The Nurse does not know Romeo, but she says to him ‘If you be he, sir, I desire come confidence with you’. She will confide in him – that is, she will place faith (fides), reliance, and trust in him. She will trust him to keep what she says to himself, except to the extent that she may permit. This is the kind of communication that passes between you and your lawyer, priest or doctor, and in varying degrees the law will back you up without your having to expressly stipulate that what you are saying is confidential.
If Romeo accepts the condition of the Nurse, she may have more or less confidence that he will respect her wishes. She may be confident, to a greater or lesser degree since she does not know this youth at all, that her faith will be respected. But, by definition, nothing about faith is ever certain.
When, in Othello, worried nobles are speculating on the designs of their Turkish enemy, the Duke says ‘Nay, in all confidence, he’s not for Rhodes’, he could be using the phrase in either of the meanings that we have just seen. And you do not have to be a philosopher to know that you can hardly warrant any prediction about the future – let alone predict the conduct of any one of us.
The English have led the way in developing our basic model of democratic government. At times – say, in about 1215, 1535, 1641, and 1689 – they have displayed what might fairly be called genius in shaping their constitution. As with a lot of geniuses, you think that the answer is obvious once you have seen it – but it took them to unveil it.
At the height of their conflict with King Charles I, the Commons in 1641 passed what they called the Grand Remonstrance. As slaps in the face go, this one was pretty loud. Nor was it short. In clause 197, they expressed the wish that the king should employ only such counsellors (ministers) as ‘the Parliament may have cause to confide in’ without which ‘we cannot give His Majesty such supplies for support of his own estate….’ Shortly after this, and after a stern tongue lashing from his Latin wife, Charles Stuart, as he would come to be called, lost his head, metaphorically, and sought in person to arrest his leading opponents, including the main author of the Remonstrance, in the Parliament itself – leading to a course of events where his stubborn blindness would lead to his physically losing his head at the edge of an axe.
Macaulay was always honest about what side he was on in this long battle that became a war.
In support of this opinion [the felt need of the Commons to tread softly with the King], many plausible arguments have been used. But to all these arguments, there is one short answer. The King could not be trusted.
The sentiment expressed in clause 197 is the keystone of responsible government that was settled by the Declaration of Rights in 1689. It is typical of the English that what started its juristic life as a throwaway line in an instrument of dubious provenance soon became a pillar of ageless, hard law that only an inane anarchist could seek to fiddle with. If you mention this to an English lawyer or historian, you will get a wry smile and something like: ‘Winners are grinners – the rest make their own arrangements’.
Well, they are no longer grinning – not even the winners. Across too much of the western world, too many people have lost faith and confidence in their system of government in general, and those holding office from time to time.
Now in my eighth decade, I can sense that this has been going on slowly in Australia through most of that time, but the acceleration across the West since the Great Financial has been too hard to miss. And the collapse of public decency in the U S and U K in the last few years has been shocking. Have we then built our house on sand?
Those in government should not feel unfairly singled out. Very few people have confidence in what Ibsen called the pillars of society. Churches, trading corporations, charities, trade unions, employer groups, the professions, schools and universities (especially those lumbered with that weasel sobriquet ‘elite’), the press, sporting teams, the professions, the rich – yes, especially the filthy rich – and even the poor bloody poor and refugees are all on the nose with at least some people for one reason or another – with more reason in some cases than in others.
And as we draw further back from God and his Church, we search in vain for any kind of bedrock. Instead we are left with a revoltingly insipid moral relativity and an even more revoltingly spineless absence of anything like leadership. The picture is not pretty.
Even the law recognises and seeks to enforce obligations of confidence in some relations – such as partners, husband and wife, directors and shareholders, trustees, and holders of office of public trust – like Ministers of the Crown.
The President of the United States presently stands accused of breaching his office of public trust by seeking to abuse that office to obtain a personal benefit. The essential evidence is not in dispute. It is for the most part uncontradicted. Nor is the allegation of breach of trust fairly answerable on that evidence. The only question is whether that breach of trust warrants a finding that the President be removed from office.
