Here and there – Twilight of Democracy

Twilight of Democracy

The Seductive Lure of Authoritarianism

Anne Applebaum

This book is beautifully written.  It is also very sad.  It could be given to apprentice barristers because its author understands that for an advocate, candour is a weapon.  And that it is a weapon is not realised by those people that Anne Applebaum describes.  She looks at the recent political shifts in Poland, Hungary, Spain and England – or, I should say, Great Britain – and asks who are the kinds of people that are attracted by the lure of authoritarian rule?  Her answer is ‘people who cannot tolerate complexity.’  You may want to be careful how you put that.  You could get into serious trouble if you referred to those people as ‘simpletons’ or even ‘simple minded.’  (You get sent straight to the stocks if you say that they are ‘deplorable.’)

….the ‘authoritarian predisposition’….is not exactly the same thing as closed-mindedness.  It is better described as simple-mindedness: people are often attracted to authoritarian ideas because they are bothered by complexity.  They dislike divisiveness.  They prefer unity.  A sudden onslaught of diversity – diversity of opinions, diversity of experiences – therefore makes them angry.  They seek solutions in new political language that makes them feel safer and more secure.

This is the kind of failing that Keats had in mind when he spoke of the ‘negative capability’ of Shakespeare – ‘when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason.’  A professional person must pursue this course; its absence is fatal in a judge; and it should be a paramount objective of what might be called a liberal education.  Educated people – and you also need to be careful about where you use that term – are brought up to distrust anyone claiming to have the answer.  But that is what those who surrender to the seduction crave.  It puts an end to anxiety and gives them peace.  Life is easier when you march to the beat of a drum.

And, of course, if you have the answer, then those against you are worse than perverse.  They are diagnosably wrong.  What you get is something like all-out war.  What we then miss is what Sir Lewis Namier referred to as ‘restraint coupled with the tolerance that it implies.’  The term is ‘polarised’ – what one participant told the author was ‘winner takes all.’  In Australia at the moment, a mild disagreement about handling a virus leads to shrieking about the death of democracy.

And you will see immediately how Twitter and the like feed those cancers and deliver up the credulous to their puppeteers.  What you get is a ‘frame of mind, not a set of ideas.’  And in the company of those of like mind, you get identity, the marks of which you bear with pride.

And the answers are plain.  ‘The emotional appeal of a conspiracy theory is in its simplicity.’  For the followers of Hitler, the Jews were the enemy; for the followers of Obán, it is Mr George Soros.  It doesn’t matter much whom you choose for scapegoats – say Jews, Muslims, migrants or gay people – as long as they are indentifiable and vulnerable.  What you have is ‘resentment, revenge, and envy.’  What you are released from is responsibility for your own history.  And you distrust experts.  You don’t want to concede their power or let them take your time.  You may even burble some nonsense about sovereignty.

As I said elsewhere:

Lord Clark said … that ‘as rational argument declines, vivid assertion takes its place.’…. You see a similar problem with people who ignore evidence that is contrary to the view they have formed provisionally.  It looks good enough to get a problem off their desk to someone else’s – why give yourself more trouble by re‑examining the point?  The problem is, in large part, one of laziness, the quest for the easy life, and for an end  to uncertainty and anxiety. …..The real problem is that most of us are not ready to acknowledge the prior opinion, nor the extent of its hold on us.  As Aldous Huxley observed, ‘Facts do not cease to exist because they are ignored’; or, as Warren Buffett said: ‘What the human being is best at doing is interpreting all new information so that their prior conclusions remain intact.’  ….There is a related problem about our reluctance to be left in doubt or uncertainty.  It is sometimes hard to resist the suggestion that doing something is better than doing nothing.  That position is commonly dead wrong.  The French philosopher Blaise Pascal memorably said that, ‘All of humanity’s problems stem from man’s inability to sit quietly in a room alone.

At least three things sadden me about what this book tells us.  The first is that people like Farage, Trump and Boris Johnson are not people you would like to invite into your home.

Quite a lot of people have since remarked on Johnson’s outsized narcissism, which is indeed all consuming, as well as his equally remarkable laziness.  His penchant for fabrication is a matter of record.

They are the attributes of Farage and Trump.  They are like spoiled children.  They are not used to being denied, or even checked.  If they do meet obstruction, they sulk about the structures in their way.  They even claim to be persecuted.  The contempt of Farage for displaced Muslim persons in 2016 was manifest.  Just about every day, people like Trump or Johnson do something that would get them fired from the position of CEO of a public company.  But it appears that the bargaining power of those who put them in power does not allow them to call their leader to account.

The second point of sadness is that the followers of these liars rejoice in their lies.  This is part of the myth that the establishment is being stormed.  ‘Dominic Cummings’ Vote Leave campaign proved it was possible to lie, repeatedly, and to get away with it.’  It is quite remarkable how much time is spent by members of the elite complaining about the conduct of the elite; some even claim to be persecuted by the elite.

That brings us to God in America.  It has been a problem since the Puritans arrived and found themselves in the majority – they were fast running out of favour in England.  The pact between Trump and the evangelical Christians is something like: ‘You give us judges that will ban abortion and we will forget the Sermon on the Mount for federal politics.’  (Could you believe it?  The meek shall inherit the earth?)  That is sickening enough – but Rome did deals with Mussolini, Hitler, and Franco.  And according to the author, some in America believe that ‘Russia is a godly Christian nation seeking to protect its ethnic identity.’  Others have odd views about Jerusalem.

If you see Laura Ingraham of Fox News on TV, you may feel the chill of her Aryan froideur even if you are not Jewish.  She is a Catholic who once went on a date with Trump and who gives lectures on Christian values and virtues – ‘honor, courage, selflessness, sacrifice, hard work, personal responsibility, respect for elders, respect for the vulnerable.’ Trump is none of those things.  When Ms Ingraham interviewed Trump on the anniversary of D-day, she said ‘By the way, congratulations on your polling numbers.’  How can any faith survive that kind of betrayal?  And the worst of it is that some of these people call themselves ‘conservatives’.  Do any of them have any sense of shame left at all?

Then there is Falstaff – ‘Jack to my friends and Sir John to all Europe’.  (I refer to the Falstaff of the history plays, and not the sit-com of The Merry Wives of Windsor so gorgeously realised by Verdi in his carnival opera version).  Falstaff is, not necessarily in order, a coward, a drunk, a thief, a liar, a cheat, a crawler, a snob and a womaniser.  He is also the most popular character that Shakespeare ever created – so popular, some say, that the Queen commanded and got a whole play by way of encore.  For all his faults – his vices – we relate to Falstaff.  But looked at objectively, he is what Sir Anthony Quayle – and he should know – described as ‘frankly vicious.’

Is there something in our psyche – perhaps the complete reverse of the superego – that leads us to enjoy someone who openly mocks our whole establishment and its tiresome virtues?  You often hear people say that they like Trump because he can say things that they would never get away with – about, say, the first black president.  That is probably also the main source of appeal of those frightful parasites called shock jocks.  This is what Tony Tanner (in his Prefaces to Shakespeare) said:

In carnival, social hierarchy was inverted, authority mocked, conventional values profaned, official ceremonies and rituals grotesquely parodied, the normal power structures dissolved  – in a word, Misrule, Riot, the world upside down.

That is a fair summary of some of the more unattractive aspects of Falstaff and of those living in the world of the current White House.  And when you look at it, there is about Falstaff, as there is about Trump and Johnson, the aura of a spoiled child who never grew up.

Anne Applebaum says that ancient philosophers had their doubts about democracy – as did the movers of the revolutions of 1688, 1776, 1789, and 1917.  Plato feared the ‘false and braggart words’ of the demagogue, and wondered if democracy was anything more than a staging point on the way to tyranny.  This fine book shows a clear light on our current descent.

MY SECOND TOP SHELF – 12 – Einstein

 

[These are serialised extracts of all the fifty books referred to in a book as yet unpublished called ‘My Second Top Shelf, or What Used to be Called a Liberal Education’. The content of these may change before further publication.]

IDEAS AND OPINIONS

Albert Einstein

Folio Society, 2010.  Bound in figured boards, with photographs and slip case.

The word Einstein now stands genius, just as Hoover means vacuum cleaner, but it was Einstein who once and for all put science beyond all but the select.  Before Einstein, people with a good general education could come to grips with the laws of science on which the world revolved.  But they could not do so after Einstein rewrote the whole book.  Now for most of us science is, at bottom, like God or Mozart, something that we must take, if at all, simply on trust.  It would be fair to hazard the assertion that the mind of Einstein has had more effect on the world than any other mind.

Einstein was born of Jewish parents in Ulm, a small city on the Danube in the south of Germany.  He at first attended a Catholic elementary school, and then attended the local Gymnasium.  He was introduced to Kant’s Critique of Pure Reason at the age of about ten – which is like saying that Mozart started composing at the age of five.  He took his tertiary education in Switzerland and got employment as an examiner in the Swiss Patent Office.

