Month: February 2018

TERROR AND THE POLICE STATE: CHAPTER 17

/ Geoffrey Gibson / Leave a comment

 

 

[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]

17

Banality and the surreal

Kings do not have surnames – they do not need them.  This historical fact did not suit the new regime in France.  It had a fine taste for bureaucratic order and protocol.  When the Convention arraigned the former King Louis XVI, he had to be given a name.  They found reason in the history of the Capetian line to call him Louis Capet.  (Cromwell and his men had done much the same for ‘Charles Stuart’ one and a half centuries beforehand.)  Louis said ‘I am not called Capet, and the name has never been more than a sobriquet’, but the trial went ahead against him under that name.

When the Duke of Orleans presented at the relevant office to enrol to vote, he said that his name was Louis-Philippe-Joseph d’Orléans.  ‘That cannot be.  It is a feudal name forbidden by law.’   So, he became Philippe Égalité, but acceptance into the fold did not bring immunity.  When the wheel turned, as wheels do, the çi-devant duc was guillotined under his revolutionary name, and not the ‘feudal’ title.

The English Marxist historian Doctor Christopher Hill wrote a book called The World Turned Upside Down about radical ideas coming out of the revolution in the mid-seventeenth century that ushered in the protestant ethic.  The French Revolution had its full quota, and their manifestation could be bizarre.  The alternation between the banal and the surreal gave some a sense of release, and just added to the uncertainty and insecurity of the rest of the world turned upside down world.

About ten years later the wheel turned again.  It turned on those who had unleashed the guillotine on monarchs and nobles.  A Corsican soldier of the shabbiest gentility came to be crowned emperor – in fact he would crown himself in the presence of the pope.  It was a riot of pomposity, because Napoleon believed that it is by such baubles that men are ruled, what François Furet described as ‘Carolingian kitsch’.  The pope was little more than a witness, and the new emperor did not believe one word of it.

The word ‘banal’ comes from France – curiously, a banalité was one of those feudal obligations that led the peasants to burn down chateaux.  The dictionary says that ‘banal’ means trite, trivial, or commonplace, but there is often a suggestion of emptiness or hollowness behind feigned or usurped importance that is pejorative.

Hannah Arendt wrote a book called Eichmann in Jerusalem, A Report on the Banality of Evil.  She explained the sub-title as follows: ‘When I speak of the banality of evil, I do so only on the strictly factual level, pointing to the phenomenon which stared one in the face at the trial.  Eichmann was not Iago and not Macbeth, and nothing could have been further from his mind than to determine with Richard III ‘to prove a villain’.  Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all.  And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post.  He merely, to put the matter colloquially, never realised what he was doing……He was not stupid.  It was sheer thoughtlessness – something by no means identical with stupidity – that predisposed him to become one of the greatest criminals of that period.’

Arendt had previously said to the same effect: ‘The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were and still are terribly and terrifyingly normal.’  Eichmann was no devil or demon; he was just human, and the trouble for us is that he was ‘terribly and terrifyingly normal’.  Those who do not accept that Eichmann was just human, and that there is a little of Eichmann in all of us, are seeking to impose some kind of grid or cattle pen over humanity and are at risk of falling into the error that fed the derangement of people like Stalin and Hitler.

An American historian said of one brutal terrorist: ‘Carrier, it may safely be said, was a normal man with average sensibilities, with no unusual intelligence or strength of character, driven wild by opposition, turning ruthless because ruthlessness seemed to be the easiest way of solving a difficult problem’

The banality could be childlike in the most revolting instances.  A Commission of twenty was set up to execute the orders to punish Lyon.  This brutal task would in truth involve mass murder and what we call crimes against humanity.  As Professor Palmer drily observed, ‘The obscure persons thus raised to power were not above a common frailty – they wished to be recognized.’  They needed a uniform.  They were not modest, and they forbade anyone else from wearing their chosen colour, bleu.  The French rugby team is called Les Bleus.

The other two regimes were full of banality, the one deriving from a theory that would inevitably fail, although the theorists might have objected that the theory was never given a chance, and the other deriving from a moral and intellectual void and a deranged racism driven by thugs.  Their perverted world views and incessant propaganda made their whole world surreal.

The moonshine over the funeral of Marat would come within most people’s understanding of the word ‘banal’ if not surreal, but it might all pale beside the torch-lit Wagnerian rites for the assassinated Reinhard Heydrich, the former head of the Gestapo, and a vicious man of incomparable evil.  There was one funeral in Prague and another in the Reich Chancellery.  Himmler gave the eulogy.  Hitler attended and comforted the children of the martyr and placed his decorations on his funeral pillow – the highest grade of the German Order, the Blood Order Medal, the Wound Badge in Gold, and the War Merit Cross First Class with Swords.  Privately, Hitler said that Heydrich had been an idiot to expose his person, but he then set about the reprisals.  A Czech town called Lidice was chosen at random and destroyed.  Adult males were shot.  Females were sent to camps and the correct looking children were sent for Aryan adoption to bolster the race.  The deceased would have been greatly moved.  Siegfried’s funeral march was just right.  The Nazis could rely on Wagner.

Shostakovich could remember applause at party conferences for the Leader going on and on and on for about thirty minutes because no one was prepared to risk being seen to be one of those who stopped the ovation.  Shostakovich knew he was in deep trouble when his work was criticised in Pravda.  Some thought that the piece may have been written ‘by that well-known bastard Zaslavsky’, but the composer saw that the article ‘has too much of Stalin in it’.  There was one lethal phrase ‘this could end very badly’.  ‘Two editorial attacks in Pravda in ten days – that was too much for one man.  Now everyone knew for sure that I would be destroyed.  And the anticipation of that noteworthy event – for me at least – has never left me.  From that moment I was struck with the label ‘enemy of the people’, and I still don’t need to explain what the label meant in those days.  Everyone still remembers that.’

Stalin once sent a note to the head of the Cheka asking how many political prisoners there were in the prison.  The head scribbled 1500.  Lenin put a cross beside the figure and gave it back to the Cheka boss.  That meant he had read it.  The boss thought that he had ordered  their execution.  They were all shot that night – by mistake.  This kind of mistake could have been common.  The Communists, like the Nazis, were obsessive about paperwork, but could anyone really tell the difference between an accidental murder and the rest?

