Month: July 2024

Tablets of our laws

/ Geoffrey Gibson / Leave a comment

4 Forms of action (common law) and a release valve (equity)

Lawyers have a saying – hard cases make bad law.  If you stretch the law to fix an unhappy problem at the edge, you may make the law worse – if for no other reason than that you are adding to it – and making it more complicated and harder to find and apply.  But that is just how the common law developed – by applying a precedent to a similar case. 

And you do not have to be a lawyer to understand that cases arise that fairly call out for the law to be extended to deal with them – in the interests of justice overall.  So, for a long time the law hesitated before allowing someone other than the person who bought defective goods to sue them for damage suffered as a result of the negligence of the manufacturer.  But what happens when someone gets badly hurt when the wheels fall off a Buick?  Or when a lady is violently ill after partaking of a ginger beer bought for her by a friend – and the drink contained a decomposed snail?  Every law student quickly learns that the modern law of negligence began with the developments made by these two decisions.

The law has doctrines to prevent people resiling from their stated position where that would be unfair to the other side.  (They are called estoppel and waiver.)  Many Australian sailors died or were injured as a result of a naval collision – a national tragedy.  They sued the Commonwealth of Australia.  Someone sued out of time can waive the right to plead the Statute of Limitations.  The Commonwealth did so.  Then it sought to amend its defence to plead the Statute.  The case got to the High Court, and counsel for the Commonwealth knew they were in for a lacing.  Which they got.  The Commonwealth lost, but although they had no judge in their favor on the result, it looked as if it had a majority on each issue in its corner.  You could hardly say that the law was improved by this ‘hard case’.

Most cases turn within a simple moral frame.  You should not deliberately hurt another person.  You should avoid hurting another by your carelessness.  You should keep your promise.  If you are in a position of trust, you owe higher obligations of integrity. 

Most of the capital of the world ultimately depends on promises.  You would therefore think that a great mercantile nation like England would have settled its law of contract before all others.  It did not so until about the time of Napoleon.  Merchants were largely left to their own devices.  The main problems came from the preoccupation with the forms of action and the devices found by judges to escape them.

The great legal historian F W Maitland published lectures under the heading The Forms of Action at Common Law.  It has I fear bedeviled students for more than a century.  Which is a pity, because the author states the history with the clarity he was so famous for.  The barest outline will do here.

We start with the notion that the law had to seek to put an end to the vendetta.  There was a very basic criminal process.  (At the start, the law did not distinguish between criminal and civil process.)  From that process, we got the Writ of Trespass.   Think of trespass as in the Lord’s Prayer or transgressio.   It could be to the person or land or perhaps cattle or chattels.  It was like our wrong or tort. 

But the victim had to allege that the trespass was committed vi et armis – by force of arms – et contra pacem regis – against the King’s peace.  This was fundamental – a private wrong had become a public crime, which it was the function of the king to put right – to preserve his peace – his first and paramount duty.  But the technical arguments flowing from those limitations would vex litigants up to the nineteenth century.

There never was a writ (form of action) for contract or negligence or trust.  Litigants had to finesse their way around writs of Account, Covenant or Debt.  For trusts, they had to go to a completely separate court and body of law.  Can you imagine the human cost?

Historians are not agreed about how new avenues of complaint were opened.  A statute allowed Chancery clerks to issue a writ where the complaint was in consimile casu – in a similar case – as an existing writ.  These were called ‘actions on the case’ – but when you think about it, that is how the common law had to develop. 

Plaintiffs began to allege that the defendant undertook to do something – assumpsit.  This opened the way to actions for failure to deliver on a bargain.  After they began to allege a prior debt –indebitatus assumpsit – the action of contract was on foot.  The doctrine of consideration – you have to earn the right to sue – emerged over the centuries.  It can be tricky, but it is not as mystical as the Roman causa.  Finally, after the wheels came off the Buick, and the lady threw up on the snail, the law of negligence had arrived.  It had taken about 800 years.  And if you think these actions had got tricky, those relating to land were even more dense – in large part because of the feudal inheritance.

A lot of this movement on the forensic carousel involved artifice – or fictions.  To get around technical issues, the judges allowed plaintiffs to make allegations that could not be traversed.  The wrong of conversion was for a long time called Trover (after the French trouver for ‘to find’.)  The plaintiff alleged that he ‘casually lost’ goods, that the defendant ‘found’ them, and was now refusing to hand them back.  And he would toss in a casual allegation of fraud – which is now verboten. 

You do not have to be a lawyer to see that building deceit into the system will lead to serious problems in the witness box.  And the ‘sporting theory’ of justice is not a theory at all.  When the punters believe that they are part of a game that the lawyers are playing with them, for profit – we have all lost.

