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.

Passing Bull 260 – They are not us

Dear Editor (New York Times),

Americans who say that those who violated the Capitol are not ‘us’ forget history.  The nation was conceived in violence.   The war against the English was also a civil war that Churchill compared to atrocities in Ireland.  The founding document was based on a lie about equality.  600,000 Americans died in an attempt to extirpate that lie.  This President could not believe a black president could be American. He has cheered on white violence and condemned black protests.  And this nation uniquely celebrates a constitutional right to bear arms.  The purpose of a gun is to inflict violent harm.  So, Americans, don’t say you’re not violent.  It’s in your blood. 

The divide between black and white led to the Civil War and Black Wednesday.  Those who razed the Bastille cherished equality;  those who stormed the Capitol dread it.  The question you face was stated at Gettysburg  by the greatest American –  ‘whether a new nation,conceived in liberty, and dedicated to the proposition that all men are created equal… can long endure’.

Yours truly

Bloopers

Donald Trump finishes his astonishing term as president in utter ignominy.  His behaviour since he lost the presidential election on November 3 has been far worse than anything he did as president….Trump was always a contemptible and unworthy character.  For any serious conservative, voting for him was always a 51-49 decision.

Greg Sheridan, Weekend Australian, January 9-10, 2021.

Where to start?  What does ‘conservative’ mean there, ‘serious’ or not?  What is there 50/50 about someone who has always been ‘contemptible’ and ‘unworthy’?  This proprietor does warp minds.  The Wall Street Journal broke ranks and said Trump should resign.  Since this is about 1000 to 1, the next question is what should otherwise happen?  They give no answer, although they concede that ‘Trump’s character flaws were apparent for all to see when he ran for president.’  Then the WSJ reveals the house flaw when it says that the 2019 impeachment was an abuse of process that has diminished Democrats’ credibility.  The alternative view is that that impeachment was a lay down misère which only failed because Republicans did not do their duty, and that the U S and the world are now much worse off because of their failure.  And, given that Trump is contemptible and a man whose character flaws are notorious, their failure is inexcusable.

Here and there – Milton on Trump’s Washington – Paradise Lost

Quite by chance a couple of days ago, I started to listen again, with text in hand, to Paradise Lost so gorgeously read by Anton Lesser.  It is ravishing – if you forget the theology, which is awful.  Every time I listen to it or read it, I wonder why Satan is the star of the show.  But the events in Washington yesterday reminded me of the title.  And some of the lines look to bear directly on the gruesome convulsions of America at this solemn hour.

The following look good for those made cowards by Trump.

The conquered also, and enslaved by war,
Shall, with their freedom lost, all virtue lose
And fear of God; from whom their piety feigned
In sharp contest of battle found no aid
Against invaders; therefore, cooled in zeal,
Thenceforth shall practice how to live secure,
Worldly or dissolute, on what their lords
Shall leave them to enjoy; for the earth shall bear
More than enough, that temperance may be tried:
So all shall turn degenerate, all depraved;
Justice and temperance, truth and faith, forgot.

No prizes for this one.

……..till one shall rise
Of proud ambitious heart; who, not content
With fair equality, fraternal state,
Will arrogate dominion undeserved
Over his brethren, and quite dispossess
Concord and law of nature from the earth;
Hunting (and men not beasts shall be his game)
With war, and hostile snare, such as refuse
Subjection to his empire tyrannous:
A mighty hunter thence he shall be styled
Before the Lord; as in despite of Heaven,
Or from Heaven, claiming second sovranty;
And from rebellion shall derive his name,
Though of rebellion others he accuse.

This seems apt for the Republicans.

Since thy original lapse, true liberty
Is lost, which always with right reason dwells
Twinned, and from her hath no dividual being:
Reason in man obscured, or not obeyed,
Immediately inordinate desires,
And upstart passions, catch the government
From reason; and to servitude reduce
Man, till then free. Therefore, since he permits
Within himself unworthy powers to reign
Over free reason, God, in judgement just,
Subjects him from without to violent lords;
Who oft as undeservedly enthrall
His outward freedom: Tyranny must be;
Though to the tyrant thereby no excuse.
Yet sometimes nations will decline so low
From virtue, which is reason, that no wrong,
But justice, and some fatal curse annexed,
Deprives them of their outward liberty;
Their inward lost….

But here is the bell-ringer.  My new Public Enemy Number 1 – which, given the competition, is a mighty achievement – Ted Cruz.  Trump is just an illiterate spoiled child who was never taught better or brought to heel.  It’s not that he did not go to discipline school – he was never house trained.  Ted Cruz – and his younger dreadful fist-bearing lieutenant – do not have that excuse.  I am told that they had glittering careers as young lawyers.  I know just the type.  High IQ and zero judgment.  And, after lives spent in front of mirrors, the last people you would want to have behind you in an Indian tiger hunt.

Faithful to whom? to thy rebellious crew?
Army of Fiends, fit body to fit head.
Was this your discipline and faith engaged,
Your military obedience, to dissolve
Allegiance to the acknowledged Power supreme?
And thou, sly hypocrite, who now wouldst seem
Patron of liberty, who more than thou
Once fawned, and cringed, and servilely adored
Heaven’s awful Monarch? wherefore, but in hope
To dispossess him, and thyself to reign?
.

There you have Teddy Boy to a tee – fawning and cringing servilely – the lowest form of life to crawl out from under a rock.

Passing Bull 258 – Good bye to 2020 – the return of the bogey man – and Happy Christmas