Here and there – a philosopher on Shakespeare

/ Geoffrey Gibson / 2 Comments

 

Ludwig Wittgenstein was a German scientist and architect who became an English philosopher.  He was a client, in the Latin sense of that term, of Bertrand Russell.  When Wittgenstein wrote his Tractatus Logico-Philosophicus, he thought he had solved the problems of philosophy.  Russell was far from convinced and wrote a cautious forward.  Wittgenstein later recanted, as age and experience begat modesty.  His published output was later fragmentary.

One such work is Culture and Value.  It is a collection of aphorisms jotted down over many years about logic, life, religion, music, and literature.  If Russell had trouble following Wittgenstein when he was writing for the learned, we may have trouble when Wittgenstein is thinking aloud about the world at large.

Some of the aphorisms relate to Shakespeare.  What might they say about the playwright or the philosopher?

Shakespeare displays the dance of human passions, one might say.  Hence he has to be objective; otherwise he would not so much display the dance of human passions – as talk about it.  But he displays it to us in dance, not naturalistically.  (I got this idea from Paul Engelman.)

I’m pretty sure that I follow that.  The first proposition contains a metaphor that I find enlightening.  The suggested requirement of ‘objectivity’ is thought provoking, even if I’m not sure that the point is carried.  But he returns to the idea of a dance.  If he had referred to a ‘symphony’ or ‘fugue’ or ‘canvas’ of human passions, would there have been any different meaning?

It is remarkable how hard we find it to believe something that we do not see the truth of for ourselves.  When, for instance, I hear the expression of admiration for Shakespeare in the course of several centuries, I can never rid myself of the suspicion that praising him has been the conventional thing to do; though I have to tell myself that this is how it is.  It takes the authority of a Milton really to convince me.  I take it for granted that he was incorruptible. – But I don’t of course mean that I don’t believe an enormous amount of praise to have been, and still to be, lavished on Shakespeare without understanding and for the wrong reasons by a thousand professors of literature.

I don’t follow that at all.  The first sentence looks silly.  If we do not see the truth of a statement for ourselves, of course we tend not to believe it.  There is nothing remarkable there.  If the author is saying that a lot people just toe the line on this part of high art, we could well agree.  But does the fact that there is bullshit elsewhere disqualify our opinions, or, perhaps I should say, reactions?  The reference to Milton appears to me to be at best adolescent, and at worst plainly rude.  We can return later to the issue of ‘understanding’ Shakespeare.

It may be that the essential thing with Shakespeare is his ease and authority, and that you just have to accept him as he is if you are going to be able to admire him properly, in the same way you accept nature, a piece of scenery for example, just as it is.

If I am right about this, that would mean that the style of his whole work, I mean of all his works taken together, is the essential thing and what provides his justification.

My failure to understand him could then be explained by my inability to read him easily.  That is, as one views a splendid piece of scenery.

These comments make you wonder how often the philosopher had seen plays by this playwright on the stage – or if he had ever gone to the theatre at all.  The author wrote the plays for profit – obtained by people willing to be entertained by seeing these plays performed on the stage.  The repeated references to Shakespeare, and the reference to ‘the style of his whole work’ and ‘all his works taken together,’ suggest, to my mind, that the philosopher is proceeding at a level of abstraction that is almost metaphysical – and for him, that is anathema.

But if the first proposition entails that we should be careful in trying to analyse any part of this artist’s work, I agree with it.

But what does it mean to say that the style of the work provides its justification?  Why did Shakespeare have to justify King Lear – or any other part or the whole of his output?

And what does he mean by understanding Shakespeare?  When we talk of understanding something, we talk of getting its meaning or significance.  If I go to St Peter’s and see the Pieta of Michelangelo, or if I had gone to hear Miles Davis in the Vanguard in the 1950’s, or if I had gone to see Blue Poles chez nous, and someone had asked me if I had understood what I had seen or heard, I would have been at best confused.  ‘Listen, Mate, I have come all this way, and at real expense, to experience a work of art, one of the title deeds of Western civilisation.  Don’t ask me to relegate these masterpieces to the dustbin of the prosaic by trying to give what I think may the meaning of that art.’  To what extent is, say, Hamlet different to other works of art when it comes to understanding art?

There is, I think, a real problem here.  I have hugely enjoyed reading commentaries on Shakespeare by people like A C Bradley and Tony Tanner, and they have greatly added to my enjoyment of experiencing the plays.  (I have also come across truckloads of tripe.)  In some loose sense those authors may have added to my understanding of the plays, but I very much fear that that sense is far too loose for a philosophical inquiry.

If you think that sounds woolly, I would plead guilty – but that is what I feel driven to.  I would refer back to what I said about the need for care in trying to analyse any part of the work of this artist, or any other artist.  Indeed, any one of us might be accused of tiptoeing around the volcano if hubris if we claimed to have found the ‘meaning’ of any play or poem of this playwright and poet.

Shakespeare and dreams.  A dream is all wrong, absurd, composite, and yet at the same time, it is completely right: put together in this strange way, it makes an impression.  Why? I don’t know.  And if Shakespeare is great, as he is said to be, then it must be possible to say of him: it’s all wrong, things aren’t like that – and yet it’s quite right according to a law of its own.

It could be put like this too: if Shakespeare is great, his greatness is displayed only in the whole corpus of his plays, which create their own language and world.  In other words he is completely unrealistic.  (Like a dream.)

All of that goes clean over my head.  Even Freud may have had trouble with it.  It is worryingly symptomatic of a tortured ambivalence about Shakespeare.  It calls to mind a summer school at Oxford about Wittgenstein.  A very charming Indian lady was evidently finding it hard to come to grips with the subject.  She was not alone.  At the end she had a question for the tutor.  ‘You have told us that Wittgenstein set out to cure our language of illness – could you be so good as to give us an instance where the cure worked?’  She also told the class that ‘in India, we don’t even have a word for God.’  I took her to be saying that for her, some things – like God – were out of reach of words.  At least at one point, Wittgenstein would have agreed with her.

I do not believe Shakespeare can be set alongside any other poet.  Was he perhaps a creator of language rather than a poet?

The short answer is that he was both.  The long answer is that labels are at best dangerous and at worst presumptuous.

I could only stare in wonder at Shakespeare; never do anything with him.

There is a whole lot in the works of Goethe that I don’t ‘get’ (in part, because I am not receiving it as it was written – in German); it seems clear that Wittgenstein had the same problems with Shakespeare.  We are nowhere near analysis or criticism.  (When I use the term ‘get’ here, I am I think invoking a loose form of ‘understanding’ of the order I referred to earlier.)

