The story of English law

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

2

The Norman invasion and settlement

England had been divided both tribally and politically – a drab, uneasy, damp collage.  The Normans added to the ethnic mix, but they brought, by force of arms, unity under one English crown.  That crown would be buffeted by rivalries under great magnates, ending with the agony of the Wars of the Roses, and it would be in suspension during the epic duels over sovereignty in the reigns of the Stuarts, but back in the eleventh century, it was like taking a small amateur cricket club and turning it into a fully professional national outfit with all the bells and whistles.  And hold on to the analogy of the cricket club – because in so many ways such a club conforms to the spirit of the governance of England – except that not so many national dreams would be turned into ashes.

Compare, then, this vibrant club to Europe.  We are talking about events taking place more than a millennium ago – in a nation created out of invasions.  France would not have a law common to all France until Napoleon, and it was only well after that that the nations of Italy and Germany came into being.  So, here is another ground for seeing England as different to and far more precocious than the emerging Europe.

Anglo-Saxon governance was good at the local level.  The English would aways prove very adept at getting value from their better people.  But justice back then was not so good at that level – although they certainly appear to have been able to dish out a rough kind of justice uninhibited by the kind of formalism that would beset English law.

And it was now time for the crown to resume its role as the fountain of justice to be administered by what in the Strand are still called the Royal Courts of Justice. 

The process began with a writ.  We all know what that is.  It’s the kind of ‘bluey’ you disregard at your peril (unless you are asset free and bullet proof).  Still today in Melbourne you can be served with a command issued in the name of the Queen that you appear in her court to answer the complaint of the person aggrieved.  In many contexts, it is the continuation of negotiations by other means (with apologies to Clausewitz).  This is a facility of government used to preserve the peace by resolving disputes.  Nations that do not get that right might forfeit the right to the label of ‘civilised.’

Henry II comes down to us as responsible for the murder of Beckett, but he and Edward I were founding fathers of the English legal structures.  They developed the processes by which a law common to all England would come to be administered through their courts.

But the phrase ‘common law’ has a much wider reach.  We see it when judges decide cases by applying the doctrine of precedent to their previous decisions.  A course of decisions then is found to contain a statement of the law – a principle derived from a ‘line of authority’. 

Someone driving a stagecoach may be liable at common law for damage caused by his negligent driving.  Would that precedent cover the driver of a car, or a ten-ton truck?  A farrier may be liable for a bad shoe on my horse.  What if I have not promised to pay him – expressly or impliedly (what our law calls a contract not supported by consideration)?  Is a map-maker who gets one line wrong liable for the loss of a ship the size of the Titanic?  Does a power to regulate broadcasting extend to TV?  Satellite navigation instruments?  And so it goes.

That process continues today in a court near you after, say, 900 years.  It has been accompanied by supposition and artifice, often properly described as ‘fictions’ – yes, fiction is the word in the books – but while the English may have been coy, they have never been shy, about gilding the lily.

When people start laying down their laws, historians tell us that they tend to get preoccupied with forms and technicalities.  That phase is described as formalism.  Moses and other law givers certainly went into vast technical detail, some of which is still applied by those of a more orthodox caste of thought. 

Well, the English would go through a phase of formalism for about 600 years.  It could well have choked the common law to death in many ways.  There would be two main avenues of relief – the legal system would provide a process and courts to operate relief valves as safeguards; and the parliament intervened at the end to scrap the worst excesses of the judges.

The problem set in a little like this.  If you want something from government, you go to the departmental counter – or worse, a website – and you brace yourself for indoctrination intoned about different kinds of forms or boxes to tick or mandatory fields.  You are told that if you don’t get the right form, it’s game over.  You try to follow the way of other winners.  Precedent took the lead from the start. 

This is about how what we now call the common law got started in the period after Magna Carta – about say150 years after the Norman invasion.  The person going to court asks the court clerks to issue a writ – which is a directive from the king to the person sued.  But the most important thing was the ‘form of action’.  It depended on the kind of claim – trespass to the person (assault), breach of a sealed promise, or a failure by a farrier properly to shoe a horse, and so on.  Once committed, the plaintiff could not change his mind – or his form.  He must follow the rules of the form of game he has chosen.  Some might think of the smarmy security of the in-crowd in Yes, Minister.  The poor litigant may have thought of Russian roulette.

Lawyers got involved in arguing about the forms.  People made notes of those arguments.  Those notes make up a large part of our first law reports.  They are called the Year Books – running from 1268 to 1535.  Although most arguments turned on matters of form, some substantive issues arose.  What is a legal contract?  What wrongs can you sue for?  This led Sir Henry Maine to say that the substantive laws were ‘secreted in the interstices of procedure’. 

There is a real point here.  It was typical of the English that matters of great principle would come from petty arguments about process – as if by accident.  It is as if the design was to avoid any active intervention by the judge.  We saw a similar attitude to the way the issue would be decided.  God, not the judge, would decide – by the mechanical operation of the ordeal, trial by battle, or collecting character evidence.  The whole process was meant to operate like an impersonal conveyor belt. 