The work of Einstein led him to conduct thought experiments about the nature of light and the relation of time and space.  He was crossing the borders of existing knowledge.  In 1905, he published four revolutionary papers, one on special relativity.  He then developed his general theory which was later verified.  He was the director of the Kaiser Wilhelm Institute of Physics in Berlin, and a professor at Humboldt University from 1914 to 1932.  He won a Nobel Prize in 1921.

When Hitler came to power in 1933, Einstein was in America.  He stayed there – back home they burnt his books and put a bounty on his head.  He then warned the U S that Hitler might be first to get the Atom bomb.  This led Roosevelt to implement the Manhattan Project.  Einstein later wrote a manifesto with Bertrand Russell on the dangers of nuclear weapons.  His total scientific output was staggering.  It does not bear to think what might have happened had Einstein returned to Germany in 1933 and provided the means for Hitler to be the first to get, and most certainly use, the bomb.

Einstein had a mature view of religion.  Towards the end of his life he said ‘I very rarely think in words at all’.  He thought in pictures, in his thought experiments, and mathematically.  Whereas some people see what they believe to be miracles as evidence of God’s existence, for Einstein it was the absence of miracles that reflected divine providence, and revealed a ‘God who reveals himself in the harmony of all that exists’.  This is very much like what Kant thought.  When Einstein adhered to this dictum and said that God does not play dice, the rejoinder of Nils Bohr was: ‘Einstein, stop telling God what to do!’

Einstein had the problem that Darwin had with people trying to get him to express views on religion.  People were out to get him.  A New York rabbi sent him a telegram: ‘Do you believe in God?  Stop.  Answer paid.  Fifty words.’  The reply was: ‘I believe in Spinoza’s God, who reveals himself in the lawful harmony of all that exists, but not in a God who concerns himself with the fate and the doings of mankind’.  Einstein never felt the need to put down others who believed in a different kind of God: ‘What separates me from most so-called atheists is a feeling of utter humility toward the unattainable secrets of the harmony of the cosmos’.

In a paper headed The World as I See It, published in 1931, Einstein said:

The most beautiful experience we can have is the mysterious.  It is the fundamental emotion which stands at the cradle of true art and true science.  Whoever does not know it and can no longer wonder, no longer marvel is as good as dead, and his eyes are dimmed.  It was the experience of mystery – even if mixed with fear – that engendered religion.  A knowledge of the existence of something we cannot penetrate, our perceptions of the profoundest reason and the most radiant beauty, which only in their most primitive forms are accessible to our minds – it is this knowledge, and this emotion that constitute true religiosity; in this sense and in this sense alone, I am a deeply religious man.  I cannot conceive of a God who rewards and punishes his creatures, or has a will of the kind that we experience in ourselves.  Neither can I nor would I want to conceive of an individual that survives his physical death; let feeble souls, from fear or absurd egoism, cherish such thoughts.  I am satisfied with the mystery of the eternity of life and with the awareness and a glimpse of the marvellous structure of the existing world, together with the devoted striving to comprehend a portion, be it ever so tiny, of the reason that manifests itself in nature.

You can see why Einstein poses a challenge to religion as it is usually practised.  It is not just the rejection of a personal God and life after death – he finds a source of wonder and mystery from contemplating the world as he finds it.  In a paper published in Germany in 1930, Einstein had affirmed that man could get by ethically without God.

A God who rewards and punishes is inconceivable for the simple reason that a man’s actions are determined by necessity, external and internal, so that in God’s eyes he cannot be responsible….Science has therefore been charged with undermining morality, but the charge is unjust.  A man’s ethical behaviour should be based effectually on sympathy, education, and social ties and needs; no religious basis is necessary.  Man would indeed be in a poor way if he had to be restrained by fear of punishment and hope of reward after death.

Elsewhere he made a strong allegation: ‘The idea of God in the religions taught at present is a sublimation of that old concept of the gods.’

He knew how to take a stand.  Here is his advice on a 1953 inquisition.

What ought the minority of intellectuals do against this evil? Frankly, I can only see the revolutionary way of non-co-operation in the sense of Ghandi’s.  Every intellectual who is called before one of the committee’s ought to refuse to testify, i. e., he must be prepared for jail and economic ruin, in short for the sacrifice of his personal welfare in the interest of the cultural welfare of his country.

However, this refusal to testify must not be based on the well-known subterfuge of invoking the Fifth Amendment against possible self-incrimination, but on the assertion that it is shameful for a blameless citizen to submit to such an inquisition and that this kind of inquisition violates the spirit of the Constitution.

If enough people are ready to take this grave step, they will be successful.  If not, then the individuals of this country deserve nothing better than the slavery which is intended for them.

That was written by someone proscribed by Nazi Germany.  He could prescribe very high standards.  Here he is on human rights in 1954.

The existence and validity of human rights was not written in the stars…There is however one other human right which is infrequently mentioned, but which seems to be destined to become very important: this is the right or the duty of the individual to abstain from cooperating in activities which he considers wrong or pernicious.  The first place in this respect must be given to the refusal of military service.  I have known instances where individuals of unusual moral strength and integrity have, for that reason, come into conflict with the organs of the state.  The Nuremberg trial of the German war criminals was tacitly based on the recognition of the principle: criminal actions cannot be excused if committed on government orders; conscience supersedes the authority of the law and the state.

The last clause is potent.  Finally, this is what he had to say to Mahatma Ghandi in 1944:

A leader of his people, unsupported by any outward authority: a politician whose success rests not upon the craft nor the mastery of technical devices, but simply on the convincing power of his personality; a victorious fighter who has always scorned the use of force; a man of wisdom and humility, armed with resolve and inflexible consistency, who has devoted all his strength to the uplifting of his people and the betterment of their lot; a man who has confronted the brutality of Europe with the dignity of the simple human being, and thus at all times risen superior.

Generations to come, it may be, will scarce believe that such a one as this ever in flesh and blood walked upon this earth.

Those words were spoken by the man who referred to Jesus of Nazareth as ‘the luminous Nazarene.’  This book is a big clean window into one of the most powerful minds the world has known.

 

Passing Bull 243 – More on freedom

 

The virus was obviously sent to test us.  And some of us are doing better than others.  The threat to public health and safety leads to government being called on to interfere in our lives much more than we would ordinarily want.  People say that they are less free than they were before.  As we know, that is just about an inevitable consequence of any law.  The requirements of masking have led to complaints about a loss of freedom.  But it follows as night the day that in a time of emergency – genuine emergency on this occasion – we will be less free to act in certain ways than before.

Someone – it may have been G B Shaw – said ‘Freedom means responsibility – that’s why most men fear it.’  That sounds about right – if how you act is completely a matter for you, then the decision is yours and yours alone.  You will have to accept responsibility for your decision – you will not have the prop of superior orders to rely on.

In responding to the virus, each one of us will be affected by the conduct of everyone else.  The law cannot control every contingency.  To some extent at least, each one of us is responsible to the rest of us for doing what is reasonably required to see us through this emergency.  People who complain that the government is curtailing their freedom often forget that with that freedom comes a responsibility to act in a way that does not increase the risk of harm to others.  In other words, freedom comes with a price.

Bloopers

Trump is often unseemly, but in focusing on law and order, he may be saying things that Americans will increasingly want to hear.

The Australian, 4 June, 2020, Greg Sheridan

Then he sent in the army.

Whether it [dealing with COVID-19] was the necessary price of success or born of hysterical overreaction, history can judge.

The Australian, 4 June, 2020, Adam Creighton

Passing Bull 243 – Silliness about rights

 

You have the right walk down the street outside my house.  But you may be denied that right if you want to cross the road at a light controlled intersection and you are facing a red light.  We use traffic lights to reduce the risk of accidents between people using the same roads. But then we took a further step.  We made it compulsory for the driver of a motor car to wear seat belts.  This law was not made to reduce the risks of others being hurt.  It was made to reduce the risk of damage if the driver was involved in a collision.  Some people were offended.  They complained that this law invaded their rights by impairing their freedom.  One answer is that all laws affect the freedom of people since they will not be free – they will have to face consequences – if they break the law.  If you want to introduce economics into this discussion about compulsory wearing of seat-belts, it is that people injuring themselves badly because they are not wearing seat-belts may be injured badly enough to require hospitalisation – at our expense.

That is the argument for the compulsory wearing of face masks during a time of epidemic.  You do not hear that argument so much outside the U S, but to many of us, Americans have a fixation about ‘rights’ and ‘liberty.’  That fixation reached the level of madness when a state governor sued a city mayor for seeking to make the wearing of face masks compulsory.  It adds nothing to say that a law affects ‘freedom’ since all laws do just that.

