Tablets of our Laws

21/06/2024 / Geoffrey Gibson / Leave a comment

3 The rule of law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Passing Bull 388 – Corruption

15/06/2024 / Geoffrey Gibson / Leave a comment

Lord Acton said ‘Power ends to corrupt, and absolute power corrupts absolutely.’ We all know that. But then? ‘Great men are almost always bad.’ Worth bearing in mind, especially when thinking about ‘great’ men like Caesar and Napoleon.

Book Catalogue

11/06/2024 / Geoffrey Gibson / Leave a comment

I did an audit of work both published and being prepared for publication. The result is embarrassingly large. There were problems in two books with co-authors, but there is not much left with the remaining few. I will also look into making the Amazon books available in print.

BOOK CATALOGUE

GEOFFREY GIBSON

PART I

SIX BOOKS PUBLISHED IN PRINT

The Journalist’s Companion to Australian Law

The Arbitrator’s Companion

Law for Directors

The Making of a Lawyer

The Common Law – A History

What’s Wrong? Making Sense of Nonsense (with Chris Wallace-Crabbe)

PART II

THIRTY BOOKS PUBLISHED ONLINE

History (16)

A History of the West (5 volumes)

The Ancient West
The Medieval World
The West Awakes
Revolutions in the West
Twentieth Century West

Parallel Trials

The German Nexus: The Germans in English History

The English Difference? – The Tablets of their Laws

Terror and the Police State: Punishment as a Measure of Despair

A tale of two nations – Uncle Sam from Down Under

Looking down the Well: Papers on Legal History

Some History Papers: Essays on Modern History in England and Europe

Listening to Historians: What is Truth?

Events in France 1789 to 1794

Some Men of Genius

Four Characters in Search of their History (Fox, Danton, Pitt, and Robespierre)

Autobiography (5)

Confessions of a baby boomer

Confessions of a barrister (Learning the Law)

Summers at Oxford and Cambridge

Up your North

The Dreamtime of a White Ghost-Seer

Literature (5)

Windows on Shakespeare

Some literary papers: Tilting at windmills

Top shelf, or what used to be called a Liberal education

Glimpses of Shakespeare

More Glimpses of Shakespeare

Philosophy (2)

The Humility of Knowledge: Five Geniuses and God

Different Minds: Why are English and European Lawyers so different?

Law (1)

Some Papers on the Law

Opera (1)

Why Opera?

PART III

NINE BOOKS READY FOR PUBLICATION

A Curated Library (4)

The book that was published on Amazon as Top Shelf, or What Used to be called a Liberal Education has been rewritten and followed by three more volumes called A Curated Library. Each contains a vignette on fifty books by writers or on subjects of influence to me – a total of 200 such books. There were two criteria of selection for the top shelves: I have read and enjoyed the book at least once; and the book or its author has enhanced my prospects of my dying happy in my own skin. I have read all the novels at least twice, the bigger of them, and the histories, more often (Carlyle eight times – possibly nine; Gibbon, three). Each book or its author has been a sustaining source of comfort to me. The four volumes are ready for editing and publication. The 200 entries are set out at the end of this note in the Tables of Contents of the volumes.

The War Against Humanity

This book looks in detail, and with a full historical background, at the dramatic decline in standards in public life – government and business. Both are killing off people and leaving us and them with robots . We are in truth looking at a war against humanity. I fear for my grandchildren in a world gone virtual. Those of my age had the best of it.

The Adversarial Trial – Gone with the Wind

This is a summary of the experience of more than fifty years in the law – solicitor, barrister, tribunal president (30 years sessional work hearing and deciding hard cases in the old way – just bloody get on with it). Arbitrator, mediator, jurist and writer – and victim. Its core are papers on fighting cases, deciding cases, the collapse of the adversarial trial and jury system as we knew it, and an extended essay on the place of courage and leadership in the legal profession.

The Pursuit of Happiness

This is how to survive in a profession – and enjoy life and be of some use to others and those coming after you. Such a book is badly needed. You need to be able to write a decision, listen to Beethoven or Miles Davis, cook lamb shanks in red wine after your swim, listen to Hamlet or Don Giovanni, and salute Kant on the way to bed – fly fishing or golf tomorrow – after a shot of Keats. Comes with recipes – albeit mostly for boys – and advice about indulging yourself in high end rewards.

The Basics of Investing

This kind of book is also badly needed. It provides the basics of law and the teaching of well-known writers on investing to enable people to lose their terror of government and the stock market. There are what lawyers call works of authority in this area. I began with one co-author of repute in investing, and then with another. I need to find a co-author. The book is in substance written, but it requires the hand and name of someone of standing other than a lawyer.

PART IV

BLURBS FOR BOOKS ON LINE

A History of the West (5 Volumes)

1. The Ancient West

The general history of ancient Greece and Rome is traced separately and then their contribution to the West is looked at under the headings Gods, Rulers, Thinkers, Writers, Artists and Historians. One theme recurs – in what sense was either ancient Greece or Rome civilised?

66,000 words, fully annotated, with chronology.

2. The Medieval West

The book covers about 1000 years from the fall of Rome to the Renaissance under the headings the Spectres of Dante and the Pilgrims of Chaucer; Mohammed and Charlemagne; Saint Augustine and Saint Aquinas; Serfs and Peasants; Lords and Vassals; Soldiers and Priests; Knights and Lords; Kings and Popes; Crusaders and Charlatans; and Lawyers and Judges.

45,000 words fully annotated.

3. The West Awakes

This book deals with three phases of the history of the West (now including the US) known as the Renaissance, the Reformation, and the Enlightenment. The rebirth commenced largely in Florence. It was followed by what was traditionally called the High Renaissance centred in Rome. The spiritual Reformation exploded hotly in Germany. It was followed by a very cold version in Geneva. Typically, the English went their own perverse non-European way. There the reformation had almost nothing to do with religion, and everything to do with politics. History has not paid enough attention to the impact of this attainment of religious Home Rule on the later revolutions in England.

Volume 3 of A History of the West goes beyond the Renaissance to the Enlightenment. The German philosopher, Kant, said that enlightenment is our emergence from our self-incurred immaturity. The Enlightenment is the name given to the period following the events under the umbrella of renaissance and reformation when thinkers and artists focussed more on man than gods, and the quest for freedom became doctrinaire. The book also looks at German classical music and the birth of the U S.

The book follows all these themes through the life stories of the main players.

65,000 words, and fully annotated.

4. Revolutions in the West

Five revolutions made the modern West. The English have an unchallenged genius for deniable, incremental change, in a constitution which they built up over a thousand years or so, but even they had two authentic revolutions, one in 1641 and one in 1689, and they had a gruesome civil war in between. Additionally, we shall look at the American War of Independence (starting in 1776), the French Revolution (starting in 1789) and the Russian Revolution (starting in 1917).

The recurring theme is the willingness of those who get into a club to slam the door in the faces of those coming after them. People who think that the glimmer called the Arab Spring could be dealt with inside, say, five generations may wish to reflect on the English experience, or the Russian, or even the agony of France for the century after 1789, or the guilt of the United States before it was purged by its Civil War – and then after.

