Author: Geoffrey Gibson

Passing Bull 232 – What happened to the focus on Western Civilisation?

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Donations to promote the study of civilisation provided it could be labelled as western did not get a warm response from the target market.  Some of its sponsors had been regrettably candid about what they had in mind.  While re‑reading Volume 5 of Gibbon’s Decline and Fall, I came across a passage where he reflected on the risks inherent in shutting out the learning of others.  I will set it out in full.

But the Moslems deprived themselves of the principal benefits of a familiar intercourse with Greece and Rome, the knowledge of antiquity, the purity of taste, and the freedom of thought.  Confident in the riches of their native tongue, the Arabians disdained the study of any foreign idiom.  The Greek interpreters were chosen among their Christian subjects; they formed their translations, sometimes on the original text, more frequently perhaps on a Syriac version; and in the crowd of astronomers and physicians, there is no example of a poet, an orator, or even an historian, being taught to speak the language of the Saracens.  The mythology of Homer would have provoked the abhorrence of those stern fanatics: they possessed in lazy ignorance the colonies of the Macedonians, and the provinces of Carthage and Rome: the heroes of Plutarch and Livy were buried in oblivion; and the history of the world before Mahomet was reduced to a short legend of the patriarchs, the prophets, and the Persian kings.  Our education in the Greek and Latin schools may have fixed in our minds a standard of exclusive taste; and I am not forward to condemn the literature and judgment of nations, of whose language I am ignorant.  Yet I know that the classics have much to teach, and I believe that the Orientals have much to learn; the temperate dignity of style, the graceful proportions of art, the forms of visible and intellectual beauty, the just delineation of character and passion, the rhetoric of narrative and argument, the regular fabric of epic and dramatic poetry.  The influence of truth and reason is of a less ambiguous complexion.  The philosophers of Athens and Rome enjoyed the blessings, and asserted the rights, of civil and religious freedom.  Their moral and political writings might have gradually unlocked the fetters of Eastern despotism, diffused a liberal spirit of inquiry and toleration, and encouraged the Arabian sages to suspect that their caliph was a tyrant, and their prophet an impostor.

It does seem to me that only the most determined defender of the local learning could deny that however you define or describe the relevant highway, the traffic is two‑way, and that if you were to presume to make it one‑way only, you might be invoking serious trouble.

Nor would we wish to emulate China in sealing ourselves off behind a wall – a notion that is not getting a good press because of one particularly inane advocate of such exclusion. The claim that a university might open minds – but only from one direction, seems to be at best quaint.

Bloopers

Leadership solidarity vital in coronavirus challenge.

Premiers have been exposed as unreliable and reckless

The Australian, 24 March, 2020.

The headline to an editorial reveals a factional fracture in a quest for solidarity.  It is also arrogant.  And the notion that the federal government is doing better than the states in this crisis is bizarre.  Not surprisingly, there are areas where reasonable minds may differ.  An attempt to conjure up some kind of cabinet solidarity is a reflection on the inability of some to tolerate uncertainty.

Passing Bull 231 – Tripe about sovereignty

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And faced with the prospect of a deal on World Trade Organization terms that would mean a sharp rise in tariffs and border disruption, the EU hopes Mr Johnson and Mr Gove will eventually blink.

But this runs entirely counter to the hardening of the language from Mr Johnson’s government, which has placed sovereignty above the interests of business.

Financial Times, 3 March, 2020

When England broke with Rome and achieved a Home Rule for its church, you could have had a meaningful chat about sovereignty.  The pope could no longer law lawfully seek to assert authority over a subject of King Henry VIII.  The English, for better or worse, applied that maxim in the New Testament that a man cannot have two masters.

You see how large this shift was when you recall that after the English struck their deal with their king in Magna Carta, the pope purported to annul what the English came to call their first statute.  John, who was a rat, had purported to turn England into a vassal state of the Vatican.  That shows how large the notion of sovereignty loomed in the Middle Ages.  But is it anything other than grandstanding waffle to talk about a loss of sovereignty when talking about the obligations a nation assumes when it enters into binding treaties about trade or the environment?  Every time I enter into a binding contract, I limit my freedom in some way – but it would be silly to suggest that it follows that I have therefore undergone a change of status.

I remarked elsewhere:

When the French herald, Montjoy, came to deliver the message of his king to King Henry V of England before the battle of Agincourt, he said that the French could have dealt with Harry at Harfleur, but that ‘now we speak upon our cue, and our voice is imperial: England shall repent his folly.’ (In those days, it seems, kings used to address each other by the name of their kingdom – a little bit of mutual vanity in the union of royals.)  A little later that night, Harry moved among the sad and depleted English troops in disguise – ‘a little touch of Harry in the night,’ comments the playwright.  ‘What are you?’ the king asks.  Pistol – a swaggering drunk – replies ‘As good a gentleman as the emperor’.  This leads the king to say: ‘Then you are better than the king.’

So, if Shakespeare knew the English language – and there are problems in asserting the negative – an emperor was above a king.  This might upset an English king, who might then be moved to assert a supremacy, and one of a distinctly imperial hue.  The notion would sorely upset one English king who was a defender of the faith, the eighth of the name, Harry.  The result would be what we call the English Reformation. 

Before we come to that, we need to understand the means by which Harry and England sought to assert the sovereignty of the English nation, but can we make one thing clear at the outset?  The Reformation had little to do with religion, even less to do with God, and nothing at all to do with the Sermon on the Mount, or any other teaching of the tearaway friend of the meek who had started out from a Jewish carpentry shop.  It was a brawl – a nasty brawl – between State and Church, and little else besides.  It was about power and jurisdiction, not doctrine or faith.

When Henry IV, dies, Prince Hal, before he is crowned King Henry V, seeks to reassure some very nervy subjects, including the Chief Justice who had brought the law down weightily on the prince.  He said ‘This is the English, not the Turkish, court.’  Later he said:

Now call we our high court of parliament

And let us choose such limb of noble counsel

That the great body of our state may go

In equal rank with the best governed nation.

Shakespeare was reminding his audience that an English king was under the law, and that when he wanted to move strongly, he would call together a body that he called ‘our high court of parliament’.  Having done that, the government of England would have no superior in the world – in truth, a large part of the audience probably thought that the ‘Turks’ started at Calais.

If ‘sovereignty’ says anything, it says something about supremacy.  The English Crown in Parliament was supreme before the English subscribed to the Treaty of Rome and the like and it was supreme after that.  Invocations of sovereignty in this context better resemble a footy club war cry or the haka than a political or constitutional argument.

If you want to flirt with terms like that, you might descend into the error of the French in 1793 who put parts of their ideological dreamtime into words in their Constitution – ‘Sovereignty resides in the people: it is one and indivisible, imprescriptible and inalienable…..Any individual who usurps the sovereignty may at once be put to death.’  You might as well try to legislate for the Trinity or Real Presence – but it was a bit rich for people to lay down the death sentence for usurping sovereignty when they had to come to power by doing just that.  The Bastille stood for everything rotten in sovereignty in France when it fell.

And did they really want the gillets jaunes?

Bloopers

The text says that any trade deal must contain “robust” policy commitments “to ensure a level playing field”. The UK insists that the EU’s interpretation of this idea, which includes keeping Britain within the EU’s state-aid regime and limiting divergence in key policy areas, amounts to vassalage.

Financial Times, 28 February, 2020.

The reference to ‘vassalage’ is just lazy labelling at the other end.

MY SECOND TOP SHELF – 3

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[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.]

BACH

Music in the Castle of Heaven

John Eliot Gardiner, 2013

Alfred A Knopf, 2013.  Bound in cloth boards; rebound with quarter leather, and slip case.

Were it not a kiss of death, we might call John Eliot Gardiner a Renaissance man – if only because he has dedicated his life to reviving things that matter from the distant past.

Gardiner was born in Dorset at a village with the ancient name of Fontmell Magna.  It was the subject of a royal grant in 932 to the nuns of Shaftesbury on condition that they would song fifty psalms after Prime and offer masses at Terce.  The Doomsday Book of 1086 recorded that Fontemale was in Sixpenny Hundred.  This, then, is not a novel village.

Gardiner was born in 1943.  His father is called ‘a rural revivalist’.  His grandfather was an Egyptologist.  At King’s College, Cambridge, he studied history, Arabic and medieval Spanish.  He began conducting as an undergraduate, and conducted the Cambridge and Oxford Singers in a tour of the Middle East.  In 1968 he founded the Monteverdi Orchestra.  He made his opera debut with The Magic Flute in 1969.  He went on to become a leading conductor around the world.  He specialises in the baroque, in particular, Bach.  He has founded choirs and orchestras.  In the year 2000 he set out on his Bach Cantata Pilgrimage performing Bach cantatas in Europe and the United States over fifty two weeks.  In 2013, he published this book, Bach, Music in the Castle of Heaven.

