They did not believe that all men are equal, and neither the genius of Abraham Lincoln, nor the blood of more than half a million of their sons, has been enough to erase that lie from the national conscience.  The curse of slavery remains.

The common law says that if one party to a contract says that they will not do their part, the other party can accept this ‘repudiation,’ and the contract is at an end.  You list the other side’s defaults, with all the colour allowed to the winner, and then you say that all bets are off – and you move on.  This is what the English did with James II and the Stuarts.  The Bill of Rights was the precedent or template for Jefferson’s Declaration of Independence.  So, he had to list the wrongs of the other party to the contract – which he said was King George III. 

What was it all about?  Tax.  (Most ugly divorces are about the money and the kids.)  But no one has written a history of the nation that gets even close to Jefferson’s enumeration of the wrongs alleged against England – and therefore the causes of the secession of the colonists.  You have to wait until about item 20 to see a reference to tax.  And even then, Jefferson gets it dead wrong.  He accuses the English king of trying to establish ‘an absolute Tyranny over these States.’  That is the kind of wild accusation you get now on Fox News – and mercifully, the congress struck out some of the purpler passages.  One count charged His Majesty ‘with ‘imposing Taxes on us without our Consent.’ 

But the whole point of the Glorious Revolution in England – which is still the foundation of their parliamentary democracy – is that, as Jefferson well knew, making a law to impose a tax was one thing that the king of England could not do.  Such laws – like the Stamp Act that led to the tea going overboard in Boston – had to be made by the parliament in Westminster.  As was each of the revenue and other laws that led to the rupture.

This uncomely flirtation with veracity has been too little noticed.  And it is pregnant with the threat of a kind of black hole in the American political psyche – an inability fairly to face the need to impose taxes and to make sensible laws accordingly.  Their politicians behave as if there is a deathless money tree out there from which apples can be plucked and bitten into with innocence and impunity.

Well, Henry VIII was not much of a rock on which to build a church.  And the Declaration of Independence was not much of a rock on which to build a nation.  One difference is that the English harbour no pretensions about their randy Harry.

Passing Bull 340 – Madness at The Sunday Age

The Marriage of Figaro, an opera by Mozart, is said to be the most performed and recorded opera ever.  It is full of the genius of Mozart, as both a dramatist and a composer.  It was based on a notorious swipe at the aristocracy in a play by Beaumarchais.  The aristocracy allowed the play to be performed.  That was a mistake. They laughed their heads off in the opera, and then lost them on the scaffold.  And Mozart was not on their side.

The opera is about the mad comings and goings in one day, when two lower class people deprive the Count of his libidinous wish to enjoy something like a droit de seigneur, a pre-emptive right with the bride.  Historians agree that no such right existed, but it is there – and in Don Giovanni – as part of the libretto.  (The aristocracy did of course at one time demand worse feudal rights – like killing a peasant so that they could warm their feet in his bowels.)

But this is theatre – not a lecture on feudalism, or humanism, or the enlightenment.  People at the theatre are not troubled by the fact that the ‘stone guest’ – the dead Commendatore – in Don Giovanni is impossible, any more than they are troubled by the pedigree of Figaro.  The whole day is one of a comedy of madness with at least three moments of searing beauty – two arias where the Countess laments the hole in her life left by the Count, and his forgiveness in the finale – the part that was instrumental in the madness of Salieri in the film Amadeus.

More than thirty years ago, my daughters and I were privileged to see the play being performed on alternate nights with the opera.  The girls got to meet Barry Otto on the stage of the play.  The opera was then put on next on the same small stage – one of the best opera productions I have seen.  As I recall, the Countess sang Porgi amor while reclining on a cupboard.  It was all too much for the then opera critic of The Age, who was a crusty guardian of the old ways.  It was important for the girls to get a chance to see on the stage two of the touchstones of the development of western civilisation.

Mozart was saluting our humanity in a way only he could.  Anyone who thinks that this opera is somehow against humanity or any part of it is very sadly bereft.

