The lotus-eaters on the left

When Ulysses was trying to get back home to Greece after the Trojan War, he and his crew came upon a very dangerous island.  The people there ate the fruit of the lotus.  This fruit had the effect of a narcotic drug that induced people to find bliss through doing nothing.  If Ulysses had not manhandled his men off the island, they would still be there, sad monuments to apathy.  This is perhaps a story from mythology that the radical left government in Greece could have shown more respect to as it converted a train-wreck into a ship-wreck with frightening consequences for a people looking for a leader to take them out of moral oblivion.

The rest of the world is just sick of it, if not bored, but this awful example of the left in power and in action might be instructive on one question – what does it mean to be left?  My own view is that both the terms ‘left’ and ‘right’ are labels that type people and should therefore be avoided – they are at best misleading and at worst dangerous and demeaning.  But here we have a party and government that wears this badge with pride.  What do they say about what it is to be left?

The distinction comes from the sides of the popular assembly that drove the French Revolution into the Terror in which the left sought to liquidate the right.  That was a case where the downcast were driven for revenge for the past and hope for the future, and they prevailed over those who had not been victimised and who wanted to save some of the past and who were less sanguine or more realistic about the future – and after which both sides gave way to a dictator and emperor who convulsed Europe in a generation of wars that left five million dead.

Elsewhere, I endeavoured to state the differences between the left and the right as follows:

The ‘left’ tend to stand for the poor and the oppressed against the interests of power and property and established institutions.  The ‘right’ stand for the freedom of the individual in economic issues, and seek to preserve the current mode of distribution.  The left is hopeful of government intervention and change; the right suspects government intervention and is against change.  The left hankers after redistribution of wealth, but is not at its best creating it.  The right stoutly opposes any redistribution of wealth, and is not at its best in celebrating it.  The left is at home with tax; the right loathes it.  These are matters of degree that make either term dangerous.  Either can be authoritarian.  On the left, that may lead to communism.  On the right, you may get fascism.

For reasons I will come to, I might add that the left is inclined to oscillate wildly between strict legalism and the broadest equity.

Have we seen these features in Greece?

The problems facing Greece are that it has hardly ever been decently governed let alone well governed.  It does not make enough of anything.  It does not create enough wealth.  It does not collect enough tax, but it pays out too much in social service benefits.  Above all, it is hopelessly corrupt in government and business – the in-word is ‘clientelism’, which fittingly comes down from an ancient Roman form of patronage.  Greece just keeps promising to reform, and reneging – and holding its hand out.  Well, there is fertile ground for a reforming radical government, surely.  Not on your Nelly, Mate.

The first rule is that nothing – nothing – is our fault.  It is always someone else who is to blame.

This is because we are the poor, the downtrodden, the oppressed.  We don’t like the term victims much because it would put us in bad company.  It is sufficient to say that we are on the side of the angels.  (We don’t say that God is on our side because the Comrades are not so big on Him or Her.)  We never had the opportunities the others have had, and we have never held the power the others have.  We are the people described on the Statue of Liberty, except that we stayed at home.

It follows that we are right and the rest are wrong.

If you think that this is silly, I agree, but you run into a lot in I R here at home.  You might be surprised how many people appear to be committed to the proposition that the worker can do no wrong – it is always the fault of management.  (Well, ‘capital’ would sound old fashioned and silly.)  The other day I had to endure hours of listening to I R lawyers arguing about whether grossly pornographic material was offensive and to an argument that the employer was at fault for not issuing instructions about what it considered offensive in its workplace policy documents – notwithstanding that even the accused thought that this was an insult to his intelligence.

If you think I drew the short straw, shortly afterwards the Fair Work Commission held that a dismissal was unfair in part because the behaviour complained occurred after the employee had been given a lot to drink at a party put on by the employer – free of charge.  The Greeks are not alone in creating their own fantasy world.

How does it work?  In the normal way – you invent your own language to express your own demonology.  Cutting expenses you cannot afford or repaying loans you could not afford involves self-denial and a form of hardship, albeit a hardship that you have brought upon yourself.  What Greece needs is a period of severe, even harsh, self-discipline, and prolonged abstinence.  Imagine trying that on with the lotus-eaters!  So you give that prescription its English title, austerity, and then you demonise that word.  Then you forbid those representing the lenders to use a name that denotes harshness.  People are forbidden to refer to the ‘troika’ – we must refer to the ‘institutions’.  And if you think that is silly, which it is, be careful how you say so because if you say they are being childish, which they are, that will be taken down as evidence of harshness and oppression on your part.

