(In three parts)
Reports of my death, said Mark Twain, are grossly exaggerated. We hope that is the case with the United States – sad though that may be for Messrs Putin and Xi. But the decline of America has been so swift, and the failures within the nation so widespread, that friends of America in Australia and elsewhere are as distressed as they are alarmed.
Donald Trump was obviously a symptom of the fault lines that had opened up long before he started riding upon and adding to them. Those rifts go right back in the history of this young nation.
Since 1776 –a dozen years before the English opened a jail here in Australia – the Americans have been growing further apart constitutionally from their English parent, in ways that we have not seen in other former English colonies.
Here’s how one aging Australian lawyer views the relations of those diversions to the current American decline.
Two different world views
When England began settling the new found land across the Atlantic, the main body of law exported in the world was Roman law. It derived from codes, and codification was its preferred mode of growth. Roman lawyers look for logical structure and formal elegance. The Code Napoléon is a centrepiece. This legal system was imposed from above with occasional encroachments from below.
The common law of England was flowering. It would match and then supplant Roman law across the world. It was developed by English judges. It eschews theory, grand designs, and codification. It arrived, as if by accident, over a period of time – the product of trial and error in applying the doctrine of precedent to cases that unguided chance threw up.
This kind of law was supplemented by Magna Carta, the legislation of the Reformation, and in the 17th century it would supply the political backbone to enable the English parliament to become supreme over the king. This system was generated from below with occasional additions from above.
This divide between the world’s two main systems of law was matched by the vast gulf between two different world views. This is the enduring difference between the Anglo-Saxon views on history and philosophy, and those obtaining across the Channel. It is the difference between Aristotle and Plato, Chaucer and Dante and between two distinct approaches to the law – the intellectual purity of the codes and the practical application of the common law.
Some of us tend to optimism; others tend to be cautious. Some of us like to formulate a theory or scheme and then see if we can conduct our affairs accordingly. Others like to see what we did in the past as a precedent and guide for what we might do in the future. We call one the rationalist view of the world. We call the other the empirical.
If you like technical terms, this divide is reflected in the logical split between deductive and inductive reasoning. (If you want the Honours Course in Philosophy I, you might compare the a priori – knowledge held before experience – [the rationalist view] – to the a posteriori – knowledge gained after experience [the empirical view].)
Those brought up in the Anglo-Saxon or empirical tradition fear that those who pursue the other approach are at risk, if they are zealous enough or too confident, of thinking they have the answer – and that others are not just mistaken, but demonstrably wrong. Such people are a threat to communities that depend on tolerance and restraint – as any democracy must do.
If you ask the view of the common lawyers, it may not be long before you get to the Inquisition, and the grosser effusions of absolutism in Russia, Italy, Germany and Spain last century. England saw hardly any of it – because of the stability baked into it over the ages.
Let me give a simple and quite possibly biased case. The French nation had been at the point of imploding for some time before 1789. French intellectuals read the philosopher Rousseau’s Social Contract and then sought to apply it in their heroic Declaration of the Rights of Man. ‘Bliss was it that day…’. Then the French fell into an abyss of evil and misery – that lasted, off and on, for a century.
When the English came to deal finally with their king in 1688, they did what they had to do, got in a foreign army to allow the transition, and then settled their constitution in its present form by the Bill of Rights. There was hardly any bloodshed in England, and the English, as Macaulay exulted, have not had a revolution since. Later the philosopher John Locke wrote a rationalisation. It is a fair bet that the number of British MPs who have ever read Two Treatises of Government could be counted on the fingers of one hand.
The statesmen, for that is what they were, who brought in the Bill of Rights, would have been appalled to be described as ‘Revolutionists.’ They had no time for the innate rights of man. Their credo was that the liberties of Englishmen were bound up with the maintenance of the common law. The revolutionists of 1776, 1789, and 1917 were, by comparison, out of this world.
And there is one issue we should bear steadily in mind, but which we forget in this context. It is the rule of law. This is a doctrine or principle that is, or should be, fundamental to what we refer to as civilisation. It is a conception that was foreign to the Roman system. It belonged only to the common law, by which it has been preserved and transmitted. You can’t get a more fundamental difference than that.