Gardiner was introduced to music singing at home and in the church choir.  He therefore comes from a background where he was born into choral music.  He married a violinist and they had three daughters.  His second wife is the granddaughter of Victor de Sabata.  He resides on a farm in the ancient village.  It is of course an organic farm and it is said that the because of his unorthodox approach to gardening, the locals call him ‘Uphill Gardiner.’  Given his attachment to the old, it may not surprise that Gardiner will not go near Wagner.  ‘I really loathe Wagner – everything he stands for – and I don’t even like his music very much.’

In short, Gardiner – or, if you prefer, Sir John Eliot Gardiner, CBE, Hon FBA – is the sort of guy who makes you and me wonder what we have done with our lives.  He is also strikingly imposing to look at and is subject to the kind of vituperation that strong conductors may attract from lesser musicians.

Gardiner might therefore promote angst among those with a chip on their shoulder. As if on cue, The Spectator chimes in with a piece from The Heckler.   ‘Why does John Eliot Gardiner have to be so rude?’  It’s a shame that this once decent journal can descend to this bitchy and heckling gossip – mostly taken off the Net – but at least Australians might be relieved to see that they are not alone by being debased by envy in the face of their betters.

The book begins.

Bach the musician is an unfathomable genius; Bach the man is all too obviously flawed, disappointingly ordinary and in many ways still invisible to us.  In fact we seem to know less about his private life than about that of any other major composer of the last four hundred years.

The book ends this way.

Monteverdi gives us the first gamut of human passions in music, the first composer to do so; Beethoven tells us what a terrible struggle it is to transcend human frailty and to aspire to the Godhead; and Mozart shows us the kind of music we might hope to hear in heaven.  But it is Bach, making music in the castle of heaven, who gives us the voice of God – in human form.  He is the one who blazes a trail, showing us how to overcome our imperfections through the perfections of his music; to make divine things human and human things divine.

There are some big calls there.  Has Gardiner made good on them?

It is not long before you recall not just that you are reading the work of a maestro, but one brought up in the tradition of family and church singing; one trained in history; and one who observes the seasons while cultivating the land.

Even with the powerful layer of Protestant theology added to the inhabitants’ lives, the forest remained both mysterious and threatening, as can be seen in the paintings by Luther’s friend Lucas Cranach, in the woodcuts by Albrecht Dürer, emphasising its engulfing luxuriance, and in the landscape paintings of Albrecht Altdorfer.  Music was there to give strength as well as to placate the tutelary sylvan gods.  It is surely no accident that in a land of such communal music-making, so many folk songs rich in woodland themes should have survived.  The power of song here was perhaps not quite that of the Australian Aboriginals – the principal means by which they marked out their territory and organised their social life – but it did not lag far behind, the thinnest of membranes separating song, creation myth, landscape and boundaries.

Historians of the common law are familiar with the sometimes occult powers of the ancient German forests, but here we see a strong, independent mind, one not to be confined by intellectual, much less academic, demarcation boundaries.

Throughout the book, the author links language and music – as Luther did so strenuously.  Luther was called the German Cicero and he maintained that without music, man is little more than stone.  He asked why the devil should have all the good tunes and said that the whole purpose of harmony is the glory of God.  Gardiner quotes a German philosopher as saying that the chorales retained the moral effectiveness (a ‘treasury of life’) that German folk-poetry and folksong had once possessed but by his day had lost.  The moment the poet begins to write slowly, in order to be read, art may be the winner, but there is a loss of magic of ‘miraculous power’.  (This last point is fundamental and shows that you cannot skip footnotes.)

Gardiner stresses the communal nature of choral work.  Opera was very Italian, and very communal since it involved the audience.  The Italians sound a little like the English at soccer or the Spaniards at a bullfight – or some Lutheran Germans in a church.  Gardiner speaks of Thuringia (a part of Germany) after Luther’s time when even the smallest parish church had its own pipe organ framed by a curved choir gallery where local craftsmen or farmers could sing during the service.  He tells of doing a cantata concert in the town of Eisenach on Easter Day 2000.  (This also is in a footnote.)  The pastor invited Gardiner and members of his choir and orchestra to lead part of the singing.  In the middle of the Mass, they were suddenly joined in the organ choir by a group of local farmers who sang a short litany in Thuringian dialect and then left.  (It’s a great story.  From any other source, we may be inclined to doubt it.)

Here is the author on the beginning of opera.

Claudio Monteverdi, amazingly, provided all of these missing elements in the very first through–composed work for the stage… He recognised that the hitherto unexploited potential of what the Florentines called the ‘new music’ was to allow the singer’s voice to fly free above an instrumental base line, giving just the right degree of harmonic support and ballast… The radicalism of L’Orfeo may not be fully recognised by audiences even today.  In an age when the emotional life of human beings was becoming a topic of the utmost fascination – with philosophers and playwrights trying to define the role of passions in human destiny, and with painters as varied as Velazquez, Caravaggio and Rembrandt all intent on betraying the inner life of men and women – Monteverdi stood head and shoulders above the contemporary musicians in the consistent way he explored and developed musical themes of ‘imitation’ and ‘representation’.  We now refer to L’Orfeo as an opera and think of it as the beginning of the genre; but that is because we are looking at it backwards via the perspective of Wagner or Verdi.  To Monteverdi, it was a… fable in music…

Gardiner reminds us:

In Bach’s day, the arts were still expected to impart some explicit moral, religious, or rational meaning.  It was not until the second half of the century that aesthetic concepts such as ‘the ‘Beautiful’ and ‘the Sublime’ began to uncouple the artistic from the scientific and the moral’

And one might add, from God.  (The footnote cites another scholar as saying that students of aesthetics would abandon the idea that music ‘should serve an extra-musical, religious or social end.’  Why can’t we just enjoy the music?)

People coming to Bach late commonly go for The Well-tempered Clavier, The Goldberg Variations or, above all, The Saint Matthew Passion.  It is up there with King Lear and the Pieta.

In the same way that we buy tickets for King Lear and come away chastened, sobered, and put in our place, so Leipzigers…flocked to the Thomaskirche on a Good Friday, hoping that the excitement and harrowing uncoiling of the human drama would still hold them in thrall, knowing full well that they would be distressed (and perhaps disappointed if they found they weren’t.)

Even the most devout atheist or unrelieved agnostic cannot help being blown away, as the saying goes, by the Chorus, and what leads to it, Sind Blitze, sind Donner, ‘one of the most violent and grandiose descriptions of unloosed passion produced in the Baroque era.’  We speak of the moment of the arrest of the man called Christ.  For artistic daring, this is up there with Michelangelo’s depiction of the moment of the creation of Man.

And it reminds us of how much we might lose from music if we continue to banish God from it.  Nietzsche said: ‘This week I heard The Saint Matthew Passion three times and each time I had the same feeling of immeasurable admiration.  One who has forgotten Christianity truly hears it here as Gospel.’  Gardiner also quotes William James on ‘right to believe – religion, like love, like wrath, like hope, ambition, jealousy, like every other instinct eagerness and impulse…adds to life an enchantment which is not rationally or logically deducible from anything else.’  A contemporary composer says:

Consciously, I am certainly an atheist, but I do not say it out loud, because if I look at Bach, I cannot be an atheist……A Bach fugue has the Crucifixion in it.  .In music, I am always looking for the hammering of the nails… That is a duel vision.  My brain rejects it all But my brain isn’t worth much.

This book is impeccably produced in every way – it is the result of industry and care, as well as insight, intellect, and grace.  The scholarship is broad without ever looking shallow.  Sir John, as he now is, may not be able to leap tall buildings in a single bound, but he can teach us to cross boundaries and jump fences until we come within view of those broad sunlit uplands.  It is little wonder that the gnats felt a need to strain after this camel.  Off hand, I find it hard to think of a book in this collection that is more enlightening than this one.

Here and there – Supreme Inequality

/ Geoffrey Gibson / 2 Comments

 

Many years ago – about, say, thirty – I ran into Michael black, QC, later Chief Judge on the Federal Court, walking up William Street, with his red bag, looking a little disconsolate.

Where are you off to, Michael?

Off to the High Court to get bashed up.

Why?

I’m for the Commonwealth.  They want to amend their defence out of time to plead the Statute of Limitations in a case arising from a notorious naval accident.

Commiserations, Michael.  May the Lord make his face shine upon you….

We then discussed the betting at the bar table about who would be the first to say ‘Hard cases make bad law.’  Michael and the Commonwealth did get bashed up – so badly that people are still trying to work out the juristic rationale of the decision.

Well, you hear this kind of chatter every day among barristers.  ‘I’m for a bank against a widow today.  Guess who is going to win?’  But it is just badinage – and if taken seriously, it represents the archetype of prejudice, the prime form of intellectual cancer that can obliterate any notion of a fair trial – in fact or in appearance, or both.