It is not as though Shakespeare portrayed human types well and were in that respect true to life.  He is not true to life.  But he has such a supple hand and his brush strokes are so individual, that each one of his characters looks significant, is worth looking at.

Art is a lyrical reflection on the human condition.  We know art is good if people keep wanting more of it.  It is hard to think of an artist who has done this anywhere near as well as Shakespeare.  He shows us as we are.  To the extent that you can give meaning to the phrase ‘true to life’ in this context, it is dead wrong.

‘Beethoven’s great heart’ – nobody could speak of ‘Shakespeare’s great heart.’  ‘The supple hand that created new linguistic forms’ would seem to be nearer the mark.

A poet cannot really say of himself ‘I sing as the birds sing’ – but perhaps Shakespeare could have said this of himself.

The last proposition means nothing to me.  The first is of the same intellectual calibre – zero – as a public bar discussion of whether Bradman was better than Trumper or Ronaldo is better than Messi.

May I go back to what I said about the need for care in claiming to analyse art and the danger of hubris?  I’m afraid that the philosopher may be guilty on both counts.  And the statement that ‘nobody could speak of ‘Shakespeare’s great heart’ looks suspiciously like a statement of fact.  Richard Burton knew a good deal more about Shakespeare than Wittgenstein.  Burton saw ‘staggering compassion’.  The context is:

What chance combination of genes went to the making of that towering imagination, that brilliant gift of words, that staggering compassion, that understanding of all human frailty, that total absence of pomposity, that wit, that pun, that joy in words and the later agony.  It seems that he wrote everything worth writing and the rest of his fraternity have merely fugued on his million themes…..

Well, if a man as bright as Wittgenstein sees fit to go into print on an issue that gives him such trouble, you may wonder what modern philosophy has done for us.  Nor will you be alone there.  At a later tutorial at the summer school I mentioned, the Indian lady – to whom I had taken quite a shine – said to the tutor, in the course of the class: ‘Thank you for being so kind as not to notice that I was falling asleep.’

But we should end on a softer, kinder note.  I wrote elsewhere –

After a short visit to the United States in 1949, he [Wittgenstein] learned that he had cancer.  He lived with various friends in Oxford or Cambridge until he died in 1951.  He was, in common with our other heroes, at peace with himself when he left us.  It says a lot for his character that the lodging in which he stayed at the time that he died was looked after by a landlady.  Wittgenstein was in the habit of walking to the pub with her each night.  Wittgenstein would be about the most un-pub sort of person that God ever put on this earth, but he went out with his landlady for the walk and, moreover, he would order two sherries.  He would give one to her and, since he did not drink, he would pour his over the flowers.  That is not the conduct of a man bereft of humanity.  He had a most extraordinary intellect in a constricted character that made it nearly impossible to pass on to us the benefits of that intellect.  His success in doing so is due to his extraordinary moral courage.  Intellect alone is never enough.

Passing bull 138 – Family values

/ Geoffrey Gibson / Leave a comment

 

What on earth are they?  One test of the worth of a proposition is whether anyone could be bothered to assert the contrary.  If I said ‘I believe in family values’, you might respond by asking the question I began with.  Or you might say ‘Who bloody well wouldn’t?’  Either way, the conversation is hardly illuminating.  In ordinary parlance, we are dealing in motherhood statements.

Yet, in the controversy about Barnaby Joyce, the former Deputy Prime Minister, many in the press said that part of his problem in answering allegations of hypocrisy was that the man with a wife and four children was having an affair with a woman while at the same time leading a party that subscribes to ‘family values’. 

Don’t the Liberal, Labor, and Greens parties have the same values?  Of course they do, and it is idle to suggest that you might find a difference in their platforms founded on a difference in their attitude to the family.  Insofar as anyone suggested that marriage equality might be a threat to ‘family values’, they would be begging a booklist of tendentious questions.

You might be reminded of that other shocker, ‘Australian values.’  Every time I hear that term, I immediately think of Senator McCarthy and the House of Un-American Affairs Committee – and we don’t want to go down there. 

The term certainly invites twisted history.  It’s downright sad to see Australians trying to find ‘mateship’ in the wasted slaughterhouse called Gallipoli.  The Turks, English and French all lost more men at Gallipoli than Australia did.  Didn’t they have mates?  The whole notion is at once precious and insulting. 

If I were asked to take a stab at an ‘Australian value’, I might suggest that we might be less class conscious than say the English, Americans, or French.  But I couldn’t verify that suggestion, and our claim to be egalitarian has taken a hit over the last generation, with bank managers taking home 100 times the money they pay their tellers.  And people like Henry Lawson and Paul Keating see too many people around here who are keen to tug the forelock, and who don’t think that we can be trusted to appoint our own head of state.

So, Australian values are as much use – in language – as family values.

And while we speak of the National Party, let’s reflect on another vapid buzz phrase – ‘identity politics.’  According to Wikipedia:

Identity politics, also called identitarian politics, refers to political positions based on the interests and perspectives of social groups with which people identify. Identity politics includes the ways in which people’s politics are shaped by aspects of their identity through loosely correlated social organizations.

Can you imagine a more dedicated set of exponents of identity politics than the National Party?  The teams at the Murdoch Press and the IPA may be faced with what they like to call an existential crisis when they reflect that all Coalition governments – and they can support no other – are premised on identity politics.  Dear, dear, dear, dear.

And while on buzz words, watch ‘virtue signalling’ take off.  The usual suspects go after labels with the same glee that little boys go after marbles or yo-yos.

TERROR AND THE POLICE STATE: CHAPTER 16

/ Geoffrey Gibson / Leave a comment

 

 

[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]

16

Propaganda, religion, and cults

These regimes are so full of themselves that there is no room for God.  They eject Him.  That is understandable, but then they try to put something in His place, which is not so understandable – especially when they offer up one of their own for Him, which is at best ridiculous and at worst revolting.  We are used to looking at the worst of these excesses with Stalin and Hitler, but unfortunately for him and his reputation, Robespierre came very close to pioneering their path to becoming the object of a cult.

The French tended to look to Rousseau, the Calvinist from Geneva.  The Russians looked to Marx, the German Jew living in exile in England.  Since Hitler made no intellectual or philosophical claims, he did not look to anyone; Mein Kampf is scarcely literate and barely readable claptrap fuelled by hate.

