An Australian expert on agricultural research says that we are not doing enough to deal with climate change, a sentiment likely to be shared by anyone who watches the news on television.

Collectively, we are doing too little too slowly, too partially, and too timidly, to tackle the obvious challenges that have been well understood by scientists for decades.

The key word is ‘timid’.  Or, if you prefer, gutless. 

According to the Shorter Oxford English Dictionary,  the word ‘timid’ means ‘subject to fear; easily frightened; wanting boldness or courage; fearful, timorous.’  The Macquarie has ‘subject to fear; easily alarmed; timorous; shy.’ 

Let’s stick with ‘easily frightened or alarmed.’

The suggestion that we as a nation are too easily frightened or alarmed is certainly warranted in the case of climate change.  Tens of thousands of people are dying in front of our eyes, and whole areas of the planet are becoming uninhabitable or uninsurable, and yet we are still too timid to do what we should to save those who will come after us.

And you can say precisely the same thing for our failure to deal sensibly with other issues like same sex marriage, housing, corruption, and taxation. 

It is obvious that if we wish to continue with the same level of government services – and the addiction dates back to 1788 – we will have to pay more in tax to pay for those services.  But as one European MP correctly observed: ‘We all know the answers – but we all want to be re-elected.’ 

So, one weakness of democracy is that voters and the elected may be too timid to make what might look to be hard decisions.

And nowhere has our timidity been more on show than in our treatment of the First Nations people.  The Commonwealth has pussy-footed over this since it was born. 

So, a considered suggestion is made – that we the people give them a voice in the government of this nation.  What could be simpler?  Who in good faith could say ‘No’?

But we are told it is not simple, and there are risks.  And the timid wire is tripped yet again.

And that wire is set by just the people who set it on same sex marriage, housing, corruption, and taxation.  They are people of dark corners.  They do not appeal to the contented among us, but to the discontented; they confuse being reactionary with being conservative; and they are much stronger on demolition than building.  To the extent that any of them appeals to an Australian under forty, that is a sad accident of history.  They do in a few ways resemble those who delivered Boris Johnson or Donald Trump.

And this most recent appeal to the timid is so brazen as to be contemptuous.  ‘If you don’t know, Vote No!’  ‘Just accept that you’re just another bloody idiot, Short-arse, and leave everything to dear old Uncle Rupert.’

It is so sad a flaw in a young nation that should have everything before it.  We are being held back by naysayers who apparently don’t want us to grow up.

And if we have had this problem with the issues I have referred to, just think of the bloody mayhem that awaits those who would like to have an Australian head of state.

It is no small thing to call someone out for being timid.  If you said it to an Australian cricketer or footballer, you would be looking at a bunch of fives.

But we the people just keep toddling along ,and rolling over like bunnies back to our burrows, at the whistle of suits in Canberra, and an outcast in New York – and we mock the myths of the bronzed Anzacs, Ron Barassi, and Shane Warne.

Well, we are no longer the lucky country, but we are still run by second rate managers, who have run us out of luck, and who exist to inflict their own timid mediocrity on the sunlit plains extended.

Exeunt, with a dead march.

Voice – Murdoch – Horne – Liberal Party- conservative.

Two systems of law compete in the world for adoption – Roman law, and the common law, or the Anglo-American model. 

The first looks to elegance and codification, and is big on theory and grand design.  The latter grows from accidents of history, and responds to events rather than theory.  There is a difference in the underlying world views, as big as the difference between Aristotle and Plato, and between Aquinas, Rousseau and Marx, on one side, and Hume, Burke and Keynes, on the other.  I have sought to catalogue both – ad nauseam for the taste of some. 

The difference is deeper than the Atlantic.

And then there is the fact that the notion of the rule of law, which is fundamental to our view of civilisation, let alone governance, comes from the common law.  It was not developed under Roman law.

Both these facts of legal history are apparent in Magna Carta, 1215.  It was like Mafia dons making the peace, but the result is the most remarkable constitutional document the world has seen.  It is the foundation of the English constitution, and the origin of our idea of the rule of law.  It is more than 800 years old, but most of the rest of the world has not caught up with it yet.

The following comments come from reading Magna Carta by Professor David Carpenter, and should be read with two of my papers, The Story of English Law, and The Universal Juristic Schism, both published in the eBook, Some Papers on the Law (Amazon, 2023).

When considering the consequences of a document at law, we common lawyers look not for the intention of the creators of the document, but for the legal effect of what they have said. 

And that in turn develops further depending on what other judges have said those effects.  The legal effect is determined by the courts – and that may change with the composition of the court, as any constitution means what its judges say it means.  (Recent events in the U S are an alarming example.)

So, it may not surprise us if we give Magna Cartaan effect that would have seemed revolutionary to the barons – who did turn up armed at Runnymede.  (There was a war on.) 