Bloopers

We’ve been having a lively debate lately about what the sudden social-justice ascendancy in American institutions represents, and whether the new iconoclastic progressivism is just an organic development in liberalism or a post –liberal successor.

New York Times, 7 July, 2020

Deputy Chief Medical Officer Michael Kidd said later ‘the Commonwealth accepts the need for this action in response to containing spread of the virus’.

But, Kidd said, the Australian Health Protection Principal Committee — the federal-state health advisory body so often invoked by Morrison — ‘was not involved in that decision.

‘The AHPPC does not provide advice on border closures’, Kidd added.

ABC, 7 July, 2020

Here and there – Black Knight plays White Queen

The events known as the Dismissal of 1975 have come back to the front page of our press with the release of correspondence between the Palace in London (on behalf of the Queen) and the Governor-General (Sir John Kerr) in Australia.  Those who had the custody of those documents had resisted disclosing them.  The resistance was fierce and prolonged.  It is hard to think of a good reason why the people of Australia should have been prevented from getting access to documents that may throw light on one of the most contentious political episodes in our history.

At the heart of that dispute was the question of what is the proper role of the executive of the Commonwealth – the Queen and the Governor-General – in resolving a deadlock between the two houses of Parliament.

The dispute had arisen because one party had used its numbers in the Senate to block supply to the government with a view to forcing an early election and, as I recall, state governments had filled Senate vacancies with people they thought would be amenable to their views.  The government had been acting badly, but there were good grounds to suggest that the opposition parties had breached long standing political conventions in the way in which they were blocking supply.  The atmosphere was worse than tense.  It was venomous.

The answer about the proper role of the Queen and the Governor-General in our political affairs was not given by the Queen.  The answer was driven from London from advisers in the Palace and from the Governor-General and his staff in Canberra.  The Queen, we are told, had no part in the decision.  According to the correspondence now released, the decision reached by her advisers in the Palace and the Governor-General in Australia was that the Queen should have nothing to do with this crisis in Australia, and it should all be left to the Governor General – albeit with the benefit of advice to him from the staff of the Queen at the Palace.  The decision that the Queen should play no part extended to a decision that she should not be told in advance what action the Governor-General might take.

All that raises the question – if the Queen has no part to play in resolving an issue like this, what is the point of keeping the Queen as part of the government of the Commonwealth of Australia?

The Constitution in section 61 provides:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

In considering this provision, we should remember that the Constitution was contained in a schedule to an act of the British Parliament that was passed at the time when Great Britain was at the pinnacle of its power ruling over one of the greatest empires in the history of the world – if ‘great’ is an appropriate epithet for any empire.  When the mother country granted former colonies their independence, as it had done with Canada and as it would do with many other nations in Africa and Asia, it did so by setting up the constitutions of those nations so that they would follow what the British were reasonably entitled to believe was their greatest contribution to the world – the rule of law under the common law and the Westminster version of parliamentary democracy.  You can, if you wish, test the validity or worth of that faith by looking at the subsequent histories of, say, the former colonies of Belgium, France, Germany, Holland, or Italy.

The terms ‘power’ and ‘vesting’ that appear in s. 61 may at times be legally charged, as may be the notion of delegation implicit in the stipulation that the Governor-General may exercise those powers of the Queen, but the intention and effect of this law is plain enough.  The mother country is bequeathing its system of government to the fledging nation that it is giving birth to.  If you look at s. 61, you see that the powers that are exercisable by the Governor-General are the powers of the Queen.  The law says that the Governor-General acts as ‘the Queen’s representative.’  It is like the relation between principal and agent developed by the common law.

In the business of running the government, the Governor-General has the powers of the Queen.  And part of our overall constitutional framework is that the Governor-General, like the Queen, can only exercise those powers on advice from the Ministers of the Crown who are members of parliament and who have the confidence of a majority of that parliament.

There is therefore no need to ask what might happen if there was a dispute between the Queen and the Governor-General as to how those powers should be exercised – each of them can only act on the advice of the government of the day.  It follows of course that it would not be open to the Governor-General to act in a manner that is denied to the Queen – by, for example, acting not just without the consent of the government, but by acting against the express wishes of that government.  To put it more broadly, it is difficult under our law to envisage an agent having more power than the principal.  Perhaps we might consider the analogy of chess – the queen is much more powerful than a knight, but the knight moves in a way that the queen cannot; a player who sacrifices a queen for a knight is mad; and the king is untouchable.

The debate, if that is what it was, about the ‘reserve powers’ of the Governor-General calls to mind the issue of the ‘royal prerogative’ in the seventeenth century.  The Stuart kings could not shed the illusion that their powers – the prerogative of the Crown – came from God – and could only be taken from them by God.  That issue was resolved against the Crown in the events known as the Glorious Revolution of 1788-1789.  James II, the last of the Stuarts, decamped ingloriously, heaving the royal seals into the Thames as he went, possibly reflecting, as one mordant historian remarked, about that part of the neck that was severed when the English cut off his father’s head; Dutch troops patrolled the streets of London; and the parliament and the Queen, who was the daughter of James II, and William of Orange signed the Hanoverians up to supply a line of house trained kings from Germany to run things in England.  This is where we get the supremacy, or, if you prefer, the sovereignty of parliament.  Virtually all powers of the Crown were subject to the will of the people in parliament.  Looking back on it now, this does look like a pan European solution to a very English problem.  The efforts of the French to follow suit a century later met a much harder fate.

Lord Denning, am English jurist of last century, did not pussy-foot about the English solution.

Concede, if you wish, that, as an ideology, communism has much to be said for it: nevertheless, the danger in a totalitarian system is that those in control of the State will, sooner or later, come to identify their own interests, or the interests of their own party, with those of the State: and when that happens the freedom of the individual has to give way to the interests of the persons in power.  We have had all that out time and again in our long history: and we know the answer.  It is that the executive government must never be allowed more power than is absolutely necessary.  They must always be made subject to the law; and there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’  We taught the kings that from Runnymede to the scaffold at Whitehall [the execution of Charles I]: and we have not had any serious trouble about it since.

It therefore came as quite a surprise to learn from the correspondence now released that the staff of the Queen at the Palace and the Governor-General in Australia went out of their way to ensure that the Queen had no notice at all of what would be the most significant step ever taken purportedly on behalf of the Queen in the history of the Commonwealth of Australia.  Of course in the day to day business of government, the Queen is never consulted.  But on what basis did those who advised Sir John Kerr about his powers decide that the Queen should be not be informed or in any way involved in the way that her powers should be exercised in a manner that had never been done before?

And although the Queen could only act on the advice of the government of the day, the Governor-General was acting in this case in a manner expressly contrary to that advice.  It has always seemed to many to be odd to say that the person entrusted with the powers of the Queen could exercise those powers in a manner expressly denied to the Queen – that in some ways his powers were more plenary than when exercised by Her Majesty.  What the Palace correspondence shows is a Governor-General acting in a manner that was contrary to an essential pillar of our inherited Westminster system of government.

The reason offered for that course is that if the Governor-General had warned the Prime Minister of his intention, the Prime Minister could have asked the Queen to remove the Governor-General and she would then have been obliged to do so.  Is that not a matter of the Governor-General acting peremptorily in order to preclude the possibility of the Queen acting appropriately?  And does that just leave us with Alice in Wonderland?

If after the Governor-General had acted as he did and he had informed the Queen, what may have been the case if the Queen had been of the opinion that she would have acted differently?  And how could Her Majesty have said otherwise when she was obliged to act, and only to act, on the advice of her Australian ministers?

It is not therefore surprising to read that a former member of the Palace bureaucracy says now:

I suspect that the advice that would have been given to him [Sir John Kerr] was that it would have been prudent to hold off a bit longer.  But obviously he felt the pressure of these two contingencies about the election and the financial situation were too pressing to ignore.  I think it was very proper of him not to ask and in ways which are now very evident, very sensible and satisfactory that he didn’t.  There was considerable discussion of a hypothetical nature about the existence of, and appropriateness of, applying to those reserve powers, but at no stage did the Governor-General ever ask the Queen to suggest that he should act in any particular way, and nor did she offer that advice through her private secretary…

The press reports that this gentleman and the author of the Palace letters thought that Australia was embroiled in a ‘political’ and not ‘constitutional’ crisis and concluded that the Governor- General had intervened ‘too precipitously’ to resolve the deadlock over supply.

All of us in London thought that if Kerr had been able to hold his nerve for just a day or two more, there probably would have been a political solution to the problem, which would have avoided a lot fuss.

And ‘a lot of fuss’ there was – that might have been avoided if the various officials in London and Canberra had not sought and managed to keep the Queen out of this dispute.

And one day someone in Whitehall may illuminate us about the distinction between a ‘political’ crisis and a ‘constitutional’ crisis.  It looks to be the kind of question that could have tantalised Aristotle or Plato or Augustine or Aquinas in different ways.  Some may be reminded that the medieval Schoolmen agonised over the question of how many angels can dance on the point of a needle.  This is not the kind of speculation that we need to see in the government of our nation.

