Dreamtime of a ghost-seer – Reflections on the law and other things by a lawyer in autumn

V

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

*

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

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

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

*

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

*

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

*

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

*

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

*

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

Here and there – Rage by Bob Woodward

It may have been a mistake for me to buy this book.  We have seen it all before and it is too painful to recall.  That is, I suppose, the whole problem.  In more than 300 pages that are meticulously reported, there are probably 300 acts of this President for which the CEO of a public company would be fired.  But so what?  We have seen it all before.  But at least we are reminded  – especially the Trump supporters in this country – that it is impossible to imagine a person worse placed to hold any form of public office – let alone that of President of the United States.

So, I could only bring myself quickly to scan it.  That’s a great shame, because this is a well kept a diary of a sad national failure.

The CIA never figured out conclusively who wrote and crafted Kim’s letters to Trump.  They were masterpieces.  The analysts marvelled at the skill someone brought to finding the exact mixture of flattery while appealing to Trump’s sense of grandiosity and being centre stage in history.

I expect that Kim, like Trump, has an ego that leaves no room for God, but Kim, like a few other cold killers, could go down on his knees each day and give thanks that Providence has given him this rude, loud, weak spoiled child – whom he can walk over at will.

A devout Catholic, Redfield had gone through a religious awakening during a private 10-minute conversation with Pope John Paul II in 1989 and believed in the redemptive power of suffering.  Redfield prayed every day, including a prayer for President Trump.

We thought the Evangelicals were the problem.  The whole mess has been very bad for religion.  For that matter, so has most of the history of the U S.

‘Don’t mock Kim’, Trump repeated.  ‘I don’t want a fucking nuclear war,’ he said again.  He returned to the new nuclear weapons he had.  ‘I have such powerful weapons.  They’re so powerful you wouldn’t believe it.  You wouldn’t even put them in your book.’

Those who think Trump is not a fool might answer this question.  Could anyone but a fool have said that on the record to the most respected reporter on earth?  And it is so utterly characteristic.

You do not have to be an expert in managing people to know that about the worst mistake a CEO can make is to have someone outside the hierarchy available to counsel the CEO on how to deal with those reporting to him – behind their backs – especially if that person is very close to the CEO – like being the husband of his daughter.  The trouble with Jared Kushner is that he is inadequate enough not to see how inadequate he is, or how much damage he is doing to the structure of management.  Messrs Mattis and Fauci are faultless leaders in their spheres.  One look at them tells you that these people understand and embrace public service – in a way that the Trump family could never understand.  How could decent people like them survive dealing with someone like Trump and his family?

The book confirms my worst fears about Kushner.  Kushner told Woodward – again on the record – that if he wanted to understand Trump, he should read four texts.  One of them was Alice in Wonderland.

When combined, Kushner’s four texts painted President Trump as crazy, aimless, stubborn and manipulative.  I could hardly believe anyone would recommend these as ways to understand their father-in-law, much less the president they believed in and served.

The worst is yet to come.  You thought Trump had got rid of his best advisers.

‘And by the way,’ Kushner added, ‘that’s why the most dangerous people around the president are overconfident idiots.’ It was apparently a reference to Mattis, Tillerson and former White House economic adviser Gary Cohn.  All had left.  ‘If you look at the evolution over time, we’ve gotten rid of a lot of the overconfident idiots.  And now he’s got a lot more thoughtful people who kind of know their place and know what to do.’

Trump is a spoiled child who never learned anything better.  Those Republican grandees who have enabled him do not have that excuse.  Their time will come in the blackest pages of history.

Perhaps we should all read this book to recall why.

Dreamtime of a ghost-seer – Part 2

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

Reminiscences of a barrister in autumn

II

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

*

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

*

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

*

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

*

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

*

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

MY SECOND TOP SHELF – 15

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

Eichmann in Jerusalem,

A Report on the Banality of Evil

Hannah Arendt

Penguin, rebound in slip case.

This book was first published in 1963.  It was serialised in The New Yorker.  In it,Hannah Arendt reported on the trial of Adolf Eichmann, a key participant in the Final Solution.  Arendt was a German Jewess of great learning who had fled from Nazi Germany, and Vichy France, and had become something of a rarity in the West – a respected intellectual.  The book is obviously the work of a very fine mind, but its publication caused great controversy – and grief within the Jewish community.  Some said that Arendt was too judgmental and insensitive – especially about the role of Jewish people in their own immolation.  But a huge controversy erupted, and can still be felt, about the subtitle – ‘the banality of evil.’

