2

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?

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.

Whatever you say about some wars, you are likely to get your head shot off.  So I content myself with the timeless truths of a Scots philosopher who was well used to people trying to put him away in the name of God.

The greater part of mankind are naturally apt to be affirmative and dogmatical in their opinions; and while they see objects only on one side, and have no idea of any counterpoising argument, they throw themselves precipitately into the principles to which they are inclined; nor have they any indulgence for those who entertain opposite sentiments. To hesitate or balance perplexes their understanding, checks their passion, and suspends their action. They are, therefore, impatient till they escape from a state which to them is so uneasy; and they think that they can never remove themselves far enough from it by the violence of their affirmations and obstinacy of their belief.

But could such dogmatical reasoners become sensible of the strange infirmities of human understanding, even in its most perfect state, and when most accurate and cautious in its determinations; such a reflection would naturally inspire them with more modesty and reserve, and diminish their fond opinion of themselves, and their prejudice against antagonists. The illiterate may reflect on the disposition of the learned, who, amidst all the advantages of study and reflection, are commonly still diffident in their determinations: And if any of the learned be inclined, from their natural temper to haughtiness and obstinacy, a small tincture of Pyrrhonism might abate their pride, by shewing them that the few advantages, which they may have attained over their fellows, are but inconsiderable, if compared with the universal perplexity and confusion, which is inherent in human nature. In general, there is a degree of doubt, and caution, and modesty, which, in all kinds of scrutiny and decision, ought for ever to accompany a just reasoner….

Disputes with men, pertinaciously obstinate in their principles are, of all others, the most irksome; except perhaps those with persons entirely disingenuous who really do not believe the opinions they defend, but engage in the controversy from affectation, from a spirit of opposition, or from a desire of showing wit and ingenuity superior to the rest of mankind.  The same blind adherence to their arguments is expected in both; and the same passionate vehemence in enforcing sophistry and falsehood.  And as reason is not the source whence either disputant derives his tenets, it is in vain to expect that any logic which speaks not to the affectations will ever engage him to embrace sounder principles.

Did you mark the reference to the ‘disingenuous who really do not believe the opinions they defend but engage in the controversy from a spirit of opposition?’  Hume would have spotted Bolt a mile off.

We Australians enjoy sport.  Take footy and cricket – two team games.  Both come from England, as do our language and legal structure.  Most of us get some exposure to them at school, or playing in the backyard or park – the days have long since gone when you could stick a rubbish bin in the middle of the road as a wicket.  There was a popular song – ‘I made a hundred in the back yard at Mum’s.’ 

Team sports were and are thought to be good for school kids.  They can learn about teamwork, supporting others, how to lose or win with some grace, and accepting the decision of the umpire.  These are, if you like, lessons of life, and they are better learned on a cricket ground than on a battle field.  (The game of rugby was part of the education at the school of that name, but Lytton Strachey tells us that Dr Thomas Arnold fretted that the ‘naughtiest boys positively seemed to enjoy themselves most’ – which was at best a doubtful vindication of the principal’s godly vision.)

The nature of the engagement changes when most of us go from being occasional participants to being full time supporters.  Now what may be called the entertainment part becomes central.  Going to see a footy or cricket match is a bit like going to see a movie or musical.  We pay for the entertainment.  And what we get is a form of human drama.

But a sporting contest is a form of drama that is unscripted.  We don’t know what the end will be – which we always do when we go to see Shakespeare or the opera, or the pure delight of Casablanca on the big screen. 

We are concerned, if not revolted, by the often-insane amounts of money involved, the dependence on television, the evil influence of gambling, the patent corruption of almost all international sporting bodies – FIFA and IOOC are bywords for corruption – and the threat to the whole carousel posed by gold from the Middle East and Asia. 

But after all the razzamatazz and moonshine, in a test match or opera, some bunny has to go out there and lay it all on the line – when failure is very public and may be very wounding.  Then the contest resolves itself elementally into high drama.  It is a test of character – human character.  As often as not, this may come down to a test of nerve – or courage.  And in both footy and cricket, we can be captivated by the style or beauty – yes, beauty – of a passage of play.

Dogs, monkeys and gorillas may seem to play together, but they have not developed a game, much less identified courage or style in the way they go about it.  Those attributes are reserved to us humans – as, sadly, are other far less attractive attributes.

The drama inherent in a sporting contest gives us a mirror for the other forms of drama in our lives.  And just as importantly, it gives us release or relief from the burden of raising a family and paying off the mortgage – from dealing with the boundary riders, and enforcers.  And the technocrats and the robots.

For our allotted time, we are off the leash.  We can enjoy the company and the spectacle – with or without a drink – and we can – as they say – let our hair down.  We can flaunt our obvious prejudices, and give the umpire a raspberry – for each of which we could be smacked during the week.  (I can remember as a young boy listening to the instantly recognised thick Hampshire accent of John Arlott from England – ‘And a well lubricated gentleman outside mid-wicket is offering the umpire some gratuitous but quite useless advice.’)

And we need this relief much more than we did because of  the decline in the role of God in our public life.  Here we have what we would otherwise miss – the ritual, and meeting in common to partake of our culture – and a decent excuse for a form of tribalism, and even patriotism.  Sport provides, if you like, a form of communion.  ‘Communion’ need not involve God.  It is participation by members of a community holding or sharing a part of life in common – as in the Boy Scouts, the Country Women’s Association, or the Cavalry and Guards Club.  Or the Sydney Sixers or the Melbourne Storm.

Other forms of drama do not even come close to that of sport.  And in some cities – Melbourne is one – geographical sites and monuments have a status in the community that is unique. 

I am writing this not long after more than 90,000 people jammed the Melbourne Cricket Ground for a Taylor Swift concert.  It was apparently a great show – but it did not have the matchless intensity of an AFL Grand Final, or a Boxing Day Test Match.  Events like those are integral to the life of a city.  They are part of its fabric.

So, this is our timed relief from the nuisance trappings deployed to get up our noses while we try to keep our heads above the water.

But we live in age where very little is sacred, or immune to the banality that we suffer every day from the way others dictate how we are to run our lives.  And no sport is immune from the vice of interruption by technology as mandated by robots.

The Australian Football League has largely escaped the infection.  But for many, including me, cricket and both forms of rugby have been badly spoiled by television replays to question decisions of umpires.  The worst offender is Rugby Union, but cricket is not far behind.  It is rare for person batting to accept an LBW decision from the umpire.  What does this tell our children?  In rugby, people can be sent off after a drumhead court martial – where the accused is not heard.  You can get endless replays of an adult cricketer doing a soft shoe shuffle around the boundary rope.  Or did the foot of the winger infringe on the white powder as he hurtled toward the try-line?

The moral is you cannot accept the word of the player – all is subject to the mechanical surveillance of those in charge.  Some of them repose in ‘the Bunker.’ 