The origins of the English, and their near neighbours, are lost in time – as are the invasions by the Romans, Germans, Scandinavians and Normans (but not those invasions contemplated by Napoleon or Hitler). An indistinct, misty model suits the English just fine.
The birth of the nation called the United States can be pinpointed to 1776 and identified in two documents. You might think that the young nation might therefore be less susceptible to Romance or duplicity, but the opposite looks to be the case. The Americans immediately began to invoke savoury pipe dreams about their birth on 4 July 1776 – just as the French would do after 14 July 1789, and in the glorification of their Emperor Napoleon.
But the American house is one the foundations of which we can still examine. Americans still tend to see their nation as white, and the advent of the white people to their land is very recent – after the English had been nation building for a thousand years.
The descendants of the colonisers and settlers, as in Australia, would rather not talk of what happened to their First Nations. To suggest that in their conduct the white colonisers adhered to their faith is to mock both God and Christ. This is a stain that we two nations share.
Puritans and paternalism
Most nations in the West seek to look after their failures – the poor and the afflicted. The U S does not. Why is this so?
The Puritans were in the minority at home. In America they had the numbers. The difference is as deep as the Atlantic. The Puritans had God, an agenda, a devotion to the notions of covenant and contract, zeal, and an ineffable conviction of their own rectitude and mission – and they quickly learned never to let God get between them and a dollar. Even those gentle Quakers cashed in.
The Puritans were therefore real pains in the bum, and the English were glad to be rid of them – and allow them to show their venom at Salem.
Bur their zeal, sense of mission, and their other and higher allegiance to God made the Puritans at best dicey as democratic bedfellows. They were hostile to compromise – which is essential in our system. And they were slippery about the notion that the majority prevails (a weakness that the French also showed after 1789). How could mere mortals talk down to God?
The Puritans therefore had a suspicion and mistrust of government. These attitudes still disfigure the U S today. Then the Puritans were morally doomed in the eyes of Cotton Mather. ‘Religion brought forth prosperity, and the daughter destroyed the mother.’ In building its empire, the mother country threw the Sermon on the Mount clean out the window. White Americans did just the same at home.
Well before the Pilgrims set sail for their promised land, the English had come to terms with dealing with the poor. There was a deeply held view throughout English history, at least from feudal times, that the people at the top had to show at least some care for those below them, that the winners should spare a thought for the losers. They saw that they should look after the impotent and poor – as a matter of public duty.
Starting in 1536, and leading to more comprehensive laws under Queen Elizabeth I, the English parliament accepted that the state had to accept the responsibility for the failures and victims of society. They did not do so from any sense of charity or Christian benevolence, but from hard politics – the poor could become vagrants and vagabonds and threaten the peace – just as they did at the Capitol in Washington on 6 January 2021.
Paternalism therefore came with the changes to English government wrought by the Tudors. It would be amplified in 1908 when two future prime ministers of England – Lloyd George and Winston Churchill – brought in the People’s Budget, which was premised on the notion that the problems of the sick and infirm were ‘problems with which it is the business of the State to deal.’
(I may here add a footnote that bears on the difference between the common law and a code of law. The law about charity has always been tricky – and sensitive politically. In my state, Victoria, the court applying that part of the common law called equity must still reach a conclusion by reference to the ‘spirit and intendment’ of the preamble of a statute of Elizabeth I. That is daunting the first time you have to do it, and generations of lawyers derided this law as a preposterous relic – until they tried to replace it.)
The common law said that the Puritans brought English law to the colonies. But they did not bring these poor laws, and the failure of the U S to deal with its beggars and massive underclass now scandalises the world – and not just the West. It shows a hard, mean, Darwinian side to the American state that we do not see in the people we meet. It conforms with the Puritan concentration on the individual – and holding him to his bargain, or his fate. When we speak of people championing their rights as individuals, are we saying anything more than that they put themselves above the community?
