Extracts from Volume II of My Top Shelf

COLLECTED POEMS

Philip Larkin

The Marvell Press with faber and faber, 1988; edited with an introduction by Anthony Thwaite; quarter bound and cornered in embossed leather with cloth boards, and ribbed spine, with filigree and different leather for title and author.

In my country in 1972, there was a sense of liberation, as we experienced a change in mores (or customs).  The change came not least in language, and we started to hear words that had not until then been admissible in public.  I had already got a foretaste late in the 60’s.  We had been at the MCG watching the Demons get done again, and drinking far too much beer.  One of us three, Johnny, was about to qualify in medicine.  He took us back to his East Melbourne flat to meet his wife.  Some idiot put on the TV.  We saw the then Leader of the Opposition, Mr E G Whitlam, QC, hugging a koala.  My other mate and I nearly fainted when Johnny, in front of his wife, said ‘That would be par for the fucking course.’  That sort of thing just did not happen.

Well, things were different after 1972.  A government that had been there far too long was kicked out; we ended the infamy of our involvement in Vietnam; and we saw a renaissance in our theatre and writing.  David Williamson and others made our foibles hilariously apparent.  We found out how to enjoy laughing at ourselves and to abandon bad old ring-fences of our shame.  The ‘magic word’ was all over the stage. 

Still, it came as a bit of jolt when at a small dinner party in sedate Ivanhoe in about 1974, a mate introduced me (and my wife) to the following poem:

They fuck you up, your mum and dad.
They may not mean to, but they do.
They fill you with the faults they had
And add some extra, just for you.

But they were fucked up in their turn
By fools in old-style hats and coats,
Who half the time were soppy-stern
And half at one another’s throats.

Man hands on misery to man.
It deepens like a coastal shelf.
Get out as early as you can,
And don’t have any kids yourself.

In time, I would learn that that poem (from 1971) was typical of Philip Larkin.  He came from a well off family in Coventry and went to Oxford.  He served a large part of his life as a librarian and part time jazz critic.  But his calling was to writing, which became settled on poetry.  His personal life was spotty – as is the case with most of us – and that and his personal correspondence would enable those with far less art in them to throw stones when they should really have known better. 

The poem above is blunt, no bullshit, with no affected style or fancy words.  The poem looks to tell a simple truth – about the world as it is.  Perhaps it is negative to the point of being bitter – that is very characteristic.  But what about that nasty little kicker at the end?  And if art is a lyrical reflection on the human condition, what is a poet doing denying life?

Larkin, like oysters, may be an acquired taste.  But there is a big difference between learning to swallow an oyster, and getting used to sticking your teeth right into the bloody lemon.  Take the poem Schoolmaster.

He sighed with relief.  He had got the job.  He was safe.

Putting on his gown, he prepared for the long years to come

That he saw, stretching like aisles of stone

Before him.  He prepared for the unreal life

Of exercises, marks, honour, speech days and games,

And the interesting and pretty animals that inspired it all,

And made him a god.  No, he would never fail.

Others, of course, had often spoken of the claims

Of living: they were merely desperate.

His defence of Youth and Service silenced it.

It was acted as he planned: grown old and favourite,

With most Old Boys he was quite intimate –

For though he never realised it, he

Dissolved.  (Like sugar in a cup of tea.)

That might strike you as the kind of character you might see on stage in a one-act play by Alan Bennett.  But is this just a type?  And what about the twist at the end – and that nasty little jab at being intimate?  And when does a librarian get off taking pot-shots at schoolteachers for being neurotic life preservers?

Well, looking at the bleak side of life does not of itself vitiate art – just look at Breughel, Dürer (say, the Melencolia), and Goya – and that ghastly pile of bleeding corpses in the Uffizi.  It is also as well to recall that in America they developed an enduring art form called the blues.  Mr Larkin may have been the English response. 

Home is so sad. It stays as it was left,

Shaped to the comfort of the last to go

As if to win them back. Instead, bereft

Of anyone to please, it withers so,

Having no heart to put aside the theft

And turn again to what it started as,

A joyous shot at how things ought to be,

Long fallen wide. You can see how it was:

Look at the pictures and the cutlery.

The music in the piano stool.  That vase.

Larkin adored Bessie Smith.  (He was brutally myopic about those jazz musicians who came later.  That was a shame.  The off-key tristesse of Miles Davis and Thelonious Monkshould have been right up his alley.)  When it came to Desert Island Discs in 1976, Larkin chose Bessie.  ‘It would have to be one of the jazz records, I can't live without jazz.  The Bessie Smith I think, it is so full of life and so invigorating.’  Which song?  Why, naturally, ‘I’m down in the Dumps.’

You may wish to bring to mind some such facts of life if you are unfortunate enough to step into that minefield of name-calling and labelling called criticism about this poet.  The bullshit passes my understanding, and some of the pettiness is about as edifying as watching someone scrutinise my dunny pan.  Those who think they may be above Larkin might tell us when they were last offered a Fellowship by All Souls.

And we should keep a very close eye on a toff of any description who is looking to go after an artist who wants to talk to people on the street.  We should in truth be on the watch for that very English speciality - common garden snobbery.  And there may even be a touch of more common jealousy – Larkin was hardly ever going to prove a challenge to the likes of George Clooney, but the evidence is in that Larkin was running three women at once at an age where some men are thinking of slowing down.  That kind of behaviour is calculated to lead to the expression of very strong views – from either side of the great divide.  (I have long ceased to wonder at or about the sex lives of the English – a process that set in with Wuthering Heights.)

In his introduction to this finely presented volume – which is a prized possession in my home (it cost a bloody arm and a leg) – Mr Thwaites, one of Larkin’s literary executors, comments on the intense work that Larkin put into his drafts, sometimes over years.  He also comments on the influence of Hardy, Auden and Yeats.  He quotes Larkin:

As for their [the poems’] literary interest, I think that almost any single line by Auden would be worth more than the whole lot put together…Auden’s ease and vividness were the qualities I most wished to gain.

Naturally, Larkin had morbid views about death.  He expressed some in the poem Aubade.

I work all day, and get half-drunk at night.   

Waking at four to soundless dark, I stare.   

In time the curtain-edges will grow light.   

Till then I see what’s really always there:   

Unresting death, a whole day nearer now,   

Making all thought impossible but how   

And where and when I shall myself die.   

Arid interrogation: yet the dread

Of dying, and being dead,

Flashes afresh to hold and horrify.

The mind blanks at the glare. Not in remorse   

—The good not done, the love not given, time   

Torn off unused—nor wretchedly because   

An only life can take so long to climb

Clear of its wrong beginnings, and may never;   

But at the total emptiness for ever,

The sure extinction that we travel to

And shall be lost in always. Not to be here,   

Not to be anywhere,

And soon; nothing more terrible, nothing more true.

This is a special way of being afraid

No trick dispels. Religion used to try,

That vast moth-eaten musical brocade

Created to pretend we never die,

And specious stuff that says No rational being 

Can fear a thing it will not feel, not seeing

That this is what we fear—no sight, no sound,   

No touch or taste or smell, nothing to think with,   

Nothing to love or link with,

The anaesthetic from which none come round…..

That is not a happy condition.  Any life so lived was fraught.  But out of that life came the work in this beautiful book, and for better or worse, that book is a comfort to me in my own life.

As I think reflect on it now, Philip Larkin has at least something in common with another artist considered in this book (although there are plenty of differences).  Jeffrey Smart also used his very refined technique as an artist to help us come to grips with our wholly flawed modern world.  That looks to me to be a very decent thing for either of them to have done, and one for which we should be truly grateful.

So, we might end with a happy little poem.