An article by Jacqueline Magnay in The Sunday Age today is headed ‘Opera has a women problem even if the music still sings.’  The writer, whose work I have respected, enjoyed Figaro with a mate at the Sydney Opera House.  Her friend said at the end ‘That was some lovely music that was built around the story of an impending workplace rape.’  The author concedes that the plot is likely to be farcical and unlikely, but Susanna is trying to ‘escape the egregious sexual harassment/rape attempts of her boss’.  The author also concedes that ‘no one wants to be clobbered with ideology when they’re seeking entertainment.’

But she says:

But it has become increasingly difficult to ignore that opera has a relatability problem – modern audiences find it hard to swallow the rampant raping, violence against women, intense misogyny and slut-shaming of the genre.

The problem is that ‘so much art, high and low, is created around the suffering and violent death of women.’  But if you take the libretto out of opera, you will be left with the music – ‘and contemporary and future audiences should not be deprived of that.’  She goes on to say how a director of Carmen believes in ‘repurposing’ operas for ‘new or different stories’. 

The towering geniuses who created the masterpieces cannot be consulted about this ‘repurposing’, but at least we are not to be deprived of the music.

As the man said, ‘For this relief much thanks.’

Well, before we look at how this cleansing may work, can I say immediately that any person who wants to rip the arias Porgi amor and Dove sono from the context in which Mozart left them is committing an act of desecration that is not forgivable.  Art like this is the climax of western civilisation.  If after Auschwitz and Hiroshima, you ask what separates us from the apes, I would go to Mozart and this opera.

Let us, then, apply this new doctrine to the other big shows of Mozart.  Don Giovanni begins with the hero murdering the father of a woman he has just raped, and women are the eternal victims throughout the show – and yet the hero goes to blazes unrepentant.  The whole point of Cosi fan tutte is to show that women can’t be trustedthe title means ‘They’re all the same.’  The Magic Flute might look like a harmless panto, but the source of evil is the Queen of the Night – why not send her out with white boots and a screen shot of the Bois de Boulogne

Scratch all three.  And just listen to the music.  With your eyes firmly shut.

I pass over all Italian opera, and say merely that you would have to scrub the whole Ring Cycle – the hero, Siegfried, is as thick as two planks, and takes far too long to die, and he is the product of a coupling of the product of an incestuous union with the product of the rape of mortal by a god.  Hitler thought Siegfried was bonzer and dined out on Götterdämmerung (Twilight of the Gods).

What about those ballets we bring our girls up on?  In Swan Lake, Odette is the victim awaiting rescue by a man, and Odile is the dreadful bitch who snaffles the bloke.  Giselle goes crazy and dances herself to death when she discovers that the boyfriend has more front than Myers.  Cinderella is about the evil sisters – that centuries old blood libel on all women that we come back to in Shakespeare. 

And before we look at his big four, let us say good bye to Genesis, for obvious reasons, and Paradise Lost – earth felt the wound when Eve bit the apple, and then seduced our father, and the only question is whether her sin of disobedience to God could possibly be worse than her disobedience to her man. 

And the Iliad must go too.  The problem starts with a tart, Helen, shooting through; she has to endure slut shaming; then the Greek king snaffles the girl prize of Achilles; who sulks in his tent until the bad guys killed his beloved – a bloke.  (And, boy, didn’t Shakespeare do a number on Achilles? And on the slut – a word he liked.) 

As for bloody Chaucer, he reeks of filth and insults to women – the Miller’s Tale is pure smut that I refused to read out loud at Cambridge on the grounds of public decency.

Let us then finish with the big four of Shakespeare.  In Macbeth, a woman actually renounces her sex – just think of that! – to get her husband to murder their king – and then she goes to water and wimps it.  In Othello, a badly spoiled child cheats on her father to have it off with a black man – and then gets throttled for her troubles.  In Hamlet, another spoiled child is so cruel to his girlfriend that she goes crackers and then tops herself.  Finally, in King Lear, the evil sisters are at it yet again – and boy are they evil! – but the good girl is too silly to play the game required at difficult family gatherings – and the whole world comes to an end.

