Month: January 2021

Passing Bull 262 – Woolly weasels

/ Geoffrey Gibson / 3 Comments

Mr Roger Shipton, still currently of ASIC, likes to have his hand held.  He got me and other taxpayers to pick up a tab north of $100,000 for tax advice when he took his position at ASIC.  Since this came to light in October of last year, he has stood aside.  If it was not obvious then, it was certainly obvious by now that no one could have confidence in ASIC if he returned permanently – his position was untenable.  According to the press, he hired a platoon of lawyers to help him ride the current wave – three barristers and a solicitor, not from those at the bottom of the market.  Well, at least I will not be called on to pick up their tab – directly; but I may be called upon indirectly, because I am now up for about $200,000 foregone since he stood down.  Well, I suppose I will get more than half of that back in tax – unless of course he gets a flotilla of other lawyers to tell him how to avoid paying that tax. 

It was obvious that the man had to go.  But neither he nor the Minister had the decency to say so.  Instead we are told that ‘we believe that it is time for a fresh start at ASIC and a fresh start will begin with the search for a new chairman.’  All this comes after an investigation, we are told, cleared Mr Shipton ‘of any wrongdoing’.  So, he has done nothing wrong – but he must go.

Do these people think that we all came down in the last shower?  Why has this investigation taken months?  Why could it not have been concluded in twenty-four hours?  It is not a question of whether Mr Shipton has broken any law or infringed any guideline.  The question was whether a person who has claimed a payment for his personal benefit of more than $100,000 from public money while he was the chairman of a statutory body that regulates the conduct of business in this country could retain the confidence of the business community or the public at large.  There could only ever have been one answer to that question.

This is appalling nonsense of itself.  But it gets so much worse when you look at what the leader of the federal government did to Christine Holgate.  She authorised payments of $20000 to executives of Australia Post as a reward for very good results.  She acted within established authority within the corporation and derived no personal benefit from the transaction.  She too has now been cleared of any wrongdoing (although her investigator saw fit to refer to the views of some weasel directors and used terms like ‘inappropriate’ or ‘inconsistent.’)  But without hearing from her, let alone an independent investigation, the Prime Minister unleashed a posse that that predicably became a lynch mob.

And all this when all who knew what was going on at Australia Post said this woman was doing a great job.

No one said of that of Mr Shipton – not even his scripted despatcher.

If people in government behave like this, what do they expect from us?

And people who want to step outside their brief and offer gratuitous commentary of their own on a subject of their inquiry may wish to reflect on the standing of a man who may have changed the course of world history by doing just that.  His name is James Comey and the beneficiary of his backhander was Donald Trump.

Here and there – King John and the Laws of England

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Part II

Shakespeare did not refer to Magna Carta in King John, but he described the reaction of the English barons to a weak king.  The king undergoes another coronation and takes fresh oaths of allegiance to overcome the excommunication.  The barons are very restless at all this.  The king tells them they will see how ready he is to accommodate them.  Salisbury says:

The colour of the king doth come and go
Between his purpose and his conscience,
Like heralds ‘twixt two dreadful battles set:
His passion is so ripe, it needs must break.  (4.2.76-79)

When news comes of the death of Arthur, John is quite unmanned.  All he can say is: ‘They burn in indignation.  I repent.’  He is now a shuttlecock between the Vatican and the barons – and Innocent and the barons were very tough nuts.  He is craven before Pandulf and he blames Hubert for not refusing to murder Arthur.  (Reinhard Heydrich was cashiered from the navy – he appeared before a court of honour and blamed a pregnancy on the girl.)  So that when it came to settling what was a kind of civil war, what Mafia dons called ‘making the peace’, King John had to make concessions that would have been unthinkable in the realm up to that time.  The concessions appear in Magna Carta.

These barons were in truth not the flower of chivalry.  One, Robert fitz Walter, called himself ‘Marshall of the Army of God and Holy Church.’  Robert de Ros was a marauding land rustler whose men attacked agents of the Sheriff of Yorkshire with bows and arrows.  Well, the barons had among their number members who were capable of putting together a document of the first constitutional significance – the very first.  John did not sign it – there is no evidence that he could write.  It took legal effect when it was sealed with an oath. 