A paragon of sport, the prime of Australian manhood –  a decent bloke – nicks a ball on the way through to the keeper.  He knows that, but  with a straight and sulky face, he just stands his ground on the off chance that technology may get it wrong.  So much for the fantasy of the ‘spirit of cricket’.  And where does that put him in the pantheon of the heroes of the kids in the backyard?

Of course, any match, or battle, may swing on mere millimetres.  There is such a thing as chance.  It is inevitable – unless you subscribe to the metaphysics of the Medieval Schoolmen, or the religious doctrine of predestination that everything occurs according to God’s plan (in which case we will not run into you at the footy).

But what is the point of trying to measure chance so finely?  The battle of Gettysburg, like any battle, could have gone the other way if by chance just one bullet had deviated by one degree in its arc and taken out Colonel Joshua Chamberlain.  Our football games involve heavy body contact between highly trained athletes.  There will be hundreds of them during any one game.  Why do we reserve the microscope for just a few?

The referral to technology off the ground takes away the spontaneity of the game and adds an aura of unreality to it.  It can destroy momentum which is fundamental in all these sports.  Through no fault on its part, a team on the charge can be brought to a halt.  It is a little like the Safety Car in Formula 1.  It is an element of caprice that can have far more effect on the game than the issue it has been invoked to resolve. 

The only soccer match I have seen live was at the MCG many years ago in front of about 90,000 desperately keen Australians.  We only had to beat Iran in a replay.  We were comfortably well off at two nil – but Iran came back to draw the game, and we missed out on a berth at the World Cup.  I know little of the game, but on reflection, the whole mood of the game changed, when we were ahead, after it was stopped for some time to get rid of a mad streaker.  I remain convinced that his intervention was decisive as the game then unfolded.

What is called ‘the rub of the green’ is part of the game, and therefore a part of life.  It is absurd to say that luck plays no part in these contests – or the contest of a battle.  When we speak of things happening by chance, we refer to the way things happen without any plan or cause.  To seek a veneer of certainty where a given result may neither be necessary nor desirable is as sensible as kids making it up as they go when playing tippety-run on the beach.  We are I think defiling integral parts of our communal life.  This is another threat to our humanity.

And we belittle the umpire.  Once again, a human is over-ruled by machines.  In my professional life, for thirty years I made decisions affecting people’s lives that were reviewed in detail and in public on appeal.  Some involved amounts that could wipe people out.  The review process never worried me – although it does intimidate a lot of judges.  But I don’t know how I would react if I made a decision that was reviewed on the spot in front of 90,000 people – and I was told to reverse my decision because it was ‘wrong’.  And how, then, do you persuade kids to accept the verdict of an amateur umpire?  For that matter, how do you get people to aspire to the position?

So, the forces of what Ken Kesey called the ‘Combine’ now get to us even in our time off.  Put differently, Big Brother is everywhere.  We play or engage in watching sport to celebrate our capacity for grace and power.  We must now endure being reminded of our ordinariness, if not impotence.  And I fear that ‘experts’ and technology are now striking at the essence of what we call sport.

An essay in nine easy tablets

1

The German Conquest

The world is very old, but most of its peoples are now governed by legal systems that have come down from either Rome or England.  Ours (Australia’s) comes from the English, and its story is our present subject.

What we call Europe was dominated in the ancient world first by Greece and then by Rome.  The Greeks laid the foundations of logic and the arts, but they were hopeless at politics (a word we got from them), and their laws have had little impact on us.  The Romans were not so concerned with the intellect or the arts, but they created political systems in ruling the West and they developed a very sophisticated body of laws. 

The religion of each now looks both primitive and banal – about level, say, with voodoo.  Except for Rome near the end, neither people grasped the notion of the dignity that each of us has because we are human.  Each was based on slavery and a protection racket called empire, and the notion that either could be said to be civilized was one of the more curious conceits of the old Oxbridge.

The Romans ruled the land known now as Britain for four centuries from about the start of the Common Era to the start of the fifth century – nearly twice the time that the white people have been running Australia.  Very little effect of their rule is now left – and even less of that of the indigenous people (who don’t get a good press in Cymbeline). 

Instead, the character of the English nation began to take shape as Angles and Saxons settled there – although the natives would have looked on their incursions as invasions (as our First Nations look on the English who came here – ‘waterborne parasites’ according to one Cambridge lecturer).  They were followed by Scandinavian raiders and settlers.  The word ‘English’ comes from the first part of the term Anglo-Saxon.

The Greeks were fearful snobs and the Romans ran them a close second.  They turned up their noses at the Germans – in much the same way that Churchill would do with the Huns.  But the great historian Tacitus gave the Germans a tick in his Germania, and those Germans would be at the head of the new breeds bringing down old Rome.  There is a pleasing irony in their English descendants’ blocking their reception of Roman law in England – and then, much later, repudiating everything that Rome stood for as the head of one universal church.  But for the pesky independence of Germans turned English, the world would now look very different.

The fall of Rome led to a period of fear and uncertainty that we know as the Dark Age.  You can read about it in Beowulf.  It was as if the lights of Europe had all been turned out.  To whom would people look for their protection?  From where would they go for their laws?

Well, whatever else they did, the Anglo-Saxons did not do what most of Europe would wind up doing and import Roman law.  They would go it alone. 

People sought protection under what we now call the feudal system.  (The phrase had not yet been invented – nor had the word ‘Europe’.)  ‘I will be your man if you will look after me’.  The scheme is accurately presented in the beginning of The Godfather.  The Mafia thrives on government failure.  The pact between vassal and lord is like that between believer and God.

We now think that the first laws dealt with the conflicts that inevitably arise when people cross paths and then seek to work the land in a common area.  They need laws to control the vendetta – the issue identified in the Oresteia – and the protection of interests in land.  The feudal system became very intricate in large part because over time courses of conduct moved from custom to law.

The great jurist Oliver Wendell Holmes said: ‘It is commonly known that the early forms of legal procedure were grounded in vengeance.  Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law began in that way. …. Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.’

If those were the ends of the laws, what were the means?  You don’t have to have studied Pavlov’s dog to know that when people are asked what they should do next, they ask what others did before then.  Is there a precedent?  People get into a way of doing things so that it becomes a custom – that may in time harden into law. 

Take the word decree.  When pronounced by a judge, it determines the rights of the parties.  It looks backward – although it may be treated as a precedent in the future.  But if pronounced by an emperor or dictator, it applies to everyone in what they do in the future.  It is delivered as a law.

The Anglo-Saxons ruled through their kings.  The king held all the powers of making, executing and adjudicating on the laws.  His household became known as his court, and he would seek advice from his trusted advisers.  This we are told was the custom of Germanic chiefs from time immemorial. 

Over time, those closest to the king achieved a separate standing and office over others.  They would defend his realm, advise him on laws, and adjudicate disputes in his name.  The rot set in when these preferred people became an aristocracy as hereditary as the crown.  A large part of our story will deal with how the aristocrats served to pull the teeth of the crown – before it became their turn to have their own teeth pulled. 

