Here and there – Yet another crash?  Pardon me for yawning

Only the most desiccated Philistine would be oblivious to the reason for this question of Don Quixote: ‘And are the lions large?’  By this stage of his journey as a knight errant, the madness of the Don might fairly be described as serene.  (The Romantics would have said ‘sublime’.)    When he encountered some lions, the Don wanted to know if their size might warrant their being exposed to his indomitable valour.  On being assured that these lions were the largest ever sent out of Africa, the Don resolves to take them on, and those in his retinue head for the hills in terror.  But, as we now know, the lion had the wrong script.  This is what happened when he was released.

The first thing that the recumbent animal did was to turn round, put out a claw, and stretch himself all over.  Then he opened his mouth and yawned very slowly….The lion proved to be courteous rather than arrogant and was in no mood for childish bravado.  After having gazed in one direction and then in another, as has been said, he turned his back and presented his hind parts to Don Quixote and then very calmly and peaceably lay down and stretched himself out once more in his cage.

Now, I have to say, dear reader, that there is every chance that this lion later went to that great den in the sky without knowing just how close he came to utter destruction for this outrageous affront to the dignity of the most gallant knight errant that the world has ever known.

Why do I mention this now?  Because in response to those people who are shrieking about events on the stock exchange, I feel like reacting like the lion – just yawn, present my posterior, and resume life in my place as if nothing had happened.

We have in truth seen it all before.  Put 1929 to one side, and reflect on 1987 and 2008.  As it happens, when J K Galbraith came up with a new edition of The Great Crash 1929 in 1998, he compared 1929 and 1987.  He did so in terms that may be appropriate in looking at 2008 and 2020.

The most important of the controlling circumstances, powerfully operated before the two Octobers, was, as it must be called, the vested interest in euphoria. In the preceding years in both periods the stock markets had been going up seemingly without limit.   There had been interruptions, some regarded as grave, but they had been overcome.  Underlying influences affecting market values – earnings prospects, general economic growth, prospective interest rates – had in both cases given way to the belief that the increase in values, however unrelated to reality, would continue.  Those who dissented or doubted were held not to be abreast of the mood of the times….The vested interest in euphoria leads men and women, individuals and institutions, to believe that all will be better, that they are meant to be richer, and to dismiss as intellectually deficient what is in conflict with that conviction.  ‘All people,’ Walter Bagehot noted, ‘are most credulous when they are most happy.’

Associated closely with the vested interest in euphoria is the pure speculative instinct….It is a condition that is inherently unstable, for implosively within it are the causes of its own collapse.  What triggers the rush to get out doesn’t much matter.  It will however be discussed with compulsive banality by those who are impelled to find an external explanation for all market movements….

A third controlling circumstance, little mentioned then or recently, was the enactment earlier of tax reductions with primary effect on the very affluent – before 1929, those of Andrew Mellon; before 1987, more spectacularly, those of supply-side economics and Ronald Reagan.  In both cases, they were supposed to energize investment, produce new firms, plants and equipment.  In both cases they sluiced funds into the stock market; that is what well-rewarded people generally do with extra cash…

There was another marked resemblance between the events of 1929 and those of 1987.  That was the prompt search for a scapegoat on which the stock market collapse, however inherent in the previous speculation, could be blamed.  Economic theology is here involved.  The market is not only perfect but in some measure sacred….

….in the Reagan years, taxes were drastically reduced in pursuit of the hitherto-mentioned supply-side fantasy that from reduced tax rates would come increased entrepreneurial energy and increased revenues.  The result, in fact, in combination with increased military expenditure, was the huge budget deficit….

Capitalism, one notices, is currently defended (one does not yet know how effectively) by a great array of measures that its most ardent supporters once deployed.

And so it goes.  The comparison of 1929 and 1987 may be instructive for that between 2008 and 2020.  I mention one obvious link.  We know that for various reasons, a lot of funds have been ‘sluiced’ – and the term is so apt – into the stock market – with results that cannot be stigmatized as unforeseeable.  Another observation to catch my eye – belonging to one who knows zilch about economics – was that if the market is over-valued, what ‘triggers the rush to get out doesn’t much matter.’  Calvin may have been at home with that notion.

Two points may be made.  First, yes there is a vested interest in euphoria when the market is on the up; but there is just as potent a vested interest in distress and desperation when the market is falling.  Then shrieking sells.  Secondly, logic tells us that merely because the market has always recovered in the past, we cannot be assured that it will do so again.  As Bertrand Russell once mordantly remarked:

The man who has fed the chicken every day throughout its life at last wrings its neck instead, showing that more refined views as to the uniformity of nature would have been useful to the chicken.

Well, let us leave that intellectual rigour to the Apostles at Cambridge and to the endless glory of English caste.  Those of us here on the ground know that if the world turns upside down, and the market for once does not recover, your best bet would be to have a crate of Scotch buried in the back garden to trade on the hottest black market that the world has ever known.

And the Don?  Fie! Fie! And shame on you for suggesting that so noble a knight could ever be concerned about anything as vulgar as mere money!  It was sufficient for the overpowering intellect of so mighty a man that he could and did unveil the one great truth you need to know about money: ‘The person who possesses wealth is not made happy by having it, but by spending it.’

But we can and do seek solace from that noble knight when we are afflicted.

Don Quixote saw his mission simply. It was to relieve the losers. As it happens, that mission was defined for an English court at that time in these terms: ‘…the refuge of the poor and afflicted; it is the altar and sanctuary for such as against the right of rich men, and the countenance of great men, cannot maintain the goodness of their cause.’

As well as relieving the losers, the Don liked to take down bad winners.

And as for me?  I’m with the lion.

Passing Bull 230 –Minding your own business


There is some discussion about the extent to which business should concern itself with the political or social concerns of its community.  For example, some criticise BHP for its stance on climate change.  I own shares in BHP and I firmly support its position.  If it matters, so I think do analysts and the market.  The criticism tends to come from people with two things in common.  First, they have no idea about running a business.  Secondly, they have no idea about climate change.  The IPA is a good example.  They also go on about freedom of speech.  Except what they disagree with.

BHP fired someone for conduct involving, but not limited to, a bad joke that I will not repeat.  The tribunal said the joke was not enough to warrant dismissal, but that other conduct was sufficient.  The CEO of BHP says he disagrees.  He wants the world to know that BHP will not put up with this sort of conduct.  Good on him.  That in my view is a sound business judgment on his part.

On the other hand, Channel Nine is being castigated for showing the cricket final last night on its second channel.  This is said to have involved some kind of insult or lack of respect to those interested in women in cricket.

The directors of Channel Nine are there to conduct the business of the company for the benefit of the shareholders.  If in doing that they fail to support the social dreams or political aspirations of others, and that has adverse consequences for shareholders or other stakeholders, so be it.  Otherwise, the critics should mind their own business.


The High Court’s decision in February that Australians should be treated differently in the Constitution because of their racial identity was the most radical judgment in Australian history.  It destroyed the idea that Australians have about multiculturalism that there was one law in Australia and that everyone was subject to the law in the same way….

The decision distorted the common law to import a new and incomprehensible legal principle that has fundamentally reshaped the relationship Australians have with each other and with the Australian Constitution…..

The cultural left has (in Australia) or had (in the U S) an uncontested stranglehold on the legal establishment, and is eager to retain that control…..

The Australian, 9 March, 2020.  (Morgan Begg, IPA)

The IPA rarely misses an opportunity to show how fine is the line between ignorance and arrogance on the one hand, and madness on the other.  I may shout them a copy of Dreams of a Spirit-Seer by Immanuel Kant.  Or, perhaps, his Observations on the Feeling of the Beautiful and Sublime.

Here and there – On the Psychology of Military Incompetence – Norman Dixon (1976)


This book reminds me of Clausewitz On War.  Although both are focussed on war, they are replete with valuable lessons for us all.  For example, Clausewitz said: ‘War is the province of uncertainty: three fourths of those things upon which action in war must be calculated are hidden more or less in the clouds of great uncertainty.’  That precisely applies to litigation, a form of trial by battle.

The author was supremely equipped to write this book.  After ten years’ commission in the Royal Engineers, he devoted his life to Psychology at University College, London.  You can see traces of both fields of service on every page.  Professor Dixon says that the military tends to produce ‘a levelling down of human capability, at once encouraging to the mediocre but cramping to the gifted.’  That is very common in any large outfit, government or private.

The following also has general application.

It seems that having gradually (and perhaps painfully) accumulated information in support of a decision, people became progressively more loath to accept contrary evidence….  ‘New’ information has, by definition, high informational content, and therefore firstly it will require greater processing capacity; secondly, it threatens to return to an earlier state of gnawing uncertainty; and, thirdly, it confronts the decision maker with the nasty thought that he may have been wrong.  No wonder he tends to turn a blind eye!  ….‘the information-content’ may be just ‘too high for a channel of limited capacity.’

