Passing Bull 153 – Punishing universities

 

The Australian today had a piece by Senator James Patterson.  The headline was:

IT’S TIME TO PUNISH UNIS THAT WILL NOT TOLERATE FREEDOM OF THOUGHT

It included the following.

The Australian National University’s decision to cancel plans for a bachelor of Western civilisation has highlighted the rampant anti-Western bias that exists at many Australian universities.

But the administration’s decision to cave in to internal pressure should have surprised no one. It is merely the latest in a long line of incidents that expose the perverse incentive structure Australian universities face. Because of this, universities will almost always abandon intellectual freedom and viewpoint diversity whenever it brings them into conflict with the vocal minority of ideological enforcers who believe our universities belong to them.

Clearly, the existence of this requirement isn’t enough to counteract the pressure that university administrators face from an angry minority hell-bent on enforcing its ideological hegemony. In order to strengthen their hand, the government should directly tie funding to compliance with the requirement to uphold the fundamental values of free speech, academic freedom, and viewpoint diversity.

Only imposing real, financial consequences will bring an end to the kind administrative cowardice that was epitomised by the ANU’s decision to cancel its proposed course on Western civilisation.

The article may or may not have warranted the headline.  But it certainly says that the government should impose ‘real financial consequences’ if universities fail ‘to uphold the fundamental values of free speech, academic freedom, and viewpoint diversity.’  It would be idle to contend that this adverse financial result’ does not involve a form of fine, penalty or punishment.  The Senator wants this adverse financial result to deter universities from a certain kind of conduct.  And the conduct that the senator wants the government to deter universities from is failing to toe the government line on ‘free speech, academic freedom, and viewpoint diversity.’

The senator doesn’t say what form of process should be followed to impose or enforce such a deterrent.  Presumably, he does not envisage a criminal sanction imposed after a hearing before a judge with or without a jury.  But I expect that he would allow that any adverse administrative decision would have to be made after due process – that is to say, after a hearing of the allegation by the government and the response to that allegation by the university – and subject to judicial review or review on the merits by the AAT.  As recipes for corporate seizure go, that will be hard to beat.  And what a birthday for lawyers and bull-artists.

The more fundamental issue is that to preserve what the senator calls ‘free speech’ and ‘academic freedom,’ he wants the government to penalise a university that chooses to speak freely and to preserve academic freedom – if the university acts in such a way that the government does not approve of.

It is arrant, childish nonsense to say that to preserve free speech we must penalise it.  Even the great evangelist, Jean-Jacques Rousseau, would have ducked that one.  The senator takes as his text the decision of the ANU on ‘western civilisation.’  Presumably, he would also like to deter universities who do not wish to follow the party line on another bête noire of the IPA, s 18C.  The reaction of the ideologically committed to the decision of the ANU proves – at least to my mind – that they acted correctly in seeking to keep their university free of the type of propaganda advocated by these zealots – who choose to boast of their zeal for propaganda in Quadrant.

The senator has been there for about five minutes.  He could do us all a big favour by going off to get a real job for twenty years or so and coming back when he has grown up.  If our universities are to be criticised, it is for unleashing on us people like the senator, and the lady with the piece above his, Jennifer Oriel.  Her piece is at once as disturbing but predictable as that of the senator.

Bloopers

Premier Daniel Andrews posted a series of tweets yesterday in which he said women were not responsible for the decisions of men who attacked them.

His comments came after a senior Victoria Police officer was criticised for suggesting women had to take responsibility for their own protection.

‘Eurydice died because of her attacker’s decisions — not because of her own,’ Mr Andrews wrote. ‘And we need to accept that fact … We’ll never change a thing until we do.’

‘We’ll never change this culture of violence against women’.

‘Stay home. Or don’t. Go out with friends at night. Or don’t. Go about your day exactly as you intend, on your terms. Because women don’t need to change their behaviour — men do.

The Australian, 16 June, 2018.

The Premier is indulging the either/or fallacy – if there are two possible causes of an event, you have to choose one to the exclusion of the other.  He also appears to think that we can change human nature.  That’s as silly as saying that we have the right to walk home safely.

Passing Bull 152 – Civility and civilisation

 

In commenting on the current White House, a friend of mine said: ‘Civility, a basis for any form of good human relations, is completely absent from their dealings with everybody’.  That struck me as true.  I looked up ‘civility’.  The Compact OED has ‘politeness and courtesy’.  The OED itself says ‘The state of being civilised’ is archaic, but offers ‘Behaviour proper to the intercourse of civilised people; politeness…Seemliness.’

The last reference reminds us of the word ‘unseemly’, a word we use all the time to describe the conduct of Donald Trump.  In discussing ‘civilisation’ elsewhere, I said that ‘Put shortly, a group of people may be said to be ‘civilised’ to the extent that its members are ‘civil’ to others.’  I see no reason to change that view – indeed, the havoc being wrought by the present White House reinforces it.

Most Australians could not give a hoot about the current debate about teaching western civilisation at universities, but, for the entertainment of at least some of us, it is really getting worked up the usual suspects at the IPA, The Australian, and Sky News.

For example, today’s Australian has a piece rubbishing the ANU and extolling the virtues of western civilisation.  One of its best selling points is, apparently, the Reformation.  Since this affirmation came from Kevin Donnelly, the champion of Catholicism, it made a substantial contribution to my enjoyment of my weeties – but, then, as I recall, Tony Abbott had made a similar claim in describing what he saw as a failure of Islam – and I thought that was hilarious, too.

