Here and there – King John and the Laws of England

Part II

Shakespeare did not refer to Magna Carta in King John, but he described the reaction of the English barons to a weak king.  The king undergoes another coronation and takes fresh oaths of allegiance to overcome the excommunication.  The barons are very restless at all this.  The king tells them they will see how ready he is to accommodate them.  Salisbury says:

The colour of the king doth come and go
Between his purpose and his conscience,
Like heralds ‘twixt two dreadful battles set:
His passion is so ripe, it needs must break.  (4.2.76-79)

When news comes of the death of Arthur, John is quite unmanned.  All he can say is: ‘They burn in indignation.  I repent.’  He is now a shuttlecock between the Vatican and the barons – and Innocent and the barons were very tough nuts.  He is craven before Pandulf and he blames Hubert for not refusing to murder Arthur.  (Reinhard Heydrich was cashiered from the navy – he appeared before a court of honour and blamed a pregnancy on the girl.)  So that when it came to settling what was a kind of civil war, what Mafia dons called ‘making the peace’, King John had to make concessions that would have been unthinkable in the realm up to that time.  The concessions appear in Magna Carta.

These barons were in truth not the flower of chivalry.  One, Robert fitz Walter, called himself ‘Marshall of the Army of God and Holy Church.’  Robert de Ros was a marauding land rustler whose men attacked agents of the Sheriff of Yorkshire with bows and arrows.  Well, the barons had among their number members who were capable of putting together a document of the first constitutional significance – the very first.  John did not sign it – there is no evidence that he could write.  It took legal effect when it was sealed with an oath. 

Some very astute lawyers were involved in making this document, and they were not acting solely in the interests of the barons.  The Charter provides for what is to happen ‘in order to have the common counsel of the kingdom for assessing aid.’  ‘Aid’ there means in substance tax.  To ‘have the common counsel’ will harden into a requirement that the king get a statute from his parliament before he can get a tax.  That then will be the lynchpin of the whole dispensation, since he who controls the money controls the game.  That’s the process that was completed in 1689.

But the Charter is remembered and still invoked for two articles on the administration of justice.  Articles 39 and 40 are as follows:

39. No freeman shall be captured or imprisoned or disseised [deprived of land] or outlawed or exiled or in any way destroyed, nor will we go [nec ibimus] against him, or send [nec mittimus] against him, except by the lawful judgment of his peers or by the law of the land.

40. To none will we sell, to none will we deny or delay right or justice.

These words were meant to be etched in stone.  You might expect to find in a prayer book the words ‘nor will we go against him or send against him.’  If you want to know whether the original has the same lapidary quality, the Latin, partly shown, is just as moving.

Article 39 is no less than the foundation of what we call the rule of law.  If the English people had only given Article 39 to the world, they would still have our gratitude.  What this clause says is that liberty and property are not to be interfered with without due process of law.  The phrase ‘due process’ enters into later versions of the Charter, and ‘due process’ is the concept that underlies much of the Bill of Rights in the United States. 

If you borrow money for a company and default on repayment, the bank may send in a receiver over the business.  There are difficulties about suing kings – what form of security, then, did the barons get from their faithless king?  I said elsewhere:

They favoured the receiver model.  Article 61 refers expressly to security (securitas) and it is in horrific terms that not even the most over-mighty and overbearing corporation, outside of Russia, would dare to seek.  It provides that if the king defaults, the barons can give him a notice to remedy that default.  If he does not, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’  Well, that is fine for the royal family, but what about the poor downstairs maid when that awful Robert de Ros, neither alone nor palely loitering, comes thundering over the drawbridge, leaving his chain mail behind him, in one of his beastly marauding moods, and holding something large and nasty in his hand? 

….. The right of entry is given to a committee of barons ‘together with the community of the entire country’….  Communis is a very, very potent term here (as would be communio in a church).  When the French monarchy was brought down in and after 1789, the government of the country for a large part came to rest with the commune of Paris, especially after the 10 August coup of Danton (in 1792).  The revolutions that shook the great cities of Europe in 1848 were centred in the communes.  A movement in favour of revolutionary change across the entire world to free the masses of their chains, which would cause so much misery in the twentieth century, was called the Communist Party after these communes.  Yet here we have English barons giving these communal rights to the yeomen and all the freemen of England way back in 1215.

