Remembrance of Things Past – and not Past


As I follow it (from Prehistory by Colin Renfrew, or Professor Lord Renfrew), the current thinking of historians and scientists is that human evolution from the apes became complete about 200,000 years ago in Africa and that the main dispersal of humanity out of Africa took place about 60,000 years ago. All of us human beings are ultimately descended not from Adam and Eve but from our African ancestors in or about the area that we now call Ethiopia who were living about 200,000 years ago. They in turn had evolved over a much longer period of millions of years from the apes.

Human beings arrived in Europe and Australia about 40,000 years ago – well after they had reached the Middle East.

Any physical differences between peoples – if you must, racial or ethnic groups – follow after the dispersal from Africa. They are not genetic – they are socially or culturally induced. A child born today would be very little different in its DNA from one born, say, 60,000 years ago.  There is no reason why they could not do as well as our kids with the same upbringing.

The two big events in moving away from the Stone Age were the development of agriculture and the formation of towns. These in turn led to gods, writing, and laws. They also led to inequality. Religions tended to sanctify central power – the pharaoh, emperor or king had a divinely ordered status. Historians think that they can now trace phases of the development of the mind that ultimately became human over millions of years. Those phases bear some resemblance to the phases of legal development that our ancestors went through that were identified by Sir Henry Maine in his book Ancient Law.

Lord Renfrew makes a comment that does not surprise us.  ‘The key to inequality lies in worldly goods…..the adoption of a money economy marked the end of prehistory in so many parts of the world that we could take it as the best indicator of the dawn of history.’

Some landmarks may help with scale.  Our predecessors used a form of hand-axe before they had become what we would call human. The first jewellery and decoration appears to come from South Africa about 75,000 years ago. There are bone flutes and drawings of lions in France that are about 32,000 years old. Some of our Aboriginal rock art is at least 28,000 years old. There is a sculpted stone in Turkey that is about 11,000 years old. There are traces of permanent settlement around Jericho going back to about 9000 BC – we trace what we call the ‘agricultural revolution’ to that period. The idea that gold had some value emerged in Bulgaria around 4500 BC. Stonehenge was created between 3000 and 2000 BC and represents about 30 million work hours. Moses was born about 1400 BC. Coins were first introduced in Turkey after 1000 BC.

What we see as civilisation started in Athens in the fifth century BC. It took us more than 2000 years after that to establish that the earth was not the centre of the universe.  A lot of people who believed in Aristotle or God were horrified – much as they would later be horrified by Darwin.

If the Genesis account were applied to our creation, the earth was created not millions of years ago, but about 6000 years ago, and mankind was created, full-blown, at the same time. Science has proved that to be impossible.

If this account is correct, all human beings come from the one common stock, and any differences that some may wish to characterise as ethnic or racial are not genetic. They have come about because people have lived different lives. My humanity is the same as the humanity of the blackfella. Any differences between us come only from the way in which our ancestors have lived.

I find that view to be immensely comforting. It puts a big dent in the views of those who want to say that people are intrinsically different. At least genetically, all humans are born equal.

All this makes it hard for us humans to be sanely racist. It makes it hard for God, too.

In the last century and a half or so, we have made big discoveries in the way that we see ourselves and the universe. I regard all those discoveries as being neutral on the question of whether God exists.  God is no more or less of a mystery to me than the Big Bang, or our evolution from the apes over millions of years, or a universe that goes for millions of light years.  We can put all those terms into grammatically correct and apparently logically sound sentences, but in the end we have no real idea what is entailed by these ungovernable notions.

But the discoveries and proofs of mankind are not neutral on the history of any such God that we may choose to believe in. We now know that God could not have done what the Bible says that he did. And we now know that the people that the Bible says that he chose to make a covenant with did not have the history – that is, they were not the people – that the Bible says that they had; they were not the people that the Bible said they were.  They had come out of Africa, and down not from Adam and Eve, just over the hill, and not so long ago, and with a traceable ancestry.

You would not want to go to a bank and ask for money on the basis of a security whose title rested on a covenant given by a God that did not exist to a people that did not exist.  Or at least where the root of title of your documentary security seriously misrepresented the parties to the relevant covenant and was out of whack in its historical timing to the tune of 200,000 years or so.

Lord Renfrew quotes from a distinguished anthropologist who wanted to give a definition of religion that avoided any mention of the supernatural. He came up with this definition: ‘a system of symbols which acts to establish powerful, pervasive and long-lasting moods and motivations in men by formulating concepts of a general order of existence and clothing these concepts were such an aura of flexibility that the moods and motivations seem uniquely realistic.’ As the learned author remarks, a frivolous reader could see in this definition not so much a description of ‘religion’ as ‘of another powerful and ubiquitous presence in our society,’ that is, money.  Our movement from the apes has in truth had its ups and downs.

There is probably enough there for some people to digest without passing on the suggestion that our evolution from the apes was finally induced by climate change in the Great Rift Valley in Ethiopia.  That might be the last straw for some of our Republican brothers and sisters over the Pacific, or for readers of The Australian Spectator.

Speaking of remembering times past, I wish you a happy new year, although I am myself coming to prefer the Chinese model.

Happy Christmas to all those crooks out there


People at FIFA could not spell the word ethics.  They have suspended two high ranking officers for eight years for a ‘disloyal transaction’ where one paid millions to the other.  I gather that ‘disloyal’ means dishonest or a payment made in breach of trust in or breach of fiduciary duty.  That is, money from a fund was not applied properly for the purposes of the fund, but to suit the private interests of the parties.  The function of an ethics committee is to police ethical standards to protect members and the public.  Once a finding of dishonesty at that level in the hierarchy and in that amount of money is made, the only possible remedy is life bans.

The question is: can these people be trusted in their office after this finding of dishonesty against them?  The answer is obviously no.  And it obviously will not become yes after a holiday, even a long one.  This committee has misconceived its function completely.  You can tell that by the fines, which presuppose that these people have been enriching themselves mercilessly, but which for these people represent a parking ticket.

And why are not these crooks being prosecuted by the law for the dishonest use of the money of others?  Even on their hilarious version, they would get life bans here from acting as directors of public companies.

We are in no position to smirk.  There was an unhealthy difference of opinion at Westpac when the company agreed to ‘treat’ accounting procedures in a way that financially benefited directors – there was great unhappiness among shareholders.  Accounting issues in the debt of Glencore may have led to a valuation of its worth being bloated by billions of dollars.  Innocent investors may have been wiped out by misstatements.  Worrying disclosures are now being made about the extent to which spoiled egomaniacs posturing as sponsors of charity are just lining their pockets and boosting their egos while quietly burying their consciences.  Now we see the market worth of the business of law firm that went public going through the floor over arguments over the real worth of a major acquisition – although, it is a little hard to feel too sorry for investors who put such a huge valuation on the business of a law firm that made its name from acting for people who could not afford to pay lawyers.

It is worrying when accountants say they will ‘treat’ a transaction in a different way.  This is especially so if you can only change the label you apply, or the box you put a transaction into, if the facts are different.  There are problems in saying that cat is a dog, or that a transaction that we said occurred on 1 July, did in fact occur on 30 June.  If you make a false statement for material gain, you are in the territory of the crime called theft.  It is like American politicians saying that they ‘miss-spoke’: they are either lying now or they were lying before.

It is time that the law caught up with people who flirt with the truth and ruin others.  In parts of this country, we throw blackfellas into jail for the equivalent of stealing loaf of bread because it is their third offence.  We do not see people going to jail for allowing their greed to give us the Global Financial Crisis or by filling their own pockets while misleading shareholders.  I am very far from saying that such a comment applies to any of the corporate examples that I have referred to above, but it would certainly apply to the officers of FIFA, and I have no doubt many shifty corporate operators here.

Speaking as a taxpayer, I would be happy to put quite a few such crooks up at my and the public’s expense for a number of Christmases.  Such a course would be good for moral at large and help a lot of people to a happier Christmas.

Religious extremism


According to the Fairfax press, a firebomb attack in a village on the West Bank in July this year is thought to have been carried out by people described as ‘ nationalist far–right extremists’.  A group of people known as ‘The Revolt’ are intent on creating a Jewish kingdom.  According to Shlomo Fischer of the Jewish People Policy Institute, these people believe that they are acting on the ‘voice of God’. Their goals are to ‘create chaos and undermine the ability of the government to rule and set up a revolutionary redemptive state.  They want to replace the current State of Israel with something else – their main animosity, just like al-Qaeda directing their animosity to the non -jihadist Muslim regimes, is against the government of Israel. They are aware of the fact that they will be treated with kid gloves because they are Jewish – that has been the precedent until now.’

This far-right group sees the existence of this new state as an integral part of redemption, which is said to relate to the liberation of Jews from exile. There is another body call Hilltop Youth.  It shares these views and regards the ‘disengagement’ by the Sharon government in 2005 from the Gaza Strip as a huge blow. For them, the disengagement involved the state turning its back on the redemption process and many settlers thought that they had to work harder to continue the fight. The Hilltop Youth says that the redemption will happen even if the State of Israel is not there.

A party associated with the peace movement in the area said: ‘the settlements are based on discrimination – the fact that you raise children a place where you as an Israeli Jew have rights and Palestinians do not have rights and are instead living under military law; this raises people to believe that they are more than the others.’

The same article says that two members of this far right group of religious extremists have been arrested and subjected to detention under laws passed to deal with terrorists. One of these is a dual Australian Israeli citizen named Evyatar Slonim.  It is said that Israel holds hundreds of Palestinians in administrative detention under these laws. The parents of Slonim said that they were absolutely horrified that in a democratic country their son has been imprisoned without a trial.  Slonim’s lawyer said that Israeli intelligence authorities have taken the gloves off since the July attack.  The lawyer gets paid, according to Fairfax, by a ‘right-wing legal centre.’

These terrorists commonly use a calling card with fire-bombs thrown into homes with people in them.  The July raid killed three.  The word ‘Revenge’ appeared with the Star of David.  According to a manifesto of The Revolt, ‘burning tyres can be placed at the entrance of the house to remove the possibility of escape.’

This sort of terrorism is a mix of madness and evil, of religion and nationalism.  It is light years away from the evil of IS.  But although Israelis as a whole utterly reject this evil, they do not as a whole or as a nation utterly reject the continuing settlements.  And the problem is that those settlements draw on the same scripture as the do the terrorists.  Is it possible to have any peace in the Middle East if the settlement issue is not resolved?

People who do not have God – such as me – get sceptical, to put it softly, when people of one God take it on themselves to tell people of another God how to manage their affairs or what kind of reformation or enlightenment that they should undertake.  It gets even worse when you have a complete idiot, like Tony Abbott, boasting that his culture under his God is superior to that of others who follow a lesser God.

We might be just as sceptical about people of one God telling people of another God to keep God out of politics if we recall that God is in politics in the State of Israel up to his neck – spiritually, morally, and geographically.  And we might also recall that the promise in the Israel Declaration of Independence of ‘complete equality of social and political rights to all its inhabitants irrespective of religion race or sex’ holds about as much water as the promise of equality in another Declaration of Independence at the same point in its history.  Sweet Fanny Adams.

Finally, people here worry that the debate about religious extremism here is being stifled.  I have a lot of sympathy with that view.  If you seek to debate the actions of the State of Israel here, you very quickly get spoken to firmly – not by the Jewish community, but by our far right.

Religious extremism is unsettling anywhere and everywhere.  Those who have God think that some believers are not as odd as others; for the unbelievers, they are all much of a muchness.  Infighting between believers is unedifying.  I am yet to meet a person who says that their brand of God is inferior to that of others.  I am yet to meet a person who concedes that other Gods may even be equal to theirs.  I don’t think they are allowed to say anything like that.  They know that most must be wrong but say that they are the only ones who have it right.  None of them is spotless and all are forms of extremism.  .  It is enough to put you off religion full stop.

Deciding Cases


Reflections on some facts of forensic life for those who hear and decide cases by a lawyer who has been hearing cases for thirty years and fighting them for nearly fifty years.


Job description

People are in conflict and need help.  Your job is to help them by resolving the conflict.  To do so, you will have to take authority over them by making decisions that bind them by the force of the law and the power of government.  The sooner you do this, the better – for you and for them.

If any of that sounds odd or makes you queasy, you should not be in this job.  Nor can it worry you that in most cases you will have to make decisions that can hurt people badly, and affect how they live.  All that comes with the job, and if you don’t like it, don’t hang on to the job.  (If you positively enjoy that part of the job, you may have a worse problem at the other end.)

It is not your job: to preen yourself or to ,to bung on side; to save your face or to seek to save your job; to seek to immunise yourself from review or appeal; to worry about either – at least if the worrying affects your ability to do your job; to seek to leave a legacy, or to build a monument to juristic science or literary grace; to boost your promotion prospects; to decline to carry your weight as a member of the team, by, say pleading the pressure of work in reserved judgments, or by knocking off early to play golf or pick up the kids from school; to grizzle about your workload or the miserliness of government – people are sick of all that buck-passing in politicians; to insist on doing one job, such as mediation, when you have been appointed to do another; to flaunt your power or to show your unease at its extent; to get snooty with those lower on the hierarchy or to get prickly with those who are higher; to mask any actual or felt shortcomings with pomp or ceremony or literary affectation; to be rude or overbearing; to fail to hold in check the prejudices that all flesh is heir to; to come to a decision based on your personal needs or wishes, or before giving a fair hearing to each side; to close your mind to further inquiry too soon, or, perhaps, at all; to forget that in our adversary system, the running should be left in the main to the parties and their lawyers – you are not an MC at a wedding, and you should intervene sparingly and reluctantly, and generally forebear from attempting wit (a besetting vice of mine); to forget that you are a servant of the people and not their master – even if your job gives you authority over some of them now and then; or to forget the wisdom of the maxim that the most important person in the courtroom is the loser.

Generally speaking, at least one party has to lose, and it is the judgment of this party on your handling of the case that you should look to – the winner commonly thinks that you are the greatest thing since King Solomon, ‘a second Daniel,’ as Rumpole exultantly intoned when the Old Bull got one right one day.



You should have the sense of vocation, learning, training, and hard experience with the law and people and the courts in action that will qualify you to do this job.

Hopefully, the sense of vocation is what got you into the law in the first place, and has not been entirely dimmed by the ups and downs of practice, the many bad falls and hits on the way, or by the tribute exacted by the tax man or the bank manager while you try to keep them in place while you put food on your table.