It is I think fair to say that historically universities have made a hash of talking about the civilisation of the west.  Cambridge and Oxford are still hopelessly imbued with idea that ancient Greece and Rome were civilised.  Elsewhere, I said:

The Oxford English Dictionary defines ‘civilize’ as ‘to make civil; to bring out of a state of barbarism, to instruct in the arts of life; to enlighten and refine’.  People who extol ancient Greece and Rome as ‘civilised’ obviously use the word in this final sense.  They see ‘enlightenment’ and ‘refinement’ as being enough to outweigh the barbarity of slavery or their many-godded naturalistic religions.  They see civilisation even though neither Greece nor Rome had then been blessed with the respect for the dignity of each human life that is at the foundation of the Judaeo-Christian tradition and which is elemental to our concept of ‘civilisation’.  Unlike Hamlet, the ancients had not heard the beautiful notion ‘that there is a special providence in the fall of a sparrow.’

The reference to the dignity of each human life is important.  In his piece this morning, Mr Donnelly referred to ‘the inherent dignity of the person’.  The notion comes not just from religion, but from Kant and other leaders of the movement called the Enlightenment (to which Mr Donnelly also refers).

But let us go back to the connection between civility and civilisation – and the unseemliness of the White House.  No one would say that Donald Trump represents whatever we might mean by western civilisation.  No one would say that he represents civility.  He is the antithesis of both.  Worst of all, no one would say that Donald Trump believes in ‘the inherent dignity of the person.’  He is dedicating his presidency to the obliteration of that dignity.

All that makes it curious that those who are loudest in supporting the teaching of western civilisation are often those who support Donald Trump.  For example, in this morning’s Australian, we find Mr Greg Sheridan saying:

Now, it should be remarked straight away, if Kim lives up to this commitment, then Trump will go down in history as a great statesman. But while we must remain open to that possibility, there is no real indication that it is likely.

If there was any doubt that Trump is a disgrace to his nation and his office, it was blown away by the appalling lack of civility that Trump and his ministers showed last weekend to his allies – and, if it matters, the leaders of those nations that truly represent what might called the flowering of that evanescent thing called western civilisation.  In order to qualify as a statesman, you have to be skilled in the management of public affairs – and you have to be civil.  Trump is disqualified on both counts.

Another disqualification for Trump is that any view of western civilisation must entail a subscription to the rule of law.  Trump treats the rule of law with contempt.

This discussion suggests that those who wish to promote the teaching of western civilisation need to refine what they may have in mind.  It may help to remember in this and other discussions that being ‘civilised’ entails being civil.

Then there is the epithet ‘western’ – presumably, as opposed to ‘eastern.’  At least one problem then is that when we say that we are inherently different to other people, we rarely think that the other people got the best deal – we nearly always think we are better off than them.  That is not the path that we want our university students to tread.  On one view, it is the root of intellectual evil.  What I have not seen in any of this discussion is any claim that western civilisation is in some way inferior to the eastern variety.  That would be like saying that you can get a better feed from a Chinese take-away than at the Tour d’Argent.

Passing Bull 151 – Politically motivated charges

 

If I see the man who ran over my dog shoot his wife, I may be happy to report him to the police – not out of respect for his wife, or the law, but because I have it in for him for what he did to my dog, and I want to see him suffer.  You might then say that I was moved to report the man out of what the law calls malice. 

Very few lawyers, even libel lawyers, know what that word means, but Oliver Wendell Holmes defined it in a way that meets our case – ‘when we call an act malicious in common speech, we mean that harm to another person was intended to come of it, and that such harm was desired for its own sake as an end in itself.’  A finding of malice may have consequences in both our civil law and criminal law, but in the example I have given above, what effect could or would such a finding have?  If I have in truth seen the man shoot his wife, and I report that to the police, what difference does it make if I am happy to report him because I hate him?  My state of mind is not relevant to the validity of the steps the police will take in acting on the information that I provide to them.

Attacking the prosecution may well therefore involve a fallacy if the attack is said to reflect on the validity of the charge that is the subject of the prosecution.  In Plato’s Apology, the author purports to set out the response or defence of Socrates to the charges brought against him before an Athenian jury.  The document is almost scandalously fallacious from start to finish.  Socrates says that he has become unpopular because he is a good philosopher.  You do not destroy the validity of a charge by impugning the motives of those who lay it.  A charge is not invalid because it is brought with malice (although there may be avenues of attack).  Nor for that matter must it fail just because the informant does not believe it.  Its validity is the question for the court, not the parties. So, when Socrates says that his accuser Meletus does not care about the substance of the charges, this, too, is irrelevant – at least in our procedure.  All these responses are spurious – they are in truth just common garden examples of the ad hominem fallacy.  The attack is on the man, and not the argument.

In order to make good a suggestion that a prosecution is infected by political motivation, you would need to show that not just the original charge, but the whole process of the criminal law, was politically bent against the accused, so that he or she was denied due process.  We now believe that to have been the case for the witch hunts at Salem or those conducted by Senator McCarthy.  It was clearly the case in the show trials conducted by Stalin and Hitler.  In a performance that was hilarious even by its standards, the IPA levelled that charge on Friday against the Royal Commission into Banks.

But the most outrageous instance of the fallacy comes with the response of Donald Trump to the investigation by the Special Counsel, Robert Mueller.  Trump does not just attack Mueller personally.  He intones parrot-like, as is his wont, that the inquiry is a witch hunt.  The irony is that although Trump would not have the faintest idea what a witch hunt is, that is precisely what he is engaging in against his own FBI and Department of Justice.  There are Reds under every bed, and the deep state is everywhere against him.  The conspiracy theory is nearly perfect – we have trouble seeing the evidence because the malefactors are so cunning and their arts and crimes are so dark.

That was just about the response that Don Quixote gave to Sancho Panza from time to time.