You cannot try to make a constitution in a vacuum.  You need at least two things – a body of existing law that commands the assent if not the respect of a majority of the people; and a body of judges to interpret and enforce those laws.  It looks like only England had those qualifications then.  Remember that England was developing the first profession outside the church.  It was this profession – including the judges in that term – that would celebrate and nurture Magna Carta so that it would become ‘with all its faults a kind of sacred text, the nearest approach to an irrepealable fundamental statute that England has ever had.’  The reference to sacred text from the sober legal historian Maitland tells us something.  In order effectively to nurture a constitution, you need some kind of faith based on experience.  We call it tradition.

Being a rat, King John straight away sent to Rome and got the Charter quashed.  Exhibit A in the duress plea was the default clause – which was decently omitted from later versions.  But the Charter kept getting reinstated. 

What was its real significance?  The king had to negotiate with his subjects in order to rule.  He derived his authority not from God, but from the consent of the people revealed by this contract.  That is why this is the most consequential document in the history of the world that was not said to have derived from God.  And the significance of that liberation is on show in the play King John.

English legal historians tend to be coy about the role of contract in their and our history.  But if the great shift has been from status to contract, as Sir Henry Maine said, then the Charter is its first great manifestation.  And there is common ground that the Reformation in England had nothing to do with religion.  It was all about political power, and in that it was a triumph.  (Whereas in Germany, it was all about religion, and in that it was a political disaster.)  If you want to see the effect of this liberation on England, compare the later histories of France, Italy, and Spain to those of England and Holland. 

And the role of Magna Carta and the Reformation confirms my abiding impression that the rule of law comes down to little more than a state of mind that comes out the process of the common law so that the waters of Runnymede feed into those of the Campaspe.

King John and the Laws of England

Part I

Macaulay did not like Strafford.  He called Strafford ‘the first of the rats’.  Well, Strafford did really frighten the English, and they were desperate to kill him – which they did by means that even Macaulay and Churchill conceded were outside the law – and definitely not cricket.  But for raw shiftiness, Strafford was no match for King John.  ‘Shifty’ is the right epithet here.  You see it in the famous El Greco portrait of the Inquisitor.  When Sir Jack Plumb came to describe the advent of the Hanoverian kings, he said that they came full of apprehension because their future subjects had a reputation throughout Europe for being shifty.  The most famous speech in the play King John is about commodity – that is the wilful expediency, egoism, opportunism and compromise that the English associated with a ‘trimmer,’ those who trim their sales to go with the flow, and which causes us to turn away from politics.  It’s what politicians show when we say that they are being shifty.  John Masefield thought that the play was about treachery.  We would call it a study in back-stabbing.  That is a frightful illness that this nation has succumbed to as one prime minister after another was coarsely stabbed in the back.

But when we look at King John now, we see the seeds of two great movements in the laws and constitution of England – Magna Carta and the rule of law, and the Reformation and religious Home Rule for England.  While looking at these, you need to recall that they took place while the English lawyers and judges were developing that body of case law that we call the common law.  That law would underlie the whole stupendous fabric, so that our greatest jurist, Sir Owen Dixon, could deliver a paper entitled The Common Law as an Ultimate Constitutional Foundation.  The English constitution is part of the common law.  (That is not the case in the United States.)

The play is about the sources of power.  A king has died.  Should the succession go to the next brother (John) or the son of the deceased (Arthur)?  France backs the latter.  It and England are on the point of going to war about it.  They patch up their differences with a fortuitous marriage after breaking the world land speed record in courtship.  But the Pope has it in for King John over a dispute about the next Archbishop of Canterbury.  His emissary, Pandulf, bounces the ball by addressing the kings as ‘anointed deputies of heaven’ – and he is peremptory:

I Pandulph, of fair Milan cardinal,
And from Pope Innocent the legate here,
Do in his name religiously demand
Why thou against the church, our holy mother,
So wilfully dost spurn; and force perforce
Keep Stephen Langton, chosen archbishop
Of Canterbury, from that holy see?
This, in our foresaid holy father’s name,
Pope Innocent, I do demand of thee. (3.1.64-73)

England (King John) responds:

What earthy name to interrogatories
Can task the free breath of a sacred king?
Thou canst not, cardinal, devise a name
So slight, unworthy and ridiculous,
To charge me to an answer, as the pope.
Tell him this tale; and from the mouth of England
Add thus much more, that no Italian priest
Shall tithe or toll in our dominions;
But as we, under heaven, are supreme head,
So under Him that great supremacy,
Where we do reign, we will alone uphold,
Without the assistance of a mortal hand:….(3.1.74-84)

Pandulf excommunicates King John on the spot and offers sainthood to his killer. 