Dear, dear, me.  I thought we were passed all this kind of stuff, years ago.  I resigned from a gentlemen’s club because it is predicated on there being a difference between men and women – that I do not think is decent.  Others have a different view.  That’s fine.  But, why do people want to maintain the schism? 

This is the kind of petty stuff you get from the other paper – where people bang on about phantoms like ‘cancel culture’ and ‘identity politics’.  Are they the bogey men in play here? 

Or are our latterday vigilantes intent on modelling themselves on the moral police of the Persians?  If so, they might think of drooping a veil over the Mona Lisa, who badly needs a chat with her dietitian and fashion adviser, and throw a great coat over the Adam of Michelangelo, that gleaming fascist whose steely glare defies all mankind to answer back – and whose mum forgot to tell him about jock straps.

The Sunday Age – Jacqueline Magnay – opera – sexism – misogyny – Mozart – Figaro – Shakespeare – sacrilege.

Playing with repression

The rule of law is fundamental to our way of life.  It underlies our views on the constitution, governance, and the rights we have as members of our community.  And fundamental to the rule of law is equality before the law – the equal subjection of all people to the ordinary rules of the land.  No person is above or below the law.

People who accept a principle that people should treated differently – either politically, or as part of a religious creed, or both – because of either their descent or position in the community are acting against at least the spirit of that aspect of the rule of law.

And if you regard adherence to the rule of law as essential to the claim of a community to be civilised, such a belief puts the people who hold it at risk of being seen not to be civilised. 

There is nothing novel in that.  From the moment that the German people adopted by plebiscite the position of Hitler and the Nazi party on Jews, it ceased to be civilised.

What happens when people of faith say that their faith requires them to treat some people better and some worse merely according to the dictates of their faith?

In Ancient Law, Sir Henry Maine said:

Now a barbarous society practising a body of custom, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation.  The usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being….  But unhappily there is a law of development which ever threatens to operate upon unwritten usage…A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable….  Prohibitions and ordinances, originally confined, for good reasons, to a single description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. …So, again, a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates into the most disastrous and blighting of all human institutions – Caste.  

…  Even now, Hindu jurisprudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities.  

What is caste?

In Europe in the Middle Ages, they were wont to say that people fell into three categories – those who fought, those who prayed, and those who worked.  (And there were no prizes for guessing who were the suckers.) 

In India, they identified four varnas or kinds of callings, or orders – Brahmans (priests), Kshatriyas (rulers and warriors), Vaishyas (trade and money), and Shudras (servile labour).

Additionally, people were divided at birth, jati.  [G1] Some basic ideas for both jati and varna were shared by at least some people before the colonial period.  The premise was then, and still is, that people who called themselves Hindus are born into fixed social units with their own names and titles.  That unit was your caste or community.  Each caste had a tradition of common descent, geographical origin, or occupational ideal.

…the concept of caste has come to imply both boundaries and collective or corporate rank.  In theory at least, civilised ‘caste Hindus’ should regard it as wrong and unnatural to share food or other intimate social contacts with those who are radically unlike them in caste terms…. The implication here is that to be of high or low caste is a matter of innate quality or essence.

So says Susan Bayly of King’s College, Cambridge in Caste, Society and Politics in India. 

Those features are alien to us, and I would be sad if I encountered them in our Indian community. 

But it gets worse.

One especially striking element of Indian life has been the presence of very large subordinated populations who have been identified as culturally, morally and even biologically distinct from other Indians: these are the people to whom such labels as ‘tribals’ and ‘untouchables’ have been applied.

The experience of ‘untouchability’ became a disability for large parts of the lower or working class – a worse disability than that of medieval serfs in Europe or England.  Precautions had to be taken against pollution by the unclean of their divinely mandated superiors – which was everyone except the bottom rung.