Be quiet, friend Sancho.  Such are the fortunes of war, which more than any other are subject to constant change.  What is more, when I come to think of it, I am sure this must be the work of that magician Frestón, the one who robbed me of my study and my books, and who has since changed those giants into windmills in order to deprive me of the glory of overcoming them, so great is the enmity that he bears me; but in the end, his evil arts shall not prevail against this trusty sword of mine.

Substitute the Deep State for Frestón, and there you have the Donald.  The Don was of course quite mad.  Trump may or may not be mad, but the faith of his supporters knows few bounds.  They were after all prepared to join in the mindless chant ‘Lock her up’ in response to the invitation from a bemedalled ourangatang who is now on his way to the slammer – unless he rats on his Commander in Chief.

What do I think of witch hunts?  I was very taken by the remark of an English judge way back in 1712.  His Lordship was moved to observe that there was no law gainst flying.

Bloopers

If I hear about culture, leadership or trust one more time I think I’m going to tear my hair out. The royal commission into financial misconduct has unleashed a barrage of calls for better, stronger and more resilient leadership and culture at the nation’s major financial institutions.

The new chief of the corporate regulator, James Shipton, gave a speech on Thursday emblematic of this trend, suggesting the ‘trust deficit’ in finance could be improved by ‘rebuilding culture from deep within’, more ‘sustained engagement’ and ‘active stewardship of assets by investors’, alongside ‘more intensive and dedicated supervision’.

‘It’s time for Australia’s financial services sector to remember its purpose’ he declared, in words unlikely to ruffle a feather anywhere.

Adam Creighton, The Australian, 19 May, 2018.

Bullshit is an occupational hazard for some positions – almost any at ASIC.

Passing Bull 151 – Civilisation of the West

 

You can stand by for a tsunami of bullshit about ‘western civilisation’ following the efforts of private patrons to stimulate the study of that subject at tertiary level.  A devotion to western civilisation has become popular if not de rigeur to those on one side of what are called culture wars.

Civilisation is a bit like an elephant – you may not be able to define it, but you know it when you see it.  Well, that used to be the case, but I doubt it now.  Elsewhere I said:

In my view a nation or people cannot call itself civilised unless each of the following five criteria is met. 

  • It has a moral code that respects the person and the dignity and the right to property of each person in the group.
  • It has a mature and stable form of democratic government that is willing and reasonably able enforce that respect and those rights, and to preserve its own democratic structure. (I have opted for democracy because it seems to be the fairest mode of government and to be the best able to deliver the other objectives.)
  • It observes the rule of law, including the proposition that all are equal before the law, and it seeks to protect the legal rights of its members.
  • Its working is not clogged or threatened by corruption.
  • It seeks to allow its members to be able to subsist and, after providing for their subsistence, to have sufficient leisure to pursue happiness or improvement in such ways as they may choose, provided that they do not harm others.

All that would have been Greek to Kenneth Clark.  There is no mention of religion, art, beauty, courtesy or refinement.  (Just imagine if you sought to apply any of those five criteria to the current White House.)  If Clark ever spoke about the rule of law or corruption I missed it.

Most of Asia, Africa and South America have trouble on each heading and face disqualification on each of the middle three.  But when you look at the rest – referred to as ‘the western world’ – you get little cause for comfort.  One Oxbridge version of civilisation was said to have been born in ancient Greece and Rome.  I regard that suggestion as silly – slavery and empire alone are two disqualifiers – but modern Greece and Italy do not offer good government and they pose as big a threat to the European Union as the U K.  Poland and Hungary look equally unattractive for other reasons.  Spain may recover and survive.  That leaves France and northern (Protestant) Europe.  The U K and the U S are sharply divided on issues that affect how their historical inheritance of good government and economic management may pass on to the next generation.  Their moral and intellectual collapse has appalled their friends.  It would be idle to suggest that Donald Trump understands much less respects ‘western civilisation’.  His supporter, Nigel Farage, is not much better.  The U S is forfeiting its status as leader of the western world.

The people who are called ‘populists’ are driven by those with a chip on their shoulder who want to throw over the establishment and inherited traditions.  They are not there to promote civilisation in any of its forms.  The glue that held together the old view of western civilisation – Christianity – is dissolving.  It and other major institutions have ceased to command respect.  Philosophy died years ago and has not left much treasure.  Inequalities of wealth and income are getting worse and do not look like getting better.  And that’s before we recall that the unimaginably rich tyros of technology are providing us with toys that dull minds and abolish manners.

It will therefore be interesting to see how the champions of western civilisation tout its values during the next rounds of the culture wars.  It’s probably just as well that most people frankly couldn’t give a damn.  Indeed, that may just be the foundation of their claim to be civilised.

Bloopers

Politicians, like the rest of us, need to get back to the basics. If they can prioritise the core tasks and responsibilities, and implement them efficiently while ignoring the white noise, they may be surprised by how much voter support they will garner.

Chris Kenny, The Australian, 5 May, 2018.

A banal homily from one who makes a living from white noise.

**

President Trump’s peace through strength policies are working and bringing peace to the Korean Peninsula,’ Messer wrote in his letter.  ‘We can think of no one more deserving of the Committee’s recognition in 2019 than President Trump for his tireless work to bring peace to our world.’

The Guardian, 15 May, 2018

For some reason, ‘peace through strength’ reminded me of Arbeit macht frei.

Passing Bull 150 – Religious freedom

 

Jennifer Oriel included the following in a piece in The Australian on Monday.

CHRISTIANITY EMPOWERS OUR WESTERN TRADITION

The fix is in. Queer activists will use fear of sharia to create a moral panic about freedom of religion. Suddenly laissez-faire liberals have developed a distaste for pluralism. They claim that codifying freedom of religion will result in sharia. They fail to comprehend fundamental freedoms in context.