The Anglo-Saxon kings made written laws called dooms ­but the crown would not flower in that offshore island until a new royal line took over the throne.

Dispute resolution was brutal and supernatural.  The issue was determined not by judges, but by God.  His word was revealed by a gruesome ordeal or trial by battle, or a process called ‘wager of law’ – signing up people to vouch for your credibility.  All those terms would sound alarmingly modern to litigants now. 

Christianity would soften the system a little, and add teeth to the oath when people believed in the fires of hell, but it all looks very primitive to us.  And now Christianity brought with it interference by the Church in government at all levels – with consequences that would take far more than a millennium to sort out.

The key to this phase of six centuries from the departure of the Romans to the invasion by the Normans is that the people coming to be called the English were determined not just to go along with the others.  We saw this insularity rise up again just recently.   The English were always going to make tricky bed partners with the people in Europe.  They are separated by so much more than the Channel.

And although he may have stretched the point, a distinguished American jurist commented that the English law is more German than the law of Germany itself.

(Apologies for the layout)

God knows we could do with a laugh.

Enter Dogberry and his compartner ⌜Verges⌝
with the Watch.

DOGBERRY  Are you good men and true?
VERGES  Yea, or else it were pity but they should suffer
 salvation, body and soul.
DOGBERRY  Nay, that were a punishment too good for
them if they should have any allegiance in them,
 being chosen for the Prince’s watch.
VERGES  Well, give them their charge, neighbor
 Dogberry.
DOGBERRY  First, who think you the most desartless
man to be constable?
FIRST WATCHMAN  Hugh Oatcake, sir, or George Seacoal,
 for they can write and read.
DOGBERRY  Come hither, neighbor Seacoal.⌜Seacoal
 steps forward.⌝  God hath blessed you with a good
 name. To be a well-favored man is the gift of
 fortune, but to write and read comes by nature.
⌜SEACOAL⌝  Both which, master constable—
DOGBERRY  You have. I knew it would be your answer.
 Well, for your favor, sir, why, give God thanks, and
make no boast of it, and for your writing and
 reading, let that appear when there is no need of
 such vanity. You are thought here to be the most
 senseless and fit man for the constable of the watch;
 therefore bear you the lantern. This is your charge:
you shall comprehend all vagrom men; you are to
 bid any man stand, in the Prince’s name.
⌜SEACOAL⌝  How if he will not stand?
DOGBERRY  Why, then, take no note of him, but let him
 go, and presently call the rest of the watch together
and thank God you are rid of a knave.
VERGES  If he will not stand when he is bidden, he is
 none of the Prince’s subjects.
DOGBERRY  True, and they are to meddle with none but
 the Prince’s subjects.—You shall also make no
noise in the streets; for, for the watch to babble and
 to talk is most tolerable and not to be endured.
⌜SECOND⌝ WATCHMAN  We will rather sleep than talk.
 We know what belongs to a watch.
DOGBERRY  Why, you speak like an ancient and most
 quiet watchman, for I cannot see how sleeping
 should offend; only have a care that your bills be not
 stolen. Well, you are to call at all the alehouses and
 bid those that are drunk get them to bed.
⌜SEACOAL⌝  How if they will not?
DOGBERRY  Why then, let them alone till they are sober.
 If they make you not then the better answer, you
 may say they are not the men you took them for.
⌜SEACOAL⌝  Well, sir.
DOGBERRY  If you meet a thief, you may suspect him, by virtue of your office, to be no true man, and for such
 kind of men, the less you meddle or make with
 them, why, the more is for your honesty.
⌜SEACOAL⌝  If we know him to be a thief, shall we not
 lay hands on him?
DOGBERRY  Truly, by your office you may, but I think
 they that touch pitch will be defiled. The most
 peaceable way for you, if you do take a thief, is to
 let him show himself what he is and steal out of
 your company.
VERGES  You have been always called a merciful man,
 partner.
DOGBERRY  Truly, I would not hang a dog by my will,
 much more a man who hath any honesty in him.
VERGES, ⌜to the Watch⌝  If you hear a child cry in the
night, you must call to the nurse and bid her still it.
⌜SECOND⌝ WATCHMAN  How if the nurse be asleep and
 will not hear us?
DOGBERRY  Why, then depart in peace, and let the
 child wake her with crying, for the ewe that will
not hear her lamb when it baas will never answer a
 calf when he bleats.
VERGES  ’Tis very true.
DOGBERRY  This is the end of the charge. You, constable,
 are to present the Prince’s own person. If you
 meet the Prince in the night, you may stay him.
VERGES  Nay, by ’r Lady, that I think he cannot.
DOGBERRY  Five shillings to one on ’t, with any man that
 knows the statutes, he may stay him—marry, not
 without the Prince be willing, for indeed the watch
ought to offend no man, and it is an offense to stay a
 man against his will.
VERGES  By ’r Lady, I think it be so.
DOGBERRY  Ha, ah ha!—Well, masters, goodnight. An
 there be any matter of weight chances, call up me.
 Keep your fellows’ counsels and your own, and
 goodnight.—Come, neighbor.
⌜Dogberry and Verges begin to exit.⌝

⌜SEACOAL⌝  Well, masters, we hear our charge. Let us go
 sit here upon the church bench till two, and then all
 to bed.
DOGBERRY  One word more, honest neighbors. I pray
 you watch about Signior Leonato’s door, for the
 wedding being there tomorrow, there is a great coil
 tonight. Adieu, be vigitant, I beseech you.
⌜Dogberry and Verges⌝ exit.

Enter Borachio and Conrade.

Enter Leonato, and ⌜Dogberry,⌝ the Constable, and
⌜Verges,⌝ the Headborough.

LEONATO  What would you with me, honest neighbor?
DOGBERRY  Marry, sir, I would have some confidence
 with you that decerns you nearly.
LEONATO  Brief, I pray you, for you see it is a busy time
with me.
DOGBERRY  Marry, this it is, sir.
VERGES  Yes, in truth, it is, sir.
LEONATO  What is it, my good friends?
DOGBERRY  Goodman Verges, sir, speaks a little off the matter. An old man, sir, and his wits are not so blunt
 as, God help, I would desire they were, but, in faith,
 honest as the skin between his brows.
VERGES  Yes, I thank God I am as honest as any man
 living that is an old man and no honester than I.
DOGBERRY  Comparisons are odorous. Palabras, neighbor
 Verges.
LEONATO  Neighbors, you are tedious.
DOGBERRY  It pleases your Worship to say so, but we
 are the poor duke’s officers. But truly, for mine
 own part, if I were as tedious as a king, I could find
 in my heart to bestow it all of your Worship.
LEONATO  All thy tediousness on me, ah?
DOGBERRY  Yea, an ’twere a thousand pound more
 than ’tis, for I hear as good exclamation on your
 Worship as of any man in the city, and though I be
 but a poor man, I am glad to hear it.
VERGES  And so am I.
LEONATO  I would fain know what you have to say.
VERGES  Marry, sir, our watch tonight, excepting your
Worship’s presence, ha’ ta’en a couple of as arrant
 knaves as any in Messina.
DOGBERRY  A good old man, sir. He will be talking. As  they say, “When the age is in, the wit is out.” God
 help us, it is a world to see!—Well said, i’ faith,
neighbor Verges.—Well, God’s a good man. An two
 men ride of a horse, one must ride behind. An
 honest soul, i’ faith, sir, by my troth he is, as ever
 broke bread, but God is to be worshiped, all men
 are not alike, alas, good neighbor.
LEONATO  Indeed, neighbor, he comes too short of you.
DOGBERRY  Gifts that God gives.
LEONATO  I must leave you.
DOGBERRY  One word, sir. Our watch, sir, have indeed
 comprehended two aspicious persons, and we
 would have them this morning examined before
 your Worship.
LEONATO  Take their examination yourself and bring it
 me. I am now in great haste, as it may appear unto
 you.
DOGBERRY  It shall be suffigance.
LEONATO  Drink some wine ere you go. Fare you well.