But an even more fundamental split or division opened up.  Outsiders would call it schizophrenic.  The Greeks understood that you would have to be mad to think that you could make laws to meet every contingency.  But in the name of doctrinal purity, innocent people were getting badly hurt by the fraud of others or their own accidents; and the common law did not recognize trusts.  And people were being denied a remedy by a pitiless, technical common law. 

Such cases were downright unconscionable.  Could the king, as the fountain of justice, or his senior minister, the Chancellor, answer these calls of conscience and provide a remedy to those denied relief at common law?  Over time, the Chancellor developed a body of law in the Court of Chancery, a jurisprudence we know as Equity in an attempt to ease the pain left by the common law.

The Chancellor acted on the conscience of the defendant – in personam.  He developed the subpoena and the process called discovery – when parties were compelled to produce documents or answer questions on oath – where to do so might cost them their case, and their tenderness would cause discomfort between them and their lawyers. 

You will see immediately that they were much more inquisitorial than the common lawyers.  Evidence was led in writing – which has always led to serial lying.  And the equity judges were not brought back to earth by a jury.  Instead, they adumbrated refined theories on ethics and legal personality.  They became immured in worse delay and obfuscation than the system they were meant to relieve. 

There were ugly turf wars.  The equity crowd had trouble burying the notion that they looked like they felt morally and intellectually superior.  They became victims of their own unreal subtlety.  Lawyers generally know that they are in for it if the judge says that their argument is ‘subtle’, ‘nuanced’, or ‘ingenious.’ 

This has not been the case with the Whisperers – as some call them.  Too many of them in our time were up to their eye-balls in appallingly convoluted and artificial tax schemes that disgraced the profession until first the judges and then the legislators got their act together.  And I am not alone in thinking that their processes and leaning toward the inquisition have been the principal causes of the failings of our trial system.

By the time Dickens wrote novels like Bleak House, the appalling screams of the victims could no longer be ignored.  A Victorian parliament ordered the two systems to ‘fuse’ – but the notion of fusion is an invitation to the dance for some in the colonies, who might remind us of the observation of Sir Lewis Namier that the United States was a refrigerator for ideas that had passed their use-by date in the old country.

So what?  The common law is truly a thing of wonder.  But there are two ineluctable truths.  The most important person in the court is the loser.  And at least one side in these contests has to lose.  The common law was built on the blood and bones of the broke, the wounded, the mad, and the dead.  We lawyers might have a Remembrance Day in honor of the millions of our losers.

Shakespeare’s Kings in Their Time

/ Geoffrey Gibson / Leave a comment

It was always yet the trick of the English nation if they have a good thing to make it common.

Death, as the Psalmist saith, is certain to all; all shall die.  How a good yoke of Bullocks at Stamforth Fair?

Shakespeare wrote his ten English history plays when it suited him.  It is instructive to view both the history of England and his development in the chronological order of the plays.  (The references to the shows are to those on Arkangel.)

King John (1199-1216)

(c1596)

This is a vitally medieval play – the king against his barons; the French against the English; and God and his Church over all.  We may as well be on Mars – but for the humanity of the playwright.  It is about perfidy and treachery on high – a favourite theme in drama. 

But the actors that get to us are not noble –the Bastard ( the son of Richard Coeur de Lion), Hubert, and the Papal Legate (Pandulph) – put there to fire up a Tudor Protestant audience (and the modern one I was in when in London once).  Constance is a pain.  (Very unlike Connie in The Godfather.)   The bastard is like a Greek chorus on the nobles – and he prefigures the politician.  Hubert is humanity in the raw – and an English man to boot.

King John is a rat.  He is the epitome of weakness – he urges brutal murder – and then he blames the chosen killer – who has had to defy ‘superior orders’.  The king is one of God’s gifts to the English – provocative but containable.  (The Stuarts in embryo.)  He would lead ineluctably to rebellion and Magna Carta – the foundation of the rule of law. 

Bill Nighy as Pandulph is insidiously malicious – like a gliding taipan in uncut grass.  The intervention of a foreign potentate will come to an end in the last of these history plays, Henry VIII.  The ‘supremacy’ vainly asserted by King John is a reality under King Harry.  What a difference a king makes. 

This  play is in my view sadly very underrated as theatre.  It  is high political drama.

Richard II (1377-1399)

(c1595)

Possibly because the first recording of Shakespeare that I bought had Sir John Gielgud in this role, it has remained very high in my favourites.  It has the aural beauty of Iussi Björling.  As a passion play, it has the pathetic majesty of The Saint Matthew Passion.  (And the recording has Leo McKern groaning that this other Eden is ‘now leased out’ – King John had hocked the kingdom to the Vatican.)