Well, what are we now to make of all this?  Does it not just look like an episode of Yes, Minister that has gone horribly wrong?

Many Australians, including me, were infuriated by what happened in 1975.  Now many of those Australians, again including me, just feel personally insulted that the fate of their government in 1975 had been determined by the actions of Palace officials in London and a Governor-General here who thought that it was appropriate for him to act in the way that he did without notice either to the Queen of Australia or to the Prime Minister of Australia.

When you come to think about it, there was truly chutzpah to behold in civil servants in the onetime seat of a mighty empire involving themselves in the affairs of onetime colonies and helping to bring about a change of government – without any notice to its head of state or prime minister. The term coup d’état may be too strong, but I know how some people feel.  If there is one thing worse than a monarch wanting to intervene in our affairs, it may be a monarch who wants nothing to do with us, even though our constitution makes her the primary repository of the executive powers of the Commonwealth.

Now, forty-five years later, we may wonder if the reaction to the election of Gough Whitlam in Australia might now be seen in the reaction to the election of Barak Obama in the United States – ‘this aberration is not the way that we the better people are used to doing business,  and we may therefore just have to bend the rules a little in order to restore the status quo; democracy is at its best when it is duly guided, and sometimes the people just forget what’s best for them.’

It brings to mind an immortal cartoon of Ron Tandberg.  Just before he retired, Sir John put on a routine of another but much better known Sir John – Falstaff.  Sir John presented the Melbourne Cup when it was obvious to tout le monde that he was as full as a state school.  Tandberg showed him blotto with crosses for eyes under a silly, tilted top hat.  The caption was: ‘I love making presentations in November.  Like when I gave the nation back to its true owners.’

Gough Whitlam said Sir John was the last of the Bourbons.  He might as well have said Stuarts – they were very helpfully incorrigible.  But it is notorious that those in the diaspora cling to relics long after their time has passed.  Sir Lewis Namier said that the US is ‘in certain ways, a refrigerator in which British ideas and institutions are preferred long after they have been forgotten in this country’.

Well, two things are clear enough – indeed, two things are transcendentally clear.  First, very few people in Australia want to give any power to any government officials in London to settle their political disputes.  Secondly, no one in London wants to be involved in any such Australian disputes.  The time of this institution in Australia has passed from us long ago.  That being so, the presence of the monarchy in our body politic is as useful as the appendix in my body and it is time for us to achieve independence from Great Britain and proceed under our own head of state.

 

Passing Bull 242 – The ode of Trump

The Wall Street Journal once commanded respect.  It put out an editorial about the speech of Donald Trump for Independence Day.  The convention is that this is not a time for party politics or division.  The editorial called the speech a ‘familiar Fourth of July ode to liberty…..Contrary to the media reporting, the America Trump described is one of genuine racial equality and diversity…’  He described ‘a left-wing cultural revolution against traditional American values of free speech and political tolerance.’  The fault lies with ‘progressives.’

The speech contained the following.

Let us also send our deepest thanks to our wonderful veterans, law enforcement, first responders and the doctors, nurses and scientists working tirelessly to kill the virus…..

I am here as your President to proclaim, before the country and before the world, this monument will never be desecrated…..

Our nation is witnessing a merciless campaign to wipe out our history, defame our heroes, erase our values, and indoctrinate our children…..

Angry mobs are trying to tear down statues of our founders, deface our most sacred memorials, and unleash a wave of violent crime in our cities…..

Many of these people have no idea why they are doing this, but some know exactly what they are doing…..

This attack on our liberty, our magnificent liberty, must be stopped, and it will be stopped very quickly…..

We will expose this dangerous movement, protect our nation’s children, end this radical assault, and preserve our beloved American way of life…..

In our schools, our newsrooms, even our corporate boardrooms, there is a new far left fascism that demands absolute allegiance…..

This left-wing cultural revolution is designed to overthrow the American Revolution…..

The violent mayhem we have seen in the streets and cities that are run by liberal Democrats in every case is the predictable result of years of extreme indoctrination and bias in education, journalism, and other cultural institutions……

All of that is rubbish.  But it is also vicious.  The WSJ shows how far the U S has fallen.  Not only have better people not stood up to Trump – they positively encourage him.  And Donald Trump would not know an ode from an owl.

Quite by chance, I was reading Nicholas Nickleby again and came across this passage:

There are some men who, living with the one object of enriching themselves, no matter by what means, and being perfectly conscious of the baseness and rascality of the means which they will use every day towards this end, affect nevertheless—even to themselves—a high tone of moral rectitude, and shake their heads and sigh over the depravity of the world.  Some of the craftiest scoundrels that ever walked this earth, or rather—for walking implies, at least, an erect position and the bearing of a man—that ever crawled and crept through life by its dirtiest and narrowest ways, will gravely jot down in diaries the events of every day, and keep a regular debtor and creditor account with Heaven, which shall always show a floating balance in their own favour.  Whether this is a gratuitous (the only gratuitous) part of the falsehood and trickery of such men’s lives, or whether they really hope to cheat Heaven itself, and lay up treasure in the next world by the same process which has enabled them to lay up treasure in this—not to question how it is, so it is.

Bloopers

Ember quotes the law professor Kimberlé Crenshaw, the theorist of intersectionality, marveling at the change: ‘You basically have a moment where every corporation worth its salt is saying something about structural racism and anti-blackness, and that stuff is even outdistancing what candidates in the Democratic Party were actually saying.’

New York Times, 24 June, 2020

What says your theory of intersectionality?

MY SECOND TOP SHELF – 11

[These are serialised extracts of all the fifty books referred to in a book as yet unpublished called ‘My Second Top Shelf, or What Used to be Called a Liberal Education’. The content of these may change before further publication.]

THE BROTHERS KARAMAZOV

Fyodor Dostoevsky, 1880

Folio Society, 1964; bound in illustrated boards with slipcase; drawings by Nigel Lambourne

Wagner and Dostoevsky had a lot in common.  Neither was ever at risk of underestimating his own genius, and the behaviour of neither improved as result.  Both were prone to go over the top.  You can find forests of exclamation marks in the writings of both.  And both could and did bang on for far too long for some of us.  They both badly needed an editor. But if you persist with either of these men of genius, you will come across art of a kind that you will not find elsewhere.  The Brothers Karamazov, is a case in point. In my view, it could be improved by being halved – but you would be at risk of abandoning diamonds.

The most famous part of the novel comes with a sustained conversation between two brothers, Alyosha, who is of a saintly and God-fearing disposition, and Ivan, who is of a questing and God-doubting outlook.  The conversation comes in Part 2, Book 5, chapters 4 and 5, Rebellion and The Grand Inquisitor.

Ivan gets under way with ‘I must make a confession to you.  I never could understand how one can love one’s neighbours.’  The author probably knew that Tolstoy had written a book that asserted that the failure of civilisation derived from our failure to take seriously the Sermon on the Mount.   We are familiar with Ivan’s biggest problem.

And, indeed, people sometimes speak of man’s ‘bestial’ cruelty, but this is very unfair and insulting to the beasts; a beast can never be so cruel as a man, so ingeniously, so artistically cruel.  A tiger merely gnaws and tears to pieces, that’s all he knows.  It would never occur to him to nail men’s ears to a fence and leave them like that overnight, even if he were able to do it ….The most direct and spontaneous pastime we have is the infliction of pain by beating.

Well, that attitude is not completely dead in Russia.  Ivan is objecting to the unfairness, and the random nature, of cruelty, and he comes up with a phrase that so moved Manning Clark.

Surely the reason for my suffering was not that I as well as my evil deeds and sufferings may serve as manure for some future harmony for someone else.  I want to see with my own eyes the lion lay down with the lamb and the murdered man rise up and embrace his murderer.  I want to be there when everyone suddenly finds out what it has all been for.  All religions on earth are based on this desire, and I am a believer…I don’t want any more suffering.  And if the sufferings of children go to make up the sum of sufferings which is necessary for the purchase of truth, then I say beforehand that the entire truth is not worth such a price….Too high a price has been placed on harmony.  We cannot afford to pay so much for admission.  And therefore I hasten to return my ticket….It’s not God that I do not accept, Alyosha.  I merely most respectfully return him the ticket.

That is very strong stuff.  There may be answers, but Alyosha doesn’t have them.

‘This is rebellion,’ Alyosha said softly, dropping his eyes.

‘Rebellion?  I’m sorry to hear you say that, said Ivan with feeling.  One cannot live by rebellion, and I want to live.  Tell me straight out, I call on you –imagine me: imagine that you yourself are building the edifice of human destiny with the object of making people happy in the finale, of giving them peace and rest at last, but for that you must inevitably and unavoidably torture just one tiny creature, that same child who was beating her chest with her little fist, and raise your edifice on the foundation of her unrequited tears – would you agree to be the architect on such conditions?  Tell me the truth.’

