Here and there – The Cardinal’s Gambit

 

The controversy about the conviction of a priest for child abuse has revealed a lack of understanding of some aspects of our law.

The trial process

For us, a criminal trial is not an inquiry into truth by any means.  Unlike French or German courts, we do not engage in an inquiry after truth.  We inherited the adversarial system.  A trial involves putting some issue to the test.  In a civil action, the question is not what in truth happened, but whether the version of one side is more probable than that of the other.  The person complaining has the onus, and the standard of proof is the balance of probabilities.  In a criminal trial, the issue is not what in truth happened – we leave that to God – but whether the prosecution has proved beyond reasonable doubt that the accused committed the crimes alleged against him.  The great legal historian F W Maitland put it this way.

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 case, even when the King is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor.

In our High Court, Justice Dawson said this about a criminal trial:

A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted, and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side.  When a party’s case is deficient, the ordinary consequence is that it does not succeed.

 

We will revisit the cricket umpire, because the analogy helps on a critical issue in this discussion.

The role of the jury

The jury is for our criminal law what our parliament is to our legislature and executive.  It is the way that we the people get to make the really big decisions that govern our lives and very freedom.  The jury is fundamental not only to our doctrine of the rule of law but to our democracy.  People who are not dewy-eyed say that the jury is a central pillar of our freedom, and the reason why we have not succumbed to revolution or dictatorship.  It follows that anyone seeking to undermine this part of our constitution should be closely watched.

Members of the jury are summoned and sworn to give a verdict on the evidence (veredictum or ‘truly said’).  This process goes back to Magna Carta in 1215.   Magna Carta provides that the Crown (the government) shall ‘not go after or send for’ any free man except by ‘the lawful judgment of his peers or by the law of the land’.  Scholars may argue about whether we are talking of legal process, or brute force, but we all know what it feels like to have government – the Crown – come after us or send for us.  And if the Crown really goes for us and wants to put us in jail, we have this right to take our stand upon our country.  We will not go to jail on the mere say-so of some bureaucrat, or even a judgment of one of Her Majesty’s justices, unless twelve of our neighbours have found that we are guilty of having committed a crime.  In the gorgeous language of old, the Crier would tell the jury that by pleading Not Guilty the prisoner ‘has put himself upon God and the country, which country you are.’

So, if you are chosen to go on a jury in Victorian court, you stand for and represent the people of the State of Victoria just as surely as does its parliament.  That right must be as precious to you as it is to the accused, since one day you might be the accused.  If you are chosen for jury duty, then, lap it up, because in that office, you are as high and mighty as any minister, justice, or prelate in the land.

We need to bear all this firmly in mind when we come to the role of judges in dealing with the verdict of us the people sitting as a jury.

The right to silence

If you are charged with having committed a crime, you do not have to say anything to the police, and you are not obliged to give evidence in court.  If you don’t, you can’t be cross-examined, or make a public fool of yourself.  There is a lot of law on what might be said in court about the exercise of that right – generally very little.  Nor would an appeal court comment on the election of the accused not to give evidence.

What is the jury to make of an accused who chooses to say nothing in court?  You know as much about this as I do.  We are not allowed to quiz jurors about what they do.

Take a hypothetical.  You are on a criminal jury.  A youngish housewife claims that she was indecently assaulted by a surgeon, a big strong man in his forties.  She gives her evidence calmly and persuasively, although she is very distressed at having to go through this.  She is cross-examined and called a liar – for hours that turn into days.  You can’t believe it, and you are looking forward to see how the surgeon goes when it’s his turn.

But he doesn’t front!  He is asking you to reject her testimony, but he won’t let you get you get even near him.  What do you think of that?  How does this sit with your notions of fairness – or fair play, even?  Why should you not accept the sworn evidence of a witness who has been tested and not broken, and which no other witness has contradicted?  He’s a big strong man, better educated than most of us, used to high office and public responsibility – why couldn’t he go in against the little house-wife who makes this complaint against him?  Have the surgeon and his expensive lawyers been just too big for their boots?

What we can say is that if the surgeon had sought to pursue that course before a disciplinary tribunal in his profession, he would have had the door slammed in his face.  With extreme prejudice.

The appeal court

If the last point was tricky, the next is downright murky.

The law says that a court of criminal appeal rehears the case, but it does not rehear the case in a way that you would understand that term.  Crucially, it does not get to see and hear the witnesses as they give their evidence.  It operates on written transcripts.  It has access to video recordings of the evidence, but they are not the same as being in the courtroom when the evidence was given.  In a case that turns on the credit of witnesses – which this case is – that is a real handicap.

Any trial lawyer or judge knows that the whole mood of a case can turn around in a moment with one pause or gesture of a witness – that does not show up on transcript and which may only be partially caught on video replay.  The movie was not entirely silly when it referred to the ‘vibe’.  Trial judges get very annoyed when they get castigated by appellate judges – some of whom have never conducted a jury trial – who say that the trial judge got it wrong when those appeal judges were not there in court at the time to catch the vibe.

A convicted person can appeal if the judge gets the law wrong in directing the jury.  But the law also permits an appeal court to allow an appeal if it concludes that the verdict of a jury is unreasonable or cannot be supported on all the evidence – even though there was, as a matter of law, evidence upon which the accused could have been convicted.

The statute that confers jurisdiction on the Court of Appeal says that court must set aside a verdict if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’ or if ‘for any other reason there has been a substantial miscarriage of justice’ or if ‘as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.

There are reams of law about the powers of the appellate court in dealing with a submission that a verdict is unreasonable or cannot be supported by the evidence.  It is all made by judges and it is about as easy for you – or, for that matter me – to follow as Kant’s refutation of the ontological argument for the existence of God.  But I hope that I have said enough to allow you to see the two problems in this kind of appeal that were referred to by Justice Brennan in the High Court (in a case involving a dingo):

If Ratten [a preceding case] were to be taken as requiring a Court of Criminal Appeal to set aside a conviction whenever the evidence given at the trial leaves that court with a reasonable doubt about the appellant’s guilt, the function of returning the effective verdict would be transferred from the jury to the court – a course which would at once erode public confidence in the administration of criminal justice and impose upon the court the impossible burden of retrying every appeal case on the papers.

The law is clear that the judges cannot overturn a jury verdict just because they don’t agree with it, but how bad the verdict must look before they can overturn it is about as clear as the doctrine of the real presence.

But fundamental to the case of the cardinal is that the appeal judges will not have seen the witness or heard the evidence as it was given on which the whole case turned.   They will have heard the case ‘on the papers’ with access to video replays,  but it will be difficult for appeal judges substitute their judgment for that of the people the law says must give that judgment and who are the only relevant officers of the court who have heard the critical evidence as it was given.

If you think that we are like Medieval Schoolmen asking how many angels are dancing on the point of a needle, it gets worse.  I am given to understand that by agreement between the parties, the jury in the second trial watched a replay of the complainant’s evidence in the first. That will surely lead to an argument that Court of Appeal is in the same position on the critical issue as the jury.  Only God knows what the answer may be.

May I go back to the cricket umpire?  His decisions are now subject to review by video replays and other technical aids.  The third umpire is then in a much better position than the umpire on the ground to review and test a wide range of evidence and to take his time to analyse the original decision.  In a criminal trial that turns on credit, the position is very different.  The appeal court is in a  weaker position than the jury to evaluate the evidence.  (Subject of course to what I have said about the course of this case, and I may add that many people think that TV replays in sport inflame more arguments than they settle – and you may well see a similar reaction here if this appeal were to succeed.)

It follows that in a case like this, a convicted person seeking to persuade an appeal court that the verdict of a jury was unreasonable or unsafe is standing at the foot of a  large mountain.

And that’s before you start to count the various ways that turmoil might reign if judges were seen to overturn this verdict of the people – and release a prisoner convicted of vicious crimes.

The critics of the verdict

You may then see why I and other lawyers do not accept criticism of this verdict from people who have not seen or heard the evidence on which this jury acted – after very long deliberation.

