Author: Geoffrey Gibson

Passing Bull 137 – The either/or fallacy – again

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Someone sent me an example from the U S.  An examiner, who claimed to have a Ph D, failed an exam candidate on one question for saying that Australia was a country.  The examiner thought it was a continent.  Why couldn’t it be both?

The fallacy might sometimes be called ‘the single cause fallacy’.  The U S President put such a fallacy on horrific show after the Florida murders of school children – in which murders he was complicit.  He said that the issue was mental health, not gun control.  Then, in a display of callous inanity which was revolting even by his standards, he suggested that these murders may not have happened if the FBI had not been preoccupied with the Russian investigation.  Is it not obvious that all three of those issues may have been involved in these murders?

On a lighter note, Phillip Coorey, whose work I like, began a piece in the AFR about a fallen politician as follows:

Party officials believe increasingly that Barnaby Joyce’s tenure as Nationals leader has become untenable but say the ultimate decision whether to keep him rests with Nationals MPs.

There is no error of logic or syntax there, but the choice of words is unfortunate.  ‘Tenure’ and ‘untenable’ involve the same concept and stem – holding.  So, the proposition is that the holding is unholdable.  In defence of Mr Coorey, it might be said that the subject does cry out for Basil Fawlty.

TERROR AND THE POLICE STATE: CHAPTER 15

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[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]

15

Gulag

Some governments nowadays are keen to distinguish between detention centres and prisons.  They commonly want to make this distinction when they are at some kind of war with people trying to claim refuge in their country.  The government wants to assert that the attempted entry by the claimed refugee is illegal, but they do not want to say that people have been sent to prison because they have been found guilty by a court of breaking the law – because they have not been.  And for good reason, the regime does not want to have these people appear in their courts.  So, they say that these people are simply being held in detention, like naughty boys after a bad class, or foreign or suspected persons who are interned during a real war.  The immediate effect on a person inside a prison or detention centre is the same – the person has lost his or her liberty, the right that we regard as our most fundamental right.

In the period between 1789 and 1794, many people in France lost their liberty as a result of allegations made against them, and after the Law of Suspects was passed, many of those people lost their liberty simply because some allegation had been made, and without any intervention by a court.  As we saw, up to 300,000 may have been so detained.

The word gulag entered the appalled consciousness of the West with the publication in 1973 of The Gulag Archipelago of Alexander Solzhenitsyn.  Its impact was for many as great as the uncovering of the evils of the Reich.  It is fair to say that most people in the West have not been able to come to grips with the enormity or the horror of either.

The word Gulag was an acronym for the Soviet agency that ran the forced labour camps during the time of Stalin, but has since come to stand for the entire scheme of detention and forced labour.  For much of its life, it was run by the NKVD.  A large part of its population consisted of political prisoners and many were there without any judicial intervention.  In any event, Russia has never had a proper judiciary or even understood what the phrase ‘rule of law’ means.  The conditions in most were horrific – the inmates were cruelly treated, underfed, under-clothed, over-worked, exposed to the cold and all the elements, and subject to disease, and they were not aided when disease struck.

The estimates of the numbers who passed through the Gulag or died in it vary greatly because of the hugeness of the numbers involved.  Major population centres and infrastructure projects were built with what was in truth slave labour, and over the bones of those killed in the process.  As the Germans advanced in their invasion, the NKVD massacred many prisoners in order to prevent the Germans getting their hands on their labour.  The population in these camps at any one time may have exceeded ten million.  Unlike their Nazi counterparts, they had no camps set up for extermination only, but their numbers far exceeded those of the Germans.

Dachau in operation was shown in the German film The Ninth Day (Der Neunte Tag).  The fact that Dachau was not a death camp, as that term would come to be known, should not diminish its evil in our eyes.  Its inmates were not what we would call a threat to anyone, but they were all at the mercy of the terrorism of a vicious and amoral police state.  The guards came from the dregs of German society and on top of their natural envy and the need to strike back at the world, they were trained to hate those in their charge, many of whom would have been their social betters on the outside, such as the very many Jesuit priests, and any residue of humanity was drained from them.

The Germans then drew up elaborate rules of Byzantine complexity and cruelty which would provide a legal shield for the underlings and their cruel and small minds.  There was a kind of ghastly veneer of Teutonic order.  No matter what the previous position of a prisoner had been, they were all entirely within the power of the SS.  The SS operatives had no compunction in using and abusing that power to the full.  The wonder of it is that the suicide rate was not so much higher.

The regulations of the camps could have been written by Satan.  Prisoners who spoke of politics to incite others or arouse dread of the regime were to be hanged.  Sabotage or mutiny was dealt with less severely – those offenders were shot.  Other penalties included solitary, bread and water, lashing in public, being tied to a post, or withholding of mail.  Being put into ‘arrest’ in solitary in winter was often as good as a death sentence.

What kind of people just leave other people to freeze and starve to death?  How did they account for their work to their family over dinner at home at night?  What was it like to go daily between their own domestic peace at home and howling hell on earth in the camp over the way?  On one occasion at Sachsenhausen, an inmate trying to escape was badly beaten, then nailed into a wooden box, and then left there in the view of everyone for a week – until he died.

Each additional punishment – at the arbitrary will of morally deranged guards – carried an extension of the sentence, minutely and precisely reported in the books of record of the camp.  Most inmates would later say that the uncertainty about the length of their sentence was the heaviest load that they had to carry.  If you go to jail, you at least know your maximum time inside.