‘No I wouldn’t said Alyosha softly.

Nor would any other sane person.  So much for rebellion – now for the Grand Inquisitor.  Ivan said he wrote a long poem about this functionary.  He had set it in Spain during the Inquisition.

The Cardinal is very old, but in fine fettle.  He has just supervised the public execution by fire of nearly one hundred heretics.  But his peace is disturbed by the arrival of a holy man.  ‘In his infinite mercy he once more walked among men in the semblance of man as he had walked among men for thirty-three years fifteen centuries ago.’  The crowd loves him.  A mourning mother says ‘If it is you, raise my child from the dead.’  The only words he utters are in Aramaic, ‘Talitha cumi’ – ‘and the damsel arose’.  And she does, and looks round with ‘her smiling wide-open eyes.’  The crowd looks on in wonder, but the eyes of the Cardinal ‘flash with ominous fire.’

He knits his grey, beetling brows….and stretches forth his finger and commands the guards to seize HIM.  And so great is his power and so accustomed are the people to obey him, so humble and submissive are they to his will, that the crowd immediately makes way for the guards, and amid the death-like hush that descends upon the square, they lay hands upon HIM, and lead him away.

That sounds like the Saint Matthew Passion – doubtless, deliberately so.  The Cardinal visits the prisoner in the cells.  ‘It’s you, isn’t it?’

Do not answer, be silent.  And, indeed, what can you say?  I know too well what you would say.  Besides, you have no right to add anything to what you have already said in the days of old.  Why then did you come to meddle with us?  For you have come to meddle with us and you know it……Tomorrow, I shall condemn you and burn you at the stake as the vilest of heretics, and the same people who today kissed your feet will at the first sign from me rush to take up the coals at your stake tomorrow.

Ivan, brought up in Orthodoxy, explains that that in his view the fundamental feature of Roman Catholicism is that ‘Everything has been handed over by you to the Pope, and therefore everything now is in the Pope’s hands, and there’s no need for you to come at all now – at any rate, do not interfere for the time being’.  Ivan thinks this is the Jesuit view.  The Cardinal went on.

It is only now – during the Inquisition – that it has become possible for the first time to think of the happiness of men.  Man is born a rebel, and can rebels be happy?  You were warned.  There has been no lack of warnings, but you did not heed them.  You rejected the only way by which men might be made happy, but fortunately in departing, you handed on the work to us.

Then comes the bell-ringer.

You want to go into the world and you are going empty-handed, with some promise of freedom, which men in their simplicity and innate lawlessness cannot even comprehend – for nothing has ever been more unendurable to man and to human society than freedom!….Man, so long as he remains free has no more constant and agonising anxiety than to find as quickly as possible someone to worship.  But man seeks to worship only what is incontestable, so incontestable indeed, that all men at once agree to worship it all together….It is this need for universal worship that is the chief torment of every man individually and of mankind as a whole from the beginning of time…

Ivan comes again to the problem of freedom which is discussed in conjunction with the three temptations of Christ.  It’s as if the Church has succumbed to the third temptation and assumed all power over the world.

There is nothing more alluring to man than this freedom of conscience, but there is nothing more tormenting either.  And instead of firm foundations for appeasing man’s conscience once and for all, you chose everything that was exceptional, enigmatic, and vague, you chose everything that was beyond the strength of men, acting consequently, as though you did not love them at all…You wanted man’s free love so that he would follow you freely, fascinated and captivated by you…..But did it never occur to you that he would at last reject and call in question even your image and your truth, if he were weighed down by so fearful a burden as freedom of choice?….You did not know that as soon as man rejected miracles, he would at once reject God as well, for what man seeks is not so much God as miracles.  And since man is unable to carry on without a miracle, he will create new miracles for himself, miracles of his own, and will worship the miracle of the witch-doctor and the sorcery of the wise woman, rebel, heretic, and infidel though he is a hundred times over…

How will it end?

But the flock will be gathered together again and will submit once more, and this time it will be for good.  Then we shall give them quiet humble happiness, the happiness of weak creatures, such as they were created.  We shall at last persuade them not to be proud….We shall prove to them that they are weak, that they are mere pitiable children, but that the happiness of a child is the sweetest of all ….The most tormenting secrets of their conscience – everything, everything they shall bring to us, and we shall give them our decision, because it will relieve them of their great anxiety and of their present terrible torments of coming to a free decision themselves.  And they will all be happy, all the millions of creatures, except the hundred thousand who rule over them.  For we alone, we who guard the mystery, we alone shall be unhappy.

The Grand Inquisitor does not believe in God.

A swipe at one church by an adherent of another?  A reprise of the fascism latent in Plato’s Republic?  A bitter denunciation of the Russian hunger for dominance by a strong man like Putin?  A frightful preview of 1984?  It could be some of all of those things, but it is writing of shocking power that gives slashing insights into the human condition.  It is for just that reason that we go to the great writers.  They may not have the answer, but they ask the big questions.

Here and there – Dignity in Kant and Shakespeare

In any community, two questions always arise.  How should I treat my neighbour?  (Or, and this question may evoke the same answer, how would I like my neighbour to treat me?) And, are my neighbour and I equal in our rights?

The German philosopher Immanuel Kant wrote a great deal and most of it is beyond the understanding of most of the rest of us.  He did however have something to say about dignity or worth or value that we can follow.  For some people – including me – what he says can be taken as offering an axiom on which we might base our view of the moral world.

Here is part of the Groundwork of the Metaphysics of Morals.

….all rational beings stand under the law that each of them is to treat himself and all others never merely as means but always at the same time as ends in themselves….In the kingdom of ends, everything has a price or dignity.  What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity.

What is related to general human inclinations and needs has a market price; that which, even without presupposing a need, conforms with a certain taste, that is with a delight in the mere purposeless play of our mental powers, has a fancy price; but that which constitutes the condition under which alone something can be an end in itself has not really a relative worth, that is, a price, but an inner worth, that is dignity.

Now morality is the condition under which alone a rational being can be an end in itself, since only through this is it possible to be a lawgiving member in the kingdom of ends.  Hence, morality, and humanity insofar as it is capable of humanity, is that alone which has dignity.  Skill and diligence in work have a market place; wit, lively imagination and humour have a fancy price; on the other hand, fidelity of promises and benevolence from basic principles (not from instinct) have an inner worth.

In another paper (On the Common Saying: That May be Correct in Theory), Kant said this about equality:

Whoever is subject to laws is subject within a state and is thus subjected to coercive right equally with all other members of the commonwealth…in terms of right…they are nevertheless equal to one another as subjects; for no one of them can coerce any other except through public law….From this idea of the equality of human beings as subjects within a commonwealth there also issues the following formula: Every member of a commonwealth  must be allowed  to attain any level of rank.to which his talent, industry or luck can take him….

(This was written after the fall of the Bastille, but before the Terror became known to the world.)

In another text (Critique of Judgment, par.60), Kant said that humanity signifies the universal feeling of sympathy – although we might feel a little more at home with a reference to a capacity for a kind of sympathy that may or may not be found in gorillas.

Shakespeare touched on the issue of dignity in one of his plays that I find very heavy going, Troilus and Cressida.  Paris the Trojan has eloped with Helen the Greek wife of a Greek king.  This affront to Greek honour leads them to declare war against Troy.  Not surprisingly, at least some Trojans ask whether this insult, if that is what it was, warrants men being killed in their thousands. 

Helen and Paris have not had a good press.  (You may fairly ask who of this motley warrants one?)  A Greek soldier says of Helen:

For every false drop in her bawdy veins

A Grecian’s life hath sunk; for every scruple

Of her contaminated carrion weight

A Trojan hath been slain.  (4.1.69-72)

Hector may be the only decent person on the stage – the rest are a parade of human frailty or nastiness – and Paris and Troilus are among the worst.  Hector lines Paris up with a shirt-front:

… ..or is your blood

So madly hot that no discourse of reason

Nor fear of bad success in a bad cause

Can qualify the same? (2.2.115 – 118)

(Fear of ‘bad success in a bad cause’ might be said of us in every war since 1945.) 

Ulysses is even more damning about Cressida.

…….Her wanton spirits look out

At every joint and motive of her body….

For sluttish spoils of opportunity

And daughters of the game.  (4.5.56-63)

(The last line has its modern reading.)

But the passage we are interested in is as follows.

HECTOR

Brother, she is not worth what she doth cost
The holding.

TROILUS

What is aught, but as ’tis valued?