Day by day your estimation clocks up

Who deserves a smile and who a frown,

And girls you have to tell to pull their socks up

Are those whose pants you’d most like to pull down.

Or will some latterday font of primness deny my right to call that poem happy?  Have we put our foot down even on the birds and the bees? Or have we forgotten what it is just to have fun?

Poetry – Larkin – prudes

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

4 Forms of action (common law) and a release valve (equity)

Lawyers have a saying – hard cases make bad law.  If you stretch the law to fix an unhappy problem at the edge, you may make the law worse – if for no other reason than that you are adding to it – and making it more complicated and harder to find and apply.  But that is just how the common law developed – by applying a precedent to a similar case. 

And you do not have to be a lawyer to understand that cases arise that fairly call out for the law to be extended to deal with them – in the interests of justice overall.  So, for a long time the law hesitated before allowing someone other than the person who bought defective goods to sue them for damage suffered as a result of the negligence of the manufacturer.  But what happens when someone gets badly hurt when the wheels fall off a Buick?  Or when a lady is violently ill after partaking of a ginger beer bought for her by a friend – and the drink contained a decomposed snail?  Every law student quickly learns that the modern law of negligence began with the developments made by these two decisions.

The law has doctrines to prevent people resiling from their stated position where that would be unfair to the other side.  (They are called estoppel and waiver.)  Many Australian sailors died or were injured as a result of a naval collision – a national tragedy.  They sued the Commonwealth of Australia.  Someone sued out of time can waive the right to plead the Statute of Limitations.  The Commonwealth did so.  Then it sought to amend its defence to plead the Statute.  The case got to the High Court, and counsel for the Commonwealth knew they were in for a lacing.  Which they got.  The Commonwealth lost, but although they had no judge in their favor on the result, it looked as if it had a majority on each issue in its corner.  You could hardly say that the law was improved by this ‘hard case’.

Most cases turn within a simple moral frame.  You should not deliberately hurt another person.  You should avoid hurting another by your carelessness.  You should keep your promise.  If you are in a position of trust, you owe higher obligations of integrity. 

Most of the capital of the world ultimately depends on promises.  You would therefore think that a great mercantile nation like England would have settled its law of contract before all others.  It did not so until about the time of Napoleon.  Merchants were largely left to their own devices.  The main problems came from the preoccupation with the forms of action and the devices found by judges to escape them.

The great legal historian F W Maitland published lectures under the heading The Forms of Action at Common Law.  It has I fear bedeviled students for more than a century.  Which is a pity, because the author states the history with the clarity he was so famous for.  The barest outline will do here.

We start with the notion that the law had to seek to put an end to the vendetta.  There was a very basic criminal process.  (At the start, the law did not distinguish between criminal and civil process.)  From that process, we got the Writ of Trespass.   Think of trespass as in the Lord’s Prayer or transgressio.   It could be to the person or land or perhaps cattle or chattels.  It was like our wrong or tort. 

But the victim had to allege that the trespass was committed vi et armis – by force of arms – et contra pacem regis – against the King’s peace.  This was fundamental – a private wrong had become a public crime, which it was the function of the king to put right – to preserve his peace – his first and paramount duty.  But the technical arguments flowing from those limitations would vex litigants up to the nineteenth century.

There never was a writ (form of action) for contract or negligence or trust.  Litigants had to finesse their way around writs of Account, Covenant or Debt.  For trusts, they had to go to a completely separate court and body of law.  Can you imagine the human cost?

Historians are not agreed about how new avenues of complaint were opened.  A statute allowed Chancery clerks to issue a writ where the complaint was in consimile casu – in a similar case – as an existing writ.  These were called ‘actions on the case’ – but when you think about it, that is how the common law had to develop. 

Plaintiffs began to allege that the defendant undertook to do something – assumpsit.  This opened the way to actions for failure to deliver on a bargain.  After they began to allege a prior debt –indebitatus assumpsit – the action of contract was on foot.  The doctrine of consideration – you have to earn the right to sue – emerged over the centuries.  It can be tricky, but it is not as mystical as the Roman causa.  Finally, after the wheels came off the Buick, and the lady threw up on the snail, the law of negligence had arrived.  It had taken about 800 years.  And if you think these actions had got tricky, those relating to land were even more dense – in large part because of the feudal inheritance.

A lot of this movement on the  forensic carousel involved artifice – or fictions.  To get around technical issues, the judges allowed plaintiffs to make allegations that could not be traversed.  The wrong of conversion was for a long time called Trover (after the French trouver for ‘to find’.)  The plaintiff alleged that he ‘casually lost’ goods, that the defendant ‘found’ them, and was now refusing to hand them back.  And he would toss in a casual allegation of fraud – which is now verboten. 

You do not have to be a lawyer to see that building deceit into the system will lead to serious problems in the witness box.  And the ‘sporting theory’ of justice is not a theory at all.  When the punters believe that they are part of a game that the lawyers are playing with them, for profit – we have all lost.

But an even more fundamental split or division opened up.  Outsiders would call it schizophrenic.  The Greeks understood that you would have to be mad to think that you could make laws to meet every contingency.  But in the name of doctrinal purity, innocent people were getting badly hurt by the fraud of others or their own accidents; and the common law did not recognize trusts.  And people were being denied a remedy by a pitiless, technical common law. 

Such cases were downright unconscionable.  Could the king, as the fountain of justice, or his senior minister, the Chancellor, answer these calls of conscience and provide a remedy to those denied relief at common law?  Over time, the Chancellor developed a body of law in the Court of Chancery, a jurisprudence we know as Equity in an attempt to ease the pain left by the common law.

The Chancellor acted on the conscience of the defendant – in personam.  He developed the subpoena and the process called discovery – when parties were compelled to produce documents or answer questions on oath – where to do so might cost them their case, and their tenderness would cause discomfort between them and their lawyers. 

You will see immediately that they were much more inquisitorial than the common lawyers.  Evidence was led in writing – which has always led to serial lying.  And the equity judges were not brought back to earth by a jury.  Instead, they adumbrated refined theories on ethics and legal personality.  They became immured in worse delay and obfuscation than the system they were meant to relieve. 

There were ugly turf wars.  The equity crowd had trouble burying the notion that they looked like they felt morally and intellectually superior.  They became victims of their own unreal subtlety.  Lawyers generally know that they are in for it if the judge says that their argument is ‘subtle’, ‘nuanced’, or ‘ingenious.’ 

This has not been the case with the Whisperers – as some call them.  Too many of them in our time were up to their eye-balls in appallingly convoluted and artificial tax schemes that disgraced the profession until first the judges and then the legislators got their act together.  And I am not alone in thinking that their processes and leaning toward the inquisition have been the principal causes of the failings of our trial system.

By the time Dickens wrote novels like Bleak House, the appalling screams of the victims could no longer be ignored.  A Victorian parliament ordered the two systems to ‘fuse’ – but the notion of fusion is an invitation to the dance for some in the colonies, who might remind us of the observation of Sir Lewis Namier that the United States was a refrigerator for ideas that had passed their use-by date in the old country.

So what?  The common law is truly a thing of wonder.  But there are two ineluctable truths.  The most important person in the court is the loser.  And at least one side in these contests has to lose.  The common law was built on the blood and bones of the broke, the wounded, the mad, and the dead.  We lawyers might have a Remembrance Day in honor of the millions of our losers.

Legal history – rule of law

To follow up on yesterday’s note, I motored out to Altona Gate this Sunday morning – this was my third visit to fix a problem Telstra had created by its own incompetence and discourtesy.  I timed the run to get there just after opening time this fine morning.  I had just started reading Kim for the fifth time – what a delight and relief from the horrors of today – and took it along in case we had to ring Telstra – from Telstra – and wait for an hour or two.