After you have learned the alphabet at university, how do you go about getting the training and hard experience to practise it at the bar or the bench?  On the job.  In any profession – perhaps in any human undertaking – teaching and book learning can only take you so far.  The know-how that is applied in, say, cross-examining a witness, or deciding whether to cross-examine or to call a witness at all, only comes with practice, which here equals experience.  Say fifteen to twenty years.

In the course of that time, you will have watched judges do your job, and you will have learned from them.  You will learn from the whole range of them – from those who are so sure and safe that you could never hope to emulate them, to those who are so awful that you are determined to free the world of their like.  In the course of your practice, you not only learn the hard way about fighting cases – you learn the techniques of hearing and deciding them, and with luck, you get to learn from the best, as well as the worst.  You would certainly lack finish if you had only run into one kind and not all kinds.

There are two important strands to the education in the judicial college known as the bar.  One is the sense that all litigation is a form of lottery – you can never know what might happen.  Over time lawyers get a sense of the ‘merits’ of the case, but there is no guarantee that that sense will be shared by the judge or jury or the script-writer that we call Providence.  The other is that if you start at the bottom and work up, you will be exposed to our community in all its colour, and layers, and you will have learned how to talk to all kinds of people and to try to break down the sense of mystery at one end and distrust at the other.

You will simply be unable to do any of this if you come from a more precious or sheltered background.  You may not even know how silly it is to ask a former judge who has never been a trial judge to conduct a judicial inquiry into the affairs of trade unions when his Honour may not have met one trade unionist in his whole life.  You may as well ask the President of the ACTU to compile a dossier on etiquette for the Melbourne Club.

What I am saying is I think reflected in what Churchill said about a P M who never fought an election, the Earl of Roseberry.

Whatever one may think about democratic government, it is just as well to have practical experience of its rough and slatternly foundations.  No part of the education of a politician is more indispensable than the fighting of elections.  Here you come in contact with all sorts of persons and every current of national life.  You feel the Constitution at work in its primary processes.  Dignity may suffer, the superfine gloss is soon worn away; nice particularisms and special private policies are scraped off; much has to be accepted with a shrug, a sigh or a smile; but any rate in the end one knows a good deal about what happens and why.

You can tell judges who have not been roughed up enough.  They are out of their depth or all at sea, depending on your maritime preferences.  Bad judges have narrow minds, often because they have not lived enough outside their own world.  You can see it on the faces of some of them, or hear it when they open their mouth.  Or when they look down on you as they bow.


The nature of the court

Being a judge is different to being a legislator (although at some levels a ruling or decision may have a similar effect), or conducting a government inquiry, like a Royal Commission.

Our system is not inquisitorial.  It is adversarial.  Subject to questions about who bears the onus of proof, and what the standard of proof is, the judges listen to the evidence and the arguments and rule in favour of the case they prefer.  They are not generally purporting to record what happened as a matter of historical fact, but which side’s case seems more likely.  On questions of fact in a civil case, anything better than 50/50 is enough.  In the early ‘70’s, a magistrate named Bob Maloney when hearing crash and bash cases – motor car accidents –would at the conclusion of the evidence look at one counsel and say ‘on balance, I think his version might be just a bit more probable than yours – can you work out the appropriate orders?’  I wondered then, and now, whether any reasoning that was more evolved would be any more than window-dressing.

The legal historian, F W Maitland, put it this way:

The behaviour which is expected of a judge in different ages and by different systems of law seems to fluctuate between two poles.  At one of these, the model is the conduct of the man of science who is making researches in his laboratory and will use all appropriate methods for the solution of problems and the discovery of truth.  At the other stands the umpire of our English games, who is there, not in order that he may invent tests for the powers of the two sides, but simply to see that the rules of the game are observed.  It is towards the second of these ideals that our English medieval procedure is strongly inclined.  We are often reminded of the cricket match.  The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question ‘How’s that?’…..But even in a criminal cause, even when the King is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor’.

Nor need you be put off by the fact that Maitland was talking of the Middle Ages – the 14th century in fact – because the model still holds good.

It follows that an active participant in the fight at the bar has to make a transition to a passive participant watching the action from the bench.  This transition does not look as simple as it did two generations ago.  You do not see the same readiness to suppress the ego, and just watch the system take its course, but you do see judges now being more ready to lay down the law and impose their will than used to be the case.  Somehow the unwritten fall-back that less is better got left behind, and we can now see some wunderkind bent on arriving at their chosen peak with a quite unembarrassed show of ambition.  We see silks becoming human rights lawyers and judges trailing ideological capes with a view to promotion.  These generalisations are of course large, but life at the bar is now a lot more commercial and driven than it was fifty years ago, and the difference is washing over on to the bench.


Our reputation for being slow

When Hamlet was thinking of suicide, one problem of the world that crossed his mind was ‘the law’s delay.’  (Others included ‘the proud man’s contumely’ and ‘the insolence of office’.)  The law rarely shakes off its reputation for being too slow.  The faster you go, the more likely you are to get it wrong – but you can say the same about being slow.  If a case takes too long, there are too many ways in which a fair trial may be imperilled – and it is not often the party with the merits but without the means that wants or causes delay.  Delay tends to suit the wealthy.

Delay in litigation may come about in at least three ways.  There may be a delay between the start of the action and its hearing, either because there are not enough judges and the waiting list is too long, or because the court or the parties want to talk about process before getting down to substance – the trial.

Another source of delay is the hearing itself.  A simple crash and bash, one on one, would take under an hour when I started doing them.  A simple maintenance case, wife against husband, would take about the same.  But the impression that you get now is that a commercial or defamation case that fifty years ago would have taken two or three days, may now take two or three weeks.

The third kind of delay comes about because some judges do not feel able to give a decision on the spot.  They wish to take time to reflect and to prepare a written decision.  This can take days, weeks, months or longer, and drive people to despair   (I heard a difficult tax case that involved accounting issues, legal issues, and hand-to-hand lying.  It went on appeal to a single judge of the Supreme Court who had to conduct his own hearing.  The family of the principal rang me from time to time asking when the judge would opine.  He kept them waiting for two years.  It was very cruel.  Among other things, there were issues of credit.  In that time, the principal died, and the High Court changed the law, and the presumption of a fair trial had gone clean out the window.)

By and large, the judges can deal with the first cause of delay in getting the case on.  They might say that the government is not paying enough judges, but the public does not accept that slipperiness.  They have hardly begun to try to control the length of the hearing, and there are wild variations in the time taken to deliver judgment – and too great an unreadiness to give one on the spot.

Possibly the most famous clause of the Great Charter of liberties given 800 years ago says, in English translation, ‘To none will we sell, to none will we deny or delay right or justice.’  People know the meaning of the phrase that justice delayed is justice denied.  Not many people believe that the great promise of Magna Carta has been kept.  People going to court do not want to add their wealth or their bones to some glorious juristic edifice – they just want to be put out of their misery and to get on with their lives.


Getting the case on

Let us look at the first area of delay – the time between the start of the action, by say the issuing and serving of a writ, and the start of the hearing or trial.

When I started fighting cases in 1971, mostly before Magistrates or even Justices of the Peace, most criminal cases were like most civil cases.  You got the charge sheet or the summons, or the complaint for a motor car accident case or maintenance, that told you next to nothing – except where and when you were to turn up to fight it.  There was nothing remotely like pleadings on either side, and no mention before or direction from the court.  You knew what the informant or complainant wanted, and you turned up at 9.30 to get your customer’s version, and then sit around praying that you would not sit there all day, and have to drive back into town from, say Frankston, after 4 pm, without one cent of the promised $20 brief fee in your pocket, and complaining, even more loudly than the punter, about the ineptness of your colleagues whose unconstrained dilatoriness had stopped you getting on.  You may even have wondered why the courts do not watch counsel more closely and do more to ensure that cases were dealt with quickly and sensibly.  Both you and the parties are bemused by the other-worldly sense that time has stood still.  There is nothing like a shut-out to prompt anxious reflection about forensic efficiency.

In the tribunals I have run over the last thirty years, I have, after getting rid of the back-list, and after giving the cowboys a chance to look at the new sheriff, sought to follow that old Magistrates’ Court model.  I have described the procedure of my tax tribunal that ran for eighteen years as follows:

There are none of the trappings of civil procedure in a court.  I dispensed with directions hearings.  The parties were assured that the Tribunal would try to get rid of every matter referred to within six weeks.  We usually did.  Generally when a matter was referred, it was given a hearing date about four weeks away.  The hearing was generally concluded in the morning and the parties got a decision that day or the next.  Doubtless the Commercial Lists of the superior Court are dealing with much more sophisticated matters that have to take a much longer time, but I have the clearest view that if people want a fight, the best thing for us to do is provide an arena with a referee, and let the best team win.  Witness statements were out; adjournments were never in.  We should not tell them how to run a case, but we can put firm time limits on.  We frequently dealt with cases in a morning which I had been assured would take days.  After a while, I learned not to allow a case to go beyond lunch.  Never give a barrister a second chance.

I have had a lot of trouble implementing the same ‘half-day all-over in six weeks’ regime in a disciplinary tribunal, because it seems to attract lawyers with different notions of relevance and no regard at all for time, and both sides appearing to have a lot of money behind them.  On one occasion, I asked the kind of procedural question that police prosecutors deal with routinely; counsel said they needed to get instructions; they then said they need a short adjournment; six lawyers then left the room; in a case that could and should have been dealt with as a plea in twenty minutes.  The erosion of public money was frightening.

There were difficulties in the summary form of process in the tax tribunal because commonly the real issue only became clear during the hearing.  There had been an assessment, an objection, and a decision on that objection.  Regrettably, both sides tended to load up the barrel with anodyne catch-alls, and I would occasionally ask Counsel for the Crown whether in the course of their argument they might make some passing reference to the terms of the decision that they had been briefed to defend – if only for auld lang syne. 

But this is very common, is it not, even in courts of pleadings?  And although we liked to get through cases in half a day, after we lost those massive cases about petrol and tobacco ‘taxes’ when the High Court rubbed them out, there was hardly any case that did not involve tricky issues of law and fact.  The Crown appealed as of right and almost as of course if it lost before me.  It usually appealed if it lost before a single judge, when the case went to the Full Court or the Court of Appeal.  Three cases made it to the High Court.  For the trivia night, each of the two most recent appointees to the High Court appeared before my tax tribunal on their own, before taking silk, as counsel for the successful taxpayer – and one of those cases went to the High Court.

In any event, I commend the in-and-out-in-six-weeks model to others.  I have had a lot of complaints and rolled eyeballs and a few writs from lawyers, but I cannot recall any complaints from the punters – at least those who had a reasonable case.


Court control or management

Fifty years ago, there were basically two models for civil litigation.  There was the one I have just described where young barristers got instruction in the facts of life, and not just forensic life, by doing police offences and minor crime, crash and bash, matrimonial and fencing and building (‘work and labour done’) cases; consumer law had not been heard of and people turned their noses up at debt collecting – we still had legislation for the imprisonment of fraudulent debtors.  Both civil and criminal cases were dealt with summarily – and that was not a pejorative term.

The other model was the one that we inherited from the English.  The parties seek to define the issues they want the court to decide by exchanging what are called pleadings.  They then seek to find out (to discover) what documents each has that may bear on the dispute.  They could then serve written questions called interrogatories on the other side that had to be answered on oath.  Then when they had done all that, which might take a year or two, they would sign a document saying that they were ready to go.  They would be put in a list of cases ready for hearing, and after say six months they would get a date when they would turn up and hope to get a judge who could give them a start – after grilling them about why they hadn’t settled.  If there were any procedural issues on the way – about pleadings, discovery, or interrogation – the party aggrieved would raise this with an officer of the court and get a ruling.  These rulings were expensive – as was everything else.

The disadvantages of the system that did not operate summarily are obvious.  It has delay written all over it.  There was a vast amount of case law and learning, and lore, about pleadings and discovery – far, far more law than we have for the law of negligence or contract.  And it was as arcane as it was large – a precious tool was a 1948 English text called the White Book.  The learning about specially endorsed writs and summary judgment was notoriously abstruse – and utterly without consequence for the punters.  Young barristers would get out of the summary cases to do these applications, and the associated paper work, for, say, the second five year period of their apprenticeship, and with some trials in the County Court, this work would get them ready for the big stage.  As an educational process for the bar, this was all terrific – but like all our process and all our case law, it was built on the bones of dead litigants, and so much of it had the foetid air described by Charles Dickens.

So, a little more than thirty years ago, the judges started to take from the parties the role of bringing problems to the attention of the court, and began to assume responsibility for managing the business in their own list or docket by giving directions for each step up to the listing for trial.  This model is now much used.  It stops cases going into oblivion, which is not always a good thing, but it does look to have been a bonanza for the lawyers.  They have a lot more work to do.  The focus on managing the preparation of the case for hearing has not been matched by an increase in the control of the process in the hearing itself.  So far as I know, we do not keep records of the average times of waiting to get on or of the duration of the hearing itself, but experience does not support the view that building up documentation will shorten the hearing – the contrary is the case.

The idea that the judge, rather than the parties, dictates the terms of process, suggests a movement from the adversarial to the inquisitorial model.  If you use the word ‘dossier’ for ‘docket’, you can follow the change.  It is still the parties that put in what goes into the docket, but they are doing so in response to a direction from the judge.  As a result, the judges spend a lot more time down in the arena than they used to.

People have different views on this – I think it is unfortunate.  There is something to be said for the old view that good judges are like good children – they should be seen and not heard – and if judges are now responsible for managing their load to at least try to honour Magna Carta, they will have to accept responsibility for when the system goes off the rails – which it often does.


Stating the case

Pleadings were not used in the old days in the two lower courts – the person starting might put something like a pleading in the starting document, and the defendant would be called on to state their defence orally at the start.  Even in the Supreme Court, simple cases, say for goods sold and delivered, could be started with a formulaic common count.

The system of pleadings used in the Supreme Court, and the federal courts hearing civil actions, derived from the English.  Their history goes back to the medieval Year Books when what we know as the common law started with arguments about the nature of the claims that might be asserted in different kinds of writ.  The system was developed to enable juries to give a yes or no answer to the issue that arose or to allow the court to rule as a matter of law on the adequacy of an allegation or response.

They developed into a subtle art form that too few could master.  That subtlety was used in some areas, most notably libel, for poorer litigants to get beaten up with.  Requests for more detail could be ludicrously oppressive.  Too many games were played for too little result.