Of course, the Crown carries the burden of proof from the outset, but when the evidence is in, and a case fit to go the jury is made out, the picture shows a different complexion.  You don’t have to look far before you find in works of authority propositions like  ‘Presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts’ and ‘That presumptions have no place in the presence of the actual facts disclosed to the jury…is held in many cases.’

Some critics expressed surprise that a person could be convicted on uncorroborated evidence.  How many traitors, murderers, rapists, drug dealers or thieves go out of their way to ensure that a third party is present to witness their crime?

The critics appear to come in three platoons.  One is from members of the same faith who look like they are victims of a schism that the rest of us hoped had died away with the Split and the DLP.  Another is from people in high places who have associated with the prisoner and who for reasons that are beyond me are willing to give their public support to another person who was in a high place, but who  is now in jail, having been found by those representing the rest of us to be a vicious criminal.  The third platoon is that part of the media that lives off the earnings of conflict and controversy.  They are just base tarts.  Predictably enough, most come from the Murdoch stable, which is about as rational and honest on this issue as it is on climate change; and worse, that paper fairly throbs with sectarian bias.

You might also notice two things that these critics have in common.  One is that they are all infected by prejudice of one kind or another.  The other is that while the jury acted on evidence, its critics are happy to level accusations at the jury without any evidence at all.

In The Weekend Australian, Mr Gerard Henderson had a piece headed ‘Pell’s ordeal reinforces the case for judge-only trials.’  Fine, a jury convicts a priest, and Mr Henderson says that is enough to reverse 800 years of history and get rid of juries – at least for powerful and well publicised accused persons.  Big hitters should have their own law.

It must follow that Mr Henderson must think that no one in the U S can ever get a fair trial, because over there the press are not subject to the restraints imposed on them here.  There is also the lordly disdain for the intelligence of the ordinary Australians who make up our juries.  Mr Henderson says that ‘the coverage of such an event could only further harm Pell’s reputation, already damaged by years of hostile allegations…’ and he begins his conclusion with these words ‘The media’s intervention in the legal system should be a matter of real concern…..’  And that’s from a man writing in a paper which is leading the charge to get the conviction of this priest overturned.

The prejudice of Mr Henderson shows not just a lack of compassion.  It looks downright cruel.  As far as I can see, there is not one word about the ordeal of the victims.  Rather, Mr Henderson is concerned about the damage to the reputation of the prisoner.  Yes, it is frightful – but Pell has brought almost all that damage upon his own head.  What about the damage to the lives of the victims?  One boy went to find Christ and met rape, heroin, and death.  OK, let’s focus on the reputation of the man found to have been the cause of the ruin and the end of that life.

It’s as if those in the Church have learned nothing.  In the last generation or so, there has been a sea change across the western world in our attitude to crimes committed by people in power against those in their charge.  We now encourage them to come forward and we seek to support and protect them when they have the courage to do so.  We are seeking to prevent people in power ducking for cover under cover of legalism, sophistry, or, heaven help us, a power pack demonstration in place of sworn evidence.

Mr Henderson wants none of it.  He doubtless thinks that Becket was properly made a saint for keeping his priests immune from royal justice.  Indeed, on a bad day, some of the supporters of the prisoner George Pell might remind us of Donald Trump launching into Robert Mueller for conducting a witch hunt.  It could be straight out of Kafka.  The Castle has a line: ‘One of the operating principles of the authorities is that the possibility of error is simply not taken into account.’

I am sorry that this note is so long, but the issues are serious and difficult.  I have tried to stay objective, but I fear that the anger that you will have detected has got the better of me.  The phrase ‘speaking truth to power’ has become a cliché.  But now we have to accept that power speaking to falsehood has become a tawdry fact of life.

If you want to know my view, it is this.  The cardinal played his hand and lost.  Call the next case in the list.  We have spent far too much time on this case already.

Geoffrey Gibson

5 March, 2018.

Passing bull 189 – Virtue signalling

 

 

It was saddening to see The Economist use the phrase ‘virtue signalling’.  It’s like ‘identity politics’.  It is favoured as a substitute for thought by too many people who write for The Weekend Australian.  The Wikipedia definition is:

Virtue signalling is a pejorative term that refers to the conspicuous expression of moral values.  Academically, the phrase relates to signalling theory to describe a subset of social behaviors that could be used to signal virtue—especially piety among the religious.  In recent years, the term has become more commonly used as a pejorative by commentators to criticize what they regard as empty or superficial support of certain political views and also used within groups to criticize their own members for valuing appearance over action.

Presumably, that is what clergymen do when they reverse their collar, or doctors do when they wear a stethoscope, or barristers do when they don a wig.  But it is not apparently what a Murdoch commentator does when he or she mocks climate change, bewails socialism, or sledges the ABC – all ad nauseam. It all depends on whom you put down and whether you get a Masonic handshake from your correspondent in return.  Donald Trump does it by hugging the flag while acting the part of a baboon.

You can see the likeness to the term ‘identity politics.’  They are both tribal; they are deployed by people who hunt in packs; they are at best intellectually fuzzy and morally slippery; and they are quintessential cases of the vice of labelling.

Bloopers

‘Human trafficking is evil in our midst,’ Mr. Aronberg said. ‘It is fuelled on the demand side.’

New York Times, 25 February, 2018.

This was a case about a well-known figure charged with soliciting.  Prostitution is hardly novel, and the context hardly bears a word that has been mutilated in both economics and political philosophy.

MY TOP SHELF – 19

 

[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]

19

A HISTORY OF FLY FISHING FOR TROUT

John Waller Hills (1921)

Allan and Co, London, 1921; republished by Freshet Press, New York, 1971; quarter bound in green leather, gold embossed with covered cloth boards; facsimile of original edition.

Then you see your fly too.  Nothing is hid.  When the fly comes over him, you see him prepare to take it – or treat it with stolid indifference.  You see him rise and take.  The whole drama is played out before your eyes.

The followers of some past-times can be a real pain – wine buffs, film buffs, public schoolboys who never leave school, followers of Wagner’s Ring – the very princes of pains in the arse – and bowlers at the RSL are examples.  Golfers are notorious for leaving their wives or evading their husbands.  In this country, shooters are either too low or too high on the social scale.  Cricket has become irredeemably vulgar and tennis is as mentionable as a grunt over dinner.

When it comes to fishing, a curious dichotomy has spawned itself in this part of the colonies.  Salt-water fishing – bait fishing, Old Boy – tends to be seen as the go for the common sort of people who follow Rugby League – western suburbs Micks, blue-collared, black trackies and tats.  Fly fishing is seen as the go for the better sought of people who follow Rugger – people from School.  This image is the kind of bullshit that you have to put up with in a country whose communal neurosis compels it to continue to import its Head of State from the Old Country.  As I tried to learn about fly fishing, I had the benefit of being a member of a country fly fishing club that contains as decent a bunch of bastards as you might want to meet – including, if it matters, women – and is as serenely bereft of class as it is possible to get in this duckpond.  They were also devoted conservationists.

But, there is no doubt that fly fishing has an air about it – a mystique.  This is partly because it combines physical skill and grace in dealing with nature – or, as we might prefer to say, the bush – perhaps in a way not entirely different to what happens in wine-making or cheese-making.  The other reason is that people know that the art or craft of fly fishing is a very subtle one that has a long and distinguished history – longer than that of other sports except horse-racing, hunting, and possibly royal tennis.  Fly fishing has been served by men of letters, keepers of the flame, at least as well as cricket and golf, and it continues to hold a place in the public imagination even though it is not subject to mass coverage – perhaps because it is not subject to mass coverage.  And it is not at risk of seeing its technique cheapened or degraded by technology – which is now frighteningly the case with golf.

The mystique of the art of fly fishing is nowhere better shown than in this beautiful little gem of a book by John Waller Hills.  I do not know if the author is the man of the same name who served as a Major in the Great War and became a Conservative MP – this book is most gracefully written, perhaps partly as a result of the influence of Eton and Balliol.