The Presidency of Donald Trump and the events of 2020 have seen the return of the bogeyman and of conspiracy theories for those who take their news to suit themselves.  Catholics, Masons and Jesuits have fallen out of favour as scapegoats.  Stalin had the kulaks.  Mussolini had effete liberals.  Franco had the Communists and atheists.  So did Senator McCarthy; and, to a lesser extent, Sir Robert Gordon Menzies.  It is best to pass over Hitler in silence.  As of now (December, 2020), many Australians seem to be seeking a reprise of the White Australia Policy with vitriol against the Chinese.  Their anxiety is made worse because President Trump appears to have abdicated in favour of President Xi, or, on a bad day, Chairman Kim.  (Do you remember when Trump said that he and Kim had fallen in love?  Neither could even spell ‘reciprocal’ so the ending had to be sour rather than sweet.)  Renegade doctors blame Big Pharma.  (Well, who wouldn’t?)  The Murdoch Press has the Premier of Victoria, who is stubbornly refusing to lie down, Muslims and other victims of a civilisation that is not deemed to be Western (although all the major religions of the West come from the East), scientists who peskily worry about their findings, and anyone whose ideology allows them to be sane about saving human life from a mortal illness.  This last is a form of madness imported by those on the Murdoch edge directly from their brothers and sisters at Fox News and is particularly sought after by those whose minds have been launched into eternity on one-way tramlines coming straight out of sullen think tanks.  Their rallying cry was given by a Governor of one of the stricken Dakotas: ‘My people are happy because they are free.’  (Well, yes, m ’Lady, they are also dying, but what’s a spot of death between Comrades of the Pure in Spirit?)  And all of us have all that modern technology and those dreadful pretty boys who have got so filthily rich on our debasement.  So that when you get China, high tech that is all-invasive, and a big corporation that is all-pervasive, you get Open Sesame for the Conspiracy Theorists’ Dream Team.  What, then, about the outgoing President of the U S A?  It’s a veritable smorgasbord.  (His family did come from that part of the world, but he lies about that, too.)  He has the Muslims, the Mexicans, the migrants, the media – or just about all of it, including now Fox News – the Ivy League set, the military, the FBI, the CIA, the medical profession and any other scientist, and any activist, that is any person who threatens his view of law and order, or who threatens to demean a photo op of his standing before a church, that he has never been inside, with a silly look on his face, holding a book that he has never read and could not understand, the way having been made safe for him and his ensainted daughter and her handbag by the Army of the United States in full battle gear.  And above all, he has it in for any person who is better educated than him.  Since this includes almost everyone else in America, it is a very big problem indeed – not least because the most educated person of the whole bloody lot of them was a man of colour with a wife who can think, both of whom in a moment of madness the people of America put into that bloody white house on Pennsylvania Avenue.  It just goes to prove that old saying – even paranoiacs have real enemies.

And very best wishes for Christmas and 2021 – and no one is sorry to say good bye to 2020 – and at least we are still above the ground – and, yes, Australians picked a good time to do the right thing for all of us.

Passing Bull 257 –Unquestionably vague

We would be better off – much better off – if we did not use words like ‘misogynistic’ or ‘anti-Semitic’.  One refers to an adverse view of women and the other refers to an adverse view of Jewish people.  But each term is used adversely to its subject and the range of conduct that might give rise to such a comment is so wide that such a comment is likely to be as unfair as it is vague. When I say that words like ‘misogynistic’ and ‘anti-Semitic’ are used adversely to their subject, I mean that we think it is wrong for people to assess the character of a person by reference to what some might see as the characteristics of other people from the same group – like women or Jewish people.  Decent people do not judge others by stereotypes.

Yesterday Mr Henry Ergas published a column headed ‘Why casual bigotry of Obama’s slur must be called out’.  The memoir of Mr Barack Obama referred to Mr Nicholas Sarkozy as ‘a quarter Greek Jew’.  He has ‘dark, expressive Mediterranean features’ resembling the figures of ‘a Toulouse – Lautrec painting’ and ‘all emotional outbursts and overblown rhetoric’ reflecting unbridled ambition and incessant pushiness’ while his conversation ‘swoops from flattery to genuine insight.’  These comments, which seem to me to be fair, leaped out at Mr Ergas and led him to compare those remarks to the insults ‘notoriously hurled at Benjamin Disraeli, the first person of Jewish birth to become Britain’s prime minister.’  (I might make two observations.  First, I greatly admire both Disraeli and Obama as statesmen of great character; one reason for my admiration is that both had to overcome real prejudice to get where they did.  Secondly, only one epithet leaped out of the page for Mr Ergas – ‘Greek’ and ‘Mediterranean’ apparently made no impact on Mr Ergas at all.)  Then we get:

…..if anti-Semitism involves using the label ‘Jew’ to evoke, emphasis or explain an inter-related complex of unattractive attributes, as Gordon Allport suggested in his classic book on The Nature of Prejudice (1954), Obama’s snide description of Sarkozy is unquestionably anti-Semitic.

Now, one might dismiss that as a mere blemish in an extremely lengthy volume.  It is however indisputable that had Sarkozy’s flaw been that he was black, gay, or Muslim, each with its associated stereotypes, the slur would have unleashed storms of protest…..In reality, the only roar was of a deafening silence.  From the New York Times to The Washington Post and beyond, not one of the gushing reviews considered Obama’s statement even worth mentioning.

In part that reflects the normalisation of casual anti-Semitism on the ‘progressive’ side of politics.

Mr Ergas went on to refer to a column by Mr Bret Stephens (whom I much admire) in the Times linking anti-Semitism to the criticism of Israel and anti-Zionism in ‘the left-leading media.’

Yet the left’s problem with Jews goes well beyond the blurring of the lines between criticism of Israel and anti-Semitism.

He went on to refer to the benefits conferred by religion – principally for the West it seems, although both relevant faiths came from the East – and makes two further criticisms of ‘the left’ and says that it and Mr Obama are ‘trivialising faith.’

So Mr Ergas says that Mr Obama cast a ‘slur’ on Mr Sarkozy, that the epithet ‘quarter Greek Jew’ ascribed a ‘flaw’ to Mr Sarkozy, and that in its context that epithet entails the conclusion that Mr Obama used the label ‘Jew’ to ‘evoke, emphasise or explain an inter-related complex of unattractive attributes.’  And what is more – that conclusion is unquestionable, indeed indisputable.

The short answer is that the matters of fact alleged by Mr Ergas against Mr Obama are not in my view sufficient to warrant the conclusion that is alleged.  And, after all, what is being alleged is a slur on Mr Obama that entails that his character suffers from a serious flaw.  You may recall that Mr Ergas says that ‘had Sarkozy’s flaw been that he was black, gay, or Muslim, each with its associated stereotypes, the slur would have unleashed storms of protest…’  It does look like the position of Mr Ergas may be circular – he appears to be saying that by describing someone as Jewish, you are invoking the stereotypes that come with that label.  You might also recall that the terms ‘Greek’ or ‘Mediterranean’ don’t apparently come with same heavy baggage.

But in my view, there is more than a non sequitur here.  How does Mr Ergas arrive at his conclusion against Mr Obama?  He comes to that conclusion because this is just what he has come to expect from a person who belongs to or comes from the ‘left’ or ‘progressive’ side of politics.  Neither of those terms is defined, and both are vague, but to adopt what I said above –

When I say that words like ‘misogynistic’ and ‘anti-Semitic’ are used adversely to their subject, I mean that we think it is wrong for people to assess the character of a person by reference to what some might see as the characteristics of other people from the same group – like women or Jewish people.  Decent people do not judge others by stereotypes.

In other words, Mr Ergas can only support his conclusion adverse to Mr Obama by resorting to exactly the kind of prejudice that he alleges against Mr Obama.