Well, we know that all that had to change.  And it did – by the development of another process that the Normans brought with them – after the Church got squeamish about the other techniques.

It had been the custom of the Norman kings to determine how affairs were proceeding in their realm by calling together people of substance from the neighborhood and who might be expected to have knowledge of the matter inquired of to come together and answer questions – on their oath.  This was the process invoked by William I to assess the worth of his conquest.  That led to the famous Domesday Book. 

But might not that or a related process be invoked to answer the question: Did the accused murder the deceased?  So, here we see the germ of another jewel in the English constitutional crown – trial by jury. 

That process would also take hundreds of years, in the course of which any special knowledge of a juror would become the reverse of a qualification to sit in judgment on the issue before the court.  This is because the Normans had developed the process as an administrative, not a judicial inquiry.  And such an inquiry, like our Royal Commissions now, is inquisitorial in nature.  But everyone knows that our trial process is the accusatory model – to which we have been wedded for centuries.  And which we will go into the trenches to defend and keep.

Before the end of the thirteenth century, we get reports of cases that record ‘Issue to the country.’  In later trials, after the indictment was read, the court would inform the jury: ‘To which charge the accused pleads not guilty, and puts himself upon his country, which country you are.’

So, here is another fork in the roads taken by the English and those across the Channel.  And it has consequences.  There is a real difference in the world views behind the inquisitorial and accusatory modes of trial.  Maitland offered these lapidary remarks:

‘The behaviour which is expected of a judge in different ages and by different systems of law seems to fluctuate between two poles.  As one of these, the model is the conduct of the man of science who is making researches in his laboratory and will use all appropriate methods for the solution of problems and the discovery of truth.  At the other stands the umpire of our English games, who is there, not in order that he may invent tests for the powers of the two sides, but simply to see that the rules of the game are observed.  It is towards the second of these ideals that our English medieval procedure is strongly inclined.  We are often reminded of the cricket match.  The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question. ‘How’s that?’… But even in a criminal cause, even when the King is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor.’

That is, or should be, still the case today, although for some whizz kids, the restraint is too much.

But there was more juristic pollen in the air at this time in the High Middle Ages.  We saw that kings would consult with the right people and take advice.  This goes back to the Witan in the German forest.   As the system settles and expands in what is now England, those who have what we now call skin in the game will want to be consulted – and they will look to find ways to ensure, so far as they can, that the king should consult them – before, say, declaring a war – that they will have to fight.  And pay for.  By, say, a tax.

These are weighty issues not just for England but for humanity.  They will not be resolved by the English until the end of the seventeenth century.  (But except for western Europe and the former colonies of England, there are still not many places where they have been resolved.)  By the time of Magna Carta, there are mentions of advisers coming together to talk.  A colloquy, perhaps; never a symposium – that would be far too intellectual for the English.  Perhaps something from the French verb ‘to speak’ – parler.  The French would have their parlements.  The English might call theirs parliaments.

Now, these are changes of great moment, but they appear to have one thing in common.  None of them was planned or arrived at by design.  Each fell into place as if by accident.  Did the English just have what Napoleon prized most in his generals – good luck?  Or was it a state of mind?

History – common law – constititution

Passing Bull 298 – Madness in England

If the Prime Minister of Australia is a figure of fun, the English have a real clown.  The FT quoted a Turkish proverb: ‘If a clown enters the palace, he does not become king; the palace becomes a circus.’  Some of Johnson’s Eton mates are slow at this.

In commenting on the attack by Boris on Keir Starmer, one Tory said that Boris was stressing that people are responsible for those under them.  Like those having parties in Downing St.

Then Boris uttered the great fallacy in the Commons.  ‘You are a lawyer, not a leader.’  Is it impossible to be both?

Another Tory attacked Sunak.  ‘Rishi has been far too blatant this week.  He’s a bit like a five year-old boy who tells the girl he likes to ‘please, please’ not kiss him.’  Another said ‘He has behaved in a childish, immature and petulant way.  No one will ever elect someone so duplicitous as leader.’  That’s just what you did, Mate.’

Carrie is under fire for running the place.  One Tory said this was unkind to someone who had just had a baby.  Occupational hazard, my dear.

But the prize for treachery goes to Michael Gove, who has real form. He said the attacks on Carrie were sexist!  ‘If Boris Johnson has given Carrie too much leeway, that’s sort of his fault.  He is the person in charge.  He is the Prime Minister.’

Judas blushed.

Bloopers

Are we not supposed to be a resilient nation? A people characterised by self-reliance, egalitarianism and a healthy disrespect for authority?

Chris Kenny, The Weekend Australian, 24-25 July 2021.

Not really.  We started as a British colony – a jail, in truth – and we have barely moved.

Boris – Morrison – hypocrisy – Westminster System

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

1

The German Conquest

The world is very old, but most of its peoples are now governed by legal systems that have come down from either Rome or England.  Ours (Australia’s) comes from the English, and its story is our present subject.