And in turn, we would not be surprised if the authors could not have foreseen what effect would be given to their work.  (Similarly, if you told the authors of the Bill of Rights that the reference to a right to bear arms would be used more than three centuries later to fordid a sometime colonial government from banning hand guns in New York, they would have fallen about laughing.  Stuart kings had produced just such a ban for London by royal proclamation.)

And it may be just as well that we don’t need to determine what went through people’s minds in 1215, as I have no confidence that I can follow the effect of God and Rome and the oath on people back then.  As far as I know, they thought invoking God was far more decisive than invoking the law.  And we are looking at a Church that said its people were outside the general law – which would be unthinkable now.  And Hell was, I think, in the game or on the table back then – it is not now.

Much of the document that is Magna Carta now looks extravagantly beneficial to the people and adverse to the king.  The stated intention of involving the ‘commune of the whole realm’, and passing on to people down the line the benefits obtained by the barons is staggeringly ‘progressive’ – if I may use that slippery term.  Most political history turns on efforts to slam the door of the tree house on the next lot claiming to share the spoils.  That is what brought undone the revolutions of 1776, 1789, and 1917.  Yet the barons and their lawyers saw this coming in 1215.

This is amazingly precocious – and so much more uplifting than the grand lie about all men being created equal; or the danger of giving a right of rebellion to people disaffected by the new regime.  (It would become a fact of English historical life that a king who acted badly could be dethroned.  Richard II is just the most fabled example.  But it is not a good idea expressly to confer such a bathplug clause in the constitution – which the English realised when they went from 1215 to the Declaration of Rightsin 1689.)

The significance of the commune, as a sworn group, would be far more obvious to French historians having regard to the communein Paris in 1792 and 1870.  Marc Bloch, in his wonderful work, Feudal Society said this:

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

The security clause of Magna Carta was always going to be exhibit A in a petition to Rome on the ground of duress.  When Macaulay said Strafford was ‘the first of the rats’, he forgot King John.  The English knew that, and inserted a clause that the king would not go the pope to get any deal revoked.  The drafting was altered to exclude reference to the pope personally.  That had been bad cosmetics.

There is no basis for suspecting that the king negotiated in good faith.  You could say much the same for the other side.  King John had what is now called a ‘transactional’ approach, similar to that of unreliable people today like Trump or Boris Johnson.  They routinely enter agreements with no intention of honouring them. 

That seems to me to be very likely to have been the case here.  And of course, he had the fall back of being able to get Rome to quash the deal – even if he had to pawn the kingdom to do so.

So, he made extravagant promises that would diminish the status of his successors.  We also see that process at work today.

And this was massive interference by a foreign potentate in the affairs – nay, in the constitution – of the English. 

The English were told moonshine about the E U and ‘sovereignty’.  The E U had nothing on the Vatican, and no decent independent nation could tolerate that kind of interference.  The bible has something to say about serving two masters, and English kings who owed allegiance to a foreign power were placed in a horrible position of conflict of interest. 

It is ironic that that issue came to a head after the pope got into a position of conflict of interest involving that quaint body called the Holy Roman Empire – and as a result he could not accommodate a routine request from Henry VIII – who promptly decamped from Rome, in high style, and higher hypocrisy.

There is a juristic issue about an English king being guilty of treason, but there is no doubt that King John and Kings Charles II and James II betrayed their nation in their dealings with the Vatican – for which the English banned Catholics from sitting on their throne.

So, the English came to bring their kings and priests into line.  That just left them to deal with the nobility and to enfranchise the whole people.

There were three main planks that sat on and in the developing common law – Magna Carta, in 1215; the Act of Supremacy in 1534; and the Declaration of Rights, 1689.  Each was said to be just a recognition of custom or precedent, but each may be seen as part of the movement seen by Sir Henry Maine as the transition from status to contract.

It is against that background that you can see the failure of Europe to develop on its own the concept of the rule of law.

And now in 2023, we just pedal on surrendering our status to robots with whom any contract is worthless.

The attachment to Taylor Swift looks to be a form of unbalance brought on by iPhones, the new and nasty form of addiction.  She looks to be a well-managed construction in a world of make-believe. 

The press today reported that Ms Swift has re-recorded a song.  One lyric was ‘She’s better known for the things that she does on the mattress’.  It is now ‘He was a moth to the flame, she was holding the matches.’  The first version drew ‘accusations of misogyny,’ and the reversal was said to be ‘in line with Swift’s modern reputation as a feminist.’

As bullshit goes, that is hard to beat. 

But the same report says Lizzo and Beyonce have removed the word ‘spaz’ from songs.  That was apparently thought to be an ‘ableist slur.’  I don’t have the faintest idea what that might be – which is a shame, because I think I may be a victim.

As if on cue, the first message to And Another Thing in this morning’s paper refers to the lady appointed to the Reserve Bank, and to ‘the misogynistic vitriol likely to be hurled at her when the cash rate rises again’. 