This book first looks at the old regimes before each revolution, the crises in those regimes, and then looks separately at the five overthrows. The book looks in detail at the terror in two of them, and draws conclusions about revolutions elsewhere.

Volume 4 of A History of the West is 74,000 words fully annotated.

5. Twentieth Century West

We will now look at the completion of the industrial revolution and the current onset of the technological revolution (which is destroying minds, manners, and jobs); the horror of peoples’ wars and nuclear weapons; a world depression and the threat of a recurrence of economic collapse; the popular sterility of modernism in the arts apart from jazz; the claimed death of God, and the complete absence of any alternative, and the humiliation of a world church; the rise of professional sport as a business and as the new opium of the masses; the appalling moral collapse of three entirely ‘civilized’ nations (Italy, Germany, and Spain); the depravity of three of the most evil people in history (Lenin, Stalin, and Hitler – Mao is outside our field); the way that Einstein and computers can leave us feeling powerless in a world that we now have to take on trust; wins and losses on racism; the challenges of what will be the dominant religion, Islam, the faith of the East, and what will be the strongest economic power, China; the mediocrity and possible seizing up of democracy; the extinction of the aristocracy, and the movement of wealth from land to capital; the growing divide between rich and poor; and what some see as the closing of the western mind, the emptiness of its art, and the failure of its pillars and institutions.

We shall look at these questions while looking at the lives of Kaiser Wilhelm, Henrik Ibsen, Henry Ford, Lloyd George, Edith Cavell, Albert Einstein, James Joyce, John Maynard Keynes, Sigmund Freud, Joseph Stalin, Louis Armstrong, Francisco Franco, Dietrich Bonhoeffer, Pablo Picasso, Charles de Gaulle, Harry Truman, Walt Disney, Elvis Presley, John Kennedy, Maria Callas, Muhammad Ali, Margaret Thatcher, Silvio Berlusconi, Bill Gates, and Angela Merkel. The American weighting is not surprising in what we now call the American century. We shall additionally look separately at the following issues: The Rise and Fall of the Third Reich; Two Economic Crashes; The Rule of Law and Racism; The Technological Revolution; Annihilation; and, The Death of God, Sport, and Manners?

This is volume 5 in A History of the West. The book is 95,000 words. It is fully annotated.

Parallel Trials

This book considers the two most raked over trials in history – Socrates and Christ. It looks at them in tandem under the following headings: Sources; Powers; Laws; Accused; Teachings; Accusers; Courts; Charges; Prosecutions; Defences; Verdicts; Reactions; Conclusions; History; Responsibility.

No other book has analysed either trial in such a way. In order to keep some kind of narrative going for both trials, some of the more controversial issues in the trial of Jesus are looked at in detail in Appendices. They set out the relevant terms of one of the gospels and give some comments on the difficulties that flow from them, and raise questions like: Was it blasphemy for Jesus to claim to be the son of God? Could the Sanhedrin have enforced a death sentence? Can we say what actually happened?

The evidence for the ‘trial’ of Jesus is very thin. It looks like there was a Jewish charge of blasphemy and a Roman finding of sedition: There was evidence of the first but not the second. What is clear is that the accused offered no defence to any charge against him – except perhaps when he said ‘My kingdom is not of this world’. What is less well recognised is that Socrates in substance offered no defence either. As a defence to either charge against Socrates, the Apology is demonstrably fallacious in logic. Socrates then invited the death penalty by his submission on penalty.

The book aims to be an independent analysis of the evidence and law and the procedure for each trial by a practising lawyer who does not profess any relevant faith. The final appendix gives extracts from books of two distinguished judges on either side – Christian and Jewish – which accounts are obviously disfigured by bias.

The work is fully annotated. It is about 71,000 words.

The German Nexus

This book of 27,000 words has three essays on the impact of Germany on England. The Anglo-Saxons were the first English, coming from Germany with the seeds of the language and kingship, and the glimmer of individualism. Two Germans did not take root in England, although their influence was very great elsewhere – the second essay looks at why Luther and Kant had no impact and the great difference in thinking in the two countries. The third traces the history of the current royal house which came from Germany. The three essays, which are fully annotated, look at themes I have looked at in detail elsewhere. It is deliberately idiosyncratic.

The English Difference? The Tablets of their Laws

Why are the English so different to and difficult for Europe? This is a history of the English constitutional story from Anglo-Saxon times to now for the general public or for lawyers. Germans (410-1066) deals with Anglo-Saxon kings and dooms up to the Conquest. The English did not, like the rest of Europe, accept Roman law. Barons (to 1399) covers Magna Carta, on which most subsequent English legal history is just a commentary, and the birth of Parliament and a legal profession. Protestants (to 1603) sees English Home Rule, which legal historians underrate, and the rise of Parliament and the judges. Gentry (to 1776) shows a century of conflict where the Stuart kings faced king-breakers from hell like Cromwell, leading to the Bill of Rights, which the Americans sent back as the Declaration of Independence. Shopkeepers (to 1911) sees parliamentary party democracy as we know it after the crisis of the People’s Budget of Lloyd George and Winston Churchill. Women (to 2014) covers universal suffrage, the accession of women and workers, and the current development of the rule of law. Reference throughout is made to the present, and to comparable events in Europe and the U S. The author is not British, but he has written extensively on the history of law and ideas. The book of 48,000 words is fully annotated.

Terror and the Police State: Punishment as a Measure of Despair

This book looks at terror and terrorism, and its cause or effect, the police state. It is a proper subject of study now. This book therefore looks at a comparison of the role played by terror in France, Russia, and Germany, during the periods referred to. After setting the scene, the book proceeds under these headings: enduring emergency; righteousness; good bye to the law; the instruments of terror; waves of terror; degradation; secret police; surveillance; denunciation; fear; popular courts and show trials; scapegoats, suspicion, and proof; gulags; propaganda, religion, and cults; the numbers; and the horror. The book concludes by trying to describe common threads in the three regimes, and with something like a plea for Robespierre.

The book does not deal with the Holocaust. I have enough on my plate already – sufficient unto the day is the evil thereof – but it may help in trying to understand that moral landslide to see the extent to which it might be related to the evils that are discussed in this book, which I now commend to you, my reader.

The book is 113,000 words and fully annotated.

It was painfully hard to write – and is not easy to read.

A Tale of Two Nations: Uncle Sam from Down Under

This book plots in outline the histories of the US and Australia. This is not a potted history of either, but a collection of snapshots of each taken side by side as these nations negotiated some of the principal stepping stones in their progress across the stream of history. I have the pious hope that the selection of the subject matter of the snapshots may be uncontroversial if not prosaic, leaving discussion only for the inferences to be drawn and comments that might be made, but experience suggests that such a hope is likely to be illusory and hardly pious.

Both America and Australia started out as refuges for boat people, two terms of abuse now in some quarters, but although they share an original common ancestor, their stories are very different. How, and why, is this the case?