What we call Europe was dominated in the ancient world first by Greece and then by Rome.  The Greeks laid the foundations of logic and the arts, but they were hopeless at politics (a word we got from them), and their laws have had little impact on us.  The Romans were not so concerned with the intellect or the arts, but they created political systems in ruling the West and they developed a very sophisticated body of laws. 

The religion of each now looks both primitive and banal – about level, say, with voodoo.  Except for Rome near the end, neither people grasped the notion of the dignity that each of us has because we are human.  Each was based on slavery and a protection racket called empire, and the notion that either could be said to be civilized was one of the more curious conceits of the old Oxbridge.

The Romans ruled the land known now as Britain for four centuries from about the start of the Common Era to the start of the fifth century – nearly twice the time that the white people have been running Australia.  Very little effect of their rule is now left – and even less of that of the indigenous people (who don’t get a good press in Cymbeline). 

Instead, the character of the English nation began to take shape as Angles and Saxons settled there – although the natives would have looked on their incursions as invasions (as our First Nations look on the English who came here – ‘waterborne parasites’ according to one Cambridge lecturer).  They were followed by Scandinavian raiders and settlers.  The word ‘English’ comes from the first part of the term Anglo-Saxon.

The Greeks were fearful snobs and the Romans ran them a close second.  They turned up their noses at the Germans – in much the same way that Churchill would do with the Huns.  But the great historian Tacitus gave the Germans a tick in his Germania, and those Germans would be at the head of the new breeds bringing down old Rome.  There is a pleasing irony in their English descendants’ blocking their reception of Roman law in England – and then, much later, repudiating everything that Rome stood for as the head of one universal church.  But for the pesky independence of Germans turned English, the world would now look very different.

The fall of Rome led to a period of fear and uncertainty that we know as the Dark Age.  You can read about it in Beowulf.  It was as if the lights of Europe had all been turned out.  To whom would people look for their protection?  From where would they go for their laws?

Well, whatever else they did, they did not do what most of Europe would wind up doing and import Roman law.  They would go it alone. 

People would later seek protection under what we now call the feudal system.  (The phrase had not yet been invented – nor had the word ‘Europe’.)  ‘I will be your man if you will look after me’.  The scheme is accurately pictured in the beginning of The Godfather.  The Mafia thrives on government failure.

We now think that the first laws dealt with the conflicts that inevitably arise when people cross paths and then seek to work the land in a common area.  They need laws to control the vendetta – the issue identified in the Oresteia – and the protection of interests in land.  The feudal system became very intricate and this called for refinement by law-makers. 

The great jurist Oliver Wendell Holmes said: ‘It is commonly known that the early forms of legal procedure were grounded in vengeance.  Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law began in that way. …. Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.’

If those were the ends of the laws, what were the means?  You don’t have to have studied Pavlov’s dog to know that when people are asked what they should do next, they ask what others did before then.  Is there a precedent?  People get into a way of doing things so that it becomes a custom – that may in time harden into law. 

Take the word decree.  When pronounced by a judge, it determines the rights of the parties.  It looks backward – although it may be treated as a precedent in the future.  But if pronounced by an emperor or dictator, it applies to everyone in what they do in the future.  It is delivered as a law.

The Anglo-Saxons ruled through their kings.  The king held all the powers of making, executing and adjudicating on the laws.  His household became known as his court, and he would seek advice from his trusted advisers.  This we are told was the custom of Germanic chiefs from time immemorial. 

Over time, those closest to the king achieved a separate standing and office over others.  They would defend his realm, advise him on laws, and adjudicate disputes in his name.  The rot set in when these preferred people became an aristocracy as hereditary as the crown.  A large part of our story will deal with how the aristocrats served to pull the teeth of the crown – before it became their turn to have their own teeth pulled. 

The Anglo-Saxon kings made written laws called dooms ­but the crown would not flower until a new royal line took over the throne.

Dispute resolution was brutal and supernatural.  The issue was determined not by judges, but by God.  His word was revealed by a gruesome ordeal or trial by battle, or a process called ‘wager of law’ – signing up people to vouch for your credibility.  All those terms would sound alarmingly modern to litigants now. 

Christianity would soften the system a little, and add teeth to the oath when people believed in the fires of hell, but it all looks very primitive to us.  And Christianity brought with it interference by the Church in government at all levels – with consequences that would take far more than a millennium to sort out.

The key to this phase of six centuries from the departure of the Romans to the invasion by the Normans is that the people coming to be called the English were determined not just to go along with the others.  We saw this insularity rise up again just recently.   The English were always going to make tricky bed partners with the people in Europe.  They are separated by so much more than the Channel.

And although he may have stretched the point, a distinguished American jurist commented that the English law is more German than the law of Germany itself.

Law – history – Anglo-Saxons

Anger at the media grew as a result of the press demeaning pro-Western voters and falsely equating them with racists or uneducated morons.  Liberal media ran such hate-filled campaigns against people who supported Trump and Brexit that it became seen, rightly, as a partisan force campaigning against the democratic will of the people.  Instead of speaking truth to power, members of the media were more invested in preserving their own power than revealing unfashionable truths.

