Having achieved the biblical age, at which all judges must be younger than me, I have decided to release a book a day over the last three days – partly to keep the house in order, and partly in case God takes a different view about departure times. The three books just released are, like the recent one on Summers in Oxford and Cambridge, collections of notes and essays previously released. I would hope that they might all suit the general reader. The collection on legal history might be reserved for lawyers, but it should be mandatory for all of them.
There is plenty of choice for Christmas shopping.
There is a mighty footy match tonight – may peace be upon the Wallabies. They have nearly restored my faith in sport.
Summers in Oxford and Cambridge and Elsewhere
A traveller’s reflections on history and philosophy – and place
Reflections on Prague, Oxford, and the Cavalry and Guards Club
PHILOSOPHY OF RELIGION (OXFORD) 2007
The philosophy of religion at Oxford
OF BERLIN, OXFORD AND ELSEWHERE 2007
Berlin, Dresden, Paris, Oxford (Great Opera Singers), London, Cavalry and Guards and RAF Clubs
A WEEK AT OXFORD AND CAMBRIDGE 2009
Oxford (Hume and Kant) and Cambridge (Post-Modernism – playing tennis with the net down)
BERLIN NOW – A MOLESKIN DIARY 2010
Berlin and the World Cup
OXFORD AND CAMBRIDGE 2010
Wittgenstein at Oxford and Bach at Cambridge
CROMWELL (CAMBRIDGE) 2011
Course taught by Dr David Smith
SOJOURN IN SCOTLAND 2011
Touring the Highlands
CAMBRIDGE AND OXFORD 2013
Not keeping the peace at Cambridge and Chaucer at Oxford
This book is a collection of memoires or essays that were written in the course of travels to Oxford or Cambridge or both to attend summer schools. There is a note on the philosophy of religion and a note on Cromwell, but otherwise the notes consist of anecdotes and reflections more on the places visited and the people I met there than on the subjects that were taught.
I am fortunate to have been able to make these excursions, and I hope that others may be encouraged to do the same.
SOME LITERARY PAPERS
Tilting at windmills
Adolph and Richard
Meditating upon evil – Richard III (Shakespeare) and Adolf Hitler
Anna and Penny
A note on Anna Karenin and Penelope Cruz – mainly the former
Big Four of Shakespeare
A personal miscellany on Hamlet, Othello, King Lear, and Macbeth
Chaucer and hierarchy
The medieval hierarchy of Chaucer
Courtliness and Courtesy
The role of courtliness and courtesy in Shakespeare
Covert acts in Hamlet
Mystery within mystery in Hamlet
Crime and Punishment
A note on the Dostoevsky novel
A note on the novels of Donna Leon
Dead Proud Heroes
The argument, as Milton used to call it, is that the heroes of our two great epics, The Iliad and Paradise Lost, fell through pride. We have grown out of heroes who seek honour through valour and we have grown out of the myth that a woman was the author of our original sin. We look to our epics for heroes for our times. The hero of The Iliad is Priam. He declares that he is human by breaking free of the cycle of revenge. The hero of Paradise Lost is Satan. He has the courage to defy authority and to break the ties that stopped our becoming human. Our epics still show us what we are.
The great novel of Boris Pasternak
Falstaff, Tchaikovsky, and Gatsby
Serendipity, theatre, concert hall and the Storm
Four pilgrims in Chaucer
Four pilgrims in the Prologue for Oxford Summer School
Henry IV at the Globe
A great play in a great theatre
Imagination, snobbery, and enlightenment
The place of snobbery and meaning in literature
A note on the novel by D H Lawrence
Pasternak on Shakespeare
Thoughts of Pasternak on Shakespeare from two works
Poets in prose; and the First Fleet
Tony and Betty! Rope and Pulley!
The art of prose of Elizabeth David
Rich and Will
Richard Burton on William Shakespeare
Riders in the Chariot
A great novel pf Patrick White
The novel as opera: dramatic truth
Thoughts on literary and historical meaning
Two big novels
Middlemarch and Les Miserables
Two novelists on Shakespeare
Tolstoy and Flaubert
24 Shakespeare’s Fan
John Keats idolised Shakespeare
Sons and Lovers – A Little Touch of Hamlet in the Night
D H Lawrence and Hamlet
The lines in Shakespeare that come from nowhere out of nothing
Who is that can tell me who I am?