Then soil and blood raised their ugly heads.  The Hindu categories became linked to the Hindu nation – India.  The break from Britain naturally showed nationalist fervour which Ghandi and Nehru sought to contain.  But Hindu nationalists were bound to their sacred motherland.  Some saw their Christian and Muslim conquerors as ‘peoples of the book’ whose unity had enabled them to subdue then backward Hindus.  A united Hindu faith could recover their power.  Was the corollary that only Hindus could be true Indians?

At its worst, this became an issue of race.  Some Indians thought that the Aryans were the superior race.  Some pronouncements chill the blood.

Some of the most rational modern countries have perforce infused faith where reason was supreme so as to accelerate the reconstruction of society.  Thus, we see Bolshevism, Fascism and Nazism in their fullest force.

Now, it would be absurd to suggest that Mr Modi was of that ilk.  But we are told that race theory is still there in Indian political polemics, and the problem remains for the gap between the ‘clean’ and ‘untouchables.’  (You need not fret for the cricketers – they are untouchable at the other end.)  And the risk if not the reality is that Muslims are seen to be inferior.

The nation split before birth on religious lines, in the most frightful way.  And outbreaks of mass violence along religious or caste lines still recur.  If you ask whether the rule of law applies in India, a Muslim will almost certainly give a very different answer to a Brahman.  And I expect the same would go in Pakistan.

There are two strands to one question.  If you believe that you have a divine right to look down on others, and that the nation has a divine duty to act pursuant to the faith of the people – who is there to draw the line?  And when and where? And how?

The controversy about the World Cup in Qatar has three sources.  The appointment was corrupt –a corrupt nation and a more corrupt FIFA, enured to playing the slut.  The regime treats people appallingly – as often as not, as an article of faith.  And on so many grounds, it is just the wrong place for this event.

But if professional sports people continue to get choosey about whom they will brush off, they too will have big problems in drawing the line.

And I would not mind asking the U K Prime Minister if he is happy with all aspects of the teaching and practices of his Hindu religion in a unitary state which has its own state religion at the crown of its constitution. 

Politics and sport – Hindus and Muslims – Caste – India and Qatar – hypocrisy.


 [G1]

Passing Bull 339 – Election blues

The Herald -Sun on Sunday had a front-page story with what the Leader of the Opposition would do when he won power.  There were four things he would do immediately.  Two and three were: ABOLISH TAXES.  UNITE VICTORIA.  What could be left after that?

The party is in trouble with religious nuts.  One is named Renee Heath.  Her status if elected is unclear. It is too late for her to be disendorsed. 

Renee is unhappy about her treatment.  She has consulted lawyers.  You guessed it – Arnold Bloch Leibler.  The Protector of the Poor.  As long as they don’t want people to have to pay tax. 

Renee said:

The reason I am a Liberal is because I believe in the right of every individual to live life according to their convictions, beliefs and conscience without interference from government.

Well, Renee, does ‘government’ include the law on which government acts?  Like that against murder?  Does this right to live free of interference extend to the KKK or Nazi Party?  And most of all, do you subscribe to the view you express if for ‘government’ you put in ‘religion.’

If proof were needed that ‘freedom of religion’ is bullshit, here you have it.  Renee wants advice on whether she has grounds to complain to Human Rights about the ‘discriminatory treatment of me’ as a potential Liberal MP ‘based on my faith, or assumptions about my faith.’

What would Sir Robert have said about all that?

Liberal Party – Heath – Dragan – Religion- Guy – Freedom of Religion.

Passing Bull 338 –Two newspapers – and pure bullshit

Rupert Murdoch and the Holy Father have something in common.  They can’t stand the ALP.  It goes further than that.  ‘Right-wing Catholic’ is a tautology – you won’t find one on the Left this side of the equator or the international dateline.