The shop was shut.  (Geschslossen, or something like that, may be the German word.  I saw it  on the Gemaldegalerie in Dresden after I had spent forty hours getting there to view the putti on the Sistine Madonna.)

There are three problems for Telstra about this failure. 

First, the phone is for many, and particularly those with my health problems, an essential service.  It is not good to flirt with public safety by being capricious in how you provide such a service.

Secondly, there was no sign on the premises of the hours of opening.  And of course, there was no apology.  The word ‘sorry’ is banned from the lips of our politicians and captains of industry.

Thirdly, their website says that this store opens at 11 am on Sundays.  I checked it before I left.  It follows that Telstra has in trade or commerce, and in breach of the law, engaged in misleading and deceptive conduct.  Our law says that the business of a company is to be managed by or under the direction of the directors.  For reasons I have given, the directors of Telstra have failed properly to manage its business.  In my view the directors were involved in the contravention of the law and are personally liable to compensate people damaged by the breach.  The directors can delegate their powers – but not their responsibility.. 

So, back home I go, and try the phone again.  I got the usual flak – from the flak-catchers, and I perservered.  And, Lo!  They were shut, too.

Well, this is all very fine in the Marx Brothers’ Duck Soup, or Charlie Chaplin in The Great Dictator, but not when people are being insulted and abused by the agents of a colossus corrupted by power and greed – and I find myself on the brink of denying half a century of experience and suing the ratbags as a matter of principle.

Finally, I omitted to say yesterday that in light of my complaints about the conduct of Telstra and Rio, I had sold my shares in both.  If they could do that to others, they could do it to me.

May I commend that course to you?

Telstra – misleading conduct – liability of directors

It was silly of me keep my phone with Telstra now that I am back in the city. And am I paying for it!

My phone could take calls but I could not ring out.  Just on the day I was moving a large part of a house.

The next day I took it to a Telstra store.  Only took twenty minutes in heavy traffic to get there.  Altona Gate.  As terrifying as Highpoint.  I found it!  ‘Sorry mate.  We cannot look at your phone unless you have photo I/D’.  This from a man built like a bouncer for obvious reasons.  Their stores are festooned with warnings about customers giving vent to their despair.  It’s not done to slit your wrists on the carpet.

The problem is that the staff are not trained, and even if they were, they would be sacked if they did not act like a robot. 

You get fired at Telstra if you behave like a human being.  At one venue, a young woman, who had not the faintest idea what she was doing, said that Telstra would ask me to rate her out of 10, and that anything less than 8 was a fail.  ‘Think of me – not Telstra.’  So, I lied – and so became complicit in the bastardy of the supplier.  That is an established technique of those regimes we least admire.  One version is known as ‘fascist.’

Back I go with photo I/D.  And blood pressure issues.  Not to mention anger – which I sat on with effort.  After about 15 minutes, I was handed over to a very pleasant young man – who took about 15 more minutes to find the problem. 

Telstra had stopped the phone because a bill had not been paid.  This was because I had lost a credit card and had had to replace it – and notify about twenty merchants of the change.  Whenever this happens, the transition is smooth for any business that is properly run.  But you always have problems with at least two suppliers.  Both Vic Roads and Telstra are world leaders in incompetence and discourtesy – cruelty in truth.  (Vic Roads are a legend in the sticks – its staff get apoplectic if you suggest doing a transaction with them rather than online – another batch of humanity complicit in its own annihilation.)  

Telstra had not given any notice of the termination – before or after.  It’s like treading on an ant.  A couple of days of stress and two unnecessary calls on the delinquent – all for a simple failure of sense and decency.

So, I paid the bill there and then, and – I was told – they set up a direct debit on the new card for the future.  But – although I was on the premises of Telstra, I was told that it might take 24 hours for the payment to take effect and override the ban.  And God help anyone there who might suggest that a mere mortal might contradict the Telstra computer. 

I could avoid that by ringing Telstra, saying that the payment had been made, and quoting the receipt number.  Why not do it online there and then?  I do not know.  Again, that is probably related to the fear of letting a mere human interfere with the program.  ‘Well, why not ring 132200 here and now?’  Silly boy – that would expose us both to waiting at least an hour listening to propaganda and other lies all designed to send us to the mad house.

So, I went home.  Deflated, saddened, and no wiser.

After more than 24 hours, the promised renewal had not taken place.  Well, the chance of Telstra keeping a promise was always a long shot.  So, with grief in my heart, I rang the number that nice man at Telstra had written down for me on the receipt.  Oh, sillier, sillier boy!  How could I possibly ring out to that Telstra number when Telstra had cut the line?  This must be one of Telstra’s playful acts of mercy – to drive you mad faster.

But wait – I went to the website, got into my account – and then you run into those hurdles specifically designed to prevent one human being talking to another.  And you get more of those sickening lies about service.

But – I found a number to Telstra that I got through on!  And then I got all the attempts to drive me away.  And threats of delay.  Well, I knew an hour would be the minimum.  (Aussie Broadband is sensible – they give you the option of ringing you back.  The directors of Telstra don’t agree with that model.  It smacks of both sense and decency – and neither is their schtick.) 

So, I settled in.  Then the computer solemnly declaimed: ‘We’re sorry but this call center is now closed for the day.  Try again tomorrow.’  If you are still alive.  And not in a loony bin.  Just after 4 pm.

In the last few years, I have been taken by ambulance to emergency.  On three occasions.  It will be just a matter of time until the directors of Telstra are complicit in a death.  And their PI policies will not cover them for one consequence of that.

It’s all hilarious on Fawlty Towers. But on the ground, it is insulting, demeaning and dangerous.  It is a symptom of the decline in standards in our public life. 

We are seeing the heartless numbers men replacing humans with robots – and that is a lot worse than disheartening.  Rear Window in the AFR unloaded on Rio for similar insults to our community.  For the dreadful mess people made of the business, a committee docked bonuses by 5%. 

While we cheat on our nurses, underpay our police, and underate our teachers.

We are sliding into the numbed heartlessness of middle-class mediocrity.  The notion of leadership dies on our lips.

Telstra – decline in public life – corporate greed and discourtesy – robots.

In the back of my mind is the notion that if you as a debtor offered your creditor the local currency to pay off a debt, and the creditor declined to accept it, you could if sued plead a defence called legal tender or the like.  If that is correct, it may be neither lawful nor profitable for a bank to refuse payment in cash of a credit card debt. 

The Reserve Bank site is, as you would expect, both Delphic and cautious – and properly so: ‘a. refusal to accept legal tender in payment of an existing debt, where no other means of payment/settlement has been specified in advance, conceivably could have consequences in legal proceedings; for example, the creditor may be unable to enforce payment in any other form.’

But according to this morning’s The Age, NAB now refuses to accept cash to settle credit card debt.  The bullshit?  The bank wants people to bank online so that branch staff can ‘spend more time on more complex customer conversations, including supporting customers with education on evolving digital channels.’ 

It is just nauseating is it not?  They want to control us so that they can sack more people and leach us of what humanity we may have left so that the pitiless mongrels who run these soulless monoliths can keep more cash back from the shareholders who own the business.  Another win for Mammon.

Staff intercept people at the door to direct them to go self-service.  It is like assisted suicide.  If the staff don’t reach targets, they face a ‘performance program.’

Oh, Orwell – where is thy sting?

I refuse to invest in businesses that I think are bad for us.  The exception is the banks – because my super fund really does not have the option.  I am sad about that – and mildly guilty.  But, although I also hold shares in Woollies, I refuse point bank to buy at self-service.  And I have travelled to both Cambridge and Oxford without a newspaper because the station kiosk was not manned.

Decent people have to find ways to tell these grifters where to get off.