As we apply the system, it has been flawed by at least one error.  You are to state the material facts – ‘he hit me’, ‘he promised to paint the timber and the brick’, or ‘he told my boss I was a thief.’  But then the system allowed for a second category of allegation.  When you went into detail, this kind of allegation was called ‘particulars’.  Sadly, the way the system grew up, it was only then that the other side knew what they had to deal with.  But the rules said that you do not plead to particulars.  So the parties wind up like tourists in taxis going round and round in circles on the Place de la Concorde, or like passengers in a taxi in New York where you and the driver are seeing the city for the first time..

Another problem was that you were supposed to be frank in responding – ‘I did not borrow $10, but I did borrow $5’; ‘I did not say he was a thief, but I did say that the Police suspected him of it’ became ‘I did not borrow $10, or any other amount’ and ‘I did not say he was a thief or make any other statement to a similar effect.’

Then came the glitzy supercharged models with preposterous definitions in bold and the scattergun that is the last resort of the timid or the desperate, and the system could go clean of the rails.  I will look later at a truly pathological example, and at the highest level, of how we can get pleadings so wrong.

For myself, I wold like to see someone trial a system where each side sets out every allegation that it relies on to claim the orders it says the court should make, and we will see you there on the day – and if you choose to make life hard for either us or them, it might go badly for you.  Each side should set out its version of events, and the legal consequences.  That is how the argument will end, and there is something to be said for starting it that way.

Some people like to get someone on oath at the start.  Corporations or the like put up people who will not be called, but I have misgivings about imperilling immortal souls on what might be little more than moves in chess.  If someone says ‘this is my story’, and then changes their story, they should have to live with what usually follows in other contexts – the possible collapse of their credit and their case.  One of the failures of the current regime is that it is so technical, lawyerly, and contrived that most trimmers get away with it too easily.

Immanuel Kant was a great figure in the Enlightenment and he had a mind of prodigious output.  His Critique of Pure Reason might be the most dense and abstruse book ever written.  Years after it had been published, Kant confessed to his students that at first he had no idea of the goal of the Critique.  He told his students that anyone who thinks methodically ‘must know (1) what precisely it is that he wants to establish, and (2) what is decisive for establishing it.’  Before you can give an answer, you have to find the question.


Getting the evidence together

There are some cases where a party would like to know what documents the other side had.  Well, on a straight common law action, a hang-over from trial by battle, it would have been silly to suggest you might take a look at what the other side had beforehand.  Documentation was fundamental in disputes over land and often critical in commercial disputes, but the parties were left to procure their evidence as best they could – knowing that they could rely on subpoenas at the trial.

But the Chancery, which operated on the conscience of parties, could and often did order parties to produce documents.  They could also deliver written questions called interrogatories.  Both had to be answered on oath – the Chancery used to proceed on the basis of testimony sworn in writing (affidavits).  When in the reform movement in the 19th century, the English sought to streamline legal process by fusing the Chancery with common law courts, the new combined court could invoke the equitable processes of discovery and interrogation in common law actions – say negligence or contract – and that came to be the practice as a matter of course in superior courts.   By an accidental process of history, the common law action had acquired an inquisitorial overlay.

Here are some of the problems you will face in handling this ancient equitable remedy.  It is what surgeons call an invasive procedure, and the patients do not like it at all.  They will try to avoid it, and you have to rely on a kind of honour system.  It puts lawyers in a dreadful position: they have to tell their client to come clean even if it means that they lose the case.  But what if they are the firm’s best client and they threaten to go elsewhere; and the lawyer would rather not lose the partnership while there are three daughters at Wesley?  The judges extended the ambit of search beyond those directly material documents to those that might lead to a train of inquiry.  What a boon for bush lawyers.  An off the cuff remark by a judge in Victorian England, in a case about birdshit in Peru, has done wonders for retailers of Mercedes and BMW in Australia.  Big corporations and big firms could do snow jobs.  The process has been an immensely rewarding chocolate factory for lawyers since a time about thirty years ago when someone said they could charge a dollar a page, and Mr Xerox became the managing partner.  It is hard to catch the cheats, and when one rotten party got rubbed out for cheating, it persuaded a naïve appellate court to put it back in the game.  Finally, people are forever hanging themselves by email – that is just how Bill Gates came unstuck – and the stakes just get bigger in every way.

There is no doubt that some meritorious cases are aided by discovery.  Are they worth the frightful problems and costs?  Opinions will differ, but well off parties may be better placed to deal with those problems than others.  I have certainly not missed it in thirty years on the tribunal – although my theoretical access to all the files of the revenue officers meant I had a fall-back if I thought that games were being played by the Crown.  (It of course has its own powers.)

In my view, there should not be discovery as of right or course.  Depending on your view about judicial intervention before hearing, you could have a rule like one common in arbitration that each party produce each document that it will rely on at the hearing and stipulate what documents it requires from the other, or you could leave it to the court to develop different schedules for different sorts of litigation.


Presenting the evidence

Historically, evidence in common law and criminal cases was given in the witness box, and in cases in equity it was sworn to in writing.  When court management came into vogue about thirty years ago, many judges thought that they could speed up the hearing by having the evidence of a witness reduced to writing and adopted on oath in the witness box, so that you could scrap evidence in chief.  I don’t think many now believe that this innovation saved court time.  It certainly put costs through the roof.

This device is thankfully being phased out.  It is impossible to remove the fear that evidence is being concocted by the witness and the lawyers, and it is not fair to the witness to throw them straight into the deep end of a shark pool.  Evidence is either contentious or not – if not, it can be led; if it is contentious, it should never be led.

In the 1970’s to the 1980’s, the late Neil McPhee and I fought a lot of contempt cases.  We lost every one.  We used to put the journo on affidavit and drop it on the Crown on the day – this was after all a kind of criminal prosecution.  Can you imagine the care that was put into these documents?  As we crossed William Street one day, the following type of conversation occurred.

I don’t like this, Neil.  That bloody affidavit has more holes in it than a bridal veil.

The judge only knows what’s in the affidavit.  Your problem, my friend, is that you were involved in preparing the document.  You know too much.

Is that better or worse than the contrary, Neil?

Within about twenty minutes of the start, the judge and the Solicitor-General were having a whale of a time picking out the most telling holes.  Neil was a lot better at keeping a straight face than me – he was of course the senior counsel.  Putting it at its lowest, it is appallingly unbecoming for lawyers to put themselves in this position.  Those who defend this dreadful sham cannot have spent much time at the composing or concocting end – or seen or heard some of the wilder unsworn statements in criminal cases.

It is not fair to the witness; it is not fair to the lawyers: and it is not fair to the judge.  They want to assess the witnesses by hearing them give their evidence from the start.  I have described elsewhere how sickening the other process can be.

The last case I heard at VCAT showed what happens when inanity prevails.  A Sicilian migrant went from being a butcher to a baker – he did not like the cool room – and he astutely bought land in the corridor.  By the time he got to me, he was worth north of $40 million.  He distrusted lawyers and all professionals.  Was he now a farmer?  Someone had made directions for witness statements, which are anathema to me, and all the ghastly folderol indulged in by lazy judges.  The Sicilian filed a [long] statement in impeccable English about trusts and companies.  The first thing he did in the witness box was to ask for an interpreter!  But he knew his occupation:  FARMER.  Since I thought that that answer begged the question, I asked the interpreter what was the Italian word for ‘farmer’ and he said there was none.

That case had become unfair for all involved, including me as the tribunal, because it had become a circus.

Before leaving evidence I should say something about the oath.  It comes from a very different religious age.  I like to swear in witnesses myself to get a look at them from the start.  It is hard to believe that many witnesses take the oath seriously.  They just blithely go through a formality.  It is one thing to have the supernatural in court; it is another thing to countenance hypocrisy in court.  I think we should look at something like a statutory declaration where the witness is told point blank about perjury.  I could not care less about their relations with the Almighty in this world or the next, but I want them to know that if they play up and get caught, they are looking at the slammer.  That can sound late and heavy-handed coming from the bench.  Such a course might also avoid the appearance that we prefer one faith over others.

While we are scrapping witness statements, let’s also ditch court books, written submissions, and folders of authorities.  If people want to submit a note of their argument, in the form say of one and a half pages in summary and syllogistic form, fine – but nothing more ornate.  Counsel refer to far too many cases – and too often when they are committing the mortal sin of not knowing what the case actually decided.  (Every now and then, ask counsel who won the case they are referring to.)  If as counsel you want to hand up a report of case, and you can tell the court what the case decided, just hand up the headnote and the part you rely on.  I heard lots of charities cases, and one part of the law was stated with Biblical finality in one paragraph by a Law Lord in the 19th century.  I always got the full case, about 100 pages, and had to resist reading some drole observations by Lord Macnaghten on the lifestyles of the Moravians.

Some of these steps may have some benefit for the court, but not enough to make the punters pay for it.  I personally would say the same about transcript – apart from one well publicised public inquiry, I don’t think I ever saw one before I gave a decision in all my time – but that may I think be a bridge too far for generations brought up in far, far more comfort than their ancestors ever knew.

I would also scrap mandatory mediation.  There is something on the nose about the courts’ forcing people to try to be reasonable and to agree, but only after the lawyers have had a few more trips to the well, and then in a very expensive and courtly way.  Court ordered mediation is too prone to being just another rung on an already expensive ladder, and one that too many lawyers stand and posture on.  The process has now been saddled with a bureaucracy that is Orwellian if not insane.  People traditionally settle when they get a sight of bare steel, so that the best way to get them to think seriously of settlement as soon as possible is to get them into the ring as soon as you can.  That, in the words of Doctor Johnson, will concentrate their minds wonderfully.  Setting up a dress rehearsal first is a way for wannabes to line their pockets.


Procedure run amok – court management gone berserk

Before I come to the hearing, and later phases, I want to take some time to describe a forensic trainwreck that shows how badly we can get things wrong.

Australia enjoyed a long mining boom.  Central to that boom had been the need of China for our mining products.  Fortescue Metals is a publicly listed company engaged in mining.  It and its Chairman and CEO, ‘Twiggy’ Forrest, are on any view major players.  Mr Forrest is no shrinking violet.

In August 2004, Fortescue published statements to the market claiming that it had ‘binding contracts’ with three Chinese state owned entities that supported its Pilbara Mining Project.  The importance to the market of these statements, and their effect on share price and the personal wealth of Mr Forrest will be obvious.  As will be their possible fallibility.  After investigating a claim in the press that this claim about binding contracts with the Chinese was false, ASIC, the corporate regulator, sued Fortescue and Forrest saying that the claim was misleading.  They expressly alleged that Mr Forrest had said something that he knew was untrue.  That is an allegation of dishonesty.

It is hard to imagine a case requiring greater diligence and good sense in its disposal.  Yet the issue was not decided until more than eight years after the publication, and six and a half years after the action was commenced.  By the end, the claim of the regulator extended to 108 pages.  This forest-killing exercise in gamesmanship was probably about 106 pages more than the average investor would think was required to raise a simple issue about a businessman telling a whopper.  The case is if nothing else a frightful warning of how our excessive case management leaves us unable to see the wood for the trees.  A more bleak view is that this was one of the great snow jobs in Australia’s legal history.  It is a matter that could have been dealt with by a committee of the Stock Exchange in an afternoon in response to a one page letter.

The trial judge gave judgment in December 2009.  The judgment runs to 200 pages in the law reports.  (I wrote a book The Common Law, A History.  It started with Adam and Eve and it went to 47,000 words.  This judgment would be about twice as long as that.)  The trial judge found against ASIC and for Fortescue and Forrest.  His Honour made observations about the need to be careful with allegations of dishonesty.  Well, if nothing else, this was a statement of the bleeding obvious about the need to deal with this case sensibly and swiftly, and it might look rich for one lawyer, even if a judge, to grizzle about the delays wrought by lawyers.  Yet for all the readiness of Mr Forrest to hug the limelight outside, and for all the outrage expressed by his lawyers at the awful charges against him, Mr Forrest was not prepared to go into the witness box.  He took the Fifth; then he pleaded defences on which he bore the onus.  Mr Forrest was not prepared to put his considerable mouth where his even more considerable wallet was.  The reputation of West Australian mining entrepreneurs was not on the up.

The regulator appealed to the Full Court.  That court gave judgment in February 2009.  The three judges, the Chief Justice (now on the High Court) and two very experienced commercial judges, were unanimous in finding that the relevant statement was misleading, and that Mr Forrest had been implicated.  The company and he had therefore been in some kind of limbo for nearly five years, sublime testimony to the value of the law’s delays to those who may be found to have fallen outside it but who are rich enough to play the game.

Justice Finkelstein did not agree at all with the trial judge about the conduct of ASIC.  He did what an investor would expect a judge to do, and he looked at the course of trading in shares.  You can read the remarks for yourself.  They will surprise no one who invests on the Stock Market.

But there was a last avenue of appeal, and money (except ours) had ceased to be an object years’ ago.  The High Court gave special leave to appeal, heard the appeal and gave judgment in October 2012 – eight and a half years after the publication complained of.  Judgment against ASIC and for Fortescue and Mr Forrest.  The High Court focussed on the pleadings.  Rather than look at how the lawyers were driven to characterise events, they might have spent more time looking at what investors do.

What was the upshot of this embarrassing Dickensian shambles?  One judge gives judgment for the miners and a smack to the regulator.  Three judges unanimously go the other way and try to ensure that the regulator is not frightened out of doing its job.  Then the last five unanimously go back to the start, in the sure and God-given conviction that if there had been another level of appeal on the merry-go-round, it would probably have been their turn next.

The High Court said that the issue was what readers of the statement to the stock exchange would have understood by the reference to ‘binding contract.’  That is an issue of fact.  It is a perfect example of an issue fit to be tried by a jury.  But the Federal Court does not have juries and only one of the nine judges hearing this case had ever instructed a jury.  How would people of the intellectual refinement and cloistered seclusion of these judges know how the ordinary person would react?  Why would justices of the High Court be better placed to deal with this factual issue than Federal Court judges who at least still get to try issues of fact without a jury?  When was the last time any of these judges had been in a queue for a beer and a pie at the Storm v the Eels?  And why would the High Court allow its precious resources to be spent on a simple issue of fact?

The Full Court said that the reference to ‘binding contract’ would not have been understood by the ordinary investor as a statement of opinion, but an assertion of historical fact.  The High Court said that the judgment of the Full Court entailed that the reference to ‘binding contract’ conveyed a message about enforceability in an Australian court.  Oh for the inscrutable verdict of a jury!