The ignorance of the condition of and the lack of care for the ordinary soldier defies belief in the Crimean and the Boer War.  In the first, many died because they were cold and wet, and they could get no fire; in the second, 16,000 of the 22,000 British dead died of disease.  Those responsible would now be tried for manslaughter.

The same cruel officers said the other side, at least those who were white, should be accorded respect.  ‘The notion that certain acts were ‘not cricket’ was carried to such absurd lengths that the trooper was given no training in the ‘cowardly’ art of building defensive positions or head cover.’  When the heavy machine gun was developed, ‘they were written off as suitable only for the destruction of savages and hardly suitable for use against white men….the colour of the Boer soldiers elevated them from the levels of savages, thereby saving their white skins from, exposure to machine guns, but on the other hand they were regarded, in terms of their believed military expertise, as no better than savages.’  No real uniform or spit and polish, old boy.  It is little wonder they had similar feelings about the ANZACS.  They certainly felt that way about the Americans in 1776 – until they learned better.

Professor Dixon is rightly savage about those who abandoned their men to agonising death.

In considering these data, one is forced the conclusion that the behaviour of these generals had something in common with that of Eichmann and his henchman who, as we know, were able to carry out their job without apparently experiencing guilt or compassion…..  ‘No privilege without responsibility’….Men’s fates were decided for them not so much by ‘idiots’ as by commanders with marked psychopathic traits.

We meet this theme throughout the book – the failures of command were moral rather than intellectual; the flaw was of character rather than the mind.  But we will also come across a failure of the mind in people unable to bear doubt or ambiguity – the ‘black and white crowd.’

The Germans blitzkrieg met a Polish army and a French army that believed horsed cavalry could destroy German Panzers.  That burial in the past defies belief.

The predisposition to pontificate is a dangerous liability.  Unfortunately, such a predisposition will be strongest in those like headmasters, judges, prison governors and senior military commanders who for two long have been in a position to lord it  over their fellow me…the important thing about pontification is that though an intellectual is that though an intellectual exercise, its origins are emotional.

On cognitive dissonance, Professor Dixon says: ‘Once the decision has been made and the person is committed to a given course of action, the psychological situation changes completely.  There is less emphasis on objectivity and there is more partiality and bias in the way in which the person views and evaluates the alternatives.’

But, perhaps there may have been an upside from the predominance of the upper class in British high command.  ‘It did little for military competence, but was eminently successful in other ways.  Few countries can boast of such an absence of military coups as Britain.’

On ‘bull’ – spit and polish and endless repetition –    ‘bull is closely linked to conservatism, for its very nature is to prevent change, to impose a pattern upon material and upon behaviour, and to preserve the status quo whether it is that of shining brass or social structure….it seems to be a natural product of authoritarian, hierarchical organisations….Perhaps the single most important feature of ‘bull’ is its capacity to allay anxiety….by the reduction of uncertainty.’

On ‘character and honour’ –

A code of honour may be likened to an endlessly prolonged initiation rite…As a general rule, snobbish behaviour betokens some underlying feeling of inferiority.  It is a common characteristic of the social climber, of the individual with low self-esteem, of the person who feels threatened or persecuted because of some real or imagined inadequacy.  That there is an underlying pathology to the condition seems fairly obvious for two reasons.  Firstly, those who are emotionally secure are rarely snobbish.  Secondly, the behaviour is itself irrational, compulsive and self-defeating.  After all, even the most hardened snob must know that other people are adept at seeing through his affectations.  There is nothing, for example, quite so transparent as name-dropping or displaying invitations.  He must know at some level that his behaviour provokes at best amusement, at worst ridicule, contempt, or even dislike, but he is nonetheless powerless to curb his snobbishness.  Something drives him on.

Anyone who has been a member of a close professional body – like, say, the Victorian Bar – would relish – no, wallow in – every word of that denunciation of the two bob snob.

On seeking achievement – ambition:

The crucial difference between the two sorts of achievement – the healthy and the pathological – may be summarised by saying that whereas the first is buoyed up by the hopes of success, the second is driven by fear of failure. Both types of achievement motivation have their origins in early childhood…..senior commanders fall into two groups, those primarily concerned with improving their professional ability and those primarily concerned with self-betterment.

The comments on the authoritarian personality warrant a note and a book of their own.  The following may convey the gist.

A symbiotic relationship exists between characteristics of the armed services and the private needs of their members.  Research after World War II into the Third Reich showed two personality types.  One was anti-Semitic, rigid, intolerant of ambiguity and hostile to people of a different race.  The other was individualistic, tolerant, democratic, unprejudiced and egalitarian.

Research at Berkeley by Adorno and others refined the type, leading Professor Dixon to say that the results ‘at one level constituted fitting monument to the six million victims of Fascist prejudice.’  Another commentator said the results were ‘hair-raising.  They suggest that we could find in this country [U S] willing recruits for a Gestapo.’

There should have been no such shock or even surprise.  The Gestapo was not inherently German.  Sparta had a similar version for ruthlessly holding down an inferior people more than 2000 years ago.  To suggest that Hitler and the Nazis could only have risen up in Germany is to fall precisely into their vice of typing people – of branding every member of a group – by reference to their breeding.

Professor Dixon says:

The results delineated the authoritarian personality.  People who were anti-Semitic were also generally ethnocentrically prejudiced and conservative.  They also tended to be aggressive, superstitious, punitive, tough-minded and preoccupied with dominance-submission in their personal relationships….It seems that authoritarians are the product of parents with anxiety about their status in society.  From earliest infancy the children of such people are pressed to seek the status after which their parents hanker….There seem to be two converging reasons why such pressures produce prejudice and other related traits.  In the first place, the values inculcated by status-insecure parents are such that their children learn to put personal success and the acquisition of power above all else.  They are taught to judge people by their usefulness rather than their likeableness…In the second place, the interview data collected by the Berkeley researchers suggested that the parents of their authoritarian sample imposed these values with a heavy hand… exercise in punitive repression….The extreme strictness of the parents, coupled with their lack of warmth, necessarily frustrates the child.  But frustration engenders aggression, which is itself frustrated, for it is part of the training that children never answer back.  Hence, the aggression has to be discharged elsewhere, and where better than on to those very individuals whom the parents themselves have openly vilified – Jews, Negroes, and foreigners – all those in short, who being under-privileged, have acquired bad reputations in a status-seeking society?…..the authoritarian personalities manifest a monolithic self-satisfaction with themselves and their parents…Because he has to deny his own shortcomings, he dare not look inwards…..  ‘If he has a problem the best thing to do is not to think about it and just keep busy.’  Similarly, the authoritarian personality is intolerant of ambivalence and ambiguity.  Just as he cannot harbor negative and positive feeling for the same person, but must dichotomize reality into loved people versus hate people, white versus black and Jew versus Gentile, so also he cannot tolerate ambiguous situations or conflicting issues.  To put it bluntly, he constructs of the world an image as simplistic as it is at variance with reality.

Later, the author points to the relationship between conformity, authoritarianism and the tendency to yield to group pressures, and the relationship with obsession.  He also looks at their generalised hostility, what the Berkeley researchers finely called ‘the vilification of the human.’  The dogmatic militarist is of course seriously anti-intellectual.

He already knows all he wants to know.  Knowledge is a threat to his ego-defensive orientation and is therefore rejected…To think is to question and to question is to have doubts….the essence of dogmatism is a basic confusion between faith and knowledge.

Later, Professor Dixon looks at the ultimate authoritarian – Himmler and his SS.

….authoritarian traits are the product of an underlying weakness of the ego.  Thus, from the first study, it seems that the SS guards of the Third Reich were not, as popularly supposed, ideological fanatics, but inadequate ‘little’ men for whom the satisfactions provided by the SS organisations were tailor-made – all-powerful father figures, rigid rules of loyalty and obedience, and ‘legitimate’ outlets for their hitherto pent-up and murderous hostility……By a process of paranoid projection, they hated in others what they could not tolerate in themselves.  Hence it was that the weak, the old, the underprivileged, and later the starving millions of the concentration camps suffered their fearful attentions   [But they could still] aver that their helpless victims were dangerous enemies, Jewish terrorists, etc, who had to be eliminated.  For in a sense they were enemies, not of the State, but of their own precariously poised egos.

Well, now, how does that all grab you?  Is it too neat and tidy for our crooked timber?  Are we falling into the trap of stereotyping people?  I think not.  The author is too bright and decent for that, and he says in terms that you cannot defeat your enemy by stereotyping him.

It is curious that as far as I can see, the book makes no reference to Hannah Arendt, who expressed similar views about Eichmann, or the KKK, which looks to me to the embodiment in the flesh of authoritarian man.  (Nor, I think, did Arendt make any reference to Adorno in her book on Eichmann.)