Philip Lowe was, predictably, subjected to vitriol when the cash rate rose, but I do not recall any of that vitriol being predicated on the fact that he is a bloke.

As far as I know.

What follows is a speech by the historian Lord Macaulay in Parliament in 1848.  Customs have changed since, but not the humanity underneath.  The language might appear to be both aged and candid.  But the speech for me explains the sewer into which the U S has sunk, and not just on the attack on the Capitol

I believe, Sir, that it is the right and the duty of the State to provide means of education for the common people. This proposition seems to me to be implied in every definition that has ever yet been given of the functions of a government. About the extent of those functions there has been much difference of opinion among ingenious men.

There are some who hold that it is the business of a government to meddle with every part of the system of human life, to regulate trade by bounties and prohibitions, to regulate expenditure by sumptuary laws, to regulate literature by a censorship, to regulate religion by an inquisition.

Others go to the opposite extreme, and assign to government a very narrow sphere of action. But the very narrowest sphere that ever was assigned to governments by any school of political philosophy is quite wide enough for my purpose. On one point all the disputants are agreed. They unanimously acknowledge that it is the duty of every government to take order for giving security to the persons and property of the members of the community.

This being admitted, can it be denied that the education of the common people is a most effectual means of securing our persons and our property? Let Adam Smith answer that question for me. His authority, always high, is, on this subject, entitled to peculiar respect, because he extremely disliked busy, prying, interfering governments. He was for leaving literature, arts, sciences, to take care of themselves. He was not friendly to ecclesiastical establishments. He was of opinion, that the State ought not to meddle with the education of the rich.

But he has expressly told us that a distinction is to be made, particularly in a commercial and highly civilised society, between the education of the rich and the education of the poor. The education of the poor, he says, is a matter which deeply concerns the commonwealth. Just as the magistrate ought to interfere for the purpose of preventing the leprosy from spreading among the people, he ought to interfere for the purpose of stopping the progress of the moral distempers which are inseparable from ignorance.

Nor can this duty be neglected without danger to the public peace. If you leave the multitude uninstructed, there is serious risk that religious animosities may produce the most dreadful disorders. The most dreadful disorders!

Those are Adam Smith’s own words; and prophetic words they were. Scarcely had he given this warning to our rulers when his prediction was fulfilled in a manner never to be forgotten. I speak of the No Popery riots of 1780. I do not know that I could find in all history a stronger proof of the proposition, that the ignorance of the common people makes the property, the limbs, the lives of all classes insecure. Without the shadow of a grievance, at the summons of a madman, a hundred thousand people rise in insurrection. During a whole week, there is anarchy in the greatest and wealthiest of European cities. The parliament is besieged. Your predecessor sits trembling in his chair, and expects every moment to see the door beaten in by the ruffians whose roar he hears all round the house. The peers are pulled out of their coaches. The bishops in their lawn are forced to fly over the tiles. The chapels of foreign ambassadors, buildings made sacred by the law of nations, are destroyed. The house of the Chief Justice is demolished. The little children of the Prime Minister are taken out of their beds and laid in their night clothes on the table of the Horse Guards, the only safe asylum from the fury of the rabble. The prisons are opened. Highwaymen, housebreakers, murderers, come forth to swell the mob by which they have been set free. Thirty-six fires are blazing at once in London.

Then comes the retribution. Count up all the wretches who were shot, who were hanged, who were crushed, who drank themselves to death at the rivers of gin which ran down Holborn Hill; and you will find that battles have been lost and won with a smaller sacrifice of life. And what was the cause of this calamity, a calamity which, in the history of London, ranks with the great plague and the great fire? The cause was the ignorance of a population which had been suffered, in the neighbourhood of palaces, theatres, temples, to grow up as rude and stupid as any tribe of tattooed cannibals in New Zealand, I might say as any drove of beasts in Smithfield Market.

The instance is striking: but it is not solitary. To the same cause are to be ascribed the riots of Nottingham, the sack of Bristol, all the outrages of Ludd, and Swing, and Rebecca, beautiful and costly machinery broken to pieces in Yorkshire, barns and haystacks blazing in Kent, fences and buildings pulled down in Wales. Could such things have been done in a country in which the mind of the labourer had been opened by education, in which he had been taught to find pleasure in the exercise of his intellect, taught to revere his Maker, taught to respect legitimate authority, and taught at the same time to seek the redress of real wrongs by peaceful and constitutional means?

This then is my argument. It is the duty of Government to protect our persons and property from danger. The gross ignorance of the common people is a principal cause of danger to our persons and property. Therefore, it is the duty of Government to take care that the common people shall not be grossly ignorant.

Although I have not read the report of Catherine Holmes, SC, I gather it revolves around two issues in our system of governance

One is the collapse of responsible government in the Westminster System – no one in parliament or the civil service is responsible for anything. 