Indeed, what we have is a good example of the kind of commentary that disfigures our public life now – an adverse conclusion based on inadequate evidence; a conclusion alleged with total confidence; an absence of restraint; a one-sided and coloured view in a battle of us versus them; we are right and they are wrong; and appeals to mythical history.

In other words, we have a celebration of prejudice.  I will not therefore comment on the venomously dangerous suggestion that an adverse comment on Israel or Mr Netanyahu may warrant a charge of anti-Semitism. It is all very sad, but some readers apparently go for this sort of stuff.  The letters of congratulation have started already

King John and the Laws of England

Part I

Macaulay did not like Strafford.  He called Strafford ‘the first of the rats’.  Well, Strafford did really frighten the English, and they were desperate to kill him – which they did by means that even Macaulay and Churchill conceded were outside the law – and definitely not cricket.  But for raw shiftiness, Strafford was no match for King John.  ‘Shifty’ is the right epithet here.  You see it in the famous El Greco portrait of the Inquisitor.  When Sir Jack Plumb came to describe the advent of the Hanoverian kings, he said that they came full of apprehension because their future subjects had a reputation throughout Europe for being shifty.  The most famous speech in the play King John is about commodity – that is the wilful expediency, egoism, opportunism and compromise that the English associated with a ‘trimmer,’ those who trim their sales to go with the flow, and which causes us to turn away from politics.  It’s what politicians show when we say that they are being shifty.  John Masefield thought that the play was about treachery.  We would call it a study in back-stabbing.  That is a frightful illness that this nation has succumbed to as one prime minister after another was coarsely stabbed in the back.

But when we look at King John now, we see the seeds of two great movements in the laws and constitution of England – Magna Carta and the rule of law, and the Reformation and religious Home Rule for England.  While looking at these, you need to recall that they took place while the English lawyers and judges were developing that body of case law that we call the common law.  That law would underlie the whole stupendous fabric, so that our greatest jurist, Sir Owen Dixon, could deliver a paper entitled The Common Law as an Ultimate Constitutional Foundation.  The English constitution is part of the common law.  (That is not the case in the United States.)

The play is about the sources of power.  A king has died.  Should the succession go to the next brother (John) or the son of the deceased (Arthur)?  France backs the latter.  It and England are on the point of going to war about it.  They patch up their differences with a fortuitous marriage after breaking the world land speed record in courtship.  But the Pope has it in for King John over a dispute about the next Archbishop of Canterbury.  His emissary, Pandulf, bounces the ball by addressing the kings as ‘anointed deputies of heaven’ – and he is peremptory:

I Pandulph, of fair Milan cardinal,
And from Pope Innocent the legate here,
Do in his name religiously demand
Why thou against the church, our holy mother,
So wilfully dost spurn; and force perforce
Keep Stephen Langton, chosen archbishop
Of Canterbury, from that holy see?
This, in our foresaid holy father’s name,
Pope Innocent, I do demand of thee. (3.1.64-73)

England (King John) responds:

What earthy name to interrogatories
Can task the free breath of a sacred king?
Thou canst not, cardinal, devise a name
So slight, unworthy and ridiculous,
To charge me to an answer, as the pope.
Tell him this tale; and from the mouth of England
Add thus much more, that no Italian priest
Shall tithe or toll in our dominions;
But as we, under heaven, are supreme head,
So under Him that great supremacy,
Where we do reign, we will alone uphold,
Without the assistance of a mortal hand:….(3.1.74-84)

Pandulf excommunicates King John on the spot and offers sainthood to his killer. 

The play came out less than ten years after the Armada (and two scenes later we get a reference to a scattered armada).  So, all this Catholic bashing would have been blood to a tiger for Queen Elizabeth and her loving subjects.  The Spanish would have been driven by God to burn this heretic, so that when this brave woman made her great speech at Tilbury, she had what Americans call ‘skin in the game.’ 

The Elizabethan reaction would have been raucous, but when I saw this play at the Barbican about a quarter of a century ago, the locals allowed themselves an audible frisson during this scene.  They were all talking about it at interval.  (I was most impressed.  These were the people and this was the city that stopped Hitler.  Herr Von Ribbentrop could hardly have arrived on stage with more éclat.)  Shakespeare was very kind to Queen Katherine in Henry VIII, but Pandulf gets it right down the front, both barrels.  He talks the French out of their alliance ‘to be the champion of our church’, leading the locals to revile ‘the curse of Rome.’  War preparations are resumed, and King John resolves to have the boy Arthur murdered.  And all this misery comes at the behest of a foreign potentate about a disputed succession – not to the English Crown but one English holy see.

Pandulf is oily and insidious.  He is loaded with the prevarications that the Elizabethans saw in the Jesuits.  With God and Innocent III behind him, he treats both kings like his deputies, just as Napoleon would treat them like chess pieces.  Pandulf is the puppeteer on the cover of The Godfather.  ‘Sovereignty’ is a blighted term, but while Pandulf was abroad, the kings of Europe and England saw theirs decapitated.  Pandulf is stalking proof of Protestant propaganda of the danger of breaking the biblical injunction against a servant having two masters.

What has this to do with the Reformation?  Other countries in Europe would be prepared to tolerate this interference in their nation’s governance, but not England.  Henry VIII seceded because the Pope was standing in the way of his securing his succession – a most vital function of a king.  By contrast, King John surrendered his kingdom to Pope Innocent under a bond of fealty and homage for which he was to pay an annual tribute to the Holy See.  That looks like a protection racket, Mafia style.  The Oxford History remarks that this hardly gave rise to adverse comment at the time: ‘It was only later generations with bitter experience of papal control that denounced the transaction in violent language.’  Other kings had acknowledged the feudal superiority at Rome, but the Tudors would look back at this time, and the problems with Becket, as the foundation of their drive to independence – if not liberation.  When the end came for the Vatican in England, it might remind us of what Gibbon said about the fall of Rome – the wonder was not that it happened, but that it had gone on for so long.

You will have seen that the author has King John refer to ‘that great supremacy where we do reign.’  I have no doubt that this was a deliberate allusion to one of the acts of parliament that secured the divorce from Rome.  The Act of Supremacy begins –

Where by divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king having the dignity and royal estate of the imperial crown of the same….

This was standard practice for English propaganda.  In building the common law, the judges resorted to legal ‘fictions’ to help get around road blocks set up by precedent cases and forms.  They were not so different when legislating.  Revolutionary changes would be described as simply affirmations of past customs, beliefs and laws.  So they begin by saying that their realm has always been accepted as an empire – the ruler of which can have no superior.  Well, King John plainly had a superior – but why rest on aberrations?