But, when I read this uncomely catalogue of our failings, I am reminded of the recycled, simplistic, jealous, mean, nativist, surly rejection that you can get hissed at you on a bad day in an outback pub.  More worryingly, I can also sense it in the vacant faces and the banal chants of those deprived souls who idolise Donald Trump, all dressed up to the nines in the colours of an ourangatang.  Those whom Professor Dixon studied look to me to be the kind of people behind our current moral and intellectual landslide.  And that, for what is worth, looks to me to be a failure of the mind – if those distinctions mean anything.

This book is vital to our efforts to come to grips with our saddest failings.

Passing Bull 229 –Pure bull about ‘conservatives’


You may be aware  that I regard the term ‘conservative’ as being as vacuous – empty, at best – as ‘left’ or ‘right’.  It is at least open to serial abuse. I simply have no idea what those terms might denote in Australia now.  You might say the same for ‘socialist’.  Since England followed Germany into the Welfare State in and after 1909, and we followed them, we  – in common now with all of Western Europe – embrace a form of government that Americans would regard as ‘socialist,’ but which we regard as the minimum of government intervention in our lives that is consistent with what we call ‘civilisation.’    A denial of compulsory Medicare in the U S now may be seen as a repudiation of socialism.  Here it would be public political suicide.  What then is left of the term ‘socialism’ here?  And if the denial of Medicare were to be made by a self-styled conservative here or there, what do they think that the label ‘conservative’ may denote?

This is how Professor Simon Blackburn sees it in The Oxford Dictionary of Philosophy.

Originally in Burke an ideology of caution in departing from the historical roots of a society, or changing its inherited traditions and institutions.  In this ‘organic’ form, it includes allegiance to tradition, community, hierarchies of rank, benevolent paternalism, and a properly subservient underclass.  By contrast, conservatism can be taken to imply a laissez-faire ideology of untrammelled individualism that puts the emphasis on personal responsibility, free markets, law and order, and a minimal role for government, with neither community, nor tradition, nor benevolence entering more than marginally.  The two strands are not easy to reconcile, either in theory or in practice.

It is hard to apply any of that here.  Politics now is defined by what people are against, rather than what they are for.  If we take Cory Bernardi and Tony Abbott as examples of people here who call themselves – fairly or otherwise – ‘conservatives’, they appear to be against the following: the ABC; any kind of sense about climate change, and on a bad  day, any form of expertise at all (a quality that is intrinsically alien to them); the republic; common sense about freedom of speech; anything remotely connected to organised labour; anything remotely opposed to organised primary production and marketing; a sensible federal anti-corruption body; any restriction on their God-given right to award public money for party political purposes; abolishing plastic bags; any failure to ban thongs at naturalization  ceremonies; any application of the Sermon on the Mount to any political issue, but above all, to applying any of  that teaching to refugees; and any celebration of the end of Empire or of  Gongs.  Such is the blindness of their tribal devotion on high that they idolise the Queen and the Pope in simultaneous and equal measure even though the Queen could be disqualified from holding the Crown if she took communion from the Church of Rome.  Now, that is what I call getting the most out of your history.

You can therefore imagine my surprise when I read:

Liberal senator Concetta Fierravanti-Wells has attacked Australia’s domestic intelligence chief for using the term ‘rightwing’ while warning of the growing threat of rightwing extremism, saying it offended conservatives……

But the comments appear to have caused offence among some sections of the Liberal party. Fierravanti-Wells confronted Burgess during a Senate estimates hearing on Monday, complaining of the use of the word ‘right’.

She said: “I am concerned about this and concerned about the use of terminology of ‘right’. ‘Right’ is associated with conservatism in this country and there are many people of conservative background who take exception with being charred [sic] with the same brush.

 ‘I think that you do understand that your comments, particularly when you refer to them solely as ‘right wing’, has the potential to offend a lot of Australians.’

Let us put to one side the rape of the English language.  This is such awful bullshit that further comment may be otiose.  Can you imagine the affront that a genuine conservative – if there is any such thing in our land – might feel if compared to this lady or to a commentator on Sky After Dark or The Australian?

And is the lady now discovering that the use of these terms reflects badly not just on the intelligence of the speaker, but on their courtesy?  People use the term ‘Left’ commonly as one of abuse.  But if they are against the Left, does not that man that they are attached to the Right?  If you revile ‘the love media’ – and some of these soi disant conservatives say that they do – where does that leave you with ‘the hate media’?  As when the First Lady Melania trump anointed Rush Limbaugh with the Medal of Freedom before an awed congress and a nauseated world?  And if a member of the National Party advocates that government undertake the marketing of primary production and a celebration of patriotism, will they bask in the union of Nationalism and Socialism?  After all, at least since the fascism of Sparta two and a half millennia ago, those regimes have been veritable models of corruption.

Well, of course any such ascription would be as mindless as it is vulgar.  But at least this lady now has some insight that when it comes to applying labels to Australian politics, there is now a two way street in vulgarity and mindlessness.  And, for that matter, sheer pettiness.


Mike Pompeo, the secretary of state, defended the attack on Friday by saying, ‘It was time to take this action so that we could disrupt this plot, deter further aggression from Qassim Suleimani and the Iranian regime, as well as to attempt to de-escalate the situation.’

The New York Times, 6 January, 2020

Interesting exercise in  de-escalation – murdering a top man.  Could Pompeo be as thick as he looks?

With standards such as these it came as a shock when Woman’s Day was rapped over the nuckles by the media watchdog last week for publishing a headline about Prince Harry and his wife, Meghan, which it said was ‘blatantly incorrect’.

Dr Megan Le Masurier, a media academic from the University of Sydney, says when she saw the reports she was stumped.

‘When I read this story I just thought you could pick any copy of New Idea or Woman’s Day any week and they are doing headlines like this,’ Le Masurier, a former ACP magazine editor herself, says.

‘This is not journalism; it was never meant to be journalism. And I’ve got a term for it: ‘fabulous reportage’.

‘The way it works is they get the pictures in and then they make shit up. It’s just fantasy and all they’re trying to do is get clicks or sales in a dying market.’

So why did the press council, which usually takes aim at articles in the Herald Sun or the Sydney Morning Herald, sit in judgment of a Woman’s Day cover story which said the royal family had confirmed Prince Harry and his wife Meghan’s marriage was over?

The short answer is someone – not the royal family – complained about the article, and the council saw merit in the complaint and investigated because the magazine’s owner, Bauer Media, is a member of the press council.

The Guardian, 26 February, 2020

The good doctor may have been stumped, but so am I.  If the Press Council were not required to rule on issues from sources that specialise in purveying tripe, or, if you prefer, made up shit, they may not have much jurisdiction left at all.



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


Ernest Hemingway, 1929

Franklin Library, 1929.  Bound in quarter leather, ridged spine, with embossed title and filigree; cloth boards patterned.  Illustrated by Bernard Fuchs.

During the Second World War, British trains carried a message (one that Wittgenstein cited): ‘Is this journey really necessary?’  Try as I might, I find it hard to put this question behind me when reading Hemingway.  He could certainly write; he was a natural; but did he have anything to say that was worth listening to?

A Farewell to Arms is set on the Italian Front during World War I.  An American volunteer ambulance officer falls in love with a British nurse.  In the meantime, we are exposed to the horror and futility of war.  But what does it matter if two outsiders have their ups and downs during war?  The novel draws on many experiences of Hemingway in the war, but we are spared that obsession with manliness that cost so many women so dearly in the course of Hemingway’s life.

The beginning of the novel is often quoted to show the spare style of the author.

In the late summer of that year we lived in a house in a village that looked across the river and the plain to the mountains.  In the bed of the river there were pebbles and boulders, dry and white in the sun, and the water was clear and swiftly moving and blue in the channels.  Troops went by the house and down the road and the dust they raised powdered the leaves of the trees.  The trunks of the trees too were dusty and the leaves fell early that year and we saw the troops marching along the road and the dust rising and leaves, stirred by the breeze, falling and the soldiers marching and afterward the road bare and white except for the leaves.

For some, this will be like a mix of Debussy and Auden.

There are passages about the war.

I did not say anything.  I was always embarrassed by the words sacred, glorious and sacrifice and the expression in vain.  We had heard them, sometimes standing in the rain almost out of earshot, so that only the shouted words came through, and had read them on the proclamations that were slapped up by billposters over other proclamations, now for a long time, and I had seen nothing sacred, and the things that were glorious had no glory, and the sacrifices were like the stockyards at Chicago if nothing was done with the meat except to bury it……Abstract words such as glory, honor, courage or hallow were obscene beside the concrete names of villages, the numbers of roads, the names of rivers, the numbers of regiments and the dates.  Gino was a patriot, so he said things that separated us, but he was also a fine boy and I understood his being a patriot.  He was born one.

Well, whatever else a patriot might be, you are not born one.  You have to accept moulding and pledge active loyalty and devotion.  The narrator has learned the horrors of war from being involved in one, even if not as a fighting man, and a citizen, and therefore potential patriot, of any of the nations involved.

But less than twenty pages later, we get this from an American volunteer dealing with Italian soldiers – quite possibly conscripts.  They appear to be deserting. The American tenente orders them to come back.  They said he had no authority because he was not their officer.