HECTOR

But value dwells not in particular will;
It holds his estimate and dignity
As well wherein ’tis precious of itself
As in the prizer.   (2.2.51ff)

So, Troilus has the view that value, like beauty, is in the eye of the beholder – ‘the prizer’ (the person making the appraisal).  Value is whatever the market will bear.  But Hector says that the dignity of a person ‘is precious of itself.’  Some might say that Troilus is on the side of relativism, the moral cancer of our time – there are no intrinsic values, only those that are attributed by others.  But for Hector human dignity is inherent in a human being – it comes with humanity.  This was the view of Kant.

Hector says that some truths are beyond matters of opinion.

There is a law in each well-order’d nation
To curb those raging appetites that are
Most disobedient and refractory.
If Helen then be wife to Sparta’s king,
As it is known she is, these moral laws
Of nature and of nations speak aloud
To have her back return’d: thus to persist
In doing wrong extenuates not wrong,
But makes it much more heavy. Hector’s opinion
Is this in way of truth….(2.2.180-186)

But then Hector flips and says that he will just go with the flow – and that is part of the reason this play is so hard to grapple with.

The notion of dignity inherent in humanity underlies the self-evident truths of Jefferson in the Declaration of Independence, and the first article of the Rights of Man: ‘Men are born and remain free and equal in rights’.  If you look at a random cross-section of world slayers like Julius Caesar, Charlemagne, Henry VIII, Calvin, Napoleon Bonaparte, Lenin, or Donald Trump, you see immediately how important are the views of Kant and Hector.  These people have no regard at all for the dignity of other people.  For them, other people exist only as means to an end, and in acting that way they reject out of hand the rationale of Kant for his primary rule.  And of course their celebration of their own egos leaves any conception of equality as illusory as a thing writ on water.  For any of them, you would be talking into air to offer them the plea that a Danish prince offered on behalf of travelling players – to ‘use them after your own honor and dignity’ (Hamlet, 2.2.54—542) – that is not what they were built for.

For others, this assertion of human dignity from two of our most famous minds is a real comforter in a time of need – especially at a time of epidemic when some people, who appear to me to be close to being morally insane, think that it might be a good idea to put a dollar value on my human life.

Passing Bull 240 – After/Because

A well-known fallacy has a Latin tag- Post hoc, ergo propter hoc.  ‘After something and therefore because of it’.  If I am driving under the influence, it does not follow that any accident I have is caused by my condition.  I may have stopped very appropriately before someone ran into the back of me.  Some cities have seen massive protests.  It does not follow that any spike in the virus follows from that fact.  You can see how bad the reasoning is – the White House used it to justify a Trump rally.

One newspaper has questioned whether the High Court allowed due process to Dyson Heydon.  One academic was concerned that the Chief Justice accepted findings before they were tested in court.  That is plain silly.  It gets worse.  The academic is reported to have said ‘this could give rise to a perception of bias if the Heydon affair ever went to the High Court.’

An article by a legal reporter began:

The inquiry that found Dyson Heydon sexually harassed female associates reached its decision without hearing one word from the former High Court judge.

That would be an obvious failure of due process – unless:

While Dr Thom had invited Mr Heydon to provide his side of the affair, he is believed to have declined that invitation out of concern that the allegations against him could not be tested, but that anything he said could be used against him in further proceedings.

It is preposterous to envisage a senior professional person refuse to answer a complaint of abuse of power by some rag tag version of the Fifth.  If Mr Heydon did refuse to answer his accusers, people will assess his conduct accordingly.

It may or may not assist people to understand the claims against Mr Heydon if I set out the terms of some posts in 2014 and 2015.

Dyson and Rupert again

Yes, I hate it, too, when someone says that I told you so, so I can only ask forgiveness for setting out below parts of a post about Dyson Heydon and Rupert Murdoch in December 2014.  Eighteen months and, say, $40 million or so ago.

Dyson Heydon has now in my opinion made a fool of himself with remarks about two Labor leaders.

The dinner address farce does not prove the point – it just illustrates it.  If you want to know the full extent of the poison for our judges, just look at the beginning of the piece on the front page of The Australian by one of Abbott’s closest supporters, Dennis Shanahan:

Tony Abbott’s sharpest weapon against Bill Shorten has been blunted.  Any findings of the trade union royal commission which reflect badly on the Opposition Leader’s behaviour while running the AWU have been tainted.

If you missed the point, you have the headline on page 6:

Bad judgment leaves the PM shooting blanks.

The sheer vulgarity and nastiness of it all defies belief.  And I cannot see why there is all the fuss about a fundraiser.  Is it  not enough that he is accepting invitations from the political party that got him to shaft the political party opposite them? The Attorney as usual got it all wrong.  He has some experience here.  He presented the address in 2010.  And billed us $1000 expenses for the privilege.

So what next? 

Easy.

Bomb  more Muslems – bomb Syria.  That should take us out of ourselves. 

(If you want to know what the PM thinks about foreign policy, go to Greg Sheridan:

The PM has a strong inclination to confront and defeat Islamic State, but he also has a deeper strategic purpose.  That is to stiffen the resolve of the Americans.  This is a common strategic view among Western leaders, that the Americans need to do more and be more decisive, but that they cannot be easily persuaded to do more.

So, that is what our leader seeks to achieve by bombing Muslims – to put some steel into Uncle Sam.  This is pure Alice in Wonderland.)

And now we see another reason why Heydon should not have got involved in this political hit job.  He might get sued.  While conducting various proceedings over nearly thirty years, I have been sued in most courts in the land – I am not talking of appeals but of being taken to court to get my process stopped – and it is water off a duck’s back.  But I have never had the backing of the Act of Settlement, and I have never worn ermine.  If I go down, I do so alone. 

That is not the case here.  The government is still trumpeting Heydon’s High Court credentials.  Well, there are plenty out there with standing to sue him.  For all I know, Heydon presently has before him a letter alleging bias and asking for an undertaking that proceedings before the Commission will cease until the issue has been determined by the courts – including, perhaps, the High Court.  Heydon is one name that you would not want mention up there just now.

The nature of the problem, that is way over the pay level of this government, is further discussed below.

When Dyson met Rupert – and the High Court of Australia beheld the gutter

(29/12/2014 / GEOFFREY GIBSONEDIT)

It is not likely that Mr John Setka of the CFMEU has ever felt the need to tell a journalist that that he has often felt the need to express his dissent in the minutes of the union because he did not like the writing style of the other organizers and officers of the union – that he does, for example, have a real aversion to split infinitives, dangling participles, or a perceptible but unwarranted variation in the number of a noun that some others tolerate to avoid treading on the toes of those who get exercised over what is called sexism. These are some of the things that Mr Dyson Heydon, QC discussed on the ABC when reflecting on his time as a justice of the High Court of Australia. That court is our highest court, and by and large its members have served us well. It is a reputation devoutly to be preserved.

There was always going to be a problem in Mr Heydon continuing to do just that when he accepted the invitation of the current Prime Minister to go down into the world of Mr Setka and the phantoms of the enemies of Julia Gillard, the outgoing PM, and our first woman PM. Julia Gillard had been targeted by members of the press, especially the Murdoch press, about allegations of what had passed between her as a solicitor and a boyfriend twenty years ago. Yes, you heard – twenty years ago; more than three times longer than the standard limitation period fixed by the law for permitting civil claims to be raised.

The employees of Mr Murdoch, and their unattractive political sponsors like Senators Abetz and Brandis, to this day put their hands on their heart and say that they have pursued this issue in the public interest because what Julia Gillard did twenty years ago reflects on her fitness to hold office as Prime Minister. Well, if they are prepared to say that with a straight face, they will also be the shrillest in objecting to any suggestion that this kind of personal denigration could only have been wrought on a woman. However that may be, the attack on Julia Gillard, especially after she had lost office, appeared to many Australians to reach new lows, even by our standards, of partisan political bitchiness and moral vacuity in Canberra.

The CFMEU is what is called a militant trade union. It has succeeded to the position of the BLF as the Aunt Sally of choice for hardened and unlovely champions of the class war like Senators Abetz and Brandis. The public inquiry headed by Mr Heydon, and named after him, was predictably branded as a witch hunt, and we have no problem in imagining what the reprisals will be like, but it was always hard to see how anyone like Mr Heydon could get down into this gutter and come out with a reputation enhanced, or even preserved.

Mr Heydon has impeccable credentials as a member of the Establishment, or at least as close as Sydney can get to any such thing. He was educated at Shore School before going on to win the University Medal at Sydney University. He was a Rhodes Scholar – well the whole nation is coming to terms with the fool’s gold that that distinction may hide – but his winning the Vinerian Prize at Oxford is a good sign of a very bright and concentrated academic mind, if not a driven one.

Whether that can translate into good judgment and common sense is another question, especially when those early academic prizes are followed by the active pursuit of an academic career. Mr Heydon was a Fellow of Keble College Oxford before becoming a professor in Sydney and the Dean of the Law School. He is the author of works in the wantonly superior and acerbic style that some elevated lawyers in Sydney appear to find satisfying. He never sat as a trial judge, being appointed straight to a court of appeal and then to the High Court. I do not know if he ever appeared in a criminal trial or before a jury.