Every prisoner had to wear an inverted triangle on the left breast – black for asocial, green for professional criminal, red for political, violet for Jehovah’s Witness, pink for a homosexual.  Jewish prisoners were usually assigned to political, but had to wear an additional yellow triangle to form the Star of David.  They would typically be welcomed by being struck with truncheons or rifle butts as they were forced to run in, and the SS commandant might welcome them in these terms:  ‘You’re not prison inmates here, serving a sentence imposed by the courts, you’re just ‘prisoners’ pure and simple, and if you don’t know what that means you will soon find out.  You’re dishonourable and defenceless!  You’re without rights!  Your fate is a slave’s fate!  Amen.’

Sachsenhausen was infamous for two inhuman enterprises.  One was a brickworks which was to help rebuild Berlin.  The conditions were frightful.  They were manned by those on a Strafkommando, or punishment detail.  You could expect to survive for three months.  The record was 28 dead and over 50 injured in a day.  Many were shot ‘while trying to escape’.  Others were just flung into the water while barges were being loaded and then used for target practice for the SS.  At best you had just the work:  ‘Smoke, dust, and dense fog poisoned the air, whilst the deafening sound of clanging hammers, clattering chains and wheels, rattling machinery and the shrill whistles of the foreman prevailed from morning to evening….Soon my hands and face were covered in burns, breathing became difficult, the scorching heat made every movement torturous….It still puzzles me how I survived.’  This form of Hell was preferred for those wearing a pink triangle.  They were called the ‘175ers’ for the part of the Penal Code dealing with homosexuality.

The other inhuman enterprise – breaking in boots – was worse.  We are for the most part speaking of the conduct of people toward their own nationals, and, in two cases, people from two of the most civilised nations in the world.  If it matters, most of the thousands or millions of victims had not been convicted of any criminal offence.  How thin, then, is this veneer of humanity, much less civilisation, that we so glibly wear?

Passing Bull 136 – The either/or fallacy

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The Bill of Rights in the U S enables its Supreme Court effectively to make laws on sensitive political issues.  One example is the First Amendment.  It prohibits the making of laws that abridge freedom of speech.  In previous and purer times, the Justices had a lot of trouble squaring this protection with prohibitions on obscenity.  Surely people should not be heard to say ‘fuck’ and get away with it.  The Court developed a doctrine – in truth they made a law – that said that obscenity was ‘conduct’, not ‘speech.’

The issue came to a head in 1971 in a case about the Vietnam War and the draft in Cohen v California.  Mr Cohen got thirty days in jail for wearing a jacket that said ‘Fuck the draft.’  Under existing doctrine, the slogan was unprotected ‘conduct’ rather than protected ‘speech’.  The majority disagreed and set aside the conviction – and the jail sentence.  The minority was unrepentant, but they muddied the water in retreat.  They said that Mr Cohen’s ‘absurd and immature antic … was mainly conduct and little speech.’  Well, their Honours were not going to let the uppity Mr Cohen go unsmacked, but had that last proposition been put in argument, might not the response have been: in what way is being a little speech different to being a little pregnant?

But was not the whole argument premised on a fallacy?  Is it not a premise of the argument that there is an essential distinction between ‘conduct’ and ‘speech’ – perhaps what Fowler refers to as the ‘essential duality’?  The argument must be that if what we do is classified as ‘conduct’, it cannot be classified as ‘speech’.  But that is not the case.  The word conduct here means ‘things we do’, and one of the things we do is to speak.  (The Oxford English Dictionary is opaque: ‘Manner of conducting oneself; behaviour.’  For the verb, we get ‘to comport or behave oneself (in a specified way)’).  If I say ‘To hell with all politicians’ or ‘Fuck the draft,’ I am engaging in that form of conduct that we call speaking, or speech.  The former includes the latter; there is no necessary distinction between the two terms; and the whole basis of the argument falls to the ground.  The fallacy might be called the ‘either/or’ fallacy, or perhaps, ‘the false dichotomy fallacy’.

Another example of this fallacy can be seen in an AFR piece by John Roskam of the IPA about the movie Darkest Hour.  Mr Roskam says that the movie makes the point that people make history, and that our universities are wrong to preach – as he believes they do – otherwise.

In tertiary institutions individuals have been replaced by ideologies. The most common themes in those 746 subjects [undergraduate history subjects taught at Australian universities] are, in order, indigenous issues, race, gender, the environment and identity…..

The ideology of identity politics and the categorisation of people into pigeon holes according to personal characteristics that they had little or no role in choosing is that there’s no room for choices.

Now, for better or worse, it’s more than fifty years since I studied or taught history at an Australian university, but over the last fifteen years I have spent a lot of time in summer schools at Cambridge and Oxford studying history.  The tutors there are not interested in windy ideological suspirations.   But if an issue like this comes up, as it did in a course on Cromwell at Cambridge conducted by Dr David Smith, then the obvious answer is that people make history – and not vice versa.  I don’t know if there is a different current in our universities but then again, there is a lot that I don’t know about bogeymen of the IPA.