‘Halt,’ I said.  They kept on down the muddy road, the hedge on the other side.  ‘I order you to halt,’ I called.  They went a little faster.  I opened up my holster, took the pistol, aimed at the one who had talked the most, and fired.  I missed and they both started to run.  I shot three times and dropped one.  The other went through the hedge and was out of sight.  I fired at him through the hedge as he ran across the field.  The pistol clicked empty and I put in another clip.  I saw it was too far to shoot at the second sergeant.  He was far across the field, running, his head held low.  I commenced to reload an empty clip.  Bonello came up.

‘Let me finish him,’ he said. I handed him the pistol and he walked down to where the sergeant of engineers lay face down across the road.  Bonello leaned over, put the pistol against the man’s head and pulled the trigger.  The pistol did not fire.

‘You have to cock it’, I said.  He cocked it and fired twice.  He took hold of the sergeant’s legs and pulled him to the side of the road so he lay beside the hedge.  He came back and handed me the pistol.

‘The son of a bitch,’ he said.

There you have that stern spare style.  ‘I shot three times and dropped one.’  Just as if he were shooting wooden ducks on a conveyor belt at the town fair.

But what has happened here?  An American is there in Italy as a volunteer ambulance man.  He is there to save people, not to kill them.  But he is concerned that soldiers – ‘real soldiers’ – are deserting ‘his’ side.  They are in truth showing a feeling to war that the narrator has just embraced.  He assumes the authority, which is challenged on obvious grounds, to order them to stop, and then he fires at them.

Whatever you might think of this, how do you describe ‘finishing’ the wounded man – who was born to some mother and who may leave a wife and children – as anything other than vicious murder?  Where does that leave the hero and narrator – or the author, who goes on as if nothing had happened out of the ordinary?  Was Himmler or Heydrich so clinical in describing the murders that he participated in?  How many novelists do you know who would be content to leave all this up in the air?

The child of the union is stillborn.

It seems she [Catherine, the nurse and mother] had one haemorrhage after another.  They couldn’t stop it.  I went into the room and stayed with Catherine until she died.  She was unconscious all the time, and it did not take her very long to die.


‘It was the only thing to do,’ he [the doctor] said.  ‘The operation proved – ’

‘I don’t want to talk about it’, I said.

‘I would like to take you to your hotel.’

‘No thank you.’

He went down the hall.  I went to the door of the room.

‘You can’t come in now’, one of the nurses said.

‘Yes I can I said’, I said.

‘You can’t come in yet.’

‘You get out’, I said.  ‘The other one too.’

But after I had got them out and shut the door and turned off the light it wasn’t any good.  It was like saying good-by to a statue.  After a while I went out and left the hospital and walked back to the hotel in the rain.

‘Like saying good-by to a statue’?  Is that all he has to show for the loss of his lover and mother of his child?

Sparseness in writing is one thing; being antiseptic is another; but heartlessness is altogether something different.  It is not then surprising if some readers – including me – are left cold, and fearing that they have just seen a victory of technique over humanity.

Why then is this book here?  This is a lovely and readable edition (even if the illustrations are awful); I have greatly enjoyed parts of this and other books by this author; and the acknowledged contribution of Hemingway to the literature of the twentieth century is such that it would have been churlish to have omitted him from a book such as this.

Here and there – Jude the Obscure


Jude Fawley is thoroughly decent.   He also wants to become learned and respected.  But he has doom written all over his face, and much more stridently than had either Romeo or Juliet.  He is at first seduced and then conned into marriage by Arabella Donn.  Arabella is anything but decent.  She is a tart who shoots through.  Jude then falls for his cousin, Sue Bridehead.  There are at least two problems – his marriage to Arabella, and the family relationship.  And Sue.  What is she about?  That is what the book is about.  Throughout my reading of this novel, a song my parents loved, I think sung by Eddie Cantor, kept on resurfacing.

If you knew Susie, like I know Susie,

Oh, Oh, what a gal!

There’s none so classy

As this fair lassie…..

You can see Thomas Hardy as the link between George Eliot and D H Lawrence.  There are also many times when this novel reads like Days of Our Lives.  And toward the end, a mordant slice of Wozzek hits you smack in the face from nowhere.  At times I wondered if the author’s mind was too fast for his pen.  The changes of tempi for the various star-crossed lovers can be very unsettling.  There are times, too, when you think that you may be watching a puppet show predestined by the coolest Calvinist.  Is Jude too innocent and vulnerable?  Is Arabella too predictably devious?  And will the mercurial Sue ever find peace?  And then there are times when the book just sounds alarmingly modern – and worlds way from Dickens

This is the start of Jude’s problems.

That night he went out alone, and walked in the dark self-communing. He knew well, too well, in the secret centre of his brain, that Arabella was not worth a great deal as a specimen of womankind. Yet, such being the custom of the rural districts among honourable young men who had drifted so far into intimacy with a woman as he unfortunately had done, he was ready to abide by what he had said, and take the consequences. For his own soothing he kept up a factitious belief in her. His idea of her was the thing of most consequence, not Arabella herself, he sometimes said laconically.

When Hardy spoke of Sue – and he should have known her – he referred to ‘the elusiveness of her curious double nature.’  She says she loves Jude but she has a hang-up about sex – or men generally.  Consequently, the two ‘lovers’ devote time and love to each other – without getting it off.  If Jude was bloody frustrated, so was I.  Sue was in mortal danger of being branded a teaser, but the strain on our credulity, or patience, can be severe.

You may often think that this was a book just written for Bette Davis – who made all those films that left you wondering why people wanted to torture themselves over ‘love’- with oodles of exclamation marks.

‘Yes… But Sue—my wife, as you are!’ he burst out; ‘my old reproach to you was, after all, a true one. You have never loved me as I love you—never—never! Yours is not a passionate heart—your heart does not burn in a flame! You are, upon the whole, a sort of fay, or sprite—not a woman!’

Jude has a philosophical disposition; in another life he may have been right into bondage.  And not many stonemasons can reel off Aeschylus.

‘Nothing can be done,’ he replied. ‘Things are as they are, and will be brought to their destined issue.’

She paused. ‘Yes! Who said that?’ she asked heavily.

‘It comes in the chorus of the Agamemnon. It has been in my mind continually since this happened.’

‘My poor Jude—how you’ve missed everything!—you more than I, for I did get you! To think you should know that by your unassisted reading, and yet be in poverty and despair!’

After such momentary diversions her grief would return in a wave.

(The ‘this’ is the Wozzek interlude.)

In the Preface, Hardy said that a German reviewer had said that the heroine – Sue Bridehead –

…..was the first delineation in fiction of the woman who was coming into notice in her thousands every year – the woman of the feminist movement – the slight, pale ‘bachelor’ girl – the intellectualized, emancipated bundle of nerves that modern conditions were producing, mainly in cities as yet; who does not recognise the necessity for most of her sex to follow marriage as a profession, and boast themselves as superior people because they are licensed to be loved on the premises.  (Emphasis added.)

The novel came out in 1894 – to uproar – but that absolute blinder of a line was written in 1912:….‘because they are licensed to be loved on the premises.’   That was when women were trying to come out – amid the blood and guts of a fearful partition.  And that I think is why the story of Sue Bridehead is so hard and chancy.  She was some sort of assault pioneer, and that sort of soldier takes heavy casualties.  Coming out, like breaking up, is hard to do.  Had a woman written this book, it may have been called Sue the Obscure.

For all its problems – especially for a bloke in this century – this book is an engrossing read.  And I have a soft spot for it for another reason.  It was the favourite book of the late John Arlott, a cricket commentator whose voice could be recognised instantly across the oceans, and who loved to get very deep with a bottle of red in his hand.



MY TOP SHELF – 50 – Beowulf


[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]


Seamus Heaney (translator)

Folio Society, 2010; bound in quarter burgundy buckram, with gold title and etching on cloth boards; gold trimmed pages; gold cloth slip case; illustrated by Becca Thorne.

So.  The Spear-Danes in days gone by

And the kings who ruled them had courage and greatness.

There is something about this poem Beowulf, which begins with the lines just quoted, that is at once mystical and elemental, misty but somehow internal.  It is as if we see ourselves but darkly, in some other plane.  It was composed in what we call Anglo-Saxon or Old English toward the end of the first millennium.  It was written in England about events in what are now called Denmark and Sweden.

Beowulf is a champion of the Geats.  He crosses the sea to help the Danes deal with a monster called Grendel.  He prevails, and then dies.  Like The Iliad, Beowulf ends with the funeral pyre of a hero.  If you like that kind of thing, you might see Beowulf as the missing link between The Iliad and Paradise Lost.

Great were the dangers to be overcome by Beowulf.

All were endangered; young and old

Were hunted down by that dark death-shadow

Who lurked and swooped in the long nights

On the misty moors; nobody knows

Where these reavers from hell roam on their errands.