And instead of educating their customer, the banks might think of educating their staff.  So that then we won’t get so often met with that sullen look of frightened vacancy when the human being behind the counter fears they may have been invited to step beyond the role of scripted robot. 

When I was acting for banks in the eighties who had tipped farmers into Swiss francs and bankruptcy, the banks had to settle because most of the managers didn’t know the difference between a Swiss franc and a Swiss tart.

And that was when banks had real managers.  Since then, it has all been downhill.

Banking – legal tender – rule by robots – education of bank staff

Balcony over Jerusalem, John Lyons, 2017

The problems with the Middle East, as in most trouble spots in the world, start with God.  From time to time, the English and American peoples have indulged in the conceit of thinking that they were the chosen people.  No outsider took them seriously. 

But one people claims the right to that title and to have it direct from God.  And their source in scripture says that God backed up his promise of land to his chosen people by helping them to annihilate any other people who got in their way.  So, their claim to land is not just divinely granted; it has been won with blood and the sword.  Not all that unlike the way another faith would be said to have spread from that part of the world – by the sword.

Does more than say one in ten Australians who might be fairly described as Christian – a phrase that does not extend to this lapsed Protestant – believe in the literal truth of those propositions?  I think not – if only because you have to be mad to believe in the literal truth of the creation myth. 

But – truth is not a criterion of faith, and it does appear that most people of one faith in Israel believe that those propositions hold good for them.  And it is hard if not impossible to deal with people who have God in their corner, and who are convinced that their title to land comes directly from God.

Zealots or puritans can be a pest in any faith.  In The House of Islam, Ed Husain says: ‘How can mainstream Muslims engage in dialogue and try to dissuade Salafis who want to kill those who disagree with them?  They can’t.’

But what a falling off was there to find that God plays favourites among his children?  If you want to know just how venomous that can be, imagine giving a ukulele to each of your two children for Christmas – and one is obviously better than the other.  Of if God calmly announced – ‘By the way – I am a Collingwood supporter.’  Those suggestions are so dreadful that they featured in my own loss of faith.

When people believe that they are different to other people, they rarely believe that the others got the better deal in life.  But when they believe that they have been chosen by God, it must be nigh on impossible for them not to believe that they are in some way more blessed, better off, or superior to other people. 

Allowing that I substitute ‘people’ for another word, we come then to the condition described in the Compact English Oxford Dictionary (2000) as follows: ‘1 the belief that each people has certain qualities or abilities giving rise to the view that some peoples are better than others 2 discrimination against or hostility towards other peoples.’

That is one of the two subjects that claimed my attention in Balcony over Jerusalem, by John Lyons.  Mr Lyons looks to me to have a real vocation and capacity for his chosen profession.  He does honour to journalism.  He writes very well.  The book is decently structured and well presented.  It oozes credibility and it reeks of disturbing truths. 

What we get is a picture of the dominant people in Israel treating other people with contempt and cruelty.  The author comes to the same conclusion as friends of mine of that faith – unless the people directing Israel change their ways, that nation is morally doomed.

There is nothing new in any if that.  It is discussed openly and candidly on a daily basis in Israel, a nation proud of its open and democratic structure – at least until recently.  But that takes us to the second and for me more disturbing subject of the book.  What happens when you raise these issues outside the Promised Land – in Australia, for example?

About twenty years ago, I had some dealings with Sharan Burrow, then the President of the ACTU.  Sharan is one of the most sensible and decent people I have met in public life.  You quickly sense that you can talk sensibly and frankly with her and that you will get things done.  (The last time I saw her on television, she was advising Spanish coal miners.  She remarked, coolly enough, that there are no jobs on a dead planet.)  Sharan told me that she had given up speaking about Israel.  She had enough strife on her plate without being subjected to the orchestrated cacophony she was bound to get in response. 

That remark stayed with me.  It struck me as being at best odd that someone in a free country could be bludgeoned into silence by those claiming to act in the interests of another country that claims to be free.  Just what were those people scared of?  Is it really the case that I have more freedom to talk about the governance of Israel in Israel than I do in my own country?

Mr Lyons documents this process in scrupulous detail. 

First, people in Israel and their agents in Australia encourage Australian journalists coming to comment on the Middle East to come to Israel – just so that they can be better informed, you understand.  Standard practice, my dear fellow.  All expenses paid, and none spared.  It does sound rather like the treatment that the Crown Prince meted out to the Trump menagerie – and what a great investment that was!  It is on a moral par with a bank customer shouting his bank manager and his wife dinner for two at the Tour d’Argent – with first class return tickets to Paris.  Subtlety is not on the menu.  But, then again, bribery and corruption come with the geography in that part of the world.  Prime ministers and their wives are particularly susceptible.

But if the soft sell does not succeed in colouring our reporting on Israel, especially the settlements, then those defending the status quo go on the attack.  And they do so by their agents in Australia in the manner that Sharan Burrow described to me and which Mr Lyons recounts.  In doing so, he identifies one or two people who as a result look to have crossed over to the side of those governing Israel – to the detriment of at least one Australian colleague.

So, we have people claiming to act in the interests of a foreign power influencing political discussion in Australia.  That is not the first time for us.  But ‘influence’ may not be the right word.  Mr Lyons speaks of many cases of ‘self-censorship’ – both here and the UK, and of course the US. 

Last century, this nation was blighted by what looked to be blood feuds between Catholics and Protestants – but the impact of Ireland as a national entity was not a great factor.  Nor was it when migrants from the Balkans imported some of their strife here.  But Mr Lyons gives details of how agents of a foreign power are affecting our political discussion and process.

This is all very unsettling.  Is it a matter for ASIO? 

Under its act of 1979, ASIO is to ‘obtain, correlate and evaluate intelligence relative to security’ (s. 17).  ‘Security’ is defined (in s.4) to include ‘acts of foreign interference.’  They in turn are defined to include ‘activities relating to Australia that are carried on by or on behalf of or are directed or subsidised by or undertaken in active collaboration with a foreign power being activities that are …. clandestine and deceptive and …are carried on for the purpose of affecting political or governmental processes…or are otherwise detrimental to the interests of Australia.’

You can decide for yourself.  It does not matter if the foreign power is seen to be benign or malign.  ‘Clandestine’ sounds sinister, but you would have to be naïve to believe that all contacts relating to agents and journalists are arranged above the table.  The reference to ‘subsidies’ may be of interest on the paid trips – which the media owners should just ban.  The interference may be with ‘political’ as well as ‘governmental’ purposes.  One Australian minister was persuaded to alter a statement about Israel’s nuclear capacity, and another minister was driven to descant upon the difference between ‘Occupied’ and ‘occupied.’  If she was in doubt, she could have stepped outside and asked the First Nations people in their tents how it feels to be unlawfully occupied.  And the catch-all in the definition is so broad, it could have brought tears to the eyes of Senator McCarthy.

Now, I don’t know what ASIO thinks of these agents, but there’s one thing I do know.  I don’t want birdies like foreign agents fluffing around in my nest.  And that’s putting it very softly.  I have no doubt that if the interference was going from Melbourne to Jerusalem or Tel Aviv, the reaction would make Krakatoa sound placid.

The work of Mr Lyons is invaluable in showing us the hopeless misery and misgovernment across the whole of the Middle East, not least Israel.  It also illustrates the processes infecting our public life here.

Mr Lyons contends that the Netanyahu governments sought to sink the Oslo accords and entrench the settlements so that they would become de facto irrecoverable.  Our First Nations people know all about that – and they and the whole of this nation are paying a fearful price as a result.  