Let me give an example.  About the same number of years ago, I heard a tax case where the Crown was struggling to hold on to an assessment against a widow who, as I recall, was frail.  As counsel commenced to cross-examine her, I recall thinking that this might get ugly – as they say in the NRL.  I can’t remember the detail, but I recall that counsel, who later acquired a reputation for being seriously hard as a magistrate, slowly, softly and politely demonstrated that the lady had a bad case.  He had in short over-run my prejudice against his case.

In criminal cases, we are used to the notion that the accused gets the benefit of the doubt.  Is there a similar process in civil cases?  Well, if there is, it is not one that is often articulated – unless you have someone of the standing and intellectual fire-power of Lord Devlin (in a passage I referred to a little while ago).

Trial by jury is a unique institution, devised deliberately or accidentally – that is, its origin is accidental and its retention is deliberate – to enable justice to go beyond that point [the furthest point to which the law can be stretched ]…The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.

But it is also a fact of life that some judges seem at least to be better for you if you are for the plaintiff in a civil case or against the Crown in a criminal case.  The author of Supreme Inequality, Adam Cohen, would not I think object to being described as one of that persuasion.  He is a liberal of the NYT kind.  The thrust of the book is that while the Warren court was firmly of that persuasion – if you are bent on labels, try ‘liberal’ or ‘progressive’ – the reaction since has been firmly in the other direction – say conservative.

In truth, Mr Cohen says that the U S Supreme Court has bent too far against the poor and civil rights and too far in favour of big money and big corporates.  The picture is not a pretty one.  Mr Cohen has what Helen Garner might call an agenda, but does this mean that he cannot be relied on?  Well, read the book yourself and make up your own mind.  One thing is clear – the book is written in clear terms that avoid jargon – to the point of calling amicus briefs ‘friend-of-the–court’ briefs, and foregoing quoting slabs of judgments (which too many of our judges are guilty of doing).

Mr Cohen is qualified as a lawyer, but he practises as a journalist – to the everlasting betterment of his readers.  The book is to me devoid of the type of padding and ascription that disfigures so much North American scholarship. It is a book that both lawyers and non-lawyers can read and enjoy.  And learn from.

Two things are likely to hit Australian lawyers between the eyes when they read this book.  The first is the ghastly repetition of the call that the court split five to whatever ‘along ideological lines.’  The very idea is anathema to us.  People who should know better might like to play party games about clusters on our High Court, but we will all walk the plank the day we hear that the High Court split along ideological lines, the conservatives appointed by the Coalition against the progressives appointed by the Labor Party.  (There is apparently at least one think tank here who thinks that may have occurred already, but they are away with the birds.)

Secondly, and relatedly, too many of the Supreme Court’s rulings read like arguments rather than judgments.  Too many read as if they have been the product of bargaining – which many of them have.  The present Chief Justice told his confirmation hearing ‘I will remember that it’s my job to call balls and strike, and not to pitch or bat.’  His Honour may have had in mind the analogy of Maitland with the cricket umpire – his job is just to answer the question ‘How’s that?’

Well, to continue the analogy, too many of these judges take to the bowling with a long handle.  And we may fairly fear that this is because too often the writer is coming from his or her own very distinctive position in the dug-out.  It is very hard to imagine some of these judges approaching issues with a clean sheet.  To my mind the worst offender – and I do not resile from the word ‘offensive’ – was the late Justice Scalia.  Because this book is light on chapter and verse, you do not see much of it, but elsewhere I said of the decision in Heller about guns:

Two things may be said immediately of the majority judgment.  First, it is one of those judgments that leaves you wondering how the contrary view may even have been put.  It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge.  If you did not know better, you might have suspected that its author entered upon the case with his mind made up.  The judgment has the shrill, combative tone of the high school debate.  Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly.  The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’.  In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it.  Some asides are just plain bitchy.  ‘Grotesque’ is deployed for effect in a one word sentence.  In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary).  This is five Justices describing the reasoning of the other four Justices.

It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court.  I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it. 

It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other.  More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers……

The Supreme Court could have avoided this decision on handguns.  The ‘right’ was never universal.  It related to the militia which has nothing to do with handguns or personal self-defence.  The English had already taken handguns off the table.  But some policy demon drove the Court backwards.  This failure of the Supreme Court to slay or tame the dragon in the cave was not just a failure of legal scholarship and judicial technique – it was a failure of moral courage and intellectual leadership. 

When you read stuff like that from people who should know better, the breakdowns in other parts of the fabric – say, the Presidency – become less shocking.  Has the ordure of the Wild West permeated One First Street, Washington, D C?

One disaster of the Court was the decision about campaign financing in Citizens United.  The notion that spending money was an act of speech – yes, you guessed it: money talks – started with a ninety minute attack ad on Hillary Clinton – ‘the closest thing we have in America to a European socialist’- and opened the way to an orgy of venality that just reached its apogee in the attempt by Michael Bloomberg to buy the White House – just as the Romans were wont to auction the purple.  In the result, freshmen to Congress are now told to expect to do about four hours a day on financing – a capitol mostly made up of  male tarts.

Bush v Gore still haunts both sides.  Would Trump or McConnell have copped it so sweet?

The five conservative judges who stopped the voting were not only choosing the next president –they were ensuring that the conservative court that Nixon had established in 1972 lived on into the twenty-first century.

If that comment is fair, it bears dwelling on.  A critical component of the electoral success, such as it was, of the current occupant of the White House lay in his promise, which he is keeping, of delivering appointments to the Supreme Court that will be celebrated by the infamous ‘base’.

One of the cases that Mr Cohen says was adverse to the workers was reversed by an act that passed the House 381-38 and the Senate 93-5.

A generation or so ago, the courts lent in favour of mediation and arbitration.  One senior judge said that ‘private judging is an oxymoron, because arbitrators are businessmen.  They are in this for money.’  One survey said that 94% of decisions sided with business.  This is a tool for secrecy and open to the same abuse as non-disclosure agreements.

You get the impression that sometimes the Justices just make it up as they go.  If Miranda gave you the right to have counsel, what good was that if you get someone in forensic nappies on a murder charge?   In Kentucky, one quarter of the prisoners on death row had lawyers who were later disbarred or resigned to avoid disbarments. One observer said ‘A majority on the Court is unwilling to overrule Miranda; however, a majority is also unwilling to take Miranda seriously. The Americans have been much firmer than us on rejecting evidence obtained illegally, but the factional divide opens here.  Justice Brennan, a liberal from way back, said in one case: ‘It now appears that the Court’s victory over the Fourth Amendment is complete.’

The critique of the way that the Court has shown a solicitude for the wealthy to match that of the current President does not make good reading when the court slices up jury verdicts on exemplary damages.  But it just gets awful when you look at the discrimination against people of colour, or the brutality of tactics used by some prosecutors to bully people into plea agreements.

A Kentucky man was indicted for passing an $88.30 forged cheque.  That carried two to ten years.  The prosecutor offered five years, and said that if the accused did not cop that, they would go after him under the Habitual Criminal Act that because of his record would land him in jail for life.  The accused rejected the offer and got life.  The Supreme Court reversed the appeals court and affirmed the life sentence.  That, if I may say so, is grotesque.    And I may add that no one has ever explained to my satisfaction that saying you will get a discount if you plead guilty does not amount to saying that you will have to suffer more if you exercise your rights.

One person who pleaded guilty was in one sense fortunate.  While preparing a 60 Minutes documentary, someone by accident stumbled on evidence that they had the wrong man.  He had only lost sixteen months of his life and ‘several teeth, which were knocked out in one of several jailhouse beatings he endured before he was freed.’

One survey showed that 11 % of 365 people shown to have been wrongly convicted pleaded guilty to crimes they did not commit.’  That looks to me to be about the opposite of the equation that we were brought up on – about letting some ‘guilty’ go, rather than convicting some that were ‘innocent.’

It gets worse.  Mandatory sentencing is in my view based on a sop to the worst of our press, a distrust of our judges – and, in my view, an affront to our shared humanity.  An Army veteran stole children’s videos in two lots, both worth under $100.  But the state law made these misdemeanours into felonies because of a prior offence. In the result, and although he had never been found guilty of an offence involving violence, the accused was given two sentences of twenty-five years to life.  For stealing for his children, this man who had served his country was then thirty-seven and he would not be eligible for parole until he was eighty-seven.   You would not have read about it in Les Misérables. Even Victor Hugo knew where to draw the line.  The Supreme Court upheld the sentence 5 to 4 ‘along ideological lines.’  Can you envisage, even among the assizes sentencing young people to Botany Bay for stealing bread, anything more grotesque than this?

But there is more.

The court had two very different ideas about proportionality of punishment: one for corporations under the Fourteenth Amendment Due Process Clause and another for people under the Eighth Amendment.  The Due Process Clause, it said, did not allow a jury to punish one of the world’s wealthiest of companies with a punitive damages award of $145 million, which was equal to 0.29 per cent of its annual revenue – barely enough to get the attention of the company’s leadership.  The Eighth Amendment did however allow California to put a thirty-seven year old Army veteran and father who engaged in minor shoplifting behind bars until he was at least eighty-seven.’