Yesterday in Victoria, one government office referred the Leader of the Opposition to another government office that deals with allegations of corruption.  Integrity is a big issue in the near state election.  The Opposition Leader Mr Guy stormed out of a press conference.  Accordingly, this story was the dominant headline on the front page of The Age.  The Australian relegated it to an even numbered page boxed in another anti-Andrews piece – which is their schtick.  It goes with the normal sycophantic tripe in the letters – this time applauding Peta Credlin for yet another hit job on Andrews.

Oh well, the sun also rises. 

There is a procedural hiccup in the Lehrmann rape case.  If there is a retrial, the victim can be spared the injury of undergoing cross-examination twice if the evidence is given by a protected process outside court.  This is very common.  It happened in Pell.  But by an anomaly in the ACT, it does not apply there to evidence given in court.  So, the government will move to close off this exclusion.  If they move in time, the amendment will allow the victim to elect to have the evidence replayed.

The Age reports this on an even numbered page (14).  It was front page headline news in The Australian.  ‘Exclusive’.  The caption refers to the article by Janet Albrechtsen.  ‘We’re losing our minds if we do not recognise that this move in the ACT undermines the rule of law.  And dangerously so.’ 

Shriek!  If you don’t agree with me, you are bloody crackers.  

Two quotes will show the intellectual calibre.  ‘Legal sources believe the abrupt law change is intended to assist the DPP in Mr Lehrmann’s retrial…’  Brittany Higgins made a statement outside court.  ‘Many lawyers told The Australian they understood the tenor of her statement to mean Higgins would not be returning to the witness stand for a retrial.’

The conclusion?  ‘This astounding change strikes at the heart of the criminal justice system’s foundational principle: the rule of law.’

The Age concluded its report: ‘Mr Drumgold [counsel for the Crown] noted that the court would maintain the discretion to refuse to admit the recorded evidence to ensure procedural fairness for the accused.’  In other words, the judge will not follow this procedure if he or she thinks that would be unfair to the accused.  End of story. 

But not in the other paper.

What we can we say?

The report in The Australian lacks any sense of moderation or restraint.  It is obviously loaded and partial.  It is the kind of stuff that looks like it was put there just to sell.  The writer either believes this stuff – or she does not.  You can decide which is worse.

Crusading and journalism don’t mix well.  The crusader is partial.  Journalists are supposed to be impartial.

Our press is sadly notorious for getting forensic issues plain wrong.  Those reporters with law degrees are the worst offenders.  In one sad sense, Janet Albrechtsen and Louise Milligan deserve each other.

The press complain that the judges give them a hard time.  After fifty odd years acting for and against them, and losing every contempt case I fought, including getting a journalist six weeks in the slammer for telling the truth on a matter of public interest, I understand that.  But what do they expect if they act like this?

Finally, this is a generational clash between two women.  Older women tend to have different views on this sort of issue.  Put that to one side.  What sort of person relishes the prospect of a complainant in a criminal prosecution having to endure again the ordeal – that is what it is – of being cross-examined in public for hours and hours over shockingly personal issues – because her first ordeal has been put to nothing by an accident outside her control?

More than thirty years ago, Neil McPhee, QC and I were representing directors of Elders in proceedings before the NCA.  That looked to me to be a political pogrom against the late John Elliott, but you have to play the cards you have been dealt.  One of our directors was as frail as he was respectable.  I got a report from his heart specialist – who had been in practice while I was at school – saying that the client was very unwell and that giving evidence could cause him very serious injury.  That evidence was both kosher and undisputed.  But the Crown was desperate.  Counsel – Michael Rozenes – said they could have a specialist on standby outside the hearing room.  When Neil McPhee, with that terse disdain of his, said through gritted teeth: ‘Does my learned friend also enjoy pulling wings off butterflies?’

The press – Age and Australian – Higgins – Lehrmann – Albrechtsen – Milligan.

Passing Bull 337 –Welcome to MAGA


PETRUCHIO

Come on, i’ God’s name; once more toward our father’s.
Good Lord, how bright and goodly shines the moon!