In the context of Western culture, religious freedom is anathema to political Islam. The best guarantee against sharia is Eurocentricity: a cultural agenda that comprises secure borders, the legal protection of fundamental freedoms, and education on the Christian foundations of Western civilisation……

Much concern about sharia in respect of the religious freedom review is artificial. It’s a beat up to prevent dissenters from queer ideology enjoying reasonable protections from militant activists……

One would expect the Ruddock review not to recommend sharia as a model of religious freedom. In the Western context, religious freedom has a particular meaning rooted in Christian scripture that supports the secular state, free will and forgiveness.

Christian religious freedom empowers the secular state. It also embodies a limited state according to Christ’s instruction: ‘Render therefore to Caesar the things that are Caesar’s; and unto God the things that are God’s’ (Matthew 22:21). By contrast, much of the Islamic world is theocratic.

One of the more potent examples of the difference between religious freedom in the Christian and Islamic traditions is their comparative tolerance for it. While Christ exhorts people to come to God and issues numerous warnings to those who turn away from Him, free will is permitted and sin is forgiven. In the Koran, Muslims are taught that non-Muslims are evil and enemies. Muslims are instructed not to ‘seek the friendship of the infidels’. Jews and Christians are considered abominable.

People often assume that the 21st century jihad against America and Israel is a consequence of colonialism or interventionist foreign policy. But hatred of Christians and Jews is rooted in the Koran…..The Western conception of religious freedom incorporates pluralism. In its most basic form, pluralism is tolerance for diverse beliefs limited by the principle of no harm. A historical benefit of the Christian scriptural belief in limited state authority is that it removes the state’s incentive to monopolise religion. As such, it empowers the flourishing of diverse faiths. Consequently, violent monotheism is fundamentally incompatible with the modern West. Yet the Koran prescribes it……

Freedom of religion is not possible where that freedom is singular. Nor is the Western conception of religious freedom possible where individual liberty, including the freedom to exercise religious belief, is subjected to state control…..

The legalisation of same-sex marriage has created an unintended consequence of potentially widening the scope for state interference in personal faith matters. Australia has some of the weakest protections for religious freedom in the free world while international precedent demonstrates the use of lawfare against Christians is becoming something of a blood sport…..

Australia’s approach to religious freedom should reflect the best of the Western tradition. We believe in free will. We believe in the secular state. We believe in the inherent worth of each and every individual. We want a future where freedom of religion can animate the soul of the free world. Neither militant atheism nor hardline Islamism will light the way to liberty.

Well, there you are.  Queer or militant activists have put the fix in to use fear of Islam to suggest that some people may fear Christianity – and so stand in the way of religious freedom.  How this relates to the ‘21st century jihad against America and Israel’ is not explained.  Nor for that matter is religious freedom explained.  Israel Folau is legally free to express his religious opinion that gay people are doomed to burn in eternal flames.  What more freedom does he need?

The contention underlying this seamless rant appears to be that while we can tolerate ‘extreme’ or ‘hardline’ views in Christianity, whatever those terms may mean, we should not do so for Islam.  This apparently follows from the role of Christianity in western civilisation.  So much for pluralism.  And as to theocratic states that favour one religion over another, how does Israel shape up?  In fact, how do we shape up when our head of state has to be in communion with the Church of England?

And as for parts of scripture that are on the nose, the bible is shot through with endorsements of ethnic cleansing.  That God did after all choose one people over others.  It is sufficient to refer to Deuteronomy 20:16, Joshua 1:1-9, 6:17-25; and 8:24-30.  For that matter, Genesis 3 has not done much for women in western civilisation.  Or men.

Ms Oriel has at least two things in common with Donald Trump.  She is pursued by demons – in her case, political correctness and jihadis; in Trump’s case, the deep state and witch-hunters – and moderation is not her go.  She and Trump exemplify the extremism and fantasy of our time.

Bloopers

In the note from Steele to Greg Miller, the head of NAB’s wealth advice, Steele complained: ‘In terms of the broader leadership team, I am concerned about the cultural impact to both overall engagement and the potential reluctance of team members to raise future issues which could contravene NAB’s whistleblower policy given the likely perceived unfairness of the consequences and corresponding lack of trust in senior leadership to support our people.’

The Guardian, 25 April, 2018

A banker complains about a drop in bonuses.  They certainly don’t get paid to speak plainly.

Passing Bull 149 – Books that are too long

 

More than fifty years ago, I was trying to get to understand what we know as classical music.  I have the clearest recollection of reading that Mendelssohn had referred to something written by Mozart as the most beautiful music he had heard.  That is hardly surprising, but it might be handy to know just what piece he had in mind.  Over the years I have somehow narrowed the field of inquiry to the opera Don Giovanni.  There is a gorgeous trio near the end of the first act.  Could this be it?

I am reading Mendelssohn, A Life in Music, by R Larry Todd (Oxford University Press, 2003).  It runs to 683 pages, which is a lot for one who died so young.  Surely it will have the answer?  We get flirtatiously close.  We get a reference on one page to Mozart’s ‘celebrated minuet’ and on another a reference to Goethe asking the young Felix to play a minuet that was ‘the most beautiful in the world.’  That may be enough for the cognoscenti, but it is not enough for me, a mere amateur.  The author knows what he is referring to, and so will at least some of his readers.  But not I.