For stealing goods worth less than $200 – by a man who had done what the current President chose to avoid, and who celebrates his refusal to pay taxes because of his bankruptcies in business.    And for good measure, the taxpayers of California will have the Justices of the Supreme Court to thank for a daily bill in excess of that $200 as the cost of that imprisonment – until a combination of sanity and humanity at last steps in.

And sentencing man to fifty years for what used to be called petty larceny.  Did it occur to any of the justices who affirmed this sentence in obedience to what they saw as the law, that one day somewhere and in some hierarchy they may have to answer for their conduct before a tribunal that does not allow the defence of superior orders?  Put differently, did none of their Honours lose any sleep at all over this decision?

One thought kept coming back to me in looking at these plea deals induced by what may be called duress – or undue influence – or unconscionable conduct – by those in a position of power who owe obligations to those in their charge over and above those owed by persons dealing commercially at arms’ length.   If that pressure had been brought to bear by, say,  a professional over a client or patient, or a priest over a penitent, or a teacher over a student, it would have obviously been open to the Court to inquire into the lawfulness of the impugned bargain by reference to that body of law that we know as equity.  We in Australia have been blessed by the fact that many of our best criminal judges were thoroughly trained – I may say indoctrinated – in equity.  I have not seen anything like that in the U S in my time – the word ‘equity’ does not get a mention in a very full index of this book.  If I am right about that, then that is another reason why we here in Australia have indeed been fortunate.

Before looking at two other wrinkles in the perceived stance of the U S Supreme Court, I offer two anecdotes, one personal. First, just as there was a sea change in the 1960’s to judicial review of government action, so there was a change of at least similar magnitude both here and in the  U K to schemes of tax avoidance that might fairly be called artificial.  There was no formal announcement here, but as a simple matter of fact ‘Anything goes’ on one day became ‘You are not going to try that on here, are you?’ on the next.  There was a form of judicial announcement in the U K.  The doctrine was called ‘fiscal nullity’, but it was in truth a cri de coeur from their Lordships: ‘Please don’t act like you think we came down in the last shower.  If very clever people put up what is in truth a house of cards, we will say so.’  While Australian courts said they did not follow the English model, the result was in substance the same.  The days of a judicially blessed Alice in Wonderland were over.

The other anecdote is that when I was admitted to practise in 1970, many if not most magistrates were reluctant to make findings against the police.  ‘If your client did not do it, why would the police have charged him?’  This was a very nasty form of institutionalised prejudice.  But if you came to be acting for a government body proceeding against someone – like an egg board against a poultry farmer who was trying to avoid the marketing scheme – in what was called ‘the quasi list’, the wind swung hard and fast from the other end of the ground.  It was like trying to evict a tenant from premises ‘protected’ since the war.  You were likely to be met with all kinds of technical objections, and overt hostility.   In an egg board case at Casterton, not far from the border, the magistrate refused to award costs to my client – even though the locals thought that s 92 made them untouchable.  It was as if the bench was doing a kind of penance for its laxness in preserving due process in the general criminal law.

The first came back to me when I read of some tax cases in the Supreme Court.  An American Airlines pilot named John Cheek was part of a ‘tax protest’ movement.  He came to believe that wages were not income under tax law.  He said that based on his research, and the teachings of the movement – the phrasing is that of Mr Cohen – he believed he did not have to pay taxes.  A jury found him guilty.  He appealed saying that the violations had to be ‘wilful’ and that the judge had not properly instructed the jury.  The Supreme Court ruled 6 – 2 in his favour.  Unsurprisingly, the minority said that the majority view defied belief.

You will be relieved to know that Mr Cheek went down the second time round.  But the Court had contemplated a defence based on non-belief in the law.  Here, surely, had solipsism made its masterpiece.  Mr Cohen says:

It was particularly notable that the law-and–order conservatives – including Rehnquist, Scalia, O’Connor, and Kennedy – were in the majority, arguing that Cheek’s years of intentional tax avoidance were not necessarily criminal.  The dissenters, Blackmun and Marshall, who wanted to uphold the conviction, were two of the Court’s most liberal members.

An intruder from here, or Mars, might feel compelled to ask – just what part of the American psyche drove six justices to stand behind John Cheek?  The Tea Party?  Paul Revere?  The Alamo, perhaps?

Then there is what some call the ‘white collar paradox’.  The same justices who have tended to vote to uphold the usual kind of criminal convictions tend to make an exception for white collar criminals.  One observer says the Court tends to be ‘anti-defendant….except in white collar cases.’   The same observer said that Justice ‘Scalia voted for defendants in fewer than 7 per cent of non-white collar criminal cases and nearly 82 per cent of white-collar cases.’ One judge – not I think of this Court – made the remarkable admission to researchers that it was hard to avoid being biased when ‘people like you are standing in front of you.’  This is indeed a very touchy area.

The book canvasses many other areas of ideological dispute that may be of more interest to Americans than to us.  I must utter two express caveats.  The first is that I am taking Mr Cohen on trust and I have not gone to the law reports to look at the judgments themselves.  That is a luxury that I immediately learned I could not afford when I was hearing cases.  (It really is dispiriting to see the look of glum betrayal on the face of counsel when you ask them which side won in the case they have just referred to.)  The second is more important. I am yet to hear the case for the other side – at least one that is put by someone who comes from the tradition, if I may put it that way, celebrated by those who have espoused the views that Mr Cohen has criticised.  Perhaps we should hear from jurists who think that the jurisprudence of the Court needed a ‘correction’ after Warren.  All I can say is that the job of presenting what Americans call the rebuttal should not in my view be left to a lightweight.

And whatever else books like this might achieve, this book shows the huge difficulty facing those in Australia who want to change the status of our Bills of Rights so that it is part of the Constitution as it is in the United States.  How many Australians would like to have justices of the High Court make laws for them in the manner of the justices of the Supreme Court of the United States?  Let us put the issue colourably.  How would you like your children to be liable to be offered up for human sacrifice because of an ideology made into law by five unelected law-makers cloistered away in that suburban fastness that they call Canberra?

For that matter, the proponents of a law about ‘freedom of religion’ need to think about the forces that they might unleash.  What we can say with some confidence is that if in 1689 you had told an English MP that one day the colonies might say that the provision in their Bill of Rights about the right to bear arms could have the effect described by the majority of the Supreme Court in Heller, he would not have hesitated to say that you were stark, staring mad.

The issue of equality is vital for at least two reasons.  First, we read almost daily of the rate of depression and suicide increasing among Americans who did not get to go through college.  Mr Cohen says:

The Court’s rulings have helped to produce historic gaps between the most well-off and the least.  Wealth inequality is once again where it stood in 1929, just before the Great Depression began.  The top one per cent of Americans control about 40 per cent of the nation’s wealth.  Much of the rest of the country is only scraping by.  A survey by an employment website in 2017 found that 78 per cent of Americans said they were living paycheck to paycheck.

It is one thing to recall 1929 – it is altogether something else to recall the Vesuvial years of 1789 and 1919.

The second reason that equality is of over-riding importance is that it underwrites our whole jurisprudence.  The incontrovertible base of our logic is that a thing cannot both be and not be at the same time.  The incontrovertible base of our jurisprudence is that like cases should be treated alike.  Try giving a dog a biscuit each time he raises a paw to shake hands and then smacking him for the same action.  (As Justice Holmes remarked, even a dog knows the difference between an accidental kick and a deliberate kick.)  Try giving one daughter for Christmas a ukulele that is twice as big as that given to another.  If some of the best jurists in the world make a mess of equality, what hope is there for the rest of us?

 

 

 

MY SECOND TOP SHELF – 2

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[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.]

COLLECTED POEMS

W H Auden

The Franklin Library, 1978; Limited Edition, The Greatest Books of the Twentieth Century.  Bound in green leather, embossed and titled in gold, with ridged spine; gold edges to pages, moiré endpapers and satin book mark.

When I was a young boy, but old enough to hear jazz as a distinct form of music, I bought my first LP – ‘Jazz for People Who Do Not Like Jazz.’  All of the poets who feature in this book might attract a similar label, and none more so than Auden.  But it took me some time when I got a bit older to adjust to the proposition that the following poem was addressed to a boy or young man.  This may not have been a rite of passage, but it was at least a hurdle on the path of education.

Lay your sleeping head, my love,

Human on my faithless arm;

Time and fevers burn away

Individual beauty from

Thoughtful children, and the grave

Proves the child ephemeral:

But in my arms to break of day

Let the living creature die,

Mortal, guilty, but to me

The entirely beautiful.

