V

Philosophy does not have much to say for itself now.  I studied it for three years at Melbourne University, and I have since topped that up with summer courses at Oxford – and a lot of reading and writing.  It is a very good aid as a bullshit meter.  I am as interested in how philosophy helped Spinoza, Hume, Kant and Wittgenstein in their lives – and deaths – as in what they wrote.  (I wrote a book about them.)  And their lives are chock full of interest for me.  The lives of great people always are – biography is my chosen entrance into different fields of learning or experience – including the law.  We often wonder if philosophy might affect how other people act.  G E Moore was both respected and loved in England.  People like Russell and Keynes found his Principia Ethica to be a source of instruction on how to live.  Moore said that ‘verbal questions are properly left to the writers of dictionaries and other persons interested in literature; philosophy….has no concern with them.’  I had thought that English philosophy concerned itself with the meaning of words – and little else.  But Moore said that ‘good is undefinable.’  ‘…good is good and that is the end of the matter….good is a simple notion; .just as you cannot, by any manner of means, explain to anyone who does not already know it know what yellow is, so you cannot explain what good is.’  How many other terms are as undefinable as this one?  ‘Bad’?  If I say that  a meat pie or a rendition of Nessun Dorma or an afternoon siesta is ‘good’, can I resist explaining myself by saying that ‘good is good and that is the end of the matter’?  I am confident that this difficulty is not mine alone.  It does make you wonder if philosophy is still of any use.

*

Hannah Arendt had a very powerful mind and insight.  She said:

You know that the left think I am conservative and the conservatives sometimes think I am left or a maverick or God knows what.  And I must say I couldn’t care less.  I don’t think the real questions of this century will get any kind of illumination from this kind of thing.

There should be more of it.  Not least in those Australian newspapers that claim to be conservative.

*

At a wine-tasting course, the tutor asked us to taste wines and then take the mask off the bottle, and pass it round so that we idiots could compare notes.  One night we got a rare highlight.  ‘Did you say that this was a distinctive Hunter Valley Semillon?’  ‘Yes.  It is something they do so very well.’  ‘That’s curious.’  ‘Why do you say that?’  ‘Because the wine-maker thought it was a chardonnay.’  That left us idiots to smirk.  Another tutor sported what looked to be an expensively rouged nose.  ‘What would you choose to eat with this wine?’  ‘Why do you have to eat anything with it?  ‘Madam – a woman after my own heart.’  I did some tastings at Oxford – for a fee that could not be characterised as inconsequential.  Two undergraduate types made the awful mistake of making assumptions about the experience of the group.  My class included a gorgeous psychiatrist from Paris, a London partner in a leading international accounting firm, and a Californian wine maker.  When we expressed a lack of enthusiasm for their samples, one of them told me I was looking for ‘new world’ wines.  ‘I could not give a hoot where it comes from as long as I can feel its strength on my palate.’  Or grumpy words to that effect.  I suspect that that response was new world too.

*

For about my first five years at the Bar, I tutored and then lectured in law at RMIT.  The lectures were I think at 8.30 am, which meant that I would have to make arrangements if I had to be at, say, Ferntree Gully or Eltham by 10 am.  For trials in the County Court or Supreme Court, you would see the client at least a day before the hearing.  The case may have been started a year or so beforehand, but it was remarkable how often that it was only after you had been with the client for an hour or so that you found out what the point of the case really was.  Appeals to the County Court were rehearings of what had occurred before a magistrate – or the justices of the peace.  You would ring your clerk to find out which judge you had drawn – and sometimes you would advise the client to abandon the appeal since the judge you had drawn was renowned in the worst way for threatening to increase the penalty – and then executing on that threat.  On my first trial in the Supreme Court, the client was seeking repayment of a loan made many years ago.  I saw the client, who lived on King Island, some time before the hearing.  He was a bit vague about why he had not pressed the defendant for repayment years ago.  The defendant was a notorious criminal.  He was on a bond that forbade him to come within forty miles of the GPO in Melbourne.  At about 10 am on the morning of the hearing, I got a long distance phone call from the client.  He was at home and not budging.  I could hear the fear over the phone.  Mr Justice Lush asked my opponent if he had heard the name of the defendant – it was Jack Twist – from another jurisdiction of the court.  I forgot that I had subpoenaed the police file on Twist – until a nice man sitting at the back of the court showed me a bundle that would have accommodated more than one wheelbarrow.  A large part of your education at the Bar comes to learning to live with a lottery, but this was a lesson in a different form of chance.  The law is nowhere near being a perfect instrument.  It does after all depend on us.

*

My preferred mode of cooking is by casserole – the big French blue Le Creuset bowl with lid or the ridiculously expensive red saucepan and matching pan-lid.  You just braise the ox-tail, shanks or osso bucco in a little olive oil, and then do the same with vegetables and herbs in red wine and stock and cook for about four hours in a slow oven.  The sauce should finish with a golden meniscus.  In each case, the meat should fall comfortably off the bone.  The smaller ox-tail portions make for a wonderful ragout to have with gnocchi.  I use a generous spread of herbs from the garden, and I have been known to add some Bonox to the ox-tail.  The last goes well with a big shiraz from say McLaren Vale, the Grampians or the Hunter Valley (say, the Cricket Pitch).  The Wolf was very fond of all those meals – he was guaranteed a portion to clean up with and a bone.  The red was not so good for him.