And as the Tudors found, this is not just hard and mean, but bad policy. As is the dreadful attitude in the U S to the role of government in the provision for public health. They have not just got the worst public health system in the West – they also have got the dearest.
Here we have the ultimate triumph of theory – in the form of ideology – over common sense and ordinary experience. We might look for the real driver of this mess, but it is not tart to say that the U S looks to be about a century behind Europe on the Welfare State, and six centuries behind the mother country in dealing with the downtrodden.
The sad result is that too many Americans are not interested either in what they can do for their country, or what their country can do for them.
We saw that the revolution in England in 1688 was comparatively bloodless. The English had been house-training their kings since 1215, and they were about to embark on training their aristocracy – a process that they would complete by trimming the House Lords for its reaction to the People’s Budget.
What the Americans call the War of Independence involved a frightful civil war between Patriots and Loyalists that is rarely discussed now. (And that may be where they trace their fascination with that weasel word ‘patriot.’) Appalling crimes against humanity were committed on both sides, ‘atrocities such as we have known in our day in Ireland,’ said Winston Churchill.
No one could call the American Revolution democratic. The very notion would have appalled men of the wealth and standing of Jefferson, Washington, Franklin and Adams. Of course, there was not a woman to be seen. This show belonged to men only, and wealthy establishment men at that – men who could subscribe to the Tory view that a nation should only be governed by those who have a stake in it.
But more than one hundred years ago, the English nation elected as their Prime Minister a grandson of an Italian Jew, who went on to become the closest confidant of the most powerful monarch in history; more than eighty years ago, the English elected as their Prime Minister a man of Scottish descent who represented the labouring class; and about forty years ago they elected their first woman Prime Minister.
Americans now have had their first black President, and they are still dealing with the after-shocks, but it took them nearly two hundred years to elect a Catholic as president, and they are yet to elect to that office a woman, a working man, or a Jew. They had the chance to elect a woman, but opted for an aged, white property developer, who, as predicted, duly trashed the joint. Is the Great Republic, then, no more than a fusty conservative relic?
The sins of the Founding Fathers lay not in their wealth, slave holdings, or crassly patrician views, but in their duplicity. They did not believe that all men are equal, and neither the genius of Abraham Lincoln, nor the blood of more than half a million of their sons, has been enough to erase that lie from the national conscience. The curse of slavery remains.
The common law says that if one party to a contract says that they will not do their part, the other party can accept this ‘repudiation,’ and the contract is at an end. You list the other side’s defaults, with all the colour allowed to the winner, and then you say that all bets are off – and you move on. This is what the English did with James II and the Stuarts. The Bill of Rights was the precedent or template for Jefferson’s Declaration of Independence. So, he had to list the wrongs of the other party to the contract – which he said was King George III.
What was it all about? Tax. (Most ugly divorces are about the money and the kids.) But no one has written a history of the nation that gets even close to Jefferson’s enumeration of the wrongs alleged against England – and therefore the causes of the secession of the colonists. You have to wait until about item 20 to see a reference to tax. And even then, Jefferson gets it dead wrong. He accuses the English king of trying to establish ‘an absolute Tyranny over these States.’ That is the kind of wild accusation you get now on Fox News – and mercifully, the congress struck out some of the purpler passages. One count charged His Majesty ‘with ‘imposing Taxes on us without our Consent.’
But the whole point of the Glorious Revolution in England – which is still the foundation of their parliamentary democracy – is that, as Jefferson well knew, making a law to impose a tax was one thing that the king of England could not do. Such laws – like the Stamp Act that led to the tea going overboard in Boston – had to be made by the parliament in Westminster. As was each of the revenue and other laws that led to the rupture.
This uncomely flirtation with veracity has been too little noticed. And it is pregnant with the threat of a kind of black hole in the American political psyche – an inability fairly to face the need to impose taxes and to make sensible laws accordingly. Their politicians behave as if there is a deathless money tree out there from which apples can be plucked and bitten into with innocence and impunity.
Well, Henry VIII was not much of a rock on which to build a church. And the Declaration of Independence was not much of a rock on which to build a nation. One difference is that the English harbour no pretensions about their randy Harry.