Shakespeare would show that he was alive to the issue.  When the French herald came to deliver the message of his king to King Henry V of England before Agincourt, he said that the French could have dealt with Harry at Harfleur, but that ‘now we speak upon our cue, and our voice is imperial: England shall repent his folly’.  A little later that night, Harry moved among the sad and depleted English troops in disguise – ‘a little touch of Harry in the night.’  ‘What are you?’ the king asks.  Pistol – a swaggering drunk – replies ‘As good a gentleman as the emperor’.  This leads the king to say: ‘Then you are better than the king.’

So, the English asserted their supremacy over the Church of Rome.  They did so through their parliament.  This was too big a job for a king alone.  The next phase of their history was in establishing the supremacy of the parliament over the king.  That process would be more or less complete by 1689, after what they call the Glorious Revolution.  It started with what we call Magna Carta in 1215.  The progress led to the form of government that we enjoy today.  There was nothing like it anywhere else in the world.  When the Americans affirmed their supremacy over the English Crown they simply used English precedents as their templates.

MY SECOND TOP SHELF – 17

[These are serialised extracts of all the fifty books referred to in a book as yet unpublished called ‘My Second Top Shelf, or What Used to be Called a Liberal Education’. The content of these may change before further publication.]

HUCKLEBERRY FINN

Mark Twain, 1884

The Library of America, 1982; composite volume ‘Mississippi Writings’; bound in cloth boards, and slip case; the volume includes three other works, including The Adventures of Tom Sawyer.

You don’t know about me, without you have read a book by the name of ‘The Adventures of Tom Sawyer’, but that ain’t no matter.  That book was made by Mr Mark Twain, and he told the truth mainly.  There was things which he stretched, but mainly he told the truth.  That is nothing.  I never seen anybody but lied, one time or another, without it was Aunt Polly, or the widow, or maybe Mary Aunt Polly – tom’s Aunt Polly, she is – and Mary, and the Widow Douglas, is all told about in that book – which is mostly a true book; with some stretchers, as I said before.

That’s how this novel starts.  Huck then has supper with the widow.

After the supper she got out her book and learned me about Moses and the Bulrushers; and I was in sweat to find out all about him; but by-and-by she let it out that Moses had been dead a considerable time; so then I didn’t care no more about him; because I don’t take no stock in dead people.

This book is about the friendship between two people, Huck and Jim, who are both fugitives – Huck is fleeing from one beastly white man, his father; Jim is a Negro who is fleeing from all white men.  They are both, if you like, refugees – but Jim’s condition is pitiful and illegal, while Huck is troubled that he is assisting Jim to escape – it is like aiding a thief. 

The hypocrisy shocks us now.  One lady, quite possibly one of an ‘evangelical’ disposition, feels sorry for and takes pity for someone she believes to be a runaway apprentice – Huck – but boasts about unleashing the dogs on a runaway slave – Jim.  Twain said that ‘a sound heart is a surer guide than an ill-trained conscience,’ and he certainly got that right.

Three things will trike you quickly about this book – it is a ripper of a yarn; it is written in a graphic vernacular; and it tells home truths about America as it was – and, sadly, still is. 

On each of those grounds, it is a wonder that T S Eliot was a fan.  And he was more than just a fan.

The Adventures of Huckleberry Finn is the only one of Mark Twain’s various books which can be called a masterpiece….Huck Finn is alone: there is no more solitary character in fiction.  The fact that he has a father only emphasizes his loneliness; and he views his father with a terrifying detachment.  So we come to see Huck himself in the end as one of the permanent symbolic figures of fiction; not unworthy to take a place with Ulysses, Faust, Don Quixote, Don Juan, Hamlet and other great discoveries that man has made about himself.

Well, there you go – none of those five characters – or ‘permanent symbolic features of fiction’ – is a bottom-feeder.  Each is, apparently, a great discovery that man has made about himself.

Some of the most hilarious passages in the book concern two grifters known as the King and the Duke – David Garrick the Younger and Edmund Kean the Elder – who scam hillbilly towns by posing as actors.  They have a killer merchandising card: ‘LADIES AND CHILDREN NOT ADMITTED.’  That really winds up the locals.  (Before the election of Trump, you may have thought that kind of mockery was over the top.)

But how could they leave Jim on his own on the raft on the Mississippi when any number of people would rush to seize him for the reward?

He was uncommon bright, the duke was, and he soon struck it.  He dressed Jim up in King Lear’s outfit – it was a long curtain calico gown, and white horse-hair wig and whiskers; and then he took his theatre paint and painted Jim’ s face and hands and ears and neck all over a dead dull solid blue, like a man that’s been drownded nine days.  Blamed if he warn’t the horriblest looking outrage I ever see.  Then the duke took and wrote a sign on a shingle so –

Sick Arab – but harmless when not out of his head.

And he nailed that shingle to a lath, and stood the lath up four or five foot in front of the wigwam.  Jim was satisfied.

Heartless or malicious people can’t write like that.  It is therefore sad – if perhaps not surprising – that some members of the American academic establishment think this book is ‘racist’ and that it should be banned from schools or the like. 

Some get exercised over the repeat use of the word ‘nigger’.  It is not a good idea to try to resolve issues of moment by recourse to labels.  It is as hard for me to think that the author of Huckleberry Finn was loaded against black Americans as it is hard for me to think that the author of Kim was loaded against the peoples of India.  The whole of the book in each case refutes the allegation.  Rather, in my view, the charge reflects a prejudice in the mind of the person making it. 

The two novels have a lot in common.  The hero of each is a boy.  He falls in with a man who is older than him and who is of a different race and a different world.  They embark on a journey, physically and morally.  The novel is about their coming together – like Don Quixote and Sancho Panza.  If we were a little less Anglo-Saxon about all this, we might even say that this was a love story. 

However that may be, Huckleberry Finn, like the other two novels just mentioned, is a testament to humanity that can stand however many readings you need for a decent fix.  So, read it say once a year – as Faulkner said that he did with Don Quixote – and leave those dreary drongos to strain like gnats at a camel.

Here then is T S Eliot again, a man not given to sweeping praise.

What is obvious … is the pathos and dignity of Jim, and this is moving enough; but what I find still more disturbing, and still more unusual in literature, is the pathos and dignity of the boy, when reminded so humbly and humiliatingly, that his position in the world is not that of other boys, entitled from time to time to a practical joke; but that he must bear, and bear alone, the responsibility of a man.  It is Huck who gives the book style. The River gives the book its form.….

And it is as impossible for Huck as for the River to have a beginning or end — a career. So the book has the right, the only possible concluding sentence. I do not think that any book ever written ends more certainly with the right words:

‘But I reckon I got to light out for the Territory ahead of the rest, because Aunt Sally she’s going to adopt me and civilize me, and I can’t stand it. I been there before’.

