Here and there – What is fascism?

 

Some years ago, I sought to identify the range of meaning of three terms or labels commonly used in political discussion as follows.

Left and right

I do not like and I try to avoid these terms, which come from the French Revolution, but I shall set out my understanding.  The ‘left’ tend to stand for the poor and the oppressed against the interests of power and property and established institutions.  The ‘right’ stand for the freedom of the individual in economic issues, and seek to preserve the current mode of distribution.  The left is hopeful of government intervention and change; the right suspects government intervention and is against change.  The left hankers after redistribution of wealth, but is not at its best creating it.  The right stoutly opposes any redistribution of wealth, and is not at its best in celebrating it.  The left is at home with tax; the right loathes it.  These are matters of degree that make either term dangerous.  Either can be authoritarian.  On the left, that may lead to communism.  On the right, you may get fascism.

Fascism

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

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

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

Madeline Albright has written a book warning against a resurgence of fascism.  Eastern Europe looks very bleak.  You can make up your own mind about the application of those criteria to Trump.  To me it looks a very close run thing.  I am sick of hearing about him.  I merely say that since Hitler died before I was born, Trump is the leading contender for the prize of the man most loathed on this earth during my lifetime.

I want to invite people to apply those criteria to Napoleon.  Again at first blush that, too, looks close.  Let me just quote some passages from a biography by the distinguished English historian J M Thompson.

Napoleon’s forays into Italy and Egypt were little more than robbery on a grand scale.  He wanted to fund the rape of Egypt by robbing the Swiss.  On the war in Italy, Napoleon said:

Discipline is improving every day, though we still have to shoot a good many men for there are some intractable characters incapable of self-restraint.

You may recall that his political career took off when he used artillery to disperse a Paris mob – Carlyle’s ‘whiff of grapeshot.’  Throughout his career, the Corsican was profligate with French life – something that scandalised his Grace, the Duke of Wellington.

Asians got it worse.

The Turks must let their conduct be ruled by extreme severity.  Here at Cairo, I have heads cut off at the rate of 5 or 6 a day.  Hitherto, we have had to treat the people tactfully, in order to destroy the reputation for terrorism which preceded our arrival.  But now we must make sure that the natives obey us; and for them obedience means fear.

Could Hitler have improved on that descant?

Each stage or coup in the rise of Napoleon in France involved a franker appeal to force.  Abroad, the urge for conquest was insatiable.  His nationalism was only matched by his egoism.  He said that he had made Italy a part of France.  Madame de Staël had his measure.  ‘The English particularly irritate him, as they have found the means of being honest as well as successful, a thing which Bonaparte would have us regard as impossible.’

In his 2014 book Napoleon the Great, Andrew Roberts said that Napoleon was great.  This to me is like the myopia that leads Oxbridge to say that ancient Greece and Rome were civilised.  He committed France to eternal war (la guerre éternelle) and then he lost that war.  He left five million dead in the process.  He left France a smoking rubble that it took France at least a century, and endless coups and revolutions, to come out of.  And, fatally to the reputation of any soldier, he walked out on his own army – twice.  And the only reason that Napoleon and his spurned soldiers found themselves in the sands of the Levant and the snows of Russia was his manic lust for la gloire.

But at least he had one clear policy.  Make France great.  And he then ruined the joint.  As they say there, plus ça change, plus c’est la même chose.

Here and there – The problem with inquisitions

 

On one visit to the Inquisition, Galileo got a swine of a question.  ‘Why do you think you’re here?’  I’m afraid that from time to time I could be worse.  ‘As you sit there in the witness box today, do you think what you did was right (honest, sensible, careful, conscionable, or whatever)?’

Either form of teasing dilemma summons up the Hampton Fair in the 50’s – firing an air-rifle at moving ducks.  You just waited until the head of the duck moved into your sights.  Then you pulled the trigger – and knocked over the duck.  Shooting sitting ducks was child’s play.

The banks knew they were in big trouble when the present commission began.  First, the failed efforts by their friends in government and the press to protect them from public inquiry meant that the latter-day tricoteuses could smell a cover-up and would be out for blood.  Secondly, there is hardly any presumption of innocence.  The website refers to the ‘Royal Commission into Misconduct’.  Given the banks’ confessional tone in trying to avoid any inquiry, the commission is merely stating a fact, but imagine asking the Israelis to be examined about the ‘massacres’ at their border.  Thirdly, the government petulantly locked the inquiry into a time-scale that some feared might castrate it.  That meant that some procedural niceties would have to go.

For whatever reason, witness statements were ordered.   I think that practice is pernicious, and on reasonable grounds, I suspect that this commissioner has the same view.  It is unfair to the witness – especially the honest witness – and it leads to game-playing and concoction.  Many good judges condemn this process.

What we then get is not so much cross-examination, but what normally comes at the end of cross-examination – counsel puts to the witness the substance of the allegation against their side.  This is required by common sense and ordinary decency – and therefore by the law.

But when the inquiry is at large, the result can bear an ugly resemblance to a one-sided debating bout that becomes an exercise in ritual humiliation.  Counsel has access to apparently unlimited documentation compulsorily acquired from the target – something that the accused in an ordinary criminal trial would never be exposed to.  The witness then has a choice – they either bag their mates, or they dissemble.  That’s a nasty dilemma.

And this contest, or duel, doesn’t take place before a judge who Maitland said should act like a cricket umpire, but before a representative of the executive government – who is appointed to report back to government after inquiring into that mystical thing called truth.

So, these inquisitions make common lawyers very queasy.  I rarely lost that queasiness in performing similar functions in tax and other tribunals or a public inquiry over thirty years.

But someone is feeding some in the press some dud lines on these issues.  One is that the banks are denied due process.  If the banks and their nominated witnesses do not yet know the case they have to meet, they have been living on Mars, and giving their shareholders – of whom I am one – further evidence that their executives are grossly overpaid.

Then it is said that the laws of evidence don’t apply.  Sadly, most lawyers and judges have not properly applied those laws for years.  (One reason is those accursed witness statements.)  The present commissioner knows these laws.  Most of them relate to logic, fairness, or relevance.  It is plain silly to suggest that this commission might ignore those requirements.  Each of those suggestions of unfairness is therefore groundless.

If I am wrong about that, and the unfairness is, as suggested, both harmful, and unlawful, the victims can afford to go to court for redress.  If therefore anyone pushing this line is prepared to surface – so far their number is zero – they can put up or shut up.  We know they have the money.

Anglo-American lawyers well know the perils of the inquisition.  Maitland saw the medieval difference between a procedure ‘to inquire of’ and one ‘to hear and determine’ criminal causes.  England just avoided ‘that too easy path which the church chose and which led to the everlasting bonfire.’  We also know the risks of asking judges or former judges to do dirty jobs for government.  Lord Devlin said that English governments showed their respect for judges by asking them to dig them out of political holes.

But we most agree that we need this inquiry badly.  The banks are doing it hard, partly because of their original misconduct; partly because of their ill-advised efforts to remain under cover; and partly because of the sulky and inept way that the government repented and ceased being an ostrich.

The relationship between government and banks has gone bad and will not get better.  That is not bad news.  But sometimes you have to endure misery to get better.  I know that well.  Try having surgery for piles.

And whatever you might say about banks, there is not one Galileo among them.