The play came out less than ten years after the Armada (and two scenes later we get a reference to a scattered armada).  So, all this Catholic bashing would have been blood to a tiger for Queen Elizabeth and her loving subjects.  The Spanish would have been driven by God to burn this heretic, so that when this brave woman made her great speech at Tilbury, she had what Americans call ‘skin in the game.’ 

The Elizabethan reaction would have been raucous, but when I saw this play at the Barbican about a quarter of a century ago, the locals allowed themselves an audible frisson during this scene.  They were all talking about it at interval.  (I was most impressed.  These were the people and this was the city that stopped Hitler.  Herr Von Ribbentrop could hardly have arrived on stage with more éclat.)  Shakespeare was very kind to Queen Katherine in Henry VIII, but Pandulf gets it right down the front, both barrels.  He talks the French out of their alliance ‘to be the champion of our church’, leading the locals to revile ‘the curse of Rome.’  War preparations are resumed, and King John resolves to have the boy Arthur murdered.  And all this misery comes at the behest of a foreign potentate about a disputed succession – not to the English Crown but one English holy see.

Pandulf is oily and insidious.  He is loaded with the prevarications that the Elizabethans saw in the Jesuits.  With God and Innocent III behind him, he treats both kings like his deputies, just as Napoleon would treat them like chess pieces.  Pandulf is the puppeteer on the cover of The Godfather.  ‘Sovereignty’ is a blighted term, but while Pandulf was abroad, the kings of Europe and England saw theirs decapitated.  Pandulf is stalking proof of Protestant propaganda of the danger of breaking the biblical injunction against a servant having two masters.

What has this to do with the Reformation?  Other countries in Europe would be prepared to tolerate this interference in their nation’s governance, but not England.  Henry VIII seceded because the Pope was standing in the way of his securing his succession – a most vital function of a king.  By contrast, King John surrendered his kingdom to Pope Innocent under a bond of fealty and homage for which he was to pay an annual tribute to the Holy See.  That looks like a protection racket, Mafia style.  The Oxford History remarks that this hardly gave rise to adverse comment at the time: ‘It was only later generations with bitter experience of papal control that denounced the transaction in violent language.’  Other kings had acknowledged the feudal superiority at Rome, but the Tudors would look back at this time, and the problems with Becket, as the foundation of their drive to independence – if not liberation.  When the end came for the Vatican in England, it might remind us of what Gibbon said about the fall of Rome – the wonder was not that it happened, but that it had gone on for so long.

You will have seen that the author has King John refer to ‘that great supremacy where we do reign.’  I have no doubt that this was a deliberate allusion to one of the acts of parliament that secured the divorce from Rome.  The Act of Supremacy begins –

Where by divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king having the dignity and royal estate of the imperial crown of the same….

This was standard practice for English propaganda.  In building the common law, the judges resorted to legal ‘fictions’ to help get around road blocks set up by precedent cases and forms.  They were not so different when legislating.  Revolutionary changes would be described as simply affirmations of past customs, beliefs and laws.  So they begin by saying that their realm has always been accepted as an empire – the ruler of which can have no superior.  Well, King John plainly had a superior – but why rest on aberrations?

Shakespeare would show that he was alive to the issue.  When the French herald came to deliver the message of his king to King Henry V of England before Agincourt, he said that the French could have dealt with Harry at Harfleur, but that ‘now we speak upon our cue, and our voice is imperial: England shall repent his folly’.  A little later that night, Harry moved among the sad and depleted English troops in disguise – ‘a little touch of Harry in the night.’  ‘What are you?’ the king asks.  Pistol – a swaggering drunk – replies ‘As good a gentleman as the emperor’.  This leads the king to say: ‘Then you are better than the king.’