Mr Lyons points to problems in the settlements arising from recent imports – from, say, Russia.  They come from a country which has never been decently governed in the whole of its history, and which knows nothing of human rights or the rule of law.  Now it is their time to walk all over other and lesser people and, with God on their side, zealously lead their new nation into outlawry.  Commissars or Cossacks?  They are all equally unlovely, and they might remind us of the detritus that the English unloaded here on the indigenous peoples in and after 1788.

Do the settlers and their supporters – both in Israel and here – not realise that there is something not just wrong, but downright evil about occupying land owned – owned – by others, in order to achieve living room – the German word is lebensraum – on the footing that their view of their place in history, and their convincing military supremacy, allows them to do just that? 

If they are in any doubt, they should ask the First Nations peoples here or in the US, Canada, New Zealand or just about anyone in Africa south of the Sahara.  The worst crimes against humanity were committed in South America, where lands and gold were seized and natives massacred in the name of Christ, and the Holy Father was good enough to consent to preside over a geographic division of the spoils.

But we, here in Australia, have firsthand knowledge of the guilt that comes with living off stolen land.  We can wave our tawdry flags as much as we like, but we will never rid ourselves of the stain that comes with a guilt laden inheritance.

And now it looks as if the indigenous peoples of Palestine are being asked to pay for the sins of others.  History makes plain how dangerous it is when people seek to hold one generation responsible for the sins of a prior generation.

But here we must observe a distinction that was not apparent to our former prime minister John Howard when he opposed saying sorry to our First Nations.  It is very wrong to seek to hold one generation morally responsible for the sins of their parents and ancestors.  But the political responsibility of a nation is altogether different.  I entirely concur in the opinion of Hannah Arendt that a nation has to accept political responsibility for the crimes of its predecessors.  And I think that the people of the nations of Germany and Japan now accept that judgment too.  It is just one factor arising from our scarred past that we here in Australia have to take into account.

As it is, I can see dark days ahead for people here when their children will have to live with the denunciations made by their parents.  And at about that time, they will start to be haunted by the question that has tormented Catholics in English speaking lands since the failed invasion by the Spanish Armada: ‘Just whose side are you on?’  This was part of the cancer that blighted Ireland and infected us here.  We don’t need another strain of imported threat to our peace.

This clamp down on criticism of Israel, or any discussion of the settlements, serves to foster the illusion that when political discussion comes to Israel, there are some no-go areas – untouchables, if you like.  The short answer is: ‘We don’t do caste, here, Mate.  If you must have it, the nearest stop is India.  But there is religious strife up there.  The current Hindu nationalist regime is clamping down on a minority.  All two hundred million of them.  Does that perhaps ring a bell?’

Allow me one other example of the ‘untouchable syndrome.’  If I criticise the Australian Prime Minister, it would be ludicrous to suggest that people can infer from that criticism that I regard Australians, white people, Pentecostals, or people of any faith, as in some way inferior.  But had I criticised Mr Netanyahu, it would have been just a matter of time before I had copped precisely that sort of inane response. 

It is not just a shabby smear from the department of dirty tricks.  It is a barefaced lie uttered as a form of moral blackmail by people who know better.  And it debases the currency of those who might otherwise have a fair dinkum claim to be treated as victims of actual adverse discrimination. 

And that is why I refuse to use the two terms most often invoked in this context.  The frequency of their abuse has debased their currency.  And that I think is another failing for which future generations may be called on to answer for.  That is very sad.  It is here that people invoke the observation of Mark Twain, that if history does not repeat itself, it occasionally rhymes.

The nation of Israel was created because most of the world thought it should be after one people sought to annihilate another.  It now looks like imploding when most of the world thinks it should because one people is treating another as inferior.  Abraham Lincoln asked whether a nation conceived as his was could long endure.  The people of Israel might ask the same question.  The issue is the same – a refusal to recognise the dignity of other people just because they are different.  The text, for those who need one, is at the beginning of the book of Ecclesiastes.

The tragedy that led to the creation of Israel arose when a civilised nation empowered its leader to murder another people.  (And one other people was to be killed or enslaved.)  The evil is beyond human understanding.  It also distorts our reading of history.  Some say the French emperor was not as evil as the German fϋhrer.  That issue might be left to God, but the bellicose vanity of Napoleon did lead to the deaths of five million people. 

Such is the potency of evil that mere goodness can unsettleus.  When Satan saw us, he ‘felt how awful goodness is.’    John Claggart could not live with the innocence and beauty of the hero of Billy Budd.  Herman Melville wrote: ‘The Pharisee is the Guy Fawkes prowling in the hid chambers underlying the Claggarts’.

The tragedy currently being endured by the people of Palestine may seem pale compared to that which led to the birth of Israel – unless you happen to be one of the victims – but the ultimate cause is the same – one people treating another as inferior.  And the millions of their own people killed by Stalin and Mao are also beyond count and human understanding.  That is the problem that Professor Tim Snyder faced in comparing the evil wrought by the two worst murderers of last century.  The numbers sabotage the moral compass, and mock the insight of Hamlet that there is a special providence in the fall of a sparrow

So, the evil that led to the birth of Israel may lead to its passing.  That is not irony.  It is history.  It is not facile to say that the difference is in the numbers.  The whole point is that each and every person has his or her own worth or dignity.  You can get that from the Sermon on the Mount or the enlightenment of Kant.  And there is no room for exceptionalism in describing how different people have been diminished by the violation of that principle.

The horror, the evil that lurks in us all, has always been with us.  Hannah Arendt saw that.  The Romans threw Christians to the lions.  Christian Crusaders under guidance and promises from Rome got into training to extinguish Islam by massacring other unbelievers on the way.  They, too, entered the Holy Land in the name of God.  And they indulged in an orgy of slaughter when they got to Jerusalem.  This was the insight of Arendt: ‘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.’

Edward Gibbon recorded it all.  Thomas Carlyle saw that we could all slip back to the primeval slime at any time.  He understood the horror and madness in us all.  Auschwitz did not come from nowhere.  Between 1789 and 1793, another nation thought to be civilised, France descended into Hades.

One other thing, or rather two other things, we will still mention, and no more:  the blond perukes; the Tannery at Meudon.  Great talkers of these Perruques Blondes: O reader, they are made from the Heads of Guillotined Women; the locks of a Duchess, in this way, may come to cover the scalp of a cordwainer, her blonde German Frankism his black Gaelic poll, if it be bald.  Or they may be work affectionately, as relics, rendering one suspect?  Citizens use them, not without mockery; of a rather cannibal sort.  ….  Still deeper into one’s heart goes that Tannery at Meudon; … ‘There was a tannery of Human Skins; such of the Guillotine as seem worthy flaying: of which perfectly good wash-leather was made; for bleaches and other uses.  The skin of the men, he remarks, was superior in toughness (consistance) and quality of shamoy; that of the women was good for almost nothing, being so soft in texture …’  Alas, then, is man’s civilisation only a wrappage, through which the savage nature in him can still burst, infernal as ever?  Nature still makes him: and has an Infernal in her as well as a Celestial.

So, God’s fingerprints are all over the tragedy of the Middle East.  And they are spreading to here.  We knew that, but as I settle down in my own twilight and last post, I have sadly lost patience with any manifestation of God here on earth. 

I look back at the misery caused by sexual abuse and the attempt to defraud the victims of their compensation.  Then you see the rift in the fabric of decency wrought by Evangelicals in the U S, and the even more bizarre Christian Zionists in Israel and the U S, and the most recent attempted assault on our most vulnerable young people by Pentecostals and that dreadful outfit called the Australian Christian Lobby.  And that’s before you get to the schism in Islam that blights the Middle East and North of Africa, or the evil being wrought by Hindus and Buddhists in Asia.  And it’s also forgetting that frightful lie about Original Sin, that has been used to hold down half of the human race since.  And so it goes.  I am fed up with all religion.  Or, as a mate says – enough already! 