I wonder if Ken Kesey had that ending in mind when he ended One Flew Over the Cuckoo’s Nest with the words: ‘I been away a long time.’

The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

After reading another biography of the English statesman and jurist, Lord Haldane, and being reminded that he was trained at Edinburgh and Gottingen in philosophy, I bought a volume that he wrote on the subject.  It is called The Pathway to Reality, and it contains the Gifford Lectures he gave at St Andrews in 1902-1903.  This was a time when English philosophy was heavily influenced by German idealism.  Haldane was right into the metaphysics of Hegel.  Very few read Hegel now, and even fewer could understand it if they did.  But this book now comes not just from a different time, but a completely different world.  Here is an example – picked at random (from the third lecture):

The problem of Philosophy may be defined to be to find the highest categories under which to think individual actuality, and to get the most adequate and complete conception of it.  So alone, by this method and by no other, does it seem as though we could reach a view of God.  At the plane of experience of our everyday lives, we do not use the highest categories, because we are not in search of ultimate truth.  Our necessities, our purposes, our standpoints, are provisional and finite only, and we have no need to go beyond them in the organisation of our view of experience.

How would it be if you got on a plane for London and as you take the first sip of Scotch and soda, the guy in the seat next to you leans across and inquires eagerly: ‘Could we start, perhaps, with your conception of individual actuality?’  The whole lot is just about meaningless to us now.  We know that David Hume exploded metaphysics, and I now have a better understanding of his famous peroration.

If we take in our hand any volume; of divinity or school metaphysics, for instance; let us ask,  Does it contain any abstract reasoning concerning quantity or number? NoDoes it contain any experimental reasoning, concerning matter of fact and existence? No. Commit it then to the flames: for it can contain nothing but sophistry and illusion.

This is just another case of philosophy winding up in a cold dead end.  But I am old fashioned enough to think that training in it helps train the mind – and God knows we could use as much of that as we can get.  It certainly did not hurt Haldane.  He was a first rate jurist and statesman.

*

Shakespeare presents no such problem for me.  I have all the plays on video and audio cassette.  At the start of the lock-down, I bought the full set of 38 plays on CD put out by Arkangel.  It’s ridiculous.  You get the plays performed in front of you by the best Shakespearian actors in the world – by far the best – and all with perfect sound – for about $10 a play.  I am going through them – at random.  The last three I finished were Titus Andronicus, Two Gentlemen of Verona, and Pericles (with an ageing Gielgud as Gower)None of those is in his top shelf, but there is something that gets me in each one, and in spite of its wanton brutality, I have had a morbid fascination with Titus ever since I saw that marvellous film of it by Julie Taymor (1999).  Otherwise, you can just sit there and let the sound wash over you – as you might with the Goldberg Variations of Bach – even if I sit there with my mutilated Everyman volume of the text – with pencil in hand, like a conductor.  I am always struck again with the wonder of it, and I now find the musical accompaniment surprisingly important and engaging.  Last night I played the first half of Midsummer Night’s Dream.  I saw the famous 1970 RSC production in Melbourne, and I have seen it in our Botanical Gardens and in the gardens of at least two Oxford Colleges.  And I enjoyed the Hollywood version.  This is not easy to put on film, but I thought Kevin Kline was very good as a mysteriously tragic Bottom – backed by some of the big hits of Italian opera.  And I and my older daughter nearly died laughing when we saw the mechanicals, as the yokels are called, in the AO production of the Britten opera in rehearsal about thirty years ago.  The Arkangel version sounds flawless to me.  The range of the voices over four different levels of characters is something of wonder.  They speak the lines as they breathe the air.  For example, Hermia is played by Amanda Root.  (I used to wonder how she may have suffered under that name until Joe Root was made captain of England.  When I arrived at the courtyard of my college at Oxford on one occasion, a cheery English guy I had met on previous occasions told me and the rest of the motley that ‘Joe Root is not out on 180.’  I said: ‘With a bloody name like that, God might owe him one.’)  Amanda is perfect for this part; she reminded me a lot of the young lady who played Natasha in the BBC War and Peace – the gushing exuberance of a girl becoming a woman.  And apart from the mechanicals, the comedy is ultra-ripe.  There is that wonderful moment when Lysander’s blood goes up too fast in his pants and the chaste Hermia banishes him to the bushes for the night.  As it happens, that turns out to have been a serious tactical error, but you wonder how many times that scene gets played out on a park bench, or a back seat at the Moorabbin Drive-In.  Almost immediately, the now drug crazed Lysander repudiates Hermia and pants his newly found lust at Helena, and she gets the line of the night:

Wherefore was I to this keen mockery born?

When at your hands did I deserve this scorn?

We do not know if Chaplain, or the Marx Brothers, or the Goons saw this great comedy, but we do know that it was and is part of their and our heritage.  It is another example of the remark by someone – perhaps Olivier – that being with Shakespeare is like touching the face of God.  In a way that is far beyond the dreams of Hegel or Haldane.

*

Lawyers tend to specialise, but they should try to stay as general as they can for as long as they can.  In addition to specialising, some also confine themselves to one kind of client.  This can be very damaging.  Some people act only for insurers.  In the U S, some first amendment lawyers act only for the press. In Australia, some criminal lawyers act only for the accused – and risk getting bitter and twisted about the coppers or becoming indifferent to conduct that does serious harm to people; like psychiatrists, they risk being adversely affected by what they encounter on the job.  The worst kinds of one-sidedness that I see is in industrial relations where many operate only for employers or employees – and trade unions.  These people can end up terribly blinkered – biased or prejudiced, or politically committed.  And all those conditions are the precise opposite of being professional.  It is fundamental to our legal process that you hear both sides before forming a judgment.  In my view, lawyers should seek to apply that principle to their practice.  It is to my mind obvious that lawyers who are used to seeing both sides because they act on either side are much better equipped to look after their clients than those who only get to see issues from one perspective.  In my twelve or so years running a statutory tribunal that dealt with disciplinary issues, I frequently encountered lawyers who showed problems in dealing with either of those issues.  Because the statutory body ran an essential government service, the fire brigade, whose members belonged to a fiercely protective trade union, there were often ‘industrial’ issues which would lead to a Labor oriented firm being instructed on behalf of the union.  Then I might have an industrial law barrister in front of me.  But if the charge alleged conduct that constituted a criminal offence, I might have a lawyer from the criminal bar before me.  One day I could get some crusading union lawyer playing to the gallery and singing the union anthem – when the punter’s best interests would be served by a quiet ‘Sorry, but I promise it will not happen again.’  The conflict of interest was palpable – embarrassingly so.   Then I could get some bull-nosed crusader from the criminal bar who would decide to savage the investigating officer for old times’ sake, and then you would get a novice who would take the fifth – which is a form of suicide before such a tribunal.  These were difficult and frustrating times for me.  Because some counsel were unable to do their job professionally, the tribunal can be put in the difficult position of trying to remain neutral while juggling with the rights of the accused.  It got even worse when industrial advocates appeared.  They may have had some rough training in industrial advocacy, but that was far from being enough in that kind of tribunal.  After I had made sure that word got to the union to that effect, that practice stopped.  Something similar happened when I was told that the Crown would not brief counsel to appear before me in tax cases if they had appeared for the taxpayer.  That practice looked pernicious on more than one ground, and the Crown on advice cut it out.