Auden had a dream upbringing and education, and studied English at Christ Church, Oxford.  He was ferociously bright, and would later write critical prose up to the intellectual standard of that of T S Eliot.  His poetry is, though, more accessible to the general reader than that of Eliot.  So, we might suspect, was his personality.  He had a long association with Christopher Isherwood, and he also had a following of acolytes.  The young Stephen Spender was desperate to get the attention of Auden.

‘You must write nothing but poetry, we do not want to lose you for poetry.’  This remark produced in me a choking moment of hope mingled with despair, in which I cried: ‘But do you really think I am any good?’  ‘Of course,’ he replied frigidly.  ‘But why?’  ‘Because you are so infinitely capable of being humiliated.  Art is born of humiliation’, he added in his icy voice – and left me wondering when he could feel humiliated.

That was the kind of preppy stuff that bright young men went on with at Oxford in those days, and it is as well to recall how many of them went clean off the rails.

Here is Auden, perhaps a little out of character, in Roman Wall Blues.

Over the heather the wet wind blows,

I’ve lice in my tunic and a cold in my nose.

The rain comes pattering out of the sky,

I’m a Wall soldier, I don’t know why.

The mist creeps over the hard grey stone,

My girl’s in Tungria; I sleep alone.

Aulus goes hanging round her place,

I don’t like his manners, I don’t like his face.

Piso’s a Christian, he worships a fish:

There’d be no kissing if he had his wish.

She gave me a ring but I diced it away;

I want my girl and I want my pay.

When I’m a veteran with only one eye

I shall do nothing but look at the sky.

Like so many of that ilk, Auden was drawn to the Spanish Civil War, but he would come to see it with an eye as clear as that of Orwell.  He contributed to the booklet Authors Take Sides on the Spanish War, but he did so in a pained way that showed the pain in his own mind.  Still, he did better than some other big hitters.  Ezra Pound: ‘Spain is an emotional luxury to a gang of sap-headed dilettantes.’  Evelyn Waugh: ‘If I were a Spaniard, I should be fighting for General Franco.’  T S Eliot: ‘While I am naturally sympathetic, I still feel convinced that it is best if at least a few men of letters should remain isolated.’  The only thing more limp-wristed than that is an aetherised hand upon a table.

He also had a clear mind on that curious notion, the role of the artist.

Artists and politicians would get along a lot better in the time of crisis [1939], if the latter would only realise that the political history of the world would have been the same if not a poem had been written, not a picture painted nor a bar of music composed.

If the criterion of art were its power to incite to action, Goebbels would be one of the greatest artists of all time.

Tolstoy, who, knowing that art makes nothing happen, scrapped it, is more to be respected than the Marxist critic who finds ingenious reasons for admitting the great artists of the past to the State Pantheon.

Here is an intellectual and Anglican poet on religion.

Luther

With conscience cocked to listen for the thunder,

He saw the Devil busy in the wind,

Over the chiming steeples and then under

The doors of nuns and doctors who had sinned.

 

What apparatus could stave off disaster

Or cut the brambles of man’s error down?

Flesh was a silent dog that bites its master,

World a still pond in which its children drown.

 

The fuse of Judgment spluttered in his head:

‘Lord, smoke these honeyed insects from their hives

All works, Great Men, Societies are bad.

The Just shall live by Faith…’ he cried in dread.

 

And men and women of the world were glad,

Who’d never cared or trembled in their lives.

 

Auden wrote a luminous and scholarly paper on Melville and others.  In his poem Herman Melville, he said:

Evil is unspectacular and always human,

And shares our bed and eats at our own table,

And we are introduced to goodness every day,

Even in drawing rooms among a crowd of faults;

He has a name like Billy and is almost perfect,

But wears a stammer like a decoration;

And every time they meet the same thing has to happen;

It is the Evil that is helpless like a lover

And has to pick a quarrel and succeeds,

And both are openly destroyed before our eyes.

Later in life, Auden got interested in Tolkien.

Tolkien is a man of average height, rather thin.  He lives in a hideous house – I can’t tell you how awful it is – with hideous pictures on the walls.  I first encountered him in 1926, at a lecture at Oxford.  He read a passage from Beowulf so beautifully that I decided Anglo-Saxon must be interesting, and that has had a great interest on my life.

Auden might remind us of Schubert.  Or, perhaps, Louis Armstrong.  You could just turn him on like a tap.  This gorgeously handsome volume runs to more than 700 pages.  That is a lot of poetry.

Auden died in 1973.  The first poem in this volume is dated December 1927.  The last poem is dated April 1972 and finishes:

Should dreams haunt you, heed them not,

For all, both sweet and horrid,

Are jokes in dubious taste,

Too jejune to have truck with.

Sleep Big Baby, sleep your fill.

In one of the Forewords to his collections, Auden said:

In art as in life, bad manners, not to be confused with a deliberate intention to cause offence, are the consequences of an over-concern with one’s own ego and a lack of consideration for (and knowledge of) others.  Readers, like friends, must not be shouted out or treated with brash familiarity.  Youth may be forgiven when it is brash and noisy, but this does not mean that brashness and noise are virtues.

Auden said that in 1965.  He was not to know that he was speaking of what has become in 2017 the malaise of our time.

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Here and there – Yet another crash?  Pardon me for yawning

Only the most desiccated Philistine would be oblivious to the reason for this question of Don Quixote: ‘And are the lions large?’  By this stage of his journey as a knight errant, the madness of the Don might fairly be described as serene.  (The Romantics would have said ‘sublime’.)    When he encountered some lions, the Don wanted to know if their size might warrant their being exposed to his indomitable valour.  On being assured that these lions were the largest ever sent out of Africa, the Don resolves to take them on, and those in his retinue head for the hills in terror.  But, as we now know, the lion had the wrong script.  This is what happened when he was released.

The first thing that the recumbent animal did was to turn round, put out a claw, and stretch himself all over.  Then he opened his mouth and yawned very slowly….The lion proved to be courteous rather than arrogant and was in no mood for childish bravado.  After having gazed in one direction and then in another, as has been said, he turned his back and presented his hind parts to Don Quixote and then very calmly and peaceably lay down and stretched himself out once more in his cage.

Now, I have to say, dear reader, that there is every chance that this lion later went to that great den in the sky without knowing just how close he came to utter destruction for this outrageous affront to the dignity of the most gallant knight errant that the world has ever known.

Why do I mention this now?  Because in response to those people who are shrieking about events on the stock exchange, I feel like reacting like the lion – just yawn, present my posterior, and resume life in my place as if nothing had happened.

We have in truth seen it all before.  Put 1929 to one side, and reflect on 1987 and 2008.  As it happens, when J K Galbraith came up with a new edition of The Great Crash 1929 in 1998, he compared 1929 and 1987.  He did so in terms that may be appropriate in looking at 2008 and 2020.

The most important of the controlling circumstances, powerfully operated before the two Octobers, was, as it must be called, the vested interest in euphoria. In the preceding years in both periods the stock markets had been going up seemingly without limit.   There had been interruptions, some regarded as grave, but they had been overcome.  Underlying influences affecting market values – earnings prospects, general economic growth, prospective interest rates – had in both cases given way to the belief that the increase in values, however unrelated to reality, would continue.  Those who dissented or doubted were held not to be abreast of the mood of the times….The vested interest in euphoria leads men and women, individuals and institutions, to believe that all will be better, that they are meant to be richer, and to dismiss as intellectually deficient what is in conflict with that conviction.  ‘All people,’ Walter Bagehot noted, ‘are most credulous when they are most happy.’

Associated closely with the vested interest in euphoria is the pure speculative instinct….It is a condition that is inherently unstable, for implosively within it are the causes of its own collapse.  What triggers the rush to get out doesn’t much matter.  It will however be discussed with compulsive banality by those who are impelled to find an external explanation for all market movements….

A third controlling circumstance, little mentioned then or recently, was the enactment earlier of tax reductions with primary effect on the very affluent – before 1929, those of Andrew Mellon; before 1987, more spectacularly, those of supply-side economics and Ronald Reagan.  In both cases, they were supposed to energize investment, produce new firms, plants and equipment.  In both cases they sluiced funds into the stock market; that is what well-rewarded people generally do with extra cash…

There was another marked resemblance between the events of 1929 and those of 1987.  That was the prompt search for a scapegoat on which the stock market collapse, however inherent in the previous speculation, could be blamed.  Economic theology is here involved.  The market is not only perfect but in some measure sacred….

….in the Reagan years, taxes were drastically reduced in pursuit of the hitherto-mentioned supply-side fantasy that from reduced tax rates would come increased entrepreneurial energy and increased revenues.  The result, in fact, in combination with increased military expenditure, was the huge budget deficit….

Capitalism, one notices, is currently defended (one does not yet know how effectively) by a great array of measures that its most ardent supporters once deployed.