It is unlikely in the extreme that any investor analysed the statement in the manner that the High Court did.  The ordinary investor – any member of the public – simply does not have the equipment for those intellectual gymnastics.  The ordinary investor would look at the announcement and say that if that is what the company is telling the stock exchange, then we are meant to rely on it.  Now, that reasoning might be circular, but an immaculate conception of logic is not a prerequisite for investing in shares.  People in business would regard the statement as ‘bankable’.

Commercial lawyers looking at this statement would raise their eyebrows.  Whether or not a contract has become binding is a matter that is notorious for its legal difficulty.  Especially in China!  And that is precisely why this statement was so dangerous.  The ordinary investor is not a lawyer trained to see how problematic this kind of legal conclusion or opinion might be.  These kinds of deals worth billions are stitched up at great length by legal teams working around the clock to develop what is called the ‘bible’ which is longer than the Bible.  A partner of one of the international law firms that makes these bibles who saw this reference to a ‘binding contract’ before the bible had come into being may simply have said a Hail Mary for the Professional Indemnity partner of the law firm that signed off on this announcement (and you can bet that a team of lawyers was involved there).

Well, Fortescue spent eight years backpedalling from the word ‘binding’ and the company found itself on safe ground when the music stopped.  On any view of these proceedings, Fortescue showed a reckless indifference to the market in its shares being properly informed, and there can scarcely be one investor in Australia who will be glad that Fortescue got away with it.  And then left you and me to pick up a tab that could have got us a good jet fighter.


Controlling the hearing

While a great amount of court time is spent on directions for steps to be taken before the hearing, not much time is spent at the hearing in controlling and expediting the process.  The trouble is that nearly every direction that a court gives before the hearing requires a party to do something, and that means that the lawyers have to work, and that means that the bill keeps going up.  But we rarely see the court giving directions that are designed to reduce the bill.

Most lawyers work on a meter – on an hourly or daily rate.  The more hours or days they spend on a job, the more they get paid.  It is not in their financial interests to do their work so as to reduce as far as possible the time that they spend on the job.  Two or more generations ago, this was done not by paying them for time spent but by paying them a lump sum.  They were not paid to read the brief or to prepare for the hearing – they got a fee for the whole brief to appear.  It was called a brief fee, and if, say, that was enough to cover a couple of days in court, counsel would not be minded to take much longer.  You could rely on them for that.

The courts therefore have an interest in controlling the time that counsel take to conduct the trial.  They have more than an interest in doing so, because their main job is to provide a fair hearing, and they do not do that if they allow the hearing to get of hand so that one or both parties cannot afford to go on.  Indeed, it is sometimes hard to avoid the conclusion that some judges just sit there blandly in the God-given hope that eventually the combatants will run out of steam and surrender – at which point the judge most graciously congratulates them on their wisdom.  And delay usually hurts the weak more than the strong.

It was perhaps inevitable that parliaments would relieve tribunals from being obliged to follow the rules of evidence, because undue technicality could frustrate their doing their jobs, and because not many understand the rules.  But a lot of the law of evidence just applies logic or common sense or basic notions of fairness.  Unless you apply some notion of relevance, you may never finish.  If one side is going to say that a witness for the other side is mistaken or lying on a point, that should be put to that witness while they are in the box so that they can deal with it.  If one party can call a witness about what happened, but does not, they are open to the comment that the inference is that the witness would not help them.  These are all matters of common sense that any tribunal should apply.

And if it has any sense, it should apply the rule that says that if an answer is given to a question that is not related to a fact in issue but merely goes to credit, then that answer is final.  The other party cannot call evidence to contradict it.  Otherwise you are exposed to an infinite regress.  The failure to observe this rule is one reason why cross-examination takes so long.  Another reason is the delusion held by so many at the bar that cross-examination is a no-fly zone for the laws of evidence.  There is a general miasma about this which I think has contributed greatly to the length of hearings.

Not many people now can cross-examine.  Rather, they get together a large pile of documents, which it has cost the parties a fortune to assemble, and let the witness know that he or she is going to be invited on a long and painful journey.  Tabbed court books of documents and computer files have contributed to this deterioration.  So far as I know, it is still the law that if you call on the other side to produce a document, you can be compelled to tender it.  In our paper-crazed condition, that law is barely heard of now or even remembered.

So, one way to control the hearing is by applying rules of logic and sense.  Another way is by fixing time limits.  If we got through, say, half a dozen witnesses between 10 am and 11.45, I could apportion the time remaining until lunch between counsel for their addresses.  They might want to go on after 1 pm, but gastric juices then play their part.  Nor did I hesitate to tell counsel that cross-examination was too long, going nowhere, or just plain unhelpful.  ‘How will this questioning assist this process?’  I do not know how judges can just sit there while cross-examination goes on for hours or days in an apparent attempt to revive trial by ordeal.  If counsel have not scored a real hit in an hour, it is time to intervene.  It is your job to provide a fair and sensible trial: to put people out of pain, not to extend it.

Judges are properly wary of quotes for time given by barristers – especially if their chance of getting a start improves with a low quote.  For your own purposes, you might double the quote.  For their purposes, you might halve it.  I chaired a public inquiry in a very sensitive and much publicised matter.  I had four lay people around me who had full-time jobs and little time to spare.  (One was the late Ron Casey of Channel 7 and World of Sport.)  Senior counsel for both sides gave a considered estimate of four months to start much further down the track.  We told them we would start shortly, and that they could have four days – and we held them to it.  Sometimes you have to put your foot down.  No organ of government has unlimited means, and every organ of government bears some responsibility for dealing with its cost.  The great Lord Mansfield recognised that lawyers are the main cause of delay – together with litigants without merit.

Before leaving the discussion of the hearing, I might mention another issue that may affect the nature and the length of the hearing.  You would think that the questions was he negligent or was he honest would attract the same kind of inquiry as the questions was he in a position of confidence or did he act unconscionably?  But because of our history of common law and equity, that may not be so.

Sarah Jenyns, who was born in 1865, ‘conducted a matriarchal business in corsets and surgical appliances.’  The business was hugely successful and involved her seven children.  In 1946, she transferred the business to a company, but she did not ensure that each child took shares, ‘and thereby [she] planted the seeds to this litigation’.

A subsequent transfer to one son was attacked.  He was said to have been in a position of confidence when she was vulnerable.  The trial in Queensland had to be before a jury and it ran for 28 days.  The evidence revealed that Mrs Jenyns had her foibles – she could have walked straight out of a novel by Patrick White.  She claimed to be in touch with the Almighty; she fell into periods of silence when she would only communicate in paper; and she had developed a taste for rum, whisky, and opiates.  She was a living land-mine for litigation.  As the joint judgment of the High Court (Dixon, CJ, and McTiernan, and Kitto, JJ) said:

There were conflicts of expert and other evidence characteristic of such issues, but doubtless the root cause of this controversy lay in the unusual nature of Mrs. Jenyns’ personality and the complex and inconsistent psychological elements forming it.  In a woman of proved business capacity, and considerable practical experience, possessing a peculiar understanding of her specialized trade and its profitable exercise, never separating her business and family life and always striving to dominate in both, and yet long accustomed to profess that her actions were guided by direct communications from a divine source, lacking all sense of the incongruous in the purposes for which she vouched heaven as her authority, temperamental in many of her attitudes and judgments, uninhibited either by a sense of humour or a fear of ridicule, it must have been difficult as she advanced in age to distinguish in her what was merely temperamental or perhaps histrionic from what was irrational, and difficult to judge whether her less rational expressions and ideas had any bearing on her business instinct and understanding and how far family predilections competed in her judgment with practical considerations affecting her own business advantage.  One curious feature of the case is that at the trial Mrs. Jenyns was still living and might have been called as a witness.

The Queensland Supreme Court set aside the transfer of shares that was attacked.  The High Court allowed the appeal on the merits.  The High Court commented on the obvious difficulty in running a case like this before a jury, and in in the kind of language that we associate with that Court, it said:

The jurisdiction of a court of equity to set aside a gift or other disposition of property as, actually or presumptively, resulting from undue influence, abuse of confidence or other circumstances affecting the conscience of the donee is governed by principles the application of which calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the donor. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition.

Their honours referred to the remarks of an English equity judge made not long after the Battle of Waterloo: ‘A court of law works its way to short issues, and confines its views to them.  A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case.’

For better or for worse, that difference in the trial process may still be with us every day – even in humble statutory tribunals.  The other worrying thing about this case is that apart from allowing the appeal on the merits, the High Court held that the whole action was outside the powers of the statutory officer who sued, and that the action should have been dismissed on this ground alone.  It looks like the point was not noticed until the parties got to the High Court.  The conversations between the parties and their lawyers might then have become a little strained.


The decision

A judge once concluded a judgment saying ‘I hope that I haven’t said anything new’.  That kind of shyness is less in vogue now.  But it might lead you to ask the question.  Will deciding this case require me to say something new?  Unless you are on the High Court, the answer will almost certainly be no.  In that case you can dispose of the matter as crisply as you can, while doing as little damage as possible to the people involved or to the fabric of the law.

But in the rare case where you may have to say something new, why should not those same considerations apply?  If you are going to add to the body of our law, then unless you are some kind of juristic superstar, which you almost certainly are not, the chances are that your efforts will leave us worse off.  Why should not you still seek to get rid of the matter saying as little as decently possible?  Did anything – anything – good at all come out of the gallons of ink spilled by nine judges arguing about whether Twiggy had told a fib?

So, I would suggest that the first thing is to keep the decision as short as the law and evidence permits.

The next and related tip is to start as soon as possible doing them on the spot.  It will depend to some extent on jurisdiction, and on temperament.  The late Bill Crockett told me that he enjoyed the Practice Court – ‘it gives you a chance to chance your arm.’  He was on any view a pre-eminent judge – the most imposing judge I have appeared before – but you need to confront something like that sentiment, and the sooner you do so, the better – otherwise you may never get round to it.  And the most gripping disease that can cripple a judge is getting behind in reserved judgments.  We see it so often, and it is a very sad failure of character and the system.

On disciplinary tribunals, I think that the decision should be given on the spot, and face to face with the punter.  You should do it to their face, but you can reserve the right to add to and vary those reasons later.  You may want to do that on some tribunals because people may look to you for guidance on some issues.

I never felt up to giving a decision on the spot in complex cases like charity cases, preferential securities cases, group pay-roll, or tax evasion cases – for one thing, I had no idea what the endgame might be, and it may not be a good idea to think out loud in those cases.  Nor did I think those cases were ones where I should chance my arm, since there were tricky issues of law or fact.  But where the issue was just one of credit or penalty or whether a contract had been concluded by a certain date, there was no problem about doing it on the spot.  It is not my area of practice, but I wonder why most appeals on sentence are not dealt with on the spot.  Do we really suppose that the science of punishment is that precise?

We tend to forget now that from its creation, the English Court of Appeal tried to get through most of its load on the spot.  Oliver Wendell Holmes loved this idea – he would doubtless have been up for it.  Our High Court used to do it occasionally.  I referred earlier to the rule that if you call for a document, you can be compelled to tender it.  The authority is Walker v Walker.  That was a matrimonial case – presumably of a very wealthy couple since this maintenance case started before Magistrate.  The Court gave its judgment on the spot.  Latham, CJ and Dixon, J offered brief observations.  Here is the judgment of Justice Starke:

I agree that the appeal should be dismissed, but I do not agree that the letter which has been referred to was admissible in evidence of the husband’s means. It is, of course, an old rule that if a party calls for a document in the course of the trial he is bound to put it in if so required, but it does not follow that every statement in such a document, hearsay and otherwise, is evidence. It is for the court to consider the matter in each case, and in this particular case all that happened was that the letter was put in to confirm the wife’s statement that her knowledge of her husband’s means was based on hearsay and nothing else. I should not have thought that the letter could in these circumstances be used affirmatively, or that it had any probative value whatever. However, I think there was other evidence which was given of the husband’s position in life and positions that he had occupied which were sufficient to support the decision of the magistrate.

The parties like judges who are short and to the point.  Instead, we are lost on a sea of cut-and-paste agglutination of the style so deplored by good judges.

On the length and depth, or scholarship, of the judgments, I think that the problem has got worse over the last generation or so with footnotes.  They should have no place in the courts.  The taxpayers fund the judiciary to resolve disputes, not to compile and compound juristic theories and theses.  The actual litigants are much more aware of this distinction than judges think.  They just want to be put out of their misery and not to be used as a source of ammunition for the next bunch of guinea pigs – the problem is that empire building does not just hold up the litigants who are the parties in the exercise, but it helps to make it worse for the next lot.  And who wants to be put down by a footnote?

May I take it to be common ground that we have too much law already?  If so, how confident is any would-be law-maker that their next new law will leave us net better off?  So, to the wunderkind or appeal court who wants to unload the next few hundred page bible, I put the Latin question: cui bono?  Just who is the audience?  Certainly not those who paid for it – the parties.

Two of the tablets of our law of negligence were given by two masters of the law, Justice Cardozo in Macpherson v Buick Co. and Lord Atkin in Donoghue v Stevenson.  Elsewhere I said this:

One footnote may be permitted to these judgments.  That of Cardozo J is about ten pages in the reports; that of Atkin is about twenty one pages.  Atkin in his judgment refers to the ‘illuminating judgment’ of Cardozo, and apologises for his own ‘long judgment’.  Heaven only knows what either of these great judges would have thought of the effusive fulminations of the doom-thunderers of nowadays.

The movie Casablanca takes ninety-four minutes.  Any director who makes a film longer than that is at risk of being seen to flirt with Destiny.  So is any judge who takes longer than Justice Cardozo or Lord Atkin.

Finally, if you are going to reserve, get it done quickly.  Don’t let it or others turn into a cancer.  If the case has run for more than a day, you can have the introduction and summary of the evidence and argument made up as you go.  The instincts developed over twenty-five years fighting cases will lead you to review the evidence and the law, and then make findings on the evidence and draw the conclusions of law – and so you come to decide the issues.  It is about a five phase process.

It has been a very long tradition to expose in Anglo-American courts to expose the reasoning in this structured manner.  Nowadays we use that ghastly word ‘transparency’.  This is not the way they do it in Europe.  They think we are odd.  Major law firms now follow the advice that Sir Ernest Gowers (in The Complete Plain Words) gave to the English Civil Service: ‘Begin by answering his question.’  I doubt whether that mode will take on here, because the judiciary is not the civil service, or the retailer of advice to paying customers, but you could well remember how Sir Ernest summarised his rules: ‘Be short, be simple, be human.’  And judges should be encouraged to give a summary of any reserved judgment.