Here and there – The faith of Ali

 

The life of Muhammad Ali reminds me of the life of Miles Davis.  They both show that we here in Australia have never understood how poisonous the problem of race is in America.  In his new biography Ali, A Life, Jonathan Eig quotes an author in Ebony saying of the words ‘I am the greatest’:

Lingering behind those words is the bitter sarcasm of Dick Gregory, the shrill defiance of Miles Davis, the utter contempt of Malcolm X.  He smiles easily, but, behind it all….is a blast furnace of race pride.

That about sums it up.  People talked a lot about three things that got up their noses about Ali: his loud mouthed boasting and his cruel taunting of his opponents; his embrace of another faith, in the very unattractive Nation of Islam; and his evasion of military service and his opposition to America’s war in Vietnam.

There was one thing that got up people’s noses that they didn’t talk so much about – the incredulity and jealousy of a large part of the white population that a black man was better than any white man – and was happily sticking it right up them.  That was, I think, the biggest problem facing President Obama – as now evidenced by the horrific fruit of the white backlash and the election of a president who unashamedly believes that white people are superior to black people.  (I may have added that Ali’s hopeless promiscuity may have upset some – but that’s a relative issue in a nation that turns out presidents as unfaithful as many of those in the U S.)

The taunting was part of the circus act, and, I think, part of the way for the young man to mask his fear in confronting men who could kill him.  It was also meant to unbalance or unnerve his opponent.  Ali saw himself – correctly – as being in the entertainment industry.  He invited aggravation toward himself to sell tickets.  Who wants to see a brawl between friends?  The author freely concedes his view that Ali often went over the top – especially with Joe Frazier.  There is a record of a conversation between the two before any of their three fights.  They were joking, bragging, and singing.

Ali: We don’t wanna be seen too much together, you know.

Frazier: Yeah.  They’ll think we’re buddies.  That’ll be bad for the gate.

Ali: Yeah.  Ain’t nobody gonna pay nothing to see two buddies.

Later the relationship soured.  Both suffered lasting damage from their three bouts – Frazier spent nearly two weeks in hospital after winning the first.  Ali would apologise to Foreman for calling him an Uncle Tom.

Ali thought differently to most of us.  In many ways, he had the mind of a child.  He didn’t want to go to L A for the trials for the Rome Olympics.  He was afraid of flying.  He was persuaded to take the chance.   So he went to a disposals store to buy a parachute – which he wore on the plane.  His graduation from high school was an act of charity, and he flunked the army IQ test.  He could see some big pictures with great clarity, but logic was not his go.

Ali was therefore the perfect dupe for crooks and odd-balls like the Nation of Islam.  And they milked him for all he was worth, and then they denounced and betrayed him.  He nevertheless maintained his faith.  Mr Eig does not doubt the sincerity of that faith, and nor do I.  While most fighters sought refuge and protection from the Mob, Ali found it in a religious sect.  A lot of Americans would have been more at home if he had stuck with the Mob.

As for Vietnam – well, supporters of that war are as thinly spaced now as supporters of the wars in Iraq or Afghanistan or Syria.  Ali’s position may well have affected that of Dr Martin Luther King.  He said that America could only be saved with ‘radical moral surgery’ and ‘I can’t segregate my conscience.’  Mr Eig says:

Ali’s stand against Vietnam made him a symbol of protest against a war in which black men were dying at a wildly disproportionate rate.  Black men accounted for 22% of all battle deaths when the black population in America was only 10%.  Why was America spending money and tossing away lives in the name of freedom in a distant land while resisting the cause of freedom at home?  Why, yet again, did the interests of black Americans seem to diverge from the interests of the nation as a whole?  Ali raised these troubling questions as opposition to the war rapidly spread.

Ali based his opposition to the war on his religious beliefs.

Many great men have been tested for their religious belief.  If I pass this test, I will come out stronger than ever…..All I want is justice.  Will I have to get that from history?

When he said that, Ali was the heavyweight champion of the world.  He had staggered that world by beating Sonny Liston – twice (although some thought both were fixed).  Ali was at the height of his powers, the prime of American manhood, but the white establishment was now bent on taking out this uppity nigger.

When Ali declined to accept induction, the commissioners of the most corrupt sport on earth moved to ban him.

Never mind that they had long tolerated the mafia and professional gamblers in their sport.  Never mind that Ali had not yet been convicted of a crime.  Never mind that boxing’s rules contained no requirement that its champion be a Christian or an American or a supporter of America’s wars.  None of that mattered.  Guided by anger, prejudice, or patriotism, boxing’s rulers decided that Muhammad Ali was unfit to wear the sport’s crown because he was a Muslim who refused to fight for his country.

Ali had been fortunate early in his career in being managed by a group of right minded business people from home.  They arranged very fair contracts and helped him with tax and saving for the future. But he was like a child with money.  He liked the feel of cash, and he threw it away.  Later he would come under the control of a promoter who had been convicted of murder.

Now a group of very senior black athletes met with Ali for hours to try to get him to change his mind about the army.  President Johnson had offered him the deal given to Joe Louis – he could just put on the uniform, and fight exhibition matches.  He could play down his religion in public, and remind the Nation of Islam, who had dropped him, that he was no good to them serving his term of five years – which was the maximum, that he got.  ‘Everybody had a chance to ask him all the questions they wanted to.  Eventually, everybody was satisfied that his stand was genuine based on his religion and that we should back him.’  Given what was involved, Ali must have had real faith.

More than four years later, Ali’s appeal against his conviction and sentence came on before the Supreme Court.  The government argued that Ali was not a pacifist – he had merely said he did not want to fight the Viet Cong – ‘No Viet Cong ever called me nigger’- or for a country that treated him as a second class citizen.  He was just making political statements.  That argument prevailed five: three.

Justice Harlan was to write the decision.  His clerk had read The Autobiography of Malcolm X and was persuaded of the sincere pacifism of this sect.  His judge then changed his mind: four: four.  The decision would stand, and Ali would do five years.

But this would not look too good.  Then another judge came up with a technical point.  The appeal board that rejected Ali’s claim had not given any basis for its finding – without knowing why his claim had been rejected, how could they have given him a fair hearing?  Well, that does look thin – there is no authority except the decision referred to in the footnotes* – but the justices thought this was better than an all-white court jailing a champion on a split vote.  And they did so unanimously.  Ali found out about his release as he was buying orange juice at a small grocery shop in Chicago.  He shouted the store.

Most of us know all about the fight against Foreman, the Rumble in the Jungle.  I saw it live in the basement of a near blood-house pub in Elizabeth Street.  I was amazed and enthralled – as was a large part of the world.  It was a massive achievement.  On reflection, both Liston and Foreman lost to Ali for similar reasons – he was able to survive and score well for seven rounds – they were used to crushing their opposition in two, and they were not equipped to go anything like the distance.

After that, you may wish to skim read.  It’s mostly downhill.  Dirty fights; whoring (he was in bed with two whores on the afternoon of a big fight); brain damage; corruption; theft; waste; and an uneasy peace.  We were moved by the lighting of the flame at Atlanta, by the film Once Were Kings, and by the funeral.

Ali was fortunate to die when the U S still had a literate and honourable man in the White House.  This is what President Obama said.