Another weak king is brought to heel – this time terminally, by deposition and death.  Put to one side the law – if a medieval English king did not measure up, he risked being deposed – on a good day.  It is the familiar story of a weak king surrounded by flatterers.  The play starts with full medieval chivalry – that would be detonated in the next play.  The last Plantagenet aborts the process of the law and then unlawfully seizes the property of one side.  This is the dilemma of the whole series – if you take the law into your own hands, how do you stop someone doing the same to you?  ‘How are you a king but by fair sequence and succession?’

Bolingbroke reminds me of the Inquisitor of El Greco – shifty.  And with him we now get populism and a new world.  He is seen to court the commons – ‘Off goes his bonnet to an oyster wench.’  Dead right.  He is the first spin doctor.  He will school his son in stealing ‘all courtesy from heaven’ – and young Harry will be a ready pupil in or out of the stews of London.  We will even get the phrase ‘vile politician’.  When the coup is complete, the rebels prefigure the Inquisition and Stalin.  They want to give a ‘confession’ to the Commons.  The flatterers had said that the love of the Commons ‘lies in their purses’ – how very modern!   And this is another play where a ‘misunderstanding’ leads to the execution of a king or an heir. 

But here is pathos not seen since the Greeks – in the most operatic play ever written.  Rupert Graves grows into the role as the hero softens in his crashing descent.

Henry IV (1399-1413)

(c1597; c1599)

The whole world has changed.  In the second scene of the first of these two plays – which many say are the best this playwright put on the stage – it explodes with the entrance of his most famous character, Sir John Falstaff – and theatre would never be the same again.  Falstaff is fat, old, a liar, a coward, a drunk, a thief, and a womaniser – and that’s on a good day.  But the audience loves him.  He is the living repudiation of honour and chivalry, and he arrived at about the same time as Don Quixote, who was on a similar mission.  But he has that most priceless attribute on the stage – he endears himself to the audience.

So does Percy Hotspur, that most feisty son of Northumberland (who had taunted Richard II, while Percy mocked the heir apparent).  He carries the audience with his reckless energy: he embodies the old world of chivalry.  He is in truth a hero, of the kind Wagner never got close to.  And he too rushes like a torrent to his inevitable death.  Percy also stands for the provincial nobility and the seeds of the Wars of the Roses.  ‘An if we live, we live to tread on kings’.

There is very little that is endearing about Prince Hal.  He is cold and calculating.  He will use Falstaff and his rough mates and others in the taverns until it suits him to drop them.  He is two faced, and in some cultures repudiating a mate is the ultimate crime.  Percy calls him a ‘vile politician’ – ‘a fawning greyhound’ who proffers ‘a candy deal of courtesy.’  Falstaff said Hal is ‘essentially mad without seeming so’.  Auden did not hold back.  He says ‘Hal has no self.’  Auden compares the ‘scoundrel’ Henry V with Richard III.  ‘Hal is the type who becomes a college president, a government head, and one hates their guts.’  Boy – does that ring a bell! 

At least Hal is honest.  ‘I’ll so offend to make offence a skill.’  Say hullo to Boris.  Hotspur?  ‘It were an easy leap to pluck bright honor from  the pale-faced moon.’  Falstaff?  ‘What is honor?  A word.’

Richard Griffith and Alan Cox are up for the leads and the tavern scene is a triumph.

Those who seek to exculpate Hal for his premeditated betrayal of Falstaff are blinded by the poetry, and forget that the object of the game for Shakespeare was to give the audience a great show – one that tells big truths.  If Hal stands for chivalry, was not Falstaff right to repudiate it?  And might we say the same for Hotspur, who seemed to think more of his horse than Kate and who resembles the crazy Siegfried as he staggers laughing to his doom?

In Part I, we get stews and pubs like those in Measure for Measure.  In Part II, we get the middle class and landed gentry like those in Merry Wives of Windsor.  We are a very long way from King John and the feudal barons, and the word ‘feudal’ was not in use then – and Rome is nowhere in sight. 

The whole mood is now autumnal.  ‘We have heard the chimes at midnight.’  (And somehow, I see the gaze of Orson Welles flickering in the firelight.)  And another son of Bolingbroke breaks his word in a way that would have thrilled Hitler, before we get to the scene of the transmission of the Crown – and there are not many scenes as strong as that.

Someone said that watching Shakespeare was like touching the face of God.  Falstaff is a paternal Master of Fun with roots in commedia.  But, as Sir Anthony Quayle said, he is also ‘frankly vicious.’  Well, he is human and so are we.  That I think led Tony Tanner to say that we ‘invariably feel a spasm of pleasure and liberation when someone blows the gaffe on human nature as Falstaff so often, consciously or subconsciously, does.’

That’s when you hear the chimes at midnight.  It is pure alchemy.  Which is to say: it is beyond analysis. It is, like the Pieta, what it is.