Another is a fundamental misconception about the role of welfare.  Looking after those who cannot look after themselves is an essential function of government here (but not the U S).  Government does not perform that function by making insulting remarks about the need for a strong policeman on the beat.

And now those who were fairly and heavily criticised in the report, and what are called their boosters in the press, have responded on script.

None of the ministers was responsible for this unlawful tragedy, and the leading civil servant in the gun is sitting pat on $900K.

Not one word of sympathy or apology from any of them.

The Leader of the Opposition says the government is ‘politicising’ the report.  He warns against trial by media.

The Australian could not have been more predictable.  Its editorial begins ‘Apart from the odd slice of emotionalism…’ and goes on to say that the Commission was on ‘less solid ground’ calling for politicians ‘to lead a change in social attitudes to people receiving welfare payments.’

The lady running the Commission looks to me to have done a fine and very needed job. 

But for some people in politics and the press, she may as well shout at the deaf.

Quod erat demonstrandum.

Robodebt – Liberal Party – Murdoch.

The vehemence of the English response to the Bairstow stumping, and the cold blood of the hypocrisy of Bairstow, Broad and McCullum, and the sheer vulgarity of the MCC, suggest that most of this nonsense has little to do with cricket. 

In his column, Nick Bryant, who is English, said that booing in sport is a confession of self-defeat, and that after the disaster of Brexit, the English nation badly needs a win. 

I agree on both counts.

Well, the lynch mob in the Long Room are just the people who gave England Boris Johnson, Michael Grove, and Jacob Rees-Mogg, and who got into bed with Nigel Farage.  (It would be best to pass over some other disasters in silence.) 

The better people are now courting the mob in the outer in the way they did with Farage and the Red Wall. But it is one thing for the Hottentots to spit bile on the terraces of Manchester United.  It is altogether a different thing for the Tory tribal elders to do so at Lord’s.

Underlying both failings is the born-to-rule sense of entitlement of a caste that now has as much use as Childe Harry and Megan.  Sorry, Boys, but after Mafeking was relieved, there was that sad fiasco at Gallipoli, and we legislated to force the MCC here to accept women as members two generations back, now.  Putting women in the Long Room should be a step toward civility, if not civilisation. 

Curiously, it was the fallen idol of Eton and Oxford who put his finger on the issue in his petulant remarks on leaving number 10.  He said that ‘the herd instinct is powerful, and when the herd moves, it moves.’  Unusually for Boris, he got that right.

Stuart Broad – MBE, if you please – resembles Boris so much.  They somehow think that the world owes them a living because they are so pretty, and they can do so much.  You would think they run the joint. 

But if you wanted to know what public service means, the last person you would ask would be Boris Johnson.  And if you wanted to know what the ‘spirit of cricket’ might mean, the last person you would ask is Stuart Broad.  Since he nicked the ball to first slip, and refused to walk, he has been public enemy number one.  Stuart thinks that’s bonzer.  He is noticed.  He is England’s answer to Scaramouche.  Who needs mere cricket?

The worrying thing is that at least the Stark catch that was denied shows that the laws need attention.  We are not talking about the ‘spiritual’ here.  We are talking about the logic of ball games.  The present rule was designed for letter-of-the-law nit-pickers who live for TV replays – that are killing so much sport.

The worry is that this is a matter for the egg and bacon brigade.  It is curious that we are yet to hear the response that a judge gave to counsel that is I think in the Year Books – at about, say, the end of the fourteenth century.  It was , as I recall, to this effect: ‘Don’t tell us what the laws mean – we made them.’

And they’re on your heads, chaps.

Cricket – MCC – snobbery – bad laws – bad manners.

The Australian cricket team has been accused of ‘cheating’ in the stumping of a batsman out of his crease. 

What is ‘cheating’? 

The dictionaries refer to fraud or deception.  That is not the case here. 

Where you are talking about conduct in a game played according to rules, ‘cheating’ means conduct by a player in breach of the rules that is intended to give the player an unfair advantage.  Well, that is certainly not the case here either.

But that description does apply to the conduct of the MCC members jostling and abusing opposition players with a view to putting them off their game and so conferring an unfair advantage on their own players.

Some care should be taken with calling people cheats in sport.  Players routinely test the rules to see what is allowed.  They also at times attract a penalty rather than let the game go on as it is.  Some sports are better at controlling this than others.  In some football games, you can see a penalty try awarded, or a penalty imposed for a ‘cynical’ abuse of the rules.  It is like the French legal concept of ‘abuse of right’.

People in cricket refer to ‘the spirit of the game.’  The notion, like ‘conduct unbecoming’, is in large part codified, but as difficult to define and apply as the notion of ‘unconscionable’ in our law of equity. 

And umpiring is hard enough as it is without asking umpires to rule on issues that the judges took centuries to refine.  And it is very difficult for any professional sport to keep a straight face about its ‘spirit’, when it thrives on gambling, which is so inimical to the community at large.  They are like pimps living off the earnings.