So Grendel waged his lonely war,

Inflicting constant cruelties on the people,

Atrocious hurt.  He took over Heorot,

Haunted the glittering hall after dark

But the throne itself, the treasure seat,

He was kept from approaching; he was the Lord’s outcast.

These were hard times, heart-breaking….

Sometimes at pagan shrines they vowed

Offerings to idols, swore oaths

That the killer of souls may come to their aid

And save the people.  That was their way,

Their heathenish hope; deep in their hearts

They remembered hell.  (159-180)

It is hard to imagine someone better equipped to translate this great poem than the late Seamus Heaney, the distinguished Irish poet and scholar.

I came to translating Beowulf with a prejudice in favour of forthright delivery.  I remember the voice of the poem as being attractively direct, even though the diction was ornate and the narrative method at times oblique.  What I had always loved was a kind of foursquareness about the utterance, a feeling of living inside a constantly indicative mood, in the presence of an understanding that assumes you share an awareness of the perilous nature of life and are yet capable of seeing it steadily, and, when necessary, sternly.  There is an undeluded quality about the Beowulf poet’s sense of the world which gives his lines immense emotional credibility and allows him to make general observations about life which are far too grounded in experience and reticence to be called ‘moralising.’  These so-called ‘gnomic’ parts of the poem have the cadence and force of earned wisdom, and their combination of cogency and verity was again something that I could remember about the speech I heard as a youngster in the Scullion kitchen….The style of the poem is hospitable to the kind of formulaic phrases which are the stock-in-trade of oral bards, and yet it is marked too by the self-consciousness of an artist convinced that ‘we must labour to be beautiful.’

Here is some more of the remarkable poetry.

That great heart rested.  The hall towered,

Until the black raven with raucous glee

Announced heaven’s joy, and a hurry of brightness

Overran the shadows.  Warriors rose quickly

Impatient to be off; their own country

Was beckoning the nobles; and the bold voyager

Longed to be aboard his distant boat.  (1799-1807)

This is how Heaney saw the epic.

Grendel comes alive in the reader’s imagination as a kind of dog-breath in the dark, a fear of collision with some hard-boned and immensely strong android frame, a mixture of Caliban and hoplite.  And while his mother, too, has a definite brute-bearing about her, a creature of slouch and lunge on land if seal-swift in the water, she nevertheless retains a certain non-strangeness.  As antagonists of a hero being tested, Grendel and his mother possess an appropriate head-on strength.

The myth of the testing of the hero by a frightening instrument of evil is probably our favourite – right up to the movie Jaws.  But this epic is of interest to us also because it tells of the birth of our laws, in the replacement of the vendetta or blood-feud.

There was a feud one time, begun by your father.

With his own hands he had killed Heathaloaf

Who was a Wulfing; so war was looming

And his people in fear of it forced him to leave….

Finally I healed the feud by paying:

I shipped a treasure-trove to the Wulfings

And Ecgtheow acknowledged me with oaths of allegiance.  (459-473)

We might call this settling out of court.  It is not surprising that the scholar who trumpeted the claim of Beowulf to be taken as literature was named J R R Tolkien.

We learn that the object of the hero – as for Achilles – was to ‘gain enduring glory in a combat’ (1535/6).  It is right, then, that the poem ends with these lines.

They extolled his heroic nature and exploits

And gave thanks for his greatness; which was the proper thing

For a man should praise a prince whom he holds dear

And cherish his memory when that moment comes

When he has to be convoyed from his bodily home.

So the Geat people, his hearth companions,

Sorrowed for the lord who had been laid low.

They said that of all the kings upon the earth

He was the man most gracious and fair-minded,

Kindest to his people and keenest to win fame.  (3173-3182)

You do not need to crave immortality to see how the poet there speaks to all of us.  Heaney speaks of his ‘fondness for the melancholy and fortitude that characterised the poetry.’   He said that this poem has a ‘mythic potency’ that ‘arrives from somewhere beyond the known bourne of our experience, and having fulfilled its purpose…it passes once more into the beyond.’  Exactly – and is it not for this that we go to great writers?



Passing Bull 228 –Bull about paying the price


We don’t like paying tax but we don’t like bad roads or long waits to get into hospital or insufficient protection from the police.  It is the job of government to balance those impulses.  Most of the time, we get by, although some hiccups annoy us.  But for many reasons – including massive bribery – we can’t even get started sensibly on climate change.  Yes, people will lose money or jobs on restraining fossil fuel sources, but all the evidence is that the probabilities are that we will all be a lot worse off- especially those coming after us – unless we bite the bullet.  Most of Europe – including England – know this and are reacting.  But not us or the U S.  We cannot afford to pay the price. Indeed we elected a government that had expressly promised not to pay the price.  But balancing these contrary impulses is the first function of government.  No wonder our children and grand-children are in despair.

And the failure looks to be a failure of democracy.  MP’s from coal areas have far too much influence.  Some say the same about Christianity and abortion and assisted dying.

These failings came home to me reading about the abolition of the slave trade in England.  There was a massive cost to the English economy, and that was the basis of the opposition.  The parallel seems apposite.  But the English, driven by Evangelicals and Quakers, went ahead and prevailed.  Why?   Because that was the right thing to do.

We do look to be going backwards, and the backlash from those coming after us will be ferocious.


The low level of harm and the apology made by the Minister… to the Mayor…., along with the significant level of resources required to investigate were also factored in the decision [of the AFP not to investigate] not to pursue this matter.

AFR, 7 February 2020.

You know you are going bad when the rozzers say that there is only ‘a low level of harm’ when one politician alters a document to smear another politician.

Here and there – What’s all this fuss about foreigners?



When kids get control of a cubby house, the first thing that they do is to work out how to stop other kids getting in to share the spoils.  We tend to be hostile to outsiders, or foreigners – people who are sometimes called ‘aliens’. We tend to blend ‘alien’ with ‘enemy’, although our usage acknowledges the difference.  We are all apparently built that way. The process was scarily described by William Golding in Lord of the Flies.  You can see it in families, towns, cities – and in law firms.  Whether you see this impulse as one of inclusion or exclusion may depend on how you see the world at large, but being an outsider, like being a stranger, can hurt. (It was Camus who wrote a book about that.)

Ancient Athens and Rome were very fussy about who qualified for their membership, but as time went on, the Romans got more generous – you might say broad minded – about those that they would or would not let into the club, and some historians say that that this was why the empire of Rome lasted much longer and covered a much larger area than that of Athens.

When the English started their jail in this country, they brought their laws with them.  Those laws included a lot of law derived from judicial precedent as the judges over many centuries had recognised the customs of the English people until they hardened into law.  That body of law is called the common law, and it was that law that said that the white settlers in the land they would call Australia brought their English laws with them.  For a variety of reasons, the prior inhabitants were not consulted about this process.

Our legal ancestors are therefore the English.  And their ancestors were in turn the Anglo-Saxons, and before that the people of the German forests whom the Romans branded as ‘barbarians’.  (The Athenians had been even more exclusive or stand-offish.)    It is not therefore silly to say that the origins of our laws are German in nature rather than Roman.  Roman law was thoroughly received in Germany, so thoroughly that a distinguished American legal scholar, James Barr Ames, would much later be able to say, with a perfectly straight face ‘The English law is more German than the law of Germany itself.’    Roscoe Pound said the same thing, and that the doctrine of the supremacy of law goes back to a fundamental notion of Germanic law.

How then did our legal ancestors deal with foreigners?  (I must confess to a preference for that word over ‘aliens,’ as the latter for me summons up images of flying saucers, Martians, and Alec Guinness waving a funny kind of a sword.)  If you were born in England, you were not a foreigner, or alien.  But if you were born outside England, you were an alien, and nothing short of a statute could give an alien all the rights of a natural born subject.

The critical issue for the English in the middle ages was loyalty or allegiance.  If a foreigner sued in England, he could be met by the plea: ‘You are an alien and your king is at war with our king.’  You will see here the premium put on personal allegiance – a vassal pledged loyalty to his liege lord.  The English had it on good authority (Matthew 6:24) that no man could serve two masters.  But once you got past that simple split, things got murky and downright distasteful.

Maitland teaches us that the starting point of the laws about aliens finds itself with the loss of Normandy – about 1259.  He also says this:

Of course very ancient law may regard every stranger as an enemy; but it will lay far more stress upon purity of blood than on place of birth; it will be tribal rather than territorial law…..But feudalism is opposed to tribalism and even to nationalism; one becomes a lord’s subject by doing homage to him, and this done, the nationality of one’s ancestors and the place of one’s birth are insignificant.  The law of feudal contract attempts for a while to swallow up all other law.  In England however a yet mightier force than feudalism came into play.  A foreigner at the head of an army recruited from many lands conquered England, became king of the English, endowed his followers with English lands.  For a long time after this, there could be little law against aliens, there could hardly be such a thing as English nationality.