Mr Heydon was happy to tell those listening to the ABC that he wears as a badge of honour the title of conservative black letter lawyer. He acknowledged that others regard that term as an insult. Mr Heydon is not therefore averse to taking sides, and being seen to do so. South of the Murray, the Sydney black letter lawyers, the ‘whisperers’, are thought to have tickets on themselves and to be too brittle for their own good. Some of the sniping that they engage in looks downright bitchy, and you can see it in print, and in works that assert claims to scholarly merit. They can engage in behaviour that looks anything but conservative.

…….

By the time his time on High Court had expired, Justice Heydon had become a compulsive dissenter, and he could express his views in language that was at best curious. In the case about packaging cigarettes, his Honour said:

After a ‘great’ constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s. 51 (xxxi) , may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.

Putting to one side the imputation to a polity of a visceral emotion, which would have entertained medieval Schoolmen, is this what we expect from the justices in our ultimate constitutional court – to speak of the hatred of the Commonwealth of a part of the Commonwealth Constitution? What do these people do to each other up there is that bleak suburban fastness of Canberra? What sort of masonry lies buried here? Where is the calm repose of the dispassionate jurist?

Mr Heydon was appointed to the High Court by Prime Minister John Howard, who is the mentor of the Prime Minister who appointed him to conduct this royal commission. This could be called keeping it in the family, although few Australians will reflect with equanimity on the suggestion of Mr Abbott that he is the political love child of John Howard and Bronwyn Bishop.

The government was aware that its bona fides were in issue – to put it softly – in this royal commission. They had to find a safe pair of hands, a man beyond reproach. How could you do better and more safely than with a former High Court judge who glories in his black letter conservatism? All that would have been enough for a government that puts slogans where thinking should be, and which puts political advantage over principle.

Well, it was never likely that Mr Heydon would, like Sir Garfield Barwick, be described as the hit man of the Establishment, but there were obvious difficulties in his appointment to this political task. With the best will in the world, Mr Heydon would have no idea of the world of people like Mr John Setka or Ms Kathy Jackson of the Health Services Union. You do not learn about them at Shore or Keble College, Oxford. You might as well ask Mr Setka to give advice to Mr Heydon’s club in Sydney, the Australian Club, on the etiquette surrounding the inviting of ladies to lunch at that club. (You don’t.) It is not as if Mr Heydon has spent time knocking back beers at a South Sydney boozer talking to people with pictures on their arms and with a bit of previous in their cupboards about the contribution of the blackfellas to the latest flag of the Bunnies. This is one factor in appearances when appearances count. It rather savours of two of the chaps from Oxford getting together to advance the interests of those who share their view of the world over the interests of those who are not so well off. Put differently, what member of the CFMEU or any other union target could give a bugger what somebody like Dyson Heydon, QC said about them? This is not just class that we speak of – it is caste.

But it was not just the sheltered, cloistered upbringing of Mr Heydon that made this appointment inappropriate – it was his lack of experience as a trial judge. Royal commissioners are not judges and they do not exercise a judicial function. They are part-time public servants conducting an inquiry and they are anything but independent of those who give them the job. But it is useful in many contentious inquiries to appoint someone who has judicial or at least forensic experience in determining issues of fact arising from conflicts between witnesses, and to do so with a person who is as distant from the fray as possible. Neither of those ends was achieved here.

Nor would Mr Heydon have the faintest idea of what might be involved in running the office of a solicitor, which was at the heart of the query about Julia Gillard and her boyfriend. Had Mr Heydon ever practised as a solicitor, it is inherently unlikely that a firm of which he was a member would have acted for a union, let alone one as punchy as the CFMEU. But even if he had acted as a solicitor for the big end of town, he would have been able to smile in a more informed way on some of the more banal suggestions about the conduct of Julia Gillard as a solicitor. They were and are being made by people who do not know what they are talking about.

When judges are sitting in court, they observe a fiction that says that they are not affected by what they read in newspapers, but it must have been apparent to Mr Heydon that the job he was being asked to do had more wrinkles than my aging kelpy cross. Most Australian lawyers know the kind of juristic mayhem that can flow when the industrial and criminal laws combine. There are two words that cause veils to descend over people’s eyes when they are mentioned in an Australian court – one is tax; the other is industrial.

The BLF kept fighting lawyers (including me) in feed for more than a generation. A rogue outfit like the BLF pushes the legal system beyond its snapping point. Judges find themselves saying things that they instantly regret, but they feel provoked and pushed. The BLF provoked a Labor government to pass a law of proscription and annihilation that would have made Adolf Hitler blush. But what appeared to be the case to someone who had got to act on both sides of a long running kind of civil war was that the more that governments lashed out at those in charge of these outfits, the more thoroughly were their members locked in behind them. You get a similar reaction if you say something rude about the Collingwood Football Club. Class and faith (bigotry) are as thick as blood.

And was there not something just downright bloody unseemly about getting a former High Court judge to inquire into the conduct of a former Prime Minister as a solicitor more than twenty years ago, and after her time in office had expired? Is this really all that the people of Australia can expect from those who claim the right to run this bloody country?

……

A royal commission, as the name suggests, is a manifestation of royal power. Her Majesty, through her advisers and officers, good monarchists all down here, is proceeding against her Australian subjects, named or otherwise, to achieve a political objective. The Domesday Book was a good case. The Queen is in a way going against or sending against some of her subjects. All of her ancestors have promised not to do that ‘except by lawful judgment of his peers or by the law of the land’ since clause 39 appeared in Magna Carta in 1215, but ancient rights must give way to current grubby political imperatives.

So, the Vinerian Scholar entered into this royal commission and into territory that would be less familiar to him than Mars – or the home of the South Sydney bunnies. He also came with a propensity to pedantic dissent from the mainstream, and a capacity to say things that put your teeth on edge. He looks like an unsettling nerd out of sync with the rest of us, a flat white made flesh, the lone Ranger sans Tonto, more of a protected species than a living national treasure.

And the main attack failed; the pursuit of Julia Gillard has been finally pronounced to have been what all but the bent or demented always believed it to have been. Mr Heydon said:

Findings are made that Julia Gillard did not commit any crime and was not aware of any criminality on the part of these union officials.

There was a time when a good trial judge would have just stopped there because he or she had just disposed of the relevant issue. But Mr Heydon went on to opine that part of her legal work ‘must be regarded as a lapse of professional judgment, but nothing more sinister.’

The introduction of the degree of comparison might suggest that in the opinion of the author, the error of judgment was in itself ‘sinister’. If you look that word up, you will get ‘prejudicial, unfavourable, darkly suspicious.’ Mr Heydon also used the lesser epithet of ‘questionable.’ Could it be that this long quest would just end with a question? How would it have gone down if a lesser lawyer, say a solicitor, had dared to question, en passant, Mr Heydon’s professional judgment as a barrister or judge?

……..

Now all that kind of stuff is the staple of what passes for politics and journalism in this country – a less than elevating rough and ready blow by blow account of a shit fight. But that ugliness has been fed here by the lack of experience of this commissioner in trying controverted issues of fact. Mr Heydon is quoted in the press as saying:

Normally cross-examination of a non-expert witness is a contest between a professional expert who is familiar with every detail of the case and a relatively unwary member of the public who is not. But Julia Gillard had twenty years’ knowledge of the case and immense determination to vindicate her position. She was, so to speak, a professional expert on her own case.

Two reports in The Age quoted the same words, as if there was something wrong about them. There was. Mr Heydon, that is not how trial courts work. It may look that way to those in the proverbial ivory tower of Keble College Oxford or the High Court of Australia, but it is not what happens day to grinding day in any court in the land. The mystique of cross-examination is grossly over-rated, and as an artful technique it is nearly dead. You grope your way hoping not to get smacked or ambushed. The days when you are ‘familiar with every detail of the case’ do not happen often, if at all. If you have to listen to others do it, you try to help them reach the point, and sometimes just watch as people go over the precipice; you have to help them reach the point, because other litigants are waiting their chance to get this job done so that they can get on with their lives. Sir John Starke was the leading cross-examiner of his day, and he told me, more than once, that he always felt relief if when he sat down he was no worse off than when he started.

All that, apparently, has not been the experience of Mr Heydon, QC. We are not talking about what some call the sporting theory of justice. Rather, Mr Heydon looks on cross-examination as a kind of dressage contest where points are awarded for form, deportment, and style. The problem with treating the witness box as the scene of sport or even a contest is that the white hats may not do as well as the black hats. The black hats normally have the money behind them.