And all this comes to you from someone who now reads in the press that his prime minister has dragged his wife on to national television to tell a breathless audience that he prays for miracles every day.  This was all for politics of course; like Martin Luther, he could do no other.  But what on earth made him think, if he did, that God might take an interest in Australian politics?

People of faith believe that there is something off-color, at best, with all faiths other than their own.  My only difference is that I have no exception. 

Religious people here in my view have had far too much to say about how the rest of us – a very large majority – want to live.  On, say, abortion, same sex marriage, gay and trans people, and assisted dying.  You are all free to stay your own course between yourselves, but can you at least keep your dogma and prescriptions and proscriptions and crosses and curses and miracles and grudges and wars out of my life?

And in the name of God, may I at least be permitted to die in the manner I choose?  The only regret that I have about dying is that, by definition, I will not live to feel that immense surge of relief when the lights finally go out.

Israel – foreign interference – ASIO – Australian politics – religion in politics – Israeli lobby – Australian Christian Lobby

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

3 The rule of law

In the events surrounding the fall of the Bastille, the government could lock away its opponents simply by giving them a letter saying that the king willed it (a lettre de cachet; Depar le Roy, Car le Roy le veult).  It was a symptom of the absolute power of a king in a monarchy that was said to be unlimited.  The king was said to be absolved from all the laws – after the model of Roman emperors.  (Indeed, at one time Louis XVI expressed his exasperation that his mere say-so did not create a law.)  The person seized had no judicial remedy.  He could just rot in jail like the Count of Monte Christo.  Rulers in other parts of Europe exercised or claimed similar powers.  That had not been the case in England for centuries.  And this was so because of two instruments of their laws that we now come to.

When the Mafia dons got together to make the peace in The Godfather series, things got nasty.  Things had got very nasty between King John, who would be roughly handled by Shakespeare, and his barons before they got together to make the peace in 1215 at a place called Runnymede – the peace of which is now blasted by activity at the nearby Heathrow.  They had been engaged in a form of civil war.  This charter – the Great Charter, or Magna Carta – contained the peace treaty or terms of settlement between the parties. 

The compact of the parties contained mutual promises and undertakings given in the most solemn manner known to the law and God, which were intended to be legally binding on the parties, and which contained contractual rights of remedy if at least one party failed to observe his side of the compact.  Put to one side what the law then said or provided for such undertakings – this was what we call a contract.  That statement is unequivocal. 

The Charter set out the terms on which the king held the crown and would rule England.  It was like the service agreement of a hot shot CEO of a huge public company like BHP or Shell.  It would be supplemented nearly 500 years later by another service agreement between the people and the crown that would be called the Bill of Rights. 

When Winston Churchill referred to the great title deeds of western civilization, he would certainly have had these two in mind.  But the first is clearly numero uno.  It is for me far and away the most significant tablet of the law ever made.  The Americans probably share that view by the reverence that they pay to it at its shrine in the Smithsonian in Washington.

Much in the English fashion, they would say that the Charter said nothing new – it just confirmed ancient liberties or freedoms.  That proposition suggests what might be called the Continental view – that freedoms or liberties have to be granted to us by government.  We take the contrary view – we know that we are free to act unless and until a government, after due process, makes a law that infringes that freedom – and, if necessary, the government is held by a competent court to have acted within its constitutional powers in doing so.

So much of the history of political evolution has consisted of people on one rung of power curbing the powers of the person on the next rung up – and then slamming the door on all those under them, because they do not want to see their power being diluted by being shared with those they see below them.  That is just why the American, French and Russian Revolutions miscarried.  It would take the English more than 200 years to spread power across the people after what they call their Glorious Revolution.

This was not the case with the barons. They expressly stipulated that all free men would have the benefit of the Charter, and they also expressly subjected themselves to those obligations in favor of those under them that they had extracted from the king in their favor.

Any constitutional document is only good as it is found to be over time.  The most important issue is: Does it work? 

This Charter would become the legal Bible of the English – something you went to for binding authority in a crunch issue.  Whatever they may have meant in medieval England, two clauses would come to have the status of holy writ.  ‘39. No free man shall be taken or imprisoned or diseised [deprived of property] or outlawed or exiled or in any way ruined, nor will be go or send against him, except by the lawful judgment of his peers or by the law of the land.  40.  To no one will we sell, to none will we deny or delay right or justice.’  It sounds just as good in Latin.

Here is ‘due process’, a phrase that would come into a later version of the Charter, and which is a lynchpin of the U S Bill of Rights.  The king could not go or send against you by a mere letter just because he felt like it.  He had to do so ‘by the law of the land,’ and by ‘the lawful judgment’ of the peers of the citizen affected.  From that time on, a lettre de cachet was out of the question.  And you can easily imagine the fillip to trial by jury as it evolved – and which it is still felt to be nigh on a sacred right in the U S.

Well, the barons knew that they were treating with a rat.  They could hardly sue the king in his own court.  How could they protect themselves when he ratted? 

If you borrow money on your house, the bank will sell you up if you default.  If you are a company, they will send in receivers and managers to manage the business.  The barons chose this option (clause 61).  If the king defaulted, 25 barons could go on to his castles and, for the want of a better term, raise hell – ‘ourselves and our queen excepted.’ 

Vladimir Putin might blanch at that.  It shows just how much power that the barons had over John.  And being a rat, he beetled straight off to Rome and got the deal annulled.  (We will come back to that foreign intervention on an issue of English sovereignty.) 

That clause was not in later versions of the Charter, which got to be regularly reenacted, and we will see how the English dealt with the issue of enforcement in the Bill of Rights.  But the thing about the Charter is that it happened.  The king had had to negotiate and the contract that resulted set out the terms on which he held the crown.  From then on, kings might romance about Divine Right, but when the king was only there by the leave if his subjects, that was just moonshine.  Richard II would not be the only king the English deposed for forgetting that.

The established doctrine would become: the king was under the law because the law made the king.  That doctrine was incomprehensible to the Bourbons, but zealous lawyers brought up on the faith of Magna Carta would wave it in the faces of the power-hungry Stuarts like mad mullahs with the Quran before an alarmed Ayatollah.

Magna Carta was not a declaration of independence made by the people, but it was an admission by the king of his dependence on the people.  It was the communal equivalent of the discovery of the wheel.  Or even stealing fire from the gods.  Prometheus would have loved it.

Another legal process had been begun before all this.  You will by now not be surprised to learn that the process came first and the rationalization later.  First the writ; then the theory – and the congratulations. 

The writ was called habeas corpus.  That Latin phrase means ‘you have the body.’  If someone is taken into custody, they can serve the custodian with such a writ, and that person must then account to a judge by saying under what law and by what process the person is held.  The writ would be refined and enlarged and secured by statute over the centuries so that it became part of the English constitution.  It was on the on the return of one such writ that Lord Mansfield ordered the release of a slave on the footing that such a condition was against the common law of England.

So, here at last is the chance for civilization.  No one is above the law.  All are equal before it.  And government can only go or send against you after due process and under the law. 

Magna Carta and old English acts about habeas corpus are still part of the law of Victoria.  One justice of its Supreme Court is rostered to hear urgent applications.  To this day in Melbourne, all such business of the court stops immediately if counsel informs the court that they have an issue involving the liberty of the subject.

That, to put it softly, is quite some inheritance.  And you notice it immediately when you step off a plane in a place that has never known anything like such laws.  It is chilling – like being launched into space and losing all gravity and being deprived of air.