Well, the conduct of the members of the MCC was certainly against the spirit of the game.  As was the conduct of an English bowler who abused a century making Australian in terms that he could have picked up in the Scrubs.  He seemed to think, and he said, that this was an ‘Ashes test’ – as if that made the conduct acceptable.  I have not seen any reproof or penalty. 

And the target of the abuse was a Muslim player of colour.  Who also got targeted by the members.  To the point where he replied: ‘Stay civilised, guys.’  He was appalled by the behaviour of the better people.

But we now see that the spirit of the game can be invoked to save face for players who flirt with the rules.  In the first test, Moeen Ali was charged with using a spray on his hand that may have affected the ball.  But he was not penalised for tampering with the ball, but conduct contrary to the spirit of the game.  The press said that was the lesser charge.

When I looked at the Macquarie for ‘cheat’, my eye fell on ‘cheap shot’ – in sport, ‘an act of unsporting behaviour, often committed slyly and with the intention of injuring the opponent.’

In sport as in life generally, there are some things you cannot legislate for, or police.  The claims of unsporting conduct or conduct contrary to the spirit of the game are almost always made by the loser – and that conduct of itself is unsporting.

Two very clear recollections come back to me about playing cricket as a boy at Glen Iris State School.  One is that if you wanted to leave the crease as a batsman, you said ‘Wicket Leave.’  The other was that in cricket as in marbles, we were all intent on making the rules up we went.  To suit ourselves.

We have seen all that and more in the last few days, but the bullshit is in the realm that Immanuel Kant would have described as transcendental.

And it would be as well for the English to remember that the term ‘Ashes’ comes from a time when England’s losing to Australia was said to entail the death of English cricket.

Cricket – Bairstow – Ashes.

Again, what the Emperor determines has the force of a statute, the people having conferred on him all their authority and power by the ‘lex regia’, which was passed concerning his office and authority.  Consequently, whatever the Emperor settles by rescript, or decides in his judicial capacity, or ordains by edicts, is clearly a statute: and these are what are called constitutions.

(Institutes of Justinian, 2.6)

Such was the unhappy condition of the Roman emperors, that, whatever might be their conduct, their fate was commonly the same.  A life of pleasure or virtue, of severity or mildness, of indolence or glory, alike led to an untimely grave; and almost every reign is closed by the same disgusting repetition of treason and murder.

(Gibbon, Decline and Fall of the Roman Empire, Ch. 12)

De par le roi.

(The opening of royal arrest warrant called lettre de cachet (‘letter of the signet’) – ‘In the name of the king’.   The lettre concluded: ‘Car le roi le veult’.  ‘For the king wills it.’  It derived in the Middle Ages in France from the Roman law maxim ‘Rex solutus est a legibus’ – ‘The king is released from the laws.’)

The king is below no man, but he is below God and the law; law makes the king; the king is bound to obey the law…

(Bracton, On the Laws and Customs of England, Vol 1, 38 (Harvard Edition, commenting on the effect of Magna Carta)

1

When Lord Clark, the art critic, began his series Civilisation, he referred to a remark by an art critic.  His confessed difficulty in defining ‘civilisation’ showed that he would be looking at the issues primarily from the art of those people or states that he was discussing.

How might a judge and jurist – someone like Lord Sumption – have approached the inquiry? 

Lord Clark chose to start at about the end of the Roman empire.  Back then, people like Lord Clark viewed ancient Greece and Rome as civilised, notwithstanding the dependence of each on slavery and empire, and their failure to see the dignity inherent in each of us merely because we are human.  And notwithstanding the failures of each to maintain settled governance. 

Well, if a judge and jurist wanted to start an inquiry into civilisation in Europe in the Middle Ages, they may well have started with the quote from Bracton above to the effect that the king is under the law because the law made the king.  And they would have then or later dwelt at length with the principal source of that observation then – the famous charter called Magna Carta.  It’s not just that this to our ears sounds more solid than that the king is there by the grace of God.  It’s that there was a compact between the king and the people prescribing his duties and their rights.

The Great Charter may be more revered in the US than the UK, but it would be fundamental to the inquiry into what most people now would regard as the criteria of ‘civilisation’.  In looking at those regimes that we least admire – like Russia, China, or Iran – we look at the way they protect the rights of citizens against government first, and then the way they provide stable government, and then the way they look after those not doing so well.  It’s not much good having a Ph D on the smile of Mona Lisa, or the downward glance seen in young women by John Keats, if you can be arbitrarily arrested by goons in black leather just before dawn, or if a superior can claim the right to sleep with your bride to-be before you. 

While some people refer to the phrase ‘human rights’, those brought up in the Anglo-American legal tradition tend to refer to ‘the rule of law.’  You may be sure that those regimes that I referred to will have some fine sayings about ‘human rights’.  It’s just that they have never been brought up to respect or enforce them.  They have never developed the state of mind that is required for that purpose.  And if history shows one thing, it is that such a state of mind cannot be bought off the shelf.  It may take a number of generations.