Western anti-Establishment fervor took the liberal political-media class by surprise when Donald Trump was elected as US president and the British people’s vote went to Brexit.  As Islamic State spread into the West, killing men, women, and children, citizens of the free world decided the decades-long experiment with porous borders had come to an end.  Political parties that preached globalism and ignored the patriotic zeitgeist lost elections to politicians determined to protect Western civilization against international jihad.

That bullshit is so awful, you ask if the author is unhinged.  Perhaps – but the author is an IPA product with Rupert Murdoch.  Australia lacks a reasonable conservative newspaper.

Media – Murdoch -IPA

IPA -Murdoch

Science, knowledge, belief – and faith

Most people in Australia regard those who refuse to be vaccinated in an epidemic as behaving irrationally.  The same goes for those who think that climate change does not pose a real threat to us all.  And they would think the same of those Americans who think that the last Presidential election was stolen from Donald Trump, or that the attack on the Capitol was a harmless protest by people with a real grievance. 

Some would give the benefit of the doubt to those who think that the Book of Genesis is literally true.  I would not.  In my view, that proposition is as demonstrably false as a suggestion that the earth is flat.  Just when irrational behaviour might be characterised as madness depends on your point of view – and it is a matter of degree. 

But as I see it, we have passed the time when people can claim a right to be irrational because that irrationality aligns with their faith.  Among other things, faith is beyond logic – by definition.  Faith is not irrational – it is beyond rational, or. if you prefer –it is non-rational.

And in my view, too many people of faith have abused the rights allowed to them by others.  Take, for example, the role of Evangelicals in the degradation of the United States; the role of Pentecostals in our treatment of refugees; or the quite vicious campaign against the gay community by such a frightful outfit as the Australian Christian Lobby.  It is hard to know which of those three words is more objectionable in this context.

I was brought up in that faith and I have lost it.  But the life and teaching of Jesus of Nazareth are part of my fabric, and I am revolted by the outrages against humanity perpetrated by people purportedly in his name.

We need to do more to understand what drives people to irrational beliefs and behaviour.  It looks to come from our anxiety about uncertainty.  The craving for simple black and white is the undoing of the weak and the fate of the dunce. 

Even intellectual giants like Spinoza, Kant and Einstein rejected a personal God, but left room for a God who was the source of all of the wonder in the universe.  That is not surprising, since it probably explains how religion gets off the ground in the first place.  It is curious, then, is it not, that beliefs meant to help us deal with what we cannot comprehend are used to justify beliefs that we cannot logically defend?

Another source of this infection is what is called inequality.  There were few of life’s winners in the attack on the Capitol.  The mix of anxiety and grievance are blood to a tiger for monied mountebanks like Trump, Farage and Palmer.

People who hold opinions that others see as irrational, if not downright mad, claim that their rights and freedom are infringed by those who seek to give legal effect or protection to the contrary views.  They also say that there is no law against irrational behaviour.

Any law affects the rights and freedom of others.  To object to a law merely because it does what any law does is irrational.  Similarly, government reacts differently between people who comply with the law and community standards and those who don’t –such as murderers and rapists.  It is equally fallacious to stigmatise this conduct of government as bad by applying to it the label of ‘segregation’.  That makes as much sense as calling a sausage dog a greyhound.

Enforcing traffic lights affects the rights or freedoms of all of us.  As does the ban on blind people or colour-blind people driving a car.  The question in each case is whether the restriction is warranted in the interests of the welfare of the community. 

In a democracy, that decision is made by the majority of the community.  If you are a member of that community and you do not like the decision of the majority, you face choices.  If you are not a member of the community, the choice is simple.  If you are not prepared to pay the price, you don’t get in.

Yes, irrationality is not of itself against the law, but our obligations to others in our community are not limited to those imposed by the law – and God save us from those who say that they are. 

Irrational thinking can lead to behaviour that is, when objectively viewed, harmful to others in the community, whether or not it is contrary to law. 

While people may to an extent be legally ‘free’ to behave irrationally, they might at least have the courtesy to stay away from those who upon reasonable grounds – the only relevantly qualified opinion – believe that their irrational behaviour may be harmful to the others who are behaving within the expectations of the community as a whole.

And as it happens, our governments have made laws to give effect to that simple proposition.

That, then, takes me back to those who believe in the literal truth of the Book of Genesis – because, say, they believe that that book is the word of God, or that faith in some curious way trumps science. 

The abstract word ‘science’ – which comes from the Latin ‘to know’ – may be misleading.  It took a long time for science to establish that the earth goes round the sun.  It took longer to demonstrate the process of evolution and that the universe has been here for millions of years longer than the bible allows.  It took almost as long for science to prove that a lack of cleanliness can lead to illness and death.  But now, in 2022, we know all those things as matters of fact.

And we also know that vaccination can reduce the risk of the incidence or severity of illness.  And we know that one such illness is that associated with the Covid virus. 