(This is from Pollock and Maitland, The History of English Law before the time of Edward I, 1895. Pollock wrote only the first chapter. Included in the ‘Sorts and Conditions of Men’ are the ‘Unfree, Aliens, Jews, Outlaws, Convicted Felons, Excommunicates, Lepers, Lunatics and Idiots – and Women’.   Bracton said that excommunicates were ‘spiritual lepers’.  The concept of bankruptcy was still in the offing.  What these people all have in common is some disability, some lack of rights – some loss of status not to be entered into lightly or ill advisedly.)

There are three things to note from this excursus.

First, the English nation now is the product of a history that features a number of invasions or, at least, movements of peoples.   So is Australia.  Since some white people here get skittish about the word ‘invasion’ in this context, we might use the term ‘encroachment’ or ‘settlement’, begging the question of assent of those imposed upon – although that was not an issue at the arrival of the first Aborigines on this land.  (I have a recollection of Sir William Blackstone referring to the Norman Conquest as a ‘rude shock’ which, as understatements go, is pleasingly English.)  Indeed, unless you are standing smack dab in the middle of the Garden of Eden, or the Rift Valley, we are all descended from migrants.  And we are still building this country by welcoming migrants (with one appallingly mean and hypocritical exception).

As Maitland showed us, issues of identity may be very fluid when a nation is being formed by migration and settlement – or invasion.  The meanness of the kids in the cubby house may then become very unsettling.  And these issues of identity are made more fluid for us now by the significant numbers of people who now hold two passports or who claim to be dual nationals – something quite beyond the comprehension of our ancestors.

In short, and unsurprisingly, the denotation of a term like ‘alien’ varies in time and space.

Secondly, when we seek to find the underlying rationale of our laws about our treatment of foreigners or aliens, we may find ourselves on ground that is very wobbly – both intellectually and morally.  Maitland was writing two generations before Mein Kampf came out, but the terms tribalism, nationalism and purity of blood are now likely to die on our lips.  And that’s before you get to the four lettered word beginning with ‘r’.   So, entering into this territory is worse than watching little boys playing with matches – it’s like watching Superman fondling kryptonite.  (And I resist the temptation to refer to a minister fondling a piece of coal.)

Thirdly, and as we have seen, classifying a person as an alien diminishes that person’s legal standing and legal rights.  For example, I cannot be deported; if I were an alien, I could be, and the whole lynch-pin of my rights to the due process of the law would have taken a mighty hit.  No Australian wants to become subject to deportation by some stroke of a pen or some other fluke or error – or some law that is stated in doubtful terms or is of doubtful validity.  And this is not least the case when both major parties resemble kids in a cubby house showing extreme vigilance and a malignant jealousy about just who might come into and remain in the cubby house.  Otherwise decent people have been heard to descant loudly on their powers about who we will let in to our cubby house.

The other day, the High Court had to deal with issues about who may or may not be an ‘alien’ within the meaning of that term in our Constitution.  Before looking at their Honours’ decision, may I mention one other fact? What is clear, what is transcendentally clear, is that when on that fateful day the people of our first nation saw the sails of the first fleet round the heads of Sydney Cove, and beheld some of the foetid and depraved human cargo on board, they were looking at something more alien than anyone else on this planet had ever been exposed to.  And we may well imagine, as did Keats when writing of the men of Cortez staring at the Pacific, that they ‘Look’d at each other with a wild surmise’ – but with anything but silence.  These white people were at least as alien to these black people as flying saucers would be to us.  At Botany Bay, Lieutenant King ordered a marine to drop his pants to satisfy the Aborigines about what we may call the provenance of the white people, and he followed that by placing a white hanky on a native woman where Eve had put the fig leaf.   One informative account of the upcoming tragedy says this:

When the white people arrived to start their colony in Australia 1788, the nation that had just perfected the steam engine that would revolutionise the whole world, and confirm Britain’s imperial dominance, came into contact with people who did not know how to boil water.  The white people may as well have come from Mars.    

Well, we the white people are no longer the aliens.  Indeed, our arrogance was such that we probably never saw ourselves as aliens.  We now at least see ourselves as the native Australians, or, in the ghastly demotic of the outer, as dinkum Aussies.  And are we now to say that it is not we but they – the people of our first nations – who are the aliens in this land?  These are people whose span of time here makes ours look like a grain of sand at the base of Uluru, but we have never quite managed to suppress our feeling of superiority over them.  Can we so glibly strip them of their rights and standing here – and then just eject them from their land, a land for which they feel a spiritual bond that passes our understanding?

You may by now have divined the question that I will put and my answer to it.  Our relevant statutory law is the standard cross between a quagmire and a minefield, and I will spare you any reference to it.  As I follow what the High Court said in Love v Commonwealth, it held, by a majority, that a power of the Commonwealth to make a law about aliens does not extend to making a law about people who are obviously not aliens.  Aborigines are obviously not aliens.  Therefore that power does not extend to them.  Here is a more formal version of what I understand to be the relevant syllogism.

  1. The power of the Commonwealth under the Constitution to make laws dealing with ‘aliens’ does not extend to a power to make laws affecting a person who could not possibly answer the description of ‘alien’ in the ordinary understanding of that word.
  2. According to the Oxford English Dictionary, an ‘alien’ is ‘Belonging to another person place or family; a foreign nation or allegiance’ or ‘Foreign in nature, character or origin’ – in short, a foreigner. (The old judicial preference was for ‘belonging to another person or place.’)
  3. An Aborigine, as found by applying the criteria in the two Mabo cases, has a connection to the land and the waters of Australia, and a history and a status under our law (at least since the Mabo cases), that entail that that person is incapable of answering the description of an ‘alien’ in the ordinary sense of that word.  In short, an Aborigine is not a foreigner.

4 It follows that insofar as the Commonwealth statute has sought to characterise Aborigines as ‘aliens’, it is beyond power and invalid.

There is no argument about pars 1 and 2 and par 4 in my view follows ineluctably if par. 3 is established.    That is, the only room for argument that I see is in par. 3.  (There may be some ellipsis about the process of reading down, but I leave that to the purists.)  The point is clearly arguable on both sides – as shown by the judgments of seven distinguished lawyers – but neither result could in my view be stigmatized as juristically untenable.  What side you determine to come down on may depend not so much on your technique in working the law, as on your view of history.

As I see it, the crux of the case may be found in these passages of the judgment of Justice Bell.

The plaintiffs’ and Victoria’s argument depends upon the incongruity of the recognition by the common law of Australia of the unique connection between Aboriginal Australians and their traditional lands, with finding that an Aboriginal Australian can be described as an alien within the ordinary meaning of that word…..

The Commonwealth’s concern, that to hold that its legislative power does not extend to treating an Aboriginal Australian as an alien is to identify a race-based limitation on power, is overstated. It is not offensive, in the context of contemporary international understanding, to recognise the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands, and in light of that recognition to hold that the exercise of the sovereign power of this nation does not extend to the exclusion of the indigenous inhabitants from the Australian community.

If I may be permitted to say so, I regret that the Commonwealth chose to refer to a ‘race-based limitation on power’.  That kind of label is seldom helpful and always dangerous.  It is the kind of branding that you might expect from a politician or a member of the press of a certain stripe.  In the context of this case, the suggestion looks to me to be little more than a rhetorical pout at what the more intellectually challenged parts of the press call ‘political correctness’,  or to evince a fetish about that slippery term ‘equality’.  And it might have the unfortunate result of being seen as what is elsewhere called throwing red meat to the base.  (As was predictable, the line has already been claimed by the usual suspects in think tanks and the press in a display of ignorance that is only matched by arrogance.  We might divert ourselves by asking why these people, who are so sadly inane, do not proffer their opinion on how we might perform brain surgery.)

To suggest that an Australian Aborigine is not a foreigner in Australia hardly seems novel, much less controversial.  It is hard, then, to see how the minority Justices could deal comfortably with the ‘incongruity’ identified by Justice Bell. (Another Justice apparently thought that the minority view was ‘bizarre’.)  If as a matter of our law an Aborigine does belong to this land now called Australia, as his ancestors have for more than 40,000 years, on what basis would the court that gave the nation the two decisions in Mabo lend its imprimatur to the suggestion that notwithstanding that status, an Aborigine may be deprived of his rights allowed to Australians by a finding that this can be done under an act of parliament that validly reduces him to the status of an alien?

Now, I may be quite wrong in all of what I say – if the terms ‘right’ and ‘wrong’ have any real use at this level.  And if it is said that I am being emotive, I happily plead guilty.  But I clocked off some time ago after thirty years of decision-making, and at a far, far lower altitude, indeed right at the bottom of the hierarchy. And as some of the judgments show, there is a fair bit to be emotive about in this case.  And of course, I have the luxury of being allowed to be candid about matters of policy.