*

The law consists of trying to work out what may be said or done in the future by looking at what was said and done in the past.  My addiction to history, and legal and constitutional history in particular, is in part my response to that simple truth.  I want to be there when the springs of Runnymede meet those of the Campaspe.  I idolise legal historians like Maitland, and I bought a whole set of the Year Books – our first case books from the Middle Ages – so that I could better understand Holmes’ The Common Law – that I read on average once a year.  I bought a set of Holdsworth, and State Trials, and whole shelves of ancient classics and legal biography.  I have given that library to the Victorian Bar, and there are times when I miss the comfort of its tactile presence.  The Ford Lectures offer their own form repose.  Today, English Feudalism, 1066 to 1166 turned up.  Professor Stenton spoke with great authority.  (So did his wife.)  These lectures were given in Hilary Term, 1929, at Oxford.  You did not then feel the need to offer a translation of the Latin.  And you know you have a heavyweight when he queries Maitland, or in a footnote he says that a charter he quotes was ‘obviously written by an illiterate clerk, and its bad grammar suggests that the rarity of early baronial charters of this type is due chiefly to the rarity of competent draftsmen in the Norman period.’  Quite so.  And for those of us sloppy enough to miss the grammatical solecisms, we get ‘[sic]’ – thrice.  But what caught my eye was that ‘whatever else a baron may have been, he was his lord’s counsellor…the quality enabling a baron to play his distinctive part in the life of the honour [estate] to which he belonged was not derived from wealth or rank alone.  It can best be described in modern terms as a sense of responsibility, the power of giving a reasoned opinion for his lord’s guidance….It was essentially the power of using experience and elementary legal knowledge in the interest of a lord.’ 

*

Well, that may I suppose be a rosy view, but it does look like a very English rosy view – and of a time when the English were coming to grips with what Blackstone called ‘the rude shock of the Norman Invasion’ – another very English proposition.  But I find this learning to be a great comfort – especially at a time (October, 2020) in Washington, Westminster and Canberra, when standards of sense and decency have gone clean out the window – for the want of a ‘sense of responsibility, the power of giving a reasoned opinion for his lord’s guidance.’  This observation calls to mind two propositions about the story of our English ancestry – and that of our history that comes from the forests of Germany.  The first is that if you want to understand the history of England, look upon it as the story of a moderately sized and competent cricket club.  The second is that the core of the feudal structure was elemental – you look after me and I will look after you – one takes homage and gives allegiance.  That also precisely defines the modus operandi of the Mafia.  Just picture Marlon Brando stroking the cat when the victim of injustice not dealt with by the law asks the godfather to be his friend.  And, homage given, the godfather says that one day that debt will be called up.  Protection then was not a racket – it was a way of life.  Professor Stenton concluded his book with a discussion of a remarkable charter between two great magnates in about 1150.  One covenants ‘on his Christianity’ and ‘saving the faith due to his liege lord’ on the circumstances of when one ‘goes against’ another –  the magnates limited their own independence in order that anarchy might be avoided.  It was like Mafia dons ‘making the peace’ – as if there were no central government; BYO law and order.

A stream of consciousness of an ageing white male – and a member of an elite, to boot

Reminiscences of a barrister in autumn

II

The dreadful time I had with a cab on arriving at Prague led me to a much better moment on leaving it.  I wanted to go to Lidice.  This was the site of a Czech town that Hitler had ordered to be liquidated as a reprisal for the assassination of Heydrich.  I ascertained that it was about twenty minutes on the other side of the airport and I ordered a car to take me there and then drop me at the airport.  This was shortly after the liberation following the fall of the wall, and I was given a guide as well as a driver.  The guide was a youngish woman schoolteacher.  She was just right.  I now regret not having turned to guides more often.  As we moved through the traffic outside the city centre, I said that Prague was gorgeous – ‘a chocolate box city, as it appeared in the film Amadeus.’  ‘Perhaps – but you have not been to the industrial estates where the skinheads are killing the gypsies.’

*

Blake & Riggall, where I did my articles in 1969 before going back as a partner in 1986, was a very old and Establishment law firm, almost as old as the colony that started in Port Philip.  It was of course exclusively male and Protestant, and I would have been the first partner who had even thought of voting for the party of the workers.  It was in many ways Dickensian.  During the year of our articles, Bob Paterson and I shared a room in the basement beyond the area allocated to the Titles Office clerks.  They took on a very old man from the T O, Mr Adams.  I think Mr Adams wore wing collars, but he unsettled some staff by retiring to his cubicle at lunchtime and going to sleep at the top of his desk in a foetal position.  One crusty old partner was Hubert Black.  He upbraided an articled clerk in the lift one day.  ‘Are you a Catholic?’  ‘Good God, no.  Why do you ask?’  ‘Then what are you doing with a brief addressed to F X Costigan?’  Well, we never though those days would never end and they did.  And thank Heaven for that.