People who want to defy the common sense that underlies each of those propositions are playing silly word games that bespeak a failure of education and are as attractive and as safe as the solemn dedication of little boys’ playing with matches.

And next time you hear someone utter that banal statement ‘I accept the science’, ask them what that means over and above ‘I know that the sun rose again this morning.’

Now, for the first time in this discussion, we go from knowledge to belief. 

If we want to understand the stars, we go to those who are learned in astronomy, not those who subscribe to the magic of astrology.  This is because we prefer to take our advice from those who know what they are talking about to those who don’t.  To do otherwise is to act irrationally – to the point of madness.

So, if we are confronted with a choice about how to react to a serious issue involving the law or medicine, we take advice from people whose professional training and practice over many years qualifies them to give that advice.  None is perfect and there are many bad apples, but the professional people offer the best chance of advice that derives from their membership of a learned profession.  

So, in dealing with a pandemic, we and those we put in government act with advice from the medical profession.  It’s been a very long time in our part of the world since we went to priests, or Tarot card readers, for advice on issues of health.

We do this because experience teaches us to believe that this is the most sensible way to proceed.  We believe that we should act on the advice of doctors about the prospects of the vaccine being of use or offering risk to each of us – because we think that the doctors are the people best placed to express the relevant opinion.  Then we make decisions for ourselves, and our governments make decisions and laws for our community at large.

The medical experts advise us that the more people who are appropriately vaccinated against Covid, the better off will be the whole community.  I can say that I know that to be the case, but whether that proposition is expressed to be one of belief or knowledge, it is one that it is proper for me and those elected to government to act on in deciding how we should best face the risk of the pandemic. 

I work out how I might best protect myself, including by getting vaccinated, and the government makes laws to seek the best protection possible to the community at large – including laws requiring people to be vaccinated, or dealing with those who wish to act against what a clear majority believe to be in their best interests by not getting vaccinated. 

The issue then gets stuck because you cannot argue with most of the people who hold irrational views about vaccination (or with most supporters of Donald Trump).  The refusal to respect and act according to the laws of logic is at the heart of the irrational person’s condition.  It is not just that the conscientious objector, if we may use that phrase, does not agree with the majority.  He or she opts out of the rules that are indispensable to sensible dialogue.  It is in my view a form of repudiation of the social compact. 

It is like the person who opts out of any discussion of abortion by defining abortion as murder and saying that murder is non-negotiable.  I see no real difference between those two people and one who says: ‘Don’t talk to me about traffic lights.  I am colour blind, devoted to my freedom, and I regard Clive Palmer to be as saintly as Donald Trump and Craig Kelly to be smarter than any doctor.’

All that looks to me to be very dangerous – because as well as being irrational, this behaviour is also downright selfish.  And there you have a source of conflict that is likely to lead to a breach of the peace between the two conflicting groups.  As when people who have complied with community expectations who need medical aid cannot get it because their bed has been taken by a selfish person who has not complied with those expectations – because they have put their interests over the interests of others.

Which leads me to one proposition that cannot I think be dismissed as merely ad hominem.  The people who hold out against vaccination do so, they say, because of some misgiving about medical advice.  One thing seems clear.  One thing seems certain.  For most of them, most of those misgivings go clean out the window from the time they ring triple 0, get into the ambulance, and cross the threshold of the hospital – all funded by me and others who have done what the community expects of us.  Those who once opted out have now opted straight back in, with all the electrified zeal of the groom on his wedding night.

These other people, then, are not just stupid and selfish, but they are plain shifty and gutless.

And the history of the world is tragically littered with crimes committed and wars undertaken under the aegis of faith.  If you want to know how corrosive religion may be, just look at how the bible was taken to the natives of Africa and both of the Americas.  Look at what the white people did to the aborigines in Australia, and the way that we treat refugees now.  Or just read the shocking but brutal banality of the wording of The Battle Hymn of the Republic.  (If you have forgotten, the hymn came from a song created to celebrate the life and death of a fanatical religious zealot whose cold-blooded murders so accurately encapsulate the spirit of what Americans call 9/11 and reveal that dreadful lesion of violence in the American psyche.  That is some hymn.)

Why in dealing with the trouble we have with irrational people, do I refer to the trouble we have with non-rational followers of faith?  Because both here and in the U S, people of faith are seeking to have our laws conform to dogma that they seek to justify by reference to their faith.  In doing so, they show a self-interest which is beyond justification by logic alone.  They end up just as badly placed as people whose selfishness is driven by irrationality.

Religion is not so much a back door as a front door to unreason.  But many of its manifestations bear frightening resemblance to the plague of conspiracy theories that now pose as serious a threat as Covid. 

Take the major faith followed in this country.  Its essential premise is that a Jewish hasid who was barbarously executed after a show trial that became a lottery later rose from the dead.  A dispassionate lawyer would describe the evidence supporting the story of the resurrection as at best problematic.  But millions have died over disputes about drinking the blood of the deceased or whether the godhead comes in three parts.  (The doctrine of the real presence was denounced by act of parliament in 1539, and Isaac Newton of Trinity College could never understand the doctrine of the Trinity.)