⌜Enter a Messenger.⌝

MESSENGER  My lord, they stay for you to give your
 daughter to her husband.
LEONATO  I’ll wait upon them. I am ready.
He exits, ⌜with the Messenger.⌝
DOGBERRY  Go, good partner, go, get you to Francis
 Seacoal. Bid him bring his pen and inkhorn to the
 jail. We are now to examination these men.
VERGES  And we must do it wisely.
DOGBERRY  We will spare for no wit, I warrant you.
 Here’s that shall drive some of them to a noncome.
 Only get the learned writer to set down our excommunication
 and meet me at the jail.

Scene 2⌝

Enter the Constables ⌜Dogberry and Verges,⌝ and the
Town Clerk, ⌜or Sexton,⌝ in gowns, ⌜with the Watch,
Conrade, and⌝ Borachio.

⌜DOGBERRY⌝  Is our whole dissembly appeared?
⌜VERGES⌝  O, a stool and a cushion for the Sexton.
⌜A stool is brought in; the Sexton sits.⌝
SEXTON  Which be the malefactors?
⌜DOGBERRY⌝  Marry, that am I, and my partner.
⌜VERGES⌝  Nay, that’s certain, we have the exhibition to
 examine.
SEXTON  But which are the offenders that are to be
 examined? Let them come before Master
 Constable.
⌜DOGBERRY⌝  10Yea, marry, let them come before me.
⌜Conrade and Borachio are brought forward.⌝
 What is your name, friend?
BORACHIO  Borachio.
⌜DOGBERRY⌝  Pray, write down “Borachio.”—Yours,
 sirrah?
CONRADE  I am a gentleman, sir, and my name is
 Conrade.
⌜DOGBERRY⌝  Write down “Master Gentleman Conrade.”—
 Masters, do you serve God?
BORACHIO/CONRADE  Yea, sir, we hope.
⌜DOGBERRY⌝  Write down that they hope they serve
 God; and write God first, for God defend but God
 should go before such villains!—Masters, it is
 proved already that you are little better than false
 knaves, and it will go near to be thought so shortly.
How answer you for yourselves?
CONRADE  Marry, sir, we say we are none.
⌜DOGBERRY⌝  A marvelous witty fellow, I assure you,
 but I will go about with him.—Come you hither,
 sirrah, a word in your ear. Sir, I say to you it is
 thought you are false knaves.
BORACHIO  Sir, I say to you we are none.
⌜DOGBERRY⌝  Well, stand aside.—’Fore God, they are
 both in a tale. Have you writ down that they are
 none?
SEXTON  Master constable, you go not the way to
 examine. You must call forth the watch that are
 their accusers.
⌜DOGBERRY⌝  Yea, marry, that’s the eftest way.—Let
 the watch come forth. Masters, I charge you in the
 Prince’s name, accuse these men.
FIRST WATCHMAN  This man said, sir, that Don John, the
 Prince’s brother, was a villain.
⌜DOGBERRY⌝  Write down Prince John a villain. Why,
 this is flat perjury, to call a prince’s brother villain!

BORACHIO  45Master constable—
⌜DOGBERRY⌝  Pray thee, fellow, peace. I do not like thy
 look, I promise thee.
SEXTON, ⌜to Watch⌝  What heard you him say else?
⌜SEACOAL⌝  Marry, that he had received a thousand
 ducats of Don John for accusing the Lady Hero
 wrongfully.
⌜DOGBERRY⌝  Flat burglary as ever was committed.
⌜VERGES⌝  Yea, by Mass, that it is.
SEXTON  What else, fellow?
FIRST WATCHMAN  And that Count Claudio did mean,
 upon his words, to disgrace Hero before the whole
 assembly, and not marry her.
⌜DOGBERRY, to Borachio⌝  O, villain! Thou wilt be condemned
 into everlasting redemption for this!
SEXTON  60What else?
⌜SEACOAL⌝  This is all.
SEXTON  And this is more, masters, than you can deny.
 Prince John is this morning secretly stolen away.
 Hero was in this manner accused, in this very
manner refused, and upon the grief of this suddenly
 died.—Master constable, let these men be bound
 and brought to Leonato’s. I will go before and show
 him their examination.⌜He exits.⌝
⌜DOGBERRY⌝  Come, let them be opinioned.
⌜VERGES⌝  70Let them be in the hands—
⌜CONRADE⌝  Off, coxcomb!
⌜DOGBERRY⌝  God’s my life, where’s the Sexton? Let
 him write down the Prince’s officer “coxcomb.”
 Come, bind them.—Thou naughty varlet!
⌜CONRADE⌝  Away! You are an ass, you are an ass!
⌜DOGBERRY⌝  Dost thou not suspect my place? Dost
 thou not suspect my years? O, that he were here to
 write me down an ass! But masters, remember that
 I am an ass, though it be not written down, yet
80 forget not that I am an ass.—No, thou villain, thou
 art full of piety, as shall be proved upon thee by
 good witness. I am a wise fellow and, which is more,
 an officer and, which is more, a householder and,
 which is more, as pretty a piece of flesh as any is in
 Messina, and one that knows the law, go to, and a
 rich fellow enough, go to, and a fellow that hath had
 losses, and one that hath two gowns and everything
 handsome about him.—Bring him away.—O, that I
 had been writ down an ass!
⌜They⌝ exit.

Enter Constables ⌜Dogberry and Verges, and the Watch,
with⌝ Conrade and Borachio.