Some very astute lawyers were involved in making this document, and they were not acting solely in the interests of the barons.  The Charter provides for what is to happen ‘in order to have the common counsel of the kingdom for assessing aid.’  ‘Aid’ there means in substance tax.  To ‘have the common counsel’ will harden into a requirement that the king get a statute from his parliament before he can get a tax.  That then will be the lynchpin of the whole dispensation, since he who controls the money controls the game.  That’s the process that was completed in 1689.

But the Charter is remembered and still invoked for two articles on the administration of justice.  Articles 39 and 40 are as follows:

39. No freeman shall be captured or imprisoned or disseised [deprived of land] or outlawed or exiled or in any way destroyed, nor will we go [nec ibimus] against him, or send [nec mittimus] against him, except by the lawful judgment of his peers or by the law of the land.

40. To none will we sell, to none will we deny or delay right or justice.

These words were meant to be etched in stone.  You might expect to find in a prayer book the words ‘nor will we go against him or send against him.’  If you want to know whether the original has the same lapidary quality, the Latin, partly shown, is just as moving.

Article 39 is no less than the foundation of what we call the rule of law.  If the English people had only given Article 39 to the world, they would still have our gratitude.  What this clause says is that liberty and property are not to be interfered with without due process of law.  The phrase ‘due process’ enters into later versions of the Charter, and ‘due process’ is the concept that underlies much of the Bill of Rights in the United States. 

If you borrow money for a company and default on repayment, the bank may send in a receiver over the business.  There are difficulties about suing kings – what form of security, then, did the barons get from their faithless king?  I said elsewhere:

They favoured the receiver model.  Article 61 refers expressly to security (securitas) and it is in horrific terms that not even the most over-mighty and overbearing corporation, outside of Russia, would dare to seek.  It provides that if the king defaults, the barons can give him a notice to remedy that default.  If he does not, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’  Well, that is fine for the royal family, but what about the poor downstairs maid when that awful Robert de Ros, neither alone nor palely loitering, comes thundering over the drawbridge, leaving his chain mail behind him, in one of his beastly marauding moods, and holding something large and nasty in his hand? 

….. The right of entry is given to a committee of barons ‘together with the community of the entire country’….  Communis is a very, very potent term here (as would be communio in a church).  When the French monarchy was brought down in and after 1789, the government of the country for a large part came to rest with the commune of Paris, especially after the 10 August coup of Danton (in 1792).  The revolutions that shook the great cities of Europe in 1848 were centred in the communes.  A movement in favour of revolutionary change across the entire world to free the masses of their chains, which would cause so much misery in the twentieth century, was called the Communist Party after these communes.  Yet here we have English barons giving these communal rights to the yeomen and all the freemen of England way back in 1215.

You cannot try to make a constitution in a vacuum.  You need at least two things – a body of existing law that commands the assent if not the respect of a majority of the people; and a body of judges to interpret and enforce those laws.  It looks like only England had those qualifications then.  Remember that England was developing the first profession outside the church.  It was this profession – including the judges in that term – that would celebrate and nurture Magna Carta so that it would become ‘with all its faults a kind of sacred text, the nearest approach to an irrepealable fundamental statute that England has ever had.’  The reference to sacred text from the sober legal historian Maitland tells us something.  In order effectively to nurture a constitution, you need some kind of faith based on experience.  We call it tradition.

Being a rat, King John straight away sent to Rome and got the Charter quashed.  Exhibit A in the duress plea was the default clause – which was decently omitted from later versions.  But the Charter kept getting reinstated. 

What was its real significance?  The king had to negotiate with his subjects in order to rule.  He derived his authority not from God, but from the consent of the people revealed by this contract.  That is why this is the most consequential document in the history of the world that was not said to have derived from God.  And the significance of that liberation is on show in the play King John.

English legal historians tend to be coy about the role of contract in their and our history.  But if the great shift has been from status to contract, as Sir Henry Maine said, then the Charter is its first great manifestation.  And there is common ground that the Reformation in England had nothing to do with religion.  It was all about political power, and in that it was a triumph.  (Whereas in Germany, it was all about religion, and in that it was a political disaster.)  If you want to see the effect of this liberation on England, compare the later histories of France, Italy, and Spain to those of England and Holland. 