(Opera-goers might note that the Falstaff of Verdi, my favourite of his operas, is not that of these plays, but the watered down and worn-down version of Merry Wives of Windsor – a rom.com that the poets turn their noses up on.)

But there remains the conundrum of Falstaff.  He trades in human souls.  He figures that only three of his 150 ragamuffins will survive the battle.  The Hostess complains that she has been ‘fubbed off, fubbed off, and fubbed off.’  The truth is that Falstaff rides roughshod over the whole lot of them.  All chivalry is gone.  It was at best a pretty conceit to soften the brutality of the ethnic cleansing of the Crusades.

Donald Trump could have modelled himself on Sir John.  If you are going to lie, lie big.  The more you outrage the Establishment, the more popular you shall be.  He gets away with things quite out of our reach.  We should forever bear in mind the caution of Dr Johnson. 

The moral to be drawn is that no man is more dangerous than he that with a will to corrupt hath the power to please ;and that neither wit nor honesty ought to think themselves safe with such a companion when they see Henry seduced by Falstaff.

Or vice versa.

And at the end – there is a new player.  ‘Now call we our high court of Parliament.’  And the next play begins with power brokers discussing a bill in the Commons.  The political landscape is shifting massively.

Henry V (1413-1422)

(c1599)

Prince Hal is now King Henry.  As promised, he has cast off Falstaff et al and he is justly blamed for Falstaff’s death.  He and the Holy Church are fit to prey on each other.  The Church will fund a war of national pride.  Honour.  This leads to posturing on both sides.  And tennis balls.  And bloody carnage.

The puppeteer can now play deadly games with traitors before issuing blood-red threats of war crimes before the gates of Harfleur.  Then he presides over the death of Bardolph with sickening hypocrisy.  ‘I know you not old man’ becomes ‘We would have all such offenders so cut off.’  Then he does commit a war crime by ordering the killing of prisoners.  Olivier and Branagh left that out.  For Olivier and Churchill, the Second World War was the reason: I am not sure for Branagh.  Those who do not paint the full picture leave us with Kiplingesque jingoism that is not Shakespeare, no matter how much it warms the cockles at home.  Auden thought ‘the most brutal scene in Shakespeare is Henry’s wooing of Katherine’, and I know what he means.

The scene of the death of Falstaff comes from the gutter.  It is wonderful theatre.  No other playwright has claimed this range.  And at the end, Harry still plays games with those beneath him.  Narcissus to the end.

Henry VI (1422-1461, 1470-1471)

(c1592- 1596)

‘The cease of majesty’.  These three plays are about the weakest king, and the strongest queen, my favourite character, Queen Margaret, the She Wolf of France, especially as played by the immortal Dame Peggy Ashcroft.  (A younger David Tennant is just right as this pathetic young king – like a lost child late for Sunday School.)

But somehow the times are out of joint.  Perhaps here the sequence of composition asserts itself and we seem to be going backward.  There is a jolt – a palpable jolt.  The fingerprints of the Church pervade.  Crashing warrior barons clash with each other and crash out of France.  A champion woman is cruelly treated because she is French – an English failing, and not this author’s high point.  It all feels so medieval.  There are king-makers whom no king can ignore.  And, then, for the first time, we see the masses rise up in the rebellion of Jack Cade: about three hundred years before the French Revolution.  (And that sounds about right on the scales of history.)

But above all, we see the inhuman misery of a weak monarchy and a grizzly civil war, that people I respect simply cannot bear to listen to.  It is like Mad Max.  The Wars of the Roses will be the last hoorah of the magnates.  Next, the English will celebrate Religious Home Rule in the Reformation, and the Stuart kings will cede sovereignty to Parliament. 

Perhaps my editor may forgive me for quoting my favourite lines of Queen Maragaret once again hissed out by Peggy Ashcroft.

Where are your mess of sons to back you now?
The wanton Edward, and the lusty George?
And where’s that valiant crook-back prodigy,
Dicky your boy, that with his grumbling voice
Was wont to cheer his dad in mutinies?
Or, with the rest, where is your darling Rutland?

They would have blushed at that out the outer at Windy Hill or Victoria Park in 1948, the year of the blood premiership.  Even Quentin Tarantino might pause.  This is a long way from Midsummer night’s Dream, and this playwright is nothing if not rounded.

Taken as a whole, the three plays are I think sadly underestimated.  There is plenty of blood and guts.  Kings and nobles were in the front in the wars, but this was a time when winners could cut the heads off their enemies and display them in triumph.  In that they were savages.  Kings and nobles were merely human – but, like the rest of us, capable of dragging us back to the primeval slime. 