The author has devoted his life to the study of Mendelssohn.  The blurb says The New York Times hailed him as ‘the dean of Mendelssohn scholars in the United States.’  The text of the book runs to 569 pages.  The notes, bibliography and index exceed 110 pages.  That ratio will give some idea of the challenge this work poses to the general reader.  It is far, far too long.  It is also far, far too technical for people like me.  You get the impression that if something, however unimportant, has come to the attention of the author over the decades, then it is going in the book.  The result is a shapeless mass that does not leave you with a clear picture of its subject.  You start to skim read, and you miss whatever point the author is trying to make.  Whatever may be the worth of the book as scholarship, as a biography it is a failure – and a long, frustrating and expensive failure.

You get most of the same problems with Harvey Sachs Toscanini, Musician of Conscience (W Norton & Co, 2017).  Again, the author has devoted his life to the subject   One blurb refers to the ‘unbelievable detail in the book.’  What’s good about that?  Who wants to read a train timetable?  There are no notes, but the text runs to 864 pages.  That’s not bad for a conductor.  The result is the same – you skim read and miss what you might have enjoyed.

I looked up what the great critic Neville Cardus had to say about Toscanini.  I’m tempted to say that he said as much in eight pages as Mr Sachs said in 800, but that would be as unfair as it would be unkind.  But the truth is that we – the ordinary readers – would have been better served by a book at most half that length.  Too many books of history and biography look like Wagner’s Ring Cycle – remembering that Gough Whitlam said that Wagner badly needed an editor.

Let me give an example of an anecdote given by Neville Cardus.  When rehearsing in New York in the 1950’s, Toscanini invited a viola player home for dinner.  The man was entranced – he would get to hear the secrets of music from the maestro in the temple.  They were admitted by a butler.  The maestro wolfed down his pasta and red wine and moved to the TV room.  To watch TV wrestling – with fruity and ungrammatical exhortations from the world’s greatest conductor.  The subject of music never arose.  That anecdote is revealing in many ways.  The great man relaxed by hurling abuse at overpaid charlatans and thugs.  But I may have missed it in the snow storm of ‘unbelievable detail.’

May our editors live long lives and be readmitted to gainful employment.  Publishers have fallen into the trap of judges with lawyers.  They let them bang on too long, and they have misplaced the guillotine.

Bloopers

Headlines Monday 14 May 2018

The Australian Financial Review

Labour gains on ‘fair’ budget: poll.

The Age

Coalition on slide despite tax cuts.

The Guardian

Coalition budget fails to turn around Turnbull government’s fortunes.

The Australian

Turnbull rating soars as voters back tax cuts.

Guess who Rupert barracks for.

Passing Bull 148 – Bull about peace

 

Donald Trump is bellicose – that is, he is inclined to war or fighting.  The word comes from the Latin bellum for war.  Trump needs conflict like you and I need oxygen.  Not for him that beatitude ‘Blessed are the peacemakers.’  For that matter it is at best even money whether Trump would know what the beatitudes are.

There you have one reason why in the madness and iniquity of Washington, DC, the suggestion that Trump might be nominated for the Nobel Peace Prize is as sane as suggesting that Rudi Giuliani is a competent lawyer in good standing within his profession.  The most polite thing you could say about this suggestion, made by Republican members of Congress, is that it is an outstanding example of the fallacy that if A comes after B, you can infer that B caused A.  You drove into the rear of my car while I was waiting at a red light; but for that fact that I got out of bed this morning, I would not have been at that intersection; therefore my getting out of bed caused the accident.  That would be an outrageous example – but how much better is anything that comes out of this White House?

Besides, the proclamation of peace is premature.  Because Trump is bellicose, he wants to break the deal with Iran.  You can have another even money bet.  If he does so, North Korea will say that all bets with the U S are off and that they will deal separately with South Korea and Japan.  That would leave Trump with his mate Netanyahu – who looks and sounds like an ogre from Gulliver’s Travels – and who else?

Bloopers

At CSL, efficiency is a significant advantage for us.

CSL Limited Half Year Update, 2017-2018

Who would have it otherwise?  Since CSL is a gem in my super, thank heavens they don’t go in for inefficiency.

**

But after Giuliani said on live television that Trump had indeed reimbursed Cohen for the payment, the president reversed his position in an extraordinary sequence of tweets – just hours before leading a national day of prayer at the White House.

The Guardian, 4 May 2018

All you need to know about America today.

Passing Bull 147 – Bull about freedom and religion

 

Israel Folau is a champion footballer.  He has played in three codes.  He has a Pacific Island background.  He also has Christian views of a fundamentalist kind.  He is, I think, a Mormon.  When asked on social media what were God’s plans for gays, Israel said that unless they repent their sins, their plan is hell.

Many people cannot tolerate the idea of a God who could subject people to eternal agony.  That happens to be my view.  Hell is simply not negotiable for me.  And it only gets worse if people say you might be blasted in eternal fires if you are born to people of the wrong faith or if you are gay.

It is one thing to say that being gay is a sin; it is another thing to say that you must go to hell for that sin – unless you repent, and do so according to the rites of the right faith.  For many people – including me – that proposition is a double dose of religious intolerance and cruelty.  It is a reminder of the savage dogma that saw people burnt at the stake, and which gives religion generally a bad name.  Rightly or wrongly, many people would strongly resent these views of Israel Folau.  His position could only cement their views on the dangers of religious intolerance.

Those running rugby here were put in a terrible position.  They cannot be seen to discriminate against any minority on a ground such as this.  It is becoming increasingly difficult for business to remain morally neutral.  The provisions in the contracts of most professional sports people will bear on their capacity to earn their livelihood if they are found to have acted in a way that brings their sport into disrepute.  For one footballer to discriminate publicly against another on the ground of race, religion or sexuality is, in Australia in 2018, likely to be found to have just that effect.  I am not aware of any law that trenches upon the freedom of parties to contract in those terms.  It follows that, depending on the terms of his contract, Israel may be found to have acted in breach of that contract, and therefore unlawfully, by saying what he did, and in denigrating gay people by so doing.  No sane person wants to go to hell.