When Arendt arrived and first looked at the accused, she felt a kind of shock.  The ‘man in the glass booth’ was nicht einmal unheimlich, ‘not even sinister’ – certainly not inhuman or beyond comprehension.  She began to experience what she would later call her cura posterior, her cure after the event.  Her very astute biographer, Elisabeth Young-Bruehl, says:

Many people who read her five article series in the New Yorker – and many more who heard about the series secondhand – concluded that Hannah Arendt was soulless, or that she lacked what Gershom Scholem called Herzenstakt, sympathy.  They thought that Arendt felt no emotional involvement with the fate of her people.  She, on the other hand, thought that she had been finally cured of the kind of emotional involvement that precludes good judgment.

Well, her awakening may not have been as blinding as that of Saint Paul or Martin Luther, but she certainly blew the fuses of many people who were open to the suggestion that they were subject to ‘the kind of emotional involvement which precludes good judgment.’

In the book, Arendt said this about the banality of evil.

When I speak of the banality of evil, I do so only on the strictly factual level, pointing to the phenomenon which stared one in the face at the trial.  Eichmann was not Iago and not Macbeth, and nothing could have been further from his mind than to determine with Richard III ‘to prove a villain’.  Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all.  And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post.  He merely, to put the matter colloquially, never realised what he was doing……He was not stupid.  It was sheer thoughtlessness – something by no means identical with stupidity – that predisposed him to become one of the greatest criminals of that period.  And if this is ‘banal’, and even funny, if with the best will in the world one cannot extract any diabolical or demonic profundity from Eichmann, that is still far from calling it commonplace

Arendt had previously said to the same effect: ‘The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were and still are terribly and terrifyingly normal.’  In other words, Eichmann was no devil or demon; he was just human, and the trouble for us is that he was ‘terribly and terrifyingly normal’. 

The phrase ‘terribly and terrifyingly normal’ has always seemed to me to be far for more pregnant with meaning than that of ‘the banality of evil,’ even if they are related.  At least as it appears to me, those who do not accept that Eichmann was just human, and that there is a little of Eichmann in all of us, are seeking to impose on us some kind of Procrustean bed, and are at risk of falling into the error that fed the derangement of people like Stalin and Hitler.  That is what I see as the real point of the book, and that is what I think makes it a great book.  And as with other great books, the reaction to it is almost as instructive as the book itself.

But the suggestion that the war criminal was ‘normal’ was hardly novel.  In looking at reigns of terror during or after the French and Russian revolutions, historians have struggled to understand how ‘ordinary people’ can become mass murderers.  In a book first published in 1941 (The Year of the Terror, Twelve Who Ruled France, 1793-1794, 3rd Ed., 220), the American historian R R Palmer made this observation about Jean-Baptiste Carrier, the man who drowned priests by the boat-load in the Vendée, and who after being at first applauded, was later guillotined for what we would now describe as war crimes.

Carrier, it may safely be said, was a normal man with average sensibilities, with no unusual intelligence or strength of character, driven wild by opposition, turning ruthless because ruthlessness seemed to be the easiest way of solving a difficult problem.

In what way, if any, was Carrier morally different to Eichmann?  As Arendt said, ‘it was sheer thoughtlessness…that predisposed him to become one of the greatest criminals of that period.’

We might also reflect on what Berthold Brecht said of Hitler (in his notes to The Resistible Rise of the Man Arturo Ui, also published in 1941):

The great political criminals must be exposed and exposed especially to laughter.  They are not great political criminals, but people who committed great political crimes, which is something entirely different.  The failure of his enterprises does not indicate that Hitler was an idiot and the extent of his enterprises does not make him a great man.  If the ruling classes permit a small crook to become a great crook, he is not entitled to a privileged position in our view of history.  That is, the fact that he becomes a great crook, and that what he does has great consequences, does not add to his stature….One may say that tragedy deals with the sufferings of mankind in a less serious way than comedy.