There are family or tribal vendettas like those in The Godfather.  The howling protests of the father and son in Part II have no parallel on our stage.  Chivalry?  A ‘gigolot wench’ looks with contempt at the ‘stinking and fly-blown’ corpse of a noble – who had murdered a child in cold blood. 

The plays are intensely political – and politics are about people, not policies.  It was only a matter of  time before the playwright let sex rear its potent head.  There is wall to wall duplicity – and faction, and grinding discord in the caucus.  One faction resorts to murder; another incites the mob to rebellion.  If you cannot get rid of your opponent lawfully, do what you must for the good of the state – or for your party – or for yourself.  What is the upshot of that policy?  ‘I am myself alone.’  And he is the subject of the last of this quartet of plays.

Richard III (1483-1485)

(c1597)

At the start of Act 4 in Part III, we see a bitchy split in the York brothers when Edward IV puts his sex drive before the crown.  Clarence defects.  Richard gives notice of future horrors.  Judas had nothing on him – played by David Troughton with lascivious malice.  ‘I am myself alone…Counting myself but bad til I be best.’

From weakness at the top and chaos below, to evil and misery everywhere.  The trouble is that this evil king sucks us the audience in with him.  The style and ambience are all so different.  This man lives for conflict – that is his oxygen: a small-scale Napoleon or Hitler or Trump.  He will be the last unguided missile to sit on the English throne, and the earth sighs with relief at his inevitable fall. 

This Richard has at least two things in common with Donald Trump.  First, his ego does not allow for a superego, or conscience.  Secondly, and relatedly, ‘he hath no friends but what are friends for fear / Which in his dearest need will fly from him.’  It is just a matter of time before someone who gets too close is cut off – with extreme prejudice.  ‘Richard loves Richard, that is I am I.’

Franco, the Caudillo, used to read through the sentences of death of his enemies while taking his coffee after a meal, often in the presence of his personal priest.   He would write an ‘E’ against those he decided should be executed, and a ‘C’ when commuting the sentence.  For those he considered needed to be made a conspicuous example, he wrote ‘garrote y prensa’ (garrotting and press coverage).  Richard wanted to be told after supper in detail how the two infant princes died – after which he will again be ‘a jolly thriving wooer’.  Well, you could not levy that charge against Hitler, but the psychotic paring is there – and it all gets a bit too much.  The dramatic technique is evolving, but I still prefer the regal tragedy of Richard II.

But this author and producer has now found his feet, and he knows how to play with us.  If you can go the distance with the whole play, it is worth it.  It has about it the aura of an ancient Greek family cursed by fate, with discarded queens hissing curses from a barbed wire fence.  In that way, it is utterly timeless, as is the remark that all power corrupts. 

Plus ça change….

Henry VIII (1509-1547)

(c1613)

Home waters at last as in Yes, Minister – power, greed, corruption, deceit – and pure bullshit.  Above all , put not your trust in princes. 

The king has imposed a tax that makes him unpopular.  Naturally, he blames his first minister, and tells him to fix it.  In turn, the first minister, Wolsey, summons a flack: ‘let it be noised that through our intercession this relief comes.’  Sir Humphrey Appleby, eat your heart out.

It is a play of people falling from a great height, pushed by a randy British bulldog, not much of a rock to build a church on.  ‘Then in a moment, see how soon this mightiness meets misery.’  Given that the Armada and Guy Fawkes were well within living memory, Queen Katherine (Jane Lapotare as I saw it at Stratford and heard on Arkangel) is extraordinarily generously dealt with by Shakespeare, and the authors do not shy away from the issue of the impact of Harry’s sex drive on this world-shaking constitutional issue.  It is masked by high ceremony, that the English are so good at.  Buckingham feels ‘the long divorce of steel’, and the Queen and the Cardinal go their ways to God. 

Timothy West was made to play Cardinal Wolsey.  This ‘holy fox’ is the archetype of the modern politician.  He intrigues with the Vatican to prevent the king marrying Lady Anne, ‘a spleeny Lutheran’ – and he gets caught, and sacked.  When told of the appointment of Sir Thomas More: ‘That’s somewhat sudden.’  When told of the marriage of Anne: ‘There was the weight that pulled me down.’  In the end, he might resemble an up-market Paroles.  The kind Griffith, Katherine’s usher, said of him after his death: ‘His overthrow heaped happiness upon him/ For then and not until then, he felt himself.’  That is very Shakespeare – as is the remark about Cranmer – ‘He has strangled language /In his tears.’

Paul Jesson plays Henry VIII as a vicious manipulator, a man who fancies dark corners.  He reminds me of Churchill on Stalin – as I recall, it was to the effect that he smiled like a crocodile.  (I was told never to get between one and the water; with Putin, you steer clear of sixth floor windows.)  Lytton Strachey said that ‘the Defender of the Faith combined in a peculiar manner the unpleasant vices of meanness and brutality; no! he made the Reformation – he saved England – he was a demi-god.’  It would be left to a daughter to put a humane face on the House of God.