And the role of Magna Carta and the Reformation confirms my abiding impression that the rule of law comes down to little more than a state of mind that comes out the process of the common law so that the waters of Runnymede feed into those of the Campaspe.

MY SECOND TOP SHELF 18 – WAITING FOR GODOT

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WAITING FOR GODOT

Samuel Beckett (1952)

Folio Society, 2000; illustrations by Tom Phillips; bound in illustrated cream boards with olive slipcase.

This play is an interesting litmus test for the would-be literati or cognoscenti.  It is one thing for you to have a copy in your library; it is another thing to say that you have seen the play in production (where, as one critic said nothing happens – twice); but you really take the prize if you can claim both of the above – and that you understood it!  You go straight to the top of the honours class if you are aware of the following dialogue between Kenneth Tynan and Jean Paul-Sartre (which tells you about all you need to know about Sartre).

TYNAN: You once said that you admired Waiting for Godot more than any other play since 1945.

SARTRE: That is true.  I have not liked Beckett’s other plays, particularly Endgame, because I find the symbolism far too inflated, far too naked.  And although Godot is certainly not a right wing play, it represents a sort of universal pessimism that appeals to right wing people.  For that reason, although I admire it, I have reservations.  But precisely because its content is somewhat alien to me, I can’t help admiring it the more.

Sometimes you wonder how France survives its intellectuals.

Samuel Beckett was born into a comfortable Anglican family in Dublin in 1906.  He took a degree at Trinity College, where he played first class cricket, and he then taught in France.  There he came under the aegis of James Joyce.  He took up permanent residence in France, and during the war served in the Resistance for which he was awarded the Croix de Guerre (which, with cricket, distinguishes him from Sartre).  On visiting his mother after the war he had something of an epiphany.   He decided that his path would be different to that of Joyce. 

This play was first published in 1952.  After a rocky start, it gained popular and critical acceptance.  Beckett was awarded the Nobel Prize and he rewarded himself with a modest quota of mistresses.  He died in 1989 and was buried in the Cimitière du Montparnasse.  He was a leading light in what is called the theatre of the absurd.

Two characters called Vladimir and Estragon, in a minimalist set, are waiting for someone called Godot.  While they wait – Godot never comes – they muse and squabble, and three other lesser characters intervene.  The script is such as to have driven actors nearly mad when they asked the author what it really meant, and critics have differed wildly about what it stands for.  Beckett got to be relaxed about this as it was obviously a driving force behind the success of the play.  At its Australian premiere in 1957, Barry Humphries played Estragon.

Here is the set: ‘A country road.  A tree.  Evening.’  The writer was not paid by volume.  Early in the dialogue, Vladimir says: ‘One of the thieves was saved.  It’s a reasonable percentage.’  There has been no prior reference to the crucifixion.

Vladimir: Suppose we repented.

Estragon: Repented what?

Vladimir: Oh….  (He reflects.)  We wouldn’t have to go into the details.

Estragon: Our being born?…..

Vladimir: You should have been a poet.

Estragon: I was.  (Gesture towards his rags.)  Isn’t that obvious?

So, the humour is Irish and black.

Vladimir: What do we do now?

Estragon: Wait.

Vladimir: Yes, but while waiting.

Estragon: What about hanging ourselves?

Vladimir: Hmm.  It’d give us an erection!

Estragon: (highly excited).  An erection!

Vladimir: With all that follows…..

Estragon: Let’s hang ourselves immediately.

Toward the end of Act I we get:

Vladimir: But you can’t go barefoot!

Estragon: Christ did.

Vladimir: Christ!  What’s Christ got to do with it?  You’re not going to compare yourself to Christ!

Estragon: All my life I have compared myself to him.

Vladimir: But where he lived, it was warm, it was dry!

Estragon: Yes, and they crucified quick…….I wonder if we wouldn’t have been better off alone, each one for himself….We weren’t made for the same road.

Vladimir: (without anger).  It’s not certain.

Estragon: No, nothing is certain.

Near the end of Act II we get:

Vladimir: What are we doing here, that is the question….We have kept our appointment, and that’s an end to that.  We are not saints but we have kept our appointment.  How many people can boast as much……?

Estragon: (aphoristic for once): We are all born mad.  Some remain so.