Finally, a couple of other acorns fell from the Charter.  Clause 14 begins ‘And in order to have the common counsel for assessing aid…,’ the king will summon his principal advisers.  Here is the germ of the idea that the king should only act on advice from those representing the people, and that he could not collect aid – impose a tax – without their consent.  That would the ground on which the English settled with those who succeeded the Stuarts. 

Then the default clause said that the barons could go against the king ‘together with the community of the entire country’ – cum commune totius regius.  Commune!  There was a word all Europe would come to marvel at and loathe or salute – in Paris in 1793, in just about every capital in Europe in 1848, and in St Petersburg in 1917. 

Then we might reflect on remarks of the great French historian, Marc Bloch, in his wonderful work, Feudal Society: ‘In feudal society, the oath of aid and ‘friendship’ had figured from the beginning as some of the main elements of the system.  But it was an engagement between inferior and superior, which made the one the subject of the other.  The distinctive feature of the communal oath, on the other hand, was that it united equals….  It was there in the commune that the really revolutionary ferment was to be seen, with its violent hostility to a stratified society.   The originality of the latter [feudal] system consisted in the emphasis it placed on the idea of an agreement capable of binding the rulers; and in this way, oppressive as it may have been to the poor, it has in truth bequeathed to our Western civilization something with which we still desire to live.’ 

Those comments are French, and Gallic fervor can unsettle the English, but an occasional shot of it does them no harm.

Legal history – Magna Carta – rule of law.

The story of English law

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

2

The Norman invasion and settlement

England had been divided both tribally and politically – a drab, uneasy, damp collage.  The Normans added to the ethnic mix, but they brought, by force of arms, unity under one English crown.  That crown would be buffeted by rivalries under great magnates, ending with the agony of the Wars of the Roses, and it would be in suspension during the epic duels over sovereignty in the reigns of the Stuarts, but back in the eleventh century, it was like taking a small amateur cricket club and turning it into a fully professional national outfit with all the bells and whistles.  And hold on to the analogy of the cricket club – because in so many ways such a club conforms to the spirit of the governance of England – except that not so many national dreams would be turned into ashes.

Compare, then, this vibrant club to Europe.  We are talking about events taking place more than a millennium ago – in a nation created out of invasions.  France would not have a law common to all France until Napoleon, and it was only well after that that the nations of Italy and Germany came into being.  So, here is another ground for seeing England as different to and far more precocious than the emerging Europe.

Anglo-Saxon governance was good at the local level.  The English would aways prove very adept at getting value from their better people.  But justice back then was not so good at that level – although they certainly appear to have been able to dish out a rough kind of justice uninhibited by the kind of formalism that would beset English law.

And it was now time for the crown to resume its role as the fountain of justice to be administered by what in the Strand are still called the Royal Courts of Justice. 

The process began with a writ.  We all know what that is.  It’s the kind of ‘bluey’ you disregard at your peril (unless you are asset free and bullet proof).  Still today in Melbourne you can be served with a command issued in the name of the Queen that you appear in her court to answer the complaint of the person aggrieved.  In many contexts, it is the continuation of negotiations by other means (with apologies to Clausewitz).  This is a facility of government used to preserve the peace by resolving disputes.  Nations that do not get that right might forfeit the right to the label of ‘civilised.’

Henry II comes down to us as responsible for the murder of Beckett, but he and Edward I were founding fathers of the English legal structures.  They developed the processes by which a law common to all England would come to be administered through their courts.

But the phrase ‘common law’ has a much wider reach.  We see it when judges decide cases by applying the doctrine of precedent to their previous decisions.  A course of decisions then is found to contain a statement of the law – a principle derived from a ‘line of authority’. 

Someone driving a stagecoach may be liable at common law for damage caused by his negligent driving.  Would that precedent cover the driver of a car, or a ten-ton truck?  A farrier may be liable for a bad shoe on my horse.  What if I have not promised to pay him – expressly or impliedly (what our law calls a contract not supported by consideration)?  Is a map-maker who gets one line wrong liable for the loss of a ship the size of the Titanic?  Does a power to regulate broadcasting extend to TV?  Satellite navigation instruments?  And so it goes.

That process continues today in a court near you after, say, 900 years.  It has been accompanied by supposition and artifice, often properly described as ‘fictions’ – yes, fiction is the word in the books – but while the English may have been coy, they have never been shy, about gilding the lily.

When people start laying down their laws, historians tell us that they tend to get preoccupied with forms and technicalities.  That phase is described as formalism.  Moses and other law givers certainly went into vast technical detail, some of which is still applied by those of a more orthodox caste of thought. 

Well, the English would go through a phase of formalism for about 600 years.  It could well have choked the common law to death in many ways.  There would be two main avenues of relief – the legal system would provide a process and courts to operate relief valves as safeguards; and the parliament intervened at the end to scrap the worst excesses of the judges.

The problem set in a little like this.  If you want something from government, you go to the departmental counter – or worse, a website – and you brace yourself for indoctrination intoned about different kinds of forms or boxes to tick or mandatory fields.  You are told that if you don’t get the right form, it’s game over.  You try to follow the way of other winners.  Precedent took the lead from the start. 

This is about how what we now call the common law got started in the period after Magna Carta – about say150 years after the Norman invasion.  The person going to court asks the court clerks to issue a writ – which is a directive from the king to the person sued.  But the most important thing was the ‘form of action’.  It depended on the kind of claim – trespass to the person (assault), breach of a sealed promise, or a failure by a farrier properly to shoe a horse, and so on.  Once committed, the plaintiff could not change his mind – or his form.  He must follow the rules of the form of game he has chosen.  Some might think of the smarmy security of the in-crowd in Yes, Minister.  The poor litigant may have thought of Russian roulette.

Lawyers got involved in arguing about the forms.  People made notes of those arguments.  Those notes make up a large part of our first law reports.  They are called the Year Books – running from 1268 to 1535.  Although most arguments turned on matters of form, some substantive issues arose.  What is a legal contract?  What wrongs can you sue for?  This led Sir Henry Maine to say that the substantive laws were ‘secreted in the interstices of procedure’. 

There is a real point here.  It was typical of the English that matters of great principle would come from petty arguments about process – as if by accident.  It is as if the design was to avoid any active intervention by the judge.  We saw a similar attitude to the way the issue would be decided.  God, not the judge, would decide – by the mechanical operation of the ordeal, trial by battle, or collecting character evidence.  The whole process was meant to operate like an impersonal conveyor belt. 

Well, we know that all that had to change.  And it did – by the development of another process that the Normans brought with them – after the Church got squeamish about the other techniques.

It had been the custom of the Norman kings to determine how affairs were proceeding in their realm by calling together people of substance from the neighborhood and who might be expected to have knowledge of the matter inquired of to come together and answer questions – on their oath.  This was the process invoked by William I to assess the worth of his conquest.  That led to the famous Domesday Book. 

But might not that or a related process be invoked to answer the question: Did the accused murder the deceased?  So, here we see the germ of another jewel in the English constitutional crown – trial by jury. 

That process would also take hundreds of years, in the course of which any special knowledge of a juror would become the reverse of a qualification to sit in judgment on the issue before the court.  This is because the Normans had developed the process as an administrative, not a judicial inquiry.  And such an inquiry, like our Royal Commissions now, is inquisitorial in nature.  But everyone knows that our trial process is the accusatory model – to which we have been wedded for centuries.  And which we will go into the trenches to defend and keep.

Before the end of the thirteenth century, we get reports of cases that record ‘Issue to the country.’  In later trials, after the indictment was read, the court would inform the jury: ‘To which charge the accused pleads not guilty, and puts himself upon his country, which country you are.’

So, here is another fork in the roads taken by the English and those across the Channel.  And it has consequences.  There is a real difference in the world views behind the inquisitorial and accusatory modes of trial.  Maitland offered these lapidary remarks:

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

That is, or should be, still the case today, although for some whizz kids, the restraint is too much.