The thesis of the book – if that is the term – is that there was not much difference in fly fishing between the time that America was discovered and the Great war – although dry fly fishing – keeping the fly afloat – did not arrive until the nineteenth century.  The author surveys the beginnings of sporting literature – all French – and his survey of the fly literature begins with ‘Treatise of Fishing with an Angle’ by Dame Julyan Barnes in 1496, and Izaak Walton’s ‘The Compleat Angler’ in 1653.  No facet of the sport or its literature is omitted.  This book is at once a work of scholarship and enthusiasm and grace, from gear, to stalking, to upstream or downstream, to the tying and casting of flies.

Here is Mr Hills’ advice for the March Brown: ‘I rather like Chetham’s pattern, for black sheep’s wool is brown when held up to the light, and if spun on red silk might give the reddish brown of the body which is so hard to copy.  And then a partridge quill feather is good.  The perfect fly is still to come, but meantime it is worth noticing how little it has changed in what is nearly two centuries and a half.’  Here he is on the Iron Blue: ‘Chetham is the first to mention this also, and he made it ‘of the Down of a Mouse for body and head, dubbed with sad Ash-coloured Silk, wings of the sad coloured feather of a Shepstare quill.’’  If you have ever tied a fly, you will see how apt and engaging these words are.

But the book is really alive when talking about other books, or engaging with nature through the sport.

The casting too has its fascination.  On your day – and such days come to all of us, to make up for the many when we are either maddened or drugged and stupefied by our incurable ineptitude – how delicately and how surely you could throw.  You mean your fly to fall four inches above the fish, and sure enough it does, not an inch more or less.  Nothing is too difficult; drag has no terrors; head wind is a friend not an enemy, for does it not enable you to put a curve on your gut which brings your fly over the fish first?  You know exactly what to do, and you do it.  Wherever the fish may be rising, your fly sails over him, hardly touching the water, wings up, floating like a cork, following every crinkle of the slow current.  You gain an extraordinary sense of power.  Your rod and line, right down to the fly, are part of yourself, moved by your nerves and answering to your brain.

Well, I am yet to know that feeling with a fly rod or a rifle or a sand-wedge, but, transposing continents and seasons, I know how the author felt the following (possibly about the valley of the Test River).

As April runs into May, the valley changes greatly.  It becomes green everywhere; so of course do other landscapes, but its special character is that it shows so many different shades of green, and shows them all together.  The yellow green of the young willows, the bright green of the reeds, the blue green of the iris, the vivid green of some water weeds – these are seen simultaneously.  But perhaps the chief cause of the valley’s beauty is reflected light.  Light is reflected at all angles off the glancing water, and gives the leaves an airy and translucent appearance, which you do not get elsewhere.  May, too, is the month of the hawthorn, and thorn trees flourish particularly well on the chalk.  Then also the birds come, and sedge and reed warblers make the banks musical.  Opinions will differ as to whether May or June is the better month.  May has the charm of novelty not yet worn off, but June has that of perfect fulfilment.  And to the chalk-stream fisherman June is the best month of all, for who would not if he could choose a windless day in June?  It is the month of the meadow flowers, and though the different shades of green are less marked and are merging into their summer sameness, the yellow iris makes the banks a garden, the wild rose stars the hedges, and the guilder rose hangs its cream-coloured lamps over the carriers.

Few people can write so well.  Nevill Cardus could about cricket or a concert; Kenneth Clark could write about light; Whitney Bailliett could write about jazz – but there are not many.  And what these passages bring home is that these fishermen – for some reason few women stick with it – are passionate about the natural world around them.  They are real conservationists, and they go quietly, and not like militant, didactic martinets in the big smoke who look like they would never get their feet wet.

Perhaps one reason why more women do not take up fly fishing – where there are no social or physical barriers to their entry – is the reason that they do not hunt – they are not hard-wired as hunter–gatherers.  Who knows?  There is another myth about the two sports of fly fishing and hunting with rifle or shot-gun.  They are all forms of hunting aimed at killing animal life (including birds and fish) for food or trophy, although very many fly fishers do not now detain their catch, but put it back.  Hunting in Australia is seen as down market –precisely the reverse is so in Europe.  It is also seen as more cruel than fishing.  It is hard to see why.  Pain and animals are an emotive mix, but what would you rather be – a bunny knocked stone dead by a .22 bullet, or a rainbow trout drifting along its path in God’s domain until some devious bastard contrives to drop an anchor down your gob and then haul you out and either toss you back or deliver the coup de grace and eat you up?

Well, nearly a hundred years ago, Mr Hills, for better or for worse, was not confronted by any metaphysical doubts in his quest for peace in nature.  He did however leave this enduring testament to our enjoyment of our natural world, and he deserves to be read and remembered and thanked for doing so.

Passing bull 188 –Faith and politics

 

When politicians say that they don’t let their faith interfere with their politics, they are usually talking pure bullshit.  Among other things, in this country their faith will usually include subscription to the Ten Commandments.  Indeed, that dispensation is frequently touted as the cornerstone of that wonderful construct called Western or Judaeo-Christian Civilisation.  Among other things, it contains a proscription of murder, and not many politicians claim a freedom to commit murder.

But some politicians are driven to act or vote in a certain way by their religious faith – or at least by opinions that they claim are driven by their religious faith.  The most common examples in Australia are abortion, euthanasia, and same sex marriage.  Many people here think that the first of those issues is horrifically driven in the U S by religious bigots.  There are of course problems in logic when people try to impose on other people values that ultimately rest on faith which in turn rests on revelation.  You can see this most clearly when you consider how many members of the U S Congress feel driven by their faith to deny evolution.  For most people, the scientific proof of that theory is so complete that people who refuse to acknowledge it are hard to distinguish from lunatics.  Some now have similar views about climate change.

As was his wont, Kant came to the heart of the matter.

We have noted that a church dispenses with the most important mark of truth, namely, a rightful claim to universality, when it bases itself upon a revealed faith.  For such a faith, being historical (even though it be far more widely disseminated and more completely secured for remotest posterity through the agency of Scripture) can never be universally communicated so as to produce conviction.

But when it comes to the Sermon on the Mount or something as soft, like compassion, the mood changes.  There looks to be some unstated premise that soft religion does not sit well with hard politics.  When we get serious, we are not keen to be too scrupulous.  The nearest I can find to a statement of this spiritual no-fly zone comes from the biography of Salisbury by Andrew Roberts.

……foreign policy was about raw Realpolitik, not morality. ‘No one dreams of conducting national affairs with the principles which are prescribed to individuals.  The meek and poor spirited among nations are not to be blessed, and the common sense of Christendom has always prescribed for national policy principles diametrically opposed to those that are laid down in the Sermon on the Mount’. Grand talk by politicians about the rights of mankind and serving humanity, rather than purely the national interest, were, for Cecil [Salisbury], simply so much cant.

Christendom does not march in step with Christianity.   Although you will not find any warrant for this split in  scripture, it would be hard to get the dogma stated more point-blank than in this proclamation by an imperialist Tory .  But how on earth else could England have ruled its empire?  Was the Empress of India going to allow the Untouchables to inherit just one iota of her slice of the earth?

But precisely this doctrine is employed in an unstated manner by our governments all the time.  We see it most clearly with refugees.  If you suggest that we are not showing compassion, you may be asked to leave the room.  When we made a law to facilitate medical aid to refugees from doctors, we got the following:

Former Prime Minister Tony Abbott was reported as saying that members of the medical profession ‘erred on the side of compassion’.

‘Compassion’ is a very New Testament term.  The Hippocratic Oath relevantly says ‘I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrong-doing’.  It is in my view unspeakable hypocrisy for people like Morrison or Abbott to condemn compassion as an error while claiming to follow the teaching of Jesus of Nazareth.  The man called Christ was nothing if not compassionate.