It does not help that the CEO of the game’s major sponsor here is gay.  Nor does it help that the religious fervour of Israel apparently precludes him from backing down on public utterances on this subject.  The administrators are not seeking to compel Israel to do something against his faith – by, say, playing sport or earning a living on the Sabbath.  All they ask is that he freely abstains from a course of conduct that no one says is mandatory.  It escapes me how his faith could forbid him to elect to follow that course.  Is he not a free man?  Or is he saddled with all the lack of tact and savoir faire of a black, male Cordelia?

This kind of scrum is blood to a tiger for some on Sky or the Murdoch press.  They say that Israel’s freedom of speech is in issue.  That is silly.  No one is suggesting that Israel broke any law having the sanction of the general law.  But neither can anyone suggest that in speaking publicly on a matter of controversy, Israel should be free of the moral, social or political consequence of his actions.  I may or may not be legally free to say that Hitler didn’t go far enough with the Jews, or that Mormons are either fakes or dupes, or that Pacific Islanders are dangerous religious bigots, but that doesn’t mean that I don’t have to face the other consequences that flow from my choice of words and my decision to speak out.  Freedom of speech in this context means my right to say what I like without having to face the sanction of the general law.  It does not give me any immunity from consequences that are not imposed by the operation of the law.

Here are some extracts from Jennifer Oriel in The Australian, 23 April 2018, under the heading ‘Freedom of Speech Supports Israel Folau’s Love of God.’

Israel Folau is a Christian — not the PC kind. He is the embodiment of modern Christianity; young, black and evangelical. The furore over Folau’s decision to cite the Bible in response to a question about God reveals the unreasonable nature of Australian secularism. It raises the question of whether religious freedom is valued or even understood as a substantive right.

Does faith have a future in Australian life, or will Christians be resigned to the closet?

There is no freedom of religion unless there is freedom to exercise it.  The question put to Folau on Instagram was explicitly religious and demanded an answer from Biblical scripture….

Folau has been subjected to abuse, slander and threats of unemployment for paraphrasing scripture, despite the fact he was asked about it.

Some journalists have suggested that sponsors withdraw funding to punish his dissent. ….Others have emphasised a golden opportunity for Rugby Australia to enact vengeance; Folau’s contract is up for renewal. The most curious opinion is that Folau should not profess Christian beliefs on social media even when asked about Christian beliefs on social media.

In an interview with The Daily Telegraph, former rugby player Tim Horan offered support for Folau’s freedom of speech, but ‘not on social media’. Instead, he contended that such views are better confined to a backyard barbecue because: ‘You are paid for by Rugby Australia … via sponsors and I think you have an obligation to those sponsors.’  It is a flawed argument. The basis of free speech as a right and principle of Western civilisation is the exercise of speech to empower the flourishing of public reason…..

But some sponsors jumped on the PC bandwagon to condemn Folau. The worst of them hid behind a shield of anonymity while attacking him in the press — a coward’s punch…..

Criticisms of Folau as prejudiced or too outspoken fail the test of reason. He didn’t stop play and shout out ‘hell to gays’ in the middle of a match. He responded to an explicit question about the word of God on the question of homosexuality. And he responded by referring to the Bible. If you ask what God’s plan is, be prepared for the answer…..

Those who oppose Folau’s right to cite scripture are advocating censorship of the Bible.

It’s not quite as dramatic as book burning, but the principle is the same.

You might not believe in the Bible. You might not believe in God. …..Ask yourself whether the history of state atheism enforced by totalitarian regimes is the future you want for Australia.

I have dealt with the freedom of speech point.  Israel was free to speak as he did.  Others, including unhappy sponsors and administrators, were free to respond as they did.  The references to censorship and book burning are almost obligatory for people who share Ms Oriel’s views, and they are downright silly.  Mr Horan’s view looks very reasonable – no one is asking Israel to go against or even to forego his faith.  They merely ask that he abstain from any public expression of dogma – that is very far from being shared across the spectrum of Christianity – in a way that will bring difficulty and possible financial loss to those who pay his very, very large salary.  The dispute has nothing to do with ‘empowering the flourishing of public reason.’  The final sentence could most politely be described as hysterical.

There are two other points.  Ms Oriel suggests – she mentions it four times – that it is significant that Israel expressed his views in answer to a question.  On no view did Israel have to say anything.  What difference does it make if I praise Hitler in the course of my own discussion or in response to a question?  If I may refer to Scripture, when I was a child, I spoke like a child, but if ever I said that I had acted in response to what someone had said to me, the answer of my mum was : ‘If they had suggested that you put your head in the oven, would you have done that?’

Would it make any difference if I advocated Sharia Law, or said that it was ordained by Allah, in the course of a dissertation or in response to a question?  Would Ms Oriel’s commitment to freedom of speech and religion commit her to defending a Muslim whose views are as fundamentalist, and provocative, as those of Israel?  It is a simple non sequitur to argue that those who object to Israel’s views are trying to impede his religious freedom.  They are objecting to his seeking to ram his dogma down their throats, and as far as I know they may do so on the footing that his conduct may damage the social fabric, just as it may cause others commercial harm.  When Ms Oriel refers to ‘the unreasonable nature of Australian secularism’, she may be forgetting how much of her time is absorbed in blacking Islam and those who choose to follow that faith.  In the 50’s, people of Ms Oriel’s ilk found a Red under every bed.  Now, it’s a jihadi.  How can this sectarian loathing do anyone any good?

Finally, there is the mandatory reference to PC.  If being PC means being reluctant to show your love of God by smearing those who have a different view to you about religion or sexuality, then the more we see of it, the better we will be.  Even God may come out of it all smelling better.