⌜DOGBERRY⌝  Come you, sir. If justice cannot tame you,
 she shall ne’er weigh more reasons in her balance.
 Nay, an you be a cursing hypocrite once, you must
 be looked to.
PRINCE  How now, two of my brother’s men bound?
 Borachio one!
CLAUDIO  Hearken after their offense, my lord.
PRINCE  Officers, what offense have these men done?
⌜DOGBERRY⌝  Marry, sir, they have committed false
 report; moreover, they have spoken untruths;
 secondarily, they are slanders; sixth and lastly, they
 have belied a lady; thirdly, they have verified unjust
 things; and, to conclude, they are lying knaves.
PRINCE  First, I ask thee what they have done; thirdly, I
 ask thee what’s their offense; sixth and lastly, why
 they are committed; and, to conclude, what you lay
 to their charge.
CLAUDIO  Rightly reasoned, and in his own division;
 and, by my troth, there’s one meaning well suited.
PRINCE, ⌜to Borachio and Conrade⌝  Who have you offended,
 masters, that you are thus bound to your
 answer? This learned constable is too cunning to be
 understood. What’s your offense?
BORACHIO  Sweet prince, let me go no farther to mine
 answer. Do you hear me, and let this count kill me.

 I have deceived even your very eyes. What your
 wisdoms could not discover, these shallow fools
 have brought to light, who in the night overheard
me confessing to this man how Don John your
 brother incensed me to slander the Lady Hero, how
 you were brought into the orchard and saw me
 court Margaret in Hero’s garments, how you disgraced
 her when you should marry her. My villainy
 they have upon record, which I had rather seal with
 my death than repeat over to my shame. The lady is
 dead upon mine and my master’s false accusation.
 And, briefly, I desire nothing but the reward of a
 villain.
PRINCE, ⌜to Claudio⌝ 
 Runs not this speech like iron through your blood?
CLAUDIO 
 I have drunk poison whiles he uttered it.
PRINCE, ⌜to Borachio⌝ 
 But did my brother set thee on to this?
BORACHIO  Yea, and paid me richly for the practice of
 it.
PRINCE 
He is composed and framed of treachery,
 And fled he is upon this villainy.
CLAUDIO 
 Sweet Hero, now thy image doth appear
 In the rare semblance that I loved it first.
⌜DOGBERRY⌝  Come, bring away the plaintiffs. By this
 time our sexton hath reformed Signior Leonato of
 the matter. And, masters, do not forget to specify,
 when time and place shall serve, that I am an ass.
⌜VERGES⌝  Here, here comes Master Signior Leonato,
 and the Sexton too.

In anything that I do know by her.
⌜DOGBERRY, to Leonato⌝  Moreover, sir, which inded is
 not under white and black, this plaintiff here, the
 offender, did call me ass. I beseech you, let it be
 remembered in his punishment. And also the watch
 heard them talk of one Deformed. They say he
 wears a key in his ear and a lock hanging by it and
borrows money in God’s name, the which he hath
 used so long and never paid that now men grow
 hardhearted and will lend nothing for God’s sake.
 Pray you, examine him upon that point.
LEONATO  I thank thee for thy care and honest pains.
⌜DOGBERRY⌝ Your Worship speaks like a most thankful
 and reverent youth, and I praise God for you.
LEONATO, ⌜giving him money⌝  There’s for thy pains.
⌜DOGBERRY⌝  God save the foundation.

LEONATO  Go, I discharge thee of thy prisoner, and I
335 thank thee.
⌜DOGBERRY⌝  I leave an arrant knave with your Worship,
 which I beseech your Worship to correct
 yourself, for the example of others. God keep your
 Worship! I wish your Worship well. God restore you
 to health. I humbly give you leave to depart, and if a
 merry meeting may be wished, God prohibit it.—
 Come, neighbor. Dogberry and Verges exit.

The Canberra rape libel action grinds on. 

The lawyers for the defeated plaintiff were no-win, no-fee – which tells you about the advice they gave the loser.  The winner  will be millions of dollars out of pocket.  You or I could be bankrupt.

We need to think about this.  Is it right that people can ‘maintain’ a law suit?  I am not talking about classes of people suing other people behind a corporation.   ‘Class actions’ involve their own well identified policy issues – about which I know nothing.

It is not easy to find statements of the modern law of maintenance.  In The Queen’s Peace , 1953, Sir Carlon Allen said that  ‘maintenance is the officious intermeddling in other people’s legal disputes by ‘maintaining’ a cause in which one has no legitimate interest or charitable motive, and champerty is the baser form of it which aims at a share of the spoils’. 

Coke, in character, referred to ‘vexatious relators, informers and promoters’ – and ‘viperous vermin.’

Allen said:

It is however still the law that anybody, who, without any of the various excuses which are now well recognised, maintains another in his suit, whether as a mere busybody, or for financial gain, is liable to criminal penalties ; and …it does not matter whether the suit….is successful or unsuccessful.

Should such maintenance be unlawful unless the promoter is liable for the costs of the other side – and is good for them?

The court was scathing about the case of the plaintiff. That leaves questions.  Why did it cost tens of millions of dollars and a judgement of more than 300 pages to get that answer?

The system has run amok.  

Gibbon on ancient religion

The policy of the emperors and the senate, as far as it concerned religion, was happily seconded by the reflections of the enlightened, and by the habits of the superstitious, part of their subjects. The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. And thus toleration produced not only mutual indulgence, but even religious concord.

The superstition of the people was not imbittered by any mixture of theological rancour; nor was it confined by the chains of any speculative system. The devout polytheist, though fondly attached to his national rites, admitted with implicit faith the different religions of the earth. ….. A republic of gods of such opposite tempers and interests required, in every system, the moderating hand of a supreme magistrate, who, by the progress of knowledge and flattery, was gradually invested with the sublime perfections of an Eternal Parent, and an Omnipotent Monarch.  Such was the mild spirit of antiquity, that the nations were less attentive to the difference, than to the resemblance, of their religious worship. The Greek, the Roman, and the Barbarian, as they met before their respective altars, easily persuaded themselves, that under various names, and with various ceremonies, they adored the same deities.  The elegant mythology of Homer gave a beautiful, and almost a regular form, to the polytheism of the ancient world.

The philosophers of Greece deduced their morals from the nature of man, rather than from that of God.

Prefigures Robespierre, Salin, Hitler and Franco

An anxious regard to his personal safety was the ruling principle of the administration of Valens. In the condition of a subject, he had kissed, with trembling awe, the hand of the oppressor; and when he ascended the throne, he reasonably expected, that the same fears, which had subdued his own mind, would secure the patient submission of his people. The favourites of Valens obtained, by the privilege of rapine and confiscation, the wealth which his economy would have refused.  They urged, with persuasive eloquence, that, in all cases of treason, suspicion is equivalent to proof; that the power supposes the intention, of mischief; that the intention is not less criminal than the act; and that a subject no longer deserves to live, if his life may threaten the safety, or disturb the repose, of his sovereign. The judgment of Valentinian was sometimes deceived, and his confidence abused; but he would have silenced the informers with a contemptuous smile, had they presumed to alarm his fortitude by the sound of danger. They praised his inflexible love of justice; and, in the pursuit of justice, the emperor was easily tempted to consider clemency as a weakness, and passion as a virtue. As long as he wrestled with his equals, in the bold competition of an active and ambitious life, Valentinian was seldom injured, and never insulted, with impunity: if his prudence was arraigned, his spirit was applauded; and the proudest and most powerful generals were apprehensive of provoking the resentment of a fearless soldier. After he became master of the world, he unfortunately forgot, that where no resistance can be made, no courage can be exerted; and instead of consulting the dictates of reason and magnanimity, he indulged the furious emotions of his temper, at a time when they were disgraceful to himself, and fatal to the defenceless objects of his displeasure. In the government of his household, or of his empire, slight, or even imaginary, offences—a hasty word, a casual omission, an involuntary delay—were chastised by a sentence of immediate death. 

