About fifteen years ago, I went to the Antarctic.  I met a bloke from Sydney who was one of the most decent guys and the best all-round sportsmen I have met.  About ten years ago, we both said – with the confidence of age and an assumed respectability – that David Warner might be good at the funny stuff, but that he would not make it in test cricket.  That was a judgment of character as much as technique.

We were both dead wrong.  Warner is as good an opening test batsman as this country has produced.  It is not so much the average.  It is the force he applies to the other side.  As I follow it, he has the best strike rate of any of our major batsmen ever – including you know who. 

People overlook just how important that is in getting ahead of the other side – and bringing confidence to your own side – in test cricket.  And Warner has done this against bowling that can kill you.  If you think that’s over the top, I can direct you to a family in New South Wales who can correct you.

That sort of confidence and strength in a sporting team can lead to arrogance – and it too often has with us.  But in a national side that is well run – like the All Blacks – that problem can be dealt with. 

Warner is by nature and background a fierce fighter and competitor.  That’s what I expect from someone wearing my colours – not least in a part of life the principal object of which is to enable us to beat the English.

About four years ago, Warner and others were involved in a scandal in South Africa involving tampering with the ball.  If you do things to a cricket ball, you can make it swing more.  You are allowed to polish the ball just with your clothing.  But doing the reverse, to get reverse swing, is a breach of the rules.  The penalty for such a breach of the rules is five runs to the batting side.

I stopped playing cricket fifty years ago.  Everyone tampered with the ball in one way or another, and they still do.  But in an international match before so many TV cameras, you may get caught.

Australians got caught in South Africa.  It was blatant, childish and foolish – and therefore very embarrassing to management and the nation.  Scalps had to be taken and big prices paid – although the lapse in tone of the national side had been obvious, and management had been silent. 

The then captain was sacked, and suspensions were handed out – and Warner got a life ban on being appointed captain.

That decision was in my view unduly harsh at the time, not least because an underlying fault had been with management in allowing the standards of our team to go down. 

But the players took their hit and did their time, and this may be one of the few occasions in our jurisprudence where deterrence looks to have worked.  None of the players is any kind risk for the future, and the captain is free to captain again.

No one has explained to me the medieval metaphysics which produces the result that we can trust Warner to represent Australia by wearing its colours in the national team – but not to be its captain.  If that result is said to be a necessary part of the punishment of David Warner, then in my view it has no decent basis.

Punishment is left to God and the judges.  We are speaking of disciplinary proceedings which are there to protect the game and the interests of the public in following it.  It’s like conduct unbecoming, or contrary to the interests of the regiment.  The players will have clauses to that effect in their contracts.  But no one has power to inflict loss or damage on a person to vindicate some notion of moral duty or national honour.

History tells us that there is a useful rule of thumb in disputes in Australian sport.  If it is a fight between the players and management, it is usually management that is in the wrong. 

As it happens, the pursuit of Warner reached a new low at the same time that the press reported that the eminence grise of Australian cricket had been wont to advise his Prime Minister on how to deal with ‘socialism’.  Sir Donald’s political aversions may have come from the amount of money he made from the game – to the disgust of then and later players – but that ideology about government control did not stop Sir Donald from heading a hierarchy so outmoded that it treated players like medieval serfs so badly that they rejected and abandoned the whole cricket establishment and sold themselves to the most unattractive capitalist that the nation had seen. 

There was a perfect snapshot of our sports administrators at work.

And so it was again here.  When Warner asked management to lift the life ban on captaincy – a decision which would pose zero threat to anyone – management outsourced the decision.  That’s to say, they delegated their duty.  To a horde of consultants.  And a group of outsiders came up with the amazing and ghoulish suggestion that the issue should be determined in public hearings.  Did they see themselves in the outfits of Dominican Friars with their targets under pointed dunces’ hats – and a TV shot of fire at the stake in the background?

Some letters to the press dripped with venom toward Warner.  It is that dreadful mean streak we have had since the convicts hit the ground here and then the English unloaded their sluts.  Mediocre Australians get uneasy and unpleasant when confronted with excellence. 

I doubt whether any of these gnats training at a camel have played cricket at any level, or have faced any of the stress they have helped to pile on David Warner.  They are like bleak crows on a barbed wire fencing croaking loudly at what they could never have. 

They are fond of using the word ‘cheat’.  Its primary meaning is ‘swindle’.  (That’s the business of the major sponsor of professional sport.)  Its other meaning is to seek to obtain an advantage by doing something against the rules or that is unfair. 

Almost everyone involved in any professional sport is engaged in seeing just how far they can go to get an advantage without attracting a penalty for breaching the rules.  Its rather like business avoiding paying tax – without being sent to jail. 

F1 is game of cat and mouse between engineers and rule makers.  In golf, the players behave impeccably.  Hardly any tennis player would last a day on a golf course.  But the flirting with the rules comes with the design and manufacture of the equipment – to the extent that amateur old-timers like me regard those like Bryson DeChambeau with revulsion, and we long for the days of Peter Thompson.

If you asked me for the three rankest acts ever on the cricket ground, I would probably start with Bodyline, underarm bowling, and Mankad.  Each of those was within the rules – and that’s precisely what made each so bad for the game. 

And each was in my view far worse than anything Warner did.  His conduct was a breach of the rules, but he got whacked because he was a bloody idiot who got caught and made us and his national management look like bloody idiots.

Those who still pursue David Warner for more blood should be deeply ashamed of themselves.  Whatever other charge can be levelled at these malcontents, they could not be accused of following the faith of the son of a carpenter who passed that testing remark about the first stone.

Well, Warner has now given his complete answer where it counts, and in a way that is beyond the understanding of his vigilantes in posse.

So – I will leave the final say to his Mum, Lorraine.

He told me when he was 14 that one day he will play for Australia and buy us a unit, to get us out of the Housing Commission.  And he did.

Mac and Norma would not have said truly that I got them out of our former housing commission house – which cost them I think £440 – but I have no doubt that they would stand by every word here said.  I so well recall their views on the Panama Hat Brigade, and I thank God that Mac did not live to see Kevin Gosper desecrate posterity and present the gold medal to Kathy Freeman.

Cricket Australia – ball tampering – sports administrators – pure bullshit.

A low centre of gravity helps in footy, cricket and golf.  Neil Crompton had it.  He played footy for Melbourne and cricket for Victoria – and he was a very good golfer.  His whole life changed in one moment at the 1964 VFL Grand Final.  Collingwood had just edged ahead of Melbourne in an arena that bordered on madness – before the disbelieving eyes of me and my mum, who were in line with both Gabelich goals.  The Frog, as he was called, played in the back pocket and followed his rover into our forward line.  And kicked the goal that won the match. 

After that, the Frog could not go anywhere without being told or asked about that goal.  Even across the Strand in London.  Even by supporters of the Pies.  It was in its own way unsettling and belittling. 

You can see it on YouTube, a slice of history – and the presentation of the cup to Ron Barassi – with Ray Gabelich beside him.  A different era. 

So, what did Melbourne do?  They fired their best coach ever and entered a new dark age.

The composer Mascagni would have known all about how the Frog felt.  His opera Cavalleria Rusticana smashed box office records.  It is quintessentially Italian – more so than me with roof back on the red Alfa and a Zegna scarf.  But Mascagni never even came close later.  It’s all you hear of him now. 

Well, he was better off than Catalani.  He wrote the aria Ebben ne andro lontana.  It is my favourite song, and made famous by the great French movie, Diva.  I may be the only person in Melbourne to have a full recording of the full opera, La Wally.

They are getting the Twenty/20 cricket game right.  They are learning the tactics and the strategy.  It is now a very respectable form of entertainment.  Greg Chappell said that the century by Kohli against Pakistan in the World Cup made the game respectable.  The solution is I think to drop one-day 50 over games and focus on test cricket and the very short game. 

And the new mode of cricket is affecting test cricket – for the better.  The English have discovered that you can play better cricket if you enjoy yourself.

The TV coverage by people like Isa Guha, Kerry O’Keefe and Ian Smith is unusual – it is very good.  (Some former players are not so good.) 