But it looks like that process will miscarry because those charged with making that decision will commit one of the sins or failures that have brought us to this pass – they will put the interests of party over those of the nation. And in doing so, they will not see that they are committing a wrong just like that of the man they are protecting. And too many of them will do that because they are just plain scared of him. Our brave ancestors who stood up to King Charles I, and who prevailed over him to our lasting benefit, would be worse than disgusted. As would those in the American colonies who stood up to King George III and his Ministers, and who then fought and defeated his army.
As a result of the doctrine espoused in the Grand Remonstrance, our government must resign if it loses the confidence of parliament. Can our system survive if so many people have lost confidence in it? Before looking at what Lord Sumption says about this in his book on the Reith Lectures, we might notice some of the reasons for the fall of faith and confidence in government.
We have sat by for decades watching them let the Westminster system fail through neglect. Government has been unable to check a shocking inequality in income and wealth that undermines faith in the only ideology in town – capitalism. There is something inherently unreasonable and unfair going on. There is a continuing and self-perpetuating decline in the character of people going into government – and people make money by talking with or about the worst of them.
‘Populists’ – a dreadful word – like Trump and Johnson were born to put themselves first, to discard custom and convention, to put party above the nation, and to betray all trust. They also wallow in that tribalism that demeans all process, and all logic. Each of them is obviously a charlatan; one is also a thug; both are bullies. And we have apparently botched the education of a sufficient number of people to allow such people to get away with it. And the longer they are there, the more that any trust just evaporates.
Trump and Johnson also are champions of the 100% vae victis rule. (In Kenya, it is called: ‘It’s our turn at the table.’) This is part of the collapse of moderation and the prevalence of tribalism. All this is causing parties to forget their function, and is opening up the system to be gamed by minor parties, cranks and crooks. The result is even more unattractive.
This is happening at a time when the internet is destroying minds, civility, security and privacy. Its filthy rich drivers are seen as public enemies that our governments are too gutless or inept to control. Just as they have failed to nail those crooks who fleece us and pay no tax. Technology is also seen to destroy jobs. The absurd bonuses of directors may be conditioned on sacking people. Too few share in the wealth created by sending jobs overseas. Too few went to jail for crimes committed in the GFC that nearly put the West on its knees. The cries of envy and for revenge are matched by heightened credibility, and the spread of fake news and conspiracy theories are aided by people in the press who have no sense of decency, much less professional obligation.
The intellectual problem may be simply stated. Too many people cannot tolerate uncertainty or doubt. They crave the answer – which is both delusional and dangerous – and a sponsored response that they can hide behind. This is how Edward Gibbon described the effect of a new faith on old beliefs.
The decline of ancient prejudice exposed a very numerous portion of human kind to the danger of a painful and comfortless situation. A state of scepticism and suspense may amuse a few inquisitive minds. But the practice of superstition is so congenial to the multitude, that if they are forcibly awakened, they still regret the loss of their pleasing vision. Their love of the marvellous and supernatural, their curiosity with regard to future events, and their strong propensity to extend their hopes and fears beyond the limits of the visible world, were the principal causes which favored the establishment of Polytheism. So urgent on the vulgar is the necessity of believing, that the fall of any system of mythology will most probably be succeeded by the introduction of some other mode of superstition.
You could get into serious trouble for saying any of that now – in part because this is a sin for which truth provides no defence. But if you doubt it, just look at the crowd at a Trump rally or any advertisement put out by Farage.
Sectarian division has been replaced by generational schism. Technology has made that worse too. The young are jealous and frustrated, but we that are left worked hard and paid our taxes and we expect a return. It’s not our fault that life was simpler and better in our flowering time – nor is it our fault that science means that we will live longer and so probably delay or wipe out any devolution. Nor do we think that it’s our fault that people commit mayhem on the laws of language and logic. But the sense of betrayal on climate and housing is palpable and warranted in whole generation that finds itself lost.
And our sense of family is almost travelling as badly as our feeling for religion.
Fifty years ago in this country, all the political nuts and crooks were on the side of labour. They are all now on the side of capital. This is in no small part due to our failure to develop a decent conservative press. Instead, that ground is falsely claimed by unreformed Liberal Party hacks, deranged cadres from right wing think tanks, and regressive relics of a repressive sectarian faith. And for good measure they forfeit any claim to professionalism by going after the ABC with malice fuelled by the lucre and envy of a vengeful feudal owner. We have to face it – Murdoch is now doing to Australia what he has been doing to America.