These are vital questions.  (And they bear on at least one prominent crook in the U S today.)  But, you might ask, what branch of human knowledge was Carrier, Brecht or Arendt invoking.  Tucked away in a footnote near the end of the biography of Young-Bruehl, we find that in his book Obedience to Authority (New York, 1974) the psychologist Stanley Milgram said:

After witnessing hundreds of ordinary people submit to authority in our experiments, I must conclude that Arendt’s conception of the banality of evil comes closer to the truth that one might dare imagine.  This is perhaps the most fundamental lesson of our study: ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process.

For myself, I don’t know how anyone looking at the mass murders in various reigns of terror can come to a different conclusion.  These regimes have awful corrupting power, but when Arendt saw Eichmann in the flesh, she thought that she had overrated the impact of ideology on the individual.  The conclusion of Arendt about Eichmann looks to me to be consistent with the insight of Carlyle on the worst excesses of the French Terror:

What, then, is this Thing called La Révolution, which, like an Angel of Death, hangs over France, noyading [drowning], fusillading, fighting, gun-boring, tanning human skins?…..It is the Madness that dwells in the hearts of men.  In this man, it is, and in that man; as a rage, or as a terror, it is in all men.  Invisible, impalpable; and yet no black Azrael, with wings spread over half a continent, with sword sweeping from sea to sea, could be truer reality. 

After recounting how the French Terror extracted goods to trade in from its dead victims (such as using the skins of the guillotined to produce chamois or their hair to produce wigs), so prefiguring the horror of the Nazis, Carlyle said:

Alas, then, is man’s civilisation only a wrappage, through which the savage nature in him can still burst, infernal as ever?  Nature still makes him: and has an Infernal in her as well as a Celestial.

Many good judges wonder what is the point or moral basis of our whole criminal justice system.  What does punishment achieve?  Who but God could aspire to measure it fairly?  Arendt felt the same doubts.  According to her biographer, ‘she did not abandon her opinion that extreme evil, whether thought of as radical or banal, is unpunishable and unforgivable.’  The person she sought to untangle this with was W H Auden.

It is in my view very dangerous to try to come to grips with the greatest lapses in the history of mankind by suggesting that somehow some inherent characteristic of either the evil-doers or their victims was in some way a cause of the relevant crime against humanity.  Saying that some people are marked by birth as different to other people is in my view as close as we can get to the notion of original sin.  And Hannah Arendt was far too acute to think that labels help.

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

Here and there – Caste

In Ancient Law (1861), Sir Henry Maine spoke of occasions where ‘that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates into the most disastrous and blighting of all human institutions – Caste.  The fate of the Hindoo law is, in fact the measure of the value of the Roman code…..Even now, Hindoo jurisprudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities.’  The Oxford English Dictionary gives us ‘a race, stock or breed….one of the hereditary classes into which society in India has long been divided.’

Caste therefore has at least these characteristics: a division of people of a community into classes is effected by criteria and means provided within the community so that it is binding by custom or law or both; that classification is hereditary – you are born into a particular caste; and the distinction carries different rights, privileges and obligations depending on where you are in the hierarchy.

In Caste, The Origins of Our Discontents, Isabel Wilkerson compares the status of African Americans to those that had caste imposed upon them in India or in Germany under Hitler.  I doubt whether the status of those Americans would warrant the application of the term ‘caste’ in the sense referred to above, but the exploration of that standing provides insights that are as luminous as they are unsettling.

Here are some of the anecdotes.

In southern courtrooms, even the word of God was segregated.  There were two separate Bibles – one for blacks and one for whites to swear to tell the truth on.

The Führer admired America.  He attributed its achievements to its Aryan stock.  He praised the country’s near genocide of native Americans and the exiling of those who survived to reservations.  ‘The Nazis were impressed by the American custom of lynching its subordinate caste of African-Americans, having become aware of ritual torture and mutilations that typically accompanied them.  Hitler especially marvelled at the American ‘knack for maintaining an air of robust innocence in the wake of mass deaths.’’ 