I should disclose my sources of prejudice. I am an Australian white male, middle class professional, who is much closer to death than birth. I have no political affiliation, but I have a mistrust of government in general, and politicians and their parties in particular. My perfect government is one that has as little to do with me as is decently possible – especially the part that hands out speeding tickets. I have made a handsome living from a profession that we in this country derive from England. I have an unlimited sense of admiration for the contribution that England has made to the civilization of the West and to the history and character of both America and Australia, and an almost equally unlimited frustration at the inability of my nation to cut what I see as the apron strings tying Australia to England, and to stand on its own two feet. A dark cloud hangs over my descent into the dust – that I shall leave this earth before my country gets what I regard as its independence.

I have no belief in a personal God, but I believe that the Ten Commandments and the Sermon on the Mount are a little like cutlery – they are what distinguish us from the gorillas. As the white people took America and Australia, they committed crimes against the native peoples of those lands in ways that violated every part of the great religious laws that I have mentioned, but in common with most other people, I have no real idea of what to do about those wrongs now.

Doubtless other of my prejudices will become apparent to you as you go through this book, which I hope that you will enjoy.

The book is 100,000 words and fully annotated.

Looking down the Well: Papers on Legal History

The book has 18 essays or notes on the legal and constitutional history of England that underpins all common law countries. The essays are annotated. The book is 95,000 words.

A great English judge, Lord Devlin, said that the ‘English jury is not what it is because some lawgiver so decreed, but because that is the way it has grown up’. That is so true of almost every part of our law. Our law is its history. This is why anyone claiming to be a real lawyer, and not just a bean-counter or meter-watcher, needs to get hand to hand with our legal history. It is a rollicking story going for more than a thousand years of a people with a genius for law-making while pretending that they were doing no such thing. It is the story of how the world got its only workable way of protecting people against bullies and each other – whether in the form of government or at large.

That which took a millennium to construct could be washed down the drain in a generation. We have already trashed two vital parts of our governance – responsible government, and an independent civil service – and we have been scandalously weak in standing up for juries. These failings come in large part because we have chosen to forget and then betray our heritage. Sadly, I see no prospect of that decline being reversed.

Some History Papers: Essays on Modern History in England and Europe

These papers were written between 2008 and 2015. They relate to what we call the modern history of Europe and Britain. Some were written in or as a result of Summer Schools at Cambridge and Oxford. For example, the two pieces under the heading Foretelling Armageddon were first written as course notes at Clare College Cambridge, and now can be found in the fifth volume of A History of the West.

Five of the essays deal with the two big questions that have followed me for fifty years – how did France and Germany, two of the most civilised nations on earth, succumb to their total moral collapses, and with such frightful consequences for the rest of the world? If you are being raped or killed by a soldier, do you care about the motives of those who sent him.

Three of the pieces deal with issues in Stuart England, and all come from Summer Schools. My notes on Cromwell come from a remarkable weekender at Cambridge taught by Dr David Smith; those on the Stuart parliaments come from a week at Oxford taught by Dr Andrew Lacey. The story of the Treaty of Dover should be told in a play or film.

There is a long look at the very flawed views on the Atom Bomb of A C Grayling, who might just be too busy to be able to indulge in scholarship, and a piece on the great story of Lloyd George and Winston Churchill on the People’s Budget – at a time when politics had real leaders. The piece on witch hunts is the oldest, but the bullying of the majority is still just as threatening.

These are contributions by a lawyer and a legal historian whose professional training teaches him to proceed by example, and to look at what goes on elsewhere. I hope that you enjoy them.

128,000 words. The major essays are annotated.

Listening to Historians: What is truth?

To write history is to tell a story. The better the story, the better the history. There are two parts to telling a story – stating what happened; and choosing how you will describe those events. If you tell the story well, the reader will hardly notice the distinction.

The rise of the professional historian has moved the focus to what happened from how those events are described – the focus is on evidence, rather than style. The writers, or historians, have brought this change on. The readers do not like it. They like their stories to be well told. They want to listen to the stories. For that they want to read good writing.

This book is loaded with good writing – not by me, but by some of the best writers in the West. There is a good spread in time and place – five British (Gibbon, Carlyle, Macaulay, Maitland, and Namier), three French (Michelet, Taine, and Bloch), two Germans (Ranke and Mommsen), one Dutchman (Geyl), one Greek (Thucydides), one Italian (Tacitus), these last two being ancient, and one Swiss (Burkhardt).

The book concludes by considering truth in history and meaning in art.

Historians are fond of talking about what history is. They might better ask why people read it. Do people read history so that they might know more or be better informed about the past? Do they read it to gain insight into and some connexion with other people? Or do they read it just for pleasure? Do they read to listen?

The book is 55,000 words and is fully annotated.

Events in France 1789-1794

There was no such thing as the French Revolution. That is just a label that we apply to events in France during a period from 1789 to whatever date the speaker chooses. This book seeks to look at the main events through the eyes of someone trained in English law and philosophy and in English constitutional and legal history. It is very much an exercise in comparative law and history. It compares the French experience with revolution to those experienced in England, America, and Russia. It compares the regime of terror in France to those in Communist Russia and Nazi Germany. Once the scene has been set, the book seeks to give narrative sense to the main events and give pen portraits of the main players. It contains a plea on behalf of Robespierre. It also looks at the subsequent agony of France in the 19th century. Its chapter headings are: Prologue; Terms of Engagement; Outline of Events; The old regime; The English Comparison; The American Example; The Enlightenment – French and English Minds Compared; The crisis in France; Bliss was it that day to be alive; The revolt that never ended; The Terror; The horror; A plea for Robespierre; The endless agony of France; Epilogue; Further reading; and Sources and Notes.

I have drawn extensively on previous books of mine about the revolutions in England, America, France and Russia; the differences in the legal and philosophical histories of England and France; and in particular on the book Terror and the Police State; Punishment as a Measure of Despair. The market on all this reached saturation decades ago, but I am not aware of another comparative legal and philosophical analysis like that in this book.

The book is 90,000 words and it is fully annotated.

Four Characters in Search of their History

Fox, Danton, Pitt, and Robespierre

During the period of the events that we know as the French Revolution, the paths of two Englishmen crossed with those of two Frenchmen. They were Charles James Fox (1749 to 1806), Georges-Jacques Danton (1759 to 1794), William Pitt (1759 to 1806), and Maximilien Robespierre (1758 to 1794).

The two Englishmen were born into the purple. The father of each was successful in politics. Pitt the Elder, as he is known, was Prime Minister of England, and seen to be a great one. The elder Fox was more of a party machine man. Both of these fathers died ennobled.

The fathers of the two French men were both middle-class and in the law. Neither of them had had any real role in politics. Only one of the English men studied law, although it was unusual for Englishmen going into politics not to do so then – but the family of each gave him a head start. Both the Frenchmen trained in the law and practised in it.

Fox and Pitt were destined to go into politics – neither Danton nor Robespierre may have done so but for the French Revolution. The Englishmen were products of their class. The Frenchmen were products of their times.

Pitt and Robespierre got to the top of the greasy pole when they were very young. Pitt became Prime Minister at the absurdly young age of 24. Robespierre never got to the nominal top rank – there was none after the king was executed – but there is no doubt that he was the most powerful man in France at the time of his death. Danton and Fox both became popular leaders and for a brief time each of them held high office, but neither was as successful in politics as his opposite number. And just as Fox was the opposite number for Pitt, so Danton was the opposite number for Robespierre.