The Church in France was part of the old regime that would come under attack and fall.  The Church had acted as an arm of government, and bishops, and in many areas priests were viewed with the same hatred as the aristocrats.  This was far more marked in France than in England.  This question was put, and with predictably fearful consequences that continue to this day to resonate within France on the felt need to keep Church and State utterly separate.

On 12 July 1790, two days short of an anniversary, the Assembly decreed the Civil Constitution of the Clergy.  They were attempting to make Catholic worship part of the general structure of public life.  The number of dioceses was reduced to the number of departments.  Parish priests and bishops were to be elected by ‘active’ citizens.  The clergy were to be paid by the State.  They also had to take the oath to the constitution.  Spiritual investiture no longer depended on the Pope.  Louis agreed but the pope did not.  Pope Pius VI was an aristocrat who was advised by a French cardinal who was also opposed to the revolution.  The pope had in secret condemned the principles of the Declaration of Rights.  He then denounced the reorganisation of the clergy.  The Assembly insisted on the oath, and there was a frightful split that led to a cleavage at large in the allegiances of people.  Rebellious priests were suspected of being against the Revolution, and they suffered as much as if not more than the aristocrats.

Fouché launched what would be called de-Christianisation in the Church of Saint-Cyr at Nevers.  He preached a ‘sermon’ attacking ‘religious sophistry’ and unveiled a bust of Brutus.  The republicans were immoderately fond of their Roman predecessors, but did he know how great an insult this was?  Dante put Brutus in the lowest ring of Hell with Judas for the murder of Julius Caesar.  Church vestments were burned, crucifixes and crosses destroyed, and property confiscated for the nation or the war effort.  Fouché even put signs outside cemeteries saying ‘Death is an eternal sleep.’

The absurd cult of the Supreme Being in France in 1794 shows the limitation on the extent of what we call philosophy.  Robespierre and Saint-Just may have read philosophy and sought to state their political position in philosophical terms, but this was worlds away from the blue collar boys, the sans-culottes, and for that matter almost everybody else in the rest of France.  Once again the Government had lost contact with the ordinary people whom it idealized but never understood.  The comparison with Lenin is instructive.  He never understood ordinary people – but he was not disposed to idealize them either.  He, too, was on the way to becoming a cult figure before he became ill.  The Supreme Being died with Robespierre and has not been missed.

The revolutionary government did however take steps toward propaganda of a more lasting kind.  There was a body called, appropriately, the Committee of Public Instruction.  It, obviously, was in charge of education.  It aimed at universal literacy, since knowledge of the truth cured all ills, and by this means to cure the nation of prejudices (other than their own) and wean them off relics of darkness like the monarchy or the church.  The American Revolution was a fit subject, ‘the first philosophical revolution.’  By studying the heroes and constitutional liberties that the Revolution had produced, children at school would become steeped in ‘that national pride which is the distinctive character of free peoples.’

The Soviet Government confiscated all church property without compensation and took away the legal standing of the Church – it was annihilated juristically.  Groups could hire buildings for worship if they hired a ‘servant of the cult’ to perform services.  No other activity was allowed.  Education was of course forbidden to the Church.  The priest was just an employee, a hired hand, and charitable work, social meetings, and even bell ringing were all outlawed.  There was hardly anything left outside the weekly service.

The cult of Stalin was the Russian version of the myth of Hitler.  Every office school factory and farm was presided over by ‘Our Beloved Leader’ – who just happened to be the greatest mass murderer that the world had seen.  Stalin was a successor to Peter the Great and Ivan the Terrible.  And, as with Hitler, this deification or mythologizing enabled the myth to develop that anything bad was the work of the minions.  The Russians were often content to say ‘If only the Little Father knew…..’

Hitler admired the Church of Rome, and he also feared it.  He, like Napoleon, struck a deal with the Vatican, a kind of mutual hands off arrangement.  The SS said ‘we live in the age of the final confrontation with Christianity.’  The SS developed its own marriage service with runes, fire, and Wagner.  Himmler said true morals came with denying the individual in the service of the race.  The torch parades, banners, and Wagner offered at least an alternative ritual.  Stalin relished being the object of a cult.  Hitler forbade it.  ‘National Socialism is a cool, reality-based doctrine, based upon the sharpest scientific knowledge and its mental expression’.

We need not pause to look at propaganda under Stalin or Hitler.  Each strived to use all means of communication and repression to control the way their people thought to an extent that would amaze Google and Facebook now.  Truth simply did not matter.

So, each of these three regimes sought to wipe out religion.  Their motives were different, but most governments, especially the very repressive sort, prefer to live with religion and its representatives, on the principle that religion can offer comfort or sedation to the oppressed, or join in helping to keep them that way. Robespierre wanted to set up a whole new religion.  The idea seems so weird to us, but it does suggest a naivety deriving from political immaturity.  Stalin relished being the subject of a cult, but it had nothing to do with religion.  Hitler rejected a cult and settled for a myth generated by the same means; his was the cult of death, and perpetual struggle.  Robespierre rejected atheism for the same reasons that Napoleon would do a deal with the pope.

The egos of Stalin and Hitler were too big to permit competition from God, and any way, there was all that lucre to be had.  At least when those who are at war with religion now say that it is at best ridiculous and at worst cruel, they might have the courtesy to acknowledge that when it comes to cruelty and ridiculousness, religion has nothing on those that have been offered up in its place.

Dostoevsky on freedom and God

/ Geoffrey Gibson / Leave a comment

 

Dostoevsky had a lot in common with Wagner.  Neither was ever at risk of underestimating his own genius, and the behaviour of neither to others improved as result.  Both were prone to go over the top.  You can find forests of exclamation marks in the writings of both.  And both could and did bang on for far too long for some of us.  They both badly needed an editor. But if you persist with either of these men of genius, you will come across art of a kind that you will not find elsewhere.  The Brothers Karamazov, which I have just read for the third time, raises the issue nicely.  In my view, it could be improved by being halved – but you would be at risk of abandoning diamonds.

The most famous part of the novel comes with a sustained conversation between two brothers, Alyosha, who is of a saintly and God-fearing disposition, and Ivan, who is of a questing and God-doubting outlook.  The conversation comes in Part 2, Book 5, chapters 4 and 5, Rebellion and The Grand Inquisitor.