‘I am America’, he once declared.  ‘I am the part that you won’t recognise.  But get used to me – black, confident, cocky; my name, not yours; my religion, not yours; my goals, my own.  Get used to me.’  That’s the Ali I came to know as I came of age – not just as skilled a poet on the mic, as he was a fighter in the ring, but a man who fought for what was right.  A man who fought for us.  He stood with King and Mandela; stood up when it was hard; spoke out when others wouldn’t.  His fight outside the ring would cost him his title and public standing.  It would earn him enemies on the left and the right, make him reviled and nearly send him to jail.  And his victory helped us to get used to the America we recognise today… Muhammad Ali shook up the world.  And the world is better for it.  We are all better for it.

What a giant!  Muhammad Ali had the clout and the gifts of Babe Ruth; he had the courage and the devotion to his people of Jackie Robinson; he may have lacked that aura of saintliness that we see in Mandela, Ghandi, and, yes, Lincoln; but because of Muhammad Ali, his nation, however defined, has changed forever, and for the better.

The book had another message for me.  We should ban professional boxing.  It is a cruel and unusual punishment, and we should not pay men to beat up other man and shorten their lives.  This is a denial of civilisation.

*According to Wikipedia, the likely source was the book The Brethren by Woodward and Armstrong.  In 2013, A TV film was released, Muhammad Ali’s Greatest Fight.  Christopher Plummer played Justice Harlan.

Here and there – Two leaders – to whom do I refer?

 

He views the world as revolving around himself.  He has no interest in anything that does not concern him personally.

He thrives on conflict.

He is better at tearing down than building up.

He is immensely vain.

But he is also very insecure.  There was a flaw in his upbringing, and his education was at best suspect.

He cannot stand any slight on his character or upbringing.  He is likely to react irrationally and violently.  People doubt whether once he has got to the top he will be able to restrain himself.

He therefore hates the press, and sadly for him, his nation has plenty of quality press.

He adores being adored.  He thinks that it is only natural that he should be adored.

He is therefore at his best before an adoring crowd.  You can see him drawing support and relief from the adoration.

He loves rallies, parades, and ceremonies – anything to do with the military is terrific.  He likes dressing up as a member of the military, and mixing with them – although deep down, he does not like or trust them.

He prefers being adored to governing.

His government program is driven by a need for revenge.  One is less coy than the other about what is being avenged.

He is barely literate.  His written utterances would ill become a ten year old boy.  But for those who want to see, those utterances show a very bent and nasty man who could do you a lot of harm.  Some people see him as being so unhinged as to be mad.  The written communications of both are scarcely literate, but one unloaded one long endless tirades, while the other issues short bitchy pouts after dawn.

He knows nothing about trade, economics, international diplomacy or the law.  He is the most undiplomatic person ever born.  He had had little or no experience in government before getting the top job.  And it shows; and just before dawn, he knows that it shows.  This feeds his insecurity and anger.  And it makes him worse at governing.

But his supporters say that his very inexperience is a blessing.  He is untainted by the old regime that it is his mission to destroy.

Notwithstanding his ignorance of government, he occasionally indulges in micro-management when in the mood.  The results are awful.

He loves to proclaim his love for his country – in part in the hope that this will fuel his country’s love for him.

But in truth his love of himself is so great that there is little room left for love of country, and none for love of God.

One relies on others wanting to appease him; the other is keen to appease his strongest opponent.

He lies all the time.  That is to say, he is fundamentally dishonest.  ‘Conscience’ is a word that could not be applied to him.  Such a thing could only get in the way of his ego.

He therefore has no understanding or respect for the principles of decency that underlie his position.

He is therefore open to fraud and corruption, although one of them, for family reasons, is far more into nepotism than the other.

In truth, he has little respect for decency and no time or room for truth.

His propaganda team therefore has carte blanche.  They may or may not accept that their dealings with people reveal that they hold other people in contempt.

He pursues scapegoats relentlessly.  One premise of that pursuit is that he can do no wrong.  Another premise is his capacity to lump people together and regard them as inferior – and therefore ripe for target practice.

One is more reticent than the other about identifying his scapegoats but their cadres pursue them relentlessly – and smile while they do so.  This only unsettles a small number of their followers, and any dissent is brushed aside.

There is another term that could never be applied to him – tolerance.  If you think that tolerance is the fine fruit and the vital root of western civilisation, he is therefore a threat of the kind that some are wont to call existential.

Another term that could never be applied to him is contemplation.  He looks like he might have a nervous breakdown if he was locked in a room on his own in order to meditate.

Because of his character flaws, he has no friends, and his relations with women are fraught.  Each of the three women who got close to one committed suicide, or tried to, and for one of the suicides, it was her second attempt.  The other has not been able to keep his hands off women, and his third marriage is obviously stressed – his third wife stalks about like a startled POW.  (Perhaps she is.)

He doesn’t drink but his taste for food is very odd.

They have different views on military service.  Although one was knocked back for officer training – twice – he was rightly decorated for bravery in battle.  The other evaded military service with the same dedication with which he would later evade paying tax.  Another word you could never apply to him is patriot – at least if being a patriot means doing the right thing by your country where you could evade such service by a mix of cowardice and deceit.

He would like life tenure – but only one gets it.

Because of those defects in his make-up, he is the worst possible person to lead his country.  But he manages – just – to persuade enough people to support him to enable him to get the top job.  On one view, neither of them ever got a majority vote, and the same people who supported each of them must know that when the end comes, he will turn on them – viciously.

Here and there – Going Green with a Tory Intellectual

 

We have seen before that Roger Scruton, the Conservative English philosopher, is like a refreshing breeze in a foetid room.  He is an English rarity – an intellectual.  What we badly need in Australia is someone who can stand up for Conservatism in a manner that is intellectually responsible – and, for that matter, honest.  I am not aware of any valid claimant to that role in this country.

In his 2012 book Green Philosophy, how to think seriously about the planet, Scruton seeks to make the case that conservatives are better placed to deal with problems of the environment, like climate change, than those on the other side of politics.  God only knows what he thinks about those who call themselves conservatives here who are still reluctant to acknowledge the problem, and whose peeved retardation has left us up the proverbial creek.

The book is I think twice as long as it needs to be, and there is a fetish for footnotes that borders on the North American.  (And what’s the point of a footnote that says ‘See Carl von Clausewitz, On War, 1832’, or ‘See F W Maitland, Equity, Cambridge, 1909’?  They are both very big books and very dangerous in the hands of the amateur.)

Scruton was heavily and publicly involved in the fight over fox hunting in England.  His side lost, and you can see some scars.  In talking about a fund for animal welfare, Scruton says:

…the Political Animal Lobby gave £1 million pound to the Labour Party in exchange for a promise to instigate the ban.  It is worth noting that this kind of corruption of the political process elicits no cries of outrage when donor and recipient, are both ‘on the left’.

Dear me – it is not corrupt for a lobby or ginger group to advance money to a political party in return for a promise that the party will support the objectives of the group.  And the suggestion that those ‘on the left’ might get better treatment suggests that the author might be afflicted with some of the resentment that so disfigures so much commentary in a paper like The Australian.  And he should be aware of the problem, since he spends a lot of time speaking of the resentment of those ‘on the left.’  He even quotes Nietzsche on ressentiment.

Two pages later we get:

Shareholders rarely ask questions, and certainly not about the environmental consequences of actions that are bringing them a return on their investment.

Well, things have changed since 2012.  Shareholders do ask questions.  Rio Tinto has just sold all its coal holdings.  At least some analysts say that one motive was not to upset conscientious fundholders.  But then Scruton makes amends.