Another major faith allows the virgin birth, but denies the crucifixion.  One cult may or may not be a sect of our major faith, but you might get a knock on the door from people who love money and multiple marriages and who believe that their faith in Israelites sailing to America was set down in golden tablets brought down by an angel.  Just how you rate these against QAnon[GG1]  is I suppose a matter of degree – or taste.

However that may be, it is arithmetically inevitable that most people in the world believe that most religions of the world are baseless – in truth downright silly.  Unless the resulting tensions are well managed, you get lethal conflict.  In the result, religion is behind so much of the conflict in the world.

But their tendentious bases do not dampen the political ambitions of the faithful.  So, we get these nonsensical claims that people should be protected in the freedom of their religion by being free to sack people because they are gay.  This is not just selfish and irrational – it hurts real people and it endangers the social fabric of our community.

In my view, the ambitions of the faithful are now so large that not only should we resist their demands for more legal protection – we should also stop giving them relief from paying tax.  That is another way that these people have not been pulling their weight.  And it is time that they were told to pull their bloody heads in. 

The time for allowing legal privileges to churches of any shape or colour has long since passed – not least because those who follow Scientology claim the relevant benefits.  Scientology is as ugly a virus in the body corporate as you could imagine.

And as Kant remarked, no ruler can come between you and God.  It is only when you seek to practise your faith in public so that it affects others that you become subject to the laws of the land.  Your freedom ends when others get hurt.  The Vatican did deals with evil people like Napoleon, Hitler, and Franco, but even those people could not stop people praying to their God. 

There are now disturbing reports in the press of the Liberal Party’s being infiltrated, if that word may be permitted, by people from very odd religious sects, whose views on life would almost certainly not match those of most of the electorate.  And who don’t mind dabbling in corruption.

There certainly appears to be a cabal of Pentecostals in the federal government.  That is led by a man whose devotion to the teaching of the holy man who gave us the parable of the good Samaritan is revealed by his keeping a plaque on a wall celebrating his part in sending in armed forces against unarmed refugees.  Does this man of faith really say that he does not know why that makes so many people feel sick? 

It is not just that we have a government that is intellectually challenged and morally compromised – but we have a return of the infection of our politics by religion – which we thought we had shed about half a century ago.

Let me conclude by disclosing my main bias in all this.  I am 76 years old, with a heart condition including one heart attack, terminal lung cancer in remission, and incurable emphysema.  This virus, in any mutation, could have me for breakfast without stopping for its or my breath.  I have been kept above the ground by the care and skill of the nurses and doctors in the best health care system in the world. 

It is appalling to think that all of that may be undone by a few selfish fools.  In truth, I see these people as suffering from a kind of madness.  And if you wish to be reminded just how dangerous such people can be, take another look at those mad, bad people who attacked the Capitol last year – and the awful clown who inspired them.

---

 [GG1]

Anti-vax – freedom of religion – Liberal Party – Morrison – Conspiracy theories

My mate Chris Dane died yesterday.  He was as loyal a mate as I have known.

We met at the Bar in 1971 when we were both starting out.  We appeared against each other on a couple of occasions.  I then had a hang-up about Melbourne Grammar boys, but I was prepared to make an exception for Dane because he supported Melbourne. 

During the late 1960’s, I had suffered the Demons’ pain with a mate from school who was a medical student.  Then I got into the MCC and for years I suffered alone.  In about 1975, I asked Dane if he would care to share the pain.  His first marriage had exploded badly.  He needed succour.  I used to call on him in Oban St, South Yarra, have a Scotch, and we would go and have lunch, and then go to the footy.  As often as not to say that the only mistake we made was to leave the bloody pub. 

This went on, across all the suburban grounds, then for about twenty years.  It was a very Melbourne thing, and we both loved it for that reason – of course, without saying so.  

We tailed off as his second marriage soured, the AFL spread beyond our best suburban boundaries, and TV meant that we were not getting enough at the MCG on Saturdays – after lunch at the Prince Alfred.  In the name of God, we were not dedicating our off time to the dregs of the League for the sake of it.  Lunch and later was very much a boys’ thing.  This was our time.

For four or five years around 2010, I shared chambers with Dane.  He was still in full practice in crime.  Serious crime.  Dane had an earned reputation for being fearless. 

I made guest appearances in chambers.  On one occasion I was seeing one of my Anglican priest clients.  Dane bowled in.  I introduced my bloke and said that Dane had acted for more serious crooks than most people had had hot dinners.  Dane puffed himself up to his full height and announced that he was acting for Her Majesty the Queen.  I was very glad to hear that, because Dane, like all of us, had his flaws.  One of them was a ferocious ability to bite back at people in authority who got in his way and who he thought were not up to it.  People who become partisans of their side of the register to that extent cease to be professional, and I think Dane had got it right by the end.