Ivan gets under way with ‘I must make a confession to you.  I never could understand how one can love one’s neighbours.’  The author probably knew that Tolstoy had written a book that asserted that the failure of civilisation derived from our failure to take seriously the Sermon on the Mount.  Ivan’s biggest problem is the familiar one.

And, indeed, people sometimes speak of man’s ‘bestial’ cruelty, but this is very unfair and insulting to the beasts; a beast can never be so cruel as a man, so ingeniously, so artistically cruel.  A tiger merely gnaws and tears to pieces, that’s all he knows.  It would never occur to him to nail men’s ears to a fence and leave them like that overnight, even if he were able to do it.  These Turks, incidentally, seemed to derive a voluptuous pleasure from torturing children, cutting a child out of its mother’s womb with a dagger and tossing babies up in the air and catching them on a bayonet before the eyes of their mothers.  It was doing it before the eyes of their mothers that made it so enjoyable…..I can’t help thinking that if the devil doesn’t exist, and, therefore, man has created him, he has created him in his own image and likeness….The most direct and spontaneous pastime we have is the infliction of pain by beating.

Well, that attitude is not completely dead in Russia.  Ivan is objecting to the unfairness, and the random nature, of cruelty, and he comes up with a phrase that so moved Manning Clark.

Surely the reason for my suffering was not that I as well as my evil deeds and sufferings may serve as manure for some future harmony for someone else.  I want to see with my own eyes the lion lay down with the lamb and the murdered man rise up and embrace his murderer.  I want to be there when everyone suddenly finds out what it has all been for.  All religions on earth are based on this desire, and I am a believer…..Listen, if all have to suffer so as to buy eternal harmony by their suffering, what have children to do with it – tell me, please?….Why should they too be used as dung for someone’s future harmony?…..And what sort of harmony is it, if there is a hell?….I don’t want any more suffering.  And if the sufferings of children go to make up the sum of sufferings which is necessary for the purchase of truth, then I say beforehand that the entire truth is not worth such a price….Too high a price has been placed on harmony.  We cannot afford to pay so much for admission.  And therefore I hasten to return my ticket….It’s not God that I do not accept, Alyosha.  I merely most respectfully return him the ticket.

That is very strong stuff.  There may be answers, but Alyosha doesn’t have them.

‘This is rebellion,’ Alyosha said softly, dropping his eyes.

‘Rebellion?  I’m sorry to hear you say that, said Ivan with feeling.  One cannot live by rebellion, and I want to live.  Tell me straight out, I call on you –imagine me: imagine that you yourself are building the edifice of human destiny with the object of making people happy in the finale, of giving them peace and rest at last, but for that you must inevitably and unavoidably torture just one tiny creature, that same child who was beating her chest with her little fist, and raise your edifice on the foundation of her unrequited tears – would you agree to be the architect on such conditions?  Tell me the truth.’

‘No I wouldn’t said Alyosha softly.

Nor would any other sane person.  So much for rebellion – now for the Grand Inquisitor.  Ivan said he wrote a long poem about this functionary.  He had set it in Spain during the Inquisition.

The Cardinal is very old, but in fine fettle.  He has just supervised the public execution by fire of nearly one hundred heretics.  But his peace is disturbed by the arrival of a holy man.  ‘In his infinite mercy he once more walked among men in the semblance of man as he had walked among men for thirty-three years fifteen centuries ago.’  The crowd loves him.  A mourning mother says ‘If it is you, raise my child from the dead.’  The only words he utters are in Aramaic, ‘Talitha cumi’ – ‘and the damsel arose’.  And she does, and looks round with ‘her smiling wide-open eyes.’  The crowd looks on in wonder, but the eyes of the Cardinal ‘flash with ominous fire.’

He knits his grey, beetling brows….and stretches forth his finger and commands the guards to seize HIM.  And so great is his power and so accustomed are the people to obey him, so humble and submissive are they to his will, that the crowd immediately makes way for the guards, and amid the death-like hush that descends upon the square, they lay hands upon HIM, and lead him away.

That sounds like the Saint Matthew Passion – doubtless, deliberately so.  The Cardinal visits the prisoner in the cells.  ‘It’s you, isn’t it?’

Do not answer, be silent.  And, indeed, what can you say?  I know too well what you would say.  Besides, you have no right to add anything to what you have already said in the days of old.  Why then did you come to meddle with us?  For you have come to meddle with us and you know it……Tomorrow, I shall condemn you and burn you at the stake as the vilest of heretics, and the same people who today kissed your feet will at the first sign from me rush to take up the coals at your stake tomorrow.

Ivan, brought up in Orthodoxy, explains that that in his view the fundamental feature of Roman Catholicism is that ‘Everything has been handed over by you to the Pope, and therefore everything now is in the Pope’s hands, and there’s no need for you to come at all now – at any rate, do not interfere for the time being’.  Ivan thinks this is the Jesuit view.  Ivan says the Cardinal went on.

It is only now – during the Inquisition – that it has become possible for the first time to think of the happiness of men.  Man is born a rebel, and can rebels be happy?  You were warned.  There has been no lack of warnings, but you did not heed them.  You rejected the only way by which men might be made happy, but fortunately in departing, you handed on the work to us.

Then comes a crunch.

You want to go into the world and you are going empty-handed, with some promise of freedom, which men in their simplicity and innate lawlessness cannot even comprehend – for nothing has ever been more unendurable to man and to human society than freedom!….Man, so long as he remains free has no more constant and agonising anxiety than to find as quickly as possible someone to worship.  But man seeks to worship only what is incontestable, so incontestable indeed, that all men at once agree to worship it all together….It is this need for universal worship that is the chief torment of every man individually and of mankind as a whole from the beginning of time…

Ivan comes again to the problem of freedom which is discussed in conjunction with the three temptations of Christ.  It’s as if the Church has succumbed to the third temptation and assumed all power over the world.

There is nothing more alluring to man than this freedom of conscience, but there is nothing more tormenting either.  And instead of firm foundations for appeasing man’s conscience once and for all, you chose everything that was exceptional, enigmatic, and vague, you chose everything that was beyond the strength of men, acting consequently, as though you did not love them at all…You wanted man’s free love so that he would follow you freely, fascinated and captivated by you…..But did it never occur to you that he would at last reject and call in question even your image and your truth, if he were weighed down by so fearful a burden as freedom of choice?….You did not know that as soon as man rejected miracles, he would at once reject God as well, for what man seeks is not so much God as miracles.  And since man is unable to carry on without a miracle, he will create new miracles for himself, miracles of his own, and will worship the miracle of the witch-doctor and the sorcery of the wise woman, rebel, heretic, and infidel though he is a hundred times over…

How will it end?