And Jesus went forth, and saw a great multitude, and was moved with compassion toward them, and he healed their sick.  (Matthew 14:14).

Speaking entirely for myself, this particular divorce between Church and State is bad at each end.

Bloopers

The question left open by the extraordinary action at NAB is: what more does the bank know about its leadership team.  Surely respected leaders would not change based on a couple of opinionated paragraphs.  It is clear the board panicked.

John Durie, The Australian, 8 February, 2018

Indeed, they [other bank directors and executives] should be thankful that they still have their jobs, because if Thorburn and Henry had to go, then they all should have gone….royal commissioner Kenneth Hayne was wrong to single out Henry aggressively in his report.  If Henry’s performance in the chair was didactive or ‘arrogant’, so what?

Adam Creighton, The Australian, 8 February 2018

The ignorance and insolence of these remarks knows no bounds.  The second appears beside an article dealing with a public apology by Henry.  How could two experienced reporters be so out of touch?  Forty years ago there would have been no discussion.  The resignations would have been tabled first thing.  They were fired for what they or did not do, and not because of what someone said.  God only knows what the shareholders may have done if these people had not gone – they were already on the point of mutiny.

Passing bull 188 –Faith and politics

 

When politicians say that they don’t let their faith interfere with their politics, they are usually talking pure bullshit.  Among other things, in this country their faith will usually include subscription to the Ten Commandments.  Indeed, that dispensation is frequently touted as the cornerstone of that wonderful construct called Western or Judaeo-Christian Civilisation.  Among other things, it contains a proscription of murder, and not many politicians claim a freedom to commit murder.

But some politicians are driven to act or vote in a certain way by their religious faith – or at least by opinions that they claim are driven by their religious faith.  The most common examples in Australia are abortion, euthanasia, and same sex marriage.  Many people here think that the first of those issues is horrifically driven in the U S by religious bigots.  There are of course problems in logic when people try to impose on other people values that ultimately rest on faith which in turn rests on revelation.  You can see this most clearly when you consider how many members of the U S Congress feel driven by their faith to deny evolution.  For most people, the scientific proof of that theory is so complete that people who refuse to acknowledge it are hard to distinguish from lunatics.  Some now have similar views about climate change.

As was his wont, Kant came to the heart of the matter.

We have noted that a church dispenses with the most important mark of truth, namely, a rightful claim to universality, when it bases itself upon a revealed faith.  For such a faith, being historical (even though it be far more widely disseminated and more completely secured for remotest posterity through the agency of Scripture) can never be universally communicated so as to produce conviction.

But when it comes to the Sermon on the Mount or something as soft, like compassion, the mood changes.  There looks to be some unstated premise that soft religion does not sit well with hard politics.  When we get serious, we are not keen to be too scrupulous.  The nearest I can find to a statement of this spiritual no-fly zone comes from the biography of Salisbury by Andrew Roberts.

……foreign policy was about raw Realpolitik, not morality. ‘No one dreams of conducting national affairs with the principles which are prescribed to individuals.  The meek and poor spirited among nations are not to be blessed, and the common sense of Christendom has always prescribed for national policy principles diametrically opposed to those that are laid down in the Sermon on the Mount’. Grand talk by politicians about the rights of mankind and serving humanity, rather than purely the national interest, were, for Cecil [Salisbury], simply so much cant.

Christendom does not march in step with Christianity.   Although you will not find any warrant for this split in  scripture, it would be hard to get the dogma stated more point-blank than in this proclamation by an imperialist Tory .  But how on earth else could England have ruled its empire?  Was the Empress of India going to allow the Untouchables to inherit just one iota of her slice of the earth?

But precisely this doctrine is employed in an unstated manner by our governments all the time.  We see it most clearly with refugees.  If you suggest that we are not showing compassion, you may be asked to leave the room.  When we made a law to facilitate medical aid to refugees from doctors, we got the following:

Former Prime Minister Tony Abbott was reported as saying that members of the medical profession ‘erred on the side of compassion’.

‘Compassion’ is a very New Testament term.  The Hippocratic Oath relevantly says ‘I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrong-doing’.  It is in my view unspeakable hypocrisy for people like Morrison or Abbott to condemn compassion as an error while claiming to follow the teaching of Jesus of Nazareth.  The man called Christ was nothing if not compassionate.

And Jesus went forth, and saw a great multitude, and was moved with compassion toward them, and he healed their sick.  (Matthew 14:14).

Speaking entirely for myself, this particular divorce between Church and State is bad at each end.

Bloopers

The question left open by the extraordinary action at NAB is: what more does the bank know about its leadership team.  Surely respected leaders would not change based on a couple of opinionated paragraphs.  It is clear the board panicked.

John Durie, The Australian, 8 February, 2018

Indeed, they [other bank directors and executives] should be thankful that they still have their jobs, because if Thorburn and Henry had to go, then they all should have gone….royal commissioner Kenneth Hayne was wrong to single out Henry aggressively in his report.  If Henry’s performance in the chair was didactive or ‘arrogant’, so what?

Adam Creighton, The Australian, 8 February 2018

The ignorance and insolence of these remarks knows no bounds.  The second appears beside an article dealing with a public apology by Henry.  How could two experienced reporters be so out of touch?  Forty years ago there would have been no discussion.  The resignations would have been tabled first thing.  They were fired for what they or did not do, and not because of what someone said.  God only knows what the shareholders may have done if these people had not gone – they were already on the point of mutiny.

HERE AND THERE – FAILED JUSTICE

 

An English barrister wrote a book called The Secret Barrister.  It is about the failings of the English justice system.  It is extremely well written by someone who obviously knows his or her way around – and by someone who can see both sides of a question and be dispassionate even where a want of passion may sound criminally cold.  The book is alarming and should be read not just by Australian criminal lawyers but by any Australian having any interest in criminal justice.

I am not sure how much of the book applies to us, but a lot of it looks very like some of the nonsense I had to put up with when I stopped doing crime – by which I mean stuff you could go to jail for, as opposed to the white collar stuff that has largely been quarantined in a no-fly zone – forty years ago.

I shall not review the book, but make two general comments and refer to three specific points.

First, as I follow the author, most of the decline has been caused by government cuts in spending and by a part of the press that is at best ignorant and at worst vicious.  The sad truth looks to be that there are no votes in courts or jails, and therefore our short-sighted governments just cave in to what is banally called ‘populism’ and we the punters get what we deserve.

If this is right – and I think it is – this is just another structural fault in our democracy – one among a growing and worrying number.  If those standing up for victims get a full whiff of any of this, they know that they will hardly have scratched the surface.  On the other hand, they may see why some older lawyers have worried about the venom – and that is what it is – of the backlash.

Secondly, the book is an entire monument to the old and simple truth that you can have all the gorgeous declarations of rights and pious statements about the progress of mankind – they all mean nothing if the system does not work on the shop floor.  Robespierre, Stalin and Hitler were as generous as all get out on promises, and brutal and lethal on their feet.

Magna Cara is routinely violated.  The author says that ‘one bald statistic stands out above all: only 55% per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through it again.’  Allowing for some fuzziness in the question, this finding suggests that the system is wholly unfit for purpose.  Part of the problem comes from adjournments and understaffed courts jamming lists to force people to settle.  I experienced this in all courts in the 70’s and nothing is better calculated to destroy faith in the system.  Justice is not just delayed – it is denied.  My impression is that the lack of faith may be greater here because I suspect we have a higher rate of successful appeals from conviction.  Whatever may be the cause, an experienced lawyer would caution any member of their family wanting to go to law over sexual assault to think long and very hard before taking a step that might involve them in misery for a very long time and perhaps all for nothing.