Then you buy your own expert to say that austerity is not just immoral but bad policy.  And there are plenty of economists who say that if the creditors want too much they will hurt or destroy the capacity of the borrowers to repay them.  This makes sense – sometimes it pays a creditor to allow some slack to the debtor.

There are at least two problems with the way the Greek left has presented this case.  One is that they use terms like freedom, democracy, sovereignty, dignity, self-respect and independence.  Now, we all have to invoke loaded terms now and then, but all these things are put in play when a nation joins a federation that involves a form of commercial partnership, or borrows money on terms and for a security.  We understand that if we default on a loan for our house, the bank will sell the house, and we will not get far by crying that the bank is being harsh, oppressive or austere to us.  And even if we can make the case that the bank itself would be better off it chose some course other than enforcing its right to the full now, that is a matter for the bank.  It is beyond our legal power to restrain it on that ground alone.  Both parties to the agreement have rights and property in those rights, and the bank can do that to us because we have put it in that position.

It is the same with Greece and its partners and creditors.  Even if Greece could persuade someone in relevant power that the best interests of the partners and creditors would be served by their proceeding differently, there is no way of stopping them using their rights and property as they think fit.  That is, if you like, a consequence of their sovereignty, and the expression of a common will by democratically elected leaders of the other partner nations.

There are about eighteen other sovereign nations who have rights and property to think about, and Greece has so conducted itself that it does not now get any support from any one of them.  And that weasel word ‘mandate’ is even more slippery here.  A change of government or a referendum in one entity does not change legal relations between it and others.  The Greek left does not I think accept this.

The other problem with the attempt to get to the high ground by talking of democracy or sovereignty is that it ignores the facts of what Greece is saying to its partners and creditors.  The Greeks are not just saying that you cannot get blood out of a stone – they go on to say that if you try to do so we will pull the pin on our dynamite vest.  Time and again the former Finance Minister said that the rest of Europe and the creditors would have to cave in because they cannot afford the cost of a Greek default on its loans.  They have pointed a gun squarely at the rest of Europe.  After last weekend the threat has changed – it is not so much that we will blow your brains out, as that we will disembowel ourselves.  This I think is what led the European president to say that the Greeks should not allow a fear of death to cause them to commit suicide.

Many observers thought that the referendum was a bad idea.  We were again told that this was democracy at work – to what end?  The referendum just asked people to say whether they agreed to all the terms solemnly put by eighteen nations.  The Greeks were not asked what they might accept, and some balance may have been added by ‘2.  Would you like to get into bed with Vladimir?’  (He has no money either.  Russia is already a pariah on the periphery.)  And the Greeks certainly got wrong the reaction of the lenders.  When the lenders refused to keep pouring money into a nation that is utterly insolvent and engaged in blackmail, they were branded as terrorists and war criminals.

This is I fear the real problem for this kind of radical left.  At bottom, they just want and hope that other people will somehow act better – that is, more in a way that is amenable to the views and lifestyle of those on the left.  This became clear to me during the two most recent episodes of Dateline London, a weekly panel show on the BBC on which four journalists from different backgrounds discuss current events.  They have difficulty finding journalists to give a rational account of the Islamic world, and they now have the same problem with Greece.  On one episode, three left leaning journalists lamented the failure of Europe to do more for migrants – there may be 55 million of them out there.  On the last episode, two left journalists, one from Le Monde and one from The Guardian, savaged the lenders and partners of Greece as being heartless and cruel, in the Le Monde case not showing enough ‘solidarity’ with Europe, and in the case of The Guardian, wheeling out all the usual suspects for conspiring against the downtrodden and oppressed.