One game yesterday looked like it was at Ballarat.  It was not.  It was at the Junction Oval.  A mate and I were taken there for a session in the nets in about 1958 by Jack Hill, who had played for Australia.  The big boys – the adults from the District cricket side that what would become the home of Shane Warne – were practising in the main nets.  The speed was horrific that close up.  So was the fizzing noise of the ball at your eye and ear line.  Ruggles and I were terrified.  Fortunately, we got let off with the younger ones and also-rans. 

Ruggles could bat; I could not.  (Ruggles died more than ten years ago.  My mate the Smiler was dying in a hospice when he got the news.  I can remember a big nurse getting on the bed to nurse the Smiler physically as he cried pathetically.  We Anglo-Saxon boys are not good at that sort of thing.)

The evening game last night was in Brisbane where the home side would end a losing run of eight straight.  As is not uncommon, the match was not decided until the last over.  One highlight was Rashid Kahn, a gift from God to Box Office, a striking Afghan man with a beard who is probably the best spin bowler in the world.

After the first ten overs, I adjourned for dinner with my Jim Barry Nurse Series Coonawarra Cabernet sold with the McGrath Foundation.  I put on the Mascagni, a new version of which I had played the night before.  (It only runs just over an hour.)  I had forgotten how sumptuously orchestral the music was – even on a $60 boombox while the Marantz is in for service. 

It was the Chicago Symphony Orchestra playing in a concert version at home – where I have heard that band.  The sound is gorgeous.  The orchestra is silky and the soloists are flawless.  Muti does not take it at the same tempo he uses for Verdi. 

It occurred to me that the tempo for the theatre may not be the one you want at home – with no stage, and just the sound – just the music.  One journal referred to an intoxicatingly exquisite version by Karajan.  I can imagine it, but that kind of thing raises the aura of the cult of the conductor.  And that is annoying.  Sporting teams have to combine well to produce a good result, but you don’t see the program notes ascribing that consequence to the coach.

Either way, the cricket and the music were a relief from aspects of the news.  Like the cold in the US and UK, and the strife in the latter. 

It all seems so obvious.  Governments have to keep the peace, defend the nation, and provide the welfare that the people reasonably expect – and to raise money for that purpose.  Our governments are not doing that – because they are scared and because as a result they can’t think beyond the next election.  One European politician got it did right – ‘We all know what we have to do – but we all want to be re-elected.’

Well, some big sixes were hit in the second match.  Bat on ball produces a gorgeous click on a big one, and the crowd erupts in awe.  The accident-prone lead in the opera could have described the sixes as generoso, the word he used to describe the wine he had before being topped for topping.  I had grown up listening to Jussi Björling sing that aria, especially after the Demons lost, and I nearly laughed out loud the first time I heard it sung in situ.  You could do with a stiff drink, Comrade, because you’ve been caught with her pants down – and in these parts, that means good night, sweet prince – and bugger the flights of angels.

Whether you prefer the stage to the sporting arena is, I suppose, not so much a matter of taste as upbringing –like religion.  But last night, I got something from both.  And the Jim Barry.

Even if my heart rests with the Frog.

Well, it was all a relief from the impact of canon law on Roman law jurisdictions in medieval Europe circa 1300 AD – which I had been reading and which I am driven to conclude was gibberish.

But the thing I enjoyed most last night was the sight of young kids having the time of their lives at the cricket so close to Christmas.  Particularly at the Junction Oval where Ruggles and I nearly wet ourselves.  That’s a good sign of old age, because it’s their turn next.

Happy Christmas – and all the best for the new year.

Until recently, I thought I overused the word fascist.  Now I wonder.  Years ago – more than ten years – I offered the following.

What do I mean by ‘fascism’?  I mean a commitment to the strongest kind of government of a people along overtly militarist and nationalist lines; a government that puts itself above the interests of any or indeed all of its members; a commitment that is driven by faith rather than logic; with an aversion to or hatred of equality, minorities, strangers, women and other deviants; a contempt for liberalism or even mercy; and a government that is prone to symbolism in weapons, uniforms, or its own charms or runes, and to a belief in a charismatic leader. 

The word came originally from the Latin word fasces, the bundle of rods and axes carried before Roman consuls as emblems of authority, and was first applied to the followers of the Italian dictator, Benito Mussolini, Il Duce, and then to the followers of Il Caudillo, Generalissimo Franco, and the Fuhrer, Adolf Hitler.  Fascists are thick-skinned, thick-headed, and brutal.  They despise intellectuals – who are after all deviants – but they may have an untutored and irrational rat cunning.

As Professor Simon Blackburn of Cambridge University tersely remarks: ‘The whole cocktail is animated by a belief in regeneration through energy and struggle’ (kampf).  To an outsider, it looks like pure moonshine that is the first refuge of a ratbag and a bully, a brilliant and seductive toy for the intellectually and morally deprived, and an eternal warning of the danger of patriotism to people of good sense and good will.  But while that ‘cocktail’ may look la bit much for Plato, it looks fair for Sparta.

I am reading about what is now called the ‘far right’.  That is tricky, because I have trouble understanding what the ‘right’ is.  But it is clear that those who call themselves ‘conservative’ here and the U S, but not England, tend to have very different views about the environment than others do.  And the difference grows as you go the edge.  Most clearly in the US, but also in places like Hungary and Poland, those with views we would regard as extremely illiberal look to have views about climate that are unreasonable – just as ‘fascists’ felt the need to have their own demons to go after. 

A lot of the connections are very worrying – if not terrifying.  Especially with the rise of conspiracy theories that surge incessantly in people who feel naked without a mobile phone in hand.  We have just seen, it seems, an appalling instance of the lethal capacity of conspiracy theories in Queensland.  Those who have lost out in the race of life succumb to the bad dreams of conspiracy theorists and form cadres of the fallen that offer asylum to the politically homeless.

A recurring issue is a fear of a loss of standing of or among the people at large.  At its worst, this is a fear of dilution of the blood of the people – and a contempt for those of different blood.  Many Americans were unsettled to see a black man in the White House.  Boris Johnson said: ‘The real problem with the Islamic world is Islam’ and that ‘The best fate for Africa would be if the old colonial powers, or their citizens, scrambled once again in her direction; on the understanding that this time they will not be asked to feel guilty.’  That’s from a man who would become Prime Minister of a country that was troubled about maintaining a statue for Cecil Rhodes.  Jair Bolsonaro said that ‘Minorities have to bend down to the majority’ and their choice was to ‘either adapt or simply vanish.’

What we see now so often is a reflection of former kinds of fascism – people who have a dream about the past and a nightmare about the future.  They posit a past grandeur being reborn to return the nation to its exalted and exclusive position.  That they are false about the past is palpable.  The falsity of their future is inevitable.

Historians now see three phases in the violent edge on the right. 

First, there has to be a crisis.  My understanding is that historians say that the probabilities are that Hitler would not have come to power but for the Crash and the Depression.  The same goes for Mussolini and the Great War.

Secondly, the dominant class must be willing to allow the fascists to deal with the crisis.  That was clearly so with Mussolini, Hitler and Franco (and in different caricature, with Lenin in 1917).  You can call it doing a deal with the devil – on the false understanding that you will be able to undo it.   And just wash your hands.  Like Pontius Pilate.

Thirdly, there follows an exceptional regime of systematic violence against those identified as enemies of the nation.

Do we see an echo of these phases in the recent history of the U S.

Now, there is plainly room for going overboard here – on both sides (if that phrase is still permitted).  It is a little early to talk of a need for Lebensraum, or to resort to hate speech like – ‘No green politics will ever be as exciting as red blood on black earth’. 

But Timothy Snyder of Yale University has high credentials on murderous regimes, and he, I now read, concluded a chapter on Black Earth: The Holocaust as History and Warning by saying that global warming is the sort of crisis for which fascism waits in the wings.  ‘When an apocalypse is on the horizon, demagogues of blood and soil come to the fore.’

Until a few years ago, I would have thought all this was over the top or plain silly.  Since then, I have seen what used to be called the better people in the U S encourage an unhinged crook to turn the nation upside down, then submit to him, and then just look the other way while the brownshirts that he incited sought to take power in the State by force with better prospects of success than Hitler’s beer hall putsch a century earlier.