Then came the backlash.  Not enough attention had been paid to or protection afforded to the victims.  This was notorious around the world in complaints against churches.  So, the English police changed tack – violently.  One resolution said that it was policy ‘to accept allegations made by the victim in the first place as being truthful’.  Another said: ‘The presumption that the victim should always be believed should be institutionalised.’  This passes belief.  There is a fundamental error in the nature of the place of ‘truth’ in our process, and we have the moral equivalent of an AFL umpire going into a Grand Final between the Eagles and Collingwood wearing black and white.  (And, yes, I can recall a barrister being done for contempt for making just that analogy.)  Some nut hypnotised the English police into believing some conspiracy involving most of the government – when it blew up, the inquiry unearthed the heresy.

The author gives a very helpful comparison of the inquisitorial system.  For all its faults, and they are grievous, he prefers ours.  Why?  At bottom, we don’t trust government to do the right thing in things that count for us personally.

The chapter on sentencing is headed ‘The Big Sentencing Con.’ And con it is.  In the 1980’s I acted for banks who got sued by farmers whose farms were on the line because their bank manager had put them into foreign currency loans (Swiss Francs) that had gone bad and left them broke.  You did not need honours in jurisprudence to know which side was the less likely to lose that sort of case, but I wondered about the juristic basis of the claim.  The late Neil McPhee told me had been involved in a number of high finance cases, and that he was satisfied by the experts that there was no rational basis for predicting fluctuations in the money markets.  He said that he thought the banks were exposed because they were making public statements that could only be premised on the proposition that we could predict fluctuations in money markets.

His insight looks appropriate to our law on sentencing.  The Holy Grail is: What good does it do to lock people up?  What does punishment mean or achieve?  No one has even got close to a coherent answer that I am aware of.  Those in the know speak of ‘warehousing’ – so does the author.  The inarticulate premise is – ‘we will lock the bugger up to keep us safe and shut up the politicians and the press, and then wait for the next serve when they get out – most likely worse than when they went in.’  Warehousing is to the judiciary what kicking the can down the road is to the executive.

Then the appellate courts compound the fallacy.  By saying that four is better than six, or vice versa, they are postulating that some identifiable science underpins the whole process.  That science had not been discovered when I did Criminology in 1965, and I am not aware of its later appearance.  Nor does it help that many of the appellate judges have never set foot in a criminal court, and not one – or scarcely any – has ever met the kind of customer our Queen confronts in her courts.

According to the author, 354 prisoners died in custody in 2016.  119 were suicides.

Prisoners are largely drawn from the most damaged and dysfunctional nooks of society.  The majority have the literary skills of an eleven-year-old.  An estimated 20-30 per cent have learning difficulties….Over half of women prisoners and over a quarter of men report being abused as children.  Mental health problems exhibiting symptoms of psychosis are reported by 26% of female prisoners and 16% of men, compared to 4% of the general population.  Drug and alcohol abuse feature for the majority and 15% are homeless.  And how are these complex factors addressed?

Apparently, by judges’ composing long and boring tracts that no sane person would ever want to read that if anything just make the law more complex, and therefore worse, and that just make life so much harder for the real judges who have to try to apply these laws – and which leave about half of us swearing never to go near a court again.

The author states the issue this way.

Sentencing of offenders amounts to a giant confidence trick on the general public.  The law – decades of on-the-hoof populist legislating – is impossible to understand.  Sentences passed are often entirely out of kilter with public expectations, and the same criminal behaviour can be dealt with entirely differently in alike cases.  Worst of all, there is an inherent dishonesty arising out of a lack of clarity as to what those setting policy want to achieve.

That accords with my understanding here.  The point is serious – the legal word for ‘confidence trick’ is fraud.  That is not the word we expect to find to describe a court of law.  Nor do we expect to see the word dishonesty characterising the heart of our system to punish crime.  What we have seen is the parliament, executive and judiciary complicit for years in creating a huge minefield to perplex trial judges and prosecutors and vex and amaze litigants, victims, and witnesses – and the whole dreadful rubric is built on sand.  (And that’s the polite way to put it.)

Politicians have a lot to answer for.  So does Rupert Murdoch, whose minions spin their tripe for gelt.  (Someone should remind Mr Bolt, and his like, that the slammer is far more expensive than Eton or Geelong Grammar; and it would improve his credibility, among other things, if he spent a weekend or two in one.)  But overall, the problem is down to us as lawyers, and this book throws a steady light on our failings.

There is one light spot.  In a Crown Court in August 2016, her Honour Judge Patricia Lynch, QC, gave the prisoner eighteen months for racist abuse.  The prisoner told her Honour she was ‘a bit of a cunt.’  Her Honour was evidently less sensitive than our County Court judge who was compared to a Collingwood supporter.  She replied: ‘You are a bit of a cunt yourself.’  Atta girl, Ma’am – both barrels and in terms that the bastard can understand.  After that, the conversation went down in tone.  The bad news is that there was a regulatory inquiry.  The good news is that her Honour was cleared – after saying sorry.  The JCIO [the Thought Police] statement said: ‘Although the lord chancellor and the lord chief justice considered HHJ Lynch’s remarks to be inappropriate, they did not find that they amounted to misconduct or warranted any disciplinary sanction. [They] were of the view that the matter should be dealt with by informal advice.’  It’s just another piece in that ghastly Orwellian mosaic; no breach of the law but she gets a backhander just in case – this is known as the James Comey swipe.

As the author reminds us, Dostoevsky said that you can judge the degree of civilisation in a society by the way it treats its prisoners.  We do not even come close.

Here and there – Sowing the Wind

 

Sowing the Wind by John Keay (available in Folio Edition) is a balanced and luminous account of how the West imperially but brutally dismembered almost every part of the Middle East.  The result is that, as the Bible said, we are now reaping the whirlwind.  The lessons of this book are vital, but those who would like to concentrate on the West to the Exclusion of the East would want to have nothing to do with this book.  It shows, among other things, why the isolationist response is so fallacious and dangerous.

Robert Fisk raises the issue squarely in his Foreword.

Why does the West think it can lecture the Arabs on their history, their beliefs, their way of life, their ‘culture’?  How can this fundamental imbalance between ‘Occident’ and ‘Orient’ – themselves weirdly Western creations – be corrected or even understood?

And here we touch the essence of the difference between Christianity and Islam in its present tragic stage.  I do not think that we in the West believe in God these days.  American evangelists, no doubt.  Yet their refusal to accept evolutionism is oddly similar to that of ISIS, whose own concept of God refuses to countenance any Darwinian ‘survival of the fittest.’  The ‘fittest’ were those who followed God’s word, to the very letter, and that is an end to it.  Judaism offers a more nuanced response to God’s role and purpose in the creation of life.  Increasingly, however, Muslims find that God the ‘all-creator’ presided over evolution; hence the extraordinary – and to Westerners surprising – Islamist fascination with science.

But in the ‘West’ our gods tend to be human rights and the United Nations, Amnesty International and international law.  That is why our history books no longer speak of Islam and Christendom, but of Islam and the ‘West’.  So how is it……that a people who still believe in God, who still believe that the Quran is the word of God himself, for whom religion lies at the centre of the family and all that life holds, should find itself in submission – militarily, economically, socially, culturally – to a people who have largely forsaken their God?

What is the answer?

Keay tells us that in negotiating the Sykes-Picot agreement, Georges-Picot was ‘the scion of a colonialist dynasty’ and a firm believer in France’s mission historique et civilisatrice.  He therefore demanded and got all of Syria and CiliciaThe agreement was of course the one in which France and England casually carved up the Middle East between them so as to betray almost everyone involved.

Even when he knew the Arabs had been betrayed, Lawrence hoped for a new world order ‘in which the dominant races will forget their brute achievements, and white and red and yellow and brown and black will stand up together without side-glances in the service of the world.’  He said: ‘Unless we or our allies make an efficient Arab empire there will never be more than a discordant mosaic of provincial administrations.’  Keay says:

For all the fine words about building a new Arab nation, Lawrence was as intent as Brémond on creating a post-war Middle East that would be easily manageable in his own nation’s interest.  Syria, in Lawrence’s reckoning, was no more a suitable subject for sovereign independence than Arabia.  It was by nature a vassal country…..Mesopotamia/Iraq would be ‘our first brown dominion’

Lawrence said he was involved in ‘fraud.’