Big crowds would turn up for a lynching.  Sometimes the press gave advanced notice of a lynching.  ‘Lynchings were part carnival, part torture chamber, and attracted thousands of onlookers who collectively became accomplices to public sadism.’  A roaring trade in postcards helped spread the guilt.  ‘This was singularly American.  ‘Even the Nazis did not stoop to selling souvenirs at Auschwitz,’ wrote Time magazine many years later.’  Singularly American indeed.  When the post refused to carry these post-cards, the sender put them in an envelope.

‘In America, a culture of cruelty crept into the minds, made violence and mockery seem mundane and amusing, built as it was into games of chance at carnivals and public fairs.’  ‘Coon Dip’ involved patrons hurling projectiles at live African Americans.  Hurling baseballs at the head of a black man was great sport.  Baseball, you will recall, is the national sport.

Now for some of the meat.

Those in the dominant caste who found themselves lagging behind those seen as inherently inferior potentially faced an epic existential crisis.  To stand on the same rung as those perceived to be of a lower caste is seen as lowering one’s status….The elevation of others amounts to a demotion of oneself; thus equality feels like a demotion.  If the lower-caste person manages actually to rise above an upper-caste person, the natural human response from someone weaned on their caste’s inherent superiority is to perceive a threat to their existence, a heightened sense of unease, of displacement, of fear for their very survival….Who are you if there is no one to be better than?

In explosions in France in 1789, and Russia in 1917, the infighting was about those wanting to be at least close to the top – and certainly not close to the bottom.  This attitude underlay the Nazis’ demonization of the Jews.  It is a sentiment in the air at a MAGA rally.  The torch-bearers at Charlottesville Virginia in August 2017 chanted ‘Jews will not replace us’ and ‘White lives matter.’  The reaction of the President showed the depth of the problem.  When Trump referred to ‘fine people’ at Charlottesville, the world knew that the problem it had with the White House was worse than we had thought.

As soon as you create a hierarchy that rewards people by their standing in that hierarchy, you give fuel to resentment and jealousy – and the conviction that the unjust treatment you have received is an offence that cries out for revenge.  The question to the aristocrat The Marriage of Figaro was ‘And what did you do except take the trouble to be born?’  But people rising above their levels create their own problems.

It turns out that the greatest threat to a caste system is not lower-caste failure…but lower-caste success… Achievement by those in the lowest caste goes gainst the script handed down to us all….Achievement by marginalised people who step outside the roles expected of them puts things out of order and triggers primeval and often violent backlash.

This looks like the kind of force behind the election of Trump and his irrational drive to reverse anything Obama had achieved:  anything – the achievements of Obama were outside the normal script.  They were unnatural, and Trump was put there by God to set things right.

The author looks at film of the crowd’s adoration of Hitler.  ‘In that moment, you are face-to-face with the force of willing susceptibility to evil.  The Nazis could not have risen to power and done what they did without the support of the masses of people who were open to his spell.  And the author has the same view as Hanna Arendt.  She quotes a philosopher: ‘It’s tempting to imagine that the Germans were (or are) a uniquely cruel and bloodthirsty people.  But these diagnoses are dangerously wrong.  What’s most disturbing about the Nazi phenomenon is not that the Nazis were madmen or monsters. It’s that they were ordinary human beings.’  This is crucial.  There is a bit of Hitler in all of us.

The author refers to ‘tremors within the dominant caste.  Insecure white people were concerned that minorities were taking jobs from whites.  This was one lever pulled by Trump.  This point is pivotal.  In a chapter on the price we pay for a caste system, the author looks at the failure to adopt the welfare state enjoyed by the rest of the Western world – and to the indifference to mass shootings.  Most Australians think that the U S is decently run except for two things – a failure to provide universal health care, and the embrace of mass murders involving guns that comes from a hopelessly twisted theory of rights according to unelected judges.  This leads the author to say:

A caste system builds rivalry and distrust and lack of empathy toward one’s fellows.  The result is that the United States, for all its wealth and innovation, lags in major indicators of quality of life among the leading countries of the world.

You cannot prove or even measure these propositions, but they do appear to be fundamental.  The nation has never rid itself of the stain of slavery. It is not going too far to suggest that the nation has not attained the maturity claimed by the pronouncements of its founders (who, it may be said, were anything but democrats according to our understanding of that term.)  Robert E Lee was a southern gentleman and a great general.  He told those of his slaves that had escaped that he ‘would teach us a lesson we would never forget.  He personally supervised the whipping of men and women.  He told the county constable to ‘lay it on well.’  Then, not satisfied ‘with simply lacerating our naked flesh, Gen. Lee ordered the overseer to thoroughly wash our backs with brine, which was done.’  The General believed that ‘how long their subjugation may be necessary is known & ordered by a wise merciful Providence.’  God save us from that wisdom and mercy.  Lee is one of trump’s favourite generals.