But Archbishop Cranmer survives in a great scene when the king puts the gutless plotters to shame.  It is wonderful theatre when the accused shows his accusers the royal seal.  It could be an ALP caucus in 1948 or a Liberal Party caucus in 2024.  And it is not kind to one of those leading the posse – Sir Thomas More – who would have to be axed before he could be ensainted.  (Which Rome was inclined to do for those killed by English kings.  Henry VIII was furious about their treatment of Becket.)

The king does not get his son, but the now Stuart audience gets a ritual salute to the birth of the daughter, Elizabeth Gloriana.  OK – this is propaganda, butto my mind, this play, although not intended as such, sits well as the epilogue of a great historical cycle.

And if you look back at this motley of kings, there is no stand-out.  This playwright was not there to glorify his kings – although his warmth to the realm is everywhere.  Rather, he is there to show us not just English kings, but the humanity in all of us.  And no one else has got even close.

I am forever reminded of that remark of Richard Burton, when he referred to the ‘staggering compassion’ of William Shakespeare.  The full comment in the diary was –

What chance combination of genes went to the making of that towering imagination, that brilliant gift of words, that staggering compassion, that understanding of all human frailty, that total absence of pomposity, that wit, that pun, that joy in words and the later agony.  It seems that he wrote everything worth writing and the rest of his fraternity have merely fugued on his million themes….

The Boeing Pact

/ Geoffrey Gibson / Leave a comment

In 2018, a Boeing aircraft for no apparent reason plunged to the earth killing all on board.  Less than a year later, another Boeing of the same model suffered the same fate.  More than three hundred people died in these crashes.  In each case, the fault was found to be a failure in the computerised mechanisms that resulted in the pilot not being able to over-ride the robot driving or flying the plane. 

Boeing struck  a deal  with regulators and was then prosecuted for fraud for reneging on it.  So they struck another deal – and with no apologies to Groucho Marx. Federal prosecutors gave Boeing the choice last week of entering a guilty plea and paying a fine as part of its sentence or facing a trial on the felony criminal charge of conspiracy to defraud the United States. The families of the victims are outraged by the deal.  The reasons are obvious.  The court will be asked not to approve the settlement.

The origins of our laws come down to us from the forests of Germany that the Romans looked down on – until the Germans sacked  Rome.  In the first lecture in The Common Law, O W Holmes said that Roman law started from the blood feud and all authorities agreed that the German law started in the same way.  The law of criminal and civil wrongs  ‘started from a moral basis, from the thought that someone was to blame’.

Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.  (Little Brown  and Co, 1881, 3,37.)

The first object of the law was to deal with vengeance – the vendetta. 

As it happens, more than one hundred years before Holmes published his lectures, the Scots philosopher David Hume had looked at this .  He set out a short extract that ‘contains the history of the criminal jurisprudence of the northern nations for several centuries’.

Hume describes two phases of the emergence of the  ancient Germans from ‘the original state of nature.’  The vendetta remained ‘an indispensable point of honour for every clan’, but –

….the magistrate had acquired a right of interposing in the quarrel, and of accommodating the difference.  He obliged the person maimed or injured, and the relations of one killed to…accept a compensation for the injury, and to drop all further prosecution of revenge….A present of this kind gratified the revenge of the injured family by the loss which the aggressor suffered.  It satisfied their pride by the submission which it expressed.  It diminished the regret for the loss or injury of a kinsman by their acquisition  of new property, and thus general peace was for a moment restored…

Then the intervention by the ruler stepped up a notch.

The magistrate, whose office it was to guard public peace and to suppress private animosities, conceived himself to be injured by every injury done to any of his people; and besides the compensation to the person who suffered, he thought  himself entitled to exact a fine, called the Fridwit, as an atonement for the breach of the peace, and as a reward for the pains which he had taken in accommodating the quarrel.  (A History of England, Liberty Classics, 1983, 174-176).

And this is precisely what we got with the common law of England after 1215 when the writ of trespass alleged a breach of the peace of the king by force of arms – contra pacem regis, vi  et armis.  That allegation was essential to the process on which the English developed so much of their law dealing with civil or criminal wrongs.

We see immediately why the Boeing family victims are outraged by the second proposed Boeing settlement.  They have suffered most grievously. Their reaction starts from a moral basis, from the thought that someone is to blame – a wrong has been done.  What others call vengeance, they call justice.  Their felt needs are as primal as you can get.  If our law cannot accommodate them,  have we gone backwards or, worse, sold out?

People trust airline manufacturers with more than money – they trust the manufacturers with their lives.  Boeing  breached that trust and many people died.