The bottomless depth of King Lear
These essays and notes come from the last five years or so. They come from a lawyer and they do not claim to be works of scholarship. I have written elsewhere about Shakespeare, great writing in history, and our great novels. About half of the present pieces relate to Shakespeare, some in an anecdotal manner, although the grip of the Big Four goes on. Most of these have been published by the Melbourne Shakespeare Society. The other pieces relate to other kinds of writing, from cooking to crime, but with a few on novels. The two substantive essays deal with great peaks in our literature – the role of Achilles and Satan in our two greatest epics, and our two greatest characters, Falstaff and Don Quixote. If you said that the whole book was Quixotic, I would he happy.
Reformation Day (Martin Luther Day)
The 70th birthday of the author.
LOOKING DOWN THE WELL
Papers on legal history
1689 and 1789
Aide Memoire on Terminology
Different phases of constitutional change in England, France, and Russia
God Save Our Anglican Queen
Our Constitution is religiously biased in a way that is beyond us
Blackstone’s Magna Carta
A view of Magna Carta from the author of the American legal bible
The Role of Contract in the English Constitution
Why are English historians so coy about contract in their constitution?
The Dragon in the Cave
How America lost the War of Independence
As America continues to deal with the lesion of slavery and the separateness of black and white, its continuing fascination with God and guns means that it has not lived up to its revolutionary promise. The Americans do not understand the history of the English Constitution. The decision of the Supreme Court in Heller is a throwback that puts into relief the failure of the nation to grow up.
What did serfdom mean in England?
Free Speech: Am I Free to Insult or Offend You?
The oppressor’s wrong, the proud man’s contumely.
A look at some of the nonsense about ‘freedom of speech.’
Hampden: A Note
A first look at Ship Money
How Moses v Macferlan Enriched Our Law –
Lord Mansfield’s Heresy
The origin of our law of Unjust Enrichment
Jury and Parliament
From adviser to the Crown to the protector of the people. We have not done enough to recognise how the jury and the parliament are there to protect us.
How Do Public Servants Punish Us?
Positions of Trust: A Duty of Integrity
That we should know and respect our history does not entail that we should stay locked in jails built for other purposes. The word ‘fiduciary’ causes people to go round in circles.
The juristic work of Vinogradoff
The Ship Money Case
The case that stopped a nation: the biggest case ever?
The Trial of the Seven Bishops
Another case that stopped the nation – litigation as sport.
The Tyrannicide Brief
A review of The Tyrannicide Brief, Geoffrey Robertson, Vintage, 2006, PB $35.00 (429 pages). (Written in 2006)
Three slippery words – liberty, freedom and prerogative
The ancients too were seduced by labels
800 Years On
Outlawry was a form of process, or unprocess, developed by Anglo-Saxons in the Dark Age when the notion of a judiciary was not known and when the only choice above this world was between God and Satan. In the year of Our Lord 2015, the closest Australian advisers of Her Majesty Queen Elizabeth II – still the Supreme Governor of the Church of England but not the Empress of India – are conducting an audible debate about reintroducing a form of outlawry by depriving people of their rights as citizens of the Commonwealth without any judgment of their peers. If they persuade the parliament and Her Majesty to make a law to that effect, they will risk going back more than 800 years and breaking a promise made by the English Crown that it would not go or send against any free man except by the lawful judgment of his peers or by the law of the land.
It took the English about seven centuries to build the rule of law and the Westminster system, with a little help from the Americans at the end. It will take only a fraction of that time to lose both. We have already given up two essential parts: that the executive should be run by an apolitical civil service with secure tenure, and that ministers should be responsible to the parliament for the failings of that civil service. There has been an obvious and sustained decline in the quality of people attracted to the parliament or the executive. That decline has not yet substantially damaged the judiciary, but there is little ground to hope that the decline will be reversed, or that the judiciary will remain untainted.
In a real sense, a lot of our legal process goes back to Magna Carta, given, it is thought, on 15 June 2015. English philosophers have ignored it. English legal historians and too many judges have just got it wrong, including some who should have known better. Curiously, it is better known and better understood in places like the U S and Australia that are used to working under a written compact that separates powers and that has the force of binding and supreme law.
Magna Carta is one of the title deeds of Western civilisation, and the most significant tablet of the law in our history. It is worth celebrating its 800th birthday.