The institution of slavery was, for a quarter of a millennium, the conversion of human beings into currency, into machines who existed solely for the profit of their owners, to be worked as long as the owners desired, who had no rights over their bodies or loved ones, who could be mortgaged, bred, won in a bet, given as wedding presents, bequeathed to heirs, sold away from spouses or children to cover an owner’s death or to spite a rival or to settle an estate.  They were regularly whipped, raped, and branded, subjected to any whim or distemper of the people who owned them.  Some were castrated or endured other tortures too grisly for these pages, tortures that the Geneva Conventions would have banned as war crimes had the conventions applied to people of African descent on this soil.

Before there was a United States of America, there was enslavement.  Theirs was a living death passed down for twelve generations.

It may well take a lot longer to settle the treatment of that cancer than we had thought.  This book by a coloured American journalist states a case to be answered.

Here and there – Twilight of Democracy

Twilight of Democracy

The Seductive Lure of Authoritarianism

Anne Applebaum

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

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

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

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

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

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

As I said elsewhere:

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

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

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

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

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

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

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

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

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

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

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

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

MY SECOND TOP SHELF – 12 – Einstein

 

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

IDEAS AND OPINIONS

Albert Einstein

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Here and there – Black Knight plays White Queen

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

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

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

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

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

The Constitution in section 61 provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Here and there – Fascism now?

 

‘Fascist’ is a term I used to think that I used too often.  Now I am not sure.  I fear that fascism may be in the air again.

Jason Stanley is a professor of philosophy at Yale.  He has written a book called How Fascism Works, The Politics of Us and Them (Random House, 2018).  At first I wondered if this was just another product of North American academe that gorges itself on –isms and other abstractions.  But I find that the author has the sense and discipline to make his point and move on.  That is the calling card of an advocate.

Professor Stanley’s catalogue of the hallmarks of fascism is very unsettling because so many appear of them to be surfacing now all around us.  Before I list those hallmarks, and in his order, I may set out a definition of the word that I wrote elsewhere some years ago now.  (Curiously, I am not sure that this book may not offer a definition of ‘fascism’ – that might be said to be the purpose of the whole book.)

‘Fascism’

What do I mean by ‘fascism’?  I mean a commitment to the strongest kind of government of a people along overtly militarist and nationalist lines; a government that puts itself above the interests of any or indeed all of its members; a commitment that is driven by faith rather than logic; with an aversion to or hatred of equality, minorities, strangers, women and other deviants; a contempt for liberalism or even mercy; and a government that is prone to symbolism in weapons, uniforms, or its own charms or runes, and to a belief in a charismatic leader. 

The word came originally from the Latin word fasces, the bundle of rods and axe carried before Roman consuls as emblems of authority, and was first applied to the followers of the Italian dictator, Benito Mussolini, Il Duce, and then to the followers of Il Caudillo, Generalissimo Franco, and the Fuhrer, Adolf Hitler.  Fascists are thick-skinned, thick-headed, and brutal.  They despise intellectuals – who are after all deviants – but they may have an untutored and irrational rat cunning.

As Professor Simon Blackburn of Cambridge University tersely remarks: ‘The whole cocktail is animated by a belief in regeneration through energy and struggle’ (kampf).  To an outsider, it looks like pure moonshine that is the first refuge of a ratbag and a bully, a brilliant and seductive toy for the intellectually and morally deprived, and an eternal warning of the danger of patriotism to people of good sense and good will.  But while that ‘cocktail’ may look la bit much for Plato, it looks fair for Sparta.

Now, here are the headings of Professor Stanley.