Bloopers

At roughly the same time, Mr Hannity, on his radio show, said it was strange to see his name appearing on Fox News and wondered aloud if he should release a statement.

Just before 4 p.m., he posted a message on Twitter: ‘Michael Cohen has never represented me in any matter. I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective.’

In a follow-up tweet, Mr Hannity added, ‘I assumed those conversations were confidential, but to be absolutely clear they never involved any matter between me and a third-party.’

New York Times, 17 April, 2018

The phrase ‘I never retained him’ is a legal conclusion, but if it is right, Mr Cohen has claimed a privilege that is not there.

***

Morrison said Friday’s announcement on penalties ‘had a very long gestational period’ dating back to the financial services inquiry in the first term of government.

‘The fact that we can stand before you today and announce the outcome of this long period of work demonstrates that we have been working on this for a very long period of time, and working sequentially through the issues that need to be addressed,’ the treasurer said.

‘We have not moved into any area here lightly.’

He suggested the government had resisted calls for the royal commission before establishing one last year on the same rationale. ‘You must act carefully in this area.’

The Guardian, 23 April, 2018

In some circles the word ‘sorry’ does not exist.  Just more bullshit.

Passing Bull 146 – Some bad rights

 

If I agree to paint your house for a fee, and after I start the work, I make it clear that I will not perform my part of the contract, then the law says that you can put an end to the contract and make other arrangements free of any further obligation to me.  If you do that, the law says I have ‘repudiated’ the contract, and that by ‘accepting’ that repudiation, you have brought the contract to an end – by the operation of the law.

In broad terms, that is what happened in the English Revolution in 1689, the American Revolution in 1776, and the French Revolution in 1789 and later.  The people said to their king, with the force of arms – ‘You have broken your word and you have not done your job.  We dismiss you and we will set up a new form of government.’  Indeed, the great French historian Marc Bloch said that the contract between a feudal lord and his vassal was a genuine contract to the same effect.  ‘If the lord failed to fulfil his engagements, he lost his rights.’  Bloch foresaw how this doctrine might be applied in the political sphere – ‘it was reinforced by the very ancient notions which held the king responsible in a mystical way for the welfare of his subjects and deserving of punishment in the event of public calamity.’

During the course of events that we label the French Revolution, the French had a go at defining what they called the rights of man.  They did it in 1789 and again in 1793.  People now generally go the 1789 model, when hope and innocence reigned.  By 1793, France and the world had seen the terrorism of the Jacobins.  They had to face the familiar problem of those who come to power by force: how do you stop others doing the same to you?

Article 25 of the 1793 French Declaration of the Rights of Man says:

When the government violates the rights of the people, insurrection is for the people and for each portion of the people the most sacred of rights and the most indispensable of duties.

This provision was not in the original version.  History suggests that it was most unwise to purport to give a legal formulation and blessing to a right of insurrection – the right to revolt.  Who will rule on the issue of whether the right has crystallized?  The answer can only be force of arms – if you win, you are the government; if you lose, you get executed for treason.

But some kind of claim to a right of insurrection was instrumental in a string of revolutions that cruelly bedevilled France for a century after 1789.  And it still works to stand in the way of reform in France.  Industrial action there is a form of insurrection.  Social positions get entrenched as matters of status to an extent that is medieval – or even feudal.  That was not what the revolution was about.  The result?   The public sector consumes 56% of GDP in France; train drivers can retire at 50; and the nation braces itself for more insurrection against the reforms of President Macron.

A century beforehand, the English had used a different tack.  Article 6 of the Declaration of Rights prohibits the raising of a standing army except with the consent of parliament.  If it is hard for a king to drive a program without money, it was even harder for the king to conduct a coup without an army.  The king had been neutralised, as history has since shown.  But the Declaration goes further than ensuring that the king would have no army.  In Magna Carta, the barons were in a position to dictate that the king would sign up for a truly life-threatening security clause that could be invoked if he were to misbehave.  The barons could in effect appoint themselves receivers to enter into and seize crown property.  Well, that would hardly do nearly five hundred years later, and William and Mary were in a much stronger negotiating position than King John.  Besides, English lords or knights from the shires would hardly have had any interest in or any capacity to take over affairs on Chesapeake Bay, or from the Begums of Oudh.  So, Article 7 provided, and still does, that ‘the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law’.  .

The incoming king was an experienced man of arms and a seasoned man of affairs. There can be no doubt that he appreciated the inevitable consequence of Articles 6 and 7 of the Declaration of Rights. ‘Your Majesty shall have no army unless we agree, but we shall remain armed whether you agree or not.  If there is a disagreement about how you discharge your obligations, and we cannot resolve that disagreement by negotiation in good faith, and our differences have to be resolved by the arbitrament of arms, we shall prevail and you shall lose.  Your best option then will be exile.’  If they had been in a mordant frame of mind, they may have given Prince William a sketch of the shed where they kept the axe.

Sir Jack Plumb said:  ‘The Bill of Rights had its sanctions clauses – there was to be no standing army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.’   The phrase ‘right of rebellion’ may make constitutional lawyers blush, but Sir Jack may have had in mind the right of the innocent party to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end.  Plumb had also said that:  ‘the power of the 17th century gentry was sanctioned by violence’ and that ‘by 1688, violence in politics was an Englishman’s birth-right’.

Or course, now that English political society has ceased to treat violence as its ultimate sanction, these constitutional provisions have become a dead letter, as they clearly should be so regarded in any civilised society.  This is not so across the Atlantic, where the American version of the right to bear arms serves to keep the United States in the race for the title of the murder capital of the world.  There they have, but refuse to confront, the problem facing the French after 1789.  A right simply to bear arms is useless unless the citizen can lawfully claim to use them.  Who decides that? The lethal American answer is the gun.