But there was neither sense nor virtue in identifying with the Arabs to the extent of condoning their political presumption.  The Bedouin, even in Lawrence’s piercing blue eyes, were uncouth and unmanageable; settled Arabs he was loth to consider as Arabs at all; and as for the educated, Westernised classes, they were the worst of all….’Europeanised youth’, ‘native Christians’…and ‘nationalised hot-heads’ were abominations who offended British conceits about both class distinction and racial privilege.  Their manners were appalling, yet they were precisely the people who, who, given a chance, would be running the ‘dream-palace’ [Lawrence’s term].  It was unthinkable.

After the armistice Clemenceau asked Lloyd George what he wanted.  ‘I wanted Mosul attached to Iraq and Palestine from Beersheba to Dan’.  ‘You shall have it.’  Why Mosul?  The oil, stupid.

The English bombed Iraq in a 1920 revolt.  The War Office said that they should not use the word ‘rebel’.  That may have entailed something like ‘sovereignty’ in Iraq.  They tried ‘insurgent’ and then ‘revolution.’  The same contortions and lies took place this century in Iraq.

In the Great Revolt in Iraq in 1920, the British lost 400 mostly Indian troops and Arab losses probably topped 8500.  (The Arabs now endure similar ratios against Israel.)

Jordan was set up as a place to park a loose cannon.  ‘Its political viability, even its value to the British, had yet to be proven; its international status had yet to be determined; and its frontiers had yet to be demarcated.  A child of political expedience, it had neither an economic or geographical rationale’.  The same went for Lebanon, but the French wanted to look after Maronite Christians.

Churchill thought of chemically bombing the Kurds, ahead of Hussein.  The Sunni Shia split made things worse.  Do you not see how all these things come back to haunt us?

The Great Revolt in Syria in 1925 saw France bomb Damascus.

That what was reputedly the world’s oldest city could be indiscriminately bombed and shelled in the name of one of the world’s most civilised peoples simply beggared belief.  In the heat of the First World War, Baghdad, Jerusalem and Damascus itself had all changed hands with no more than occasional rifle fire within their revered precincts.  Yet here, without the sanction of war, the champions of religion, equality and fraternity were delivering death to the innocent and destruction to the hallowed while supposedly discharging a sacred trust on behalf of the League of Nations and operating within the consensual constraints of one of its mandates.

Look at what is left of Damascus now and ask yourself who is really responsible.

The Balfour Declaration implied that the ninety per cent of people in Palestine who were not Jewish possessed no national identity and no political rights.  Neither alone nor as part of some other existing entity were the local Arabs reckoned to be a putative nation.  The mandate had no time limit.  For Christians, Palestine was predominantly a Land (capital L) so Holy (capital H) that in respect of its inhabitants, the norms of nationality and government need not apply.  The indigenous Arabs may well have thought that the British treated them in the same way that they had treated our indigenous people – by the simple expedient of saying that their presence did not stop the occupying power doing what they liked.

There were massacres on both sides in Jerusalem in 1921.  This religious or race war is now nearly a century old.  Zionists would not tolerate a representative body since they were a minority and such a government would be prejudicial to the establishment of the national home.

Orde Wingate was involved in training Jewish fighters.  His family was Plymouth Brethren.  He and other Englishmen trained Jewish Night Squads to counter Arab terrorists.  They – people like Menachem Begin and Moshe Dayan – became terrorists.  Wingate told them ‘You are the first soldiers if the Jewish army.  This provoked Arab responses.  The Jewish terrorists had the same motivation as the Arabs – they had God on their side – the only right God.

In one of the more signal failures of the West, the Vichy French fought the British in Palestine.  (One of my neighbours, who is no longer with us, was in the AIF in Syria where he was shot at by the French.  He joined the Air Force in disgust.)

Militant Jewish groups resembled those of the Nazis.  Keay says that ‘Buoyed by prophecy and desperate for sanctuary, the Zionists of the European ghettoes disdained legal restraint…’Churchill referred to ‘a new set of gangsters worthy of Nazi Germany.’  The most senior British politician to be killed in the Second World War was assassinated in the name of Zion.

Keay says that after the first war:

The ruling elites of all the Arab states who had failed to prevent this disaster found themselves fully discredited in the eyes of their own people….Revolution, long in the air, had now entered the bloodstream.

The author goes on to say how MI6 and the CIA installed the Shah; how the British and French were humiliated at Suez; and he mentions the massacres at Shatila and Sabra.

That is where he stops.  The disasters in Afghanistan and Iraq and Syria still go on.  The assault on the twin towers looks nigh on inevitable in the face of the inane cruelty and provocation of the Arabs by Europe and the U S.  The world may have been much better off if Europe and the U S had kept their hunger for power and oil to themselves.  The whirlwind has a very long way to go, and the conflict between Israel and its Arab and Persian neighbours looks to be soluble only by obliteration of the lines drawn during the death throes of the imperialism of Europe.  Just try to imagine what your reaction may have been if it was Europe that was Muslim and the Middle East that was Christian and that the Christians had carved up and insulted Europe in reverse and without asking dumped a group of the fold in Europe.  How well do you think the Europeans would take all that?  Would you not expect to see at least the level of terror that the Americans, Irish and Zionists used against Britain?  Was it not inevitable that each of those three nations was to be born in terror?

MY TOP SHELF – Chapter 18

 

[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]

18

THE ORIGIN OF SPECIES

Charles Darwin (Sixth Ed., 1872)

The Franklin Library, 1975; full leather binding, with gold embossing, ribbed spine, gold edges, and moiré end papers.

As this whole volume is one long argument, it may be convenient to the reader to have the leading facts and inferences briefly recapitulated.

This great book is a testament to the human mind.  Why it should not also be a testament to God is a matter for those who believe in God.  It is, if nothing else, a testament to the grandeur of creation in the world.

The author starts his concluding chapter: ‘As this whole volume is one long argument…’  So it is.  What does Darwin want to persuade the reader to believe?  The theory of evolution, or natural selection – ‘the more complex organs and instincts have been perfected, not by means superior to, though analogous with, human reason, but by the accumulation of innumerable slight variations, each good for the individual possessor.’  Underlying that theory are the propositions that there is a struggle for existence that results in the survival of the fittest.

People in the business of persuasion should study and savour this book.  Darwin writes clearly and simply – and without pretence.  He is candid, or at least he appears to be candid.  His patience does not tyre.  He is courteous throughout.  He states the objections to his theory at their best, and he then exposes to the reader his attempt to deal with the objection – leaving the resolution to the reader.  He shows no vanity, mockery, scorn, or contempt.  He shows his respect for and thanks to other professionals.  He is forever observing the world and wondering about it, but he never loses his sense of wonder at what the world might offer up for observation.  He is like a little boy in a lolly shop – but a very acute and courteous little boy.

Until almost the very end of the book, Darwin does not mention human evolution.  Instead, he begins with domestic animals.  Everyone knows that horses, pigeons, sheep and dogs are bred so that they improve as they change – or, evolve.  All Darwin is saying is that instead of people directing the change, nature does so – but over time-scales that we cannot get our heads around.  Then, with just a few pages to go, we get this: ‘The similar framework of bones in the hand of a man, wing of a bat, fin of the porpoise, and leg of the horse, the same number of vertebrae forming the neck of the giraffe and of the elephant, and innumerable other such facts, at once explain themselves on the theory of descent with slow and successive modifications.’

Two elemental truths pervade this book.  The first is that we learn about the world by observing it, wondering about what we see, and then testing our thoughts by further observation and reflection.  This is called science (from the Latin word for ‘I know’).  Dogs and horses and other animals do much the same thing, although we may get coy about the label we stick on their second phase.  Our reliance on electronic collection of data is dulling our minds and our capacity or inclination to use this natural technique in learning how to design a building, play a sand iron, perform surgery, cast a dry fly, drive a Ferrari north of whatever, or make a wine to challenge the Grange.  (Is it possible that our minds may evolve in reverse through lack of use?)