What Mr Heydon appears to be talking about is not cross-examination but the ghastly ersatz routine that is killing it. Counsel charge a fortune to read anything they can lay their hands on. They then bring their computer or wheelbarrow to court, smile wanly at the witness, and say; ‘Now, Sunshine, you and I are going on a little journey.’ They then proceed to circumnavigate the world, mostly to no effect, except to enhance their bank balance. Documents are flagged or tabbed to act as prompts or cues, and you neither see nor hear any real cross-examination at all. The process is tailor-made for the novice at one end and the truth-dodger and game-player at the other. We saw it all on live TV at the Leveson Inquiry. It was a boring as it was fruitless. I wonder if in truth Mr Heydon has ever seen a witness cross-examined at all.

I have tried to set out the reasons why I do not think that Mr Heydon was the right lawyer to conduct this inquiry, quite apart from his previous position as a High Court judge. He is too remote from the world and he has not had enough experience in resolving issues at first hand. These reasons were apparent to those advising the government, but they nevertheless went ahead, and Mr Heydon, perhaps from a misplaced sense of noblesse oblige, acceded to their request. It is difficult to avoid the inference that the government chose to go ahead with the appointment in spite of all the difficulties because they were set upon giving to their inquiry the gloss of the seal – the cachet, if you prefer – of the High Court of Australia – and there you have the whole bloody problem. We have drawn the courts, and our best one, into the political gutter.

A distinguished English judge was the late Lord Devlin. (He was also considered to be the Rolls Royce of trial judges, and it was said that he retired early because he was sick of the dry sodality of appellate work.) Lord Devlin once made a remark to the effect that English governments forever showed the very high regard that they and the English people had for their judges by their so frequent attempts to impose upon the judges to help them out of a political spot by giving their name and office to the conduct of a sensitive public inquiry*. This is why sensible and decent courts forbid that practice. That ban should extend to retired judges because the danger of communal reputational damage is just the same.

It would be tart to say that mistakes of professional judgment have been made here, and of a quite sinister kind, but is not the ordinary Australian, perhaps if you like ‘the relatively unwary member of the public’, not just a little ashamed at what is going on here? An Australian, as it happens a woman, has reached the highest form of electoral office that this nation can bestow; she is then made the subject of a sustained scheme by one of the world’s most powerful press head-kickers to blacken her name and run her out of office; she then has to face the indignity of being subjected to a public trial and humiliation at the instance of political opponents whose want of principle and character, and commitment to our basic political tenets, are becoming daily more apparent; and then their nominated inquisitor acquits her of the charges gainst her, but just gives her a backhander to go on with? Why would any sane Australian tell their children or grandchildren to do anything other than stay as far away from that cess-pit as possible? What can we say to these people, apart from what that now famous Boston attorney said to Senator McCarthy: ‘Have you no sense of decency, Sir, at long last?’

What did we Australians do to deserve this smutty little fiasco; more signally, what have we done to deserve these truly awful people who so truly believe that they are our ruling class?

*The actual words of Lord Devlin (The Judge, OUP, 1979, 9) were: ‘In our own country, the reputation of the judiciary for independence and impartiality is a national asset of such richness that one government after another tries to plunder it. This is a danger about which the judiciary itself has been too easy-going.’

Here and there -Dombey and Son again

Dombey and Son is a novel about a man who thinks that money and standing are all, so that he murders affection and attachment.  If you have a mortal dread of morning TV – and what sane patron of a public hospital waiting room does not? – you will instantly recognise the bad guy in this novel.  His teeth fairly gleam at you.

Something too deep for a partner, and much too deep for an adversary, Mr Carker the Manager sat in the rays of the sun that came down slanting on him through the skylight, playing his game alone.

And although it is not among the instincts wild or domestic of the cat tribe to play at cards, feline from sole to crown was Mr Carker the Manager, as he basked in the strip of summer-light and warmth that shone upon his table and the ground as if they were a crooked dial-plate, and himself the only figure on it. With hair and whiskers deficient in colour at all times, but feebler than common in the rich sunshine, and more like the coat of a sandy tortoise-shell cat; with long nails, nicely pared and sharpened; with a natural antipathy to any speck of dirt, which made him pause sometimes and watch the falling motes of dust, and rub them off his smooth white hand or glossy linen: Mr Carker the Manager, sly of manner, sharp of tooth, soft of foot, watchful of eye, oily of tongue, cruel of heart, nice of habit, sat with a dainty steadfastness and patience at his work, as if he were waiting at a mouse’s hole.

Elsewhere we get:

Mr Carker bowed his head, and rising from the table, and standing thoughtfully before the fire, with his hand to his smooth chin, looked down at Mr Dombey with the evil slyness of some monkish carving, half human and half brute; or like a leering face on an old water-spout. Mr Dombey, recovering his composure by degrees, or cooling his emotion in his sense of having taken a high position, sat gradually stiffening again, and looking at the parrot as she swung to and fro, in her great wedding ring.

Carker is one character who comes up against the ‘towering supremacy’ of Dombey Senior.  The other is Edith, his second wife.  She is a perfect amalgam of Nora Helmer and Hedda Gabler.  She is ‘imperious and proud’ and ‘disdainful and defiant’ – and alarmingly modern.  Her tragic relationship with Dombey makes The Forsyte Saga look a little prosaic and there is a lot more edge to her than we are accustomed with this author.

To the moody, stubborn, sullen demon, that possessed him, his wife opposed her different pride in its full force. They never could have led a happy life together; but nothing could have made it more unhappy, than the wilful and determined warfare of such elements. His pride was set upon maintaining his magnificent supremacy, and forcing recognition of it from her. She would have been racked to death, and turned but her haughty glance of calm inflexible disdain upon him, to the last. Such recognition from Edith! He little knew through what a storm and struggle she had been driven onward to the crowning honour of his hand. He little knew how much she thought she had conceded, when she suffered him to call her wife.

Mr Dombey was resolved to show her that he was supreme. There must be no will but his. Proud he desired that she should be, but she must be proud for, not against him. As he sat alone, hardening, he would often hear her go out and come home, treading the round of London life with no more heed of his liking or disliking, pleasure or displeasure, than if he had been her groom. Her cold supreme indifference—his own unquestioned attribute usurped—stung him more than any other kind of treatment could have done; and he determined to bend her to his magnificent and stately will.

He had been long communing with these thoughts, when one night he sought her in her own apartment, after he had heard her return home late. She was alone, in her brilliant dress, and had but that moment come from her mother’s room. Her face was melancholy and pensive, when he came upon her; but it marked him at the door; for, glancing at the mirror before it, he saw immediately, as in a picture-frame, the knitted brow, and darkened beauty that he knew so well.

‘Mrs Dombey,’ he said, entering, ‘I must beg leave to have a few words with you.’

‘To-morrow,’ she replied.

‘There is no time like the present, Madam,’ he returned. ‘You mistake your position. I am used to choose my own times; not to have them chosen for me. I think you scarcely understand who and what I am, Mrs Dombey.’

‘I think,’ she answered, ‘that I understand you very well.’

She looked upon him as she said so, and folding her white arms, sparkling with gold and gems, upon her swelling breast, turned away her eyes.

If she had been less handsome, and less stately in her cold composure, she might not have had the power of impressing him with the sense of disadvantage that penetrated through his utmost pride. But she had the power, and he felt it keenly

With the daughter, Florence, the atmosphere is that of King Lear.

But this is sure; he does not think that he has lost her. He has no suspicion of the truth. He has lived too long shut up in his towering supremacy, seeing her, a patient gentle creature, in the path below it, to have any fear of that. Shaken as he is by his disgrace, he is not yet humbled to the level earth. The root is broad and deep, and in the course of years its fibres have spread out and gathered nourishment from everything around it. The tree is struck, but not down.

Though he hide the world within him from the world without—which he believes has but one purpose for the time, and that, to watch him eagerly wherever he goes—he cannot hide those rebel traces of it, which escape in hollow eyes and cheeks, a haggard forehead, and a moody, brooding air. Impenetrable as before, he is still an altered man; and, proud as ever, he is humbled, or those marks would not be there.

You do not expect to find in Dickens a husband striking his wife in an attempt to restore dominance, but it happens here and it comes as a shock when it does.

But one thing is clear.  Dickens knew dogs and loved them.  If I get another dog, I will call him Diogenes.

But Florence bloomed there, like the king’s fair daughter in the story. Her books, her music, and her daily teachers, were her only real companions, Susan Nipper and Diogenes excepted: of whom the former, in her attendance on the studies of her young mistress, began to grow quite learned herself, while the latter, softened possibly by the same influences, would lay his head upon the window-ledge, and placidly open and shut his eyes upon the street, all through a summer morning; sometimes pricking up his head to look with great significance after some noisy dog in a cart, who was barking his way along, and sometimes, with an exasperated and unaccountable recollection of his supposed enemy in the neighbourhood, rushing to the door, whence, after a deafening disturbance, he would come jogging back with a ridiculous complacency that belonged to him, and lay his jaw upon the window-ledge again, with the air of a dog who had done a public service.

Only someone who knows dogs could have written that.