All this has to be done when the case is fresh in your mind – especially if issues of credit are involved.  It is not fair to the parties to allow a lapse of time to flirt with your powers of recall and analysis.  Such a course is unjust.

I have always tried to give a decision on the day of hearing or the next.  I don’t think I ever sat on one for longer than a week.  If anyone wants to say that I confronted less pressure of work than they do, I will be interested to hear from them.  We are talking about professional duty and discipline.  For myself, I cannot understand how any judge at first instance could in good conscience sit on one for more than a month.  You are then likely to cause real pain to real people, and you are not doing the right thing by the rest of us either.  If such a practice were adopted, and it had the effect of reducing attempts to match War and Peace, very few would dress themselves in mourning.



About thirty years ago, I was at an ABA Conference in New York.  I attended a very affable breakfast for appellate counsel.  Late in the session, I asked if there was an agenda.  ‘Not really, Counsellor.  There is only so much you can say about appellate advocacy, and it has all been said before.  We just fix the agenda for the next meeting.’  That sounded most agreeable.  It was there that I heard for the first time the U S description of appeals’ judges – they hide out in the hills while the real action is going on, and when it is over, they come down and shoot the wounded.  That observation has an American ring to it – a ring of the West.

My own view is that the pain is far less if those doing the shooting are drawn from those who might be shot – and it was a mistake to have a separate Court of Appeal.  The ordinary punter gets nervous with splits in the higher reaches of government.  There is no point in adding to the hierarchy for the sake of it.  It is inevitable that a separate Court of Appeal will develop a sort of aloofness that will lead to estrangement from those still in the trenches.  The more rungs there are on a ladder, the more rickety it becomes, and the easier it is for some to look down on others, and for those others to feel passed over or looked down on.  The principal differences between trial judges and intermediate appeals judges lie in their apparent self-esteem and capacity to make law; the two are related.

The position looks very bad in Victoria with County Court judges all the time being spoken down to by faceless judges who have little part to play with the bar or the profession at large.  This is very unhealthy because the Court of Appeal and the County Court appear to operate on different juristic levels.  There is a kind of intellectual apartheid.  It is worse than the public service in Canberra.

Then comes the coup de grace.  Some of those appeal judges have never fought a criminal case, never fought a case before a jury, and have never directed a jury.  And yet those whose bread and butter has been to appear in front of or to direct juries have to be lectured by some who have never done it.  In the Heydon Royal Commission, the whole nation can see the problems that arise when you ask someone to do the work of a trial judge and they have no training for that purpose.

There is another cause of disaffection.  Our appeal judges have not got their act together in stating their view of the law in crisp simple terms that can be applied by your everyday trial judge.  There are too many judgments with too much said.  We have abandoned the wisdom of our ancestors that held that dissent on high is unhealthy, and on the High Court in particular, we have had to put up with prima donnas whose conception of their own egos has not allowed them to be just one of the team, but requires them to flaunt their own wares – to the benefit of no one except those idle people who have the time to read that kind of stuff.

But you should not be troubled by appeals.  I say that although my sense is that County Court judges are delivering a lot more reserved judgments than they used to because appeals are a lot more prevalent than before.  I have never understood why judges get so scratchy about appeals.  Unless you have said that 1+1=3 or that Donoghue v Stevenson is a leading case on the tort of homicide, the fact that another lawyer comes to a different view to yours appears to me to be an utterly inconsequential result of the fact that litigation is a lottery.  On more than one occasion in tax cases, I have told the punter that a win from me might be their worst result along a winding and rough road.  I also often told counsel that many parts of the law are beyond my comprehension.

I have been talking of the sensitivities of judges.  Far more important are the interests of the parties.  There was an old Latin maxim to the effect that it is in the public interest that there be an end to litigation.  Most litigation is hurtful.  Appeals are forms of litigation that extend the hurt.  Some appeal courts compound it by ordering a retrial.  That happens when some judges say that one or others got it wrong, and the parties have to suffer the consequences.

My own view is that we have far too many appeals, and that if the bloke next door found out how many criminal trials had to be repeated, to the unspeakable misery of those involved, he would be outraged – and I do mean outraged.  Even in my jurisdiction, there were bad accidents.  Some brothers named Christian on the land in Gippsland had to turn up before me on a dispute with the revenue authority about stamp duty on a partition of their farming property.  That was a subject on which I was anything but confident.  These farming brothers had not, like Twiggy, sought to bring government down on them, but they were taken by government, for its own purposes, to a single judge of the Supreme Court, from there to the Full Court, and from there to the High Court.  The stamp duty in question was under $9000.  I think that special leave was refused – otherwise I might just have been the first of five layers of appeal – as happened, I think, to two other cases of mine.

You might say that that is Dickensian or Pythonesque.  In truth, it is a mix of madness and cruelty that can ruin lives.  Our appeals procedures badly need reform.



You can usually tell shortly after entering a court-room whether a judge is up to it.  If they look at home in the surrounds and appear to be content in themselves, you’re OK; if not, everyone is in trouble.  In the professions, as in most undertakings, you take a certain amount of learning, skill, and experience as a given – the rest then is character, and for the most part, that does not change.  It is the same on the bench.

We would hope that most judges enjoy the job – those that don’t are a pain.  The pay is good.  The benefits are beyond belief.  They are about the only part of government for whom people have some residual trust left.  There are limits on the lifestyle, but cloistered sodality need not give way to secluded insularity.

I preferred the times when the Supreme Court was the Supreme Court, but all judges still had to do their share of crime, divorce, civil juries, the Practice Court, and circuit.  That mix of people in the street and the gutter helped to stave off that frightful aloofness and ineffable superiority that a taste of ermine confers on so many mortals.

The leading judge of his generation, the late Tom Smith, had a more mundane view of judges.  The ordinary person – the punter – is oblivious to so many of the degrees of separation in the hierarchy that so engage the judges themselves.  Smith thought that the average bloke looked on judges as being not far removed from coppers – people who might, unless you were careful, do you some kind of harm.  I have a very healthy respect for the worth of that view.

There have also been sea-changes in the place of the judiciary over the last generation.  The bench used to be the appointed end of a career at the bar, and retirement from the bench meant retirement.  Neither is the case now.  There are very mixed views on the glowing afterlife of judges, but it is hard to see any loss in a large part of the cream of the bar electing not to take judicial orders.  In the result, there has been a great shift in the spread of intellectual life between the bar and the bench.  I have a clear view that at least in commercial law and equity, the bar now has a strong intellectual preponderance over the bench.  Some might say the same for constitutional law.  In any event, I regard this shift as healthy.  It is altogether right and fitting for people who turn 70 to realise that all the judges out there must be younger than them.  This shift helps keep judges earthed.

I go back to where I started.  ‘People are in conflict and need help.  Your job is to help them by resolving the conflict.  To do so, you will have to take authority over them by making decisions that bind them by the force of the law and the power of government.  The sooner you do this, the better – for you and them’.  Get them into the ring as soon as you can.  Your job is to expedite the resolution of the conflict, not to put up roadblocks to prevent a trial.  Focus on the conflict and not on the process.  A gram of evidence is worth a kilo of process or folderol.  There is no point in trying to fit the parties up with a Rolls Royce if all they want or can afford is a Toyota.

You might think I was being deliberately Bolshie if I said that I was in favour of getting rid of court management, pleadings, discovery, interrogatories, witness statements, court books, compulsory mediations, and transcripts – but I have to say that I have done so for thirty years on tribunals – and governments have an affection for tribunals that I find unhealthy, but which real judges have no interest in feeding.  History suggests that if the judges don’t get their act together, people go elsewhere, with or without the government.

The world is imperfect, and we all have to live with that fact.  You hold your office on trust as a servant of the people, and you seek to discharge that trust by resolving as best you can conflict within the people.  The rest, as someone said, belongs to the madness of art – or else it was summed up thousands of years ago for the Egyptian Civil Service:

Be courteous and tactful as well as honest and diligent.

All your doings are publicly known, and must therefore

Be beyond complaint or criticism.  Be absolutely impartial.

Always give a reason for refusing a plea; complainants

Like a kindly hearing even more than a successful

Plea.  Preserve dignity but avoid inspiring fear.

The precedent following those precepts is a letter from a Minister of Finance to a senior civil servant.  ‘Appollonius to Zeno, greeting.  You did well to send the chickpeas to Memphis.  Farewell.’


Churchill on experience: Great Contemporaries, Folio Society, 2015, 6.

Maitland on cricket umpires: Pollock, F and Maitland, F W, The History of English Law before the Time of Edward I, Rev. Ed., Cambridge, 1898, Vol 2, 620-621.

Description of the process before tax tribunal: Gibson, G, Confessions of a Barrister, Amazon, 2014, Part XII.

High Court judges as junior counsel in Victorian tax cases: Christian v Comptroller of Stamos (1989) 89 ATC 2025; 3 VAR 12; 20 ATR 1206; [1991] 2 VR 129 (Nettle, J); Australian Conservation Foundation v CSR [2002] VCAT 1491 (Gordon, J).  Central Bayside v CSR [2003] VSC was on appeal to Nettle, J, and went to the High Court ((2006) 80 ALJR 1509) where M Gordon QC appeared as amicus.

Kant on thinking methodically: Kuehn, M, Kant, A Biography, C U P, 2001, 235.

The VCAT case and the script for the Sicilian: Confessions, above. Part 12

Fortescue litigation: 264 ALR 201; 190 FCR 364; [2012] HCA 39.

Law of Evidence: being compelled to tender a document you have called for: Walker v Walker (1937) 57 CLR 630.

Jenyns litigation: Jenyns v Public Curator (1953) 90 CLR 113 at 118,119.

Judge not wanting to say anything new: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at the end of the speech of Lord Steyn.

Macpherson v Buick Manufacturing Co (1916) 217 NY 582; Donoghue v Stevenson [1932] AC 562; citation from Gibson, G, The Common Law, A History, Australian Scholarly, 2013, 65-66.

Gowers: The Complete Plain Words, Revd. Ed, London, 1973, 13 and 18.

Egyptian Civil Service: Gowers, above, 20.

Passing Bull 25 – Extremism in America


The Americans are currently wrestling with two very rubbery words, extremism and terrorism. Each apparently is a word that means what you want it to mean, and nothing else.

For reasons I can understand, some people are tired of hearing Muslems dismiss violent Moslems as extremists. How far off centre do you have to go before you qualify as an extremist? And what happens to you if you qualify?

For reasons I can also understand, people are tired of hearing Muslems say that the extremists are bad, but… Then follows some excusing or softening factor. The extremists are bad, but they have in part become bad because other people were bad to them – or us.

The American Republicans are now going through the same process with one of their number. Donald Trump might fairly be described as an extremist, not to mention the best friend that IS has ever had.  Other Republicans say that, yes, Trump is an extremist, but – a lot of people have been driven to extremes by the weakness of President Obama. It is not pretty to watch.

What is even less pretty is the confusion over terrorism. Mass shootings occur on an almost daily basis in the U S. More than 80 people are shot and killed every day there.  The nation is used to it, even though people still claim to be shocked when each fresh incident arises. The FBI waited for some time before declaring the most recent mass shooting in California was an act of terrorism.

What distinguishes this mass shooting from the others that happen so regularly? These mass killers had some kind of religious training and motivation, and they had been ‘radicalised’, which apparently puts them beyond extremists.

To qualify as a terrorist, you need to be putting people in fear by killing people or by threatening to kill them, but for some ultimate political or religious end. While the presence of politics or religion might indicate that the source of the evil may be more widespread, it is hard to see any basis for moral discrimination between the perpetrators of the various kinds of mass shooting and killing.

It is impossible to see any such discrimination in the US. There people are constitutionally encouraged to bear arms, and that is interpreted to mean that they can buy and have and be able to use any kind of firearm they want to have. People are solemnly told, and by the highest judges in the land, that this is a constitutional right of US citizens.  Why do they have this right?  It is given to them so that they can protect themselves from tyranny.

It is hard to recall a more noxious form of bullshit. What people are being told is that they should be able to remain armed in case they think that the government is becoming oppressive. In that case, they can use their guns to change the government. One of the difficulties is that no one will ever be able to judge when that right may arise. Because when he does claim to exercise the right, not just to bear arms but to use them, the person using the gun will be, by definition, a terrorist – they will be killing or threatening to kill for a political purpose.

Terrorists either win or lose. If they win, they get into power.  If they lose, they get killed.  Nelson Mandela was in the first category; John Wilkes Booth, the second.  In truth, the best example of someone exercising the right to bear arms to remove a tyrant was the man called John Wilkes Booth. He assassinated Abraham Lincoln. He did so expressly on the basis that Lincoln was a terrorist.  Booth is the quintessential American terrorist or extremist.

Now, there are arguments about this – that prevail by a majority of one in the Supreme Court.  A right to bear arms does not entail a right to use them.  This kind of silliness is not what the authors of this clause had in mind in England in 1689 – where the use of handguns in London had long been illegal – but a sensible historical meaning does suit the Court.  And Americans have been let down by their legislators as well as their judges.  Most of them want to stop this killing, but they are too scared to do so.  That is not terrorism, or extremism.  That is just cowardice.  They are victims of people using fear to achieve political ends.  So are all Americans.

So, become a U S citizen, and you too can be a terrorist.  The whole bloody joint is crawling with extremists and terrorists.

Poet of the month: Robert Burns

I have always wondered what the fuss was about Burns. That wonderment has not ceased on my reading of his treatment of the downstairs staff. But here is a poem for the Sisters. I can guarantee that the next one will not be so well received.

How cruel are the parents

How cruel are the Parents

Who riches only prize,

And to the wealthy booby

Poor Woman sacrifice:

Meanwhile the hapless Daughter

Has the choice of strife;

To shun a tyrant Father’s hate

Become a wretched Wife.

The ravening hawk pursuing,

The trembling day thus flies,

To shun the impending ruin

While her pinion tries

Till of escape despairing

No shelter or retreat

She trusts the ruthless Falconer

And drops beneath his feet.

New book catalogue

Book Catalogue


History (13)

A history of the West: 1 The ancient West; 2 The medieval world; 3 The West awakes; 4 Revolutions in the West; 5 Twentieth century West

Parallel Trials; The German Nexus: The Germans in English History; The English Difference? – The Tablets of their Laws; Terror and the Police State: Punishment as a Measure of Despair; A tale of two nations – Uncle Sam from Down Under; Looking down the Well: Papers on Legal History; Some History Papers: Essays on Modern History in England and Europe; Listening to Historians: What is Truth?

Literature (3)

Windows on Shakespeare; Some literary Papers: Tilting at Windmills; Top Shelf, or What used to be called a Liberal Education.