The mythic past

We know this well – the intentionally mythical past.  The nostalgia harnesses emotion to the main tenets of the fascist creed – authoritarianism, hierarchy, purity and struggle.  ‘The strategic aim of these hierarchal constructions of history is to displace truth, and the invention of a glorious past includes the erasure of inconvenient realities.’  And sorry, boys, but the leader is like the father in the old patriarchal family.  That comes with the package when you go backwards.  And nations make odd laws to protect the myth – like the ban on ‘insulting Turkishness’ in Turkey or royalty in Thailand.  And then there is America’s fetish about its bloody flag.  Who wants to die for a bit of cloth?

Propaganda

‘Fascist movements have been ‘draining swamps’ for generations’.  The propaganda puts up a balloon of purity that can only be sullied by outsiders – like migrants, Muslims, or queers.

To many white Americans, President Obama must have been corrupt, because his very occupation of the White House was a kind of corruption of the traditional order.  When women attain positions of political power usually reserved for men – or when Muslims, blacks, Jews, homosexuals, or ‘cosmopolitans’ profit or even share the public goods of democracy, such as healthcare – that is perceived as corruption.

That is in my view fundamental.

Anti – intellectual

Education, expertise and language are devalued to make intelligent debate impossible.  At the same time, they say that culture and truth are to be found only in the West.  Rejecting expertise makes sophisticated debate impossible.  Indeed, ‘sophistication’ like ‘restraint’ or ‘moderation’ is the opposite of fascism.  It is as if they were born in fear of what Keats called ‘negative capability’ – the capacity to discern and assess conflicting ideas without getting snaky.

In fascist politics, universities are debased in public discourse, and academics are undermined as legitimate sources of knowledge and expertise, represented as radical ‘Marxists’ or ‘feminists’ spreading a leftish ideological agenda under the guise of research.  By debasing institutions of higher learning and impoverishing our joint vocabulary, fascist politics reduces debate to ideological conflict.

You can get as much of all that as you want in The Spectator and other like publications in Australia.

Unreality

Reality is replaced by the pronouncements of one man.  (It is I think always a bloke.)  ‘A fascist leader can replace truth with power, ultimately lying without consequence.’  And you get a nauseating deluge of conspiracy theories that are designed to abolish reality.  ‘The function of conspiracy theories is to impugn and malign their targets, but not necessarily convincing their audience that they are true.’  These theories, if that is the term, set aside reality and the basis of sensible discussion.  People look for tribal identification and entertainment.  ‘When news becomes sports, the strongman achieves a certain measure of popularity.’

The author here looks at inequality – ‘dramatic inequality poses a mortal danger to the shared reality required for a healthy liberal democracy.’  This is important.  Inequality undermines an implied basis of fairness or reasonableness in our community.  ‘Those who benefit from large inequalities are inclined to believe that they have earned their privilege, a delusion that prevents them from seeing reality as it is.’  And: ‘Equality, according to the fascist, is the Trojan horse of liberalism.’

Hierarchy

People who feel inadequate need others to grade their place on the ladder.  They need to ‘belong.’  Like boy scouts, girl guides, or the inmates of our prisons –or members of parliament or the judiciary. The risk is that you do not just get class – you get the curse of caste.  People in the American South espoused the ‘great truth that the Negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.’

The notion of ‘original sin’ is in my view abhorrent, and an insult to our humanity.  But If I had to nominate our original sin, it would be caste.  And on a bleak winter day, I might see it starting in Genesis rather more clearly than I can see Eve take the apple.  At least we know that that could not have happened.

Fascism clearly thrives on perceived threats of loss of status or reduction of felt worth.  Like most of these markers, it is a balm for insecurity – or one who felt as rejected unfairly as Adolf Hitler.  You just need to look at how the scum, like Marat, came to the surface during the French revolution.  They still seek in vain for a hero.

Victimhood

Science teaches us that increased representation of minorities is seen by those in the dominant majority as threatening.  (During the French revolution, those at the bottom were the most lethal – because they felt the most threatened.)  According to the professor, 45% of supporters of Trump believe that whites are discriminated against and 54% believe that Christians are the most persecuted religion – in America.  And as our author remarks: ‘Rectifying unjust inequalities will always bring pain to those who benefited from such injustices.  The pain will inevitably be experienced by some as oppression.’  That is very astute.  We saw precisely that here after Mabo.  Our squatters felt as jilted as the French nobles did after 1789.