It may help to put into perspective what I see as a real and present danger some remarks I had made previously about fascism in the last century.

What might be described as the failure of the better people of Italy has been described by a biographer of Mussolini in terms that could be transposed word for word to the Germans and Hitler.

Mussolini still needed their [the moderates’] help, for most of the liberal parliamentarians would look to them for a lead.  He also took careful note that chaos had been caused in Russia when representatives of the old order were defenestrated en masse during the revolution: fascism could hardly have survived if the police, the magistrates, the army leaders and the civil service had not continued to work just as before, and the complicity of these older politicians was eagerly sought and helped to preserve the important illusion that nothing had changed.

The liberals failed to use the leverage afforded by his need for their approbation.  Most of them saw some good in fascism as a way of defending social order and thought Italians too intelligent and civilised to permit the establishment of a complete dictatorship.  Above all, there was the very persuasive argument that the only alternative was to return to the anarchy and parliamentary stalemate they remembered…. Mussolini had convincingly proved that he was the most effective politician of them all: he alone could have asked parliament for full powers and been given what he asked; he alone provided a defence against, and an alternative to, socialism.  And of course, the old parliamentarians still hoped to capture and absorb him into their own system in the long run; their optimism was encouraged by the fact that his fascist collaborators were so second-rate. 

Does that not seem to be word for word a correct rendition of how so many decent Germans probably reacted to Hitler?  Still today you will find Christian apologists for Franco, and not just in Spain, who say that his fascism was preferable to republican socialism.  Mussolini had the other advantage that for reasons we now regard as obvious, no one outside Italy could take Mussolini seriously.  As his biographer reminds us, Mussolini was, rather like Berlusconi, seen as an ‘absurd little man’, a ‘second-rate cinema actor and someone who could not continue in power for long’, a ‘César de carnaval’, a ‘braggart and an actor’, and possibly ‘slightly off his head.’  Churchill always took Hitler seriously; he could never do that with that Italian buffoon.  The Führer would betray his nation and kill himself and his mistress; the Italians would revolt from and then murder their Duce and his mistress, and hang them upside down in public.  (The Italians have never had any idea of political stability or succession.)

So, you can get no comfort from the fact that the newly ensainted leader may be a stunted runt, a preposterous oaf, or a vapid Catholic zealot who coolly dispenses death sentences over coffee and his rosary – or a stupid spoiled brat who dodged the draft and evaded paying tax, who could not put a sentence together, and who then resorted to selling tradeable picture cards showing himself as Superman. 

How do you like to take your fascism?

Until recently, I thought I overused the word fascist.  Now I wonder.  Years ago – more than ten years – I offered the following.

What do I mean by ‘fascism’?  I mean a commitment to the strongest kind of government of a people along overtly militarist and nationalist lines; a government that puts itself above the interests of any or indeed all of its members; a commitment that is driven by faith rather than logic; with an aversion to or hatred of equality, minorities, strangers, women and other deviants; a contempt for liberalism or even mercy; and a government that is prone to symbolism in weapons, uniforms, or its own charms or runes, and to a belief in a charismatic leader. 

The word came originally from the Latin word fasces, the bundle of rods and axes carried before Roman consuls as emblems of authority, and was first applied to the followers of the Italian dictator, Benito Mussolini, Il Duce, and then to the followers of Il Caudillo, Generalissimo Franco, and the Fuhrer, Adolf Hitler.  Fascists are thick-skinned, thick-headed, and brutal.  They despise intellectuals – who are after all deviants – but they may have an untutored and irrational rat cunning.

As Professor Simon Blackburn of Cambridge University tersely remarks: ‘The whole cocktail is animated by a belief in regeneration through energy and struggle’ (kampf).  To an outsider, it looks like pure moonshine that is the first refuge of a ratbag and a bully, a brilliant and seductive toy for the intellectually and morally deprived, and an eternal warning of the danger of patriotism to people of good sense and good will.  But while that ‘cocktail’ may look la bit much for Plato, it looks fair for Sparta.

I am reading about what is now called the ‘far right’.  That is tricky, because I have trouble understanding what the ‘right’ is.  But it is clear that those who call themselves ‘conservative’ here and the U S, but not England, tend to have very different views about the environment than others do.  And the difference grows as you go the edge.  Most clearly in the US, but also in places like Hungary and Poland, those with views we would regard as extremely illiberal look to have views about climate that are unreasonable – just as ‘fascists’ felt the need to have their own demons to go after. 

A lot of the connections are very worrying – if not terrifying.  Especially with the rise of conspiracy theories that surge incessantly in people who feel naked without a mobile phone in hand.  We have just seen, it seems, an appalling instance of the lethal capacity of conspiracy theories in Queensland.  Those who have lost out in the race of life succumb to the bad dreams of conspiracy theorists and form cadres of the fallen that offer asylum to the politically homeless.

A recurring issue is a fear of a loss of standing of or among the people at large.  At its worst, this is a fear of dilution of the blood of the people – and a contempt for those of different blood.  Many Americans were unsettled to see a black man in the White House.  Boris Johnson said: ‘The real problem with the Islamic world is Islam’ and that ‘The best fate for Africa would be if the old colonial powers, or their citizens, scrambled once again in her direction; on the understanding that this time they will not be asked to feel guilty.’  That’s from a man who would become Prime Minister of a country that was troubled about maintaining a statue for Cecil Rhodes.  Jair Bolsonaro said that ‘Minorities have to bend down to the majority’ and their choice was to ‘either adapt or simply vanish.’

What we see now so often is a reflection of former kinds of fascism – people who have a dream about the past and a nightmare about the future.  They posit a past grandeur being reborn to return the nation to its exalted and exclusive position.  That they are false about the past is palpable.  The falsity of their future is inevitable.

Historians now see three phases in the violent edge on the right. 

First, there has to be a crisis.  My understanding is that historians say that the probabilities are that Hitler would not have come to power but for the Crash and the Depression.  The same goes for Mussolini and the Great War.

Secondly, the dominant class must be willing to allow the fascists to deal with the crisis.  That was clearly so with Mussolini, Hitler and Franco (and in different caricature, with Lenin in 1917).  You can call it doing a deal with the devil – on the false understanding that you will be able to undo it.   And just wash your hands.  Like Pontius Pilate.

Thirdly, there follows an exceptional regime of systematic violence against those identified as enemies of the nation.

Do we see an echo of these phases in the recent history of the U S.

Now, there is plainly room for going overboard here – on both sides (if that phrase is still permitted).  It is a little early to talk of a need for Lebensraum, or to resort to hate speech like – ‘No green politics will ever be as exciting as red blood on black earth’. 

But Timothy Snyder of Yale University has high credentials on murderous regimes, and he, I now read, concluded a chapter on Black Earth: The Holocaust as History and Warning by saying that global warming is the sort of crisis for which fascism waits in the wings.  ‘When an apocalypse is on the horizon, demagogues of blood and soil come to the fore.’

Until a few years ago, I would have thought all this was over the top or plain silly.  Since then, I have seen what used to be called the better people in the U S encourage an unhinged crook to turn the nation upside down, then submit to him, and then just look the other way while the brownshirts that he incited sought to take power in the State by force with better prospects of success than Hitler’s beer hall putsch a century earlier.

It may help to put into perspective what I see as a real and present danger some remarks I had made previously about fascism in the last century.

What might be described as the failure of the better people of Italy has been described by a biographer of Mussolini in terms that could be transposed word for word to the Germans and Hitler.

Mussolini still needed their [the moderates’] help, for most of the liberal parliamentarians would look to them for a lead.  He also took careful note that chaos had been caused in Russia when representatives of the old order were defenestrated en masse during the revolution: fascism could hardly have survived if the police, the magistrates, the army leaders and the civil service had not continued to work just as before, and the complicity of these older politicians was eagerly sought and helped to preserve the important illusion that nothing had changed.