But the fallacy again is that there is no necessary distinction or exclusivity between what might be called the individualistic and the determinist views of history.  It is sufficient to recall the insight of Carlyle – history, our story, is a collection of biographies.  It’s about what people have done – their conduct, including what they said.  When Mr Roskam rehearses his demons – ‘indigenous issues, race, gender, the environment and identity’ – he is referring to labels applied by commentators like Mr Roskam to aspects or effects of what individual people have done.  Most history, even what is called microhistory, inevitably entails some generalization and labelling – and on a bad day, some graphs or tables – but that does not require us to believe that we are not talking about what people do.  There is no such thing as race, gender or identity alone and palely loitering.  Tolstoy obsessed about this in War and Peace, and Carlyle got onto trouble over allegations of hero worship, but for most of us, the issue just doesn’t arise

Of course, the conduct of Churchill had more effect on the outcome of World War II than the man who swept the floor of the Cabinet War Rooms.  Of course, Napoleon had more say about the impact of the French Revolution than the sans-culotte who got his first taste of blood on 14 July 1789.  But no one could write a history of those events by talking alone about named individuals.  Lenin was instrumental in the arrival of Communism in Russia; Gorbachev was instrumental in its departure.  But it is impossible to describe either story without feeling and speaking of the elemental forces that moved across all the Russias during those times.

Great lakes of watery ink have been let go on these themes.  If you ignore large issues like causation, you are exposed to the taunt of Voltaire: ‘If you have nothing to tell us except that one barbarian succeeded another on the banks of the Oxus and Jaxartes, what is that to us?’  But if you get carried away on the airstream of causation, you forget ‘man’s mysterious powers of breaking the laws of his own being.’  (Someone referred to the tragedy of all social sciences as that of ‘a syllogism broken by a fact.’  Against that, someone else said that ‘unpredictability is the privilege of the insane.’)  Karl Marx said: ‘History does nothing, it possesses no immense wealth, fights no battles.  It is rather man, real living man, who does everything – who possesses and fights.’  History is all about individuals, but their doings are commonly described in very large groups.

In What is History?, E H Carr put one aspect of our discussion this way:

The logical dilemma about free will and determinism does not arise in real life.  It is not that some human actions are free and others determined.  The fact is that all human actions are both free and determined, according to the point of view from which one considers them…..Cause and moral responsibility are different categories.  An Institute and Chair of Criminology have recently been established in this university.  It would not, I feel sure, occur to any of those investigating the causes of crime to suppose that this committed them to a denial of the moral responsibility of the criminal.

That looks plain common sense to me – except that if it is thought that there is some logical distinction between ‘real life’ and ‘history’, then I would reject it as groundless.

If you are asked to tell the story of what we have done, how much weight you give to the individual – hero or villain – and how much you give to the rest – Mr Roskam would not be keen on the ‘masses’ – are matters of degree and possibly taste.  But to suggest that there is a necessary logical distinction is, I’m afraid, just bullshit.

The either/or fallacy occurs when someone says you have to choose between A or B, and that they are inconsistent – when that is not the case.  It is related to the fallacy of the false dilemma.  A dilemma is false if it says that there are only two choices when in truth there are more.  What you generally get is that if you do not do A, you will have to go with B, which will be truly awful.  The truth is that there are other possibilities, but you face an attempt to induce you to believe that you have no real choice.

Here and there – Anthony Trollope on laws and morals

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The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

Passing Bull 135 – Greed, madness, and fraud

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In The Age on Saturday, it was alleged that the ‘prominent real estate figure’ John Mc Grath owes $16.2 million in gambling debts to the betting company William Hill Australia.  Mr Mc Grath has since denied that allegation, but according to The Age, he did not bother to respond to their written questions on the subject.  The paper said that the British parent is trying to sell William Hill.  That company is run by Tom Waterhouse, a figure of some colour and controversy in his own right.  Not surprisingly, some prospective purchasers have some questions about such a large debt.  Equally unsurprisingly, some of the shareholders of McGrath Real Estate Ltd have some questions about the impact of such a debt on the capacity of Mr McGrath to run a company that has attracted its own colour and controversy – all of the worst kind.

When asked about the debt of Mr McGrath, Mr Waterhouse said:

I am not aware of any individual client in terms of betting or whether they are a client, or not a client, whether it is Joe Bloggs or John whatever.

When it was put to him that the identity of such a gambler would be of critical interest to the betting company, Mr Waterhouse said that he would not say who the gambler was – if the company did in fact have a debt of that amount.  The identity of their clients is confidential.

He might be right on the last point, but the rest is pure bullshit.  It may remind us of the advice given to politicians – never tell a barefaced lie if you can bullshit your way through.  It’s just another indication of how the very idea of truth is sinking in the Trump sunset.

Should Mr McGrath have disclosed his gambling position to the publicly listed company, and should that company have disclosed it to the Stock Exchange?  Let me say two things.  If I was a shareholder – and I thank heaven I am not – I would like to have been told that the moving force of the company had what that distinguished football commentator Crackers Keenan called ‘attitudinal issues.’  Then, about twenty-five years ago, I was acting for a very large gaming entity that was subject to very close scrutiny from gaming and corporate regulators.  One regulator said that the company should disclose big losses to professional gamblers.  Had it done that, it may have had to disclose that disclosure to the other regulator.  This could have led to an infinite regress.  So, we issued serial greetings from Her Majesty to clear the air.

It is rare in the Inquirer in The Saturday Australian to find an assertion of verifiable fact.  It’s all just boxes, labels, and tribal grouping. On Saturday, Mr Paul Kelly was ruminating on the kind of things that that stable chews on.

The left continues to win the battle on defining issues.  With Shorten having embraced the integrity commission concept this week, it will be near impossible for the government to resist this initiative.  It is popular, populist, sanctified by retired judges, beloved by the progressive media and justified by a grand and fraudulent argument that it will restore trust to politics, a result not evident in any jurisdiction in this country where such commissions have long operated.