Both Pitt and Robespierre were puritanical and sexually abstinent, if not sexless. The reverse was the case for both Fox and Danton – their love life was as full as it was uninhibited. And you can see a similar division in their politics. Pitt and Robespierre were straight down the line doctrinaire party men. Fox and Danton were far freer spirits – so much less bound to platform or party, and prepared to use their considerable powers of persuasion to go straight to the people.

The ambitions for office of Pitt and Robespierre were much stronger and much more focussed than those of Fox and Danton. The latter would act as if they did not want to be in the fight when it did not suit them.

In today’s terms, Pitt and Robespierre might be described as conservatives, while Fox and Danton might be described as liberal or perhaps left-leaning. And the latter two had that propensity that we so often see in free-spirited liberals or left-leaning politicians – they had some kind of death-wish which would surface from time to time and harm their cause, and eventually destroy them.

This book looks at the way these four lives intersected. There are striking similarities in the differences between two political leaders on either side of the Channel. It is a way of comparing the histories of France and England. It looks at the contributions made by Pitt and Fox on slavery and the break between Fox and Burke. The breach between Danton and Robespierre was of course fatal to both.

The book is 52,000 words and has two time-lines as appendices.

Some Men of Genius

The Oxford English Dictionary gives the following for ‘genius’:

Natural intellectual power of an exalted type; extraordinary capacity for imaginative creation, original thought, invention, or discovery.

The editors also suggest that the notion of ‘talent’ is to be distinguished.

All but three of the portraits in this book have appeared in one or other book of mine, but to collect them in one volume may serve to illustrate the meaning of the word.

For those who like categories, the thirty men could be grouped as follows: science, 6 (Galileo, Newton, Darwin, Freud, Einstein, and Bohr), music, 5 (Mozart, Beethoven, Verdi, Armstrong and Presley), drama and poetry, 4 (Aeschylus, Milton, Shakespeare, and Ibsen), novel, 3 (Cervantes, Tolstoy, and Joyce), art, 3 (El Greco, Goya and Turner), religion, 2 (Jesus and Bonhoeffer), philosophy, 2 (Spinoza and Kant), statesmen, 2 (Augustus and Lincoln), history, 1 (Gibbon), economics, 1 (Keynes), and sport, 1 (Ali).

We need not get into demarcation disputes about the standing of men of faith in this group – there can be no doubt of the standing of our two in the world at large – and of course there are many other geniuses in our history who could have been nominated. The thirty men we have here should give us some idea of what it means to be a genius.

Windows on Shakespeare

This book is an introduction to the world of Shakespeare. Chapter 1 is headed ‘A Writer in Time and Space’ and puts Elizabethan England in its context in the evolution of western theatre starting with Greece, and looks at Elizabethan education and theatre, and tells all that we know of the life of Shakespeare (which isn’t much). Chapter 2 contains a note on each of the thirty-eight plays (averaging about 2000 words on each play, but loaded heavily in favour of the most played and celebrated pieces). Chapter 3 offers an overview of the plays in groups – Problem, Romance, History, Classical, Comedies, and Tragedies. Chapter 4 gives a commentary on the ranges of recordings available, and includes a catalogue of recordings on cassette, CD and DVD. Chapter 5 looks at the greatest players of Shakespeare on stage and screen. Chapter 6 looks at the main streams of literary criticism from time to time. Chapter 7 concludes with general observations on this genius and his continuing presence in our life. There are no footnotes, but references are given at the end of each chapter, or note on a play (in chapter 2).

The book is about 98,000 words. No other handbook of Shakespeare is structured like it.

Glimpses of Shakespeare

Twenty essays about the playwright. 70,000 words.

More Glimpses of Shakespeare

The same.

Some Literary Papers: Tilting at Windmills

These essays and notes come from the last five years or so. They come from a lawyer and they do not claim to be works of scholarship. I have written elsewhere about Shakespeare, great writing in history, and our great novels. About half of the present pieces relate to Shakespeare, some in an anecdotal manner, although the grip of the Big Four goes on. Most of these have been published by the Melbourne Shakespeare Society. The other pieces relate to other kinds of writing, from cooking to crime, but with a few on novels. The two substantive essays deal with great peaks in our literature – the role of Achilles and Satan in our two greatest epics, and our two greatest characters, Falstaff and Don Quixote.

If you said that the whole book was Quixotic, I would be happy.

82,000 words. Some essays are annotated.

The Humility of Knowledge: Five Geniuses and God

This book considers the relations between God and Spinoza, Hume, Kant, Gibbon and Wittgenstein. The Foreword says:

‘These five thinkers represent the flower of the Western Enlightenment or philosophy. They maintained that religious belief or faith was a no-fly zone for philosophy. That simple proposition seems obvious enough to most people. You do not get to the bottom of God by using logic any more than you get to the bottom of Michelangelo, Mozart, or Melbourne Storm by using logic. But here is this simple proposition being laid down as a matter of logic by the biggest hitters that philosophy has known. That leaves two questions. On what grounds do some philosophers – not noticeably the most humble or tolerant of them – say that they can dictate to others what they should or should not believe about God? If philosophers succeed in abolishing God, what, apart from that abolition, will philosophy have to show for itself for the two thousand years’ efforts since Aristotle?’

The issue is discussed sequentially for the five thinkers under the headings Times, Lives, Teachings, Reactions, and Beliefs. There are three general chapters and a chapter ‘Other Geniuses and God’: Milton, Newton, Bach, Mozart, Goethe, Darwin, Tolstoy, Holmes, Yeats and Einstein. Most of the subjects have a generosity of mind and spirit that is sufficient to put intolerant and dogmatic God abolishers in the shade.

There are no footnotes, but the book is fully annotated. It is about 50,000 words.

Different Minds: Why are English and European Lawyers so Different?

By looking at the comparative legal and political histories of England, France, Germany and the U S, and at the great differences in philosophy on either side of the Channel, this book looks at the variations in the way that European lawyers think compared to Anglo-American lawyers. This book is essential for any lawyer who wants to be more than a bean counter. There are as well chapters on rights, lawyers, jurists, trials and judgments. The author has written on many of these themes elsewhere. He has practised law for more than forty years and has presided over statutory tribunals for thirty years. He has reflected on a lot of the issues raised in this book in many summer schools at Oxford and Cambridge, and one at Harvard. He has practised at the Bar and in a major international firm, and has been briefed in the U K and the U S.

The book is 47,000 words and is fully annotated.

Confessions of a Baby Boomer

This book is an autobiographical memoir of the author. It goes through to when I turned 30. Eleven days later, Gough Whitlam, the PM, got sacked. Innocence, if not paradise, was lost. The book is meant to give a snapshot of what it was like to grow up in a very different Australia – if you were born here at the end of the War. References are made to outside political and sporting events, and to social customs and consumer habits to round out the picture. One theme is the difference between three generations. My parents, Mac and Norma, left school at about 13, and had to survive the depression and a real war; they got by with hard work and saving and a very pinched way of life, with both of them in work; they looked for their reward in the next generation rather than in a frugal retirement; they knew the value of money and saving.