The illustrator of the Folio Edition, Tom Phillips, featured bowler hats in his work.  He said that he borrowed them from stills of Laurel and Hardy, ‘the cinematic precursors of Pozzo and Lucky’.  The play was written before the Goons came out, but it would be interesting to know if it had any impact on Joseph Heller before he wrote Catch 22.

Well, like oysters, you will either like this play or not.  But there is no doubting its impact, and if you get it, your intellectual standing will take right off.

Passing Bull 261 – The business of sport

/ Geoffrey Gibson / 2 Comments

Out of solicitude for my mental health, I have stayed away from the gongs announced on this dreadful dies non, but two items caught my eye today in the sports pages.  One concerned Mr Toby Price, the two time winner of the Dakar, the toughest contest on the planet.  They will have to invent a new word for courage for him – in hospital again with a broken body. 

The other concerns our PM who is increasingly looking like a strolling player in search of a sandwich board.  He said something very silly about sport and politics.  Politicians, especially those of the crude, retail populist kind – like ScoMo – just love mixing with sportsmen.  Remember Our Bob on the America’s Cup?  Paul Keating number 1 at Collingwood?   

But like the IPA on corporations, ScoMo thinks sports bodies should not have views on politics.  You do not have to live in a small town to realise that if you want to get on in business, you have to engage with people.  That’s what Cricket Australia did about this sad day’s name, and our PM said he thought they should prefer sport to politics.  I am not sure if the New South Welshman knows of Mr Adam Goodes, but Mr Gideon Haigh correctly analysed the bullshit.

The either/or foundation is of course perfectly fallacious.  Sport is pervaded by politics, especially when sports teams purport to represent whole nations, and beloved of politicians, who envy its capacity for engaging, exciting and unifying…..Which is exactly why Morrison flaunts his democratic credentials by cosying up to sports people …..So when the Prime Minister objects to the mixing of cricket and politics, what he is really objecting to is the particular mixing that doesn’t shore up his national daggy dad routine.  And when he says that it ‘wasn’t a particularly flash day for those people on those vessels’ of the First Fleet, it’s not just a lazy stab at moral equivalence, but the same tone-deaf approximation of the vernacular as Kevin Rudd demanding a ‘fair shake of the sauce bottle.’

Precisely, Mr Haigh.  Get a new gag writer, ScoMo.  The Mayflower at Plymouth Rock was more your go.  Puritans to their bloody eyeballs, but they never let God stand between them and a dollar.  That’s why your old mate Donny Boy is still so flush, and in with the chosen, God’s elect.  Just live for the Sharks of Cronulla on Saturdays and Hillsong on Sundays.  You bloody ripper, Mate.

Bloopers

It is hard to see what the world did wrong to land Rupert.  The Oz editorial yesterday counselled Mr Biden to be prudent and concluded:

The US does not need a rerun of the Obama years.

There in one sentence is the accumulated venom of Rupert Murdoch.

The Australian, 25 January, 2021

Passing Bull 260 – They are not us

/ Geoffrey Gibson / 10 Comments

Dear Editor (New York Times),

Americans who say that those who violated the Capitol are not ‘us’ forget history.  The nation was conceived in violence.   The war against the English was also a civil war that Churchill compared to atrocities in Ireland.  The founding document was based on a lie about equality.  600,000 Americans died in an attempt to extirpate that lie.  This President could not believe a black president could be American. He has cheered on white violence and condemned black protests.  And this nation uniquely celebrates a constitutional right to bear arms.  The purpose of a gun is to inflict violent harm.  So, Americans, don’t say you’re not violent.  It’s in your blood. 

The divide between black and white led to the Civil War and Black Wednesday.  Those who razed the Bastille cherished equality;  those who stormed the Capitol dread it.  The question you face was stated at Gettysburg  by the greatest American –  ‘whether a new nation,conceived in liberty, and dedicated to the proposition that all men are created equal… can long endure’.

Yours truly

Bloopers

Donald Trump finishes his astonishing term as president in utter ignominy.  His behaviour since he lost the presidential election on November 3 has been far worse than anything he did as president….Trump was always a contemptible and unworthy character.  For any serious conservative, voting for him was always a 51-49 decision.