KATHARINA

The moon! the sun: it is not moonlight now.

PETRUCHIO

I say it is the moon that shines so bright.

KATHARINA

I know it is the sun that shines so bright.

PETRUCHIO

Now, by my mother’s son, and that’s myself,
It shall be moon, or star, or what I list,
Or ere I journey to your father’s house.
Go on, and fetch our horses back again.
Evermore cross’d and cross’d; nothing but cross’d!

….

KATHARINA

Forward, I pray, since we have come so far,
And be it moon, or sun, or what you please:
An if you please to call it a rush-candle,
Henceforth I vow it shall be so for me.

PETRUCHIO

I say it is the moon.

KATHARINA

I know it is the moon.

PETRUCHIO

Nay, then you lie: it is the blessed sun.

KATHARINA

Then, God be bless’d, it is the blessed sun:
But sun it is not, when you say it is not;
And the moon changes even as your mind….

Two fascist regimes

‘Fascist’ is a term that is widely abused.  But current events suggest that it might come back into vogue – and I am not speaking of Croatian supporters at a soccer match giving the Nazi salute.

In a book of history, I sought to define ‘fascism’ as follows.

What do I mean by ‘fascism’?  I mean a commitment to the strongest kind of government of a people along overtly militarist and nationalist lines; a government that puts itself above the interests of any or indeed all of its members; a commitment that is driven by faith rather than logic; with an aversion to or hatred of equality, minorities, strangers, women and other deviants; a contempt for liberalism or even mercy; and a government that is prone to symbolism in weapons, uniforms, or its own charms or runes, and to a belief in a charismatic leader. 

The word came originally from the Latin word fasces, the bundle of rods and axe carried before Roman consuls as emblems of authority, and was first applied to the followers of the Italian dictator, Benito Mussolini, Il Duce, and then to the followers of Il Caudillo, Generalissimo Franco, and the Fϋhrer, Adolf Hitler.  Fascists are thick-skinned, thick-headed, and brutal.  They despise intellectuals – who are after all deviants – but they may have an untutored and irrational rat cunning.

As Professor Simon Blackburn of Cambridge University tersely remarks: ‘The whole cocktail is animated by a belief in regeneration through energy and struggle’ (kampf).  To an outsider, it looks like pure moonshine that is the first refuge of a ratbag and a bully, a brilliant and seductive toy for the intellectually and morally deprived, and an eternal warning of the danger of patriotism to people of good sense and good will.  But while that ‘cocktail’ may look a bit much for Plato, it looks fair for Sparta.

We can I think test the meaning of the term by comparing the attributes of the fascist regimes of last century with the behaviour of one large current regime that poses a threat to the peace of the world.