So, we get the same old tribal labels – left, populist, and progressive media – and no evidence.  Since I hardly know what left means, I cannot see why an integrity commission should be a left initiative.  Since I hardly know what populist means, I cannot see how it is different to popular.  But if the proposal for an integrity commission is as popular as Mr Kelly suggests, to the point where resistance is ‘near impossible’, why should the government resist it?  Isn’t it the function of democracy that government reflects the mood and purpose of the majority of the people?  Some states have introduced such bodies and their working has shown why they were needed.  No sane party in those states would propose getting rid of them.  Are federal government people somehow different or cleaner?

People who use labels like left, progressive and populist do not often say what labels they would accept – right, regressive, elite or doctrinaire puritan? – and it remains a mystery to me why the people who were so dogmatic about climate change are now equally dogmatic about integrity commissions.  They are like cattle lowing in a herd.  They are almost indecently out of touch, but does that make them conservative – whatever that means?

But the reason I cited that passage can be found in one word – fraudulent.  That’s an allegation of dishonesty.  The only identified targets are retired judges and progressive media.  (You will have seen the graffiti smear of sanctified.) Well, I couldn’t give a bugger if the target was the queen or the pope, or Donald Trump.  I don’t know whether the allegation derives from malice or laziness, but it was grossly unprofessional, and it would not be allowed by a decent newspaper.  It is another symptom of the decline in standards that must accompany any partisan divide.  And that paper is almost as loaded with fire and fury as Fox News.

Ah, well, on the facing page, Mr Kenny has found the answer for the Liberal Party – ‘their most bankable political asset, still, is that they are not Labor.’

Quod erat demonstrandum.  And may God give the rest of us strength.

TERROR AND THE POLICE STATE: CHAPTER 14

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[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]

14

Scapegoat

In Ancient Greece there was a practice or rite of casting out someone like a beggar or cripple or criminal in the face of some natural threat or disaster.  There are traces of a far older tradition in Syria when a goat would be invoked in the purification rites for the king’s wedding – a she-goat was driven out into the waste with a silver bell on her neck.  More recently, but before the Greek custom developed, the Old Testament, Leviticus 16:8, said that ‘And Aaron shall cast lots over the two goats, one lot for the Lord and the other lot for Azazel.’  The goat of the Lord was sacrificed, and the high priest by confession transferred the sins of himself and the people to the goat that was permitted to escape in the wilderness – where its fate would depend on what sort of predators it may have to contend with.  There was a form of atonement.  The goat that escaped became the ‘scapegoat.’  The traditions or rites might be said to prefigure the role of the Son of God being offered up to redeem mankind by atoning for its sins.  A scapegoat is one who is punished for the sins of others.  This ancient Middle Eastern rite has become a universal custom involving people rather than goats.

But the term has got much wider than that – a scapegoat now is not just one that has to answer for the sins of others; it has to answer for all the problems and failings of what might be called the host people.  So, in the most gruesome example, the Nazis held the Jews responsible for all the lesions on the German people, moral or economic.  The war had been lost only because of the failings of some generals and because Socialists and Communists had stabbed the nation in the back.  Once the German people got released from the hold of these forces of evil, it could realize its potential for the first time, and nothing could stand in its way.  The German character was not just innately good – it was superior; therefore the reason for any failings had to be found elsewhere.  The notion of scapegoat was vital to the perversion of what passed for thought under Hitler.  It is the natural first base for a weak and insecure person who is a moral coward.  It is also the kind of sloppy thinking that attracts insecure people, edgy commentators and journalists, and weak governments.

Scapegoats played a far smaller role in the French Revolution.  Pitt’s gold – bribes from the British government led by Pitt – came to be a convenient source of all of the discontents of the people, and the aristocracy and church were loathed and attacked.  They had been principal pillars of the ancien regime that had failed and that was being rejected and replaced, and large parts of the aristocracy and of the church were opposed to those seeking to advance the objects of the Revolution.  The émigré royals and nobles were a real and not just imagined threat, or one conjured up for the purposes of propaganda.  The aristocracy was no more of a scapegoat than the clergy.

Nor does it make much sense to look for the role of scapegoats in the Russian Revolution.  The convoluted theories of Marx would lead to serious differences of view upon implementation at the best of times.  They were predicated on classes being in a conflict that was terminal, and the theories had an apocalyptic and prophetic air that commanded an adherence that was most devout among those who did not understand the theories – which meant most Communists, let alone Russians.  To that you must had the cold egomania of Lenin, who hardly gave the theories a chance, and the manic paranoia of Stalin, who could not care less, and you see that it hardly helps us in our inquiries to ask if the kulaks may have been seen as scapegoats.  The thinking that determined who might be targeted by regimes led by Lenin or Stalin – or, for that matter, Mr Putin – may be something that just passes our understanding.

A scapegoat may afford a kind of out for a regime, but suspects are at least a potential threat to it, at least ‘suspects’ in the terms that we are about to see.  There is no reason why one person may not fulfil the criteria of more than one category.  An aristocrat may have passed through a journey in time from being an enemy, to a threat, to a suspect, to a scapegoat.  One of the infamies of Hitler was his treatment of the Jews as scapegoats.  One of the darkest parts of the French Revolution is seen to be the Law of Suspects.

That law did not say that certain acts are criminal – rather it just empowers some people to take some action against some other people without the intervention of a court.  But what is clear is that if you had been refused your Civic Card, or if your Committee did not think that you had steadily manifested your devotion to the Revolution, they could cause you to be arrested and be held in prison indefinitely – without any charge having been made or even any breach of the law alleged; without any evidence having been required, collected, or tendered against the target; and without any intervention from any kind of judicial officer whatsoever.  And all at the expense of the victim.