The wilful inanity of soi disant conservatives in Australia about climate change makes it hard to resist the impression that they have been bought – which is certainly the case for at least one think tank.
Nationalism is a poll-booster that appeals to those who are jealous of their citizenship, because they think they have so little else – but it always comes with resentment and scapegoats; it is the seed of bad wars; and both get very ugly when it mixes with religion.
And people who abuse ‘elites’ because they – the members of the elite – think they know better, just fail to see that they – the critics – indulge in the same sin. And their touchiness about inferiority and insecurity gets hilarious results with ‘experts’ – unless they themselves are on the line, in which case they will prostrate themselves before their superior.
We have rediscovered the simple truth of a democracy based on two parties – the standard of governance is only as good as the opposition. In the U S, the U K, and Australia, dreadful people have succeeded only because the reluctant electorate could not stomach the alternative. Each now has a leader that too many neither trust nor respect – and each has succumbed to the view that they are there on merit.
My arrival on this earth came just after the end of a war that we did not look for, but which we had to win. We had fought bravely, and we as a nation walked tall. We were entitled to do so. The nation blossomed in my youth, even though its political process had been sterilised. The whole world lay before us.
Now, as I slip back toward my ancestors and my dog, I will leave a nation whose government has at least twice led us into wars based on false premises. As a result, we and the nations that we fought over were worse off. There can be no more fundamental breach of trust by a government than to lead its people into war on the basis of a falsehood – and the breach is so much worse if the government knew or ought to have known that it was not telling the truth.
We at last worked up the courage and common courtesy to apologise to our first nations for the way we took over their land and for what we did to them. I have not heard any apology from anyone in government for our bad wars. Instead, the politician who most owes us an apology refused to join in the apology to the blackfellas. How do you place any confidence in people who behave like that to you?
They are some of our present discontents.
In Trials of the State, Lord Sumption says:
Fundamentally, we obey the state because we respect the legitimacy of the political order on which it is founded. Legitimacy is a vital but elusive concept in human affairs. Legitimacy is less than law but more than opinion. It is a collective instinct that we owe it to each other to accept the authority of our institutions, even when we do not like what they are doing. This depends on an unspoken sense that we are [all] in it together…..legitimacy is still the basis of all consent. For all its power the modern state depends on a large measure of tacit consent…..
The legitimacy of state action in a democracy depends on a general acceptance of its decision-making processes…..Democracies operate on the implicit basis that although the majority has authorised policies which the minority rejects, these differences are transcended by their common acceptance of the legitimacy of its decision-making processes….Majority rule is the basic principle of democracy. But that only means that a majority is enough to authorise the state’s acts. It is not enough to make them legitimate….Democracies cannot operate on the basis that a bare majority takes 100% of the political spoils.
The notions of legitimacy and tacit consent are hard to nail down, but our law was founded on custom and our politics depend on conventions. My own view is that ultimately the rule of law depends on little more than a state of mind. I wonder now whether the same does not hold for our whole system of government.
We are looking for an implied premise of reasonableness or moderation. Our law says that the parties to an agreement are obliged to try to help each other get what they have promised. At the very least, they must not take steps to abort the deal. So, if I promise to do something if I get a permit, and I change my mind, and try to stop the issue of the permit, the law will deal with me.
Let us look at a political analogy. The Republicans defied convention by blocking President Obama’s appointment of a Supreme Court justice, which is seen to be a huge political prize in the U S (especially by those puritans who avert their gaze and hold their nose to vote for Trump). Dietrich Bonhoeffer spoke of putting a spoke in the wheel. But that was to stop Hitler. The Republicans now put spokes in the wheel of the United States. And now Trump is repeating the dose by shutting down the WTO by stopping new appointments. This is another bad faith breach of convention for short term political gain.
Lord Sumption says that it is not enough for a law to be ‘good’ – the public must in some sense ‘own’ the law. ‘Law must have the legitimacy which only some process of consent can confer.’ This gets hard when we look at the failure of the public to engage in the process. This in his view is the problem. It is the same here. Few people now wish to join a political party, and not many members of parties are that keen to talk about it – except with insiders. There is a sense of estrangement – and ‘wholesale rejection.’ Confidence is gone.