So, the English asserted their supremacy over the Church of Rome.  They did so through their parliament.  This was too big a job for a king alone.  The next phase of their history was in establishing the supremacy of the parliament over the king.  That process would be more or less complete by 1689, after what they call the Glorious Revolution.  It started with what we call Magna Carta in 1215.  The progress led to the form of government that we enjoy today.  There was nothing like it anywhere else in the world.  When the Americans affirmed their supremacy over the English Crown they simply used English precedents as their templates.

The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

From about 1983 on, I usually found an excuse to go overseas at least once a year.  I had done the mandatory hitch-hiker’s guide to the Continent in 1966-7, but I wanted to see more of the world – and in rather more comfort.  Although I would do it hard down the back of the aircraft for about twenty years – until I resolved not to go long haul ever again unless I was at least in the middle of the aircraft.  I would usually attend a conference – and I did find it very helpful to swap notes with lawyers from all round the world – and when Blakes opened an office in London, that gave me another reason to go there.  I wanted to go to all the great cities, which I have done, and through multiple visits, to be able to feel quite at home in London, Paris, Berlin and New York.  I have done that, and I am very glad that I have.  Each of those cities is special for me.  My favourite may be Berlin – I am very fond of the Germans – but for business reasons, I visited London far more than the others.  And after the first couple of visits, I stayed at the Cavalry & Guards Club at the top of Piccadilly, opposite Green Park.  I loved the place, and it in turn gave me reason to keep returning to London.  I felt completely at home there – more so than at the Melbourne Club.  (The Guards had women members – as does the British army – and this may have helped me feel at home.  Both my daughters would stay there later.)  There is a club bar on the ground floor next to a courtyard garden.  Upstairs, there are two dining rooms.  Outside the main one, there is a lounge with comfortable armchairs in floral fabrics, standard lamps and small fires.  You have your cocktail there, order your meal, go in for dinner, and come back out for coffee.  London clubs recreate the atmosphere of home so well.  This is close to my idea of civilisation.  The breakfasts remain for me a joy forever.  The accommodation is basic – in the bachelors’ quarters it can be downright barbarous – but I have so many happy memories of my time there.  I will just mention two anecdotes that may help explain my great affection – love, even – for this club.  I flew in one day from Budapest.  It was a beautiful sunny day as we flew up low along the Thames and up to the west end.  I could just about point out the Cavalry & Guards Club over Piccadilly from Green Park.  You feel like tapping the pilot on the shoulder: ‘If you could put me down here, Sportsman, it would save a lot of buggerizing around on the ground.’  When I got to the Club, about three hours later, Peter, the porter, was on his own, shirt open, braces, and toast on.  You can fire a cannon through these places on the weekend.  I had known Peter for years and I was very fond of him.  He was at peace this day.  David Gower was in, and batting beautifully.  I got my key and lugged the bag up to the single quarters on the third floor.  Window on to Piccadilly; dunny 10 yards one way; bath – no shower – 10 yards the other way.  After a decent interval, I went back to see if there was a room free in the married quarters – where there are showers – en suite.  But the mood was very different.  The toast has burnt, and Gower was out – the bludger!  I asked Peter about the married quarters.  He gave me a very pained look and said ‘You don’t want to change rooms already, do you?’  Well, shit, of course not.  The very idea was ridiculous.  I sloped off to the RAF Club just up the road for a couple of heart starters and a meal in the Buttery.  A few years later, I went down to my Club for breakfast on a Saturday – a real innovation for the Club.  Two youngish gentlemen were sitting near me – immaculate in pin-striped civvies with regimental ties on Jermyn Street shirts – under regimental haircuts.  They were obviously cavalry officers.  They were about to resume rehearsing a ceremonial event across the park – at Buckingham Palace – possibly the Trooping the Colour – I don’t know.  One of them appeared to be finding the whole thing very tricky – and I hoped that Her Majesty’s security did not rest on his shoulders alone.  As they got up to leave, he bent over and picked up a sugar cube.  ‘Take a piece of sugar for the horse.’  Well, moments like that make the whole bloody thing worthwhile.  You can’t dislike people who do that.