And what I might also say, with respect, is that when it comes to subtlety, nuance, cleverness, or ingenuity – or any other epithet that usually signals to counsel that they are a goner – honours are in my view about equal between members of the majority and minority.  Most parts of these judgments will be way above the pay level of the average lawyer, and completely indecipherable to those parts of the press I referred to before.  I for my part failed to find the spot in the judgments, or the 748 footnotes, where the Justices engaged in their version of a juristic scrum on what I see as the issue in the case – that is, whether an Aborigine is a person who is capable of being described as an alien under our Constitution.

Indeed, as I struggled on, wondering if all this was harder than Kant’s Critique of Pure Reason, including his justly celebrated refutation of the ontological argument for the existence of God, I could not help falling back on that wonderful anecdote of Ludwig Wittgenstein: ‘During the last war, the trains carried a sign: ‘Is this journey really necessary?’’

(I may add that in addition to references to ‘spiritual’,  you will find references to the ‘metaphysical’ in the judgments.  May I say that this area is tricky enough without seeking to count how many angels can dance on the point of a needle?  Given the context, I wonder if I should reconsider this passage in a book called The English Difference?: ‘In the upshot, French and German thinkers concerned themselves in the highest level of rational speculation.  It was called metaphysics.  The English think metaphysics is worthless nonsense’.  For the record, The Oxford Dictionary of Philosophy begins its discussion of the term by quoting Bradley to the effect that ‘metaphysics is the finding of bad reasons for what we believe on instinct’.  It later cites the famous denunciation by David Hume that any text on metaphysics should be ‘committed to the flames, for it can contain nothing but sophistry and illusion.’  That is the attitude that caused me to make the remark above.)

In my view, we lawyers in this country have done enough damage to our aborigines up to now.  The doctrine of terra nullius was more than a gross insult to them – it was an affront to humanity that came from the darkest side of our imperialism.  And, yes, we did adopt imperialism from the mother country, as we tamely shared the white man’s burden and docilely trundled off to help the Empress of India put down the Boers in South Africa.

The aboriginal community would surely have seen a contrary ruling in this case – by, say,  five to two – as just another kick in the head in the rough lottery of Australian colonial justice in what some may have seen as a triumph of legal formalism over ordinary human decency.  If such a prospect is said to be extraneous to the proper exercise of the judicial function at this level, I would be both surprised and saddened.  And if someone told me that these issues were not even canvassed in the corridors of power, I would be incredulous.  My understanding of the law is informed by that expressed in these very familiar observations of Oliver Wendell Holmes.

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.  The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.  In order to know what it is, we must know what it has been, and what it tends to become….And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.

We do not appoint our judges to stand guard over a mausoleum.

May I, then, conclude on a note of undiluted heresy?  Yes, I know that judges have to apply the law; but they also have to sleep at night.  One of the great jurists anywhere in the world during my lifetime gave voice to a sentiment that you will not often see expressed elsewhere, if at all.

Trial by jury is a unique institution, devised deliberately or accidentally – that is, its origin is accidental and its retention is deliberate – to enable justice to go beyond that point [the furthest point to which the law can be stretched ]…The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.

Now, of course I would never suggest that any of their Honours in their eyrie fastness at Canberra would ever behave like mere jurors – but what I would say is that any judge who repudiates what Lord Devlin says as anathema would not be the kind of dude that you want to have at your back during tense moments in an Indian tiger hunt.  Nor would you want to leave your fingers in the opening of the trap-door to the cubby house.

Top Shelf – 49 – Gibbon


Edward Gibbon (1814)

Folio Society, 1991; bound in green cloth, gold embossed, in stone slip case.

I had now attained the solid comforts of life, a convenient well-furnished house, a domestic table, half a dozen chosen servants, my own carriage, and all those decent luxuries whose value is more sensibly felt the longer they are enjoyed…To a lover of books, the shops and sales in London present irresistible temptations…..

Before looking at what Gibbon said, you need either to recall or know that Gibbon was one of the most graceful writers of prose that England has produced.  He was also one of the most devastating hit-men that the world has seen.  Apart from the grace of his style, and the rhythm of his writing, he had a wickedly nice, dry irony.  Here is one short example:  ‘See the tragic and scandalous fate of an Archdeacon of royal birth, who was slain by the Turks as he reposed in an orchard, playing at dice with a Syrian concubine’.  Count the criminal libels or mere denigrations in that off-the-cuff remark about one dead man of God.

Here is my all-time favourite put-down by this author.  It is of the Emperor Gallienus.

In every art that he attempted, his lively genius enabled him to succeed; and as his genius was destitute of judgment, he attempted every art except the important ones of war and government.  He was a master of several curious but useless sciences, a ready orator and elegant poet, a skilful gardener, an excellent cook, and most contemptible prince.  When the great emergencies of state required his presence and attention, he was engaged in conversation with the philosopher Plotinus, wasting his time in trifling or licentious pleasures, preparing his initiation to the Grecian mysteries or soliciting a place in the Areopagus of Athens.  His profuse magnificence insulted the general poverty; the solemn ridicule of his triumphs impressed a deeper sense of the public disgrace.  The repeated intelligence of invasions, defeats and rebellions, he received with a careless smile; and singling out, with affected contempt, some particular production of the lost province, he carelessly asked whether Rome must be ruined unless it was supplied with linen from Egypt, and Arras cloth from Gaul.

There you have the style of Edward Gibbon, and the story of the decline and fall of Rome.

Gibbon came from a family of squires in the Weald of Kent.  He was not well enough to stay at Winchester.  His mother died from breeding six other children who also died.  His father retired from Parliament to return to live among the landed gentry.  He was a man of whim.  One such whim was to enrol Gibbon as a Gentleman Commoner at Magdalen College, Oxford.  In this autobiography Gibbon rained some venom on his old university.

The Fellows or monks of my time were decent easy men who supinely enjoyed the gifts of the founder.  Their days were filled by a series of uniform employments:  the chapel and the hall, the coffee house and the common room, till they retired weary and well satisfied, to a long slumber.  From the toil of reading or thinking or writing they had absolved their conscience, and the first shoots of learning and ingenuity withered on the ground without yielding any fruit to the owners or the public…..Their conversations stagnated in a round of college business, personal stories and private scandal; their dull and deep potations excused the brisk intemperance of youth; and their constitutional toasts were not expressive of the most lively loyalty for the House of Hanover. 

Gibbon was too young to enjoy ‘the taverns and bagnios of Convent Garden’.  Instead, he fell under the spell of the Church of Rome.  This was too much for his father, who banished him to Lausanne, where he stayed for five years to have that nonsense knocked out of him by Monsieur Pavilliard, a learned Calvinist minister.

Gibbon dropped a girlfriend when Dad took exception.  ‘I sighed as a lover.  I obeyed as a son.’  Both limbs of the equation were probably untrue, and we might hope that Gibbon later regretted that tart dismissal of his one and only love.  (Mademoiselle Churchod went on to other things.  She married Monsieur Necker, who became the Minister of Finance in France, and played a large part in the French Revolution, and she gave him a daughter, Mme de Staël.)

Gibbon served for a time in the militia, and remained in it for years, and we might imagine Captain Gibbon, the small man with the rather large and ridiculous head, jogging at the head of his bucolic Grenadiers.  He sought to get away from it all with nights of ‘bumperizing that left him in the morning where he could ‘do nothing … but spew’.

When looking back on his life, Gibbon had no doubt that it was formed by the nearly five years he had spent at Lausanne.  ‘Such as I am in genius or learning or in manners, I owe my creation to Lausanne ….  I had ceased to be an Englishman’.  But he had previously recorded that his taste for the French theatre had only ‘perhaps abated my idolatry for the gigantic genius of Shakespeare, which is inculcated from our infancy as the first duty of an Englishman’.

Gibbon embarked on the Grand Tour.  His lack of worldliness – he had been too young to visit the whores when he was at Oxford – may have left him even more at sea with the French ladies than David Hume had been.  He saw Voltaire perform in a play.  Then he came at last to Rome while he was still casting about for a subject for a history, for it was to writing a history that he would devote his life.  His mixed upbringing enabled him to give a more balanced view of the religious divide than others – ‘the Catholic superstition, which is always the enemy of reason, is often the parent of taste’.  The lines with which Gibbon celebrated his visit to Rome are still celebrated by his admirers.

My temper is not very susceptible of enthusiasm, and the enthusiasm which I do not feel I have ever scorned to affect.  But at the distance of twenty-five years, I can neither forget nor express the strong emotions which agitated my mind as I first approached and entered the eternal City.  After a sleepless night I trod with a lofty step the ruins of the Forum; each memorable spot where Romulus stood, or Tully spoke, or Caesar fell, was at once present in my eye;…several days of intoxication were lost or enjoyed before I could descend to a cool and minute investigation…In my Journal the place and moment of conception are recorded;  the fifteenth of October 1764, in the close of evening, as I sat musing in the Church of the Zoccalanti of Franciscan friars, while they were singing Vespers in the Temple of Jupiter on the ruins of the Capitol.  But my original plan was circumscribed to the decay of the City, rather than the Empire; and, though my reading and reflections began to point towards the object, some years elapsed and several avocations intervened before I was seriously engaged in the execution of that laborious work.

