Reflections on the law and other things by a lawyer in autumn
After reading another biography of the English statesman and jurist, Lord Haldane, and being reminded that he was trained at Edinburgh and Gottingen in philosophy, I bought a volume that he wrote on the subject. It is called The Pathway to Reality, and it contains the Gifford Lectures he gave at St Andrews in 1902-1903. This was a time when English philosophy was heavily influenced by German idealism. Haldane was right into the metaphysics of Hegel. Very few read Hegel now, and even fewer could understand it if they did. But this book now comes not just from a different time, but a completely different world. Here is an example – picked at random (from the third lecture):
The problem of Philosophy may be defined to be to find the highest categories under which to think individual actuality, and to get the most adequate and complete conception of it. So alone, by this method and by no other, does it seem as though we could reach a view of God. At the plane of experience of our everyday lives, we do not use the highest categories, because we are not in search of ultimate truth. Our necessities, our purposes, our standpoints, are provisional and finite only, and we have no need to go beyond them in the organisation of our view of experience.
How would it be if you got on a plane for London and as you take the first sip of Scotch and soda, the guy in the seat next to you leans across and inquires eagerly: ‘Could we start, perhaps, with your conception of individual actuality?’ The whole lot is just about meaningless to us now. We know that David Hume exploded metaphysics, and I now have a better understanding of his famous peroration.
If we take in our hand any volume; of divinity or school metaphysics, for instance; let us ask, Does it contain any abstract reasoning concerning quantity or number? No. Does it contain any experimental reasoning, concerning matter of fact and existence? No. Commit it then to the flames: for it can contain nothing but sophistry and illusion.
This is just another case of philosophy winding up in a cold dead end. But I am old fashioned enough to think that training in it helps train the mind – and God knows we could use as much of that as we can get. It certainly did not hurt Haldane. He was a first rate jurist and statesman.
Shakespeare presents no such problem for me. I have all the plays on video and audio cassette. At the start of the lock-down, I bought the full set of 38 plays on CD put out by Arkangel. It’s ridiculous. You get the plays performed in front of you by the best Shakespearian actors in the world – by far the best – and all with perfect sound – for about $10 a play. I am going through them – at random. The last three I finished were Titus Andronicus, Two Gentlemen of Verona, and Pericles (with an ageing Gielgud as Gower). None of those is in his top shelf, but there is something that gets me in each one, and in spite of its wanton brutality, I have had a morbid fascination with Titus ever since I saw that marvellous film of it by Julie Taymor (1999). Otherwise, you can just sit there and let the sound wash over you – as you might with the Goldberg Variations of Bach – even if I sit there with my mutilated Everyman volume of the text – with pencil in hand, like a conductor. I am always struck again with the wonder of it, and I now find the musical accompaniment surprisingly important and engaging. Last night I played the first half of Midsummer Night’s Dream. I saw the famous 1970 RSC production in Melbourne, and I have seen it in our Botanical Gardens and in the gardens of at least two Oxford Colleges. And I enjoyed the Hollywood version. This is not easy to put on film, but I thought Kevin Kline was very good as a mysteriously tragic Bottom – backed by some of the big hits of Italian opera. And I and my older daughter nearly died laughing when we saw the mechanicals, as the yokels are called, in the AO production of the Britten opera in rehearsal about thirty years ago. The Arkangel version sounds flawless to me. The range of the voices over four different levels of characters is something of wonder. They speak the lines as they breathe the air. For example, Hermia is played by Amanda Root. (I used to wonder how she may have suffered under that name until Joe Root was made captain of England. When I arrived at the courtyard of my college at Oxford on one occasion, a cheery English guy I had met on previous occasions told me and the rest of the motley that ‘Joe Root is not out on 180.’ I said: ‘With a bloody name like that, God might owe him one.’) Amanda is perfect for this part; she reminded me a lot of the young lady who played Natasha in the BBC War and Peace – the gushing exuberance of a girl becoming a woman. And apart from the mechanicals, the comedy is ultra-ripe. There is that wonderful moment when Lysander’s blood goes up too fast in his pants and the chaste Hermia banishes him to the bushes for the night. As it happens, that turns out to have been a serious tactical error, but you wonder how many times that scene gets played out on a park bench, or a back seat at the Moorabbin Drive-In. Almost immediately, the now drug crazed Lysander repudiates Hermia and pants his newly found lust at Helena, and she gets the line of the night:
Wherefore was I to this keen mockery born?
When at your hands did I deserve this scorn?
We do not know if Chaplain, or the Marx Brothers, or the Goons saw this great comedy, but we do know that it was and is part of their and our heritage. It is another example of the remark by someone – perhaps Olivier – that being with Shakespeare is like touching the face of God. In a way that is far beyond the dreams of Hegel or Haldane.
Lawyers tend to specialise, but they should try to stay as general as they can for as long as they can. In addition to specialising, some also confine themselves to one kind of client. This can be very damaging. Some people act only for insurers. In the U S, some first amendment lawyers act only for the press. In Australia, some criminal lawyers act only for the accused – and risk getting bitter and twisted about the coppers or becoming indifferent to conduct that does serious harm to people; like psychiatrists, they risk being adversely affected by what they encounter on the job. The worst kinds of one-sidedness that I see is in industrial relations where many operate only for employers or employees – and trade unions. These people can end up terribly blinkered – biased or prejudiced, or politically committed. And all those conditions are the precise opposite of being professional. It is fundamental to our legal process that you hear both sides before forming a judgment. In my view, lawyers should seek to apply that principle to their practice. It is to my mind obvious that lawyers who are used to seeing both sides because they act on either side are much better equipped to look after their clients than those who only get to see issues from one perspective. In my twelve or so years running a statutory tribunal that dealt with disciplinary issues, I frequently encountered lawyers who showed problems in dealing with either of those issues. Because the statutory body ran an essential government service, the fire brigade, whose members belonged to a fiercely protective trade union, there were often ‘industrial’ issues which would lead to a Labor oriented firm being instructed on behalf of the union. Then I might have an industrial law barrister in front of me. But if the charge alleged conduct that constituted a criminal offence, I might have a lawyer from the criminal bar before me. One day I could get some crusading union lawyer playing to the gallery and singing the union anthem – when the punter’s best interests would be served by a quiet ‘Sorry, but I promise it will not happen again.’ The conflict of interest was palpable – embarrassingly so. Then I could get some bull-nosed crusader from the criminal bar who would decide to savage the investigating officer for old times’ sake, and then you would get a novice who would take the fifth – which is a form of suicide before such a tribunal. These were difficult and frustrating times for me. Because some counsel were unable to do their job professionally, the tribunal can be put in the difficult position of trying to remain neutral while juggling with the rights of the accused. It got even worse when industrial advocates appeared. They may have had some rough training in industrial advocacy, but that was far from being enough in that kind of tribunal. After I had made sure that word got to the union to that effect, that practice stopped. Something similar happened when I was told that the Crown would not brief counsel to appear before me in tax cases if they had appeared for the taxpayer. That practice looked pernicious on more than one ground, and the Crown on advice cut it out.