It occurred to me in each case that these people were, au fond, just wishing that other people were somehow nicer.  What has this wishful thinking, this hankering after narcotic lotus flowers, got to do with political journalism?  Why not look at the world as it is?  What nation is happy with its Muslem minority?  How many hundred thousand more would any nation be prepared to take where hardly any of its people evince a burning moral resolve to have a refugee from a nation disfigured by religious war as their next-door neighbour?  How much solidarity does a taxpayer in Iceland or Finland feel for the concept of Europe when he is being asked to give up property or pay more tax in order that Greek retirees may live in secure financial comfort?

It occurred to me that these journalists were not asking themselves the right questions.  They are secure behind the moral superiority of their own dogma.  They are quite unable to see the other point of view.  This is why this Greek negotiating team was so awful.  It is why they burnt up so much political capital and left themselves friendless, and alarmingly desperate.

The Finance Minister said that the banks would reopen on Tuesday after a new deal had been struck.  He said that would take an hour.  Why?  Because they had already been at it for five months.  Then he wondered about asking a court to grant an injunction to restrain the eighteen other sovereign entities from dissolving the union.  We saw irrational optimism and dogmatic conceit end in madness.  The Greek left presents the absolute threat – they have the answer!  They can even predict the future!

But if these lotus-eaters do not get their way, they behave like very nasty spoiled children.  The creditors now are trying to measure the cost of another load of assistance to a bankrupt nation against the cost of humanitarian assistance to a stricken people.  But when Greek people start dying for lack of medicine, it will not be their fault.  It will be the fault of those dreadful outsiders for not doing enough to allow the Greeks to maintain the style of life to which Europe and its money has accustomed them.

So, while I still think that the terms left and right are slippery, perhaps they may come with some useful amber or red lights.  I regard the whole discussion as beside the point.  It looks to me that the marriage was a bad one from the start and that there is not one ounce of that trust and confidence that are needed to sustain such a partnership.  If it is suffered to carry on until the next explosion, then it may be that the threat of self-immolation has worked again.  Would you really trust a crowd that takes so long to get to the point, that wants to drag out the argument on everything, even points that do not matter?  People who know business know that the best contracts are put in a drawer and never looked at again.  You do not get this with the Greeks – or our I R lawyers – or the Persians talking about the bomb.  The result is that any resulting contract is not worth the paper it is inscribed on.

In the meantime, the Marxist blogger from Sydney University announced his retirement on his blog, and the former Finance Minister then just picked up his helmet and rucksack, and pointed his motorcycle to the wine dark sea in his quest for more lotus-eaters.  Every prediction that he had made had not come about – but he was not wrong.  He is never wrong.  Those poor people in the north were plainly irrational.  They were not even reading from the same script.  They too could end up as lotus-eaters.

PS SPORT

I agree with Our Dawn.  I do not want those half-wits posing as tennis–players representing me in anything.  If we are going to cancel passports, we could start with these twerps – and the Fanatics.

Passing bull 2

This is the second note – the first was way back on 20 May – on the failure of public language.  I propose to do it more often – say, once a week.  We are surrounded by bullshit.

On what I thought was a recommendation in The Economist, I bought a book How the French Think by Sudhir Hazareesingh, an Oxford don of Mauritian extraction.  I have long been interested in the different approach to abstract thought and to intellectuals in England and across the Channel – and how those differences affect their laws, lawyers, and histories.  I have written a little book on that subject.

Sadly, my first gulp came with the second sentence in the Preface.  The author says that at school ‘we were served a copious diet of French classics.’  How do you get served a diet?  And how is either a diet or a feed copious?  This book is published by Allen Lane.  Don’t they use editors now?

After a couple of pages I realised that this was not so much a work of analysis as a collection of quotes, like one of those tedious dirges that disfigure scholarship in North America.  In the Introduction, the author tells us his book will explain the five ways in which French thought is distinctive.  One is ‘its historical character (by which I mean both its substantive continuities over time and its references to the past as a source of legitimation or demarcation…)’  Another is that ‘it is striking in its extraordinary intensity (ideas are believed not only to matter, but in existential circumstances, to be worth dying for…)’  Then we are told that ‘cultural centralization’ in Paris is ‘part of the reason why French ways of thought exhibit such a degree of stylistic consistency.’