If the court is to find that someone was to blame, it will not be the corporate legal entity, but a real person.  Instead, lawyers for the government and the corporation strike a commercial bargain.  Shareholders will be mulcted for the benefit of the government treasury.  The people responsible will walk away untouched.  And the victims  will not get to see due process of law.

A prime object of that process is to deter others from committing the harmful acts complained of.   There too the law is mocked, but we see it all the time.  It is as if there is one law for rich companies, and another for the rest of us.

But what we do know is that the  sight of one executive behind bars will offer more deterrence than all these cosy club deals done behind firmly closed doors .

Open justice – regulators – criminals.

Racism at home and abroad

/ Geoffrey Gibson / Leave a comment

In discussing the Voice, I said:

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‘Racism’ or ‘racist’ are not terms that I use.  They are too broad in their reach, and they are too often applied as unfair and unwarranted labels of abuse.

But as I understand it, ‘racism’, at least in its pejorative sense,  involves more than a recognition that people can be in some way classified according to race.  It entails a belief that people of some racial backgrounds are in some way inferior to others, or may be discriminated against, on the ground of their race.  And history is replete with stories of the misery that this vice has led to.

Such beliefs are irrational on the part of those holding them  – such people are described as ‘prejudiced’ – and hurtful to the objects of such beliefs.  Those holding such beliefs are open to the accusation that they are not seeing the dignity of other  people that arises merely because they are human.

‘Prejudice’ is almost irrational by definition.  It is irrational to hold that all people of the same tribe or colour have the same character.

But it is equally irrational to hold that reasoned criticism of some in a group evidences a prejudice against members of that group generally.  Those expressing such a view are often trying make themselves out as victims and get sympathy or support that way.

And where two groups are in conflict, people on both sides will tend to be irrational  – prejudiced – in assessing the conduct of either  side.  Their side cannot do wrong.  The other side cannot do anything right.

You can see all this in the history of Ireland.

The English regarded the natives of Ireland with a contempt greater than that with which they greeted the natives of Australia five centuries later.  The Statutes of Kilkenny of 1366 put most of the natives ‘beyond the pale’.  It was apartheid that resembled the Spartan treatment of helots – to the discomfort of Oxbridge. 

You could still find this racist contempt in polite circles much later.  The sometime historian J H Round in 1899 in The Commune of London said:

We went to Ireland because her people were engaged in cutting one another’s throats; we are there now because if we left, they would all be breaking one another’ s heads….The leaders of the Irish people have not so greatly changed since the days when ‘King’ McDonnchadh blinded ‘King’ Dermot’s son, and when Dermot, in return, relieved his feelings by gnawing the nose of his butchered foe.  Claiming  to govern a people when they cannot even govern themselves, they clamor like the baboo of Bengal against that pax Britannica, by the presence of which alone they are preserved from mutual destruction.  No doubt… .they would rather be governed badly by themselves than well by anyone else.  But England also has a voice in the matter; and she cannot  allow the creation of a Pandemonium at her doors.

The white man’s burden – you could not beat that even by crossing Hitler with Kipling.

So, the Irish arrived in Australia with centuries of history of being victims of racism.  To which was now added discrimination against Catholics.  Those two factors led to raw prejudice on their part.  And that led to bitter division in Australia – right through to the end of my childhood.

Ned Kelly was taught ‘Death to any Judas Iscariot who betrays an Irishman to an English  policeman.’  Kelly was a cold-blooded murderer, but many in the Irish diaspora – including otherwise sane lawyers in my lifetime  – treated him as a champion of the dispossessed against the Protestant dominated Philistine society of Melbourne.  It went beyond the Irish.  Manning Clark said: ‘Yet Ned lived on as a hero, as a man through whom Australians were helped to discover our national identity.’   It was another sad instance of our saluting losers.

Daniel Mannix came from Ireland to be Archbishop of Melbourne.  Just as the conscription issue got going here in the First World War, he launched an appeal for victims of the Easter Rising.  He was righteously vehement in his  opposition to the government and conscription.  To whom did he and Irish Catholics owe allegiance – Ireland, Rome, or Australia?   Part of this quandary had plagued England since Becket ran into Henry II.  Australia was dangerously, and venomously, split by Mannix and his followers.  Manning Clark said:

He was the mystic who saw in the face of the Irish peasant the image of Christ.  He was the Irish patriot nursing a grudge against those guilty of that ancient wrong against the Irish people…. For him, any reflection on his people and their reputation was like the sin against the Holy Ghost – something which could never be forgiven.  In Catholic countries, legend had it that when a person committed mortal sin fell across the face of the Virgin.  For Daniel Mannix, any slur on his faith by or on his own people by the eternal enemies of the Irish caused a shadow to pass over his face.