It is one of the weaknesses of the conservative position, as this has expressed itself in America, that its reasonable enthusiasm for free enterprise is seldom tempered by any recognition that free enterprise among citizens of a single nation state is very different from free enterprise conducted by a multinational company, in places to which the company and its shareholders have no civic tie.

The author argues that the problems can best be met by local action, rather than grand international schemes, and by people, including those in the markets, coming together voluntarily for that purpose, rather than by being driven there by government.

The premises of the argument may be ideological, but their justification is empirical.  I will not rehearse the argument, which trips into many meadows, but I will comment on a few items.  I merely say here that after the Great Financial Crisis, anyone arguing that the great currents in our lives might best be left to the markets is standing at the foot of a very high mountain that is plagued by lethal avalanches.

There is a related problem with the phrase ‘people who pursue politics of top-down control’.  The phrase ‘top-down control’ is favoured by those who get uneasy about the reach of government.  But the essence of any government is precisely to achieve top-down control.  That’s what ‘ruling’ entails.  The name for the alternative is anarchy.  You don’t alter the nature of an apple by calling it a pear.

As we remarked previously, we in Australia are committed to what is called the Welfare State.  It is suicide for any politician of any colour to suggest the contrary.  It will therefore be difficult to argue about the role or reach of government a priori. 

Take the way we try to look after the role of the poor.  We do so through bodies known as charities and through government agencies.  The law relating to charities was founded, and still is in some part, on laws made during the reign of Queen Elizabeth I – before the U S or Australia were ever thought of.  The English government then intervened on behalf of the poor in ways that really surprise us – and would revolt many Republicans in the U S.  The Elizabethans prefigured, by three centuries, the famous statement by Lloyd George in 1908:

These problems of the sick, the infirm, of the men who cannot find a means of earning a livelihood … are problems with which it is the business of the State to deal. They are problems which the State has neglected for too long.  

The role of charities today is the subject of heated argument.  They don’t pay tax, and to that extent they lean on us.  But their role in the system is fundamental.  Scruton is I think on very thin ice in trying to put charities and NGOs in different boxes.  He cannot sustain the proposition that ‘many of the best-known NGOs steer clear of politics.’  Their mere existence is the subject of political contention.  It’s the same with charities.  When speaking of charities, the author says:

English law has acknowledged their social significance and granted exemption from taxes that might otherwise have impeded their work.  Indeed, we rarely use the ‘NGO’ label in describing this kind of institution, for the very reason that we do not see them as competing with government or as pressing for political results.  They are active but not activists.

To repeat, an apple does not cease to be an apple just because you change its epithet, or label.  And that last proposition is a shocker.  (An ‘activist’ is a person whose being ‘active’ irritates the person bestowing the epithet.  If you turn on Sky News any one night you will hear one load of activists complaining about the activities of other loads of activists.  We could expect more from the Professor.)  And if you think that a charity like Red Cross has nothing to do with politics, have a look at their website; or suggest that they pay tax.

The field of inquiry is so wide, that the author is constantly at risk either of going in above his head, or revealing that he has taken his opinions on matters in which he has no expertise from very loaded sources.  One example is his treatment of class actions in the U S.  I am not qualified as an American lawyer, but I have considered the main issues at many ABA Conferences in the U S and at a summer school at Harvard.  I think I know enough to say that on this issue, Scruton has hitched his horses to a wagon that was only ever headed in one direction.

Such problems have become abundantly apparent in America, where the English law of tort [a civil wrong like an action for negligence] has encountered a formidable accumulation of greed and vindictiveness, and lost out in the fight.  In the American courts, tort cases are decided by a jury – a right guaranteed by the seventh amendment of the U S Constitution – and the jury also assesses damages.  Predatory lawyers, taking advantage of ‘class-action suits’, and of the procedure whereby jury members can be challenged and removed prior to the trial, have been able to ensure that the one who can pay is the one who does pay, regardless of fault.

There’s a lot there that is misleading, but it is at best unprofessional of the author to suggest that a significant branch of the jurisprudence of America has been distorted by greedy, vindictive and predatory lawyers – and, presumably, by juries of the same temper.  That is the kind of abuse or invective that we have some to expect from our soi disant conservatives – and which we go to people like Professor Scruton to avoid.

Unlike me, Scruton does see some meaning in the terms ‘left’ and ‘right.’  We are apparently talking about a state of mind.  Elsewhere I said:

Left and right

I do not like and I try to avoid these terms, which come from the French Revolution, but I shall set out my understanding.  The ‘left’ tend to stand for the poor and the oppressed against the interests of power and property and established institutions.  The ‘right’ stand for the freedom of the individual in economic issues, and seek to preserve the current mode of distribution.  The left is hopeful of government intervention and change; the right suspects government intervention and is against change.  The left hankers after redistribution of wealth, but is not at its best creating it.  The right stoutly opposes any redistribution of wealth, and is not at its best in celebrating it.  The left is at home with tax; the right loathes it.  These are matters of degree that make either term dangerous.  Either can be authoritarian.  On the left, that may lead to communism.  On the right, you may get fascism.

That discussion shows how shaky such a label is in the premise of an argument that claims to be logically tight.  But Scruton refers to something known as ‘cultural theory’ on the footing that it ‘captures tendencies within social and political thinking that help to show why there is a real, lasting and rooted difference between ‘left’ and ‘right’’. This is worrying, not least because Scruton says ‘I put no trust in its scientific credentials’ and that the relevant terms ‘do not describe theories or goals, but identities, revealed in the structure of collective choice.’  Talk like that may have unhinged Wittgenstein.

Still, the author is good enough to come clean about the lack of contribution from his professional colleagues.

What I have read of ‘practical ethics’ has not persuaded me that professional philosophers today are any good at giving advice….And I doubt that there can be such a thing as a moral expert.

I have no doubt about the latter, but if the former holds good, would it be rude to ask what we might hope to gain from this discussion?

So, while we now have access to a sensible conservative response to climate change, the scars of the old wars of ideology are still sadly apparent.  For some reason it remains an issue that continues to suck in even sensible people like Roger Scruton.

Passing Bull 146 – Some bad rights

 

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

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

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

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

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

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

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

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

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

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

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

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

Bloopers

 

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

The Australian, 13 April 2018

Alan Jones with his characteristic humility.

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

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

The New York Times, 17 April, 2018.

Well, he can recognise bluster when he sees it.

Here and there – Being a Conservative

 

The word ‘conservative’ is sadly abused.  Nasty people claim it.  So do fakes.  So, when the English conservative philosopher Roger Scruton writes a book called ‘How to be a Conservative’, we sit up and take notice.

First, some caveats.  On the very first page, we get this about ‘ordinary conservatives’:

Their honest attempts to live by their lights, raising families, enjoying communities, worshipping their gods, and adopting a settled and affirmative culture – these attempts are scorned and ridiculed by the Guardian class.

Don’t ordinary liberals or socialists, if there any left, want to raise families and enjoy communities?  Are there people around who scorn and ridicule people who do?  And is not the reference to the Guardian class an indication that the author may have succumbed to tribalism?  Does he stand for the Spectator class?  Then, a few pages later, Scruton tells us that he got his cultural conservatism ‘from the literary critic F R Leavis, from T S Eliot, whose Four Quartets and literary essays entered all our hearts at school…..’  Can I say that I have never met a man whose heart was so entered – at school, or at all?  As well as a tribal war, we may have a class or culture war on our hands.