The liberals failed to use the leverage afforded by his need for their approbation.  Most of them saw some good in fascism as a way of defending social order and thought Italians too intelligent and civilised to permit the establishment of a complete dictatorship.  Above all, there was the very persuasive argument that the only alternative was to return to the anarchy and parliamentary stalemate they remembered…. Mussolini had convincingly proved that he was the most effective politician of them all: he alone could have asked parliament for full powers and been given what he asked; he alone provided a defence against, and an alternative to, socialism.  And of course, the old parliamentarians still hoped to capture and absorb him into their own system in the long run; their optimism was encouraged by the fact that his fascist collaborators were so second-rate. 

Does that not seem to be word for word a correct rendition of how so many decent Germans probably reacted to Hitler?  Still today you will find Christian apologists for Franco, and not just in Spain, who say that his fascism was preferable to republican socialism.  Mussolini had the other advantage that for reasons we now regard as obvious, no one outside Italy could take Mussolini seriously.  As his biographer reminds us, Mussolini was, rather like Berlusconi, seen as an ‘absurd little man’, a ‘second-rate cinema actor and someone who could not continue in power for long’, a ‘César de carnaval’, a ‘braggart and an actor’, and possibly ‘slightly off his head.’  Churchill always took Hitler seriously; he could never do that with that Italian buffoon.  The Führer would betray his nation and kill himself and his mistress; the Italians would revolt from and then murder their Duce and his mistress, and hang them upside down in public.  (The Italians have never had any idea of political stability or succession.)

So, you can get no comfort from the fact that the newly ensainted leader may be a stunted runt, a preposterous oaf, or a vapid Catholic zealot who coolly dispenses death sentences over coffee and his rosary – or a stupid spoiled brat who dodged the draft and evaded paying tax, who could not put a sentence together, and who then resorted to selling tradeable picture cards showing himself as Superman. 

Politics – Far Right – Trump – Bolsonaro – Johnson – Hitler.

I subscribe to the AFR for David Rowe and Rear Window.  Its editorials are DLP circa 1952.  But today’s showed a new level of anaemic inanity about FIFA and Qatar that is so woolly, it could have come from the other stable.

Hence, FIFA’s questionable-from-the-start choice of Qatar as host of football’s global showpiece generated outrage among Western media pundits and social media users during the tournament.

That might speak well of the West’s sense of universal human rights – even if social conscience is measured by the duration of a TV spot or characters in a tweet. But what some might call a form of cultural imperialism may now be factored in by international sporting bodies against awarding major global events to countries with poor human rights records.

PART 2

Two constitutions

The problems with the Constitution of the U S may well be worse than those of the Declaration.

It is slippery if not plain wrong to say that the English constitution is not in writing.  It is not to be found in the bosom of the judges – or in the cloud.  It is not to be found in one binding instrument.  It is to be found in the common law, Magna Carta, the writ of Habeas Corpus, the Bill of Rights, the Act of Succession, and a few other instruments. 

At the core of the English dispensation is the common law that gives us the supremacy of the people in parliament.  The whole fabric is full of logical inconsistencies and ideological heresies that offend Americans to their souls. 

And to which the English give one answer.  It works.  And people who know about these things tend to think that the smarties who think that they can improve the model with a shot of logic or doctrine are probably delusional and therefore dangerous.

You will, I hope, see immediately what a giant leap lay here – from a product of history and experience, to a code based on logic and ideology, and sourced in some high notion of a social compact.  The common law – which means, in the U S, unlike Australia, the common law of each of the fifty states – would have to learn to live with a fixed code.  The English had arrived at their constitution by accident; the Americans, by design.

The Americans were therefore attempting to fuse the two world views – empirical and rationalist – that we looked at.  Would this be any better than tipping a great beef stew over a refined passionfruit bombe Alaska?  Or would it lead to a gruesome and bloody anarchic riot with bodies strewn at the base of the Capitol?  Might this juristic bastardy prove to be lethal?

We can look at five principal pressure points – not having ministers in and responsible to the legislature; the capacity to freeze government by foul play; the failure to deal with God; the locking in of moral or ideological values; and the moral, intellectual, and political disaster of the present Supreme Court. 

But first, what did the Founders hope to achieve?

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Do people outside the U S, or in it, believe that they have achieved domestic tranquility or general welfare?

Responsible government

The Westminster System, which we in Australia inherited, evolved over about two centuries after the Grand Remonstrance in the time of Charles I.  The process of cabinet government was still coming together when the U S seceded.  The king heads the executive arm of government, and there are four parts to the system that are fundamental to our notion of ‘responsible government’.

First, the king acts only on the advice of his Ministers.  Secondly, those Ministers – some of whom comprise the Cabinet – must have the confidence of the Parliament, and they must resign if they do not.  Thirdly, there is a permanent non-political civil service chosen and trained to give effect to the wishes of government, the members of which are under the supervision of a Minister – the Ministers of course being the members of parliament who have the confidence of parliament.  Fourthly, the Ministers are responsible to the Parliament for the working of the civil service under them.  If the civil service makes a mistake that cannot be dismissed as trifling, the Minister must account to Parliament for the error – and depending on its gravity, either apologise or resign.

That is our system, but the Founders were more concerned about the ideological separation of powers.  They did not want the heads of the executive in and answerable to the legislature – their Congress.  And their logic was ruthless.  Therefore, the President and his ministers – his Cabinet – do not have to get elected to Congress and answer to it when it is sitting – on pain of not just vacating office, but of losing their seat if they mislead the Congress.  Only a lunatic would suggest that a Prime Minister or Minister might take the fifth in an answer to a question put in Parliament.

Does anyone believe that Trump could have become President, or that most of his Cabinet could have been appointed, under such a system?  Its members prostrated themselves to their leader after the manner of those in Pyongyang who do the same for Kim – the serial killer with whom their leader then fell in love.  But they were never exposed to questioning by Congress.  In what precise way, then, were they accountable?

Let’s get serious.  Trump could not be appointed in London, Berlin, Paris, or Sydney to any public office that is a position of trust because of the character of so many people that he put his trust in – and who ended up in the slammer.  He could certainly not be put forward as a director of a public company in any of those jurisdictions – and neither could most of his Cabinet. 

Put to one side that Trump is a property developer with many enemies and a reputation for dishonesty and untrustworthiness, and a private life as gruesome as any in Hollywood.  He evaded doing military service and paying tax.   No such person could be forward for preselection in England or Australia.  And he would have struggled to endure, much less pass, one question time in parliament.  He would have struggled to sit out one session in parliament.

For those brought up under Westminster, the Founders disastrously preferred logic to experience, theory to evidence, and faith to history.  And the American nation is now paying a fearful price.

The facility for foul play

The Founders had good reason to be apprehensive about vesting too much power in the President.  The English had taken about 500 years to rein their kings in, and the world would look on with horror when it came the turn of the French and Russians to try their hand – after the Germans had developed the first modern welfare state with adult suffrage – after which they dragged the whole world back to its primeval slime.

The Americans saw the checks and balances in England.  For example, that nation twice avoided what could well have been civil war when the Commons had enough power to persuade a king to threaten to flood the House of Lords unless they pulled their heads in.  Then this year, the Tory elders sniffed the breeze and set about firing the Prime Minister.  It was not pretty, and the result may be even less pretty, but it worked.  The reaction of sometime Republican elders to Trump and his retinue hardly bears mention in decent company.

In the U S, people of bad faith can pull enough levers to send the government off the rails – and then blame the President.  The crude stunts of people like Cruz and Jordan are one thing – every family has its tuppeny failures and sources of strife.  But McConnell as a matter of policy decided that his party would do all in its power to prevent President Obama from doing what he was elected to do.  His lot just went on strike.  Is it any wonder that the same people now say that Trump did not really lose the election?  And that God created the world in six days?

What a massive falling off have we seen here – the Founders left the nation with a constitution that facilitates its own sabotage.  And all it took to bring it down was one generation of people in Congress of low decency and less courage.

The failure to deal with God

The King of England, and of Australia, is the head of the Church of England.  And no one can be put on that throne unless they are ‘in communion’ with that Church. 

It is hard to think of anything more repellent, heretical even, in the eyes of the Founders or their latterday followers and purists.  In the name of heaven, it’s almost as bad as that frightful figure who sat on the Woolsack – the Lord Chancellor – and who had functions in the legislature, executive, and judiciary.  And just as the king has the title of Defender of the Faith, so the Lord Chancellor was said to be the Keeper of the Conscience of the King.  Who on earth could take that Gilbert and Sullivan menagerie seriously?