Hence the Enlightenment Radicals’ notion of popular sovereignty, the exact mirror of the precept of absolutist power; the holistic abstraction of nineteenth-century counter-revolutionary thought, which matched the essentialism of its republican rivals, and the irreducible nationalism of the communists in the modern age, despite their doctrinal opposition to this ‘bourgeois’ doctrine.  This commonality is also the product of shared collective experiences.  Systems of ideas and intellectual currents such as republicanism and Gaullism often represented the maturation of existing social and cultural practices, or the reactions of particular generations to defining (and traumatising) episodes such as revolutions, civil conflicts and wars.

You might, on a good day, distil some sort of sense from all that, but it would be quite untestable, which is what those brought up in the Anglo-Saxon tradition fear from the European love of abstractions, here splattered on the page so copiously.  But does the reader coming into this discussion cold know whether the infection comes from the French or the author?

Next we are told that the ‘idea of knowledge as continuous and cumulative, which is such a central premise of Anglo-Saxon epistemology, is alien to the French way of thinking.’  Since I am having trouble forming an idea of knowledge that is the reverse of continuous or cumulative, I do not know what that means.

One of the reasons for this…is the emphasis on the speculative quality of thought in France.  French intellectual constructs are speculative in the sense that they are generally a form of thinking which is not necessarily grounded in empirical reality.

I do think I understand that the author wants us to follow the basic difference between rationalist and empirical philosophy, but this statement simply says that French thought is speculative because it may or may not accord with the facts.  And that is what we call bullshit.  It is therefore comforting to know that we may not have missed the point when we see that the paragraph concludes with reference to a paper by an Oxford Professor ‘Why One kind of Bullshit Flourishes in France.’

Next – still in the Introduction – we are told that ‘an enduring source of the French pride is their thought that their history and culture have decisively shaped the values and ideals of other nations’.  This large statement prompts an Anglo-Saxon query about empirical evidence.  And Lo! It comes immediately.  The great Vietnamese revolutionary General Giap learned his trade from Napoleon, and then beat up and banished the French.  If this is a source of French pride, they are broad-minded indeed.

Not many people have died at peace in the comfort of existentialism, that body of views that Jean-Paul Sartre became famous for dilating upon.  What was it?  It acknowledged a simple truth.  Shit happens.  The author tells us that ‘Sartre entered the fray in the aftermath of the Second World War, arguing that human beings could escape the contingency of their existence by seizing control of their destiny.’  It is hard to translate that.  Can we abolish the uncertainty of Fate simply by claiming to control our own?  It is hard is it not?  But it is a feature of philosophy on either side of the Channel that the questions are always easier than the answers.

I was disappointed that the discussion of French historians did not touch on the luminous work of Taine or more recently Furet on the way we see the Revolution.  Taine wrote most beautifully, even in translation.  One remark of Taine quoted by the author does convey a large part of the message of the book.  ‘All that the Frenchman desires is to provoke in himself and others a bubbling of agreeable ideas.’ That are not necessarily grounded in empirical reality.

The Passion of Joe Hockey in the Garden of Fairfax

[The following note appeared in an amended, and improved, form in the Gazette of Law and Journalism where it was to be read with a comprehensive case note.  It has now been slightly expanded.]

More than 30 years ago, the ABC said something rude about the late Frank Costigan in the famous Painters’ and Dockers’ Royal Commission.  Frank and his team sued.  We thought that was a bit rough for a crowd bent on destroying reputations – the raison d’etre of Royal Commissions – but I can well recall the late Neil McPhee QC looking at me hard as he told the court that the only way I could win the case was by pleading truth, and that if I did so, that court-room could not hold the damages.

I thought of that when I heard that Joe Hockey had sued over a remark about his being for sale.  If that had a nasty meaning – if a court found that it meant that our Treasurer was corrupt – what courtroom could hold the damages?

Politicians, especially federal politicians, are on the nose here at the moment.  By that I mean that ordinary people do not think well of them – they have a bad reputation.  A person suing for libel claims that a publication has caused others to think less of them.  If the person complaining is a politician, they therefore start behind scratch, because the chances are most people think poorly of them anyway, and are not going to think more of them because a judge decides to give them the equivalent of three years’ salary for a high school teacher.  In fact, that process will very likely cause a lot of people to think even less of politicians generally, and this lucky dipper in particular.