But to business – Scruton refers to what might be the Conservative bible, Burke’s Reflections on the French Revolution.  Burke did not believe politics could be reduced to a plan – he was opposed to ‘a politics that proposed a rational goal, and a collective procedure for achieving it, and which mobilised the whole of society behind the resulting program.  Burke saw society as an association of the dead, the living and the unborn.’  That is a very English position and a useful introduction to being a Conservative.  It’s a view I share – with other views, of course.

Burke was appalled at the popular revolt – in France or anywhere else.  Eventually, most of the world joined him in that revulsion.  When government fails, things get out of hand.  That’s why I cannot understand how people who claim to be Conservatives support popular revolts – the position that we now call ‘populism’.  How can someone who claims to follow Edmund Burke also claim to follow Farage, Hanson, or Trump?  God only knows what Burke may have said (and Burke was not short-winded).

Then we get eight chapters seeking to find the truth in eight –isms.  Did anything good ever come out of an –ism?  Are we comfortable with a search for truth in abstractions like Liberalism or Environmentalism?  If we are going to find truth in each of these –isms, of which Conservatism is the last, then are we not in for long journey in political or ideological Multiculturalism –another of the eight – isms?  For example, under the truth in Socialism we get:

But socialism means, for most of its advocates, a political program designed to secure for all citizens an equal chance of a fulfilling life….That idea of social justice may not be coherent.  But it speaks to sentiments that we share….Hence British conservatives in the nineteenth century frequently acknowledged common cause with the Chartists, and the greatest conservative thinker of the Victorian age, John Ruskin, addressed many of his homilies to the urban working class.  Disraeli was not the inventor of ‘One Nation’ Toryism, but he certainly made clear….that the conservative cause would be lost if it did not also appeal to the new migrants to the industrial towns, and if it did not take their position seriously.  A believable conservatism has to suggest ways of spreading the benefit of social membership to those who have not succeeded for themselves.

That last proposition is just a fact of political life – at least in Australia and England.  (The U S is very different.)  Much later we get –

….civil society depends on the attachments that must be renewed and, in modern circumstances, these attachments cannot be renewed without the collective provision of welfare.

Well, given that we do have and will continue to have the welfare state, is there not some Socialism and Conservatism in all of us – and is not the rest of the discussion just bargaining or posturing about the margins?

Scruton spends a lot of time on the zero sum game fallacy.  ‘The great socialist illusion’ is that ‘the poor are poor because the rich are rich.’  That statement does look rather large – but how would I know?  I can’t recall meeting a Socialist, at least recently, outside the National Party – and I think I would remember.  (I should say that I haven’t met Jeremy Corbyn.)

The author must be right to say that we cannot condemn Nationalism just because it can be abused, and he is right to say that people are entitled to protect their national character against invading religions.  It would be shocking to permit the practice of Sharia law in an open society.  My own view is that historians and philosophers have underquoted on the liberation inherent in the Reformation.

When God makes the laws, the law becomes as mysterious as God is.  When we make the laws, and make them for our purposes, we can be certain what they mean.  The only question is ‘Who are we’?

Now, that statement about our being certain about what we mean is sadly unwarranted, and the other question is how do we know which laws were made by God and which by men?  We only get the laws of God from the mouths of men.

The truth in Capitalism is that ‘private ownership and free exchange are necessary features in any large scale economy – any economy in which people depend for their survival and prosperity on the activities of strangers.’  But we are told that ‘Socialists don’t in their hearts accept this.’  Well, Socialists may not, but the people of China and Russia plainly do.  They have both seen the starvation that otherwise comes about.  Perhaps the professor had in mind Cuba or perhaps he foresaw the fate of Venezuela.

Under the heading Liberalism, there is a very good discussion about the two differing concepts of liberty – the positive and negative.  Scruton is in my view plainly right when he says:

For the search for liberty has gone hand in hand with a countervailing search for ‘empowerment’….Hence egalitarians have begun to insert more positive rights into the list of negative freedoms, supplementing the liberty rights specified by the various international conventions with rights that do not merely demand non-encroachment from others, but which impose on them a positive duty.

The author refers to Article 22 of the UN Declaration of Human Rights.  Its terms are unsettlingly wide and they bear the hallmarks of people who may not have had to get their hands too dirty to make a living.  It’s hard to write Kant’s concept of dignity into an international covenant – and be taken seriously.

There are also some helpful remarks on the ‘down with us mentality’ in the discussion of Multiculturalism.  Writing in 2014, Scruton said ‘The dethroning of reason goes hand in hand with a disbelief in objective truth’.  He was certainly a prophet new inspired.

But the book is worth the price for the chapter on Environmentalism.  Why don’t Conservatives want to conserve the earth?

the love of home lends itself to the environmental cause, and it is astonishing that the many conservative parties in the English-speaking world have not seized hold of that cause as their own.

At last – someone who shares my astonishment!  Scruton gives two reasons for the conservative heresy – the ascendancy of economics in the thinking of modern politicians and the agitated propaganda of the other side.  We certainly have seen both here, but are we to remain prisoners of history while we ruin Earth for those who come after us?  Later Scruton says (again, in 2014) that the only nation in the world who can lead it out of the crisis is the U S.  God only knows what he thinks of the U S now.

Under Internationalism, we are told that once again ‘a fundamental truth has been captured by people with an agenda.’  We see this throughout the book – and the writer himself has an agenda.  As someone who has spent a lot of time in universities, Scruton may find it hard to recall too many people who don’t have an agenda.  We see it again on gay marriage.  ‘Only someone with nothing to lose can venture to discuss the issue with the measure of circumspection it invites, and politicians do not figure among the class of people with nothing to lose.’

Later we get another entertaining look at the impact of religion on our communal life.  The French revolutionaries were for the most part manically anti-church.  ‘The Revolutionaries wanted to possess the souls that the Church had recruited…’  That is I think the case.  It’s a theme that recurs in revolutions.

Subsequent revolutions have in like manner regarded the Church as Public Enemy number 1, precisely because it creates a realm of value and authority outside the reach of the state.  It is necessary, in the revolutionary consciousness, to enter that realm and steel its magic.

In the hands of Robespierre, the attempted theft was low farce, but the effort was there.  Burke stated the view that we and England adhere to – ‘that government must hold religion at a distance if it is to maintain civil peace.’  Scruton makes a droll observation on the fact that a majority of English people still put down ‘C of E’ as their religious affiliation.

But that did not imply that they attended an Anglican church – only that they were so far indifferent in the matter as to believe that God would not object to their pretending that they did.

When we finally get to Conservatism, we get a reference to Hegel – which in my view is a heroic flirtation with eternity – and we then get:

What emerges from it is the view of human beings as accountable to each other, bound in associations of mutual responsibility and finding fulfilment in the family and the life of civil society.

If that’s what makes a Conservative, how is he or she different to me or the rest of us?

Well, all these labels are suspect, but in the intellectual desert of Conservatism in Australia this book comes up at us like a Ballarat gold nugget.

Here and there – How taxing it is

Part II

[This is the second part of a piece on the current debate on refunding tax credits.]

Secondly, the relevant law has been in place since 2000.  Very many people have conducted their affairs on the footing of that law.  As I said, this law is no mere wheeze.  I should here disclose that you are now talking to a paradigm case of a target of the proposed change.  My superfund is invested entirely in public companies that issue fully franked dividends.  No other course even comes close for my purposes – I see cash as pure waste.  I believe that my fund will support me, but if the income of the fund is reduced by 30 per cent as a result of this proposal, I will have to look seriously at the alternatives.