Philosophy (2)

The Humility of Knowledge: Five Geniuses and God; Different Minds: Why are English and European Lawyers so Different?

Autobiography (4)

Confessions of a babyboomer; Confessions of a barrister; Summers at Oxford and Cambridge; Up your North

In print (5)

The Journalist’s Companion to Australian Law; The Arbitrator’s Companion; Law for Directors; The Making of a Lawyer; The Common Law – A History


The Ancient West

The general history of ancient Greece and Rome is traced separately and then their contribution to the West is looked at under the headings Gods, Rulers, Thinkers, Writers, Artists and Historians.  This is the first in a five volume History of the West that is published at the same time.  One theme recurs – in what sense was either ancient Greece or Rome civilised?  66,000 words, fully annotated, with chronology.

The Medieval West

The book covers about 1000 years from the fall of Rome to the Renaissance under the headings the Spectres of Dante and the Pilgrims of Chaucer; Mohammed and Charlemagne; Saint Augustine and Saint Aquinas; Serfs and Peasants; Lords and Vassals; Soldiers and Priests; Knights and Lords; Kings and Popes; Crusaders and Charlatans; and Lawyers and Judges. It is the second volume of A History of the West.  45,000 words fully annotated.

The West Awakes

This book deals with three phases of the history of the West (now including the U S) known as the Renaissance, the Reformation, and the Enlightenment. The rebirth commenced largely in Florence.  It was followed by what was traditionally called the High Renaissance centred in Rome.  The spiritual Reformation exploded hotly in Germany.  It was followed by a very cold version in Geneva.  Typically, the English went their own perverse non-European way.  There the reformation had almost nothing to do with religion, and everything to do with politics.  History has not paid enough attention to the impact of this attainment of religious Home Rule on the later revolutions in England.

Volume 4 of A History of the West goes beyond the Renaissance to the Enlightenment.  The German philosopher, Kant, said that enlightenment is our emergence from our self-incurred immaturity.  The Enlightenment is the name given to the period following the events under the umbrella of renaissance and reformation when thinkers and artists focussed more on man than gods, and the quest for freedom became doctrinaire.  The book also looks at German classical music and the birth of the U S.

The book follows all these themes through the life stories of the main players.   It is 65,000 words, and fully annotated.

Revolutions in the West

Five revolutions made the modern West.  The English have an unchallenged genius for deniable, incremental change, in a constitution which they built up over a thousand years or so, but even they had two authentic revolutions, one in 1641 and one in 1689, and they had a gruesome civil war in between.  Additionally, we shall look at the American War of Independence (starting in 1776), the French Revolution (starting in 1789) and the Russian Revolution (starting in 1917).

The recurring theme is the willingness of those who get into a club to slam the door in the faces of those coming after them.  People who think that the glimmer called the Arab Spring can be dealt with inside, say, five generations may wish to reflect on the English experience, or the Russian, or even the agony of France for the century after 1789, or the guilt of the United States before it was purged by its Civil War.

This book first looks at the old regimes before each revolution, the crises in those regimes, and then looks separately at the five overthrows.  The book looks in detail at the terror in two of them, and draws conclusions about revolutions elsewhere.  Volume 4 of A History of the West is 74,000 words fully annotated.

Twentieth Century West

We will now look at the completion of the industrial revolution and the current onset of the technological revolution (which is destroying minds, manners, and jobs); the horror of peoples’ wars and nuclear weapons; a world depression and the threat of a recurrence of economic collapse; the popular sterility of modernism in the arts apart from jazz; the claimed death of God, and the complete absence of any alternative, and the humiliation of a world church; the rise of professional sport as a business and as the new opium of the masses; the appalling moral collapse of three entirely ‘civilized’ nations (Italy, Germany, and Spain); the depravity of three of the most evil people in history (Lenin, Stalin, and Hitler – Mao is outside our field); the way that Einstein and computers can leave us feeling powerless in a world that we now have to take on trust; wins and losses on racism; the challenges of what will be the dominant religion, Islam, the faith of the East, and what will be the strongest economic power, China; the mediocrity and possible seizing up of democracy; the extinction of the aristocracy, and the movement of wealth from land to capital; the growing divide between rich and poor; and what some see as the closing of the western mind, the emptiness of its art, and the failure of its pillars and institutions.

We shall look at these questions while looking at the lives of Kaiser Wilhelm, Henrik Ibsen, Henry Ford, Lloyd George, Edith Cavell, Albert Einstein, James Joyce, John Maynard Keynes, Sigmund Freud, Joseph Stalin, Louis Armstrong, Francisco Franco, Dietrich Bonhoeffer, Pablo Picasso, Charles de Gaulle, Harry Truman, Walt Disney, Elvis Presley, John Kennedy, Maria Callas, Muhammad Ali, Margaret Thatcher, Silvio Berlusconi, Bill Gates, and Angela Merkel.  The American weighting is not surprising in what we now call the American century.  We shall additionally look separately at the following issues: The Rise and Fall of the Third Reich; Two Economic Crashes; The Rule of Law and Racism; The Technological Revolution; Annihilation; and, The Death of God, Sport, and Manners?

This is volume 5 in A History of the West.  The book is 95,000 words.  It is fully annotated.

Parallel Trials

This book considers the two most raked over trials in history.  It looks at them in tandem under the following headings: Sources; Powers; Laws; Accused; Teachings; Accusers; Courts; Charges; Prosecutions; Defences; Verdicts; Reactions; Conclusions; History; Responsibility.

No book has analysed either trial in such a way.  In order to keep some kind of narrative going for both trials, some of the more controversial issues in the trial of Jesus are looked at in detail in Appendices.  They set out the relevant terms of one of the gospels and give some comments on the difficulties that flow from them, and raise questions like: Was it blasphemy for Jesus to claim to be the son of God?  Could the Sanhedrin have enforced a death sentence?  Can we say what actually happened?

The evidence for the ‘trial’ of Jesus is very thin.  It looks like there was a Jewish charge of blasphemy and a Roman charge and finding of sedition:  There was evidence of the first but not the second.  What is clear is that the accused offered no defence to any charge against him.  What is less well recognised is that Socrates in substance offered no defence either.  As a defence to either charge against Socrates, the Apology is demonstrably fallacious in logic.  Socrates then invited the death penalty by his submission on penalty.

The book aims to be an independent analysis of the evidence and law and the procedure for each trial by a practising lawyer who does not profess any relevant faith.  The final appendix gives extracts from books of two distinguished judges on either side – Christian and Jewish – which accounts are obviously disfigured by bias.

The work is fully annotated.  It is about 71,000 words

The German Nexus

This book of 27,000 words has three essays on the impact of Germany on England.  The Anglo-Saxons were the first English, coming from Germany with the seeds of the language and kingship, and the glimmer of individualism.  Two Germans did not take root in England, although their influence was very great elsewhere – the second essay looks at why Luther and Kant had no impact and the great difference in thinking in the two countries.  The third traces the history of the current royal house which came from Germany.  The three essays, which are fully annotated, look at themes I have looked at in detail elsewhere.  It is deliberately idiosyncratic.

The English Difference? The Tablets of their Laws

Why are the English so different to and difficult for Europe?  This is a history of the English constitutional story from Anglo-Saxon times to now for the general public or for lawyers.  Germans (410-1066) deals with Anglo-Saxon kings and dooms up to the Conquest.  The English did not, like the rest of Europe, accept Roman law.  Barons (to 1399) covers Magna Carta, on which most subsequent English legal history is just a commentary, and the birth of Parliament and a legal profession.  Protestants (to 1603) sees English Home Rule, which legal historians underrate, and the rise of Parliament and the judges.  Gentry (to 1776) shows a century of conflict where the Stuart kings faced king-breakers from hell like Cromwell, leading to the Bill of Rights, which the Americans sent back as the Declaration of Independence.  Shopkeepers (to 1911) sees parliamentary party democracy as we know it after the crisis of the People’s Budget of Lloyd George and Winston Churchill.  Women (to 2014) covers universal suffrage, the accession of women and workers, and the current development of the rule of law.  Reference throughout is made to the present, and to comparable events in Europe and the U S.  The author is not British, but he has written extensively on the history of law and ideas.  The book of 48,000 words is fully annotated.

Terror and the Police State: Punishment as a Measure of Despair

This book looks at terror and terrorism, and its cause or effect, the police state.  It is a proper subject of study now.  This book therefore looks at a comparison of the role played by terror in France, Russia, and Germany, during the periods referred to.  After setting the scene, the book proceeds under these headings: enduring emergency; righteousness; good bye to the law; the instruments of terror; waves of terror; degradation; secret police; surveillance; denunciation; fear; popular courts and show trials; scapegoats, suspicion, and proof; gulags; propaganda, religion, and cults; the numbers; and the horror.  The book concludes by trying to describe common threads in the three regimes, and with something like a plea for Robespierre.

The book does not deal with the Holocaust.  I have enough on my plate already – sufficient unto the day is the evil thereof – but it may help in trying to understand that moral landslide to see the extent to which it might be related to the evils that are discussed in this book, which I now commend to you, my reader.

The book is 113,000 words and fully annotated.

A Tale of Two Nations: Uncle Sam from Down Under

This book plots in outline the histories of the US and Australia.  This is not a potted history of either, but a collection of snapshots of each taken side by side as these nations negotiated some of the principal stepping stones in their progress across the stream of history.  I have the pious hope that the selection of the subject matter of the snapshots may be uncontroversial if not prosaic, leaving discussion only for the inferences to be drawn and comments that might be made, but experience suggests that such a hope is likely to be illusory and hardly pious.

Both America and Australia started out as refuges for boat people, two terms of abuse now in some quarters, but although they share an original common ancestor, their stories are very different.  How, and why, is this the case?

I should disclose my sources of prejudice.  I am an Australian white male, middle class professional, who is much closer to death than birth.  I have no political affiliation, but I have a mistrust of government in general, and politicians and their parties in particular.  My perfect government is one that has as little to do with me as is decently possible – especially the part that hands out speeding tickets.  I have made a handsome living from a profession that we in this country derive from England.  I have an unlimited sense of admiration for the contribution that England has made to the civilization of the West and to the history and character of both America and Australia, and an almost equally unlimited frustration at the inability of my nation to cut what I see as the apron strings tying Australia to England, and to stand on its own two feet.  A dark cloud hangs over my descent into the dust – that I shall leave this earth before my country gets what I regard as its independence.

I have no belief in a personal God, but I believe that the Ten Commandments and the Sermon on the Mount are a little like cutlery – they are what distinguish us from the gorillas.  As the white people took America and Australia, they committed crimes against the native peoples of those lands in ways that violated every part of the great religious laws that I have mentioned, but in common with most other people, I have no real idea of what to do about those wrongs now.

Doubtless other of my prejudices will become apparent to you as you go through this book, which I hope that you will enjoy.

The book is 100,000 words and fully annotated.

Looking down the Well: Papers on Legal History

The book has 18 essays or notes on the legal and constitutional history of England that underpins all common law countries.  The essays are annotated.  The book is 95,000 words.

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.

Some History Papers: Essays on Modern History in England and Europe

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 under the heading 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 Atom 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.

128,000 words.  The major essays are annotated.

Listening to Historians: What is truth?To write history is to tell a story.  The better the story, the better the history.  There are two parts to telling a story – stating what happened; and choosing how you will describe those events.  If you tell the story well, the reader will hardly notice the distinction.

The rise of the professional historian has moved the focus to what happened from how those events are described – the focus is on evidence, rather than style.  The writers, or historians, have brought this change on.  The readers do not like it.  They like their stories to be well told.  They want to listen to the stories.  For that they want to read good writing.

This book is loaded with good writing – not by me, but by some of the best writers in the West.  There is a good spread in time and place – five British (Gibbon, Carlyle, Macaulay, Maitland, and Namier), three French (Michelet, Taine, and Bloch), two Germans (Ranke and Mommsen), one Dutchman (Geyl), one Greek (Thucydides), one Italian (Tacitus), these last two being ancient, and one Swiss (Burkhardt).

The book concludes by considering truth in history and meaning in art.

Historians are fond of talking about what history is.  They might better ask why people read it.  Do people read history so that they might know more or be better informed about the past?  Do they read it to gain insight into and some connexion with other people?  Or do they read it just for pleasure?  Do they read to listen?

The book is 55,000 words and is fully annotated.

Windows on Shakespeare

This book is an introduction to the world of Shakespeare.  Chapter I is headed ‘A Writer in Time and Space’ and puts Elizabethan England in its context in the evolution of western theatre starting with Greece, and looks at Elizabethan education and theatre, and tells all that we know of the life of Shakespeare (which isn’t much).  Chapter 2 contains a note on each of the thirty-eight plays (averaging about 2000 words on each play, but loaded heavily in favour of the most played and celebrated pieces.)  Chapter 3 offers an overview of the plays in groups – Problem, Romance, History, Classical, Comedies, and Tragedies.  Chapter 4 gives a commentary on the ranges of recordings available, and includes a catalogue of recordings on cassette, CD and DVD.  Chapter 5 looks at the greatest players of Shakespeare on stage and screen.  Chapter 6 looks at the main streams of literary criticism from time to time.  Chapter 7 concludes with general observations on this genius and his continuing presence in our life.  There are no footnotes, but references are given at the end of each chapter, or note on a play (in chapter 2).  The book is about 98,000 words.  No other handbook of Shakespeare is structured like it.

Some Literary Papers: Tilting at Windmills

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 be happy.

82,000 words.  Some essays are annotated.

Top Shelf, or What used to be Called a Liberal Education

A survey of the best fifty writers or books selected by the author in literature, drama, poetry, history, philosophy, religion, science, films, cooking, and sport.  A description of every book is given – it is either leather bound at least in part or slip-cased.  They sit above the fireplace as life companions of the author.  This book of 75,000 words is different from other ‘top’ or ‘best’ lists: it is sincere.  If you get across this lot, you will be going bad to be called uncivilised.

The humility of knowledge: Five Geniuses and God

This book considers the relations between God and Spinoza, Hume, Kant, Gibbon and Wittgenstein.  The Foreword says: ‘These five thinkers represent the flower of the Western Enlightenment or philosophy.  They maintained that religious belief or faith was a no-fly zone for philosophy.  That simple proposition seems obvious enough to most people.  You do not get to the bottom of God by using logic any more than you get to the bottom of Michelangelo, Mozart, or Melbourne Storm by using logic.  But here is this simple proposition being laid down as a matter of logic by the biggest hitters that philosophy has known.  That leaves two questions.  On what grounds do some philosophers – not noticeably the most humble or tolerant of them – say that they can dictate to others what they should or should not believe about God?  If philosophers succeed in abolishing God, what, apart from that abolition, will philosophy have to show for itself for the two thousand years’ efforts since Aristotle?’