In his book The Lyric Age, the historian A R Burn, whom I studied at school, said:

Homer and his age also gave Greece a pattern of conduct: the conception of the Hero.  In a sense, it is the discovery, often in part lost and made again, of the dignity of the individual.

For reasons set out in the extract from a book below, I do not agree.  Burn himself says that the Greeks were in a ‘spiritual vacuum’ like that of the pagan Northmen. They got no consolation from their religion – the spiritual vacuum.

Homer himself….is deeply pessimistic.  Life and its glory are fleeting; and the ghost-life to which he looks on in the House of Hades is that of a gloomy limbo, whose only pleasure is the remembrance of earth; a life, to disbelieve in which was, to later Epicureans, a liberation….It is to the credit of Homer and his patrons that they do not take such gods as these very seriously.  The gods are stage machinery in the traditional stories but when the scene is set on Olympus itself, more often than not the object is comic relief of a crude kind….The fact is that the gods of the bronze age, conceived in the likeness of earthly rulers, became less worshipful the more they became the heroes of stories….

There you have not just aspiritual vacuum, but a moral void.  And it is nowhere near the principle of humanity of Judeo-Christianity or the Enlightenment. 

It sounds just like the world of King Lear – and the Ring Cycle.  In the former, we mortals are like flies to wanton boys.  We have not got anywhere near the notion of ‘the dignity of the individual’.  It is something you notice in Shakespeare – in plays where humans appeal to ‘the gods’, we feel like we are in the spiritual vacuum of a primitive religion.  In the Ring, the gods are so hopeless – they are doomed – that we get  regular serves of sit-com.

And what should we expect of the ‘hero’?   The word can denote someone of great courage or the lead part in a story or play.   In a myth, the hero has superhuman qualities and undergoes great trials to save part of mankind. Slaying a dragon who guards the gold is a textbook hallmark of such a hero.   He often has a magic weapon – like Notung (with  which Siegfried breaks the spear of Wotan  that so captivated James Joyce) or Excalibur.

For the reasons set out below, Achilles may be a champion warrior, but he is otherwise alarmingly human and mortal, and anything but a hero in any sense. 

Shakespeare completed the annihilation of Achilles in Troilus and Cressida.  He put a big bomb under chivalry, romance, knighthood, heroes – the whole shebang – at about the time Cervantes was doing the same with Don Quixote. This play may be the most serious hatchet job of the lot.  Auden said ‘the play doesn’t conform to heroic convention’ and that Achilles ‘takes the extremely unheroic line of butchering the unarmed Hector.’  The American poet Mark Van Doren called Achilles ‘the chief of all curs’ and said ‘the heroes have accomplished their own degradation’.

We get similar failings in Siegfried, and in the degradation of the gods in Gotterdammerung.   Siegfried  is a stupid young man who has never grown up.  Even Wagner thought he was stupid.  The Rheinmaidens knew he was mad.   And he takes so long to get killed.

It looks to me that we have to wait for Beowulf to get our hero.  As it happens, by then God is on the stage. But so are the dragons.

Book Extract

Homer

The Iliad is a war story.  When a Trojan prince, Paris, takes off with a Greek princess, Helen, the Greeks make war on Troy.  It is King Agamemnon and his hero, Achilles, against King Priam and his hero, Hector.  But the Greeks quarrel and Achilles sulks.  He comes back after Hector kills his friend.  Achilles kills Hector but is reconciled by Priam to allow a decent burial.

The gods of The Iliad may be immortal, but they are many, and they are divided against each other.  Each ‘smells of mortality’ or, as was said of a candidate for execution, each is ‘desperately mortal’.  The God of Paradise Lost and the Old Testament is very different.  He is the only One.  He is omnipotent and omniscient.  But he is not impersonal.  He is about as personal as any God could get.  He has intimations not of mortality, but of humanity.  He did, after all, say that he made Adam in his own image.  In truth, that God is downright jealous.

The God of the Book has another human attribute.  He plays favourites.  He plays favourites with peoples, lands and cities.  So do the Greek gods.  In the Agamemnon of Aeschylus, the Chorus refers to the god of war as ‘the moneychanger of dead bodies’, and you could find plenty in the Middle East who would say the same of Jehovah or Allah.

But the adherents of God have one very big advantage over the followers of the Greek gods.  God may be jealous; he may play favourites; he may smile or frown; but in judging us mortals, he is not, as the Greek gods are, arbitrary, capricious, or whimsical, or any of those other epithets that make lawyers jumpy when they talk of judges.  God does not play dice.  He has no Fate to succumb to.  He is not to us as flies are to ‘wanton boys’. 

The idea of the hero was to excel as a man and as a fighter and so win honour and glory.  If he wins enough, he might live on in name and to that extent be immortal.  There was a Greek word, agenor, that may be rendered ‘excessive manhood’.  We now call it testosterone.  Their testosterone can send these heroes out of control.  We talk of sporting heroes being ‘on fire’.  As Achilles rearms after the death of Patroclus, the poet sings ‘so now from Achilles’ headthe blaze shot up the sky’.  Achilles was on fire.

How do the heroes seek to achieve honour?  The answer is simple.  They kill or are killed.  They are the precursors of the Mafia dons.

Achilles is without pity.  He is a natural-born killer, as Hollywood might now say.  He redefines our idea of selfishness.  Achilles is not at Troy – he does not fight – for his king, his clan, or his nation.  He is there purely for himself and, later, his dead friend.  For Achilles there is no question of a conflict of interest between honour and loyalty.  The needs of his men are nothing beside the injury to his wounded pride. 

Achilles is the worst kind of aggressor – he is super-sensitive to insult or affront.  T.S. Eliot, apparently in his capacity as Chairman of the Virgil Society, called Achilles a ‘spoiled teenager’.  (How would Eliot have known?)  The capacity of Achilles to sulk is limitless.  This is a characteristic of a high-born, spoiled brat.  Achilles was a lethal prima donna; like a professional footballer with attitude – O.J. Simpson, for example.  One goddess knew just how to appeal to him – the ‘most terrifying man alive’. 