The Founders of course would put solid safeguards in the Constitution to deal with religion, which would be sternly policed by the Supreme Court, to safeguard freedom of religion – probably the most abused phrase in Australian politics as we speak – and ensure that the workings of power would not be troubled by religious dissension.

What is the result?  The English political system has no trouble at all with either God or his Church.  Any suggestion that Canterbury might affect Westminster would be stupid.  But in the U S, the fingerprints of God, or at least his less loveable adherents, are all over the body politic. 

This is another of those flaws that both saddens and distresses England and Europe.  Heavens above, they no longer have this kind of trouble in even Ireland, Italy, or Spain.

Ideological absolutes

The English Bill of Rights resembles Magna Carta in at least two respects.  Following a period of protracted strife, the king and the people settled their differences in a legally binding compact.  Each instrument sets out the terms on which the king (and his queen) would hold the crown.  In this way, each resembled an employment contract. 

But each also conferred legally enforceable rights on all subjects.  For example, Magna Carta contained a clause that would become fundamental to our notions of due process and, indeed, the rule of law, and the Bill of Rights banned cruel and unusual punishments, and forbade the crown levying a tax without an act of parliament.

But each of these instruments, as we have seen, is just part of the fabric of our total constitutional dispensation.  Because the people in parliament are supreme, they can change or dispose of either instrument as they please.  (That is the case in both England and my State of Victoria, where parts of each instrument are still part of our law.)

The U S wished to codify those rights and entrench them in the Constitution.  They are, then, above the power of Congress – just as Magna Carta and the Bill of Rights put the law above the king.  (‘The king is subject to the law because the law made the king.’) 

Those laws can be changed only by a process set down in the Constitution.  The result is to add to the mystical status of the Constitution.  Americans actually get to read it and refer to it.  You can hardly do that in England, and very few Australians ever get to open their written state or federal constitution.  They are more interested in the subject of speeding tickets or parking fines.  And we don’t think that is such a bad thing.  There is a lot to be said for the notion that laws and judges are like football umpires – better seen but not heard.

The U S has led the world in legally enforcing what are called civil rights.  But there have been frightful accidents.  We may here note just the most notorious – a law that puts the whole of the U S on the nose in my country, England, and Europe – the right to bear arms.

The English knew that King John was a rat and would try to renege on his deal with the barons.  They therefore reserved in Magna Carta the right to send in what we would call receivers and managers into the king’s domain if he breached the agreement.  This horrific clause would be beyond even Vladimir Putin now and it did not go down so well then in Rome.  This security was left out of the succeeding versions.

What would they put it its place in the Bill of Rights?  A young ‘low born barrister’ named Somers got the brief.  The document as finally settled and agreed eschewed the receiver model.  Instead, the king could have no army, but the people could stay armed.  So, if there was conflict, guess who would win. 

The settlement endured, and its terms are hardly ever referred to.  (The best drawn agreements are those you never take out of the drawer.)  This one did its job, and no one has sought to invoke what the leading historian of that era called an ‘implicit’ right of rebellion (a term that would make constitutional lawyers very uneasy – especially if they reflect on the French approach to that issue after 1789).

The right to bear arms was of course limited to Protestants and hedged with caution.  A principal object of the whole settlement was to seek to deal with the most lethal blight of the West – wars of religion – by making it impossible for a Catholic to sit on the English throne.  Such a law would now be against our municipal laws about religious discrimination, and that is one reason why it is at best tricky to seek to apply such a law to us in its terms today.

So, while the Bill of Rights is still part of the law of England, it does not take effect as it does in the U S.  But one thing we may take for certain.  No English court has been asked to rule, or would rule, that as a matter of law this right to bear arms gave a personal right to people to carry arms, including hand-guns, in self-defence. 

Orthodox common lawyers are struck by two features of the majority judgment of the Supreme Court in Heller, the current leading case on hand-guns used in self-defence.  First, it is one of those judgments that leaves you wondering how the contrary view may even have been put.  It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge.  Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly. 

The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’.  In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it.  Some asides are just plain bitchy.  ‘Grotesque’ is deployed for effect in a one-word sentence.  In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary).  This is five Justices describing the reasoning of the other four Justices.  There is no restraint.

It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court.  I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it. 

It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other.  More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers – and, now, the crowd at a MAGA rally – or the Capitol.  It is hard to think of any area of judicial law-framing that requires more care and dispassionate judgment.  A split decision five to four on such a political issue must erode public confidence in the working of the Constitution and government, especially when the majority says that the minority are behaving like the Mad Hatter. 

This was a very bad failure of governance.

Well, some may defend the Court on the footing that this is, after all, America, and they do things differently over there.  Quite so.  If any citizen can carry a revolver down Pennsylvania Avenue, the Justices of the Supreme Court should at least be allowed to be rude to each other in public up at One First Street.  This is public life at the frontier of courtesy.  (When, during the war, a dissenting English Law Lord made a reference to the looking glass that his chief, the Lord Chancellor, had been unable to restrain, one of the targets of the barb took the unprecedented of delivering the reproof in a letter to The Times.)

The decision in Heller could not happen here or in England.  Any such suggestion might even be dismissed as grotesque.  You may as well seek to argue that Catholics either do not need or should be denied such rights in self-defence.  You would overlook the effect and purpose of the law in its context – including the duty and not just the right of citizens to bear arms going back to the medieval fyrd and the Assize of Arms – and the fact that the Stuart kings had banned hand-guns in London because of the threat they posed to the peace of the king.

No responsible government in the world – not one – could wish that its citizens could remain armed as a kind of security for the good behaviour of government.  No sensible government that has an army and a police force has any interest in its citizens maintaining a communal arsenal to be called on in the case of foreign emergency or civic unrest.  We leave all that guff to the Romance of Tombstone Territory – and Hollywood.  The American result is just what our laws were made to prevent.  The primary function of the common law was, after all, to keep the King’s peace.

One of the problems in holding that the right bear arms may operate as a check on government, or a barrier to despotism – Americans prefer ‘tyranny’ – is this.  Who rules on the question of whether that time has come?  When that idiot with horns sticking out of his head despoiled the Capitol?  Or when John Wilkes Booth jumped on the stage at Ford’s Theatre shrieking about tyranny (in Latin)?  (Sic semper tyrannis.)

Now, the forces of violent unrest unleashed by Trump make this problem even more acute.  How many of those criminals raiding the Capitol were, or were not, exercising their right to bear arms?

But let us suppose that the position narrowly arrived at by the Supreme Court is justifiable at law, who outside the NRA and its stooges, paid or otherwise, or the howling mob at the steps of the Capitol, would want such a result?  The ensuing and repeated killings of school-children are a blot on the nation that mocks its aspirations to insure domestic tranquility.  Worse, it mocks humanity itself. 

What kind of person would want to live in a community that stands for this kind of butchery?

David Hume was a Scottish historian and philosopher.  He was more famous during his life as the man who wrote a six volume History of England.  It is very readable.  Since that time, he has been more famous as a philosopher – the best known and most respected philosopher that Britain has produced. 

The most famous part of his philosophy relates to causation.  I first studied it at Melbourne University in 1965.  I don’t think I understood it then, and I have not understood what he ‘meant’ – if that phrase is permissible – since.  I can recall saying as much in an essay and getting a curt response from a tutor saying that I should try to meet Hume on his own ground – or something to that effect.  That struck a then first year law student as dangerously heretical.

Hume began his history, which is before me, as follows.

The curiosity, entertained by all civilized nations, of inquiring into the exploits and adventures of their ancestors, commonly excites a regret that the history of remote ages should always be so much involved in obscurity, uncertainty, and contradiction.  Ingenious men, possessed of leisure, are apt to push their researches beyond the period in which literary monuments are framed or preserved; without reflecting that the history of past events is immediately lost or disfigured when intrusted to memory or oral tradition; and that the adventures of barbarous nations, even if they were recorded, could afford little or no entertainment to men born in a more cultivated age.