My generation was not tested by a depression or a real war; we grew up in God’s country and we had everything before us – there were hardly limits to what we could achieve; we came into money, and we forgot its value and purpose.

‘We baby boomers had enjoyed our day in the sun. We had taken what was on offer when the war ended. We actually got to walk along what Churchill called the broad sunlit uplands. This was a promised land, it had been promised to us, and we had been cocooned in it.’

But the next generation looks very different – they grew up amid at least the trappings of wealth and an image of an urbane lifestyle as we sought to cast off the cringe (while clinging grimly to the Queen) and give them the best, but these children did not seem to be looking at a world of opportunity; au contraire, they were looking at threats and broken illusions. My conclusion is that my generation were ‘the luckiest bastards alive’, and I doubt whether we have done all that we could to redeem the faith that our parents put in us.

Since this is a personal memoire, there are no footnotes. This book is nearly 40,000 words.

Confessions of a Barrister: Learning the Law

This is a memoire of the professional life of an Australian baby boomer as a lawyer. The author has practised law for more than forty years as a barrister or solicitor, and has presided over one or another statutory tribunal for thirty years. Of late he has concentrated on his writing in history, literature, and philosophy. He has learned much from many summer schools at Cambridge, Harvard, and Oxford.

The author wanted to thank those other lawyers who have helped him as a lawyer, and to try to pass on to others the lessons that he has learned in practising law in various ways. The book is dedicated to the idea that the required professional skill and attitude only come from vocation and experience, and that a good life is open to those who are prepared to put in the time and effort, to acquire the judgment, and to show the loyalty and courage that membership of this profession calls for.

Aspects of the boyhood and youth of an Australian baby boomer may be seen in a companion volume, Confessions of a baby boomer. 64,000 words.

Summers at Oxford and Cambridge and Elsewhere

A traveller’s reflection on history and philosophy- and place

Reflections on Summer Schools at Oxford and Cambridge, and visits to Scotland and Europe, and on the subjects taught, including opera, history and philosophy. There are essays on the philosophy of religion and Cromwell, but most of the writing is of contemporaneous impressions of Berlin, Paris, London and Scotland. 41,000 words.

Up Your North

The Kimberley and Kakadu: A Seniors’ Guide from Broome to Darwin in 14 days by 4WD

A personal diary of a trip from Broome to Darwin in 14 days by a lawyer and writer in a 4WD with commentary on the outback and people living there and advice on how to avoid the mistakes of the author. 17,000 words. Humour is guaranteed.

Dreamtime of a White Ghost-Seer

A whimsical walkabout of a white man through life at law and history, theatre, sport and life. A source book for The Pursuit of Happiness. I enjoyed every bit of it – all good luck – and some fearful gutsers. (71,000 words.)

Why Opera?

A gentle introduction to operafor those who like me cannot read music but don’t want to run into snobs. Practical advice on how to get into enjoying the best that technology can offer – at such little cost for such a fine result.

(28,000 words.)

PART V

INDICES OF BOOKS READY FOR PUBLICATION

The War against Humanity

PRELUDE

FOREWORD

The Principle of Humanity

Our present discontents
Insult to the brain

Some Sad Tales from inside the War Zone

The Rogues’ Gallery: Qantas, NAB, ASIC, Avis, Fines Victoria, Telstra, Cunard, Bendigo Bank, Foxtel, Centrelink.

Symptoms or causes?

Underlying assumptions; Assumptions refuted; Looking after you and yours; The intellectual vacuum; The emptiness of parties; Good night, sweet think tanks; The queer conservatives; A failure of education; A failure of trust; One way traffic; The invisible hand; Battle fatigue; Who would want the job?; Deceit; The dollar.

The failure of responsible government

The Westminster System – the uncivil service – the failure of the two-party system – the lethal collapse of the opposition – the Robodebt Royal Commission – submission to the Commission.

The failure of corporate governance

Who is in charge?

An American Interlude

Tourneau Bucherer and WatchBox

Losing your freedom to robots

Losing your livelihood in a process untouched by a visible hand

Robots and Managing Agents
So what?
A personal lament

Getting a slap in the face for doing the right thing.

Saving our souls

Are we without hope?

EPILOGUE

A failure of confidence.

APPENDIX

A continuing running sore with the robots.

NOTES

The Adversarial Trial – Gone with the Wind

Fighting Cases

Deciding Cases

Two libel actions compared

The Law of Evidence and the Mess We Are In

Remarks on Law, War, and Leadership

Epilogue

Notes

The Pursuit of Happiness

What is a profession?
What I believe
Essentials in life

Writing and history

A Curated Library

The philosophy of football

Theatre and music

The philosophy of slow cooking

Art and décor

A wine cellar

Diversions in life

Seeing the world

Continuing education

Out and about

Indulgences

Regrets

People and thoughts

Some sayings that I live with

Some people of influence

Epilogue

The Basics of Investing

FOREWORD

PART 1 LAW

Basic concepts

Contract – trust – incorporation – agency and positions of trust –fiduciaries fair play – commission and ethics– money and wealth – probability and risk – differences person to person – fallibility –conclusions

Corporate securities

Companies – shares – debentures and bonds – equity or debt?

More on corporate securities

Hybrids – ETF’s – options and futures – returns (yields) on bonds and interest rates – interest rates and share prices – conclusions

Taxation

Income tax – avoidance and evasion – tax deductible contributions – low income tax on fund – income tax relief on dividends – tax free after 60

Duties of agents and trustees

Reputation of Wall Street – fiduciary duties – hypotheticals – trustees

Commission

Conflicts of interest – secret commission

PART II INVESTING

Kinds of investment

Real property, gold, annuities

Superannuation in Australia

Industry funds – self-managed funds – actuarial projections

Investing for beginners I: Sense and stability

Investing – active/passive – anxiety about the future (the unknown) is natural – no investment is free of risk – investors choose the level of risk that they are comfortable with – investment and speculation are different – you seek to manage risk by care in selecting the property to be bought – you also seek to minimise risk by spreading your holdings – the risk that you are managing is not that the price of your shares may fall – the big risk is that the business will fail, not that the price of shares may fall – volatility is not risk – fluctuations in share prices do not really affect sensible long term investors – there are fall-backs – it therefore makes sense to buy good securities and to hold them – conclusions

Investing for beginners II: Greed and stupidity

Eggs in one basket – ignoring risk or defying reality – false science and falser security – yielding to seduction – changing times for different results – tipsters and touts – the herd mentality – getting out of your depth- beating the house – short termism – rose coloured glasses – the need for a story or to see a pattern – fallacies of hope – the answer

Equity v Debt; Dividends v Fixed Interest

Spreading wealth – the search for yield – an owner or creditor of the business?