The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

From about 1983 on, I usually found an excuse to go overseas at least once a year.  I had done the mandatory hitch-hiker’s guide to the Continent in 1966-7, but I wanted to see more of the world – and in rather more comfort.  Although I would do it hard down the back of the aircraft for about twenty years – until I resolved not to go long haul ever again unless I was at least in the middle of the aircraft.  I would usually attend a conference – and I did find it very helpful to swap notes with lawyers from all round the world – and when Blakes opened an office in London, that gave me another reason to go there.  I wanted to go to all the great cities, which I have done, and through multiple visits, to be able to feel quite at home in London, Paris, Berlin and New York.  I have done that, and I am very glad that I have.  Each of those cities is special for me.  My favourite may be Berlin – I am very fond of the Germans – but for business reasons, I visited London far more than the others.  And after the first couple of visits, I stayed at the Cavalry & Guards Club at the top of Piccadilly, opposite Green Park.  I loved the place, and it in turn gave me reason to keep returning to London.  I felt completely at home there – more so than at the Melbourne Club.  (The Guards had women members – as does the British army – and this may have helped me feel at home.  Both my daughters would stay there later.)  There is a club bar on the ground floor next to a courtyard garden.  Upstairs, there are two dining rooms.  Outside the main one, there is a lounge with comfortable armchairs in floral fabrics, standard lamps and small fires.  You have your cocktail there, order your meal, go in for dinner, and come back out for coffee.  London clubs recreate the atmosphere of home so well.  This is close to my idea of civilisation.  The breakfasts remain for me a joy forever.  The accommodation is basic – in the bachelors’ quarters it can be downright barbarous – but I have so many happy memories of my time there.  I will just mention two anecdotes that may help explain my great affection – love, even – for this club.  I flew in one day from Budapest.  It was a beautiful sunny day as we flew up low along the Thames and up to the west end.  I could just about point out the Cavalry & Guards Club over Piccadilly from Green Park.  You feel like tapping the pilot on the shoulder: ‘If you could put me down here, Sportsman, it would save a lot of buggerizing around on the ground.’  When I got to the Club, about three hours later, Peter, the porter, was on his own, shirt open, braces, and toast on.  You can fire a cannon through these places on the weekend.  I had known Peter for years and I was very fond of him.  He was at peace this day.  David Gower was in, and batting beautifully.  I got my key and lugged the bag up to the single quarters on the third floor.  Window on to Piccadilly; dunny 10 yards one way; bath – no shower – 10 yards the other way.  After a decent interval, I went back to see if there was a room free in the married quarters – where there are showers – en suite.  But the mood was very different.  The toast has burnt, and Gower was out – the bludger!  I asked Peter about the married quarters.  He gave me a very pained look and said ‘You don’t want to change rooms already, do you?’  Well, shit, of course not.  The very idea was ridiculous.  I sloped off to the RAF Club just up the road for a couple of heart starters and a meal in the Buttery.  A few years later, I went down to my Club for breakfast on a Saturday – a real innovation for the Club.  Two youngish gentlemen were sitting near me – immaculate in pin-striped civvies with regimental ties on Jermyn Street shirts – under regimental haircuts.  They were obviously cavalry officers.  They were about to resume rehearsing a ceremonial event across the park – at Buckingham Palace – possibly the Trooping the Colour – I don’t know.  One of them appeared to be finding the whole thing very tricky – and I hoped that Her Majesty’s security did not rest on his shoulders alone.  As they got up to leave, he bent over and picked up a sugar cube.  ‘Take a piece of sugar for the horse.’  Well, moments like that make the whole bloody thing worthwhile.  You can’t dislike people who do that.

*

The style of London clubs may be exportable.  It has certainly affected the way I Live now.  When I went back to the bar, I had a five year annuity from Blakes to help with the transition.  They were sensibly generous.  I could afford to set up chambers as I wished.  In my first manifestation, I had been consumed by the need to build what for me would be the best library possible – especially on legal history, which was and is a large part of my intellectual life.  I spent a fortune on law reports – all made next to useless by computers.  I was determined to abandon the old style partner’s desk and bookshelves.  I bought a wooden roll-top little desk to go against one wall.  It went with two dining chairs in bright lined fabric, one for me, and one for a client.  There were three wing chairs in floral fabric and one low armchair in a fine fabric with the badge of Florence.  There was a sofa in mahogany leather, two lamps, two coffee tables and a small bookshelf with a CD player.  The walls were festooned with seriously good aboriginal paintings, framed photographs and contemporary art.  It was a very comfortable place to work and talk in.  Brendan Griffin drilled the walls to plug the paintings.  A lot of that is now at home in Malmsbury where I have two large living rooms separated by double doors.  I call the décor of the main room ‘1948 Paris Dambusters.’  There are the winged chairs in floral fabric, and the Florentine armchair; a small oak drop side table with two dining chairs with ridiculously expensive fabric with Chines motifs; a sofa in faded Sanderson linen; a wooden cabinet with painted doors to hide the Grundig TV; about five little lamps each with its own style and memories; a large stylish white Ikea bookshop with the best books described in the four books I have written about; two coffee tables; a Chines style cocktail cabinet, and two smaller wooden cabinets, both with painted figures; one standing sculpture; various ornaments from all over the world; another bookshelf with books of distinction; a display of the operas and jazz musicians I live on; serious paintings of aboriginal and pop art – the latter may well be my favourite; A Marantz player with two English speakers in white on the Ikea shelf; and works on paper by Blackman, Boyd, Nolan, Percival, Smart, Storrier and Williams – and a small framed original cartoon of Keats; and a mask from India and one from Venice.  The adjoining room is similar, with another sofa in floral fabric, two wing chairs in toile, and the mahogany desk that my mum and dad got made for me in Hong Kong in 1963.  The idea is to surround and secure myself with what I live for.  It works and I love it.