Two things might occur to the reader.  The writing is so like that of Edward Gibbon.  And any views of the philosopher on causation had no effect on the historian.  It is impossible to write history without referring to causal connection.  There is one in the first sentence.  To ‘excite a regret’ is to ‘cause an emotion.’  Mary Queen of Scots was executed because she was found guilty of treason.  She died because that’s what happens if someone chops your head off.  People who don’t believe that are dangerously mad.

What then did Hume the philosopher have to say about causation?  There is a lot of talk about a billiard cue striking a ball which hits a ball which hits another – and so on.  I will not try to set out what Hume said in summary, but refer to two notions he puts forward.  One is that we cannot see the ‘force’ or ‘causal connection’ at work.  The other is that the mere fact that a series of events has occurred in the past is no guarantee that it will happen again in the future.

In What’s Wrong? you can find the following:

The results of induction – the sun will rise tomorrow – cannot, the philosophers tell us, be stated as absolutely certain propositions because the truth depends on a prediction that the world will continue to behave as it has behaved in the past.  The movement of the sun might be an extreme example, but the case was stated crisply by Bertrand Russell as follows: ‘The man who has fed the chicken every day throughout its life at last wrings its neck instead – showing that more refined views as to the uniformity of nature would have been useful to the chicken.’ One way to put this is to say that deductive arguments produce conclusions that are necessary, while inductive arguments produce results that are probable or contingent (upon history repeating itself ).  In a deductive argument, the premises are conclusive evidence of what is said in the conclusion, and we speak of the argument being valid or invalid.  We test an inductive argument by asking if past history suggests that a prediction for the future is probably sound. lack the certainty of deduction, they tell us something about the world that we have not heard before. Deductive arguments do not do this.

The philosophers say that the conclusions of deduction are necessary (or analytic) whereas those of induction are merely contingent (or synthetic).  But if those labels are constructs of ours to describe phases of our thought, are they any more useful than the blue-print for the construction of a Lego space station?  If this is a grading of our thought processes, what use is it – especially if we can only get something new from induction?  What is the effect of this form of scepticism?

Not much for David Hume.  He said he was ‘absolutely and necessarily determin’d to live and talk and act like other people in the common affairs of life.’  The reason for that resolution – the cause – may have been the fear of being locked up in Bedlam if he did not.  He said that some natural beliefs could not be proved, but that nature is such that we have to accept them.  He spoke of ‘the obvious appearance of things.’  You simply cannot ignore the brute fact that the axe fell on the neck of Mary Queen of Scots – as it would for Charles I – because that is the result that the executioner brought about.

Hume was seriously sceptical about religion.  ‘Generally speaking, the errors in religion are dangerous; those in philosophy merely ridiculous.’  That too is pure Gibbon, but I do not understand why Bertrand Russell said that Hume ‘has no right to say this’ because ‘Dangerous is a causal word, and a sceptic as to causation cannot know that anything is dangerous.’ 

When it came to what we might call the ‘real world’, Hume had no such inhibition.  I =1 = 3 might offend the laws of logic.  But if the sun does not rise tomorrow, more than the laws of physics will be violated.  The world and we will have ceased to exist.  By and large, I may prefer a C+ in Logic to getting blown to Kingdom Come.

What then is the point?  I still do not know.  But over time, three propositions of or about philosophy have comforted me.  One was the lecturer in Philosophy I (Honours) – Bishop Berkely – who said that it would be like blind men in a dark room looking for a black cat – that did not exist.  Wittgenstein referred to signs carried by trains during the war: ‘Is this journey really necessary.’  And the lecturer in Plato’s Republic – Andrew Boyce Gibson – was a Christian apologist who told an uppity ABC interviewer that the problem was that the whole thing had begun in a carpenter’s shop – and had just got a bit of hand since.

And I cannot leave Hume without mentioning my favourite anecdote about him.  I had occasion to remark elsewhere.

He was, like Gibbon after him, fluent in French.  One of his women admirers was the Comtesse de Boufflers.  She was younger than Hume, le bon David – and the mistress of a Prince of the Blood, the Prince de Conti.  Although she wanted to marry the Prince after presumably outliving her husband, she appears to have fallen for the corpulent Scot.  The relationship was not consummated and le bon David may have been well out of it.  It is difficult to avoid the impression that he was punching well above his weight with these French women.  In one petulant letter to Hume, the Comtesse asked, ‘Do you want to confirm me in the idea which I hold, that your sex like to be handled roughly … to confess to you my opinion, the majority seem to have by nature servile souls?’ 

On one occasion the Comtesse upbraided the Maréchale de Mirepoix, her intimate friend, for associating with Madame de Pompadour, saying, ‘She is, after all, merely the first prostitute of the Kingdom’.  It is said that Madame de Mirepoix quietly returned, ‘Don’t ask me to count up to number three’.  That is cattiness of a very big hitting calibre, the stuff of European championships.

And not much philosophy there either.

Philosophy – Hume – Causation – logic – induction – probability.

If someone does something wrong to you, that hurts you, you are aggrieved.  You are, or at least you feel like you are, a ‘victim’ of their bad conduct.  My Oxford English Dictionary looks outmoded: ‘In a weaker sense:  One who suffers some injury, hardship or loss, is badly treated or taken advantage of, or the like.’  My Macquarie has ‘a sufferer from any destructive, injurious or adverse action or agency’. 

A victim is someone hurt by another.  So, the hurtful conduct need not be intentional, unlawful, malicious or wrongful in order for the person hurt to be described as a ‘victim’.

You also think that you are a victim if someone sues you – especially if you think that there is no basis for the suit.  The person suing you is hurting you by invoking the power of the state to order you to do things adverse to your interests, and to expose you to expense, anxiety, delay, and public sympathy or worse.  You might lose your name, marriage, job or profession, or solvency, or sanity, as a result of being sued.  In one kind of litigation – in the criminal law – the suit may lead to your loss of liberty.  In the U S, and in worse regimes, you might lose your life.

Take a simple case.  Betty is told that John tells people that she is a thief.  Betty is hurt and a victim of the conduct of John.  On legal advice, she sues John.  From that moment, John is a victim of the conduct of Betty.  And he is hurt so much more if he says that he said no such thing, or that he did and that it is true (which in our law is a defence). 

From that moment, each of both Betty and John claims to be a victim of the other.  In one sense, the litigation will determine not what happened – which is a matter for God – but which of John and Betty is held by the court to have had a better claim to be the victim.

It follows that in any case where there is an issue to be tried about what happened in fact, or who might answerable or liable in law, it may be at best misleading to describe one side as the ‘victim’ – if the inference is that the other side until judgment does not have an equal claim to that description.

That is so in any civil suit where liability is in issue.  The case is stronger in criminal cases where the law presumes that the accused is innocent.

Yet in one narrow class of case – those involving sexual offences – the complainant is often referred to as ‘the victim,’ when in a real sense that may be the issue to be determined by the court.  We do not find this leaning to one side in cases of blackmail, mental cruelty, child pornography, fraud, insider trading, minority shareholder oppression, predatory pricing, conveyances to defraud creditors, or misconduct in custody cases – or any others I know of.

This propensity to see a case from one side only is a problem that practising lawyers do not have.  People are in conflict just because they dispute what happened and what the court should do.  Those lawyers also know that the court does not stand in place of God.  Unless the parties settle their difference, the court will rule on which side prevails by its rules, and life will go on.

But sadly, as the man said, too often, everyone loses, and it is the case that everywhere the ceremony of innocence is drowned.  And, yes, the best lack all conviction and the worst are full of passionate intensity.

The preference for the case of one side as the victim in a small class of cases looks to me to have two things in common.  For the most part, it is not expressed by practising lawyers.  And it comes from people who have an argument to pursue, and who are content to have their position identified with the side of the person they see as the ‘victim’.

The title to the word ‘victim’ can hardly be determined by the order of the names on the writ – plaintiff or defendant.  There is a childish spat between a member of the Murdoch family and a member of the press.  Which do you think Australians regard as the victim – young Lachie or Crikey?  It looks to me that officers of the Federal Court will be offering free smiley koala stamps to any bystander who manages to keep a straight face in a farce for the ages.