The other point is equally basic.  In our efforts to put down intolerance, we put up with most outlandish statements about God and the world.  But there is a difference.  We are very slow to condemn any statement about God as untenable because it is silly since many people think that any statement about God is silly, and, indeed, if you take any one religion, the great majority of mankind will regard all of its main beliefs as silly.

But this is not so with nature.  There are laws of nature.  They are empirically verified and denied only by the mad or those whose faith leads them to believe that their Creator can countermand them.  Darwin showed that species evolved, or changed to get better; we need to remember that if we flirt with nature, we may not know or like what we end up with.  One example was the practice of the Spartans of taking children from their parents to toughen them up, a practice followed more softly by the English ruling class until recently.

The book reads a little like a mystery book or detective series.  For example, domestic animals tend to have drooping ears.  Why?  Is this due to misuse of the muscles of the ear because these animals are so seldom alarmed?  The tail of a giraffe serves as a ‘fly-flapper.’  So what?  We have learned that the distribution and existence of animals ‘absolutely depend on their power of resisting the attacks of insects.’  Elephants have been decimated by insects.  Why do some birds show off gorgeous plumage?  For the same reason they perform strange antics before the females – to allow them to ‘choose the most attractive partner.’

Because we are talking of living organisms adapting by experience, the book offers insights of general use.  Darwin stresses that we cannot get our heads around the times involved, and that the geological record will be fragmentary.  If you started off with a pair of elephants, they could have nineteen million descendants after 750 years; after twelve generations, the proportion of blood from only one ancestor is 1 in 2048.  ‘If it has taken centuries or thousands of years to improve or modify most of our plants up to their present standard of usefulness to man, we can understand how it is that neither Australia, the Cape of Good Hope, nor any other region inhabited by quite uncivilized man, has afforded us a single plant worth culture.’  This is a useful reminder to those who think that they can just impose a way of life on people from a different world.

Here is some advice to someone starting in business: ‘The more diversified the descendants from any one species become in structure, constitution and habits, by so much will they be better enabled on many and widely diversified places in th polity of nature, and so be enabled to increase in numbers.’  But respect for Nature and its laws need not deny us our sense of wonder.  ‘…Natural Selection…is a power incessantly ready for action, and is as immeasurably superior to man’s feeble efforts, as the works of Nature are to those of Art.’

Religion was of course a no-fly zone, but even here Darwin offers a blinding insight.  ‘It is scarcely possible to avoid comparing the eye with a telescope.  We know that this instrument has been perfected by the long-continued efforts of the highest human intellects; and we naturally infer that the eye has been formed by a somewhat analogous process.  But may not this inference be presumptuous?  Have we any right to assume that the Creator works by intellectual powers like those of man?

Darwin refers to the ‘common belief…that organization on the whole has progressed’ since the ‘inhabitants of the world at each successive period in its history has beaten their predecessors in the race for life.’  Similar hopes for mankind are constantly challenged.  Is mankind unique in its capacity to go backwards?

Darwin had not been able to sustain a belief in a personal God and was revolted by the idea of everlasting torture.  But when challenged by an atheist, his reply was: ‘But why should you be so aggressive?  Is anything to be gained by forcing new ideas on people?’

And his estrangement from religion and his embrace of science in no way lessened his moral position.  It is clear that his zeal to find a common origin of human species was his loathing of slavery.  A perverted science preached a plurality of species and ‘niggerology.’  Eight days after the publication of Origin of Species, the guerrilla abolitionist and Christian fundamentalist John Brown was hanged for his raid on the federal arsenal at Harpers Ferry.

 

Passing bull 186–The trouble with ‘patriots’

 

Only very skewed people use the term ‘patriot’ in this country – thank heaven.  The word has a wretched and smelly history.  It is a label and it is a source of division, if not hate.  What crime is worse than that of Judas – betrayal?  Charging someone with a lack of patriotism is commonly invoked by bullies with no brains to smear dissenters.  Their real enemies are freedom and restraint.  Senator McCarthy was their champion; Trump and Pence merely ape him.  Even when used as a term of praise, the word smacks of pride in the nation, which is suspect, or glorifying government, which is much worse.

Patriotism and nationalism seem to be inseparable from a felt sense of superiority, the political version of original sin.  We might get a harmless warm glow about a kid making a hundred in his first test, but after that it can get nasty.  The English feel good about Nelson and Wellington – what about the people of Alabama and Lee, or of Japan and its war leaders – or, for that matter, Napoleon’s Tomb in Paris?  What about the five million who died for his ego and la gloire de la France?

‘Nationalism’ has been a dirty word, at least since Mussolini, Hitler, Stalin, Franco and Mao.  People like Trump and Pence merely confirm its dirtiness.  It is invoked by insecure people whose membership of the ‘nation’ is all they have and who see any incursion – even by refugees – as some kind of threat.  These people are easy meat for snake-charmers who are prepared to lie down with dogs – that is to say, too many of those parading as politicians across what some fondly call – and with pride, no less – the Western world.

Historians from the Continent tend to speak in larger terms than English historians.  They are therefore good for us to read.  The Dutchman Johan Huizinga was a very learned and enlightening man, especially when writing about the middle ages and the Renaissance.  (Like Pieter Geyl, he was imprisoned by the Nazis.  Both were by their whole lives against everything Hitler stood for.)  In his great book Men and Ideas, Huizinga has an essay, Patriotism and Nationalism.  It is as well to notice what he says about these two menacing pests.

Whether or not I S claims authority from God, both England and the U S have claimed to be God’s chosen people at one time or another.  It is very unattractive.  As Huizinga says, if nationalism implies a drive to dominate, it is beyond the pale of Christianity.  Or it should be – but at various times, ‘however contradictory it may seem, the Glory of Christian salvation was intermingled with the primitive pride of a barbaric tribal allegiance.’

Huizinga saw the beginning of nationalism in the split in Europe between Romance and Germanic peoples.  He saw an ethnic split as early as 887.  The phrase furor teutonicus was born – and would later be applied by losers to Michael Schumacher.  Statutes of Oxford would see two nations in Britain – between the south and the north – in the middle ages.

But whether the relationship was large or small, the basis for the emotion embodied in ‘nation’ was the same everywhere; the primitive in-group that felt passionately united as soon as the others, outsiders in any way, seemed to threaten them or rival them.  This feeling usually manifested itself as hostility and rarely as concord.  The closer the contacts, the fiercer the hate.

That sums up people like Farage, Hansen, and Trump.  And it indicates the problem such people have in attracting any sensible followers.

In 1793 in France an accusation of want of patriotism was a death sentence.  The nation went mad.  A weird man from Cleves, Anacharsis Cloots, wanted to suppress the word ‘French’ for ‘Germanic’ and he led a delegation of the ‘human species’ to be allowed to take part in a festival of liberty and fraternity.

Then came the Revolution, when the mouth still called out for the universal good of virtue and love of mankind, but the mailed fist struck for the fatherland and the nation, and the heart was with the fist.  The factors ‘patrie’ and ‘nation’ had never had such an intense influence as in the years from 1789 to 1796.  The fact merely confirms that nature constantly proves stronger than theory.  Yet at the same time people constantly thought that they were acting in keeping with the theory.  The National Assembly took it as its first task to formulate a Declaration of the Rights of Man and the Citizen.  Observe that man comes first and the citizen second.  But as soon as one sets out to formulate the rights of man, the state appears to be required as the framework for his society.  Humanity could not be the vehicle of the liberty desired so ardently.  Its domain was the fatherland, and its subject the people.  Hence from the outset, the French Revolution served pre-eminently to activate an enthusiastic patriotism and nationalism.

That piece was more English than European; and the French, in the name of liberty and fraternity, severed the head from the body of poor, silly Anacharsis Cloots.  Mere humanity again trumped theory.