That was one sort of risk facing Joe Hockey when he sued Fairfax for libel.  Another risk was that he could lose.  Another risk was that he might not win well enough –or that he might win too well.  A partner and mate of mine had his life ruined by a series of train wrecks in libel litigation – his problem was that he won too well.  Twice.

The carefully reasoned judgment of Justice White, which runs to more than 100 pages, raises red light appeal points on legal issues of imputations (especially ‘corrupt’), state of mind (malice), reasonableness and damages.  The elaborate judgment might fairly be said to represent millennial evidence of the remark of Professor Milsom that ‘the law is enmeshed in detail to an extent unthinkable when it had to be encapsulated in a jury decision.’  There are, however, practical issues, and our law is determined in practice.

First, why is not a stoush like this between a politician and newspapers heard by a jury?  Why not have ‘the ordinary reader’ decide the big issues, rather than have a superior court judge try to guess how they think?  Justice White said there was a difference between undesirable or inappropriate conduct and corrupt conduct, and that the ordinary reader would have concluded that one article meant that the Treasurer ‘was engaged in a non-corrupt form of fundraising which used the allure of his office.’  Perhaps, but that is a definitive jury issue, and the Twiggy Forrest ‘binding contracts with China’ fiasco shows that our superior court judges may have a lot of trouble in seeing what is blindingly obvious to anyone else.  The Federal Court does not have juries, and it hears common law issues by accident.  It was not set up to hear libel actions.  If this case gets to the High Court, it may have been considered by eight or more federal judges only one of whom has ever directed a jury in a libel action.  And why should not a jury be able to say to a politician, as one did in Victoria to a Premier – you have handed it out, Mate: now you can take some back.

Secondly, the reasonableness test is being applied by judges in a way that will likely see the end of the political speech defence, and encourage the view that truth is the only substantive defence in a real libel action.  Our judges mostly do not know what is involved in running a business, and they have displayed neither understanding nor sympathy for the workings of the press.

Thirdly, the costs of this kind of exercise, even without appeals, dwarf the damages.  That is perhaps one thing for a federal minister with a big Sydney house suing a national publisher, but small publishers can be put out of business – bankrupted – by the cost of WINNING a case such as this – even without appeals.  And all for a tweet.  I no longer believe that the term ‘chilling effect’ is pointless special pleading on the part of the press.  I have come to the view that the law of defamation as it is now practised is really threatening the vital role of the Fourth Estate in our national life.

Finally, is there not something unreal or grubby even about awarding $200,000 to a politician against the press who got their highly critical story just right but who got tripped up on a poster and a tweet?  It is very unsettling to reflect on the maximum compensation that the State allows for the victim of a multiple rape.

Two leading Australian newspapers wrote long and considered pieces saying that our Treasurer was involved in party political financial dealings in a way that did not become him.  It is a sordid fact of political life that politicians solicit partisan political donations by the allure of their office.  The Treasurer sued for libel on those articles and lost.  The court found against him on most of his imputations and allegations of malice.  It made a finding of malice against just one person involved in the publications.  That finding described behaviour (a ‘personal animus’) of the same moral order as the leering, jeering, and sneering indulged in by our politicians every day in the tawdry motley of their parliamentary lives.

Does the ordinary Australian think better of Joe Hockey now than if he had just grinned and borne it?  Does the ordinary Australian think that our politicians and newspapers just deserve each other – and that you can toss in the lawyers with that unlovely lot as well?  Or would Joe Hockey have been better off to have followed the advice of an English Law Lord who described a novel libel claim by a public figure as ‘just another case of the toll levied on distinction for the delectation of vulgarity.’?

People who know about this form of litigation say that you do not sue for libel unless four conditions are satisfied.

  • There is an obvious error of fact.
  • You having nothing to fear from having your affairs turned over in public.
  • You have the financial and emotional strength to go the distance against professional gladiators backed by the big end of town.
  • And you have a reasonable assurance of getting a result that makes all that risk and pain worthwhile.

You can tell those who do not pass these stress tests.  They take home buckets less than the lawyers – if anything.  You can assess for yourself how this case stands up on those criteria, and what it says about the judgment of this Treasurer in making this trip to the roulette table.  The agony – the Passion, perhaps – of Joseph Benedict Hockey may have just begun – appeal, or no.