*

In  reading a very full biography of Karajan by Richard Osborne, a man who really knows his subject, I was struck by the similarity between the roles of a conductor and of a coach of AFL or rugby.  They want to get the best out of their men, singly and as a group, but there may well be a reserve of raw fear.  Playing in an  orchestra may not be brutal on the body as well as the mind, but there is a hell of  a lot on the line in training, effort, name and money.   I have seen Craig Bellamy, of Melbourne Storm, with his men in what would be called his soft, frank paternal side when they were at the lowest ebb a footy club could ever get to.  (They had just been belted for dishonest breaches of the salary cap and their season was over.)  But I have also seen grown men drop their voice after they had felt his anger.  Mr Osborne has one musician saying of Karajan ‘you were always afraid that one day he might suddenly turn.’  Mr Osborne says Karajan did not humiliate people but:

Since Karajan never raised his voice much above the semi-audible mutter, rebukes, when they came, put the fear of God into players.  The silence was so intense you could hear a mute drop two blocks away. By contrast, singers or orchestra players who threw tantrums were studiously ignored.

Karajan, it was said, affected not to notice when during a long  rehearsal of the slow movement of Beethoven’s Fifth, one cellist took off, saying ‘That’s it.  I’ve had enough.’  Elizabeth Schwarzkopf, the leading soprano of her generation, said Karajan was like a cat, ‘sleek and attractive but capable of suddenly lashing out.’  Mr Osborne is gentle and discrete about one difference to Mr Bellamy.  ‘There were girls as well…Floosies came and went.’  Well, the Italians do not have exclusive rights there.  And we are told that after a long day, Karajan liked nothing better than a light supper and then lying on the floor to watch the Marx Brothers.   An English viola player felt exalted and honoured to be asked home to dinner with the Italian maestro in New York.  Toscanini wolfed down his pasta and chianti, and retired to watch TV wrestling – with the most fruity, obscene abuse straight out of the Brooklyn gutter.  The maestro was a man after all.

Passing Bull 256 –Unexpressed assumptions

Sometimes you see an argument or comment that is based on an assumption that is not express – what is elsewhere called an ‘inarticulate premise.’  In the press the other day, the following appeared:

The orthodoxy that Joe Biden’s executive team will make Australia comfortable is spectacularly wrong in one respect: the appointment of former secretary of state and presidential nominee John Kerry as special envoy for climate.

There is one certainty.  Kerry will create problems for Australia and the Morrison government as a consequence of his brief from the incoming president…..

It will be Kerry’s rhetoric, his symbolism and his close ties with Europe on climate change that will put inevitable pressures on the Morrison government.

The writer says that Kerry will create problems not just for the Morrison government but for Australia.  It follows that for this purpose at least, the writer sees the interests of the Morrison government being identical to those of the nation of Australia.  Kerry is far more in favour of real action on climate change than the Morrison government. The unexpressed assumption is that this will be bad for Australia because of the pressure Kerry will put on its government – in of course the name of the United States.  But what if you think that our governments of all colours have done badly on climate change and should do a lot more?  If you hold that view, the appointment of Kerry does more than give comfort – it is cause for celebration.  And recent events in New South Wales suggest that a real majority of Australians have that view.  The report merely records the prejudice of the writer and the paper.

Bloopers

‘I have spoken often about doing business responsibly, including about these failings, since earlier this year. I am determined we have a leadership position and hold ourselves accountable in this regard,’ he said.

ABC NEWS 26 November, 2020, Andy Penn, CEO Telstra.

Tripe.

The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

There’s more to history than ‘accidental judgments and casual slaughters.’  It is the story of life and my life at least would be useless without it.  There are two things to remember.  First, history is a collection of biographies.  Secondly, the better the story is told, the better we can follow it.  Let me give examples from two new biographies that I am currently (October, 2020) reading – Haldane, by John Campbell, and Hitler, Downfall by Volker Ullrich.  When in second year law, I decided to concentrate on French and Russian biographies and legal history, I think the first book I read was a biography of Lord Haldane – who was a lot more than a lawyer and Lord Chancellor.  He was – wait for it – a philosopher.  He had studied in Gottingen as well as Edinburgh.  He claimed to understand Hegel – and very few people – let alone an English lawyer – have tried that one on.  (Kant must have seemed a breeze after that.)  In The Philosophy of Humanism, he said ‘It is in the quality of the struggle to attain it, and not in any finality we suppose ourselves to have reached and to be entitled to rest on, that truth consists for human beings.’  English lawyers don’t talk like that – neither do English philosophers.  Haldane said about Adam Smith that he ‘had a perception that abstract propositions, however carefully stated, can express only one aspect or side of things, and are therefore wanting in truth, a quality that belongs to what is concrete alone.’  That statement might be said to represent the upshot of English philosophy for that century.  The author refers to Haldane’s ‘ability to hold a range of opinions in harmony’ – the hoped for benefit of a liberal education.  Haldane was in government with giants – Asquith, Lloyd George, and Churchill – that now leave us feeling glumly small.  He was of course on first name terms with Einstein, Keynes, Laski, and Russell.  And Natty.  Nathaniel Rothschild.  Disraeli may have advised him that if you want to run an empire, it helps to have an in with the Rothschilds.  You never know when the Crown might need fast cash in steep amounts.  Like when the Empress of India picked up the Suez Canal.  Haldane was instrumental in arming England for the Great War and he laid foundation stones for MI5, MI6, the LSE, Imperial College, and the ‘redbrick’ universities.  And with Asquith, Lloyd George and Churchill, he launched the Welfare State in England.

*

Now, from the second book comes hubris touching on madness.

‘It will be a mass attack in the grandest style,’ Hitler and Goebbels agreed.  ‘No doubt the most enormous that history has ever seen.  The example of Napoleon will not be repeated.’  The dictator and his propaganda minister did not find it at all ominous that the start of Operation Barbarossa fell on the same day that the French emperor had crossed the river Neman with the Grande Armée 129 years earlier.

That was on 24 June 1941.

‘Our situation bears a horrible resemblance to that of Napoleon in 1812’, the tank group commander Colonel-General wrote on 12 December.  ‘The Russians were right that the winter put a halt to us.’

Hitler was infatuated with Wagner’s Gotterdammerung, The Twilight of the Gods, but he was the sole author of his own demise.  The Russian resistance was demonic because the master race was engaged in a war of annihilation.  Then after Pearl Harbour, Hitler declared war on the United States.  He told Goebbels the U S posed ‘no acute threat.’

They cannot change anything about the situation on the Continent.  We are sitting secure in Europe, and we are not going to let the reins be taken from our hands.