But the flock will be gathered together again and will submit once more, and this time it will be for good.  Then we shall give them quiet humble happiness, the happiness of weak creatures, such as they were created.  We shall at last persuade them not to be proud….We shall prove to them that they are weak, that they are mere pitiable children, but that the happiness of a child is the sweetest of all ….The most tormenting secrets of their conscience – everything, everything they shall bring to us, and we shall give them our decision, because it will relieve them of their great anxiety and of their present terrible torments of coming to a free decision themselves.  And they will all be happy, all the millions of creatures, except the hundred thousand who rule over them.  For we alone, we who guard the mystery, we alone shall be unhappy.

The Grand Inquisitor does not believe in God.

A swipe at one church by an adherent of another?  A reprise of the fascism latent in Plato’s Republic?  A bitter denunciation of the Russian hunger for dominance by a strong man like Putin?  A frightful preview of 1984?  It could be some of all of those things, but it is writing of shocking power that gives slashing insights into the human condition.  It is for just that reason that we go to the great writers.  They may not have the answer, but they ask the big questions.

Passing Bull 137 – The either/or fallacy – again

/ Geoffrey Gibson / 4 Comments

Someone sent me an example from the U S.  An examiner, who claimed to have a Ph D, failed an exam candidate on one question for saying that Australia was a country.  The examiner thought it was a continent.  Why couldn’t it be both?

The fallacy might sometimes be called ‘the single cause fallacy’.  The U S President put such a fallacy on horrific show after the Florida murders of school children – in which murders he was complicit.  He said that the issue was mental health, not gun control.  Then, in a display of callous inanity which was revolting even by his standards, he suggested that these murders may not have happened if the FBI had not been preoccupied with the Russian investigation.  Is it not obvious that all three of those issues may have been involved in these murders?

On a lighter note, Phillip Coorey, whose work I like, began a piece in the AFR about a fallen politician as follows:

Party officials believe increasingly that Barnaby Joyce’s tenure as Nationals leader has become untenable but say the ultimate decision whether to keep him rests with Nationals MPs.

There is no error of logic or syntax there, but the choice of words is unfortunate.  ‘Tenure’ and ‘untenable’ involve the same concept and stem – holding.  So, the proposition is that the holding is unholdable.  In defence of Mr Coorey, it might be said that the subject does cry out for Basil Fawlty.

TERROR AND THE POLICE STATE: CHAPTER 15

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[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]

15

Gulag

Some governments nowadays are keen to distinguish between detention centres and prisons.  They commonly want to make this distinction when they are at some kind of war with people trying to claim refuge in their country.  The government wants to assert that the attempted entry by the claimed refugee is illegal, but they do not want to say that people have been sent to prison because they have been found guilty by a court of breaking the law – because they have not been.  And for good reason, the regime does not want to have these people appear in their courts.  So, they say that these people are simply being held in detention, like naughty boys after a bad class, or foreign or suspected persons who are interned during a real war.  The immediate effect on a person inside a prison or detention centre is the same – the person has lost his or her liberty, the right that we regard as our most fundamental right.

In the period between 1789 and 1794, many people in France lost their liberty as a result of allegations made against them, and after the Law of Suspects was passed, many of those people lost their liberty simply because some allegation had been made, and without any intervention by a court.  As we saw, up to 300,000 may have been so detained.

The word gulag entered the appalled consciousness of the West with the publication in 1973 of The Gulag Archipelago of Alexander Solzhenitsyn.  Its impact was for many as great as the uncovering of the evils of the Reich.  It is fair to say that most people in the West have not been able to come to grips with the enormity or the horror of either.

The word Gulag was an acronym for the Soviet agency that ran the forced labour camps during the time of Stalin, but has since come to stand for the entire scheme of detention and forced labour.  For much of its life, it was run by the NKVD.  A large part of its population consisted of political prisoners and many were there without any judicial intervention.  In any event, Russia has never had a proper judiciary or even understood what the phrase ‘rule of law’ means.  The conditions in most were horrific – the inmates were cruelly treated, underfed, under-clothed, over-worked, exposed to the cold and all the elements, and subject to disease, and they were not aided when disease struck.

The estimates of the numbers who passed through the Gulag or died in it vary greatly because of the hugeness of the numbers involved.  Major population centres and infrastructure projects were built with what was in truth slave labour, and over the bones of those killed in the process.  As the Germans advanced in their invasion, the NKVD massacred many prisoners in order to prevent the Germans getting their hands on their labour.  The population in these camps at any one time may have exceeded ten million.  Unlike their Nazi counterparts, they had no camps set up for extermination only, but their numbers far exceeded those of the Germans.

Dachau in operation was shown in the German film The Ninth Day (Der Neunte Tag).  The fact that Dachau was not a death camp, as that term would come to be known, should not diminish its evil in our eyes.  Its inmates were not what we would call a threat to anyone, but they were all at the mercy of the terrorism of a vicious and amoral police state.  The guards came from the dregs of German society and on top of their natural envy and the need to strike back at the world, they were trained to hate those in their charge, many of whom would have been their social betters on the outside, such as the very many Jesuit priests, and any residue of humanity was drained from them.

The Germans then drew up elaborate rules of Byzantine complexity and cruelty which would provide a legal shield for the underlings and their cruel and small minds.  There was a kind of ghastly veneer of Teutonic order.  No matter what the previous position of a prisoner had been, they were all entirely within the power of the SS.  The SS operatives had no compunction in using and abusing that power to the full.  The wonder of it is that the suicide rate was not so much higher.

The regulations of the camps could have been written by Satan.  Prisoners who spoke of politics to incite others or arouse dread of the regime were to be hanged.  Sabotage or mutiny was dealt with less severely – those offenders were shot.  Other penalties included solitary, bread and water, lashing in public, being tied to a post, or withholding of mail.  Being put into ‘arrest’ in solitary in winter was often as good as a death sentence.

What kind of people just leave other people to freeze and starve to death?  How did they account for their work to their family over dinner at home at night?  What was it like to go daily between their own domestic peace at home and howling hell on earth in the camp over the way?  On one occasion at Sachsenhausen, an inmate trying to escape was badly beaten, then nailed into a wooden box, and then left there in the view of everyone for a week – until he died.