The issue is discussed sequentially for the five thinkers under the headings Times, Lives, Teachings, Reactions, and Beliefs.  There are three general chapters and a chapter ‘Other Geniuses and God’: Milton, Newton, Bach, Mozart, Goethe, Darwin, Tolstoy, Holmes, Yeats and Einstein.  Most of the subjects have a generosity of mind and spirit that is sufficient to put intolerant and dogmatic God abolishers in the shade.

There are no footnotes, but the book is fully annotated.  It is about 50,000 words.

Different minds: Why are English and European Lawyers so Different?

By looking at the comparative legal and political histories of England, France, Germany and the U S, and at the great differences in philosophy on either side of the Channel, this book looks at the variations in the way that European lawyers think compared to Anglo-American lawyers.  This book is essential for any lawyer who wants to be more than a bean counter.  There are as well chapters on rights, lawyers, jurists, trials and judgments.  The author has written on many of these themes elsewhere.  He has practised law for more than forty years and has presided over statutory tribunals for thirty years.  He has reflected on a lot of the issues raised in this book in many summer schools at Oxford and Cambridge, and one at Harvard.  He has practised at the Bar and in a major international firm, and has been briefed in the U K and the U S. The book is 47,000 words and is fully annotated.

Confessions of a babyboomer

This book is an autobiographical memoir of the author.  It goes through to when I turned 30.  Eleven days later, Gough Whitlam, the P M, got sacked.  Innocence, if not paradise, was lost.  The book is meant to give a snapshot of what it was like to grow up in a very different Australia – if you were born here at the end of the War.  References are made to outside political and sporting events, and to social customs and consumer habits to round out the picture.  One theme is the difference between three generations.  My parents, Mac and Norma, left school at about 13, and had to survive the depression and a real war; they got by with hard work and saving and a very pinched way of life, with both of them in work; they looked for their reward in the next generation rather than in a frugal retirement; they knew the value of money and saving.

My generation was not tested by a depression or a real war; we grew up in God’s country and we had everything before us – there were hardly limits to what we could achieve; we came into money, and we forgot its value and purpose.  ‘We babyboomers had enjoyed our day in the sun.  We had taken what was on offer when the war ended.  We actually got to walk along what Churchill called the broad sunlit uplands.  This was a promised land, it had been promised to us, and we had been cocooned in it.’

But the next generation looks very different – they grew up amid at least the trappings of wealth and an image of an urbane lifestyle as we sought to cast off the cringe (while clinging grimly to the Queen) and give them the best, but these children did not seem to be looking at a world of opportunity; au contraire, they were looking at threats and broken illusions.  My conclusion is that my generation were ‘the luckiest bastards alive’, and I doubt whether we have done all that we could to redeem the faith that our parents put in us.

Since this is a personal memoire, there are no footnotes.  This book is nearly 40,000 words.

Confessions of a barrister: Learning the Law

This is a memoire of the professional life of an Australian Babyboomer as a lawyer. The author has practised law for more than forty years as a barrister or solicitor, and has presided over one or another statutory tribunal for thirty years.  Of late he has concentrated on his writing in history, literature, and philosophy.  He has learned much from many summer schools at Cambridge, Harvard, and Oxford.

The author wanted to thank those other lawyers who have helped him as a lawyer, and to try to pass on to others the lessons that he has learned in practising law in various ways.  The book is dedicated to the idea that the required professional skill and attitude only come from vocation and experience, and that a good life is open to those who are prepared to put in the time and effort, to acquire the judgment, and to show the loyalty and courage that membership of this profession calls for.

Aspects of the boyhood and youth of an Australian babyboomer may be seen in a companion volume, Confessions of a Babyboomer.  64,000 words.

Summers at Oxford and Cambridge and Elsewhere

A traveller’s reflection on history and philosophy- and place

Reflections on Summer Schools at Oxford and Cambridge, and visits to Scotland and Europe, and on the subjects taught, including opera, history and philosophy.  There are essays on the philosophy of religion and Cromwell, but most of the writing is of contemporaneous impressions of Berlin, Paris, London and Scotland.  41,000 words.

Up your North

The Kimberley and Kakadu: A Seniors’ Guide from Broome to Darwin in 14 days by 4WD

A personal diary of a trip from Broome to Darwin in 14 days by a lawyer and writer in a 4WD with commentary on the outback and people living there and advice on how to avoid the mistakes of the author.  17,000 words.  Humour is guaranteed.

New book – Listening to historians

A new book is available on Amazon Kindle.  The blurb and Epilogue follow.  The latter raises issues of moment.  A revise catalogue follows.

Listening to Historians: What is truth?

To write history is to tell a story.  The better the story, the better the history.  There are two parts to telling a story – stating what happened; and choosing how you will describe those events.  If you tell the story well, the reader will hardly notice the distinction.

The rise of the professional historian has moved the focus to what happened from how those events are described – the focus is on evidence, rather than style.  The writers, or historians, have brought this change on.  The readers do not like it.  They like their stories to be well told.  They want to listen to the stories.  For that they want to read good writing.

This book is loaded with good writing – not by me, but by some of the best writers in the West.  There is a good spread in time and place – five British (Gibbon, Carlyle, Macaulay, Maitland, and Namier), three French (Michelet, Taine, and Bloch), two Germans (Ranke and Mommsen), one Dutchman (Geyl), one Greek (Thucydides), one Italian (Tacitus), these last two being ancient, and one Swiss (Burkhardt).

The book concludes by considering truth in history and meaning in art.

Historians are fond of talking about what history is.  They might better ask why people read it.  Do people read history so that they might know more or be better informed about the past?  Do they read it to gain insight into and some connexion with other people?  Or do they read it just for pleasure?  Do they read to listen?

The book is 55,000 words and is fully annotated.


In 1940, the Dutch historian Pieter Geyl had to face the war in Holland.  He was put off his normal work.  He turned to read about Napoleon and he wrote an essay on him.  When the Dutch capitulated, Geyl got back his manuscript endorsed with a message to ‘tell the printer to be quick.’  He had not referred to Hitler in the paper, but the parallels were obvious.  Geyl was arrested by the Germans and spent time in Buchenwald.  He gave lectures on Napoleon there and the comparison with the Fuhrer amused his hearers.

Curiously, Hitler may have been good for the reputation of Napoleon.  Napoleon had his critics but, apart from Stalin, no one could compete with Hitler for evil.  But where does that leave Napoleon?  Geyl was able to make an informed comparison in his Preface to his book Napoleon: For and Against.  ‘The French police were hated and feared in the occupied and annexed territories, but when one reads about their conduct with a mind full our present experiences [October 1944, before liberation], one cannot help feeling astonished at the restraints and resistances they still met with in the stubborn notions of law and in the mild manners of a humane age….And yet methods of compulsion and atrocities are inseparable from the character of the dictator and conqueror, and we shall see that Napoleon incurred bitter reproaches, at home and abroad, for some of his acts.’

Well, that is one reason that we read history – to understand the world and be able to take part in the conversation of mankind.  Geyl touches on the other reason – we read history for pleasure.

In two ways I have myself been constantly fascinated while I was engaged…First by the inexhaustible interest of the figure of Napoleon….And in the second place I have, I may almost say continuously, enjoyed the spectacle presented by French historiography.  What life and energy, what creative power, what ingenuity, imagination, and daring, what sharply contrasted minds and personalities!  And all the time the historical presentation turns out to be closely connected with French political and cultural life as a whole.

So what did the Dutch historian think of the Corsican adventurer?

He was a dictator who attempted to break with new legislation what resistance was left in the old society; who intensified his power in the State by means of centralised administration; who suppressed not only all organised influence or control and expression of opinion, but free thought itself; who hated the intellect, and who entered upon a struggle with the Church which he had first attempted to enslave; and who thought that with censorship, police and propaganda, he would be able to fashion the mind to his wish.  He was a conqueror with whom it was impossible to live; who could not help turning an ally into a vassal, or at least interpreting the relationship to his own exclusive advantage; who decorated his lust of conquest with the fine-sounding phrases of progress and civilisation; and who at last in the name of all Europe, which was to look to him for order and peace, presumed to brand England as the universal disturber and enemy.

More shortly:

What was Napoleon?  The destroyer, the despiser of men, the foreigner, the Corsican, especially scornful of Frenchmen, careless of French blood, devourer of generations of young men, suppressor of all free opinion, demanding of writers a toll of flattering unction as the price of permission to publish – in a word, the tyrant.

When we come to the question in the title of this book – what is truth? – it helps to distinguish that question from others.  Libel lawyers learn that the questions are easy – it is the answers that are hard.  What do the words complained of mean?  In that meaning would they make others think less of the person being talked about?  If so, in that meaning, are they true?

So, take a newspaper that says a politician who charges people a lot to dine with him is a politician for sale.  What does that mean?  Does it mean that he is on the take – that he takes bribes?  Or does it mean that he is just as greedy and venal as the rest?  (If you asked whether it meant that he was ‘corrupt’, would you advance the discussion one iota?)  Then the question is: would a publication with that meaning make others think less of the politician?  Plainly the answer is yes on the first, but the issue is doubtful on the second.  It then merges with the third question.  In that meaning, are the words true?  You can imagine the expensive games that lawyers play around that sort of question.

We might see a similar kind of division of questions when we look at either the evidence of history or its written statement.  What does an inscription or primary source mean?  What does the historian mean if they find an artful epigram in which to couch their views?  In that meaning, what consequences do the words carry?  And in that meaning, how might we seek to verify the proposition?  The analogy is very far from complete, but it may help us in looking at what we get and learn from our fourteen master historians.

People in physics say that they investigate events, not facts, but there is no point getting hung up on words.  One of Pirandello’s characters said that a fact is like a sack – it doesn’t stand up until you put something in it.  As one historian of the Middle Ages said: ‘The history we read, though based on facts, is strictly speaking not factual at all, but a series of accepted judgments.’  There is a lot to be said for that view.

But at least in the empirical tradition, people make history, not the reverse.  Karl Marx said: ‘History does nothing, it possesses no immense wealth, fights no battles.  It is rather man, real living man who does everything, who possesses and fights.’  That goes for all abstractions, and there was no such thing as the French Revolution.

The fourteen writers we have looked at still speak to us now.  That is why they have the standing that they have.  They have survived.  And they still give us pleasure.  They do so for people all around the world.   At least when they are in narrative mode, each of our historians is best taken read out loud – the way that some used to create their work.  This is important.  A lot of us read history to listen.

For the most part, it requires art to impart insight.  You need to be very careful when people like Ranke say that ‘We on our side have a different concept of history: naked truth, without embellishment, through an investigation of the individual fact, the rest left to God, but no poeticising, no fantasizing.’  We are getting this in translation (a process that is very tricky with Kant), but individual facts, naked and unlyrical, will soon put people to sleep, and convey no message at all.  And there is not much dispute left now about bare facts.  We should not think that Ranke was saying that there is no art in writing history, a proposition that he sought to contradict with nearly his whole life.  The truth, whatever that is, about bare facts is not likely to lead to insight or to promote understanding.  That is why some people read history for pleasure, and then read novels or go to the theatre to find out what is really going on in the world.

If, then, history involves art – even if it must be scientific as well – we may need to look at the tricky question of the role of meaning in art.

If you had asked El Greco what he meant by Christ Cleansing the Temple, or Michelangelo what he meant by the Pieta, or Beethoven what he meant by the Moonlight Sonata, your best response may have been one of hurt puzzlement.  Even if you had asked Milton what he meant by the phrase ‘darkness visible’, your best result may have been uncomprehending pity.  The premise of any response would have most likely been ‘If I could have expressed what I wanted to express in words, and dull prose at that, I may as well have done so, and not sweated over dredging up what I happen to see as a work of art.’

Why should a picture or a tune or a poem mean anything, much less have something to say?  Can you undo the Pieta, or, may God be unwilling, deconstruct it?  No, of course not.  We are talking about the workings of our imaginations, and the effect on our emotions.  Intellect, logic and meaning may have little to do with it.  If you treat art as using your imagination to give a lyrical reflection on our condition, then it may, like faith, hardly be susceptible to intellectual analysis.  (Some say the same about love.)  Even when it comes to thinking, Einstein said that he rarely thought in words – and if it was good enough for Einstein in physics, it was good enough for El Greco, Michelangelo, Beethoven and Milton in art.

But while we may argue about the meaning of a work of art, there may be little doubt about its effect.  When the Spanish made a film about El Greco, they naturally spent some time on his immortal portrait by that artist of the Grand Inquisitor.  It may just be the most intriguing portrait ever painted.  If you had to choose one epithet, it might be ‘shifty’.  In the movie, the subject says that he wants the artist to do it again.  The cardinal was very unamused.  We can certainly see why.  Whatever the painting may be said to mean, it was anything but flattering of its subject.  If you ever met that person, you be looking at your back for a long time afterwards.

Well, vast industries and empires right across the globe are built on the express repudiation of our premise.  They proceed on the footing that we can analyse art intellectually and make it the subject of meaningful discussion and assessment and judgment.

The best example is Shakespeare.  He wrote plays for a living.  He was a professional entertainer and playwright.  He wrote plays to entertain people and to get paid for it; or, as I heard an American student at Oxford say, he did it for the mortgage.  He was a high-end showman who developed a very profitable business from the shows he put on.  But it may safely be said that many more people now get paid to analyse and discuss his plays than to perform them, and for people many of whom hardly ever get to see him in production.

So, we may have to take with a grain of salt the suggestion that the intellectual analysis of art is moonshine.  But we should at least be wary of those who claim to have the answer on art.  They are likely to be as deluded as those who claim to have the answer on God, or sex.  If you hear someone claiming to be able to show that in some verifiable manner Anton Rubinstein playing the Moonlight Sonata is better than Elvis Presley singing Blue Suede Shoes, then you may be sure that you are getting moonshine.

You can, I think, see examples of darkness visible, the title of a book by William Golding, in some of the better known paintings by Turner at the National Gallery, but that is not the point.  We engage with Milton to listen to the music, and not to analyse verbal detail.  We do not assess the symmetry of the Pieta, or Tyger, tyger, burning bright, by the rules of double-entry accounting, just as we do not ask why Jussi Bjorling is singing None shall sleep (Nessun dorma) in Italian in the court of a murderously deranged Asian princess.  You might fairly be asked to leave the room if you engaged in either such process.  After all, some of us might be interested if not charmed by a paradox.