There is nothing in the law that says that a suspect may be executed or otherwise punished for a breach of the law – it merely says that one class of persons may be detained for the duration, or until the peace.  Some historians have believed that your being a suspect might of itself have led to the guillotine – this may have been so in fact, but not because of this law.  It is not at all uncommon to find a law permitting a government to detain certain kinds of persons in a nation at war.

Nor is there much point in talking about onus of proof.  That notion is hardly determinative if lay people are asking whether they ‘suspect’ someone within the terms of the relevant law.  If someone was charged with an offence, then under the general French law, those bringing the charge had to prove facts sufficient to found a finding of guilt.  That was the theory, but the practice was different – for the most part, there was a kind of presumption of guilt rather than innocence, and a kind of onus fell on the prisoner to ‘beat the charge.’  There was a sense that the prosecutor, judge, and jury were all on the same team, and someone on the outer had real trouble getting back into safety.

When the accused were tried, each found himself involved in vague charges, based on a casual word here, or a piece of gossip started by some malicious neighbour – charges which it was pointless to disprove in detail, but which in total were fatal.

In The Russian Revolution, Sheilah Fitzpatrick said this: ‘Suspicion of enemies – in the pay of foreign powers, involved in constant conspiracies to destroy the revolution and inflict misery on the people is a standard feature of the revolutionary mentality that Thomas Carlyle captured vividly in the passage on the Jacobin Terror of 1794…..In normal circumstances, people reject the idea that it is better that ten innocent men perish than that one guilty man go free; in the abnormal circumstances of revolution, they often accept it.  Prominence is no guarantee of security in revolutions; rather the contrary.  That the Great Purges uncovered so many ‘enemies’ in the guise of revolutionary leaders should come as no surprise to students of the French Revolution’.

As the French say, plus ça change, plus c’est la même chose.

Here and there – One genius on another

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By common consent, Isaac Newton was a genius.  He was born on Christmas Day, 1642.  There were obvious difficulties in celebrating the 500th anniversary of that event.  Instead, the Royal Society put on a week-long celebration in July 1946 at Trinity College Cambridge – the college where Newton had spent so much of his life and where he wrote Principia Mathematica. 

John Maynard Keynes went to King’s College, Cambridge.  He too, by common consent, was a genius – and only gnats straining at a camel (to quote someone expelled from University College, Oxford) would seek to compare or contrast the two.  Keynes would have experienced a special problem in celebrating Newton in 1942.  He travelled with the English delegation to Versailles after the First World War.  He was so outraged by the conduct of the Allies that he went back home and in something like white heat wrote a masterpiece of polemic – The Economic Consequences of the Peace.  In that book he forecast in precise detail why that peace would drive Germany to bankruptcy and to seek merciless revenge.  If you want to know precisely why World War II came about, you need do no more than read that book and Mein Kampf.  It is all there.

But although successive governments had ignored his advice, Keynes led the way during the war in funding it.  Then, after the war, he had to deal with American emissaries who were neither kind nor pleasant about repaying the debt.  The effort killed him.  It is not silly to say that Keynes gave his life for his country.  He was a man of uncommon devotion, not just to his country, but to his school, Eton, and to his college, King’s College at Cambridge.  So, when he heard that Newton’s papers were going up for sale, he intervened personally to buy a large selection and index it.  On the basis of that work, he wrote a paper Newton, the Man in 1942.  He died before the Tercentenary Celebrations in 1946, but the paper was read by his brother, and you can get it in a slim but handsomely bound volume of those proceeding published by the Royal Society in 1947.  A reference to that paper in a biography of Newton that I re-read recently led me to acquire a copy of that volume – mainly so I could read the paper of Keynes, a man I admire so much.

In taking science away from the theories of Descartes, Newton explored three fields to lay the foundations of modern science – the calculus, the nature of white light, and universal gravitation and its consequences.  The first substantive speaker at the Celebrations said that ‘Einstein’s innovations were less revolutionary to his time than Newton’s were to his.’  Einstein had said that ‘Nature to him [Newton] was an open book whose letters he could read without effort.  In one person, he combined the experimenter, the theorist, the mechanic, and, not least, the artist in expression.’  Newton said, at one time or another:

Philosophy is such an impertinently litigious Lady, that a man as good be engaged in lawsuits, as have do with her.  I found it so formerly, and now I am no sooner come near her again, but she gives me warning…..the cause of gravity is what I do not pretend to know…..I do not deal in conjectures….I do not know what I might appear to the world; but to myself I seem to have been only like a boy, playing on a seashore, and diverting myself, in now and then finding a smoother pebble or a prettier shell than ordinary, while the great ocean of truth lay all undiscovered before me.

Voltaire said to a man who had measured the equator in order to verify a calculation of Newton:

Vous avez trouvé par de long ennuis

Ce que Newton trouva sans sortir chez lui.

(Roughly: ‘After great troubles you found what Newton found without leaving home.’)

The citation from Keynes that first caught my eye read:

Newton was not the first of the age of reason.  He was the last of the magicians, the last of the Babylonians and Sumerians, the last great mind which looked out on the visible and intellectual world with the same eyes as those who began to build our intellectual inheritance rather less than 10,000 years ago.  Isaac Newton, a posthumous child born with no father on Christmas Day 1642 was the last wonder-child to whom the Magi could do sincere and appropriate homage.