On another occasion, I had taken into chambers a .22 rifle in a very respectable gun bag.  After lunch, I called in to collect it.  Dane was there with a guy with the hallmarks of serious crime.  Without missing a beat:

Don’t worry.  He’s only called in to pick up his gun.

[Crim.]  Really!   [To me.] What sort of gun is it?

Possibly not your go, Sport.  Small bore.22 that would hardly stop a bunny.

In about 1987, I was hearing tax cases.  For light relief, I used to get some cases of SP bookies being charged with stamp duty on their takings.  It was a relief from tricky issues of equity or tax that could end up in the High Court.  I was walking up William St one night.  I heard a voice from the other side of the road.  It was Dane.  ‘Comrade.  I am appearing before you tomorrow.  I’m for the bookie.’  Two seconds later.  ‘And that’s not an admission.’  I laughed out loud.  Next morning, something like the following colloquy took place.

I just want to understand your case.

Certainly.

You had run the pub for 16 years.

Yes.

And on only one night were you holding money for bets on the races.

Quite correct.

And that happened to be the night the wallopers arrived.

Exactly!

Sadly…

The guy I saw most Melbourne games with after Dane was Ross Milne-Pott.  The same pattern – plain misery after a good lunch at the beer garden at the Prince Alfred. 

But the three of us were there together on that ensainted day at the Western Oval in 1987, when we got up to get into our first finals since 1964 – and we cried like children on the train until we cried into our beer at Young and Jackson’s.

Sportsman – you were as loyal a mate as I have known – and in this whole vast universe, personal loyalty is what counts.  It was given to you and me to climb that last mighty mountain before we leave, and I am so glad for you. 

I will say farewell with an anecdote that you would like.  Ross and I could not handle the stress of watching the first two finals live.  Sheer cowardice.  We huddled in corners in our own homes emailing each other while getting one or two from you. 

And then I got one from you.

It may be safe for you to turn the TV on now.  They are ten goals up in the last quarter.

Some curious things are coming out of U S courts. 

The lawyers for Ghislaine Maxwell say that the prosecution sought to make her a ‘scapegoat.’  That is the fallacy of Socrates in his ‘defence’ in Plato’s Apology.  To impugn the motive of the prosecutor is not to provide a defence to the charge.

The lawyers for Prince Andrew say that the lady suing him is seeking a ‘pay day.’  That is one way of describing an action for damages.  For which the late Mr Epstein provided a handsome floor.

They also say that the prince is entitled to the benefit of an agreement – the release of Epstein – to which the prince was not a party.  This is, to put it softly, tricky.  About a quarter of a century ago, I tried to draw releases to corporations by having the corporation expressly enter into the agreement as agent for a class of people who might be subject to a similar claim.  When you are preparing a release for a serial pervert, with a criminal record, the possibility of an English prince being sued for a similar claim is not one that would gallop to the forefront of the mind of most legal draftsmen.  Especially if the prince is married – although marriage, like divorce, is no longer so significant in that family.

And there was oddness off the court.  The press is full of the news of the Balkan Superman now in custody.  But they don’t tell us which was the law firm that gave him advice on a very fraught and consequential part of our law.  Or do you suppose that the ignorance of Superman and his overpaid management team is matched by their arrogance – and that he did not get any qualified legal advice at all?  If so, his attitude to medicine is matched now by his attitude to the law – spellbinding stupidity and selfishness, so that now this low flying bludger deserves everything that I hope he gets.

What we do know is that he wanted to come here in defiance of our laws and wishes – and then boasted to the world that he had the wealth and power to achieve just such a result.  It is hard to imagine any twerp offering a more brazen slap in the face to a whole nation than that.

As I remarked to the nice Serbian lady who looks after me at the IGA Deli, ‘Keep a low profile, Dear.  This clown is doing nothing for you Serbs.’  She understood, but the usual suspects don’t.

We get this inane chatter about ‘segregation’.  People who have Covid should be kept away from those who don’t; so should people who are more likely to have caught it.  You don’t change that by substituting ‘segregate’ for ‘separate.’ 

Then someone said we invaded his privacy.  Let us put to one side his public trumpeting, and the difficulty of staying private when acting in public and your whole immense fortune comes from your doing just that, my privacy will be shattered if my name appears in the death notices, because of an infection by a stupid, selfish ratbag like this man. 

Then some clown with a flag at the vigil said this was ‘racism’.  Really.  Other people held in that of detention are – to our disgrace – victims of racism, but not this filthy rich white man.

Now for the good news about sport.  Usman Khawaja is man of colour and the Muslim faith.  His parents migrated here from Pakistan for a better life.  Yesterday he completed a majestic century against England.  There are few moments as big as that in our sport.  The Melbourne crowd were terrific with Boland.  The Sydney crowd were just as good, if not better, with Khawaja.  It is a moment of high drama and faith to see a man like that celebrate his century – with his wife standing up in the stand holding up their baby.  They are the things we live by and for.