There is one thing we can say in defence of Achilles.  The insult offered to this god-born hero was mortal.  In the course of the argument with his king, which escalates, Achilles pre-figures Mohammed Ali when he says that ‘the Trojans never did me damage’.  Agamemnon responds with raw hate and drives the insult home in terms that are unforgivable:

But I, I will be there in person at your tent
To take Briseis in all her beauty, your own prize –
So you can learn just how much greater I am than you. 
Achilles goes to draw against this ‘staggering drunk’, the ‘most grasping man alive’.  The gods talk him out of drawing on his king.  Achilles settles for a curse and a prayer.  His prayer is that the gods will curse the Greeks – his own side, if he ever had one – and ‘mow them down’. 

What, after nine years, was the object of the Greeks?  Genocide – or at least that degree of annihilation that Joshua wrought on the villages that lay in his way at Canaan, or that Henry V threatened the French with before the gates of Harfleur.  When Menelaus looks like he might weaken and show mercy to a Trojan prisoner, his brother snarls:

Ah would to God not one of them could escape
His sudden plunging death beneath our hands!
No baby boy still in his mother’s belly,
Not even he escapes – all Ilium blotted out,
No tears for their lives, no markers for their graves!
Just how awful was the final solution reserved for the Asians of Troy only becomes apparent in The Trojan Women by Euripides.

Achilles finally snaps out of his sulk when Patroclus dies.  The death of a male friend enables him to put aside his sulking at the loss of a female prize – but at the cost of his going berserk and becoming ‘barbaric’.  He slaughters everything he can get his hands on before he corners Hector.

When Hector runs in fear, Achilles loses control of himself.  (He actually fights a river.)  Hector proposes that the winner of their inevitable duel will respect the body of the loser.  He gets an eye-balled response that Adolf Hitler would have applauded:

There are no binding oaths between men and lions –
Wolves and lambs can enjoy no meeting of the minds –
They are all bent on hating each other to the death.

Achilles is now the apostle of hate.  He is Satanic.  He tells Hector that he wishes his fury could drive him to hack away his flesh and ‘eat you, raw’ 

What do his faithful men do?  They wonder at the ‘lithe beauty of Hector’ and all those who come forward stab the body of Hector while laughing with their comrades.  This may be the low point of humanity for the whole of this poem.  When these celebrated soldiers, the mighty Myrmidons – the elite killing machine of the Greeks – are released from their dreadful fear of the great Hector, they revert to their primal Stone Age forbears and behave like animals out of the Balkans.  They are as much part of humanity as was the Waffen Death’s Head SS.  One lesson of The Iliad is that even the best of us – the heroes – live in a state of suspense between the gods and wild beasts.

Now, the descent of the Greeks into barbarism – their fall, if you prefer – shows how nasty and hollow is the conception of ‘hero’ and ‘honour’ that some wish to celebrate in Homer, but also how marvellous is the reconciliation that Priam makes with Achilles.  The end of the plea of Priam is high theatre indeed.  It comes when Priam utters these lines:

I have endured what no one on earth has ever done before –
I put to my lips the hands of the man who killed my son.

What a step for man was this. Not a god or God in sight (except that Achilles was the son of a god).  Just an old man doing his best for one he loves, a son who is already dead.  And in doing that, the old father dared to break the invincible bonds and the ineluctable logic of the vendetta.  As a result, men were able to stop being wound-up, man-killers, and put behind them those codes that impel men to kill others.  They could try to think of what it was like before their fall.  Achilles may have ‘felt like some watcher of the skies / When a new planet swims into his ken.’

In truth, the old king Priam was repudiating the whole code of honour and glory.  Priam did not offer up his son for us.  He offered up himself for his son.  This is a high testament to humanity in a very inhumane age.  It is as if we are going two thousand years ahead to ask with Hamlet whether vengeance is all there is.

And so the issue of the poem is resolved – the whole poem is dominated by the wrath of Achilles – the very first word of the poem – and that wrath comes to an end when an old man has the courage to put his lips to the hands of a frantic killer.  In the Cowper version, Priam refers to a ‘humiliation not yet seen’.  Humiliation is the polar opposite of the sought-for condition of the hero.  The first of those blessed by the son of man in the Sermon on the Mount were ‘the poor in spirit’.  That is the last thing you could say of a hero of The Iliad. 

There is, however, another side.  The big-heads, the prime cases of selfishness, are the gods, and the Greek heroes, and Helen and Paris.  They all put themselves first.  The rest are just there to make up the numbers.  The heroes are the great takers of the world.  They are living denials of the first beatitude.  Aristotle got it just right when he said that a man living outside a group is either ‘a bad man or above humanity [a god] …. the natural outcast is forthwith a lover of war.’

When you look at the behaviour of the Greeks against the Trojans, Asia looks more civilised than Europe.  But who amongst us takes the side of the Trojans?  Why, then, do we take the side of the supreme man-killers?  Why do we still sing the praises of those ratbags who caused or declared the war, or even those ‘heroes’ who had the misfortune to fight and die in it?  Who is there among us who will sing the praises of those who devised or directed the awful carnage at Gallipoli or on the Western Front? 

We should also see the ‘honour’ of the Greeks at Troy in its place.  They went to war over a high-level defection, what our police would now call a domestic.  Thousands would die for a slight to the honour of a husband, king, and people.  In order to get his ships moving, Agamemnon sacrificed the life of his daughter, Iphigenie.  For that, as we have seen, his wife murdered him when he came home.  For this her son murdered her when he came home.  No wonder that Freud did not fear these Greeks bearing gifts – he had to look no further than these heroes to find the best example of how we twist our minds.

The Odyssey of Homer, on which James Joyce modelled his Ulysses, is a book of nostalgia, of the yearning of Ulysses (Odysseus) for home, and of his adventures in getting there.  These travel adventure stories may have had more appeal for the ancients than us.  This one influenced Shakespeare in his Pericles.  I have referred to The Iliad at length to show why Homer was treated by the Greeks as their Bible, and why we mention Homer in the same breath with Dante, Shakespeare, and Goethe.  It also speaks of a streak of hostility and violence in the people who lived by that book.

Random thoughts after 7 October

In commenting on religion, I am not forgetting the comfort it has brought to mankind.  It is the chronic need for that comfort, the mystical source of the power, the mix with politics, philosophy, and tribalism, and the consequent reliance and dependency, and capacity for abuse of power that troubles me.  Someone who holds the keys to Paradise or Hades is the most powerful person in the world.  And we all know what  power can do to people.   

As someone once said: ‘Freedom of speech, I am with you all the way – it’s just the Press I can’t stand.’   The problem I see is not with God – it is with us.

(I may add that religion has left all of us with one great and undeniable gift – the abolition of slavery.  That movement, as I recall it, was led by the Anglicans and Quakers when no one else seemed interested.  This was a great achievement for humanity.  At that time, America and Russia had yet to emancipate their own slaves.  If you take the view that a state that allows slavery is not civilised, then a gaggle of Anglican and Quaker activists gave the world its first civilised nation. )

The major moral failure in the Middle East, and elsewhere, in my view is that we do not treat each person as having worth or dignity just because he or she is human.  We want to put people in boxes or categories – or label  them by their faith or tribe or colour.