Each additional punishment – at the arbitrary will of morally deranged guards – carried an extension of the sentence, minutely and precisely reported in the books of record of the camp.  Most inmates would later say that the uncertainty about the length of their sentence was the heaviest load that they had to carry.  If you go to jail, you at least know your maximum time inside.

Every prisoner had to wear an inverted triangle on the left breast – black for asocial, green for professional criminal, red for political, violet for Jehovah’s Witness, pink for a homosexual.  Jewish prisoners were usually assigned to political, but had to wear an additional yellow triangle to form the Star of David.  They would typically be welcomed by being struck with truncheons or rifle butts as they were forced to run in, and the SS commandant might welcome them in these terms:  ‘You’re not prison inmates here, serving a sentence imposed by the courts, you’re just ‘prisoners’ pure and simple, and if you don’t know what that means you will soon find out.  You’re dishonourable and defenceless!  You’re without rights!  Your fate is a slave’s fate!  Amen.’

Sachsenhausen was infamous for two inhuman enterprises.  One was a brickworks which was to help rebuild Berlin.  The conditions were frightful.  They were manned by those on a Strafkommando, or punishment detail.  You could expect to survive for three months.  The record was 28 dead and over 50 injured in a day.  Many were shot ‘while trying to escape’.  Others were just flung into the water while barges were being loaded and then used for target practice for the SS.  At best you had just the work:  ‘Smoke, dust, and dense fog poisoned the air, whilst the deafening sound of clanging hammers, clattering chains and wheels, rattling machinery and the shrill whistles of the foreman prevailed from morning to evening….Soon my hands and face were covered in burns, breathing became difficult, the scorching heat made every movement torturous….It still puzzles me how I survived.’  This form of Hell was preferred for those wearing a pink triangle.  They were called the ‘175ers’ for the part of the Penal Code dealing with homosexuality.

The other inhuman enterprise – breaking in boots – was worse.  We are for the most part speaking of the conduct of people toward their own nationals, and, in two cases, people from two of the most civilised nations in the world.  If it matters, most of the thousands or millions of victims had not been convicted of any criminal offence.  How thin, then, is this veneer of humanity, much less civilisation, that we so glibly wear?

Passing Bull 136 – The either/or fallacy

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The Bill of Rights in the U S enables its Supreme Court effectively to make laws on sensitive political issues.  One example is the First Amendment.  It prohibits the making of laws that abridge freedom of speech.  In previous and purer times, the Justices had a lot of trouble squaring this protection with prohibitions on obscenity.  Surely people should not be heard to say ‘fuck’ and get away with it.  The Court developed a doctrine – in truth they made a law – that said that obscenity was ‘conduct’, not ‘speech.’

The issue came to a head in 1971 in a case about the Vietnam War and the draft in Cohen v California.  Mr Cohen got thirty days in jail for wearing a jacket that said ‘Fuck the draft.’  Under existing doctrine, the slogan was unprotected ‘conduct’ rather than protected ‘speech’.  The majority disagreed and set aside the conviction – and the jail sentence.  The minority was unrepentant, but they muddied the water in retreat.  They said that Mr Cohen’s ‘absurd and immature antic … was mainly conduct and little speech.’  Well, their Honours were not going to let the uppity Mr Cohen go unsmacked, but had that last proposition been put in argument, might not the response have been: in what way is being a little speech different to being a little pregnant?

But was not the whole argument premised on a fallacy?  Is it not a premise of the argument that there is an essential distinction between ‘conduct’ and ‘speech’ – perhaps what Fowler refers to as the ‘essential duality’?  The argument must be that if what we do is classified as ‘conduct’, it cannot be classified as ‘speech’.  But that is not the case.  The word conduct here means ‘things we do’, and one of the things we do is to speak.  (The Oxford English Dictionary is opaque: ‘Manner of conducting oneself; behaviour.’  For the verb, we get ‘to comport or behave oneself (in a specified way)’).  If I say ‘To hell with all politicians’ or ‘Fuck the draft,’ I am engaging in that form of conduct that we call speaking, or speech.  The former includes the latter; there is no necessary distinction between the two terms; and the whole basis of the argument falls to the ground.  The fallacy might be called the ‘either/or’ fallacy, or perhaps, ‘the false dichotomy fallacy’.

Another example of this fallacy can be seen in an AFR piece by John Roskam of the IPA about the movie Darkest Hour.  Mr Roskam says that the movie makes the point that people make history, and that our universities are wrong to preach – as he believes they do – otherwise.

In tertiary institutions individuals have been replaced by ideologies. The most common themes in those 746 subjects [undergraduate history subjects taught at Australian universities] are, in order, indigenous issues, race, gender, the environment and identity…..

The ideology of identity politics and the categorisation of people into pigeon holes according to personal characteristics that they had little or no role in choosing is that there’s no room for choices.

Now, for better or worse, it’s more than fifty years since I studied or taught history at an Australian university, but over the last fifteen years I have spent a lot of time in summer schools at Cambridge and Oxford studying history.  The tutors there are not interested in windy ideological suspirations.   But if an issue like this comes up, as it did in a course on Cromwell at Cambridge conducted by Dr David Smith, then the obvious answer is that people make history – and not vice versa.  I don’t know if there is a different current in our universities but then again, there is a lot that I don’t know about bogeymen of the IPA.

But the fallacy again is that there is no necessary distinction or exclusivity between what might be called the individualistic and the determinist views of history.  It is sufficient to recall the insight of Carlyle – history, our story, is a collection of biographies.  It’s about what people have done – their conduct, including what they said.  When Mr Roskam rehearses his demons – ‘indigenous issues, race, gender, the environment and identity’ – he is referring to labels applied by commentators like Mr Roskam to aspects or effects of what individual people have done.  Most history, even what is called microhistory, inevitably entails some generalization and labelling – and on a bad day, some graphs or tables – but that does not require us to believe that we are not talking about what people do.  There is no such thing as race, gender or identity alone and palely loitering.  Tolstoy obsessed about this in War and Peace, and Carlyle got onto trouble over allegations of hero worship, but for most of us, the issue just doesn’t arise

Of course, the conduct of Churchill had more effect on the outcome of World War II than the man who swept the floor of the Cabinet War Rooms.  Of course, Napoleon had more say about the impact of the French Revolution than the sans-culotte who got his first taste of blood on 14 July 1789.  But no one could write a history of those events by talking alone about named individuals.  Lenin was instrumental in the arrival of Communism in Russia; Gorbachev was instrumental in its departure.  But it is impossible to describe either story without feeling and speaking of the elemental forces that moved across all the Russias during those times.