Five investors on Index Funds

Graham, Zweig, Bogle, Buffett, Malkiel

Shifts in the Economy and the Markets

The Great Crash and the Depression – the Credit Squeeze – Volatile Stock Markets – the Great Financial Crisis – the Covid Crash

Corporate Collapses and Criminals

Trustees and Executors – Alan Bond – Christopher Skase – Pyramid – Adsteam – Tricontinental

PART III MECHANICS

Regulators

ASX – ASIC – APRA – ATO

Financial advisers

Types of advisers – Amber Lights and Red Lights – The Answer – ASIC Website on Financial Advisers

PART IV CONCLUSIONS

Summary

The legal basics are comprehensible – trustees can manage the risks in investing in corporate securities – history favours the Stock Exchange, at least in the long run – whether you want to run your own fund is a matter for you – finally, at least think of index funds – a legal train wreck – conclusion.

APPENDIX A: Returns (yields) on bonds and interest rates

APPENDIX B: Interest rates and share prices

Notes

Passing Bull 387 – Prejudice

09/06/2024 / Geoffrey Gibson / Leave a comment

As I said about David Hume and bigotry, whatever you say about some wars, you are likely to get your head shot off. May I say something here about prejudice? When we say that people are prejudiced, we mean that they hold beliefs that are unreasonable – the beliefs cannot be rationally justified. These people have a bias. Think of a bowling ball. It is so constructed that it must lean in one direction: it must deviate from a straight line.

When we invoke this label, we usually mean that the subject person has an unreasonable dislike for some one or others. Their thinking is corrupted by their enmity. But their thinking may equally be corrupted by their affection for or loyalty to some cause or people.

If you ask Collingwood and Carlton supporters about an incident where a player for one side has put a player for the other side in hospital, you are very likely to get very different responses. And that difference will be largely driven by prejudice. One side will say it was an outrage; the other will be outraged at the suggestion that their man did anything wrong. In the old days in the outer, the two might well have come to blows about their dispute.

It is not so much ‘My club right or wrong’ – it’s just that my club does not behave badly. At least, not to the extent that I would have to admit. That would be disloyal. . And footy clubs are built on loyalty and allegiance. You can call me ‘partisan’ if you like, but that is the way the world is.

You see all of this in the reaction of people to allegations of war crimes. Those who are committed to either side will have very different responses. Those responses will be driven by prejudice – their loyalty to their side and their hostility to the other. The letters columns in the press give evidence of this prejudice – this corruption of thought – in abundance, and every day. It is at best tiresome to the unaligned.

But the war followers have now been joined by people who say that Laura Tingle was wrong to say that Australia is racist. It is one of those cases where the vehemence of the denial evidences the seriousness of the allegation – and suggests that the allegation may be well founded.

Those who champion our innocence about race are presumably not in daily contact with members of the Aboriginal, Muslim, or Jewish communities. Nore were they standing near me in my sixty years of following Australian football and listening to the gross, gutless and callous abuse directed at some of the wonders of our game – footballers of colour.

Racism – ABC – Tingle – Gaza.

Uncategorized

The Disinherited in the Holy Land – then and now

07/06/2024 / Geoffrey Gibson / Leave a comment

Someone, I forget who, suggested I read a book about Jesus by an American man of colour – Jesus and the Disinherited, Howard Thurman, 1949. I have done so and I at least feel better informed,

To those who need profound succour and strength to enable them to live in the present with dignity and creativity, Christianity often has been sterile and of little avail…. The conventional Christian world is muffled, confused, and vague. Too often the price exacted by society for security and respectability is that the Christian movement in its formal expression must be on the side of the strong against the week….a religion that was born of a people acquainted with persecution and suffering has become the cornerstone of a civilisation and of nations whose very position in modern life has too often been secured by a ruthless use of power applied to weak and defenceless peoples.

Precisely. The people acquainted with persecution and suffering were the Jews. Their overlords were the Romans.

Who is doing what to whom in Palestine today? Are people there persecuted and, if so, who are the overlords?

Jesus was a Jew. He saw his people ‘smarting under the loss of status, freedom and autonomy…The House of Israel was haunted by the dream of the restoration of a lost glory and a former greatness. His message focussed on the urgency of a radical change in the inner attitude of the people. To revile because one has been reviled – this is the real evil because it is the evil of the soul itself.’

The Sadducees ‘loved Israel, but they seem to have loved security more…the lines were held by those whose hold on security is sure only as long as the status quo remains intact.’ The Pharisees had ‘no active resistance against Rome – only a terrible contempt’ The Zealots said ‘out of the depths of their hearts there swells a great and awful assurance that because the cause is just, it cannot fail. Any failure is regarded as temporary and, to the devoted, as a testing of character.’

Unlike Jesus, Paul, the letter writer, was a free Jew – a citizen of Rome.

Unless one actually lives day by day without a sense of security, he cannot understand what worlds separated Jesus from Paul at this point. The striking similarity between the social position of Jesus in Palestine and that of the vast majority of American negroes is obvious to anyone who tarries long over the facts….For the most part, Negroes assume that there are no basic citizenship rights, no fundamental protection, guaranteed to them by the state, because their status as citizens has never been clearly defined.

Israel has statehood. Palestine does not.

The lives of the disinherited are ruled by fear ‘that arises out of the sense of isolation and helplessness in the face of the varied dimensions of violence to which the underprivileged are exposed….In physical violence, the contemptuous disregard is the fact that it is degrading….The underprivileged in any society are the victims of a perpetual war of nerves.’

Above all else, the disinherited must not have any stake in the social order; they must be made to feel that they are alien, that it is a great boon to be allowed to remain alive, not be exterminated. This was the psychology of the Nazis; it grew out of their theory of the state and the place given the Hebrew people in their ideology. Such also is the attitude of the Ku Klux Klan toward negroes…the fact that the lives of the disinherited are lightly held by the dominant group tends to create the same attitude among them toward each other.

The upshot, the Reverend says, is fear, deception and hate.

Hating is something of which to be ashamed unless it provides for us a form of validation and prestige….Because they are despised, they despise themselves. If they reject the judgment, hatred may serve as a device for rebuilding, step by step, the foundation for individual significance….

Here is the gist of the first chapter and the book as a whole.

The basic fact is that Christianity as it was born in the mind of this Jewish teacher and thinker appears as a technique of survival for the oppressed. That it became, through intervening years, a religion of the powerful and the dominant, used sometimes as an instrument of oppression, must not tempt us into believing that it was thus in the mind and life of Jesus.

It’s as if I have been waiting for half my life for someone to say all that. A tearaway, radical young Jewish hasid was executed on trumped up charges by the Roman overlords after he got up the noses of the local clergy (whom Rome regarded with loathing and suspicion) and he had taken the lash to the money market. How on earth – or elsewhere – do you build a genuine establishment on the life and teaching of the greatest assailant of the Establishment that the world has seen?

I commend a book that contains truths that have been too long ignored or denied.