So, we here in Australia have been brought up under the English common law tradition, and we have the benefit of comparing our acceptance of the common law to that of the U S.  Most former colonies of the English follow a similar pattern.

Most of the rest of the world follows the Roman Law model.  It was developed in ancient Rome over a period of more than one thousand years, and its settled form came in compilations of Justinian when Rome was falling.   Most of Europe has legal systems based on the Roman Law.  For example, France and Germany have civil codes, a course not followed by those who prefer the common law model.

How do the two legal systems that cover the world now compare in treating the rule of law?

2

Sir Owen Dixon is by common consent, and not just here in Australia, regarded as the greatest judge and jurist that this country has produced.  If you want to see Dixon as lawyer, you will go to his judgments – if you have the training.  If you want to see Dixon as a jurist, you will go to his papers. 

One of them is headed The Common Law as an Ultimate Constitutional Foundation.  It is a descant on how Dr W E Hearn, whom Dixon greatly admired, began his book The Government of England.  The first sentence reads ‘The English Constitution Forms part of the Common Law.’  And Sir Owen brought all the learning of the common law – what he after Maitland called ‘the high technique’ – to his analysis of constitutional issues.

In another paper, Two Constitutions Compared, Sir Owen referred to the Australian preference for the supremacy of parliament in looking at the capacity of the US Supreme Court to overrule Congress.  But before doing that he said this:

We all accept without question the Anglo-American conception of the rule of law.  Deeply as it enters into our habits of thought about the relations of the individual to the State, we seldom reflect that this conception is foreign to the Roman system.  It is a conception that belongs only to the common law, by which it has been preserved and transmitted.  It is a conception without which the theory of a rigid Constitution could never have grown and that theory is indispensable to federalism as we know it.

Well, if what we call the rule of law is fundamental to our understanding of civilisation, where does that leave Europe?  

The answer is that prior to the restructuring of Europe after 1945, its position was fundamentally different to the Anglo-American model that we follow.  And you only have to look at the citations at the head of this note to see how different that model was.  The gap between the common law and Roman Law models was deeper than the Atlantic.

3

Before looking at the background to this schism that splits the juristic world, we might recall what we mean by the phrase ‘the rule of law.’ 

The conception was spelt out by A V Dicey in The Law and the Constitution in 1885.  Dicey saw three elements. 

First, the government cannot act against anyone except under a law and by due process.  There can be no arbitrary government action.  This was not novel.  Aristotle said that ‘the rule of law is preferable to that of any individual.’  Another Chief Justice, Sir John Latham, said: ‘It is not the English view of law that whatever is officially done is law – a view adopted by some jurists on the Continent of Europe – on the contrary, the principle of English law is that what is done officially must be done in accordance with law.’  You will recognise in his Honour’s remark about European jurists the statement about the law-making powers of the emperor at the head of this note.

Secondly, no one is above the law – all are equal before it.  This too is contradicted in the Institutes.

The third is unique to the common law.  It was never part of the Roman law model and it follows at least in part from the role of the common law underpinning the English constitution.  The constitution is not so much the source as the consequence of rights of individuals. In the typical European scheme, it is the other way around – private rights derive from public institutions.  The distinction is elemental.

We should here mention another element.  In the paper, The Law and the Constitution, Sir Owen remarked that three rival conceptions of the legal doctrines embodied ‘in the Revolution Settlement’ (the Bill of Rights, 1689) became reconciled.  They were the supremacy of the law; the supremacy of the Crown; and the Supremacy of Parliament.  It was the last that the framers of the Bill of Rights were most concerned with.  Parliament was made supreme over the Crown.  That is the touchstone of the English constitutional settlement.

Two things follow.  For the three adverse regimes I mentioned, all that would be gibberish.  Secondly, knowing what we do about the US, and especially over the last seven years, they do things very differently – and have departed radically from the parental model.

4

We might then reflect on some of the fundamental differences in the way people see the world – between those in England, and those on the other side of the Channel, say, France and Germany.  The common law did not evolve from nothing; nor did the adoption of codes after the Roman model by France and Germany.

The Roman law derived from codes and codification was its preferred mode of growth.  Roman lawyers look for elegantia iuris – formal elegance.  The French Code Napoléon is an example.

The makers of the common law did not go in for grand designs, and codification.  It arrived, as if by accident, over a long period– the product of trial and error in applying the doctrine of precedent to events that unguided chance throws up. 

The difference is reflected in the philosophies prevailing on each side of the Channel.  One is the rationalist view of the world – built around theory.  The other is the empirical – built around hard experience.  Ultimately that philosophical divide is reflected in the logical divide between deductive and inductive reasoning.  For common lawyers, there is much truth in the well-known statement of Oliver Wendell Holmes that the ‘life of the law has not been logic, but experience.’  He also said that ‘the law is administered by able and experienced men who know too much to sacrifice good sense to a syllogism.’