I entirely agree that formulating a new constitution or trying to get judges to fix the problem is not the answer. I also agree that one reason the Americans are so tied up on abortion is that the law is judge made – so that they vote for people as president who will appoint judges to change that law. It would be hard to conceive of a more twisted perversion of the separation of powers.
As to legislating in a binding constitutional manner for human rights and conventions, look at what a mess we have made of company law by overlaying the broad teaching of equity with vast volumes of black letter law. And then recall that recently a government that calls itself conservative thought that the answer was to scrap equity for that purpose – and for the relief of their friends in business who had lobbied them so frenziedly (quite possibly with the well-endowed aid of a few former ministers of that party). And that is the same party that goes into reverse cartwheels at the mere mention of investigating federal corruption.
The author says:
On critical issues, our political culture has lost the capacity to identify common premises, common bonds and common priorities that stand above our differences.
He quotes an American judge who said ‘a society so riven that the spirit of moderation has gone, no court can save.’ All that is as true for us as it is for England and America. Disraeli – ‘perhaps the only true genius ever to rise to the top of British politics’ – said the problem with England was ‘the decline of its character as a community.’
That sense of community is vital. Like ‘confidence’, the word ‘commune’ has a very long history – on both sides of the Channel. In the enforcement clause in Magna Carta, the barons reserved a right to go against a defaulting king ‘with the whole commune’. The great French historian Marc Bloch said:
….by substituting for the promise of obedience, paid for by protection, they contributed to the social life of Europe, profoundly alien to the feudal spirit properly so called.
The commune exploded in France in 1792 and 1869. For better or worse, you can see its descendants today in gillets jaunes.
When an Englishman was arraigned in court to be tried a jury, the jury would be told that the accused ‘has put himself upon his country, which country you are.’ That is a very stirring phrase. The jury was originally brought over by the Normans as an inquiry made of neighbours – that is, the local community having an interest in the relevant inquiry. The first medieval reports of cases might refer to the pleadings and then just say: ‘Issue to the country.’
Lord Sumption goes on:
…..experience counts for a great deal in human affairs: more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. Indeed they are the foundation of law.
Oliver Wendell Holmes might have said that.
These notions are large, but we must deal with them. Lord Sumption fears that we will not recognise the end of democracy when it comes. I wonder whether we will go down like the way Gibbon saw the Roman Empire go down.
….as soon as time or accident had removed the artificial supports, the stupendous fabric yielded to the pressure of its own weight. The story of its ruin is simple and obvious; and instead of inquiring why the Roman Empire was destroyed, we should rather be surprised that it had subsisted so long.
You know things are sick when a fat, ugly seventy-three year old man, who happens to be the President of the United States, bullies a sixteen year old Swedish girl on the absurdly named ‘social media’ for giving voice to the sense of betrayal of her generation.
I’m not sorry that I will not be here to see the end of it all.
In Chapter 3 of his History of England, Macaulay experienced something like an epiphany on how we see our ups and downs.
It is now the fashion to place the golden age of England in times when noblemen were destitute of comforts the want of which would be intolerable to a modern footman, when farmers and shopkeepers breakfasted on loaves the very sight of which would raise a riot in a modern workhouse, when to have a clean shirt once a week was a privilege reserved for the higher class of gentry, when men died faster in the purest country air than they now die in the most pestilential lanes of our towns, and when men died faster in the lanes of our towns than they now die on the coast of Guiana. We too shall, in our turn, be outstripped, and in our turn be envied. It may well be, in the twentieth century, that the peasant of Dorsetshire may think himself miserably paid with twenty shillings a week; that the carpenter at Greenwich may receive ten shillings a day; that labouring men may be as little used to dine without meat as they now are to eat rye bread; that sanitary police and medical discoveries may have added several more years to the average length of human life; that numerous comforts and luxuries which are now unknown, or confined to a few, may be within the reach of every diligent and thrifty working man. And yet it may then be the mode to assert that the increase of wealth and the progress of science have benefited the few at the expense of the many, and to talk of the reign of Queen Victoria as the time when England was truly merry England, when all classes were bound together by brotherly sympathy, when the rich did not grind the faces of the poor, and when the poor did not envy the splendour of the rich.