I have and need no religion to reach that conclusion.                                                                                    

Religion turns on faith.  It is beyond logic or proof.  Most of it seems at best silly to most of us.  But most of us allow one exception – our own faith. 

I do not allow any exception.  I hold no belief that could be called religious. 

Most people inherit their faith – it is not chosen after careful thought .  It is an accident of history. But once they adopt their faith, generally in childhood, it does not matter to them that most of the world think that they are deluded. But it remains the brute  statistical fact that all the world regards most of the rest of the world as misled, to put it softly, on religion.  They are content to live in hope that they have drawn the winning ticket in the lottery.   

I hold nothing against people practising religion, but I have a full understanding of the wrongs done in its name.  It is enough to mention the Crusades, the Inquisition, and the religious wars after Luther.  The schism in Islam is a blot on the world.

I cannot think of one major faith that has not been disfigured by hate.

I can think of plenty that look to be driven by fraud or who were so exotic that they stretched credulity and charity.  But that is not enough to disqualify their faith.  I had to decide such a case.  It is tricky.  And many Australians were revolted to find that the High Court put their decent faith in the same basket as Scientology  – which they look upon in horror. 

I can also think of plenty that have in my view far too much political influence or power.

I resent having people seek to rule me or affect my life – or death – by reference to dogmas that derive from faith alone.  Kant said that a church tends to pass itself off as the only universal one – ‘even though it is based  on faith in a particular revelation which, since it is historical, can never be demanded of everyone.’  That is crucial.

There is too much hate speech in scripture.  Including the Bible and Koran.  A lot of scripture revolts me.

One of the problems with the faiths coming out of the desert is that they are exclusive and absolute.  Greece and Rome were far more tolerant.  David Hume said: ‘The intolerance of almost all religions which have maintained the unity of God is as remarkable as the contrary principle of polytheists…And if among Christians, the English and Dutch have embraced the principles of toleration, this singularity has proceeded from the steady resolution of the civil magistrate, in opposition to the continued effort of priests and bigots.’

Then there is the problem of God and power. The Church was behind the conquest of South America, and fully acquiesced in  the imperial rape of all Africa.  The peaceful Dutch may have been the worst.  And the Church did deals with Napoleon and Hitler, and the Orthodox Church, which has so badly failed Greece and Russia, treats with Putin.

For that matter, the role of religion here is at best spotty.  (The settlers here proceeded against those who were there before them  with the rifle, the bottle, and the Bible.  They derived their warrant not from Almighty God, but His Majesty King George III.)

In the result, religious bodies have at best limited plausibility.  There are so many of them.  They are mutually exclusive.  And they have a gruesome history of competition and conflict and starting wars.  Fear of the unknown has always driven mankind to religion.  It is the price of knowledge, and not a cross to be borne by the apes.  But is mankind nett better off because of God?   If so, which?

Partly as a result of the absolutism of current faiths , and partly as a result of tribal bonding and history, restraint and tolerance go straight out the window.  Brick wall meets brick wall, and each side is anxiously monolithic – but always so very righteous, so damnably righteous.  Neither finds fault in itself,  or virtue in its adversary.

But a decent community depends on restraint and tolerance.

And clever combatants should recall that Australians do not like intellectuals.  (In the old days, Prots held this against the Jesuits.) 

And judges do not like clever arguments.

The first proposition above I take from Kant.  He and Spinoza are very instructive on religion. 

Religious hate is the worst. 

Apart from schism, and charges of heresy, two factors make it worse.  A conflict may go beyond life and death, and reach the afterlife.  Or it may relate to land.  In the Holy Land, three faiths have fought for dominance in a very limited area.  We got a similar flow on from conflict in the Balkans in the fifties.

The conflict about Gaza looks to me to occur in some kind of legal vacuum.  By what rule book does one nation state take an army outside its borders into land not of any nation state and say that it will stay at war with those in the area it has invaded until it has eliminated all those who command those who attacked it?  It looks to me to be a kind of no-man’s land, which is fraught in any zone of conflict.  Whatever else it is, it is not a war between nations.

Both sides in this conflict claim some kind of victimhood.  One problem is that there is no agreement on how far back you should go to assess what may lie in the balance.  (Our First Nations might think that it is hilarious that people in the Middle East only go back a few thousand years for this purpose.)

Another problem is holding people responsible for what their ancestors did.  This violates the proposition I set out first.

But it is a political fact of life that a nation will be damned for crimes committed in its name.  Hannah Arendt is very good on this at the end of her book on Eichman.  ‘Many people today would agree there is no such thing as collective guilt, or, for that matter, collective innocence…This, of course, is not to deny that there is such a thing as political responsibility….It means hardly more, generally speaking, than that every generation, by virtue of being born into a historical continuum, is burdened by the sins of the fathers as it is blessed with the deeds of the ancestors.’

But extending that damnation to external supporters of the nation accused of wrongdoing is in my view wrong for the reasons given.

It follows I think that it may not be a good idea for members of a religious or tribal group to say that because of events in their history, they should be treated differently.  That is just the kind of bad thinking that lies at the heart of these conflicts.

I find it hard to think of any decent exceptionalism – the English used to get away with it, but the Americans no longer can.

Few who think they are different think that others are superior to them.

You hope that those who harbour feelings of their own superiority have the grace and courtesy to keep it to themselves.

It follows that neither side has exclusive claims to victimhood, that neither can accuse the other of being the only unreasonable party,  and that each will be in luck if it gets a sensible response from the other side.

The worst problem with vendettas is that they have no ending.

The attack on 7 October was an outrage and a crime against humanity that could never be justified by any felt grievance on the part of those making the attack.

For reasons that were obvious, the target nation felt the attack as a grievous affront to its national psyche, and a gruesome intimation of its own mortality.

The issue then  is whether its response is consistent with a general obligation to treat each person as having worth or dignity just because he or she is human.

And as lawyers are wont to say when they are being honest, or merely tired, that is a matter on which reasonable minds may differ.  But you will find plenty on either side who say that the other side are beyond the pale.  That is what happens when God is built into a nation or tribe.  The result is at best fraught.

Perhaps I may refer to another skeleton of religion which has no bearing on Gaza but shows why religion generally is under a cloud for many.  The ancient gods look theologically vacuous and intellectually savage, but they showed the supreme grace of tolerance.  Then we get the link between Christianity and philosophy.  That led to sectarianism, factionalism, and persecution.  David Hume said: ‘Hence naturally arose keenness in dispute, when the Christian religion came to be split into new divisions and heresies.  And this keenness assisted the priests in their policy of begetting a mutual hatred among their deluded followers.’  The logical corollary of exclusive belief  is heresy – which justifies persecution.  Doubt or dissent is criminalised.  The comparison with totalitarian governments last century is shocking. 

And religious fanaticism leads to wars, rebellions, pogroms, and inquisitions. It at least in part underlay the invasion from Gaza and is at large in the settlements.   It endorses confrontation and coercion.  And it so often stands in the way of freedom under the law.