Nationalism is at the core of fascism.  The fascist leader enjoys a sense of collective victimhood to create a sense of group identity that is by its nature opposed to the cosmopolitan ethos and individualism of liberal democracy.

And yet our front lines in the culture wars don’t know how close to home is their bogey of ‘identity politics.’

Law and order

Well, this has been around at least since Pisistratus seized power in Athens about 2,500 years ago on the footing that the state was in danger.  Nixon, for one, made an art form of it.  It is now getting another airing there.

Sexual anxiety

When traditional male roles are threatened by economics or migration, a kind of sexual anxiety may arise.  If you subscribe to the role of the traditional patriarchal family, then you might panic when threatened by people of a different sexuality.  Some of the conspiracy theories are sickeningly mad.  Hitler thought that Jews were behind a conspiracy to use black soldiers to rape pure Aryan women as a means to destroy ‘the white race.’  A fear of rape by blacks underlay many lynchings.  If Freud had not been born, we would have had to invent him.

It is not hard to see how men can feel threatened.  ‘When equality is granted to women, the role of men as sole providers for their families is threatened.’

Sodom and Gomorrah

Part of the myth of the past is the celebration of country over town.  Hitler loathed Vienna because it had rejected him, and he was disgusted by its cosmopolitanism – its mixture of different racial and cultural groups.  Tolerance of diversity – tolerance itself – is alien to fascism.  And the city is the home of the loathed ‘elites’, financial or otherwise.  People who glorify this rural idyll have not often been blasted by bush fire or mortally threatened by drought.  But these people rest on illusion, or delusion, rather than reality.

Arbeit macht frei

That is a label from hell, but fascism espies laziness in its enemies – such as Jews or people of colour.

Why do Americans resist what the rest of the western world embraces as the basic requirements of the welfare state?  It is as well to remember that when Churchill and Lloyd George started Britain on that path with the People’s Budget, they were doing so in part in response to the huge reforms that Bismarck put in place in Germany more than twenty years before.  Yet in the year 2020, a People’s Budget is still anathema in the United States.

Most often American opposition to welfare is represented as a manifestation of a commitment to individualism….And yet a dominant theme emerging from research on white Americans’ attitude is that the single largest predictor of white Americans’ attitude toward programs described as ‘welfare’ is their attitude toward the judgment that black people are lazy.

If that is right, the lagging of the United States behind Germany in 1890 is another by product of the Original Sin of slavery.  The curse that Lincoln descried in his second inaugural still blights the Union.

Here the author quotes Hannah Arendt: ‘It was always a too little noted hallmark of fascist propaganda that it was not satisfied with lying, but deliberately proposed to transform its lies into reality.’  Or, as Professor Stanley remarks: ‘The ‘hard work’ versus ‘laziness’ dichotomy is, like the ‘law-abiding’ versus ‘criminal’, at the heart of the fascist division between ‘us’ and ‘them’.’  And an influx of refugees might represent the ultimate threat.

And labour unions are also evil.

Labor unions create mutual bonds along lines of class rather than those of race and religion.  That is the fundamental reason why labor unions are such a target in fascist ideology.

It is curious how much all kinds of regimes have been scared by associations, expressions of community.  The French moved against such associations when celebrating all that they had undone during their revolution.  Generosity so quickly turns to selfishness.

The disabled were of course seen as lacking in value – because value for fascists lies in a person’s contribution to society through work.  And in my view, we are seeing a very ugly echo of that thought in this pandemic, when some hard heads suggest, some more openly than others, that the welfare of the old and useless is expendable in aligning the economy to supply work to those who can work.  Is that not just eugenics by another name?  (Disclosure: My disabilities are such that I would be discarded in the first batch.  ‘Straight to the morgue, Driver.  Forget the hospital.’)

Well, there is Professor Stanley’s list of ten indicia of fascism.  On the last page, he concludes his book this way:

In the direct targets of fascist politics – refugees, feminism, labor unions, racial, religious, and sexual minorities – we can see the methods used to divide us.  But we must never forget that the chief target of fascist politics is its intended audience, those it seeks to ensnare in its illusory grip, to enrol in a state where everyone deemed ‘worthy’ of human status is increasingly subjugated by mass delusion.  Those not included in that audience and status wait in the camps of the world, straw men and women ready to be cast into the roles of rapists, murderers, terrorists.  By refusing to be bewitched by fascist myths, we remain free to engage one another, all of us flawed, all of us partial in our thinking, experience, and understanding, but none of us demons.