For the second time in history, the Russian peasant soaked up the evil coming from Europe with their blood.  This whole chapter is almost unbearably brutal.  About twenty million Russians would die in the conflict – about seven million of them were civilians.  Slavs were as disposable as Jews.  ‘This gigantic expanse must of course be pacified as quickly as possible, and this can best be achieved by shooting everyone who even looks at us the wrong way.’  The Nazis subjugation of the Russians would make the Spartans treatment of the helots look benevolent.  Only God could assess the degrees of evil.  The next chapter is ‘The Road to the Holocaust.’  In my view, anyone claiming to be civilised needs to come to terms with evil.  To understand humanity, you need to try to understand inhumanity.

*

In 1985, the Victorian government briefed me to draw up a bill for an act of parliament.  It was, I think, the first time that the government had gone outside for the work ordinarily done by parliamentary counsel.  The subject might fairly be said to have been tricky.  This was a Labor government led by a prominent Labor lawyer, John Cain, that was proposing to legislate to bring under the control of government all fees charged by lawyers.  For obvious reasons, some care would need to be taken in framing this law.  People had to be free to contract out of the law – as you would expect – and it would be scrutinised by some of the best legal minds to see how the law might be complied with – or avoided.  This was at the time when ‘plain English’ drafting was in vogue – and gender neutrality was politically mandatory.  It was not easy trying to comply with the various wishes of government.  On one occasion I told them that they might have a choice – did they want something that might look pretty – or something that didn’t look so good but had a sporting chance of working?  I found the whole exercise to be very enlightening.  It meant that I had to be very careful that any preconceptions I had – and it would be odd if I had had none – did not interfere with my work.  I was there to give effect to the wishes of the client – no matter what I personally thought of those wishes.  In other words, I had to be intellectually honest.  This was a good experience to have for drafting generally.  The work was a bit harder then – before computers made drafts so malleable – and it taxed my then secretary mightily.  I was just about to sign off when the government lost interest and called the project off.  I gather that what was called ‘the big end of town’ – quite possibly in the form of Alan Cornell, the man about to be become the senior partner of Blake & Riggall – had persuaded Mr Cain and others that this kind of government imposition might be bad for business – and not just the business of lawyers.

*

In 1985, the year I turned forty, some kind of mid-point, I suppose, I took two decisions that changed the whole shape of my career and life.  One was to accept appointment on a sessional basis to run the division of the tribunal that the Victorian government was setting up to hear and determine state tax cases.  The other decision was to leave the bar and go back to Blake & Riggall, which I was aware was likely to merge with Dawson Waldron in Sydney.  Things change.  Before I went back to Blakes, I insisted on meeting all the partners – then about eighteen, I think.  When I left the merged firm of Blake Dawson in 2002, it had about four hundred lawyers all round Australia and in England.  That was about the number of lawyers at the Victorian bar when I first signed on in 1971.  Now (October, 2020) there are about 2400 at the bar – subject to the ravaging by the Covid virus.  The two moves were related, and I have been very fortunate with that relation.  I had decided that I did not want to go the bench – which at that time was the ultimate object of most barristers of merit.  (That is no longer the case.)  But being appointed to a tribunal, to hear and determine cases that involve seriously fine legal issues, meant that I could in my own time, more or less, experience just how that kind of forensic inquiry works.  It throws great light not just on how advocacy from the bar table leads to adjudication from the bench, but on your whole understanding of the law.  And going back to the other side of the profession also completely alters your outlook on the legal world.  From spending so much of your time resolving conflict, you can use your knowledge of the law and people to help them come together – with a view to avoiding conflict.  It’s like going from negative to positive.  And the two changes blended so well to change my outlook and life.  I was very fortunate.  Each move led to a change of aspect that any trial lawyer would derive great learning from.  If travel broadens the mind, so does a simple change of course – especially a change of hemisphere.

*

The new Tax Division of the AAT inherited a back-log from its predecessor in 1985.  It took about six months to clean that up.  From then on, I could manage the list as I wished.  State tax cases are not like federal cases- which often involve shockingly complex legislation and equally complex schemes to get around it.  State tax cases often involve easy looking questions that can be very hard.  What is a debenture?  What is a covenant?  What is a charity? What is a contract of employment?  When does a contract for the sale of land become binding?  What kind of breach of contract enables the other side to walk away?  There were two issues in getting the new tribunal working in this area.  One was that the legislation setting up this new role for the AAT was part of a whole new package of reform of administrative law that greatly improved the rights of people in dealing with their government.  But there were old cases, some in the High Court, that gave revenue officers the chance to argue that the new dispensation did not apply to tax.  The results appalled a common lawyer like me, but it took three or four years of very hard grind to pull them around.  On some occasions, the atmosphere got very tense.  More than one tax commissioner sent a heavyweight silk down to say that I had not understood their practices and that I had said things that had sadly offended them.  On one occasion I had to get the Solicitor-General, Hartog Berkeley, QC, to tell them to pull their heads in.  They gradually came around, and this was I think a reform that worked.  The other problem came from the prevailing attitude to the conduct of litigation.  This was in the era (1985 plus) where the new regime of the court control of litigation was coming to new heights.  I thought this practice was making the process a lot more complicated and expensive, and using up so much time of both judges and lawyers.  Instead of judges doing so much to orchestrate a process, I thought they should get the parties into the ring for trial as soon as possible, and then control the hearing very firmly.  After a year or two we got the following model.  The Crown would refer its disallowance of an objection to an assessment to us.  I would say that we would resolve it within six weeks.  I would fix a hearing date in about four weeks’ time.  There would be no prior hearing or directions or witness statements.  We would usually finish the hearing before lunch.  If necessary, I would fix times for the examination of witnesses and submissions.  I would try to give my decision on the next working day.  We applied that model to most cases for about fifteen years.  A lot of lawyers grizzled, groaned, protested, and appealed.  I never heard a complaint from a litigant.  The Crown appealed as of course and as of right almost every case they lost.  They had a legitimate interest in getting a ruling from the Supreme Court.  In the end, three of mine were dealt with by the High Court.  I have never understood why decent judges get so uptight about what happens on appeal from them.  It never troubled me.  As often as not, I did not even get to hear to hear about it.  I was intent on expedition – fairness, of course, but at a properly controlled speed.  Lord Mansfield knew the truth.  Most delay in litigation comes from the lawyers.  No litigant with a good case wants delay.  Delay suits those with power and wealth.  In 1215, the English Crown acknowledged that justice delayed is justice denied.  In my, view the fall from grace of our trial lawyers and systems has come from our failure to deal with delay.  It is partly a failure of nerve and partly a sustained flirtation with the inquisitorial – which as a matter of simple but long history is not the way we practise the law.  Well, all that in me sounds like a broken record – but it does hurt other people more than me.