The Tablets of Our Laws – Part 2

06/06/2024 / Geoffrey Gibson / Leave a comment

The Norman invasion and settlement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The astonishing arrogance of Bendigo Bank and Mastercard

03/06/2024 / Geoffrey Gibson / 2 Comments

Just before Christmas last year, my account with the Bendigo Bank was scammed. Crooks got the Bank to charge my Mastercard account with the bank for just under $5000. Then they got at me on the phone – waking me from my siesta and unable to find my glasses. They said they were from the Bank and asked whether I authorised the charge that I could see on the account on the bank website. No – I had not authorised the debit . I wanted to keep one card open. I therefore spoke to them. The conversation seemed odd, very odd – but so does almost any conversation I have with a bank. Its very oddity is evidence of its genuineness. I terminated it when they asked me to shift money. Then I spoke to security at the Bank, and made arrangements to be able to get cash over Christmas. The bank said – it ruled – that it would take 45 days to deal with the scam. Why not 45 minutes?

After that time, I wrote asking for the account to be corrected. The amount stolen by the crooks still appeared – in the red. Someone rang. I asked for written response. Someone rang. They said they would try to ‘elevate’ the process. And eventually I got a written response. It was from Cheryl at ‘Card and Merchant Disputes’. I did not know there was a ‘dispute’.

We have investigated the transaction on your behalf and would like to take this opportunity to raise the below points: • You have advised that you received a phone call from an unknown third party. The third party have advised they were from IT support. • The third party advised you to download an app on your phone. • When exchanging messages with the unknown third party, you have clicked on a link provided by them. Within this link you provided your card number, CCV, expiry date and further personal details this has allowed them to process the debit to your account. • By clicking the link and entering your details, you have therefore become an active participant to the transaction. • The disputed transaction has been verified by Mastercard Identity Check, a one-time password (OTP) was sent via SMS to your mobile number that ends with #583, the OTP was entered into the payment process to authorise the transaction. After taking into consideration these factors, we advise that we will not be providing a refund to you. On the balance of probabilities, we have determined that the transaction appears to have been authorised by you or you have contributed to the loss by giving consent to a known user to perform the transaction.

The problem was that the account had been debited before the crooks spoke to me. As best as I can see, the bank is saying that ‘the transaction appears to have been authorised by you or you have contributed to the loss’ – whatever that may mean at law – after the website showed the transaction.

Another problem was that the crooks could only have got my phone number from the bank. That means they have breached their obligation of confidentiality – and are liable to me on that ground alone. For that matter, how did the crooks know the transaction showed in the accounts of the bank as having taken place? Does the bank now say their website was misleading about the status of the dealing?

Another problem is that while purporting to make findings of fact on the balance of probabilities, they do not disclose any legal basis for the conclusions they purport to present.

So, they tried a different tack. This from Jensen, Manager.

The disputed transaction was verified by Mastercard Identity Check, a one-time password (OTP) was sent via SMS to your registered mobile number with the bank ending in #583, the OTP was entered into the payment process to authorise the transaction. For this reason, we have no recovery rights via Mastercard schemes to process a fraud-related chargeback. Unfortunately, you have been the victim of perpetrated fraud. We would recommend you follow this up with police or the merchant directly as we have no further recovery rights.

To clarify:

Bendigo Bank does not have a legal right to take action on these dispute claims. We are bound by Mastercard Scheme regulations as Mastercard is the provisioner of the cards. As detailed in your decline letter, we do not have recovery rights via the Scheme process due to the nature of how the transactions were processed.

And again:

The bank did not debit your Mastercard account. Your credit card ending in x6178 was a Bendigo Bank Mastercard. Your card details and one-time passcode were utilised to make a payment to Worldremit. The transaction appears to be the result of your interaction with a company called IT support. Bendigo Bank have no recovery rights for the transaction and therefore we cannot reimburse you for this value. Bendigo Bank cannot recover the funds as the transaction was performed via Mastercard Identity Check, a one-time password (OTP) was sent via SMS to your mobile number that ends with #583, the OTP was entered into the payment process to authorise the transaction. If a transaction is performed via this method Bendigo Bank is unable to raise a chargeback claim via Mastercard.

And in case we were not clear:

That is correct the Bank has no recovery rights for this transaction as we are bound by Mastercard schemes. I cannot assist you any further as previously stated so please escalate to AFCA if you wish to take this further.

That is Australian banking for you. Whatever your legal or moral rights are here in Oz, we must toe the line of our American Overlord, under an agreement you know nothing of. And if they do not have to indemnify us, we will not indemnify you. The question is whether you the customer or we the bank must bear the loss occasioned by crooks on our accounts with you. And we decree that you will take the loss – although we have not troubled you with our conclusions about your rights or our obligations under Australian law.

There is something else. If you have been scammed, be very careful what you say to the bank. They are recording everything – and will not scruple to use what you say against you – their customer – at the direction of their patron – with no caution or warning. With every day, banks become more like insurers – just say No.

Well – whatever else may be said, all that looks unconscionable. And as it happens, that is yet another ground of complaint at law.

And then there is the delay. Five months. This is up there with the Motor Registration Branch, Qantas, Fines Victoria, Veterans’ Affairs, Centrelink, and Putin’s Russia. All thrillingly world class. String them along until they drop – and then keep charging them. The Vets call it ‘Delay, Deny, Die.’

This is what our public life has come to.

It is as if the Banking Royal Commission never happened.

I can attend to it – just another lapse into nuisance in a moral vacuum – but how often do they get away with it? What about the Syrian widow out in the western burbs, or the unlettered First Nations man at Yuendemu, or the deserted and bashed wife on a gurney in casualty?

Then there are the poor and disconsolate in New York – little Mastercard.

We work to connect and power an inclusive digital economy that benefits everyone, everywhere by making transactions safe, simple, smart and accessible. Using secure data and networks, partnerships and passion, our innovations and solutions help individuals, financial institutions, governments and businesses realize their greatest potential. Our decency quotient, or DQ, drives our culture and everything we do inside and outside of our company.

It could be revealing to compare their DQ to our conscience. There is nothing safe, simple, smart or accessible about this little mess.

First quarter profit of $US 3 billion. Ah, those poor souls in New York, my favourite city. First Mastercard – then Donald Trump.

Well, it will be an addition to the chapter in the draft book The War Against Humanity dealing with banks – in the extracts that follow. (The Team at Bendigo has the draft of the book and a draft writ seeking trial by jury of a claim for damages, including exemplary damages. Water off a duck’s back. What matters is the templates of Uncle Sam.)

Book extracts

National Australia Bank

The following letters show why I left a bank that I and my mum and dad had banked with from time immemorial.

23 March 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC. 8060

Dear Mr Clyne

SALES TEAM D

You don’t know me. Neither do any of your employees. Since you have been my banker for 60 years, I think that that is very sad. Don’t you think that is very sad, Mr Clyne?

When I bought my present house, I was subjected to treatment by some of your operatives that in part caused me to write the attached paper on ‘The Decline of Courtesy and the Fall of Dignity.’ You will see that your bank has the misfortune there to be compared to Telstra and Qantas. That is not good company to be in, Mr Clyne. The part that really got me was the threat – that is exactly what it was – to pull the pin – that was the phrase – on a bank cheque. Your staff could give a customer a heart attack threatening to do that to them on the day that they are settling on a house purchase. A bank threatening to renege on its own paper? It is hard to imagine a better example of how banks have lost their way – how once respectable business houses have now become unrespectable counting houses.