So, art and meaning are uncomfortable terms in bed together.  But if in your conversation, you contented yourself with the truth and nothing more, you would not be the best companion for a long haul flight.  It would be like reading a telephone book.  (In a queue in the West End, I once heard a lady say that she could listen to Maggie Smith read a phone book, but I think that we can regard that inclination as exceptional.)

This is a little like the quandary of philosophy.  If you want to be safe and sound, you stay with the a priori ( with maths or straight deductions from given premises); but if you want to say something new, and try to add to the knowledge of the world, then the best you can hope for is probability – and you might be proved to be dead wrong.

The narrator of the novels of Victor Hugo appears to confuse himself with God, someone said.  (A lot of women may have said the same about the author.)  In Les Misérables, the author allowed himself this reflection: ‘The clash of passions and of ignorances is different from the shock of progress.  Rise, if you will, but to grow.  Show me to which side you are going.  There is no insurrection but forward.  Every other rising is evil; every violent step backwards is an emeute [riot]; to retreat is an act of violence against the human race.  Insurrection is the Truth’s access of fury; the paving stones which insurrection tears up, throw off the spark of right.  These stones leave to the emeute only their mud.  Danton against Louis XVI is insurrection, Hébert against Danton is emeute.’

Well, Tolstoy’s War and Peace shows us that good story-tellers make lousy political thinkers – in which of his categories would Hugo have put the execution of Danton by Robespierre?

But Hugo has a point of substance.  Presumably this great writer was saying something that he thought would convey sense – and good sense – to his readers.  If so, his readers may not think in the same way that Anglo-Saxons tend to think.  Somerset Maugham said that the style of Gustave Flaubert was rhetorical.  He also said: ‘The French language tends to rhetoric, as the English to imagery – thereby marking a profound difference between the two peoples…’  In all the histories we have been looking at, there is no shortage of rhetoric – but the point is that the rhetoric that had a different meaning for those involved.

Victor Hugo then spoke of ‘truth’.  Tolstoy said that his hero was truth.  What is truth?  We go to great writers – and each of Hugo and Tolstoy was a great writer – for insight, understanding, or enlightenment.  If we want mere facts, we can go to the registry of births, deaths, and marriages, the colonial version of Somerset House.  For present purposes, I regard each of the fourteen historians we have looked at as a great writer.

In 1949 an English Shakespeare scholar, John Danby, published a remarkable book, Shakespeare’s Doctrine of Nature, A Study of King Lear. Its first sentence reads: ‘We go to great writers for the truth.’  Well, we may be a bit more comfortable with ‘insight’ or ‘understanding’ than the nervous-making ‘truth’, but the author later says:

‘It is only dramatically that the manner of living thought can be adequately expressed.  A discursive philosopher is tied to the script of his single part.’

This is an invaluable insight.  On one view it could obliterate the whole of literary criticism in one hit.  Later, Mr. Danby referred to the well-known aphorism of Thomas Hobbes that the life of man is ‘solitary, poor, nasty, brutish and short’.  That is not so much an ineluctable proposition of philosophy as a working hypothesis toward a philosophy of life, but where do you think you might better seek enlightenment on the nature of life – The Leviathan by Hobbes or King Lear by Shakespeare?

Later still in his book, but before Hannah Arendt had described Eichmann as ‘terribly and terrifyingly normal’, Mr. Danby described the evil daughters in King Lear as ‘eminently normal’ and ‘eminently respectable’.  The point is that there is something of Regan and Eichmann in us all, and people who cannot bring themselves to accept that simple truth are frequently the cause of the whole bloody problem.

Those who are squeamish about facing up to evil in the world could do worse than to start by confronting it in King Lear.  Au fond, it is useless to ask what this play means. It makes as much sense as asking what is the meaning of the works of art referred to above or to inquire after the meaning of God.  It is as useless to ask what Shakespeare intended when he wrote this play as it is to ask what a parliament intended when it passed a statute.

We are left with the ‘thing itself’; the rest is moonshine.  If Shakespeare had tried to convey his meaning prosaically, he would most certainly have failed, and he would not have left us with the drama that may fairly claim to be our Everest.  This play on its own could have been the warrant for that wonderful remark of Emerson: ‘When I read Shakespeare, I actually shade my eyes.’

So, if we want to understand, if we want insight into what we are, we turn to the dramatists, like Aeschylus, Shakespeare, Racine or Ibsen.  There is something to be said for a kind of poetic or imaginative truth, the sense of insight that we get from high art, the insight that cannot be expressed in mere words, the emotional click and then affirmation that we get on looking at the Goya painting of a military execution (The Third of May, 1808).  This was the painting that Sir Lewis Namier referred to when he was speaking of the juggernauts of history,revolting to human feelings in their blindness, supremely humorous in their stupidity’.  The great historian looks to have been uncomfortable there in trying to spell out his vision – there is nothing humorous about war crimes.  But at a time when religion is dying, we might look more to our writers to be our seers and prophets than to our priests and rabbis..

George Orwell admired D H Lawrence for ‘the extraordinary power of knowing imaginatively something that he could not have known by imagination.’  This is itself a large insight, and not just for history as art.  A big job for those who tell our story is to show what happens when the slight veneer of civilisation is ripped off us.  Many fail to see the horror not because they are blind, but because they do not have the insight or imagination or the nerve to see it for what it is.

Speaking of the night we know as Crystal Night, Ian Kershaw, the biographer of Hitler, said: ‘This night of horror, a retreat in a modern state to the savagery associated with bygone ages, laid bare to the world the barbarism of the Nazi regime.’  Shortly afterwards, Hitler gave a solemn prophesy of ‘the annihilation (Vernichtung) of the Jewish race in Europe.’  But the savagery of neither the pogrom nor the prophecy of the Fuhrer was enough to generate insight into the horror of the barbarism to come.  We – the Germans – did not have the imagination or nerve to see it (even if Keynes had foreseen it all at Versailles).  Mussolini was a Cesar de carnaval, a braggart and an actor, a dangerous ‘rascal’ and possibly ‘slightly off his head’, but the insight of the Italian people into this grotesque buffoon did not extend to seeing him hanged upside down beside his lifeless mistress – until that is how they wanted to see him.

Very rarely, we get artists who give us a history that is more like an epic poem than a mere record of fact.  In this book, we have been looking at great historians who all wrote with imagination – even if they would have been coy or indignant at the suggestion.  They wrote so that we could listen to them.  They wrote with a sense of theatre.  In the trenchant words of Mr Danby, great historians give dramatic expression to living thought.

Carlyle, for example, wanted to breathe life into the past – he wanted to ‘blow his living breath between dead lips’.  This ‘Rembrandt of letters’, with his Ezekiel Vision, a man that belonged ‘to the company of escaped Puritans,’ understood profoundly that our little life is rounded with a sleep – like that other great Romantic, General George Patton, he thought that once we dispensed with time, the dead were with us.  Carlyle was then able to indulge what Chesterton finely called ‘his sense of the sarcasm of eternity.’  Like Dickens, he was intent on articulating a sense of the grotesque.  At times the work of Carlyle, the misplaced Hebrew prophet, looks like a dream or hallucination.  Perhaps he may come back into vogue as a kind of secular seer now that God is on the outer.

An Israeli scholar wrote a book called English Historians on the French Revolution.  It is heavy going, but you come up with insights.  The words ‘darkness’ and ‘chaos’ pervade the account of Carlyle, and the more he thought that he did not understand, the hungrier he got for ‘truth and fact.’  ‘Facts, facts, not theory’, ‘facts more and more, theory less and less.’  The author makes a most illuminating remark about readers of Carlyle’s book.  ‘Tired of being told what to think about the Revolution, people were glad to glimpse a painting of it.’  He quotes John Stuart Mill: ‘This is not so much a history as an epic poem; and notwithstanding this, or even in consequence of this, the truest of histories.’  All these labels have their uses and abuses.  Perhaps one problem with a lot of history is that it has an inarticulate premise: ‘Your silly author thinks that he understands all this.’

A sense of darkness and chaos, and a sense of the grotesque, and a power of imagination, are essential in trying to follow events in France after 1789 or in Germany after 1933.  It is a power that was most fully realised in King Lear, which is a study of the grotesque.

KENT: Is this the promised end?

EDGAR: Or image of that horror?

The French author Guy de Maupassant said this: ‘I have seen war.  I have seen men revert to brutes, maddened and killing for pleasure, or through terror, bravado, and ostentation.  At a time when right existed no longer, when the law was a dead letter, when all notion of fair play had disappeared, I saw innocent people encountered along the road shot because their fear made them suspects.  I saw dogs chained at their master’s door killed by men trying out new revolvers, and cows lying in fields riddled with bullets for no reason – for the sake of shooting, for a laugh.’

The only thing standing between us and the apes may be cutlery – or this level of art – or perhaps the Coen brothers.  Dickens dedicated Tale of Two Cities to Carlyle.  You can see the connection throughout the whole book.  This is how Dickens prefigures the outpouring of the mob of Saint-Antoine during the satanic period known as the Terror.  A wine cask has spilled on to the street.  ‘The wine was red wine and had stained the ground of the narrow street….It had stained many hands, too, and the forehead of the woman who nursed her baby, was stained with the stain of the old rag she wound about her head again.  Those who had been greedy with the staves of the cask, had acquired a tigerish smear about the mouth; and one tall joker…scrawled upon a wall with his finger dipped in muddy wine-lees – BLOOD.’  It may remind you of the hellish September Massacres in Paris, when Carlyle said that the berserk killers took refreshment from wine from to time to time before laying into the next batch of screaming victims with their bloodied sabres.

At times, the painting or war by Tolstoy in War and Peace has an El Greco lightning-strike scale of illumination.  While Moscow was waiting for the French, the population descended to animal lawlessness with scenes like those in Paris at the height of the Terror.  In one of them, Tolstoy reflects unmistakably on the Passion.  The Governor of Moscow, Count Rastoptchin, hands one suspected traitor over the mob.  ‘You shall deal with him as you think fit!  I hand him over to you!’  The resulting massacre is bestial, and resembles in part the September Massacres in Paris twenty or so years before.  As the Governor goes home in his carriage, an asylum spills out its lunatics:

Tottering on his long, thin legs, in his fluttering dressing-gown, this madman ran at headlong speed, with his eyes fixed on Rastoptchin, shouting something to him in a husky voice, and making signs to him to stop.  The gloomy and triumphant face of the madman was thin and yellow, with irregular clumps of beard growing on it.  The black agate-like pupils of his eyes moved restlessly, showing the saffron-yellow whites above.  ‘Stay!  Stop, I tell you!’ he shouted shrilly, and again breathlessly fell to shouting something with emphatic gestures and intonations. 

He reached the carriage and ran alongside it.

‘Three times they slew me; three times I rose again from the dead.  They stoned me, they crucified me  …  I shall rise again  …  I shall rise again  … I shall rise again.  My body they tore to pieces.  The Kingdom of Heaven will be overthrown  …  Three times I will overthrow it, and three times I will set it up again’, he screamed, his voice growing shriller and shriller.  Count Rastoptchin suddenly turned white, as he had turned white when the crowd fell upon [the victim of the mob].  He turned away.  ‘Go, go on, faster!’ he cried in a trembling voice to his coachman.

The beginning of that picture is pure El Greco; the whole is unmistakably Russian and equally unmistakably universal.  It might test your faith to have to believe that it was all composed by a man born of woman.  What does mere history have to offer against art like that?

There, as it seems to me, is where you get truth brought to you by imagination.  France and Moscow after it had become a wilderness of tigers, like the whirlpool of evil and pain and death painted in Titus Andronicus, but Dickens clearly shared the view of Carlyle that there was more to it in France ‘than cheap bread and a Habeas-corpus act.  Here too was an Idea….It was a struggle, though a blind and at last an insane one, for the infinite, divine nature of Right, of Freedom, Country.’

In The Heart of Darkness by Joseph Conrad, Kurtz confronts his own hell ‘with that wide and immense stare embracing, condemning, and loathing all the universe.’  All that he can offer is ‘the whispered cry, The horror!  The horror!’  Here, as it seems to me, is where a great story-teller decently accepts the limits of language, and the story is no less effective because of that acknowledgement; rather, it is better for accepting that mystery is the other face of magic, and that mere words may be little more than mere signposts.

In truth, France went back to the Dark Ages from time to time for decades after 1789 – as Germany would do after 1933.  What did this mean, the Dark Ages?  This period of darkness over the earth was described in the great epic poem, Beowulf, written in about the seventh century.

All were endangered; young and old

Were hunted down by that dark death shadow

Who lurked and swooped in the long nights

On the misty moors; nobody knows

Where these reevers from hell roam on their errands.


Sometimes at pagan shrines they vowed

Offering to idols, swore oaths

That the killer of souls might come to their aid

And save the people.  That was their way

Their heathenish hope; deep in their hearts,

They remembered hell…….

…………Cursed is he

Who in time of trouble has to thrust his soul

In the fire’s embrace, forfeiting help;

He has nowhere to turn…….

So that troubled time continued, woe

That never stopped, steady affliction……

There was panic after dark, people endured

Raids in the night, riven by the terror.

That is almost a photographic picture of Dresden under the Gestapo or under the RAF.  Here is a picture of Spain under Napoleon as seen by Goya.  (Geats were a Nordic tribe in this epic.):

A Geat woman sang out in grief;

With hair bound up, she unburdened herself

Of her worst fears, a wild litany

Of nightmare and lament: her nation invaded,

Enemies on the rampage, bodies in piles,

Slavery and abasement.  Heaven swallowed the smoke.

What was it in their or our psyche that prompted one writer to see the hair of a woman ‘wound’ and the other writer to see the hair of his woman ‘bound’?  Can the prosaic record of history ever stand up against the image of a worldwhere these reevers from hell roam on their errands’ or where a womanunburdened herself of her worst fears, a wild litany of nightmare and lament’?

Or is it only in very big Russian novels that the hero says: ‘I want to be there when everyone suddenly finds out what it was all for?’  Or do we just accept that we are mortal and on notice?

The oldest hath borne most: we that are young

Shall never see so much, nor live so long.

That brings us back to where we started in the Prologue.  ‘Historians are fond of talking about what history is.  They might better ask why people read it.  Do people read history so that they might know more or be better informed about the past?  Do they read it to gain insight into and some connexion with other people?  Or do they read it just for pleasure?  Do they read to listen?’