There is a well-established principle of our general law that if one party to an arrangement makes a representation that the other party relies on to their detriment, then the law will restrain the party making the representation from resiling from it.  Although I am prejudiced, that law seems to me to meet my case – and doubtless that of many thousands of others who have arranged their affairs in good faith in reliance upon the good faith of government.

We cannot preclude parliament from changing the law, but we can seek to hold politicians to their promises.  When the present government sought to legislate against retired fundholders about two years ago, I was struck by the vehemence of the opposition that came from members of the government’s own party.  Lawyers I respect said that the proposed legislation was retrospective.  I have some difficulty with that as a matter of law – but I have far less difficulty in envisioning some people feeling betrayed.  People were expressly invited to conduct their affairs on the ground chosen by government and now, in the middle of the game so to speak, the government wants to change the rules.  That is not fair – and as between parties subject to the general law, it would not be allowed.

Thirdly, the relevant law is horribly complex and looked at by most people, including most lawyers, with a blend of disgust and horror.  Whatever else may be said about the proposal, it will not ‘reform’ the law in the sense of making it better or clearer.  It will add another complication and inducement to people to get advice on how to beat it.  Those who clip the ticket – there are far too many of them – will be thrilled to bits.  The suspicion of government, and the system, will get worse – particularly if the proponents say that they are targeting the wealthy, or, worse, those who don’t vote for them anyway.  (That way lies the vice of Donald Trump.)  No one wants to see superannuation, something this country has done well, as what Alan Kohler calls ‘an object of political contest’ – or, put bluntly, a till to be tickled.  People who have worked hard and paid their taxes, and then followed the government’s advice and request to look after their own retirement, so relieving ongoing taxpayers, will justifiably resent and react to a government that seeks to go back on its word.  It’s no comfort to be told that a different party is in government – that’s like a company saying it can walk away from a contract because there is a new board of management.

My conclusion – which I agree is biased – is that although the proposal is justifiable on the theory of the original reform, it is at best unfortunate that its burden falls on the those who currently receive less income, and it is downright wrong unless the government moves to exempt or protect those who for about a generation have planned their retirement on the footing that the government of the Commonwealth of Australia can be trusted to keep its word.

We do, after all, have a long history of suspicion about tax and our parliaments.  In the book referred to I said:

In 1799, England was at war with revolutionary France.  France was then led by Napoleon Bonaparte, a man of military genius and unlimited ambition – and on the first count alone, he was a much more dangerous threat to England than Adolf Hitler would be.  The war was ruinously expensive.  How was the British government to fund it? 

William Pitt had become Prime Minister at the age of twenty four.  He was a leader of great authority, but the English parliament had been feisty about tax from its inception.  The national touchiness on revenue goes back at least as far as Magna Carta of 1215.  The American colonists had revolted over taxation – in the form of the Stamps Act – less than a quarter of a century ago.  (Ironically, France went bankrupt helping the Americans against their old enemy England and this bankruptcy had led to the Revolution and to the ascension of Bonaparte.  This could be the ultimate historical example of the cost of living beyond your means.)

Then the Prime Minister made a shocking proposal that was understandably denounced as ‘inquisitorial’.  He proposed a tax on incomes!  In the name of heaven, was no property to be sacred?  Well, it was just an emergency war-time measure.  It had to be – it was assessed at the demonic and confiscatory rate of two shillings (now, ten pence) in the pound (10%)! 

England went on to win the war – but not until Waterloo in 1815.  (Had England not won, we might be having this conversation in French.)  And some historians think that the victory of England owed more to revenue than naval or military successes.  But income tax reappeared, and has stayed, and it will be with us forever.  The only real change is that the law is more than ten times as long.  And it all started with an interim, emergency wartime measure.

Passing Bull 139 – Madness in the commentariat elite about conservatism

 

I am sorry to harp on the love of labels and abstractions at The Weekend Australian, but last weekend it reached tsunami proportions.  I apologise in advance for the length of this note, but I do see more than bullshit at work here.

Paul Kelly sees the crisis of conservatism as ‘a moral crisis.’  While Mr Kelly does not say what he means by ‘conservatism’, it is not hard to see the crisis as ‘moral’ – at base, all political issues involve moral questions – unless you subscribe to the view that winning means everything.

But then you look at what Mr Kelly says that ‘conservatives’ demand from Turnbull – ‘quitting the Paris accords, pitting coal against renewables, ditching Gonski funding, revisiting the National Disability Insurance Scheme and achieving small government with a new round of spending cuts.’  Then you are even more at sea about what a ‘conservative’ may believe – except, as Mr Kelly says, ‘a package for guaranteed electoral suicide.’  It’s little wonder then that Mr Kelly concludes that ‘the political contest over morality is pivotal and the conservatives mainly lose it.’

But Mr Kelly’s infatuation with –isms finds another demon.

The issue for conservatism has been its paralysis before its gobsmacking individual expressionism and its violation of Christian views of human nature.

The last phrase looks over the top – are we not supposed to be a secular community? – but what on earth is wrong with individuals wishing to express themselves.  Isn’t that what ‘conservatism’ is about?  ‘Thank you, Government, but no – leave me alone to look after myself.’  And Mr Kelly refers to a writer who gives a horrifying indication of what happens when the individual surrenders to the herd.  The highest rating TV show of the 1950’s, I Love Lucy, had a 67.3 Nielsen rating.  Can you imagine a worse indictment on the intellectual life of a nation?  In 2014, the highest rated show Saturday Night Football maxed out at 14.8 rating.  Is not that the best news you have heard from the U S in ages?

Finally, Mr Kelly says that ‘the problem with Turnbull is that he remains a transactional rather than conviction politician.’  There are two labels in play here.  What is a conviction politician?  If it is politician who is in some way ideologically driven, then they have to confront an aversion that is not just Australian, but Anglo-Saxon.  We have produced Gough Whitlam and Paul Keating.  The UK produced Mrs Thatcher.  Any other takers?  One thing is sure.  Mr Trump is not a conviction politician.  He has no convictions at all.

What then is a transactional politician?  When applied to people like Trump or Shorten, it is one of disfavour.  Buy why?  Is not the ultimate platitude that politics involves the art of compromise?  The Turnbull government in my view has transacted good business on trade with our Pacific neighbours, and looks to be navigating the turbulence of Trump.  That, for me at least, is good politics, not bad politics.

But Grace Collier tells us the truth about what she and her colleagues think of a ‘transactional politician.’

It is true that Shorten is often described as ‘transactional’.  Further, this term is one you always hear when people are trying to account for his seeming lack of core values and belief systems, friendships with the super wealthy and other inexplicable contradictions…..The word transactional and really seems to me just a polite way of saying someone is an untrustworthy shyster who would sell his grandmother to the highest bidder.

Well, sadly, that’s not far off how many Australians see most politicians.  But, if you haven’t guessed the politics of Ms Collier yet, she is keen to disabuse you.

Most people think that the purpose of the union movement is to look after working people, in workplaces.  That is a naïve assumption and wrong.  The purpose of the union movement is to put union officials into parliament.

Well, there it is – and perhaps not surprising from a journalist who sees a friendship between the leader of the ALP and some of our very rich people as involving an ‘inexplicable contradiction.’  Why?  Has the man got uppity and got ideas above his station?  Is Ms Collier’s commitment to the tribe so commanding?  God help us, has she succumbed to ‘identity politics’?