Being minded to move home, I thought I should confirm my leeway with your bank before making an offer. I drew Sales Team D in the lottery. I said I was happy to go to your Kyneton Branch and talk face to face, but, no, Sales Team D told me they were on top of my case.

Your staff can fill you in on the sad results, Mr Clyne. I had to prove my identity – at least twice. Sad after 60 years, is it not? The property I am looking at is worth under half of a city property that I can offer for security. The increase to the existing facility is modest. For any bank that knew me as its customer, and wanted to look after me, the proposed transaction would hardly raise a query. Not so with Sales Team D, Mr Clyne. I was required to produce tax returns, and then told I would have to surrender one credit card and submit to a reduction on the remainder. I began to feel for the people of Greece. Now, Sales Team D wants to go beyond the tax returns, and I now have two accountants wondering just what has got into Sales Team D.

How would you or your fellow directors like it if they were treated like this by someone they have been doing business with for ten minutes, let alone 60 years? In the course of more than 40 years’ legal practice, I have held various statutory appointments, including running the Taxation Division of the AAT, later VCAT for 18 years. Some people – including Her Majesty the Queen in right of the State of Victoria – therefore felt able to take me at my word. But not Sales Team D. Do you know why, Mr Clyne? My bank does not know who I am.

Perhaps they are worried about my recent expenditure on credit cards. Let me assure you, Mr Clyne, so was I. Very worried and very annoyed. I bought a CLK Mercedes about six months ago at a very good price. I just needed to extend a borrowing facility by six thousand to get the $26,000. I got handballed around four operatives, having to prove my identity along the way. I got referred to various teams. Most asked my occupation. (Sales Team D the other day asked if I was still a member of a firm I left about ten years ago and which ceased to exist the other day.) I was told my case was difficult because the facility was secured. Then I was asked to produce tax returns to support a request to extend a secured facility by six thousand dollars. That is when I gave up, and used the credit card to buy the Mercedes.

I do not blame any of the few employees you have left. They are trained – programmed – to be automated and not to think. They also know that the market, which can never be wrong, values their contribution to the bank at about one hundredth of yours.

Do you know what I think, Mr Clyne? George Orwell was wrong. It is not big government that is tearing up the fabric of our community by Big Brother – it is Big Money, and Big Corporations. I think that you and your fellow directors should be ashamed of yourselves.

If it matters, I hold shares in the bank, and I am not a happy shareholder either.

Yours sincerely

Geoffrey Gibson

3 April 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC, 8060.

Dear Mr Clyne,

SALES TEAM D

Well, they did it for you. Sales Team D – may we just call them STD for short? – stopped me from buying the new home that I wanted. It was not perfect – it was just ideal. Ideal for me, Mr Clyne. But, then, what is a mere home to someone like me to a great Australian banker?

How did STD manage to pull it off, you may ask, Mr Clyne? Quite simply really. They did not know me, and they did not know what they were doing. This all became sadly but inevitably apparent when a roaming STD cell-commandant opened his phone talk with me after my first letter to you with the gambit that my problem was that I had overstated my income. Really, Mr Clyne, your attack-dogs and flak-catchers would want to be on the highest level of dental insurance if they want to go around behaving like that. No wonder you forbid them to meet your customers in the flesh.

But I suppose that the ADs and FCs of STD kept you safe from my letter. You would prefer to stay like Achilles gleaming among his Myrmidons, except that you would not stay sulking in your tent – no, you would be glowing over all that lucre.

You and the people at STD are a real threat to business in this country, Mr Clyne. You should be helping the flow of capital. The big Australian banks are doing just the reverse.

And you should really stop those ads that tell the most dreadful lies. Lies like your people are free to make decisions, or that the big banks like competition. Nothing could be further from the truth, Mr Clyne. The people at STD know that they are forbidden to think, much less make decisions, and STD shut up shop completely, and have been in a surly sulk ever since I told them I was talking to another bank. (Although they did ring the other bank to inquire – without my consent – about what I was doing.) The major Australian banks are just a collusive cartel operating sheltered workshops that rely on the people of Australia to bail them out whenever they balls it up – and then they pass on their guilt and paranoia to those same people by refusing to lift a finger for their customers when they need a bank.

Those people do not hold your staff responsible for the shocking fall in the standards of our banks, Mr Clyne. They hold you and your like responsible. You do after all get paid about one hundred times as much as the folk of STD.

If you and your board step outside your cocoon of moolah, minders, and sycophants, you will not find one Australian – not one – that has a kind word for any of you. What all those people should do to the big banks is to take their business elsewhere. That is what I will do. You never know, Mr Clyne, I may meet a real person in the flesh, one who might know what they are doing, and who will even know who I am.

Yours sincerely,

Geoffrey Gibson

In accordance with procedures laid down, I got no response to either letter. I sold my shares in the bank. I concluded a post containing these letters with the following:

How did we let this happen? How did we come under the heel of people whom we would cross the street to avoid?

BENDIGO BANK

After I quit the NAB, I took such business as I have, which isn’t much, to the Bendigo Bank. They have the same problem as other banks. They don’t train or trust their staff – the two are related.

And as the following post shows, they can treat their customers like dirt up there with the best of them.

This post is written in anger.

This afternoon, I needed access to my accounts online with the Bendigo Bank. I could not get on their site on this laptop. I therefore screwed up my courage to ring them. No one likes ringing a bank or Telstra. After the usual noughts and crosses games, the computer gave me a quote of a delay time of eight to twelve minutes. Not good – but bearable. I then got subjected to that banal repeated propaganda that tells you so much about the mentality of those running these outfits – both banal and grasping. That lasted thirty minutes before I hung up in disgust. THIRTY MINUTES – out of my life because a bloody bank can’t get its act together – decently, or at all.

The original quote of delay time was wantonly reckless if not downright fraudulent. I was not given the option of taking a call back if I wanted it. And the propaganda kept repeating the same dreadful lie – ‘Your call shall be answered shortly.’

The directors of the Bendigo Bank should be deeply and personally ashamed of the way that they manage their bank. They obviously chase profit so that they mistreat their customers. That is not good business. As it happens, I hold shares in that bank. And I am now deeply offended as a shareholder – because I personally do not want to be a part of a business that is so rude to people and that treats you and me as just means to their ends. The conduct of these directors sadly reflects the collapse of courtesy and common decency in our public life. What kind of person would now trust what a bank said?

I repeat – the directors of the Bendigo Bank should be deeply and personally ashamed of the way that they manage their bank.

And it did not take those bastards long to wash Ken Hayne right out of their hair.

Later when buying watch from a Hong Kong dealer, for which I was required to transfer money in AU$ ‘by wire’ to Hong Kong, I was told that the transaction required my personal attendance at a branch of the Bendigo Bank to give effect to that transaction. And, as happens with a bank or the police, I was asked to show my driver’s licence. You can imagine how well that throwback to the Gold Rush went down in Hong Kong.

I would later undergo similar conniptions in buying a flat and selling a house. I want to be there when a bank officer says: ‘Yes, Mr Murdoch. You can have that billion dollars – but only after you show up downtown with your driver’s licence.’

Formality above humanity.

With Compliments

Geoffrey Gibson

Month: June 2024