Greg Sheridan, Weekend Australian, January 9-10, 2021.

Where to start?  What does ‘conservative’ mean there, ‘serious’ or not?  What is there 50/50 about someone who has always been ‘contemptible’ and ‘unworthy’?  This proprietor does warp minds.  The Wall Street Journal broke ranks and said Trump should resign.  Since this is about 1000 to 1, the next question is what should otherwise happen?  They give no answer, although they concede that ‘Trump’s character flaws were apparent for all to see when he ran for president.’  Then the WSJ reveals the house flaw when it says that the 2019 impeachment was an abuse of process that has diminished Democrats’ credibility.  The alternative view is that that impeachment was a lay down misère which only failed because Republicans did not do their duty, and that the U S and the world are now much worse off because of their failure.  And, given that Trump is contemptible and a man whose character flaws are notorious, their failure is inexcusable.

Here and there – Milton on Trump’s Washington – Paradise Lost

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Quite by chance a couple of days ago, I started to listen again, with text in hand, to Paradise Lost so gorgeously read by Anton Lesser.  It is ravishing – if you forget the theology, which is awful.  Every time I listen to it or read it, I wonder why Satan is the star of the show.  But the events in Washington yesterday reminded me of the title.  And some of the lines look to bear directly on the gruesome convulsions of America at this solemn hour.

The following look good for those made cowards by Trump.

The conquered also, and enslaved by war,
Shall, with their freedom lost, all virtue lose
And fear of God; from whom their piety feigned
In sharp contest of battle found no aid
Against invaders; therefore, cooled in zeal,
Thenceforth shall practice how to live secure,
Worldly or dissolute, on what their lords
Shall leave them to enjoy; for the earth shall bear
More than enough, that temperance may be tried:
So all shall turn degenerate, all depraved;
Justice and temperance, truth and faith, forgot.

No prizes for this one.

……..till one shall rise
Of proud ambitious heart; who, not content
With fair equality, fraternal state,
Will arrogate dominion undeserved
Over his brethren, and quite dispossess
Concord and law of nature from the earth;
Hunting (and men not beasts shall be his game)
With war, and hostile snare, such as refuse
Subjection to his empire tyrannous:
A mighty hunter thence he shall be styled
Before the Lord; as in despite of Heaven,
Or from Heaven, claiming second sovranty;
And from rebellion shall derive his name,
Though of rebellion others he accuse.

This seems apt for the Republicans.

Since thy original lapse, true liberty
Is lost, which always with right reason dwells
Twinned, and from her hath no dividual being:
Reason in man obscured, or not obeyed,
Immediately inordinate desires,
And upstart passions, catch the government
From reason; and to servitude reduce
Man, till then free. Therefore, since he permits
Within himself unworthy powers to reign
Over free reason, God, in judgement just,
Subjects him from without to violent lords;
Who oft as undeservedly enthrall
His outward freedom: Tyranny must be;
Though to the tyrant thereby no excuse.
Yet sometimes nations will decline so low
From virtue, which is reason, that no wrong,
But justice, and some fatal curse annexed,
Deprives them of their outward liberty;
Their inward lost….

But here is the bell-ringer.  My new Public Enemy Number 1 – which, given the competition, is a mighty achievement – Ted Cruz.  Trump is just an illiterate spoiled child who was never taught better or brought to heel.  It’s not that he did not go to discipline school – he was never house trained.  Ted Cruz – and his younger dreadful fist-bearing lieutenant – do not have that excuse.  I am told that they had glittering careers as young lawyers.  I know just the type.  High IQ and zero judgment.  And, after lives spent in front of mirrors, the last people you would want to have behind you in an Indian tiger hunt.

Faithful to whom? to thy rebellious crew?
Army of Fiends, fit body to fit head.
Was this your discipline and faith engaged,
Your military obedience, to dissolve
Allegiance to the acknowledged Power supreme?
And thou, sly hypocrite, who now wouldst seem
Patron of liberty, who more than thou
Once fawned, and cringed, and servilely adored
Heaven’s awful Monarch? wherefore, but in hope
To dispossess him, and thyself to reign?.

There you have Teddy Boy to a tee – fawning and cringing servilely – the lowest form of life to crawl out from under a rock.