Bloopers

In a letter sent to former members, quickly leaked to the media, the prime minister acknowledges ‘some people have left our party for various reasons over recent years’ but says he believes in an Australia ‘where if you have a go, you get a fair go’.

Accordingly, he’s having a go at wooing them back. At least in  New South Wales.

‘We need everyone who believes in our values to become energised members of our movement,’ he wrote to former NSW party members. ‘Very importantly, there is also a Shorten-led Labor party to defeat at the next election. To achieve this, we need you back.’

The Guardian, 1 February, 2018

Can we not hope for more than a talking head?  What values about fairness were deployed by those, including this PM, who sought to block a Royal Commission into bank managers earning say $10 million a year to preside over insulting every one of us?

**

One thing Trump liked very much was that the audience frequently broke into the chant ‘USA! USA!’  No one can object to this, it’s hardly partisan, but it is a chant implicitly against identity politics because it celebrates universal national identity.

Greg Sheridan, The Australian, 7 February, 2018

I can and do object to the chant.  Imagine our leaders responding to the Minister for Thongs by chanting ‘Aussie, Aussie, Aussie!  Oi, oi, oi!’  The chant was partisan – ‘Make America Great Again’.  And the infatuation of that paper with ‘identity politics’ is mind crippling.  Nationalism – say of Mussolini, Franco or Hitler – is a definitive brand of ‘identity politics.’  Mr Sheridan’s dream of ‘universal national identity’ is a perfect contradiction in terms.  But, then, Mr Sheridan thought the State of Union Address was very good.  Most saw it as complete bullshit.

MY TOP SHELF – 17

 

[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]

17

ROIS ET SERFS

Marc Bloch (1920)

Librairie Ancienne Honoré Champion, Paris, 1920; facsimile reprint Slatkine-Megariotis, Geneva, 1976; rebound in quarter vellum with red cloth boards and red label embossed.

I was born in France.  I have drunk the waters of her culture.  I have made her past my own.  I breathe freely only in her climate, and I have done my best, with others, to defend her interests.

Winston Churchill used the term ‘unconquerable fidelity’ to refer to some of the people opposing the Third Reich.  It is a very just epitaph for the French historian, Marc Bloch.  Coming from a family of assimilated Alsatian Jews, Bloch studied in Paris at the Ecole Normale Supérieur and then in Berlin and Leipzig.  He served in the infantry throughout the First World War and attained the rank of captain.  He was awarded the Legion d’Honneur.  Between the wars he won an international reputation as an historian and helped to found the Annales School.  He invoked the work of German historians and his great work spanned all Europe.  He re-joined the army in 1939 and wrote a book Strange Defeat after the capitulation.  He worked on historiography, and he also served the Resistance, code named ‘Narbonne’.  Vichy police took him and handed him over to the Gestapo who tortured him and shot him shortly before the Allies arrived.  His friends had asked him to get out of France, but he had thought that he had a duty to stay.

In Strange Defeat, Bloch had uttered those most beautiful words that are set out at the head of this note.  I shall come back to his execution when looking at War and Peace, but it is enough to say now that Marc Bloch was a man to whom the word ‘patriot’ might be applied both fairly and decently.

Rois et Serfs (‘Kings and Serfs’) was Bloch’s doctoral thesis that looked at emancipation ordinances of 1315 and 1318 and found that the references to ‘natural freedom’ did not represent an endorsement of human liberty – they were just part of a conventional formula, a drafting device, although Bloch saw behind it a conflict between the ideals of the church fathers of equality and the reality of their hierarchy.  The work prefigures his later work with its focus on royalty and the functions of royal officials and the ways of the common people.  It contains valuable advice for lawyers today.  Ces discourses préliminaires tournaient tousjours dans le même cercle de pensées ou de lieux communs, sans avoir la vie reelle qu’un bien lointain rapport, – étant forcement elogieéux pour le personage qui avait commandé l’acte, et presentant invariablement ses motifs sous le jour le plus flatteur.  In translation – statutory preambles are self-serving propaganda.

But this book stands here for the great ‘Feudal Society’ (La société féodale), a clear and simple picture of feudalism that offers us a picture of medieval Europe.  It is extremely wide in its scope but, like the work of Maitland, it is rooted in the concrete and it is graphically written.  It is one of those great histories that can be read and enjoyed equally by the specialist and the general reader.  It is in truth a masterpiece of composition – in French or English.

Here are some extracts to show the style and substance of this colossal achievement.

Yet the revival of interest in Roman law provoked lively opposition.  Fundamentally secular, it disturbed many churchmen by its latent paganism.  The guardians of monastic virtue accused it of having turned away the monks from prayer.  The theologians reproached it with supplanting the only forms of speculative activity that seemed to them worthy of clerics.  The kings of France themselves or their counsellors, at least from Philip Augustus on, seem to have taken umbrage at the too easy justifications which it provided for the theorists of Imperial hegemony.  Far from arresting the movement, however, this opposition did little more than attest its strength.

The principal difficulty, therefore, which faced the central government was to reach residual subjects, in order to exact services and impose the necessary sanctions.  Thus there arose the idea of utilizing for the purposes of government the firmly established network of protective relationships.  The lord, at every level of the hierarchy, would be answerable for his ‘man’ and would be responsible for holding him to his duty.  This idea was not peculiar to the Carolingians….Under the Carolingians, on the other hand, various royal or imperial edicts were concerned with defining precisely the offences which, if committed by the lord, would justify the vassal in breaking the contract.  This meant that, with the exception of such cases, and apart from separations by mutual agreement, the tie lasted for life.

Yet, whatever the inequalities between the obligations of the respective parties, those obligations were none the less mutual; the obedience of the vassal was conditional upon the scrupulous fulfilment of his engagements by the lord.  This reciprocity in unequal obligations….was the really distinctive feature of European vassalage.  This characteristic distinguished it not only from ancient slavery but also, and very profoundly, from the forms of free dependence known to other civilizations, like that of Japan, and even to certain societies bordering on the feudal zone proper.

In reflecting on this picture of people being bound together by mutual agreement and ties, we are speaking of times more than a millennium ago.

It was there in the commune that the really revolutionary ferment was to be seen with its violent hostility to a stratified society.  Certainly these primitive urban groups were in no sense democratic.  The greater bourgeois, who were their real founders and whom the lesser bourgeois were not always eager to follow, were often in their treatment of the poor hard task masters and merciless creditors.  But by substituting for the promise of obedience, paid for by protection, the promise of mutual aid, they contributed to the social life of Europe a new element, profoundly alien to the feudal spirit properly so called.

There is a riveting insight there, both French and universal.

Assuredly the English parliamentary system was not cradled in ‘the forests of Germania’.  It bore the deep imprint of the feudal environment from which it sprang.  But the peculiar quality which distinguished it so sharply from the Continental systems of ‘Estates’, and, more generally, that collaboration of the well-to do classes in power, so characteristic of the English political structure so long ago as the Middle Ages – the origin of these is surely to be found in the firm establishment on English soil of the system of assemblies composed of the free men of the territory, in accordance with the practice of the barbarian epoch.

The book ends with these words.

Nor was it an accident that in Japan, where the vassal’s submission was much more unilateral and where, moreover, the divine power of the Emperor remained outside the structure of vassal engagements, nothing of the kind emerged from a regime which was nevertheless in many respects closely akin to the feudalism of the West.  The originality of the latter system consisted in the emphasis it placed on the idea of an agreement capable of binding the rulers; and in this way, oppressive as it may have been to the poor, it has in truth bequeathed to our Western civilization something with which we still desire to live.

So much of all this is treasure.  Here is the work and the writing of a man of immense learning and authority.  This great French scholar and patriot gives me the same feeling that I get when I am reading Maitland – that I am in the hands of an historian whose judgment has been forged in the mastery of his evidence and whose integrity is assured by the demonstration of his technique. You are blessed indeed if you ever get to read a work of history that is as enlightening – as illuminating – as ‘Feudal Society’.