Later, Keynes said:

For in vulgar modern terms, Newton was profoundly neurotic of a not unfamiliar type, but – I should say from the records – a most extreme example.  His deepest instincts were occult, esoteric, semantic – with profound shrinking from the world, a paralysing fear of exposing his thoughts, his beliefs his discoveries in all nakedness to the inspection and criticism of the world.  ‘Of the most fearful, cautious and suspicious temper that ever I knew’, said Whiston, his successor in the Lucasian Chair.’……Why do I call him a magician?  Because he looked on the whole universe and all that is in it as a riddle, as a secret which could be read by applying pure thought to certain evidence, certain mystic clues which God had laid about the world to allow a sort of philosopher’s treasure hunt to the esoteric brotherhood…..He regarded the universe as a cryptogram set by the Almighty…..

Newton was a magician in another sense.  He was fascinated by alchemy and the occult.  He believed that truths could be sought in alchemy and in papers and traditions handed down by the brethren in a kind of apostolic succession from the original cryptic revelation in Babylon.  Some scientists have been scandalised by these preoccupations of the great man.  A bit of hushing up was in order – as was the case with Newton’s denial of the Trinity.  Of the papers that Keynes obtained, he said:

Another large section is concerned with all branches of apocalyptic writings from which he sought to deduce the secret truths of the Universe – the measurements of Solomon’s Temple, the Book of David, the Book of Revelations…..Along with this are hundreds of pages of Church History and the like, designed to discover the truth of tradition.  A large section, judging by the handwriting amongst the earliest,  relates to alchemy – transmutation of philosopher’s stone, the elixir of life.  The scope and character of these papers have been hushed up or at least minimised by nearly all those who inspected them…..

…..But there are also extensive records of experiments.  I have glanced through a quantity of this – at least 100,000 words, I should say.  It is utterly impossible to deny that it is wholly magical and wholly devoid of scientific value; and also impossible not to admit that Newton devoted years of work to it.

Well, being a genius doesn’t mean that you are not human, and the timber of humanity is not straight.  Keynes had been a thoroughly queer member of ‘The Apostles’ but he later settled into sedate married life with a Russian ballerina.  He would say that Newton was walking ‘with one foot in the Middle Ages and one foot treading a path for modern science.’  And who is to say that Newton’s penchant for fads about the medieval and the occult did not serve to grease the cogs in his brain and imagination and help to direct him to walk along paths and byways not even guessed at before?  The inscription at Westminster Abbey reads: ‘Let mortals rejoice that such and so great an ornament of the human race has existed’.

The English have a knack of getting the most out of their geniuses.  Newton and Keynes both studied mathematics at Cambridge.  They would also have two other things in common.  Both served their nation on matters of finance at the highest level – Newton as Master of the Mint, and Keynes as the man who financed England in World War II.  Then, each had to survive a financial crisis that wiped out so many people – the South Sea Bubble and the Great Crash and Depression – but each died a very wealthy man.

Keynes concluded his remarks on the papers of Newton as follows:

As one broods over these queer collections, it seems easier to understand – with an understanding which is not, I hope, distorted in the other direction – this strange spirit, who was tempted by the devil to believe at the time when within these walls he was solving so much, that he could reach all the secrets of God and Nature by the pure power of mind – Copernicus and Faustus in one.

Passing Bull 134 – Useless words

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It was a comfort to see government moving to try to do something about the scourge of gambling.  The gaming industry may not be the killers of the tobacco companies, but they live off the earnings that they derive from wrecking lives.  They are evil.  They also ruin the TV coverage of sporting events with blanket advertising designed by crooks to appeal to idiots.  That is now the modus operandi made famous by Donald Trump.  They also employ the technique of Saint Ignatius Loyola and McDonald’s – get’em young enough and you have them for life.  There is now a whole generation of people conditioned to associate any sport or contest with gambling – and they all carry around an SP bookie and a totalisator in their pockets.  It’s a deadly cocktail, an ugly dance between thieves and fools.

And what have we done so far?  We have insisted that they put out the message: ‘Gamble responsibly.’  That’s even less use than ‘Shag safely’ or ‘Drink in moderation’, or the source of a political ad, spat out at you with the speed of Bren gun.  It’s also an insult to our intelligence and a confession not just of failure but of helplessness and the never ending mediocrity of our politics.

It was also a comfort to see the AFL doing something about the reliance of so many of its clubs on income derived from gaming, and poker machines in particular.  You don’t see too many brain surgeons or nuclear physicists queuing up to give their money away to machines that are programmed to give back a fixed amount less than what they receive.  It is, frankly, hard to see how a club can call itself the ‘Family Club’ when it depends on income derived from bringing misery to families.  I am not blind to economics, but I can’t see why the AFL could not put in place a program to ensure that after, say, ten years, it will be ‘clean’.

The financial press, and at least one shareholder, did not take comfort from the CBA announcement of its new CEO, an in-house appointment of a man who was in charge of retail banking.  The Editor of the AFR wondered if the decision was ‘crazy brave or just plain crazy.’  Many, it seems, had hoped for new eyes to look over the wreckage that was a main propellant of the Royal Commission and that made Mr Narev one of the most unloved figures in Australian public life.  Instead, the new old boy put on a Keystone Cops performance for the press, and the Chair, Catherine Livingstone said, with her best Presbyterian headmistress mien:

With Matt [Comyn’s] appointment today, the board believes we are delivering renewal and change, but change that will build on the many strengths of the organisation that have been enhanced or introduced on Ian’s watch,…The board’s main priorities in selecting the new CEO were to identify the candidate who will … transform the business and adapt the organisational capability and culture.