Noel Pearson has a piece on how conservatism has been hijacked by reactionaries.  He makes the obvious point that people are never exclusively conservative, liberal or socialist – unless you melt those terms down to nothing.  So much of our discussion is flawed by the fallacy that you have to be one thing or the other.

Mr Pearson makes an observation that is so true for most of Team Oz:

so-called conservatives, while railing against the victimhood of the leftish tribes, are themselves pushing their own victimhood.

He says that Keith Windschuttle, Gary Johns, Andrew Bolt and so many more ‘started in the left,’ but after a Damascene conversion wound up ‘more extreme in their views than their new associates.’  Mr Pearson subscribes to the view that Mr Bolt just ‘found a business model.’  Mr Bolt, then, is no conviction commentator.

Mr Pearson then gets into his stride.  ‘The Centre for Western Civilisation is the apotheosis of this reverse identity politics….Conservative English philosopher Roger Scruton in his 2012 book Green Philosophy argued that conservatives should properly be conservationists.’  How could they be otherwise?  How could anyone in our political tradition prefer theory to evidence, ideology to facts, or dreams to sense and reality?  And Mr Pearson gets something else right.

Howard deferred major crises of conservatism, such as same-sex marriage and religious freedom, climate change and energy security, rather than resolving them.

Chris Kenny riffs, as is his wont, by pushing his own victimhood, to use the term of Mr Pearson.

Bring back the Barnaby story.  Half of what passes for national debate is almost as inconsequential….It can’t only be me who simultaneously feels overgoverned and ungoverned…..If voters want environmental gestures, nanny state laws and never-ending government interventions, they can vote for the past masters – Labor – so why vote for the cheap imitations?  ….Perhaps Labor did them [Tassie Liberals] a huge favour by proposing a radical poker machine ban they could never accept, thereby forcing them into a strong position of differentiation…But in my view the warning signs are flashing for Liberals across the country.  In a haze of opinion polls, social media, and superficial spin-driven politicking, they have forgotten their mission.

Will Mr Kenny never see that he is one of the main creators of the ‘haze…..and superficial spin-driven politicking’?  What else has he ever done in life?  We can come back to banning poker-machines, but do we not see here Mr Kenny condemning politicians for being naïve in making a moral stand on a matter of conviction?

Speaking of the haze of opinion polls, Dennis Shanahan is obsessed by them.  He is also obsessed with the ‘regicide’ of his mate, Tony Abbott.  If his piece had any other point, I missed it.

Greg Sheridan wrestles with the moral dilemma of Trump and conservatism.  It is or ought to be common ground that Mr Trump is a liar, a fraud, a coward, a fool, a lout, and a man so deeply in love with himself that the word ‘shameless’ is hardly enough.

Trump is in many ways a very unsatisfactory president.  But the crisis in Western governance is morphing into a crisis of Western civilisation.

What could that mean?  Well, at least Mr Sheridan believes that imposing tariffs is a bad idea – as does Judith Sloan – but why does he feel the need to justify the man and put blame on the ‘exaggerated and hysterical reaction’ of the rest of us?

John Durie has an interesting piece on Mr Andrew Mackenzie, the CEO of BHP.  Mr Mackenzie (or Dr Mackenzie) studied geology at St Andrew’s University, took a PhD in organic chemistry at the University of Bristol, and was awarded a Humboldt Research Fellowship at the Julich nuclear research centre in Germany.  He is a member of the Royal Society.  (The members of the Royal Society don’t elect idiots.)  Not bad for a corporate CEO.  Far, far better credentials than mine.

But Terry McCrann in his piece sees Mr Mackenzie as part of the ‘commentariat elites’ and an idiot.  Since Mr Mackenzie says ‘we don’t hide from the global challenge of climate change’, the rest of the commentariat elite at that paper would also think he’s an idiot.  As would all others who falsely call themselves ‘conservatives’ while refusing to act to conserve the earth that we live on.

Leaving the best to last, what does the good Christian Gerard Henderson say about the moral issue of middle class recreational facilities living off the earnings of gaming?

The comments from the likes of White, O’Connor and Brown [people who said the Liberals were ‘a bought government’] are imbued with elitism…..the absence of poker machines and the customers they attract would have put financial pressure on hotels and clubs throughout the state….Whatever the damage caused by the small number of problem gamblers, hotels and clubs give a vibrancy to local life for many citizens.

It’s true the Federal Group campaigned to retain its poker machines in hotels and clubs throughout Tasmania.  That’s what the management of a legal business is expected to do.  Yet Labor and the Greens are delusional if they hold the view that the Federal Group ‘bought’ the Liberal Party.

Well, there you are.  We have so far been looking at bullshit.  Now we have more bullshit, and with it, a searing hypocrisy.  Bugger morality – just look at the politics.  Had the moral question been answered against the government, some businesses would have felt ‘financial pressure.’  Since those businesses were prepared to give a lot of money to the government to avoid that pressure, the moral issue would just be ignored.  I was, apparently, wrong to say that all political questions resolve into moral issues – although I did say there was an exception for those who believe that winning is everything.

That’s apparently the view of Mr Henderson.  I find it impossible to believe that that view could even have been contemplated by the holy man who preached the Sermon on the Mount and who issued his own death warrant by taking to money dealers with the lash.

If people at the Australian really want to know why newspapers and politicians are so on the nose, just look at those comments of Mr Henderson.  They also indicate why his church is sinking before our eyes.  The whole mess is terribly sad.  I had thought that Mr Henderson was harmless.  I now think that I was wrong in that.

In fairness to the faith I have lost, I may say that a good friend of mine who subscribes to that faith – if it matters, as a member of the cloth – was appalled by the comments of Mr Henderson.  As I recall it, when the golf club in his town said they would shut down without pokies, my friend asked why shouldn’t they?  I think that’s a real question – but not for Mr Henderson.  If people cannot maintain a recreational facility without relying on income from a business that inevitably causes harm to other people, why should the rest of us allow it?  Are we not complicit in their living off the earnings of wrongdoing?

What is clear is that there is a lot of bullshit involved if people want to talk about morals, convictions and transactions when looking at poker machines in Tasmania.  The Liberals knew a transaction when they saw it – you piss in my pocket and I will allow you to pick the pockets of others – to hell with conviction or morals.  As squalor goes, this is hard to beat; and when God gets invoked, it becomes unbeatably squalid.

Passing Bull 138 – The sex ban

 

The reaction to the Prime Minister’s sex ban was curious.  Many of the people who attacked the PM on this issue are the same people who complain that he never does anything.  They wheel out that weasel word ‘leadership’.  To my surprise and relief, Mr Greg Sheridan supported the ban in The Australian.  In response, I wrote a letter to the editor, which was published, as follows.

In something of a change for me, I am happy to support Mr Sheridan in what he says about the sex ban.  It is about abuse of power, not sex.  As I read the piece, I recalled a discussion I had with a neighbour that we knew as Old Jack.  Old Jack had flown 47 missions in Mosquitoes.  We discussed my namesake, Guy Gibson – Wing Commander Guy Gibson, VC, the leader of the Dambusters.  War heroes don’t get more sacred than Gibson.  But Old Jack said that many in Bomber Command doubted Gibson.  Why?  He went out with women of lesser rank.  What’s wrong with that?  Mr Sheridan states the obvious.  You can see it in large law firms; in the hierarchy of the churches; and worst of all in any uniformed service.  And that’s before you get to the Caesar’s wife point about Ministers of the Crown.