  • The nation has a history that is at best beset – indifferent, incoherent, or merely recent – but which its people wish to glorify, so that they feel better.  And they do so, even though the nation has rarely if ever been decently governed – compared to those in Europe and the U S – what is called the western world.
  • The regime has a leader who has no obvious qualification or character, except a capacity to work the system to help his people justify themselves and the nation.
  • The leader has got where he is by foul means, but he becomes a cult figure.  He does so by combining bread and circuses, and fancy uniforms and even fancier fables about the past, with brute force.  People are either charmed, or beaten into submission.  Dissent is stifled, and its proponents are eliminated – if necessary, with extreme prejudice.
  • It is an essential part of this process that the better people of the nation, or those who should know better, are bought off.  The leader does this by persuading them that the price of getting their hands dirty, or just looking away, is worth paying.  He is able to do this because the nation has not built up a reserve of character that is capable of arresting this decline.  The nation just does not have enough in its history to resist.  And the people are deluded into thinking that they retain the power to stop and get rid of their leader. 
  • And all of the time, the position of the people is weakening because they have been complicit in the working of the bad side of the regime and cannot banish their shame.  They know, without acknowledging it, that they must bear the stains of their state.  They are prisoners of their own default.
  • The leader encourages a mystical view of a glorious past that is almost wholly imaginary.  He knows that his core support comes from people who fear uncertainty or doubt and who want simple answers.  He knows these people are credulous – and is prone to boast about his power over them.
  • Since the history of the nation is recently invented, it is not hard to say that any troubles that the nation faces come from forces of darkness that it is the imperative duty of the leader to eliminate – or, if you prefer, liquidate.  And each regime has a long and bad history in condemning scapegoats.
  • These forces of darkness that are the enemies of the state are easy to identify, and the nation has been let down, if not betrayed, by previous regimes who failed to deal with them adequately.  This was very bad because those failed office holders are now seen as inferior as the people that they allowed to infect the nation.
  • The leader preaches that the wrongs done to their nation in the past give him and his people imperative moral rights to seek living space elsewhere (one to its right and one to its left – for which it has very bad form).
  • There is no rational basis for dissent or even debate on these questions since they fall to be resolved by the inexorable logic of those who have the answer.  Those who cannot see the truth are not just wrong – they are deprived, or deficient.
  • Because the nation has little or no settled history of responsible government, or the rule of law, and is led by someone beyond the power of the people to contain, and that person is in power for himself, the regime is a nightmare that moves from one conflict and crisis to the next – until it finally explodes with hideous consequences.  Each such regime must end in its own collapse, for the same reason that Ponzi schemes must eventually implode.
  • Against all that, it is not surprising that the regime commits crimes against humanity.  At bottom, it relies on brute force and it is a police state.  That is, the state is run by the leader and his police, who are not subject to any legal restraint.
  • These crimes are committed not just against people in the lands it invades, but against its own people.  It is fundamental to these regimes that the individual has to give way to the state and may be called on to suffer for the state.  (That is their version of original sin.)
  • The most notorious regime last century experienced a collapse made more hideous by the treacherous dementia of its leader.  It was left a shattered shell, morally and physically.  It is now a prime source of stability and decency in the world.  This in large part because it had a prior record of contributing to western civilisation that is almost unmatched.
  • That is not so with the current regime.  It has never been decently governed.  The epithet ‘civilised’ has only ever been applied to it because of the remarkable output of a few artists of genius – who could survive despite the regime.  That nation is now so far apart in time and space that it is hard to see a decent future for it.
  • Each regime has come to terms with religious leaders – which reflect ill on their faith.  The church in the current regime is notorious for collaborating with despots.  Art is alien, and each regime, following the example of Sparta, is viciously corrupt.  Each regime is a soulless wasteland.
  • Each leader is in truth a viscerally nasty little runt.

The discussion shows the need to be careful about which nations we may be content to describe as ‘civilised.’  In the same book I referred to above, I said:

In my view a nation or people cannot call itself civilised unless each of the following five criteria is met. 

  • It has a moral code that respects the person and the dignity and the right to property of each person in the group. 
  • It has a mature and stable form of democratic government that is willing and reasonably able enforce that respect and those rights, and to preserve its own democratic structure.  (I have opted for democracy because it seems to be the fairest mode of government and to be the best able to deliver the other objectives.)
  • It observes the rule of law …and it seeks to protect the legal rights of its members. 
  • Its working is not clogged or threatened by corruption. 
  • It seeks to allow its members to be able to subsist and, after providing for their subsistence, to have sufficient leisure to pursue happiness or improvement in such ways as they may choose, provided that they do not harm others. 

Put differently, a group of people may be said to be ‘civilised’ to the extent that its members are ‘civil’ to others.

In that light, each regime referred to above was or is in a nation that in its present state was or is not civilised.  That is not surprising.  What may be of concern is the extent to which we can see any of the above symptoms in France under Napoleon, England under Boris Johnson, or the United States under Trump. 

The categories of political failure are not closed.

Fascism – Hitler and Putin – Trump – rule of law – civilisation.