For some reason, that reminds me of Theresa May talking about Brexit, or a geography teacher talking about weather patterns in a Patagonian autumn.  Do you not think that we shareholders – yes, dear reader, I am one of them – could at least have been spared a reminder of ‘Ian’s watch’?  That’s about as sensitive as asking Adam if he still thinks it was a good idea to follow his squeeze and partake of the apple.  But, as bullshit goes, this is as refined a grain as you find.  And it does suggest that only one thing matters for the directors who manage the business of our banks – profit.  Greed remains good.

By contrast, the CEO of another bank found his bank’s submission to the Royal Commission ‘confronting.’  You would think that they may have learned from the scandals that led to another Royal Commission.  What inflames ordinary people is just what gets up the noses of sentencing judges – the absence of remorse.  One of the factors that distinguish clergymen from bank executives is the rate of pay – about ten thousand per cent, say.

Nor was it a comfort to be reminded that Stephen Conroy now fronts for the gaming industry.  In addition to collecting the pension that you and I pay him, he now gets filthy lucre for spreading misery among his fellow Australians.  Is it not time that these double-dipping racecourse touts, bludgers, layabouts, and urgers were brought to heel?

TERROR AND THE POLICE STATE: CHAPTER 13

/ Geoffrey Gibson / 2 Comments

 

 

[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]

13

Popular courts and show trials

The phrase ‘popular justice’ is usually a contradiction in terms – a ‘show trial’ is generally all show and little or no trial.  Two elements are essential to our conception of due process or natural justice.  The body hearing and determining a legal dispute must be neutral and not have an interest in the outcome issue that might prejudice its hearing; and it must give an equal opportunity to both sides to be heard on the issue.  Instances of popular justice and show trials commonly violate each of those precepts quite shamelessly.

A popular court nowadays is likely to be a descendant of the posse, either the medieval common law version or that which was popular in the Wild West, and the lynch mob.  Their political counterparts now are opinion polls and shock jocks, those two forces that demean all decency in democracy.  Just as our politicians now are seen not to act on principles but to respond merely to what people want at the time, so a popular court will be seen, and most likely be welcomed in being seen, to be acting not according to law, but merely to respond to what people want at the time.

The problem can be seen in the term ‘enemy of the people.’  It is ‘the people’ who make that allegation, and if it is ‘the people’ which hears it, then the mere laying of the charge – that in effect says that ‘you are against us’ – just about proves any case, because ‘we’ are gainst ‘you’.  If in a time of conflict, a government says that it is entitled at law to apprehend anyone who is seen to be against or is suspected of being against it, the issue of whether that person has been lawfully apprehended is also effectively answered.  If the only penalty or remedy for being apprehended in that condition is death, then any hearing on any aspect is likely to be at best perfunctory.

The problem is the same if the criterion is being anti – or counter-revolutionary.  Those bringing the charge are those who claim to be behind and to represent the revolution.  The object of the revolution is to do good for the people.  It follows that someone who is against the revolution is against the people.  If you accept the premises, the logic is sound; shock jocks and the gutter press – the descendants of Marat and Goebbels – trade on it all the time.

What you see a lot of in a police state is people who become outlaws – people who are outside the law or beyond the protection of the law.  This was a major part of the enforcement of the law for our Anglo-Saxon ancestors.  A criminal taken in the act was without more an outlaw.  The issue is not whether he has committed a crime, but whether he has become an outlaw, which was effectively a sentence of death.

People making a revolution will want to invoke people’s courts because they claim to stand for the people, and because they say that the people can be relied on to meet current needs better than the old-fashioned and cumbrous system of the judges which was designed to protect the status quo and to shield the guilty.

The Paris Commune asked the Assembly for a revolutionary tribunal.  One deputation said said: ‘The Commune has deputed us to ask for the decree on the court-martial.  If it is not passed, our mission is to wait until it is.’  Robespierre said: ‘If the maintenance of the peace, and above all, of liberty, depends on the punishment of guilty men, you must secure the machinery for this.  Since the 10th [August, 1792, that set up the Paris Commune] the people’s just desire for vengeance has not yet been satisfied….Those men who have covered themselves with the mask of patriotism in order to kill it, those men who affected the language of legality in order to overthrow all the laws….’(Applause.)

The French did not really go in for show trials during the Terror.  A show trial is not a trial at all.  It is a sham.  A trial involves reaching a decision on an issue.  That does not happen in a show trial – the decision on guilt has already been taken by people in government who have the power, either by law or in fact, to take and enforce that decision.  The ‘trial’ is a show for the benefit of the regime, a propaganda exercise to demonise the culprit and to lionise themselves.  It is little like a triumph celebrated by a conquering Roman general on returning victorious to Rome – you humiliate the vanquished as part of the bread and circuses that you feed to the masses; that makes them feel better and it makes you look good.

Hitler saw himself like a Roman emperor or Turkish Caliph, or perhaps, in a lesser moment, as a medieval English king, the source of all law, justice, and authority.  His principal weapon in gaining and maintaining power, the Gestapo, was beyond the reach of the law.  The trial after the burning of the Reichstag was a show trial that flopped.  The court gave a considered judgment.  Having been harangued by Goring, the court concluded that the Communist Party had planned the fire, but that there was insufficient evidence to justify a conviction of the Communists before it.  Hitler and Goring were outraged.  Was not their word good enough?  ‘Treason’ cases were transferred to a special People’s Court by a decree of 24 April 1934.  It dealt with ‘political’ offences.  The decree provided that it should proceed according to National Socialist principles.  Like the French Revolutionary Tribunal, it started slowly but it then picked up speed.  If the Gestapo did not like a result, they would put the released culprit into ‘protective custody,’ or just shoot them.