Those statements are very large.  Here is an example from the histories of France and England.  In 1789, The Social Contract by Rousseau – whom Carlyle called ‘the Evangelist’ – contained high theory that engaged those in leading the French Revolution and creating the French Bill of Rights.  In 1689, the English just got rid of the Stuarts and then went on with their lives.  As it happened, a philosopher, John Locke, wrote a rationalisation after the event.  Which almost no English MP has ever heard of.  That revolution was successful.  The English never had another – and Macaulay purred over that success.  The French were in for a century of agony, and people lost count of their models of government.

The two worlds don’t mix well.  When Americans or Australians seek to mix a constitutional absolute with the common law, it is like dumping a lamb shank on a pavlova.  Look at the trouble we had with s 92, and that the Americans have with the Second Amendment.  There is simply no such issue in the UK.  They refuse to let a syllogism, much less ideology, trump sense.  The question is simply: What works better?

English and Australian lawyers have an unashamed want of respect for intellectuals or philosophers – and, on a bad day, even for scholars.  Americans at least tend to look up to legal scholars.  This may be related to the absence of a separate bar – which we could not contemplate.  (And nor could our judges.) 

The laws of England mainly derived from decisions of the judges with occasional inputs from the parliament – although that ratio is changing.  The common law derived from custom and precedent and at once underlay but could be overridden by parliament.  The law of France and Germany tends to derive from legislated codes with occasional contributions from judicial precedent.  One tends to grow from the ground up; the other is what we now call top-down.

English lawyers were apprenticed – the word comes from the French apprendre (‘to learn’) – on the job.  The profession controlled both the education and certification of all lawyers.  The Inns of Court carried so much more clout than any bureaucratic form. 

The common lawyers – at both the bar and the bench – often allied themselves with parliament against the Crown.  This de facto alliance is fundamental to our understanding of the English revolutions of the seventeenth century when the basis of the English constitution was settled. 

This movement was not matched across the Channel.  The importance of the part played by English lawyers in shaping their nation only becomes apparent when you compare them to their colleagues in France and Germany and the rest of Europe.  The English lawyers were looking at the double – rugged individuals professionally and incestuously united constitutionally. 

The teaching of law at university began relevantly recently in England.  Even then, we know they only really get to learn on the job.  While lawyers may have been prominent in the French and other European revolutions, they were not involved as a professional body as they were in England.  And it is only recently that judges in some European countries have been seen to be independent.  To an outsider, the range of ‘independence’ looks very large.  It is zero in the three regimes I referred to.

Our judges usually come from the bar.  European judges are educated and trained as judges from the legal cradle.  They may not have years of private practice.  They are officers of the state rather than members of an independent profession.  The view from the bench must therefore be very different.

And these fundamental differences underlie the distinction between two modes of process – the adversarial and the inquisitorial.

5

To repeat, there are large statements there.  We are, after all, looking at 3000 years of history, and the common law has only been in the race for the second half of that time. 

But there is no real dispute about the main planks in the two platforms.  And we have seen enough to warrant the proposition that what we call the rule of law was developed in the common law and not under Roman law. 

We may just add that the common law from the beginning largely turned upon issues of process.  It was as if a right flowed from a remedy rather than vice versa.  That is an affront to European logic, but they never got the writ of habeas corpus – which is fundamental to the English conception of the rule of law.

So, the common law underlies the constitution.  It says that parliament is supreme, which logically entails that parliament can and does change the common law – or might abolish it entirely.  That is a very unsettling notion for the logically precise.  Hilarious even.

The difficulty that Europeans have with the former position of Lord Chancellor comes not from logical analysis, but a subscription to the doctrine of separation of powers.  The Lord Chancellor sat on the bench, in Cabinet and in parliament.  Heresy! 

Worse, the king heads not just the executive but the Church of England.  Well, so far as I can see, religion has little or no impact on English politics.  The position in the U S is very sadly very different.

Dicey looked at the treatment accorded to government officials in France under the droit administratif and concluded by saying that ‘the rule of law is an idea not so much unknown to as deliberately rejected’ by the constitution-makers of France.

For the supremacy of the law of the land means in the last resort the right of the judges to control the executive government, whilst the separation des pouvoirs means, as construed by Frenchmen, the right of government to control judges.

And that looks to be precisely the issue facing Israel as we speak.

The supremacy of parliament is integral to the very notion of democracy.  Sir Owen Dixon said:

It is not the least of the achievements of the common law that it endowed the Parliament which was evolved under it with an unrestricted power of altering the law.  On the Continent, the lawyers were antagonistic to representative assemblies.  The courts of law persisted in maintaining the predominance of the law over the authority of such assemblies.  By doing so, the Continental lawyers contributed to the growth of absolutism.  But in England, the contrast was great.  The supremacy of the law upon which Bracton had insisted had ceased by the time of the Stuarts to mean the supremacy of a law which could not be changed.  It had become a supremacy of law which parliament could alter if it chose.