Some tips for young advocates
A great English judge, Lord Devlin, said that the ‘English jury is not what it is because some lawgiver so decreed, but because that is the way it has grown up’. That is so true of almost every part of our law. Our law is its history.
This is why anyone claiming to be a real lawyer, and not just a bean-counter or meter-watcher, needs to get hand to hand with our legal history. It is a rollicking story going for more than a thousand years of a people with a genius for law-making while pretending that they were doing no such thing. It is the story of how the world got its only workable way of protecting people against bullies and each other – whether in the form of government or at large.
That which took a millennium to construct could be washed down the drain in a generation. We have already trashed two vital parts of our governance – responsible government, and an independent civil service – and we have been scandalously weak in standing up for juries. These failings come in large part because we have chosen to forget and then betray our heritage. Sadly, I see no prospect of that decline being reversed.
31 October 2015
70 years to the day from his birth.
SOME HISTORY PAPERS
Essays on Modern History in England and Europe
Melbourne, Australia, 2
1 A Remarkable Politician- Joseph Fouché
The life of Fouché, terrorist in the Revolution, who survived Robespierre and then Napoleon – a cold blooded killer who became the ultimate survivor.
2 A Secular State
A look at the impact of the Reformation on the rule of law and the secular state in England and France compared to Spain under Franco.
3 A C Grayling
The Philosophy of a Man and the Atom Bomb
A detailed study of the arguments about bombing cities and civilians.
A short analysis of Cromwell as dictator following a Summer School at Cambridge taught by Dr David Smith.
5 Foretelling Armageddon
The Two Books that Predicted the Rise and Fall of the Third Reich
(With note on the Rise and Fall as they happened)
An essay on how Keynes and Hitler wrote books that predicted in detail the Second World War plus a summary of events as they unfolded.
6 La patrie violente
A detailed view of the century of unrest and violence that followed the outset of the French Revolution and reflections on the notion of historical truth.
7.Money and Politics
American gridlock and the refusal of supply – a failure in governance.
8 Napoleon and Hitler
Meditating upon Evil
A detailed comparison of the lives of Napoleon and Hitler and of the deaths they caused.
9 Oxford Essays on the Stuarts
The Anti-Catholic Tradition in late Stuart Society
Two essays about the Stuarts and the Constitution for an Oxford Summer School.
10 Some historians
An essay about great British and European historians, and Pieter Geyl.
11 The Have-nots are Going Down
A brief note on the rising problem of inequality.
12 The Last Two Samurai
An essay on how Lloyd George and Winston Churchill led a social revolution and brought in the Welfare State.
13 Faust and Perfidy in Albion
The Treaty of Dover 1670
How a King Sold his Soul – Or Did He?
An essay about a king selling out a country for God and gold.
14 Why the French Revolution was not English
An essay on the differences in revolutions in France and England.
15 Witchhunts, Holy Wars, and Failures of the Mind
An essay on witchhunts and holy wars from Salem to McCarthy; consideration of relations between Church and State.
These papers were written between 2008 and 2015. They relate to what we call the modern history of Europe and Britain. Some were written in or as a result of Summer Schools at Cambridge and Oxford. For example, the two pieces headed Foretelling Armageddon were first written as course notes at Clare College Cambridge, and now can be found in the fifth volume of A History of the West.
Five of the essays deal with the two big questions that have followed me for fifty years – how did France and Germany, two of the most civilised nations on earth, succumb to their total moral collapses, and with such frightful consequences for the rest of the world? If you are being raped or killed by a soldier, do you care about the motives of those who sent him.
Three of the pieces deal with issues in Stuart England, and all come from Summer Schools. My notes on Cromwell come from a remarkable weekender at Cambridge taught by Dr David Smith; those on the Stuart parliaments come from a week at Oxford taught by Dr Andrew Lacey. The story of the Treaty of Dover should be told in a play or film.
There is a long look at the very flawed views on the bomb of A C Grayling, who might just be too busy to be able to indulge in scholarship, and a piece on the great story of Lloyd George and Winston Churchill on the People’s Budget – at a time when politics had real leaders. The piece on witchhunts is the oldest, but the bullying of the majority is still just as threatening.
These are contributions by a lawyer and a legal historian whose professional training teaches him to proceed by example, and to look at what goes on elsewhere. I hope that you enjoy them.
Melbourne Cup Day, 2015.