Someone said that victims demand allegiance.  On one view, that propensity is the foundation stone of one major faith; and of the Collingwood Football Club.  But, it seems, some kinds of victims demand more allegiance than others.

So much is I think clear from a paper I wrote years ago when I sought to say what going to law was about after fifty years at it, including more than thirty years hearing and deciding cases on a sessional basis.  It began as follows.

Conflict

A court of law – the place that Sir Owen Dixon called ‘the judgment hall’ – is a combat zone.  People go there to fight.  It may not look that way to you, but it certainly does to most of the punters.  A court room is a scene of conflict.  For ‘conflict’, the Oxford English Dictionary gives us ‘an encounter with arms; a fight; especially a prolonged struggle’.  That is very apt for this note. 

The court sees two types of conflict.  What are they?

People generally go to law because they have been hurt and they think that the law might be able to give them some form of redress – in the writ that starts their legal action, their lawyer often asks for ‘relief.’  That is a good word for what they want.  They believe that someone has done them some harm by breaking their word or their trust, or by some careless act, or by some other harmful conduct that some precedent or statute enables the court to do something for them in return.  The conflict starts with a wrong, and the victim believes, usually with legal advice, that if they go to court, the process of the law will help them to deal with that wrong.  They hope to come out better off than they were before suing.

If a stranger runs into the back of your car, or bad mouths you in the press, you are put into a position of conflict.  By and large, only deranged people enjoy conflict or seek to create it.  Most of us try to avoid it, or we at least try to reduce the risk or extent of it. 

But some conflict is worse than others, and this is why although it is hard to think of any good litigation, some litigation is worse than others.  The conflict is usually worse if there has been a breakdown in a previous relationship, especially one of trust, say between business partners or husband and wife, or where the parties have to live together, and the conflict is eating into their lives, as in a fencing or nuisance dispute between neighbours.  The resulting litigation is likely to be a lot more wounding and stressful – and the wounds incurred are likely to take much longer to heal, and to be even more beyond the kind of relief that a court can direct than wounds suffered in conflict between strangers.  Purely commercial brawls might involve money and face, but they are a lot less wearing than cases where real people have real lives on the line.

So, the first form of conflict arises from the conduct that leads to the legal action.  Then, if the person wronged does go to court, there is another form of conflict.  The initial conflict is resolved by a process that in itself entails conflict.

Under our process, which goes back for many hundreds of years, the judges do not sit under a palm-tree, make such inquiries as they think fit, and then pronounce some decree that they think is right to resolve the conflict.  That system has not appealed to us – as someone said, he who sits under a palm-tree knows not where the nut may fall. 

Under our system, each side presents their side of the case according to the rules laid down for this kind of contest, and the judges award the decision to the party found to have the stronger case under those rules.  We do not hold an inquiry into some kind of abstract truth.  That kind of thing is far too grand or, or too ambitious, for our taste.  We leave that kind of inquisition to foreigners and royal commissions.

The great legal historian F W Maitland compared our judges to cricket umpires – people who stand there silently and respond to the question: ‘How’s that?’  Sir Daryl Dawson put it this way (in a criminal case, where onus plays a bigger role):

A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted, and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side.  When a party’s case is deficient, the ordinary consequence is that it does not succeed.

Put differently, the party with the stronger case wins and the one with the weaker case loses. 

It would be silly to suggest that mistakes are not made or that innocent people do not get hurt under our model.  What we have is a kind of judicial duel where the prize goes to the side that is found to have the stronger case – and in the process, both sides, including the eventual winner, can get badly hurt.

People thinking of going to court to resolve some conflict need to understand these things.  To resolve their conflict, they are taking it to another level, and to a process that involves its own kind of conflict, often in a very public way.  There must be the risk that in escalating the conflict, they are making it worse.  They are certainly raising the stakes.

One of the first things that the lawyer has to tell someone complaining of the hurt flowing from some wrong is that it is highly unlikely that as a result of legal process they will be put in a position as if that wrong had never happened.  They are now worse off than they were before the wrong was done, and the probabilities are that they will stay that way even if they ‘win’ in the court battle.  This is important.  To go back a bit, they may or may not come out of court better off than they were before suing, but they are quite unlikely to end up as if nothing bad had happened at all.

Paraplegics who get millions would hand them all back, even with a few more zeroes, if they could be put back to the way they were before the accident.  Money is very imperfect in measuring pain and suffering.  If someone instructs you to insert a clause in a contract requiring one party to ‘make the other whole’ after a breach, you should tell them that this may or may not be possible in dollars, but it will very likely be impossible for other purposes. 

It is fundamental in considering any legal action, and whether to settle it once it has started, that the party claiming to be wronged is quite unlikely ever to return to their position before they suffered the wrong.  They’ve taken a hit, and we can’t just wipe out the effects of that hit.  The law cannot rewrite history.

And this goes for the other side as well.  No sane person wants to be sued.  Some know that it is coming, because they know they have done something to upset the person suing, but often the writ will come as just as nasty a surprise to the person sued as would a slap in the face.  But once the party is effectively sued, they too are likely to have suffered a form of harm – the anxiety, cost, and risk flowing from being sued – that they will never entirely get over – even if they ‘win’ the case.

The point is that in both these kinds of conflict, neither side is ever likely to feel quite as well as if the relevant events – the initial hurt or the resulting legal action – had never happened.  They are both behind scratch – and, sadly, often one side or the other has a lot of trouble getting over that simple fact of life.

Common law- adversarial v inquisitorial – leanings in certain cases – experience in the law – facts of life about litigation in the world as it is – litigating in principle.Who is the victim?

The word ‘democracy’ describes one form of government.  It stands for what Abraham Lincoln called government of the people, by the people, and for the people.  It follows that the government will only be as good as the people of and by whom it is made and for whom it acts.

We in Australia follow the English version that developed from the eighteenth century.  People vote for candidates from two different political parties.  So does the U S.

That mode is in trouble here, and in the UK and the US.  Two issues may not be logically connected, but they have a common source – the readiness, willingness, and ability of the people to make the system work.

The two-party system can only work as well as the two parties.  So much is axiomatic.  The people as a whole have very little say in, or control over, the composition or conduct of the two parties.  We have whole statute books about companies, partnerships and clubs, but next to nothing about political parties. 

It is at best odd that our governance depends on institutions outside our control.  How would it be if we allowed our education and health systems to be run by bodies that are not answerable to us – except when we get a chance to vote against those whom they have kept in office?

This anomaly was highlighted recently when a party in government in the UK badly misgoverned, but instead of resigning and allowing the electorate to choose, the government left the appointment of a new leader to the members of one party.  That small group was a tiny part of the people as a whole.  It proceeded by its own rules, which were written for the benefit of that party, and in particular for the benefit of those members of the party in control of it at that time.  Those rules were tailor-made to produce a disaster, and they did.  To the lasting damage of the U K and its people.

In Australia, people are taking action by voting for and securing the election of very competent people whose stand is expressly premised on a rejection the major parties.  If that change continues, the two-party system will be over here.

It may be worse in the U S where at any one time it is impossible to say who is responsible for the conduct of either party, or the formulation of its objectives.  And they do not appear to have a leader of the opposition. 

That leads to other bad problems – like hopeless promises about what the party might do if it gets into power.  If one party does win a change of government, much of its energy is devoted to sharing the spoils by appointing people to offices where they do not have to account for themselves as they would under the Westminster System.

The two-party system needs two parties by definition.  Government will therefore only be as good as the opposition.  That proposition is as inherent in our democracy as competition is to our capitalism.  If the opposition is weak, it does not do its job in policing government, and the standard of government drops.

The opposition party in both Victoria and the Commonwealth at present is in a very bad way.  That is obviously unhealthy for all of us.  We are used to governments going rotten because their opposition has not kept them honest.  Had the Labour Party in the U K not been so fractured, the result of Brexit may well have been different.  The disaster of Trump only occurred after the Democrats put up a candidate as flawed as Jeremy Corbyn – and that statement is large.  In each case, the people as a whole were badly hurt by the failings of one party – that were capitalised on by a party that was not much better.

The parties described as ‘conservative’ – a quite useless and misleading term – are weak in Australia, possibly worse in the UK, and a squalid disaster in the U S.  What chance then is there of the people in any of those nations getting decent government?