The six volume work of The Decline and Fall of the Roman Empire was indeed to be his life’s work.  Gibbon greatly admired the History of Hume.  Gibbon’s first work had been written in French, but Hume persuaded him to write his History in English.  Hume thought, being an astute Scot, that the flowering of America would lead to English having the greater coverage.  Hume, and most of the rest of Britain, were generous in their praise of the History as it came out, volume by volume.  The Church was not.

Gibbon held court and would allow little chance of reply.  But this Georgian England had a vivacious conversational character.  He once unloaded one of his best foreign anecdotes and was waiting for his tribute of applause.  ‘When a deep-toned but clear voice was heard from the bottom of the table, very calmly and civilly impugning the correctness of the narrative, and the propriety of the doctrines of which it had been made the vehicle.’  This was no less than William Pitt the Younger (the youngest Prime Minister of England at the age of 24).  Gibbon was obliged to give ground and then excused himself and left the room.  He was apprehended looking for his hat, and when asked to return he said that the gentleman who had interrupted him was ‘extremely ingenious and agreeable, but I must acknowledge that his style of conversation is not exactly what I am accustomed to, so you must positively excuse me’.  Jane Austen could have written that.

He died on 16 January 1794 of an appalling illness that had long troubled him.  He was at peace and without fear, but it is a very fair guess that no other writer of history has been so read, so admired, and so loved.  It is certainly the case that this rather absurd Englishman still talks to us and enlightens us after we have gone more than two hundred years down the road.

The great historian looked for patterns in the past.  He was not to devote his life’s work to describing outlines of spent tea leaves.  ‘History to a philosopher’ he said, ‘is what gambling was to the Marquis de Dangeau:  he saw a system, relations, consequences, where others saw only the caprice of fortune’.  Gibbon was describing the decline and fall of an empire.  He saw that decline occurred with the rise of religion; he asked why ancient civilisation failed and if it could happen again.

Perhaps it was because Georgian English gentlemen suspected that their England suffered from similar lesions on its society that they were content to allow Athens and Rome to be described as civilised.  But it is a little curious that educated Europeans should have sought to find how this mighty and civilised empire was brought low – was felled in truth – by a scrawny ragamuffin hasid whose teaching of the Sermon on the Mount underwrote all of what the English would come to call civilised about their empire.  And how could Rome have sought to hold an empire under arms if it subscribed to the view that it is the meek who inherit the earth?

It is not surprising that Gibbon followed what might be called the party line in describing Rome as civilised, but we might notice that he began his first published work, the Essai, with the following words of eternal verity: L’histoire des empires est celle de la misere des hommes. ‘The history of empires is the history of the misery of mankind.’

Sadly, space allows only a couple of quotations on the Crusades:

… the name and nature of a ‘holy war’ demands a more rigorous scrutiny;  nor can we hastily believe that the servants of the Prince of Peace would ensheath the sword of destruction unless the motive were pure, the quarrel legitimate, and the necessity inevitable. 

Gibbon attacks indulgences with savagery.  He then goes on to describe the beginning of the first Crusade.

Some counts and gentlemen, at the head of three thousand horse, attended the motions of the multitude to partake in the spoil, but their genuine leaders (may we credit such folly?) were a goose and a goat, who were carried in the front, and to whom these worthy Christians ascribed an infusion of the divine spirit.  Of these, and of other bands of enthusiasts, the first and most easy warfare was against the Jews, the murderers of the Son of God.  In the trading cities of the Moselle and the Rhine, their colonies were numerous and rich, and they enjoyed under the protection of the Emperor and the Bishops the free exercise of their religion.  At Verdun, Trèves, Metz, Spires, Worms many thousands of that unhappy people were pillaged and massacred, nor had they felt a more bloody stroke since the persecution of Hadrian ….  The more obstinate Jews exposed their fanaticism to the fanaticism of the Christians, barricadoed their houses, and precipitating themselves, their families and their wealth into the rivers of the flames, disappointed the malice, or at least the avarice, of their implacable foes.

Gibbon next savages the institution of knighthood and then goes on to describe the taking of the Holy City, Jerusalem.

A bloody sacrifice was offered by his mistaken votaries [Tancred’s] to the God of the Christians:  resistance might provoke, but neither age nor sex could mollify their implacable rage: they indulged themselves three days in a promiscuous massacre; and the infection of the dead bodies produced an epidemical disease.  After seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue, they could still reserve a multitude of captives whom interest or lassitude persuaded them to spare.  ….  The Holy Sepulchre was now free; and the bloody victors prepared to accomplish their vow.  Bare-headed and bare foot, with contrite hearts and in a humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Saviour of the world;  and bedewed with tears of joy and penitence the monument of their redemption.  This union of the fiercest and most tender passions has been variously considered by two philosophers: by the one, as easy and natural; by the other, as absurd and critical.

The first philosopher referred to is David Hume; the second was Voltaire.

Here is Gibbon on Israelite conquests.

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and as it were the national God of Israel; and with the most jealous care separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

Here is Gibbon on the absolutism of the followers of Jesus of Nazareth.

But the primitive church, whose faith was of a much firmer consistence, delivered over, without hesitation, to eternal torture, the far greater part of the human species. A charitable hope might perhaps be indulged in favour of Socrates, or some other sages of antiquity, who had consulted the light of reason before that of the Gospel had arisen.  But it was unanimously affirmed that those who, since the birth or the death of Christ, had obstinately persisted in the worship of the daemons, neither deserved nor could expect a pardon from the irritated justice of the Deity.  These rigid sentiments, which had been unknown to the ancient world, appear to have infused a spirit of bitterness into a system of love and harmony.

Finally, this is Gibbon on celibacy.

Since desire was imputed as a crime, and marriage was tolerated as a defect, it was consistent with the same principles to consider a state of celibacy as the nearest approach to Divine perfection. It was with the utmost difficulty that ancient Rome could support the institution of six vestals [virgins] but the primitive church was filled with a great number of persons of either sex who had devoted themselves to the profession of perpetual chastity.

In the footnote, Gibbon records of the six Roman maids: ‘nor could the dread of the most horrible death always restrain their incontinence.’

How did our brothers and sisters of Asia fare? Gibbon said that for all his powers of eloquence, Mohammed was an illiterate barbarian, although he says that the ‘base and plebeian origin of Mohammed is an unskilful calumny of the Christians.’ (How did they class the origin of Jesus of Nazareth?)  Gibbon does of course praise Mohammed for dispensing with priests, sacrifices, and monks, but he rejects the doctrine of damnation by which ‘the greater part of mankind has been condemned for their opinions.’ Gibbon was, like most people, fascinated by sex.  He had this comment on Paradise.

Seventy-two Houris, or black-eyed girls, of resplendent beauty, blooming youth, virgin purity, and exquisite sensibility, will be created for the use of the meanest believer; a moment of pleasure will be prolonged to a thousand years, and his faculties will be increased a hundredfold to render him worthy of the felicity ….This image of carnal paradise has provoked the indignation, perhaps the envy, of the monks…

But this Paradise was assured to those who died for the faith since the Prophet had said ‘The sword is the key of heaven and of hell: a drop of blood shed in the cause of God, a night spent in arms, is of more avail than two months of fasting or prayer…’ .

It is very hard now to imagine history in any language being written with such pitch and such intensity.  But he may have unsheathed a sword the consequences of which he never intended.

In Gibbon’s view, Greek philosophy had infected the teaching of those following Jesus of Nazareth.  It was notorious that many of the divisions of the early church were fed on thinking that came to its members from the Platonist school.  Gibbon thought that Platonism did not mix well with Christianity.

But theology, which it was incumbent to believe, which it was impious to doubt, and which it might be dangerous, even fatal, to mistake, became the familiar topic of private mediation and popular discourse.  The cold indifference of philosophy was inflamed by the fervent spirit of devotion.

It may have been like global warming disputants trying their hand with the theory of relativity or string theory.

The familiar study of the Platonic system, a vain and argumentative disposition, a copious and flexible idiom, supplied the clergy and the people of the east with an inexhaustible flow of words and distinctions; and, in the midst of their fierce contentions, they easily forgot the doubt which is recommended by philosophy, and the submission which is enjoined by religion.

It has to be said that these observations ring many bells, and not just in the context of the Christian church.

Baroque sentences flowed out Gibbon just like baroque music flowed out of Mozart.  His canvass blazes like that of El Greco.  He had a sense of grace and rhythm that would have appealed to the instincts of Errol Garner and which had a lasting effect on one of his greatest followers.

For my own part, looking out upon the future, I do not view the process with any misgivings.  I could not stop it if I wished; no one can stop it.  Like the Mississippi, it just keeps rolling along.  Let it roll.  Let it roll on full flood, inexorable, irresistible, benignant, to broader lands and better days.

May I conclude on a whim of my own fancy?  For me, Gibbon was and is the greatest writer in prose of them all.