At times I wondered whether this book was just another excursus on labels, but I think not.  Let us put to one side the word ‘fascist’.  One sort of person now threatens our peace and wellbeing.  That is the person who thrives on our division and conflict, and who cares not for tolerance or restraint.  In my view Professor Stanley has done us a very good turn by arming us to see and meet our enemy.  This is a very important book, even if it says nothing new.  Placement is all.

Finally, to illustrate his theme, throughout the book Professor Stanley refers us to regimes that we least admire – like Hungary, Poland, Myanmar, Turkey and Russia.  Does anyone else come to mind?  Someone who might, perhaps, score a perfect ten on every dive?

Here and there – A populist

 

In a book about Kissinger, I find the following remarks about a populist.  I will refer to him as ‘Smith’ as I think a comparison may be instructive.

Smith was quick-witted, able to deal handily with hecklers, of whom there were many in the early years.  He was so attuned to his audience that he could adapt to any moods.  As a speaker he lived intensely in the moment – and what else does ‘presence’ mean?…..After he had gained sufficient renown, he could afford the pomp and circumstance that kept his audiences in a state of anticipatory excitation until his strategically delayed arrival on stage.  There were colourful banners, peppy march music, fiery introductory speeches to warm up the crowd – and then the main event, the attraction everyone had awaited so eagerly….

It was less what he said than how he said it…..Part of the magic was that Smith told people what they wanted to hear.  His pronouncements were not a challenge, but a confirmation of his followers’ assumptions and preconceptions, an incitement to cast off the dreary restrictions of civility and rationality and allow their emotions full Dionysiac release, above all a permission to maintain hope in the face of obdurate reality and to hate anyone or anything that was perceived to undermine that hope…..He appealed to a devastated populace that ….that had lost everything, including their established beliefs, felt a profound sense of grievance, and found consolation in a [nationalism] that was part sentimentality, and part utopianism, a sort of forward looking nostalgia…

Because he dwelled on longings instead of facts, he preferred abstractions to specifics, emphasizing honour, nation, family, loyalty.  What distinguished him was the totality of his commitment……He employed neither logic nor reason, but sheer passion…Smith didn’t need ideas.  He had the conviction of a convert….

More than one commentator has observed that Smith rallies were like religious revivals, where the crowds went not for articulation of policy positions, but for the release of unbridled emotion….Smith understood that his audiences wanted not only to be saved but also to enjoy themselves in the process…Smith rallies may have suggested prayer meetings; they also resemble Bruce Springsteen concerts.  Whoever imagined that salvation could be so much fun? 

Whatever else he might have been, Smith was a performer, dealing in mass entertainment.  He was no good in intimate settings….but put him on a stage and he was in his element. He knew how to work a crowd and how to package himself as a celebrity.  It didn’t matter what the press said   ‘The main thing is that they mention us.’

Weber said that someone who possessed passion but not a realistic sense of responsibility was little more than a political dilettante consumed by sterile excitements or by a romanticism that, in Weber’s words, ‘runs away to nothing.’  The demagogue in particular was unsuited to the vocation of politics because he runs a constant risk of becoming a play actor, making light of the responsibility for the consequences of his actions and asking only what ‘impression’ he is making…

Smith’s facility for dealing in dreams was enough to gain him a steadily growing following that was serious in its numbers yet fundamentally unserious in its ideas, substituting the lightness of desire for the concreteness of policy….The appeals to violence and the flouting of the law only increased his popularity among his admirers.

A ‘forward looking nostalgia’ is a useful notion.

Does the picture above best describe (1) Mussolini (2) Franco (3) Hitler (4) Tito (5) Kim Jong-Un (6) Erdogan (7) Orban (8) Johnson (9) Bolsonaro (10) Trump or (11) all of the above?

The book quotes a great definition of ‘diplomacy’ that judges and mediators might bear in mind: ‘It is the task of statesmanship to settle disputes in such a way as to minimise the damage to the prestige of the parties involved.’  ‘Face’ can be everything.

As for Kissinger, it is bad if you are too clever.