The parties named ‘Labour’ here and in the UK at least have a history, although that label is troubling for many whose collar is not blue, and if that party wants to be in the race, its members dictate that its policies are hardly different to those of the ‘conservatives.’ 

That too is unhealthy almost by definition in a two-party system.  Adversaries don’t usually sing hymns of praise from the same song sheet.  In the result, we have two desultory mobs that look sadly alike – except to their war weary old warriors or those bystanders whose livelihood depends on conflict.

But there is a worse problem.  A decent opposition does not just attack the policy of the government.  It offers an alternative policy that it will put in place if elected.  That is a necessary function for it in a two-party system.  It is no good just saying ‘No’, and putting a spoke in the wheel – and picking up your bat and ball and going home.

It was in a book about the Revolution – Leaders of the French Revolution – that the wonderful English historian, Dr J M Thompson, set out the ground rules.

…an Englishman …. has been trained to exercise his party spirit in the game called the Party System; and among the rules of that game – not always observed [1929] as they should be – are the obligation to sink personal differences in party loyalties, not to criticise your opponent’s policy unless you have a better one that you are prepared to carry out yourself, and in case of national crisis, to help rather than hinder whatever government may be in power.  But party politics in the French Assembly meant a very different thing….so majority legislation might be merely partisan, and minority criticism merely destructive and irresponsible.

Before you condemn that as too old and too far away, remember that it comes down to us from those who invented the whole bloody game.

That kind of rule, convention, or practice has fallen away in the last generation.  It may or may not be coincidence that it reared up immediately when a black man was elected as President of the U S for the first time, and the Republicans – predominantly old and white and paradigms of platformed mediocrity – resolved to do all they could, and to cheat as hard as they could, to stop President Obama doing just about anything – whatever the cost.  Decent people around the world looked on in horror as erstwhile guardians of the constitution simply went on strike and stopped the government dead, and did all in their power to stop a once decent nation catching up to being within about a century of the rest of the west on universal health care.  So, the Americans preferred the model of the French Assembly shown by Dr Thompson as at, say, 1793.

And some very mediocre people who did not know any better followed their example in Australia.  The worst instance was the quite irrational opposition to any responsible policy on the environment, which left us as an international dunce, with life threatening consequences at home for the rest of us.

The other party committed the reverse sin.  Instead of opposing a policy on refugees that had been manipulated just to win one election, it decided that discretion dictated that it should swallow its principles.  And we tried to pretend that other nations did not notice our falling off.  We just observed the standard practice of binning the Sermon on the Mount when politics rule the game, and with not one blush to be seen.

So – there is a sketch of one problem of three democracies.  And it is one for which the people as whole are plainly answerable – although there is not much sign of that.

The other problem is another case of our failure as a people.  

In our world, if we want someone to do something for us, we usually have to do something for them in return – and that generally means that we have to pay to get what we want.  The service we get depends on what we pay for it. 

People in Australia and England expect a very high level of service from government.  From just about the time the Commonwealth of Australia came into being, we have been part of what is called the Welfare State.  We expect government to provide services in health and education and to look after the infirm, aged and unemployed.  That is a fact of our political life, and one reason why the word ‘socialism’ is useless here.  The U S has a very different approach to government, and it is one that the rest of the western world simply could not countenance.

If something goes wrong in Australia, people demand to know what ‘they’ will do about it.  But although we demand and expect full protection and support from our government, we are not sensible or mature enough to have a rational discussion about how we pay for it. 

The word is tax.  We are not as coy as the Americans, but that is not saying much.  As it seems to me, we have not been game to collect enough tax from people who could afford it – people like me.  I would scream and groan – I have done that anyway – but the funding of the services we expect from government would have a rational basis. 

Even a slight invitation to the dance puts people in a tizz – after the politicians have put the frighteners on them.  The scare about capital gains and franked dividends was cowardly and callous – and also showed a scary ignorance in the financial press

Our failure to reach this level of sense and maturity leaves our politics sadly predictable and banal, with very ordinary people being bitchy on the fringe, and not looking at the world as it is.

As best as I can see, the first problem only looks like getting worse.  Accordingly, we are unlikely to deal with the second.  The inherent risk in any democracy is that government will not govern in a way that people will not like in the short term, when that is precisely what they need for the long term.

The case looks much worse in the U S.  The Puritans killed off the English way of dealing with poverty, and they did so on doctrinal grounds.  The Founding Fathers elevated the English Bill of Rights into the Constitution and turned the Justices of the Supreme Court into lawmakers in areas we may prefer not to see our lawmakers entering – including those relating to guns and God.  The English never refer to their Bill of Rights; in the U S, it has trashed the joint.  And they have been unable to keep God out of government, with results that are nauseating – not least for God.  The Civil War inflamed the cancer of race, their Original Sin.  The nation then refuses to look after those who don’t do so well.  They show a Darwinian coldness that is unconscionable to us.  And those who were supposed to guard the constitution have wrecked it by tolerating, then electing, and then submitting to an amoral fraud and a coward.  And too many American people want to believe obvious and venomous lies.  The politicians have cheated and vandalised all the way.  Government in the U S is now so low that it cannot even do its first job – protect the people by keeping the peace.

And, so, we the people all get what we deserve.  Or, as someone said, if you pay peanuts, you get monkeys.  If we are not prepared to do enough or pay enough to do better, we don’t deserve it.  The short point is that we do not do enough or pay enough to make our democracy work well.  The problems with our democracy are not with government or the parties, but with us.

Politics – two party system – Westminster – Left/Right – Conservative/Progressive – Liberal/Labor – Independents.

It is not fair of Nine.  On Mondays, we can get Downer in the AFR and Brandis in The Age.  Today in The Age, George is on about Gough.  A mate said that is like asking a child to paint the ceiling of the Sistine Chapel.  That is a clean 10.  Straight to the pool room.

There is a piece on the Lehrmann trial by Julia Quilter, an associate professor in the School of Law at the University of Wollongong.  The writer looks at the trial from her perspective ‘as a researcher of sexual assault trials for the past 20-plus years.’  And also from the perspective that ‘40 years on, the mission to transform sexual assault trials, and rid them of rape myths that work profoundly to the disadvantage of victims of sexual violence, remains unfinished.’  The question then is: How do you reduce the disadvantage to the complainant in one sort of case, and not others, without at the same time working to the disadvantage of the accused? 

You do not have to be Sir Owen Dixon to know that experience of forensic contests tells us that one story is good until the other story is told.  (That’s from memory.  You get the same in the Bible.)  The complainant says one thing.  The accused says she is lying.  The law says that his case has to be put fairly and squarely to the complainant in the witness box – otherwise the judge gets very angry.  But that does not look to be the perspective from which this piece is written.

Take one example.  The writer is concerned that in ‘an estimated 50% of sexual assault cases, the complainant’s intoxication is a familiar line of defence scrutiny’, the suggestion being that ‘the complainant cannot be said to be a reliable witness’ – even though the fact is that ‘the scientific research literature shows that a witness who was drunk at the time of the events is no less likely to be inaccurate about central issues, even if their recall about peripheral details is imperfect’. 

The Wollongong lawyer is briefed to appear for a man charged with attempted murder.  Her instructions are that a critical witness against her client was seriously drunk at all relevant times.  Counsel for the Crown objects to cross-examination about sobriety, and refers to the scientific research literature.  That could not happen.  What if the indictment also alleges rape and the witness is the complainant?

The Lehrmann trial was very sad for all involved.  I am yet to hear a clear analysis by a disinterested person with the relevant expertise about how it could have been determined more fairly and decently.

A few pages on in the paper, we get Abbie Chatfield.  Abbie is a ‘TV, radio, and internet personality.’  She has a dog called Mr Handsome Walter.  She gets most of her news from TikTok and Instagram.  Her guilty streaming pleasure is ‘obviously Real Housewives’.  What’s the vice Abbie wishes she could give up?  ‘Sleeping with toxic people…’

Well, no one should accuse The Age of being cloistered. 

I am doddering to the time when I will join the Wolf looking for kangaroos that do not exist in Wombat Forest, but there are some things down here I will not miss.