It will not therefore surprise you to learn that Sir Owen Dixon told the American Bar Association that one view held in Australia was that ‘checks on legislative action were undemocratic, because to adopt them argued a want of confidence in the will of the people.’

And the corollary of that proposition must be that if you allow the judges to check parliament because of a want of faith in the parliament and its process, you must have full faith in the judiciary and its process.  That sadly does not look to be the case in the U S at present.

6

The subscription of, say, the U S and France to the doctrine of the separation of powers exemplifies the difference in the two ways of thinking I have sought to describe.  It shows a preference for theory or form over experience and sense.

We have seen that Dicey thought that the French subscription to the separation des pouvoirs entailed that the French rejected the notion of the rule of law.  Sir Owen Dixon was hardly less emphatic about the U S.  His Honour said that ‘a curious and surprising departure from, indeed violation of, British constitutional practice and theory is the adoption of separation of powers….  The artificial and almost impractical classification was opposed to British practice and theory.’  (I might question that last term.  Holmes thought that the English never had a theory about their legal settlement.)  He thought the reason that the doctrine had not taken hold here was ‘judicial incredulity.’  ‘Legal symmetry gave way to common sense.’

His Honour expressed that incredulity in 1935.  His reaction now hardly bears thinking of.

7

The role of the common law in forming and sustaining the English constitution has affected the way our High Court interprets the constitution.  It tends to be more legalistic than the Supreme Court of the U S in its approach, and its members have deployed their learning from their practice at the bar and, for at least some, their prior time as trial judges in common law and equity, to assist in what they see as a legal interpretation of the Constitution.  That involved them in directing juries in civil and criminal cases. 

That is no longer the case in the High Court.  All its members except the Chief Justice have come from the Federal Court.  That court was not set up to hear and determine actions at common or in equity, and it was not set up to conduct trials by jury.  We may doubt how many jury trials, civil or criminal, the present members of the court have participated in either as counsel or judge.

To put it softly, that is problematic.  And if the experience of the Federal Court in trying libel actions is any gauge, it could be a lot worse.

8

May I go back to our notions of civilisation?  Lord Clark did not feel the need to dilate upon Magna Carta.  The longer I live, the more I think that it was one of the most momentous events in the history.  It is the foundation stone of what we know as the rule of law.  Typically, the English glossed it by saying there was nothing really new – this was just a confirmation of. long held liberties.  We have learned to take with a grain of salt what the English say about peak events in their legal history, but if most of their growth came from evolution rather than evolution, this was an exception.

The role of the common law in developing the English constitution and the rule of law is too little noticed, and it may be fading from view in high places.  Readers can draw their own comparisons between the political stability over time of France, Germany and Italy on one side, and England on the other.  When I there refer to ‘political stability’, I refer to the capacity of its government to protect its own people and to get on with its neighbours. 

And readers can also draw their own conclusions about the effects of U S deviations from the common law model in deference to dogma about separation of powers.  Does anyone really think that the U S would have suffered the calamity of Donald Trump if he had been required to be elected to Congress and to sit in and be daily questioned about his conduct by members of Congress as part of what we call ‘responsible government’?

The moral, intellectual, and political impairment of the U S is deeply troubling.  Professor Ames of Harvard is well remembered for his remark that the ‘English law is more German than the law of Germany itself.’  (He was of course referring to the Anglo-Saxon part in the development of the common law.)  With the gyrations of history, we are at the point where the rule of law is less subscribed to in the U S than it is now in Germany.

NOTES

Clark on civilisation: Kenneth Clark, Civilisation, Folio, 1999, 13-14.

Dixon on The Common Law as an Ultimate Constitutional Foundation: Jesting Pilate, Law Book Co, 1965, 203.  (Later citations will be to ‘JP’.)

Dixon on ‘high technique’: JP, 153.

Two Constitutions Compared:  JP, 100, at 101.

Dicey and the rule of law: A V Dicey, The Law of the Constitution, Macmillan & Co, 1885, 172,177 and 208.

Dixon the Revolution Settlement: JP, 39ff.

Holmes on logic: The Common Law, Little Browne & Co, 1881, 1, 36.

Dicey on French rule of law: above, 398.

Aristotle on rule of law: Politics, III.6.

Latham on European comparison: Arthur Yates & Co v Vegetable Seeds Committee (1945) 72 CLR 37,66.

Dixon on supremacy of parliament: JP, 40.

On checks on legislature: JP, 102.

On separation of powers: JP, 52.

Holmes on absence of theory: Gibson, The Common Law, Australian Scholarly, 2012, xii.

Legalistic approach of the High Court: JP, 104, 247.

Ames on law of Germany: Lectures on Legal History, Harvard, 1913, 34.