What is the point?  Declaring rights broadly is bloody dangerous.

Bloopers

 

‘Qantas objecting to what Folau is saying about homosexuality is beyond laughable.  I don’t agree with Israel but I’ve told him most explicitly that he must not back down.’

The Australian, 13 April 2018

Alan Jones with his characteristic humility.

Speaking later with reporters aboard Air Force One as Mr. Trump headed to Florida, Ms. Sanders added that ‘the president has been clear that he’s going to be tough on Russia, but at the same time he’d still like to have a good relationship with them.’

Another White House official, who spoke on condition of anonymity to describe internal deliberations, said Mr. Trump had decided not to go forward with the sanctions. Mr. Trump concluded that they were unnecessary because Moscow’s response to the airstrike was mainly bluster, the official said.

The New York Times, 17 April, 2018.

Well, he can recognise bluster when he sees it.

Passing bull 145 – Bull about independence

 

What does it mean to be independent?  The Shorter Oxford English Dictionary says: ‘Not depending upon the authority of another; not in a position of subordination; not subject to external control or rule; self-governing, free.’  The root of the condition is not being dependent.  What does that mean?  ‘To be contingent on or conditioned by.’

Can I retain a lawyer to examine my affairs and then express an opinion on them that can be presented to a third party, say a government office, as independent?  Let us say that I am the only source of instructions to the lawyer; that I am solely responsible for paying the lawyer; and that the lawyer stands in a position of trust and confidence to me such that they cannot have an interest or duty that conflicts with their duty to me.  They are all typical incidents of the relationship between lawyer and client.

If you look at the definitions set out above, you will see immediately that there are difficulties, to put it softly, in my retaining a lawyer to present to a third party an opinion, however called, that is in any sense independent.  The lawyer depends on my authority, is subordinate to me (unless I want break the law), is subject to my control and rule and their opinion will be wholly contingent upon or conditioned by my instructions – and payment for services rendered.

So, when AMP and its lawyers, Clayton Utz, purported to present to a government agency, ASIC, a report or opinion of Clayton Utz that was in any way independent, they were chancing their arm, again to put it softly, but in cricket terms.  The accounts in the press of the evidence before the Royal Commission suggest that their stratagem was doomed from the inception.

AMP could at any time have stopped the retainer and the process.  The letter of instruction from the Chair of AMP asked to be notified of any ‘findings’ that mentioned members of the board or executive team.  What does this mean except ‘You are free to say what you like – unless we don’t like it’?  The wording is at best unfortunate.  Lawyers are not usually retained to give a ‘report’ or conduct an ‘investigation’.  They are certainly not there to make ‘findings’.  They give an opinion based on the instructions they receive.  Part of that opinion may relate to the findings that may be made by the court or other body that has the power to make them.

So, the problem was there from the start.  The evidence I have seen does not reveal the extent to which this firm had acted for AMP.  I gather it was substantial.  The relationship was obviously close.  The in-house counsel was a former partner of the firm.  He liaised with the partner handling the matter to get a result satisfactory to AMP.  One report says that he asked for the final say over the wording.  The Chair was also actively involved, so we know where the buck stops here.  She was also involved in protecting the name of the former CEO, who was paid $8.3 million.  Another high executive was protected.  The firm provided at least 25 drafts to the client, and the company now admits misleading ASIC on at least 25 occasions.  It is preposterous to suggest that the final document was in any sense independent.  It was an elaborate cover-up.

The law firm owed obligations of trust and confidence to the corporation.  According to its website, the firm expresses that obligation as follows.

Our key obligation:  We will perform the work with professional skill and diligence acting as your independent legal advisers.  We will act solely in your interests in any matter on which you retain us unless you ask us also to act for other parties in that matter.  We will not perform work for you if factors such as a conflict of interests prevent us from accepting your instructions.

There may be legal difficulties displacing that obligation.  But how can those obligations of loyalty or fidelity stand against an obligation to give an ‘independent report.’  At what point does the lawyer say: ‘If I carry out my retainer according to its terms, you the client will suffer damage’?   How does the law firm escape discharging that duty consistently it carrying out its key obligation?

The press reports are full of exclamations of shock.  People expressing shock are naïve.  Professional people commonly submit drafts of opinions to clients for a variety of reasons, some more pure than others.  ASIC used to do with people under investigation.  This Royal Commission will submit draft findings to targets.

What is shocking here is that a major corporate and a major law firm thought that such a crude stunt was worth a try on.  In other words, they thought that they had a better than sporting chance of convincing ASIC that what it was receiving was ‘findings made in an independent report.’  Heaven help us if AMP and its lawyers were right about that.  Is the reputation of ASIC so low in the business and legal fraternities?  Does AMP not know that the cover-up is usually worse than the original crime?

We cannot the comparison with ball tampering.  What is worse – the brazenness of the original act of cheating, or the inanity of the attempts to cover it up?

Bloopers

‘To both survive and succeed as Prime Minister in the coming months, Turnbull has to change.  If he is to lead the Liberal Party and defeat Bill Shorten and Labor at the next election, Turnbull has to develop a more political character or be prepared to take advice from those who have one.’

Dennis Shanahan, The Australian, 9 April 2018

What did we do to warrant such perpetual banality – about opinion polls, no less?

 

Industry super fund Cbus has been ordered to apologise to more than 300 of its members after the Australian Privacy Commissioner found it breached their privacy.’

Australian Financial Review, 12  April 2018

Am I alone to wonder about ordering someone to apologise?  What if they are in fact not sorry when they say they are?