All that proved a fierce cocktail of imported division in the brand-new Commonwealth.  You can see that the fear and loathing felt by Mannix for the English and Protestant establishments, more than matched that felt by the English against the Irish five or so centuries before.   And then you get to the phase where the ultimate insult is for the conduct of your team to be compared with that of the other.  The inarticulate premise is of course that the members of the other team are inferior.  Which takes us back to where we started.

Then, after the next war, Catholics were, fairly or otherwise, seen to be the drivers of the ‘Split’ – the breakdown of the Labor Party that effectively left Australian as a one-party state for a generation. 

It is a notorious fact of history that religious conflicts are the worst of the lot.  And that conflicts within one faith – say Sunni and Shiite, or Protestant and Catholic – are the worst of those.  The stakes are so high.  Which is worse – treason, or heresy?

Well, all this comes to you from a lapsed Prot who now looks askance at most religion (and who could not give a hoot about the schism in Christianity) .  I have no doubt those brought up as Catholics, whether Irish or not, may well see things very differently – and possibly say so; possibly, vehemently. 

It is both natural and inevitable that people will associate with others of the same tribe and faith.  It is equally natural and inevitable that such associations will affect the way we think, frequently with results that bespeak raw prejudice.    It is not a good idea in Melbourne to engage your cab driver in discussion about the governance of Kosovo, Lebanon, or India.

But the few instances mentioned here, which reflect wrongs wrought on people over centuries,  and which fed bad tensions here over generations, show that we must be wary of those whose interest in foreign conflicts leads them to seek to interfere with our own domestic politics here in Australia.  Such people are dangerous.

Racism – Logic – Diasporas – Ireland – Gaza – Kosovo – Balkans – India.

Passing Bull 391 – Labels

/ Geoffrey Gibson / Leave a comment

The IPA published a note in the AFR that contained the following.

For good (or for ill), the culture of the nation was created on a foundation of Judeo-Christian ethics and the British legacy of human rights, the rule of law, and parliamentary democracy. Australia has one culture – not many.

Australia is multiethnic – it is not, and never has been, multicultural. The multiculturalism politicians are so fond of talking about can only exist in a social and political culture that’s liberal, peaceful, and accepts (up to a point) difference. Australia made multiculturalism possible, not the other way around.

(Yet, for some reason, the academic institutions of the English-speaking world now believe their primary purpose is to attack the history of a culture that allows people of different backgrounds and beliefs to live together in some sort of harmony.)….

At the Sydney Jewish Museum, Albanese said he wanted Australia to be “a place where people are valued regardless of their gender, their faith, their race, their sexuality, regardless of who they are”. That implies there should be equality of citizenship – a concept that the Voice referendum attempted to overturn. The strongest advocate for the Voice was the prime minister himself.

You may be familiar with that kind of ideology.  If you went to  family dinners on a Friday with Jewish, Muslim and Catholic families, you might be surprised to find only ethnic differences and not cultural differences. 

You might also be surprised to learn that the Voice was a challenge to equality.  (And try all that on with First Nations people at Yuendemu. Did Emily share the culture of Turner or Picasso?)

But what of ‘Judeo-Christian ethics’?  This label is often used with ‘Western civilisation’.  The trouble is that the three main faiths in Australia – Christianity, Islam, and Judaism – all came out of Asia.  Christianity chose to bury that past.  It took its philosophy from Greece and made Rome its geographic base.  To me – a lapsed Prot – in doing so, it butchered the teaching of the founder.

But let us put to one side whether Christian and Jewish ethics are the same, and if so whether they differ from those of Islam.  You are still left with  a gaping schism in Christianity.  We cannot have a Jew or Muslim as our head of state in London.   We cannot have a Catholic.  We take what we get, and the English constitution says the king or queen must be in communion with the Church of England.

Which is an interesting contribution to our multi-culturalism.  Or our attitude to the Enlightenment.

Multi-culturalism – IPA – religion – ethics.

Passing Bull 390 – Unthinkable in the US

/ Geoffrey Gibson / Leave a comment

In 1215, the English sealed a pact with their king.  He would be under the law because the law made the king.  Magna Carta is the foundation of the rule of law.  No one is above the law.  All are equal before it.  The Romans never got this; the French botched it in 1789; and the rest have been at best patchy.  Yet it is fundamental to our notion of civilisation.

A majority of the U S Supreme Court – put crudely, three stooges and two misfits –  now think differently.  Their President has immunity from prosecution when acting officially.  Is he acting in the discharge of his office when seeking to subvert what he is sworn to uphold?

How could this happen?  They have no separate bar and this is reflected in the character and standing of their judiciary.  And the respect they give to academe lets in ideology.   In the result, crude politicking violates both history and sense.

And even hard cases like Justices Clarence and Alito should know that appearances matter.