A state of mind

The capacity of a people to govern itself fairly, and for its people to look after themselves and have their rights protected against their own government, depends in part on their laws.  But more importantly, it depends on the history of that people, and their state of mind in formulating, implementing, and cherishing those laws.

Events in this century lead to misgivings about the fluid, or perhaps insensible, basis of our constitutional settlement and our embrace of the rule of law. 

Does it all really come down to a state of mind?

We in Australia inherited the relevant history, legal structure, and state of mind from the English.  By and large, we are content with it.

Nations like Russia, Iran and China have never known it.  Nor has almost every other nation outside western Europe and the nations raised in the British Empire.

The U S is problematic.  When I look at the way they diverged from the British model, then, with the exception of their adherence to the jury system, I think they are worse off than us.  And therefore, more at risk of going under.

Take just three instances.  They did not require their head of the executive government to be a member of and answerable to Congress.  In my view, Trump could not have got anywhere with us.  They were not content to leave the English Bill of Rights on the statute book – they had to put it in the ark of their covenant.  They then gave unsackable and unelected people the power to run over government and make laws on the run – and along party lines.  They declined to make voting compulsory – like jury service.  That has led to wanton corruption and abuse of power.

In each case, they did so for fine ideological motives.  That was never the English way.  They always preferred hard evidence from the past to warm prognoses based on theory.  And in each case, they came up with a response that was in our eyes bullshit.

In short, they don’t have the right state of mind. 

And since the attack on the Capitol, and the surrender of the Republican Party, they look very vulnerable.

The English flirtation with ideology under the mantle of ‘sovereignty’ allowed them to be seduced by a mountebank from Eton.  But he never achieved the demonic or demotic pull of Trump, and after an interlude from the Goons Show, Tory elders restored a form of order.

The institutional failing was that a defeated and charmless government was suffered to remain in office.

Now there is another nation with the chemicals in the test tube.  Does Israel have the right state of mind to withstand a pact of evil formed by a gruesomely corrupt leader and religious fanatics who are unsafe at any speed?

My guess is that the nation called Israel will survive.  But its history with this kind of government is that of a moment compared to that of the English.  Its constitutional basis is even more shaky.  And since 1689, the English have had no trouble – at least in England – with God or his ministers.

Two things may then give us pause. 

A lot of our dispensation rests on convention.  What can be grown through use can be lost by misuse.  I had feared we had lost the Westminster System.  The question is whether we can get it back after the appalling revelations of the Robodebt Royal Commission.

Then, so far as I can see, the English doctrine of the supremacy of parliament may make it difficult, at least in the absence of a valid European legal proscription, to make legally impossible a move by the government against the judges of the kind presently attempted in Israel.

I simply don’t know – but the questions highlight the evanescence of convention.  In most other places of the world, the question is – who can command the armed forces and the police?

But some things remain constant.  The Israeli Channel Two commentator Ehud Yaari says that Netanyahu was so desperate to beat the rap that he was ‘willing to make unbelievable concession’ to the right fringe.  Boy, that sounds just like Speaker Kevin McCarthy.

And while we here in Australia have made many errors and done some bad wrongs, we have not come within a bull’s roar of Marjorie Taylor Greene.

And any people that can suffer its children to go unto her and Tucker Carlson cannot be said to have the right state of mind.

Constitutional law – England, U S, Australia – rule of law -Westminster System – Robodebt Royal Commission.

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