And so it goes.  The comparison of 1929 and 1987 may be instructive for that between 2008 and 2020.  I mention one obvious link.  We know that for various reasons, a lot of funds have been ‘sluiced’ – and the term is so apt – into the stock market – with results that cannot be stigmatized as unforeseeable.  Another observation to catch my eye – belonging to one who knows zilch about economics – was that if the market is over-valued, what ‘triggers the rush to get out doesn’t much matter.’  Calvin may have been at home with that notion.

Two points may be made.  First, yes there is a vested interest in euphoria when the market is on the up; but there is just as potent a vested interest in distress and desperation when the market is falling.  Then shrieking sells.  Secondly, logic tells us that merely because the market has always recovered in the past, we cannot be assured that it will do so again.  As Bertrand Russell once mordantly remarked:

The man who has fed the chicken every day throughout its life at last wrings its neck instead, showing that more refined views as to the uniformity of nature would have been useful to the chicken.

Well, let us leave that intellectual rigour to the Apostles at Cambridge and to the endless glory of English caste.  Those of us here on the ground know that if the world turns upside down, and the market for once does not recover, your best bet would be to have a crate of Scotch buried in the back garden to trade on the hottest black market that the world has ever known.

And the Don?  Fie! Fie! And shame on you for suggesting that so noble a knight could ever be concerned about anything as vulgar as mere money!  It was sufficient for the overpowering intellect of so mighty a man that he could and did unveil the one great truth you need to know about money: ‘The person who possesses wealth is not made happy by having it, but by spending it.’

But we can and do seek solace from that noble knight when we are afflicted.

Don Quixote saw his mission simply. It was to relieve the losers. As it happens, that mission was defined for an English court at that time in these terms: ‘…the refuge of the poor and afflicted; it is the altar and sanctuary for such as against the right of rich men, and the countenance of great men, cannot maintain the goodness of their cause.’

As well as relieving the losers, the Don liked to take down bad winners.

And as for me?  I’m with the lion.

Passing Bull 230 –Minding your own business

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There is some discussion about the extent to which business should concern itself with the political or social concerns of its community.  For example, some criticise BHP for its stance on climate change.  I own shares in BHP and I firmly support its position.  If it matters, so I think do analysts and the market.  The criticism tends to come from people with two things in common.  First, they have no idea about running a business.  Secondly, they have no idea about climate change.  The IPA is a good example.  They also go on about freedom of speech.  Except what they disagree with.

BHP fired someone for conduct involving, but not limited to, a bad joke that I will not repeat.  The tribunal said the joke was not enough to warrant dismissal, but that other conduct was sufficient.  The CEO of BHP says he disagrees.  He wants the world to know that BHP will not put up with this sort of conduct.  Good on him.  That in my view is a sound business judgment on his part.

On the other hand, Channel Nine is being castigated for showing the cricket final last night on its second channel.  This is said to have involved some kind of insult or lack of respect to those interested in women in cricket.

The directors of Channel Nine are there to conduct the business of the company for the benefit of the shareholders.  If in doing that they fail to support the social dreams or political aspirations of others, and that has adverse consequences for shareholders or other stakeholders, so be it.  Otherwise, the critics should mind their own business.

Bloopers

The High Court’s decision in February that Australians should be treated differently in the Constitution because of their racial identity was the most radical judgment in Australian history.  It destroyed the idea that Australians have about multiculturalism that there was one law in Australia and that everyone was subject to the law in the same way….

The decision distorted the common law to import a new and incomprehensible legal principle that has fundamentally reshaped the relationship Australians have with each other and with the Australian Constitution…..

The cultural left has (in Australia) or had (in the U S) an uncontested stranglehold on the legal establishment, and is eager to retain that control…..

The Australian, 9 March, 2020.  (Morgan Begg, IPA)

The IPA rarely misses an opportunity to show how fine is the line between ignorance and arrogance on the one hand, and madness on the other.  I may shout them a copy of Dreams of a Spirit-Seer by Immanuel Kant.  Or, perhaps, his Observations on the Feeling of the Beautiful and Sublime.

Here and there – On the Psychology of Military Incompetence – Norman Dixon (1976)

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This book reminds me of Clausewitz On War.  Although both are focussed on war, they are replete with valuable lessons for us all.  For example, Clausewitz said: ‘War is the province of uncertainty: three fourths of those things upon which action in war must be calculated are hidden more or less in the clouds of great uncertainty.’  That precisely applies to litigation, a form of trial by battle.

The author was supremely equipped to write this book.  After ten years’ commission in the Royal Engineers, he devoted his life to Psychology at University College, London.  You can see traces of both fields of service on every page.  Professor Dixon says that the military tends to produce ‘a levelling down of human capability, at once encouraging to the mediocre but cramping to the gifted.’  That is very common in any large outfit, government or private.

The following also has general application.

It seems that having gradually (and perhaps painfully) accumulated information in support of a decision, people became progressively more loath to accept contrary evidence….  ‘New’ information has, by definition, high informational content, and therefore firstly it will require greater processing capacity; secondly, it threatens to return to an earlier state of gnawing uncertainty; and, thirdly, it confronts the decision maker with the nasty thought that he may have been wrong.  No wonder he tends to turn a blind eye!  ….‘the information-content’ may be just ‘too high for a channel of limited capacity.’

The ignorance of the condition of and the lack of care for the ordinary soldier defies belief in the Crimean and the Boer War.  In the first, many died because they were cold and wet, and they could get no fire; in the second, 16,000 of the 22,000 British dead died of disease.  Those responsible would now be tried for manslaughter.

The same cruel officers said the other side, at least those who were white, should be accorded respect.  ‘The notion that certain acts were ‘not cricket’ was carried to such absurd lengths that the trooper was given no training in the ‘cowardly’ art of building defensive positions or head cover.’  When the heavy machine gun was developed, ‘they were written off as suitable only for the destruction of savages and hardly suitable for use against white men….the colour of the Boer soldiers elevated them from the levels of savages, thereby saving their white skins from, exposure to machine guns, but on the other hand they were regarded, in terms of their believed military expertise, as no better than savages.’  No real uniform or spit and polish, old boy.  It is little wonder they had similar feelings about the ANZACS.  They certainly felt that way about the Americans in 1776 – until they learned better.

Professor Dixon is rightly savage about those who abandoned their men to agonising death.

In considering these data, one is forced the conclusion that the behaviour of these generals had something in common with that of Eichmann and his henchman who, as we know, were able to carry out their job without apparently experiencing guilt or compassion…..  ‘No privilege without responsibility’….Men’s fates were decided for them not so much by ‘idiots’ as by commanders with marked psychopathic traits.

We meet this theme throughout the book – the failures of command were moral rather than intellectual; the flaw was of character rather than the mind.  But we will also come across a failure of the mind in people unable to bear doubt or ambiguity – the ‘black and white crowd.’

The Germans blitzkrieg met a Polish army and a French army that believed horsed cavalry could destroy German Panzers.  That burial in the past defies belief.

The predisposition to pontificate is a dangerous liability.  Unfortunately, such a predisposition will be strongest in those like headmasters, judges, prison governors and senior military commanders who for two long have been in a position to lord it  over their fellow me…the important thing about pontification is that though an intellectual is that though an intellectual exercise, its origins are emotional.

On cognitive dissonance, Professor Dixon says: ‘Once the decision has been made and the person is committed to a given course of action, the psychological situation changes completely.  There is less emphasis on objectivity and there is more partiality and bias in the way in which the person views and evaluates the alternatives.’

But, perhaps there may have been an upside from the predominance of the upper class in British high command.  ‘It did little for military competence, but was eminently successful in other ways.  Few countries can boast of such an absence of military coups as Britain.’

On ‘bull’ – spit and polish and endless repetition –    ‘bull is closely linked to conservatism, for its very nature is to prevent change, to impose a pattern upon material and upon behaviour, and to preserve the status quo whether it is that of shining brass or social structure….it seems to be a natural product of authoritarian, hierarchical organisations….Perhaps the single most important feature of ‘bull’ is its capacity to allay anxiety….by the reduction of uncertainty.’

On ‘character and honour’ –

A code of honour may be likened to an endlessly prolonged initiation rite…As a general rule, snobbish behaviour betokens some underlying feeling of inferiority.  It is a common characteristic of the social climber, of the individual with low self-esteem, of the person who feels threatened or persecuted because of some real or imagined inadequacy.  That there is an underlying pathology to the condition seems fairly obvious for two reasons.  Firstly, those who are emotionally secure are rarely snobbish.  Secondly, the behaviour is itself irrational, compulsive and self-defeating.  After all, even the most hardened snob must know that other people are adept at seeing through his affectations.  There is nothing, for example, quite so transparent as name-dropping or displaying invitations.  He must know at some level that his behaviour provokes at best amusement, at worst ridicule, contempt, or even dislike, but he is nonetheless powerless to curb his snobbishness.  Something drives him on.