Great lakes of watery ink have been let go on these themes.  If you ignore large issues like causation, you are exposed to the taunt of Voltaire: ‘If you have nothing to tell us except that one barbarian succeeded another on the banks of the Oxus and Jaxartes, what is that to us?’  But if you get carried away on the airstream of causation, you forget ‘man’s mysterious powers of breaking the laws of his own being.’  (Someone referred to the tragedy of all social sciences as that of ‘a syllogism broken by a fact.’  Against that, someone else said that ‘unpredictability is the privilege of the insane.’)  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.’  History is all about individuals, but their doings are commonly described in very large groups.

In What is History?, E H Carr put one aspect of our discussion this way:

The logical dilemma about free will and determinism does not arise in real life.  It is not that some human actions are free and others determined.  The fact is that all human actions are both free and determined, according to the point of view from which one considers them…..Cause and moral responsibility are different categories.  An Institute and Chair of Criminology have recently been established in this university.  It would not, I feel sure, occur to any of those investigating the causes of crime to suppose that this committed them to a denial of the moral responsibility of the criminal.

That looks plain common sense to me – except that if it is thought that there is some logical distinction between ‘real life’ and ‘history’, then I would reject it as groundless.

If you are asked to tell the story of what we have done, how much weight you give to the individual – hero or villain – and how much you give to the rest – Mr Roskam would not be keen on the ‘masses’ – are matters of degree and possibly taste.  But to suggest that there is a necessary logical distinction is, I’m afraid, just bullshit.

The either/or fallacy occurs when someone says you have to choose between A or B, and that they are inconsistent – when that is not the case.  It is related to the fallacy of the false dilemma.  A dilemma is false if it says that there are only two choices when in truth there are more.  What you generally get is that if you do not do A, you will have to go with B, which will be truly awful.  The truth is that there are other possibilities, but you face an attempt to induce you to believe that you have no real choice.

Here and there – Anthony Trollope on laws and morals

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The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

Passing Bull 135 – Greed, madness, and fraud

/ Geoffrey Gibson / Leave a comment

 

In The Age on Saturday, it was alleged that the ‘prominent real estate figure’ John Mc Grath owes $16.2 million in gambling debts to the betting company William Hill Australia.  Mr Mc Grath has since denied that allegation, but according to The Age, he did not bother to respond to their written questions on the subject.  The paper said that the British parent is trying to sell William Hill.  That company is run by Tom Waterhouse, a figure of some colour and controversy in his own right.  Not surprisingly, some prospective purchasers have some questions about such a large debt.  Equally unsurprisingly, some of the shareholders of McGrath Real Estate Ltd have some questions about the impact of such a debt on the capacity of Mr McGrath to run a company that has attracted its own colour and controversy – all of the worst kind.

When asked about the debt of Mr McGrath, Mr Waterhouse said:

I am not aware of any individual client in terms of betting or whether they are a client, or not a client, whether it is Joe Bloggs or John whatever.

When it was put to him that the identity of such a gambler would be of critical interest to the betting company, Mr Waterhouse said that he would not say who the gambler was – if the company did in fact have a debt of that amount.  The identity of their clients is confidential.

He might be right on the last point, but the rest is pure bullshit.  It may remind us of the advice given to politicians – never tell a barefaced lie if you can bullshit your way through.  It’s just another indication of how the very idea of truth is sinking in the Trump sunset.

Should Mr McGrath have disclosed his gambling position to the publicly listed company, and should that company have disclosed it to the Stock Exchange?  Let me say two things.  If I was a shareholder – and I thank heaven I am not – I would like to have been told that the moving force of the company had what that distinguished football commentator Crackers Keenan called ‘attitudinal issues.’  Then, about twenty-five years ago, I was acting for a very large gaming entity that was subject to very close scrutiny from gaming and corporate regulators.  One regulator said that the company should disclose big losses to professional gamblers.  Had it done that, it may have had to disclose that disclosure to the other regulator.  This could have led to an infinite regress.  So, we issued serial greetings from Her Majesty to clear the air.

It is rare in the Inquirer in The Saturday Australian to find an assertion of verifiable fact.  It’s all just boxes, labels, and tribal grouping. On Saturday, Mr Paul Kelly was ruminating on the kind of things that that stable chews on.

The left continues to win the battle on defining issues.  With Shorten having embraced the integrity commission concept this week, it will be near impossible for the government to resist this initiative.  It is popular, populist, sanctified by retired judges, beloved by the progressive media and justified by a grand and fraudulent argument that it will restore trust to politics, a result not evident in any jurisdiction in this country where such commissions have long operated.

So, we get the same old tribal labels – left, populist, and progressive media – and no evidence.  Since I hardly know what left means, I cannot see why an integrity commission should be a left initiative.  Since I hardly know what populist means, I cannot see how it is different to popular.  But if the proposal for an integrity commission is as popular as Mr Kelly suggests, to the point where resistance is ‘near impossible’, why should the government resist it?  Isn’t it the function of democracy that government reflects the mood and purpose of the majority of the people?  Some states have introduced such bodies and their working has shown why they were needed.  No sane party in those states would propose getting rid of them.  Are federal government people somehow different or cleaner?

People who use labels like left, progressive and populist do not often say what labels they would accept – right, regressive, elite or doctrinaire puritan? – and it remains a mystery to me why the people who were so dogmatic about climate change are now equally dogmatic about integrity commissions.  They are like cattle lowing in a herd.  They are almost indecently out of touch, but does that make them conservative – whatever that means?

But the reason I cited that passage can be found in one word – fraudulent.  That’s an allegation of dishonesty.  The only identified targets are retired judges and progressive media.  (You will have seen the graffiti smear of sanctified.) Well, I couldn’t give a bugger if the target was the queen or the pope, or Donald Trump.  I don’t know whether the allegation derives from malice or laziness, but it was grossly unprofessional, and it would not be allowed by a decent newspaper.  It is another symptom of the decline in standards that must accompany any partisan divide.  And that paper is almost as loaded with fire and fury as Fox News.

Ah, well, on the facing page, Mr Kenny has found the answer for the Liberal Party – ‘their most bankable political asset, still, is that they are not Labor.’

Quod erat demonstrandum.  And may God give the rest of us strength.