*

Once in my life, I think, I had cross examined to effect and I was about to apply the death blow.  It was a difficult case of a lady who had her problems trying to set aside transactions in favour of her accountant that we said he had obtained through undue influence.  The defendant had just contradicted himself on a statutory declaration about the ownership of a motor vehicle.  Then from nowhere, the judge stopped the cross-examination and said that he wanted to warn the witness – who was represented by counsel who had just about tossed the towel in – about self-incrimination.  I could not believe it.  This was a quirk of a judge – ‘Ginger’ Southwell – who was known to advance something like the ‘sporting theory’ of justice.  The cross-examination was stopped and we lost the case.  It still riles me.  I have never forgiven the judge for doing something for no other apparent reason than that he could.  The relevant words are ‘arbitrary’ and ‘capricious’.  They are a denial of fairness or justice.  The client was very shaky – that was, after all, part of her case.  I had asked her what she might do if she lost.  ‘I will kill myself.’  I was instructed by a law clerk from England, Jim Saunders, who was straight out of Rumpole, and who had a wonderful old world charm.  He said, under his clear bright eyes: ‘I shouldn’t say that if I were you – it puts an unfair onus on counsel.’  Jim used to say that in London counsel would offer him sherry or tea.  I said he could forget sherry, but I invested in a tea-set of Wedgwood English Country Roses from which I still take my tea.  Only God knows if the poor lady carried out her threat, but I know that I had lost whatever innocence I still had about our justice system.  You can hardly tell what may happen of any case.  It is put up by real people and it will be resolved by real people.  And no real person is infallible.

*

Black Americans have produced jazz pianists that are out of this world.  Like Art Tatum or Erroll Garner.  Whitney Bailliett said:  ‘Tatum told me that he adored Erroll, and that was strange because they were so different.  Tatum was something of a stuffed shirt, while Erroll was so articulate in his street-smart way.  Erroll loved chubby ladies….He was a very generous man. I remember walking to Jilly’s with him in the sixties and I don’t know how many times he stopped to say, ‘Hey, baby’, and reach into his pocket and lay something on whoever it was.’  Bailliett said that recording tends to ‘stymie’ jazz musicians, but Garner loved them – in a 1953 session, Erroll ‘rattled off thirteen numbers, averaging over six minutes each with no rehearsals and no retakes.’  Erroll liked ‘to have his base player sit on his left, so that the bass player could see his left hand.’  Another pianist said that ‘when Erroll walked into a room, a light went on.  He was an imp. He could make poor bass players and poor drummers play like champions.  When he played, he’d sit down and drop his hands on the keyboard and start.  He didn’t care what key he was in or anything.  He was a full orchestra, and I used to call him ‘Ork’.  Another pianist said that what distinguished him ‘was his rich and profound quality of time…He was his magnificent pianistic engine.’  Bailliett ended the piece by recording the reaction of Garner when someone mentioned that he could not read music.  ‘Hell, man, nobody can hear you read.’

*

Mac, my dad, was a judge’s associate.  Norma, my mum, was a court reporter.  I was therefore brought up with stories about law and the courts.  I thought Mac and Norma wanted me to go into the law.  I resisted until my first year of arts at Melbourne University suggested that there was no assured career outside of the law.  I therefore changed to do arts and law.  After about a year or so, it looked to me that the law course was not all that demanding and that could seek to improve my education by reading legal biographies and legal history while coming to grips with the great novelists of France and Russia – while continuing to learn in both history and philosophy.  I think the first biography in the law I read was of Haldane.  It was most instructive.  I have just read a new one, and it is still full of interest for me.  The way to get into a new area is to read about those who made it.

*

I found it unsettling to appear before a judge whom my father was assisting.  It was even harder to appear in a court where my mother was the short-hand writer.  It happened a couple of times in bankruptcy in the old High Court.  In my first five years at the Bar, I had quite a practice in bankruptcy.  Mr Justice Sweeney was a model of courtesy, but he was also a master of controlling his work flow.  I cannot recall any savage contest before him.  And the most technical points could be taken.  One such occasion arose when a creditor understated the debt – understated – by one dollar.  I went armed with all the case law about inconsequential errors.  The debtor turned up expressing the wish to go bankrupt.  I still lost.  As I retreated through a packed court, I wondered whether those faces all turned on me were hiding humour or disdain.  What I do know is that most would of them have thought that this apparent silliness showed that the sooner they got out law courts in general, the better.  Happily, I don’t think that happened on a day when my mother was rostered on to that court.  It was beyond me to know why a transcript was necessary for this court.  I did not ask his Honour why while enjoying morning tea with him in his chambers on another day when the list was completed a comfortable time before lunch.