Anyone who has been a member of a close professional body – like, say, the Victorian Bar – would relish – no, wallow in – every word of that denunciation of the two bob snob.

On seeking achievement – ambition:

The crucial difference between the two sorts of achievement – the healthy and the pathological – may be summarised by saying that whereas the first is buoyed up by the hopes of success, the second is driven by fear of failure. Both types of achievement motivation have their origins in early childhood…..senior commanders fall into two groups, those primarily concerned with improving their professional ability and those primarily concerned with self-betterment.

The comments on the authoritarian personality warrant a note and a book of their own.  The following may convey the gist.

A symbiotic relationship exists between characteristics of the armed services and the private needs of their members.  Research after World War II into the Third Reich showed two personality types.  One was anti-Semitic, rigid, intolerant of ambiguity and hostile to people of a different race.  The other was individualistic, tolerant, democratic, unprejudiced and egalitarian.

Research at Berkeley by Adorno and others refined the type, leading Professor Dixon to say that the results ‘at one level constituted fitting monument to the six million victims of Fascist prejudice.’  Another commentator said the results were ‘hair-raising.  They suggest that we could find in this country [U S] willing recruits for a Gestapo.’

There should have been no such shock or even surprise.  The Gestapo was not inherently German.  Sparta had a similar version for ruthlessly holding down an inferior people more than 2000 years ago.  To suggest that Hitler and the Nazis could only have risen up in Germany is to fall precisely into their vice of typing people – of branding every member of a group – by reference to their breeding.

Professor Dixon says:

The results delineated the authoritarian personality.  People who were anti-Semitic were also generally ethnocentrically prejudiced and conservative.  They also tended to be aggressive, superstitious, punitive, tough-minded and preoccupied with dominance-submission in their personal relationships….It seems that authoritarians are the product of parents with anxiety about their status in society.  From earliest infancy the children of such people are pressed to seek the status after which their parents hanker….There seem to be two converging reasons why such pressures produce prejudice and other related traits.  In the first place, the values inculcated by status-insecure parents are such that their children learn to put personal success and the acquisition of power above all else.  They are taught to judge people by their usefulness rather than their likeableness…In the second place, the interview data collected by the Berkeley researchers suggested that the parents of their authoritarian sample imposed these values with a heavy hand…..an exercise in punitive repression….The extreme strictness of the parents, coupled with their lack of warmth, necessarily frustrates the child.  But frustration engenders aggression, which is itself frustrated, for it is part of the training that children never answer back.  Hence, the aggression has to be discharged elsewhere, and where better than on to those very individuals whom the parents themselves have openly vilified – Jews, Negroes, and foreigners – all those in short, who being under-privileged, have acquired bad reputations in a status-seeking society?…..the authoritarian personalities manifest a monolithic self-satisfaction with themselves and their parents…Because he has to deny his own shortcomings, he dare not look inwards…..  ‘If he has a problem the best thing to do is not to think about it and just keep busy.’  Similarly, the authoritarian personality is intolerant of ambivalence and ambiguity.  Just as he cannot harbor negative and positive feeling for the same person, but must dichotomize reality into loved people versus hate people, white versus black and Jew versus Gentile, so also he cannot tolerate ambiguous situations or conflicting issues.  To put it bluntly, he constructs of the world an image as simplistic as it is at variance with reality.

Later, the author points to the relationship between conformity, authoritarianism and the tendency to yield to group pressures, and the relationship with obsession.  He also looks at their generalised hostility, what the Berkeley researchers finely called ‘the vilification of the human.’  The dogmatic militarist is of course seriously anti-intellectual.

He already knows all he wants to know.  Knowledge is a threat to his ego-defensive orientation and is therefore rejected…To think is to question and to question is to have doubts….the essence of dogmatism is a basic confusion between faith and knowledge.

Later, Professor Dixon looks at the ultimate authoritarian – Himmler and his SS.

….authoritarian traits are the product of an underlying weakness of the ego.  Thus, from the first study, it seems that the SS guards of the Third Reich were not, as popularly supposed, ideological fanatics, but inadequate ‘little’ men for whom the satisfactions provided by the SS organisations were tailor-made – all-powerful father figures, rigid rules of loyalty and obedience, and ‘legitimate’ outlets for their hitherto pent-up and murderous hostility……By a process of paranoid projection, they hated in others what they could not tolerate in themselves.  Hence it was that the weak, the old, the underprivileged, and later the starving millions of the concentration camps suffered their fearful attentions   [But they could still] aver that their helpless victims were dangerous enemies, Jewish terrorists, etc, who had to be eliminated.  For in a sense they were enemies, not of the State, but of their own precariously poised egos.

Well, now, how does that all grab you?  Is it too neat and tidy for our crooked timber?  Are we falling into the trap of stereotyping people?  I think not.  The author is too bright and decent for that, and he says in terms that you cannot defeat your enemy by stereotyping him.

It is curious that as far as I can see, the book makes no reference to Hannah Arendt, who expressed similar views about Eichmann, or the KKK, which looks to me to the embodiment in the flesh of authoritarian man.  (Nor, I think, did Arendt make any reference to Adorno in her book on Eichmann.)

But, when I read this uncomely catalogue of our failings, I am reminded of the recycled, simplistic, jealous, mean, nativist, surly rejection that you can get hissed at you on a bad day in an outback pub.  More worryingly, I can also sense it in the vacant faces and the banal chants of those deprived souls who idolise Donald Trump, all dressed up to the nines in the colours of an ourangatang.  Those whom Professor Dixon studied look to me to be the kind of people behind our current moral and intellectual landslide.  And that, for what is worth, looks to me to be a failure of the mind – if those distinctions mean anything.

This book is vital to our efforts to come to grips with our saddest failings.

Passing Bull 229 –Pure bull about ‘conservatives’

/ Geoffrey Gibson / 1 Comment

 

You may be aware  that I regard the term ‘conservative’ as being as vacuous – empty, at best – as ‘left’ or ‘right’.  It is at least open to serial abuse. I simply have no idea what those terms might denote in Australia now.  You might say the same for ‘socialist’.  Since England followed Germany into the Welfare State in and after 1909, and we followed them, we  – in common now with all of Western Europe – embrace a form of government that Americans would regard as ‘socialist,’ but which we regard as the minimum of government intervention in our lives that is consistent with what we call ‘civilisation.’    A denial of compulsory Medicare in the U S now may be seen as a repudiation of socialism.  Here it would be public political suicide.  What then is left of the term ‘socialism’ here?  And if the denial of Medicare were to be made by a self-styled conservative here or there, what do they think that the label ‘conservative’ may denote?

This is how Professor Simon Blackburn sees it in The Oxford Dictionary of Philosophy.

Originally in Burke an ideology of caution in departing from the historical roots of a society, or changing its inherited traditions and institutions.  In this ‘organic’ form, it includes allegiance to tradition, community, hierarchies of rank, benevolent paternalism, and a properly subservient underclass.  By contrast, conservatism can be taken to imply a laissez-faire ideology of untrammelled individualism that puts the emphasis on personal responsibility, free markets, law and order, and a minimal role for government, with neither community, nor tradition, nor benevolence entering more than marginally.  The two strands are not easy to reconcile, either in theory or in practice.

It is hard to apply any of that here.  Politics now is defined by what people are against, rather than what they are for.  If we take Cory Bernardi and Tony Abbott as examples of people here who call themselves – fairly or otherwise – ‘conservatives’, they appear to be against the following: the ABC; any kind of sense about climate change, and on a bad  day, any form of expertise at all (a quality that is intrinsically alien to them); the republic; common sense about freedom of speech; anything remotely connected to organised labour; anything remotely opposed to organised primary production and marketing; a sensible federal anti-corruption body; any restriction on their God-given right to award public money for party political purposes; abolishing plastic bags; any failure to ban thongs at naturalization  ceremonies; any application of the Sermon on the Mount to any political issue, but above all, to applying any of  that teaching to refugees; and any celebration of the end of Empire or of  Gongs.  Such is the blindness of their tribal devotion on high that they idolise the Queen and the Pope in simultaneous and equal measure even though the Queen could be disqualified from holding the Crown if she took communion from the Church of Rome.  Now, that is what I call getting the most out of your history.

You can therefore imagine my surprise when I read:

Liberal senator Concetta Fierravanti-Wells has attacked Australia’s domestic intelligence chief for using the term ‘rightwing’ while warning of the growing threat of rightwing extremism, saying it offended conservatives……

But the comments appear to have caused offence among some sections of the Liberal party. Fierravanti-Wells confronted Burgess during a Senate estimates hearing on Monday, complaining of the use of the word ‘right’.

She said: “I am concerned about this and concerned about the use of terminology of ‘right’. ‘Right’ is associated with conservatism in this country and there are many people of conservative background who take exception with being charred [sic] with the same brush.

 ‘I think that you do understand that your comments, particularly when you refer to them solely as ‘right wing’, has the potential to offend a lot of Australians.’