It is not just Germans who should reflect on these questions.  Lawyers from what used to be East Germany had to face similar questions after the Wall came down in 1989.  These are not easy issues for lawyers or judges who have never been exposed to a regime like this to pass some kind of judgment on.  In April 1933, the Civil Service Law applied to all magistrates and got rid of not just those who were racially undesirable, but those who were politically undesirable – anyone who ‘indicated that he was no longer prepared to intercede at all times for the National Socialist State.’  A Civil Service law of January 1937 called for the dismissal of all officials, including judges, for ‘political unreliability.’ Defence lawyers appearing before the People’s Court or Special Court had to be approved by Nazi officials.  How many lawyers will put their hands on their heart and say that they would have refused to accept such sanctions?

There is not much point in looking at the Russian justice system since Russia has never had a justice system in the European sense of that term.  The Russians have never acquired any sense of the rule of law.  They have gone from the absolute rule of the Tsars to the absolute rule of the Communists to the present uncomely collage of a tolerated corrupt despotism and a subservient legal system.  The very idea of a judiciary was quaint; that of a separate and independent judiciary was absurd.  Yet a man as cruel and paranoid as Stalin would not be able to resist the idea of a show trial, just as Hitler would want to see the frightful death throes of people convicted of trying to kill him – when they were filmed being left to die by strangulation while suspended by piano wire.  One historian says of the show trials: ‘This is revolutionary terror with a difference; one feels the hand of a director, if not an auteur.’

There were clusters of show trials where the accused appeared to make confessions that many found less than convincing.  However, many people outside wanted to believe in the process until the whole regime was unmasked by Khrushchev in the 1950’s.  It is another indication that people believe what they want to believe.

Passing Bull 133 – The agony of CNN

/ Geoffrey Gibson / 2 Comments

 

The President of the United States might allow us to add the concept of ‘worst man’ to that of best man.  It’s hard – very hard – to think of anyone less suited to his office.  (Steve Bannon or Stephen Miller?  How could an Almighty be so peevish as to put three such unlovely people in the one room at the same time?)  This gives journalists a problem.  How do we maintain a balance in reporting on a man who seems bent on outstripping himself in nastiness every time he opens his mouth?

CNN is up there with The New York Times as a bête noire of this president.  Given his historically great unpopularity, this would suggest that these two arms of the media are just doing their job.  (It does make you wonder how a politician elected on what is said to be a ‘populist’ ticket can get to be so unpopular.)  But, each of these reporting bodies is respectable, and each therefore may feel acutely the problem of balance.

CNN has in my view come up with the worst possible solution in segments broadcast from Los Angeles anchored by two very sensible and professional journalists, Isha Sesay and John Vause (one of whom is a graduate from Trinity College, Cambridge).  In a nation overloaded with qualified neutral commentators, such as the splendid professor from Loyola Law School who appears on this segment, CNN has inflicted on these two journalists the job of trying to extract sense from sundry partisan spin doctors – one giving Republican spin and the other giving Democrat spin.  Some at least have the grace to blush occasionally, but you will see immediately one problem – in the events that have happened, what, if anything, do Republicans believe in?

The more significant problem is that what drives most people mad is the polarised spruiking and preaching of soi disant politicians and members of the press.  It’s called tribalism.  The ultimate bogey man is Fox News.  (The Murdoch outfit down here, Sky News, is not as bad, but they are working on their game and they may catch up with the U S model.)  The worst of the lot are what are called spin doctors.

But they are precisely what CNN is inflicting on these two fine journalists – and me.  It’s an insult to them, and it’s an insult to me.  If you wanted an analysis of a contest between the Green Bay Packers and the New England Patriots, you wouldn’t set up a panel consisting of one-eyed desperadoes from the cheer squads of each side.  That would really get up our noses.  What light could be shed by those galahs?

But that is what we get here – cheer squads.  And to show their credentials as spin doctors, we are greeted by men with drop-down smiles like those of Barack Obama, or those that were painted on to the faces of what used to be called air hostesses.  One is so inane that he has no recourse but to giggle at himself – nervously and guiltily.  And there is much reason for both the nerves and the guilt.  The poor man sounds demented at times, as when he raves on about Hillary and Nazis.

It is deeply troubling to watch people grin about something like Charlottesville, Roy Moore, or shitholes.  But that’s what we get – until we turn it off in disgust.  If the object has been to show that the Republicans stand for nothing, or that the average American voter is easily duped, the segment has prospects.  Otherwise it is even worse than morning television.  In an effort to convey an impression of balance, CNN has brought itself into disrepute.

Whether or not this kind of thing finds favour in America, it is doubly offensive down here.  If we want partisan humbug, we can turn on Fox News.  But to get access to either CNN or Fox News, we have to pay a hefty monthly premium to a Murdoch entity that has the rights here.  So, in return for paying Murdoch a fee to enable us to avoid polarised claptrap, CNN is inflicting just that on us poor but suspecting Australians.

The issue came to a head the other night – our time – when Isha Sesay was getting the usual brush-off from a sour-pussed Republican about African shitholes.  Ms Sesay was moved to announce that she is African and that words matter.  That led to another zany pre-recorded political speech.  We pay our premium to get accurate news and fair comment.  This process serves to annihilate both.

This may just be Rupert’s ultimate revenge, but it is so sad that a respectable broadcaster is his accomplice.  It is silly to pile inanity on inanity.