*

The style of London clubs may be exportable.  It has certainly affected the way I Live now.  When I went back to the bar, I had a five year annuity from Blakes to help with the transition.  They were sensibly generous.  I could afford to set up chambers as I wished.  In my first manifestation, I had been consumed by the need to build what for me would be the best library possible – especially on legal history, which was and is a large part of my intellectual life.  I spent a fortune on law reports – all made next to useless by computers.  I was determined to abandon the old style partner’s desk and bookshelves.  I bought a wooden roll-top little desk to go against one wall.  It went with two dining chairs in bright lined fabric, one for me, and one for a client.  There were three wing chairs in floral fabric and one low armchair in a fine fabric with the badge of Florence.  There was a sofa in mahogany leather, two lamps, two coffee tables and a small bookshelf with a CD player.  The walls were festooned with seriously good aboriginal paintings, framed photographs and contemporary art.  It was a very comfortable place to work and talk in.  Brendan Griffin drilled the walls to plug the paintings.  A lot of that is now at home in Malmsbury where I have two large living rooms separated by double doors.  I call the décor of the main room ‘1948 Paris Dambusters.’  There are the winged chairs in floral fabric, and the Florentine armchair; a small oak drop side table with two dining chairs with ridiculously expensive fabric with Chines motifs; a sofa in faded Sanderson linen; a wooden cabinet with painted doors to hide the Grundig TV; about five little lamps each with its own style and memories; a large stylish white Ikea bookshop with the best books described in the four books I have written about; two coffee tables; a Chines style cocktail cabinet, and two smaller wooden cabinets, both with painted figures; one standing sculpture; various ornaments from all over the world; another bookshelf with books of distinction; a display of the operas and jazz musicians I live on; serious paintings of aboriginal and pop art – the latter may well be my favourite; A Marantz player with two English speakers in white on the Ikea shelf; and works on paper by Blackman, Boyd, Nolan, Percival, Smart, Storrier and Williams – and a small framed original cartoon of Keats; and a mask from India and one from Venice.  The adjoining room is similar, with another sofa in floral fabric, two wing chairs in toile, and the mahogany desk that my mum and dad got made for me in Hong Kong in 1963.  The idea is to surround and secure myself with what I live for.  It works and I love it.

*

In  reading a very full biography of Karajan by Richard Osborne, a man who really knows his subject, I was struck by the similarity between the roles of a conductor and of a coach of AFL or rugby.  They want to get the best out of their men, singly and as a group, but there may well be a reserve of raw fear.  Playing in an  orchestra may not be brutal on the body as well as the mind, but there is a hell of  a lot on the line in training, effort, name and money.   I have seen Craig Bellamy, of Melbourne Storm, with his men in what would be called his soft, frank paternal side when they were at the lowest ebb a footy club could ever get to.  (They had just been belted for dishonest breaches of the salary cap and their season was over.)  But I have also seen grown men drop their voice after they had felt his anger.  Mr Osborne has one musician saying of Karajan ‘you were always afraid that one day he might suddenly turn.’  Mr Osborne says Karajan did not humiliate people but:

Since Karajan never raised his voice much above the semi-audible mutter, rebukes, when they came, put the fear of God into players.  The silence was so intense you could hear a mute drop two blocks away. By contrast, singers or orchestra players who threw tantrums were studiously ignored.

Karajan, it was said, affected not to notice when during a long  rehearsal of the slow movement of Beethoven’s Fifth, one cellist took off, saying ‘That’s it.  I’ve had enough.’  Elizabeth Schwarzkopf, the leading soprano of her generation, said Karajan was like a cat, ‘sleek and attractive but capable of suddenly lashing out.’  Mr Osborne is gentle and discrete about one difference to Mr Bellamy.  ‘There were girls as well…Floosies came and went.’  Well, the Italians do not have exclusive rights there.  And we are told that after a long day, Karajan liked nothing better than a light supper and then lying on the floor to watch the Marx Brothers.   An English viola player felt exalted and honoured to be asked home to dinner with the Italian maestro in New York.  Toscanini wolfed down his pasta and chianti, and retired to watch TV wrestling – with the most fruity, obscene abuse straight out of the Brooklyn gutter.  The maestro was a man after all.

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.