Let us put to one side the rape of the English language.  This is such awful bullshit that further comment may be otiose.  Can you imagine the affront that a genuine conservative – if there is any such thing in our land – might feel if compared to this lady or to a commentator on Sky After Dark or The Australian?

And is the lady now discovering that the use of these terms reflects badly not just on the intelligence of the speaker, but on their courtesy?  People use the term ‘Left’ commonly as one of abuse.  But if they are against the Left, does not that man that they are attached to the Right?  If you revile ‘the love media’ – and some of these soi disant conservatives say that they do – where does that leave you with ‘the hate media’?  As when the First Lady Melania trump anointed Rush Limbaugh with the Medal of Freedom before an awed congress and a nauseated world?  And if a member of the National Party advocates that government undertake the marketing of primary production and a celebration of patriotism, will they bask in the union of Nationalism and Socialism?  After all, at least since the fascism of Sparta two and a half millennia ago, those regimes have been veritable models of corruption.

Well, of course any such ascription would be as mindless as it is vulgar.  But at least this lady now has some insight that when it comes to applying labels to Australian politics, there is now a two way street in vulgarity and mindlessness.  And, for that matter, sheer pettiness.

Bloopers

Mike Pompeo, the secretary of state, defended the attack on Friday by saying, ‘It was time to take this action so that we could disrupt this plot, deter further aggression from Qassim Suleimani and the Iranian regime, as well as to attempt to de-escalate the situation.’

The New York Times, 6 January, 2020

Interesting exercise in  de-escalation – murdering a top man.  Could Pompeo be as thick as he looks?

With standards such as these it came as a shock when Woman’s Day was rapped over the nuckles by the media watchdog last week for publishing a headline about Prince Harry and his wife, Meghan, which it said was ‘blatantly incorrect’.

Dr Megan Le Masurier, a media academic from the University of Sydney, says when she saw the reports she was stumped.

‘When I read this story I just thought you could pick any copy of New Idea or Woman’s Day any week and they are doing headlines like this,’ Le Masurier, a former ACP magazine editor herself, says.

‘This is not journalism; it was never meant to be journalism. And I’ve got a term for it: ‘fabulous reportage’.

‘The way it works is they get the pictures in and then they make shit up. It’s just fantasy and all they’re trying to do is get clicks or sales in a dying market.’

So why did the press council, which usually takes aim at articles in the Herald Sun or the Sydney Morning Herald, sit in judgment of a Woman’s Day cover story which said the royal family had confirmed Prince Harry and his wife Meghan’s marriage was over?

The short answer is someone – not the royal family – complained about the article, and the council saw merit in the complaint and investigated because the magazine’s owner, Bauer Media, is a member of the press council.

The Guardian, 26 February, 2020

The good doctor may have been stumped, but so am I.  If the Press Council were not required to rule on issues from sources that specialise in purveying tripe, or, if you prefer, made up shit, they may not have much jurisdiction left at all.

MY SECOND TOP SHELF – 1

/ Geoffrey Gibson / Leave a comment

 

[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.]

A FAREWELL TO ARMS

Ernest Hemingway, 1929

Franklin Library, 1929.  Bound in quarter leather, ridged spine, with embossed title and filigree; cloth boards patterned.  Illustrated by Bernard Fuchs.

During the Second World War, British trains carried a message (one that Wittgenstein cited): ‘Is this journey really necessary?’  Try as I might, I find it hard to put this question behind me when reading Hemingway.  He could certainly write; he was a natural; but did he have anything to say that was worth listening to?

A Farewell to Arms is set on the Italian Front during World War I.  An American volunteer ambulance officer falls in love with a British nurse.  In the meantime, we are exposed to the horror and futility of war.  But what does it matter if two outsiders have their ups and downs during war?  The novel draws on many experiences of Hemingway in the war, but we are spared that obsession with manliness that cost so many women so dearly in the course of Hemingway’s life.

The beginning of the novel is often quoted to show the spare style of the author.

In the late summer of that year we lived in a house in a village that looked across the river and the plain to the mountains.  In the bed of the river there were pebbles and boulders, dry and white in the sun, and the water was clear and swiftly moving and blue in the channels.  Troops went by the house and down the road and the dust they raised powdered the leaves of the trees.  The trunks of the trees too were dusty and the leaves fell early that year and we saw the troops marching along the road and the dust rising and leaves, stirred by the breeze, falling and the soldiers marching and afterward the road bare and white except for the leaves.

For some, this will be like a mix of Debussy and Auden.

There are passages about the war.

I did not say anything.  I was always embarrassed by the words sacred, glorious and sacrifice and the expression in vain.  We had heard them, sometimes standing in the rain almost out of earshot, so that only the shouted words came through, and had read them on the proclamations that were slapped up by billposters over other proclamations, now for a long time, and I had seen nothing sacred, and the things that were glorious had no glory, and the sacrifices were like the stockyards at Chicago if nothing was done with the meat except to bury it……Abstract words such as glory, honor, courage or hallow were obscene beside the concrete names of villages, the numbers of roads, the names of rivers, the numbers of regiments and the dates.  Gino was a patriot, so he said things that separated us, but he was also a fine boy and I understood his being a patriot.  He was born one.

Well, whatever else a patriot might be, you are not born one.  You have to accept moulding and pledge active loyalty and devotion.  The narrator has learned the horrors of war from being involved in one, even if not as a fighting man, and a citizen, and therefore potential patriot, of any of the nations involved.

But less than twenty pages later, we get this from an American volunteer dealing with Italian soldiers – quite possibly conscripts.  They appear to be deserting. The American tenente orders them to come back.  They said he had no authority because he was not their officer.

‘Halt,’ I said.  They kept on down the muddy road, the hedge on the other side.  ‘I order you to halt,’ I called.  They went a little faster.  I opened up my holster, took the pistol, aimed at the one who had talked the most, and fired.  I missed and they both started to run.  I shot three times and dropped one.  The other went through the hedge and was out of sight.  I fired at him through the hedge as he ran across the field.  The pistol clicked empty and I put in another clip.  I saw it was too far to shoot at the second sergeant.  He was far across the field, running, his head held low.  I commenced to reload an empty clip.  Bonello came up.

‘Let me finish him,’ he said. I handed him the pistol and he walked down to where the sergeant of engineers lay face down across the road.  Bonello leaned over, put the pistol against the man’s head and pulled the trigger.  The pistol did not fire.

‘You have to cock it’, I said.  He cocked it and fired twice.  He took hold of the sergeant’s legs and pulled him to the side of the road so he lay beside the hedge.  He came back and handed me the pistol.

‘The son of a bitch,’ he said.

There you have that stern spare style.  ‘I shot three times and dropped one.’  Just as if he were shooting wooden ducks on a conveyor belt at the town fair.

But what has happened here?  An American is there in Italy as a volunteer ambulance man.  He is there to save people, not to kill them.  But he is concerned that soldiers – ‘real soldiers’ – are deserting ‘his’ side.  They are in truth showing a feeling to war that the narrator has just embraced.  He assumes the authority, which is challenged on obvious grounds, to order them to stop, and then he fires at them.

Whatever you might think of this, how do you describe ‘finishing’ the wounded man – who was born to some mother and who may leave a wife and children – as anything other than vicious murder?  Where does that leave the hero and narrator – or the author, who goes on as if nothing had happened out of the ordinary?  Was Himmler or Heydrich so clinical in describing the murders that he participated in?  How many novelists do you know who would be content to leave all this up in the air?

The child of the union is stillborn.

It seems she [Catherine, the nurse and mother] had one haemorrhage after another.  They couldn’t stop it.  I went into the room and stayed with Catherine until she died.  She was unconscious all the time, and it did not take her very long to die.

……

‘It was the only thing to do,’ he [the doctor] said.  ‘The operation proved – ’

‘I don’t want to talk about it’, I said.

‘I would like to take you to your hotel.’

‘No thank you.’

He went down the hall.  I went to the door of the room.

‘You can’t come in now’, one of the nurses said.

‘Yes I can I said’, I said.

‘You can’t come in yet.’

‘You get out’, I said.  ‘The other one too.’

But after I had got them out and shut the door and turned off the light it wasn’t any good.  It was like saying good-by to a statue.  After a while I went out and left the hospital and walked back to the hotel in the rain.

‘Like saying good-by to a statue’?  Is that all he has to show for the loss of his lover and mother of his child?

Sparseness in writing is one thing; being antiseptic is another; but heartlessness is altogether something different.  It is not then surprising if some readers – including me – are left cold, and fearing that they have just seen a victory of technique over humanity.

Why then is this book here?  This is a lovely and readable edition (even if the illustrations are awful); I have greatly enjoyed parts of this and other books by this author; and the acknowledged contribution of Hemingway to the literature of the twentieth century is such that it would have been churlish to have omitted him from a book such as this.