It was business as usual the next day.  I often find it hard to follow what Janet Albrechtsen and John Roskam are saying.  Neither liked the ban, but I have trouble seeing why.  Ms Albrechtsen said the ban was ‘patronising’ and ‘illiberal’.

It’s not surprising that the socially fashionable Turnbull would tack so close to the #Me Too movement, but his clunky, gender-driven over-reaction, like much within the #Me Too movement, is paternalism writ large.

Yet, before she resorted to the scattergun of labels, Ms Albrechtsen indicated that she understood at least part of the issue.

It’s not sex between consenting adults, even between a minister and staffer, that matters.  It’s a boss’s preferment of a staffer, arranging new highly paid jobs that matters.  Had Turnbull stepped up earlier, telling voters that such preferment and conflicts will not be tolerated, he would have done a fine and measured job.

Most laws, and all prohibitions, restrict freedom, and are therefore ‘illiberal.’  One such law is the law of murder.  Your freedom to fire a gun is restricted if the head of your estranged spouse is at the other end of the gun.  All gun laws are illiberal.  To object to them on that ground would plant you firmly in the moral and intellectual wilderness of Second Amendment America.   To object to any law on the footing that it restricts freedom is to invoke something close to a tautology.  It’s a little like saying that the police shouldn’t charge a person because that person will be defamed by the process.

Well, is the law patronising?  Does it assume that people may need protection when they might be better off if left to stand on their own two feet?

Now, this gets closer to the issue, but people should understand how much of our law is dedicated to protecting the weak against the strong – or, to put it differently, how much of our law is about restraining abuse of power or acting in bad faith.

Those who think that the law has nothing to do with morals are dead wrong.  If we put to one side infants, lunatics, and consumers, there are many areas of the law that are concerned with relief from oppression or bad faith.  A large part of our constitutional and administrative law is there to prevent government becoming overbearing on us.  The transactions of people in business are at risk if their conduct has been ‘misleading’, ‘deceptive’, or ‘unconscionable’.  A dispute among shareholders may be resolved by reference to what is ‘just and equitable.’  Majority shareholders may be restrained from conduct that is ‘oppressive.’  Directors and other employees have to act ‘honestly’ and ‘for a proper purpose.’  Large companies may be restrained from conduct that is ‘predatory.’  The laws of most Western countries provide that a corporation that has a substantial degree of power in a market must not take advantage of that power for the purpose of substantially damaging competition.  A dependant with a ‘moral claim’ on a testator may ask the court to make an ‘adequate’ and ‘proper’ provision for them.  Reports in the Fairfax press suggest that the laws of franchising need to change to give more protection to the franchisee – too many franchisors have the insouciant brutality of Caligula.

Those are statutory extensions of case law on the duties owed by people in positions of trust and confidence.  This is part of the law known as equity.  It goes back many centuries.  Here is how the basic premise was expressed in an old text.

If confidence is reposed, it must be faithfully acted upon, and preserved from any intermixture of imposition.  If influence is acquired, it must be kept free from the taint of selfish interest, and cunning, and overreaching bargains…..The general principle, which governs in all cases of this sort, is that if a confidence is reposed, and that confidence is abused, courts of equity will grant relief.

One way the law goes about enforcing these obligations is to ban the person in a position of trust from entering into relations that will put them in conflict in carrying out their trust.  This is what is called a ‘fiduciary’ duty.  It is very hard for a company director to retain a profit that he has earned as a result of carrying out his director’s duties.  Partners and staff of a business owe these fiduciary duties to their firm.  A sexual liaison between a partner and a member of staff may involve each in a conflict of duty and interest.  That being so, it is not silly to suggest that such a liaison may be unlawful under the general law as it stands.

A related part of the law deals with people who can influence others unconscionably as the result of an imbalance of power.  This is the law about ‘undue influence.’  Sir Owen Dixon said:

But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected.

On policy grounds, that statement may apply to a Minister of the Crown propositioning a member of his staff.  It just depends on your point of view.

It is very hard for a lawyer to uphold a substantial gift from a client or for a priest to uphold a gift from a dying penitent.  The rationale of the law may be stated as follows:

By constructive frauds are meant such acts or contracts as , although not originating in any actual evil design, or contrivance to perpetrate a positive fraud….are yet by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and, therefore, are prohibited by law….the doctrines ….will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice, after a wrong has been committed.

Almost every word of that could be applied to the case of Mr Joyce and the reaction of the government.  Mr Joyce did not set out to do something wrong, but the tendency of his actions has been to violate public or private confidences and injure the public interest.  That in turn led the government to take preventive action to reduce the risk of this tendency to lead to this kind of harm in the future.

Our law has always been zealous to protect beneficiaries from their trustees.  It has been zealous not only in examining benefits obtained by those people we call fiduciaries – it has said that some kinds of transaction are so inherently dangerous, that it will not inquire into the merits of particular transactions – it will just ban them.

That is the course that the government has adopted in dealing with fiduciary obligations of public officers called ministers – at least when it comes to having sex with those who are under them and whom they are obliged to protect.  Barnaby Joyce entered into a relationship that could and did conflict with his public duties.  This was a clear breach of fiduciary duty – as Ms Albrechtsen may acknowledge.  The temptation was there for Mr Joyce to misuse his office, and persuade others to do the same, in order to favour his mistress.  It’s hardly surprising then that the government has followed one path of the law by deciding to ban certain transactions outright for those who owe fiduciary duties.

So our jurisprudence may have approached the Joyce Case through a few avenues, but it is a little hard to see what Paul Kelly makes of it.

Turnbull’s ban on ministers having sexual relations with their staff formalises what should be the case anyway…..It is one thing for Turnbull to justifiably take a stand and say ministers cannot have sex with their own staff.

That seems clear enough, but beware – Turnbull is a ‘declared progressive’ and so we then get this.

This is a progressive, not a conservative, movement.  It means libertarianism is being sacrificed to identity justice, a process catching many people out.  It assumes people cannot be allowed to pursue relationships freely because of the risk of exploitation on the basis of power or gender.  The progressive quest is for new rules and regulations to govern human relations.

This is not just about halting sexual abuse or harassment, an essential goal.  The progressive vanguard has moved far beyond this- it is now focused on power and argues that consensual sexual relations based on a power imbalance are suspect on grounds of exploitation.  Just think about that crazy idea.

You get a box of Jaffas and a smiley koala stamp if you can reconcile those statements.  This is labelling gone mad.  As I have tried to show, it has been the business of the law to rule on ‘relations based on a power imbalance’ as being ‘suspect on grounds of exploitation’ since the time when the Puritans ran England.  Having learned what we have in the last few years about relations in the churches suspect on these grounds, it is sad to see uncertainty and confusion in how we should now react.

And that’s before we get to the point that Ministers of the Crown hold positions of public trust and that there were issues of the use of public money involved in the Joyce Case.  Rarely does a day go by when the Murdoch press does not excoriate the ABC over its use of public money, but when it comes to obvious failings of a politician deemed to be a ‘conservative’ vote winner, they change their tune.

But perhaps it is not surprising that the Murdoch people get skittish about issues of integrity and their conservative political clients.  They oppose an integrity commission for the federal politicians – a move that is as sought after in the community at large as the sex ban that was imposed in light of the Joyce Case.