But there was more juristic pollen in the air at this time in the High Middle Ages.  We saw that kings would consult with the right people and take advice.  This goes back to the Witan in the German forest.   As the system settles and expands in what is now England, those who have what we now call skin in the game will want to be consulted – and they will look to find ways to ensure, so far as they can, that the king should consult them – before, say, declaring a war – that they will have to fight.  And pay for.  By, say, a tax.

These are weighty issues not just for England but for humanity.  They will not be resolved by the English until the end of the seventeenth century.  (But except for western Europe and the former colonies of England, there are still not many places where they have been resolved.)  By the time of Magna Carta, there are mentions of advisers coming together to talk.  A colloquy, perhaps; never a symposium – that would be far too intellectual for the English.  Perhaps something from the French verb ‘to speak’ – parler.  The French would have their parlements.  The English might call theirs parliaments.

Now, these are changes of great moment, but they appear to have one thing in common.  None of them was planned or arrived at by design.  Each fell into place as if by accident.  Did the English just have what Napoleon prized most in his generals – good luck?  Or was it a state of mind?

History – common law – constititution

Passing Bull 298 – Madness in England

If the Prime Minister of Australia is a figure of fun, the English have a real clown.  The FT quoted a Turkish proverb: ‘If a clown enters the palace, he does not become king; the palace becomes a circus.’  Some of Johnson’s Eton mates are slow at this.

In commenting on the attack by Boris on Keir Starmer, one Tory said that Boris was stressing that people are responsible for those under them.  Like those having parties in Downing St.

Then Boris uttered the great fallacy in the Commons.  ‘You are a lawyer, not a leader.’  Is it impossible to be both?

Another Tory attacked Sunak.  ‘Rishi has been far too blatant this week.  He’s a bit like a five year-old boy who tells the girl he likes to ‘please, please’ not kiss him.’  Another said ‘He has behaved in a childish, immature and petulant way.  No one will ever elect someone so duplicitous as leader.’  That’s just what you did, Mate.’

Carrie is under fire for running the place.  One Tory said this was unkind to someone who had just had a baby.  Occupational hazard, my dear.

But the prize for treachery goes to Michael Gove, who has real form. He said the attacks on Carrie were sexist!  ‘If Boris Johnson has given Carrie too much leeway, that’s sort of his fault.  He is the person in charge.  He is the Prime Minister.’

Judas blushed.

Bloopers

Are we not supposed to be a resilient nation? A people characterised by self-reliance, egalitarianism and a healthy disrespect for authority?

Chris Kenny, The Weekend Australian, 24-25 July 2021.

Not really.  We started as a British colony – a jail, in truth – and we have barely moved.

Boris – Morrison – hypocrisy – Westminster System

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

1

The German Conquest

The world is very old, but most of its peoples are now governed by legal systems that have come down from either Rome or England.  Ours (Australia’s) comes from the English, and its story is our present subject.

What we call Europe was dominated in the ancient world first by Greece and then by Rome.  The Greeks laid the foundations of logic and the arts, but they were hopeless at politics (a word we got from them), and their laws have had little impact on us.  The Romans were not so concerned with the intellect or the arts, but they created political systems in ruling the West and they developed a very sophisticated body of laws. 

The religion of each now looks both primitive and banal – about level, say, with voodoo.  Except for Rome near the end, neither people grasped the notion of the dignity that each of us has because we are human.  Each was based on slavery and a protection racket called empire, and the notion that either could be said to be civilized was one of the more curious conceits of the old Oxbridge.

The Romans ruled the land known now as Britain for four centuries from about the start of the Common Era to the start of the fifth century – nearly twice the time that the white people have been running Australia.  Very little effect of their rule is now left – and even less of that of the indigenous people (who don’t get a good press in Cymbeline). 

Instead, the character of the English nation began to take shape as Angles and Saxons settled there – although the natives would have looked on their incursions as invasions (as our First Nations look on the English who came here – ‘waterborne parasites’ according to one Cambridge lecturer).  They were followed by Scandinavian raiders and settlers.  The word ‘English’ comes from the first part of the term Anglo-Saxon.

The Greeks were fearful snobs and the Romans ran them a close second.  They turned up their noses at the Germans – in much the same way that Churchill would do with the Huns.  But the great historian Tacitus gave the Germans a tick in his Germania, and those Germans would be at the head of the new breeds bringing down old Rome.  There is a pleasing irony in their English descendants’ blocking their reception of Roman law in England – and then, much later, repudiating everything that Rome stood for as the head of one universal church.  But for the pesky independence of Germans turned English, the world would now look very different.

The fall of Rome led to a period of fear and uncertainty that we know as the Dark Age.  You can read about it in Beowulf.  It was as if the lights of Europe had all been turned out.  To whom would people look for their protection?  From where would they go for their laws?

Well, whatever else they did, they did not do what most of Europe would wind up doing and import Roman law.  They would go it alone. 

People would later seek protection under what we now call the feudal system.  (The phrase had not yet been invented – nor had the word ‘Europe’.)  ‘I will be your man if you will look after me’.  The scheme is accurately pictured in the beginning of The Godfather.  The Mafia thrives on government failure.

We now think that the first laws dealt with the conflicts that inevitably arise when people cross paths and then seek to work the land in a common area.  They need laws to control the vendetta – the issue identified in the Oresteia – and the protection of interests in land.  The feudal system became very intricate and this called for refinement by law-makers. 

The great jurist Oliver Wendell Holmes said: ‘It is commonly known that the early forms of legal procedure were grounded in vengeance.  Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law began in that way. …. Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.’

If those were the ends of the laws, what were the means?  You don’t have to have studied Pavlov’s dog to know that when people are asked what they should do next, they ask what others did before then.  Is there a precedent?  People get into a way of doing things so that it becomes a custom – that may in time harden into law. 

Take the word decree.  When pronounced by a judge, it determines the rights of the parties.  It looks backward – although it may be treated as a precedent in the future.  But if pronounced by an emperor or dictator, it applies to everyone in what they do in the future.  It is delivered as a law.

The Anglo-Saxons ruled through their kings.  The king held all the powers of making, executing and adjudicating on the laws.  His household became known as his court, and he would seek advice from his trusted advisers.  This we are told was the custom of Germanic chiefs from time immemorial. 

Over time, those closest to the king achieved a separate standing and office over others.  They would defend his realm, advise him on laws, and adjudicate disputes in his name.  The rot set in when these preferred people became an aristocracy as hereditary as the crown.  A large part of our story will deal with how the aristocrats served to pull the teeth of the crown – before it became their turn to have their own teeth pulled. 

The Anglo-Saxon kings made written laws called dooms ­but the crown would not flower until a new royal line took over the throne.

Dispute resolution was brutal and supernatural.  The issue was determined not by judges, but by God.  His word was revealed by a gruesome ordeal or trial by battle, or a process called ‘wager of law’ – signing up people to vouch for your credibility.  All those terms would sound alarmingly modern to litigants now. 

Christianity would soften the system a little, and add teeth to the oath when people believed in the fires of hell, but it all looks very primitive to us.  And Christianity brought with it interference by the Church in government at all levels – with consequences that would take far more than a millennium to sort out.

The key to this phase of six centuries from the departure of the Romans to the invasion by the Normans is that the people coming to be called the English were determined not just to go along with the others.  We saw this insularity rise up again just recently.   The English were always going to make tricky bed partners with the people in Europe.  They are separated by so much more than the Channel.

And although he may have stretched the point, a distinguished American jurist commented that the English law is more German than the law of Germany itself.

Law – history – Anglo-Saxons