Uzzie gave us the best repudiation of that crass and twisted tennis twerp.  It may be just a matter of time before our Prime Minister puts his oar in again, and say that this was the Australian way.

The return of the Law of Suspects

(This note follows one which looked at a call by some that Michael Vaughan be stood down.  That note began as follows.

The Age today has an article by Osman Faruqi, who it describes as ‘a Pakistani born Australian journalist.’  Mr Faruqi says there is ‘a cloud hanging over this series that few in Australian cricket seemingly wanted to acknowledge, let alone discuss.’ 

The cloud consists of allegations of ‘racism’ against Michael Vaughan, a former English captain, and current commentator.  The only allegation that Mr Faruqi mentions is that Mr Vaughan is alleged to have said to a group of Asian cricketers ‘Too many of you lot, we need to do something about it.’   Mr Vaughan denies making saying that.  (If it matters, I believe him.  I hold Mr Vaughan in high regard.) 

English media organisations have apparently dropped Mr Vaughan as a commentator.  Mr Faruqi says Fox Sports should do the same here.)

King Lear had foolishly divided his kingdom between two evil daughters, and one of them had caused one of his companions to be put in the stocks for insolence.  The stocks or pillories were wooden devices with holes for head and hands ‘in which offenders were formerly imprisoned and exposed to public abuse’ (Compact OED).  It was a brutal form of public degradation made for the taste of vindictive people in cruel times.  So, King Lear put the question stated at the head of this note.  He was suffering an affront to his prior majesty that one of his daughters could do this to a man under his protection.  He said that it was worse than murder to ‘do upon respect such violent outrage.’  And he immediately sensed for the first time the onset of his madness.

In the 1930’s, a Russian princess sued MGM for libel.  She alleged that a movie imputed that she had been raped by Rasputin.  A typical libel says that the plaintiff has done something wrong so that others should think less of the plaintiff.  But it might also come from an allegation that causes people to ‘shun and avoid’ the plaintiff.   A judge and jury found against the film producer on this basis.  Whether that would happen in Melbourne now is at best doubtful, but a suggestion in 2021 that a man had tested positive for Covid could be as dangerous as a suggestion in 1981 that he had tested positive for HIV. 

And we are reminded that under the old law, you could sue for a merely oral form of publication if it imputed toyou a disease which would ostracise you from society.  Indeed, you could be prosecuted for criminal libel if you attacked someone with enough acid to provoke a breach of the peace.  And truth then was no defence.  As the old text (Hudson on Star Chamber) remarked, ‘it is not the matter, but the manner, which is punishable: for libelling against a common strumpet is as great an offence as against an honest woman, and perhaps more dangerous to the breach of the peace: for as the woman said she would never grieve to have been told of her red nose if she had not one indeed, neither is it a ground to examine the truth or falsehood of the libel’.   (Protecting the peace from violence in response to abuse is now the task of police and summary offences legislation about offensive or insulting conduct.)

In the middle ages – say about 1215 – a criminal taken in the act was without more an outlaw – outside the protection of the law.  He was not entitled to any ‘law’.  What had to be proved was not that he had been guilty of murder, but that he was taken red-handed ‘by hue and cry’.  As F W Maitland mordantly remarked, ‘our records seem to show that the kind of justice which the criminal of old times had most to dread was the kind which we now associate with the name of Mr Lynch.’  And we need not here pause to inquire whether that old law survived in law the guarantee of due process in Magna Carta.  It’s pounds to peanuts that it did survive for some time as a matter of fact.

So, our primitive law allowed people to be punished by being forced into the stocks and subjected to public abuse – a kind of verbal stoning.  Since 1689, an attempt by any body except parliament to impose such a penalty would be declared unlawful as a ‘cruel and unusual punishment’ in contravention of our Bill of Rights.  And the law recognises that you can suffer hurt and damage to your reputation by a publication that does not say that you did anything wrong , but merely that there is something about you that people should steer clear of.  The law could therefore be invoked to guard against ostracism.  And centuries have gone by since a miscreant could be taken and dealt with, if necessary by execution, without trial or any process at all.

So, some ways of dealing with conduct against the community have been preserved.  Some have not.  A lynching involves killing the suspect.  That is one difference between a lynching and the dismissal from office that some seek for Michael Vaughan in response to an allegation, that he denies, of racism.  If you can think of any other difference, could you be so kind as to let me know?

It is fundamental to our constitution, and our way of life, and it has been since 1215, that no one should be punished except under the law and in accordance with process.  People who seek to avoid or diminish that fundamental right really attack us where we live.  And although some may not see it, there is a strong thread of humanity – or humaneness – in our common law. 

This is rarely articulated.  Perhaps it cannot be.  But it can I think go back to a sense of an inherent worth or dignity in each of us that derives from the mere fact that we are human.  And I think this is so for a body of people most of whom have never read a word of Kant.  This is because the common law eschews theory, much less philosophy.  It just asks if something works – and if it is fair.  And we have a reasoned suspicion of any form of power over people because we know that such power corrupts.

So, we get the notion that if there is doubt, the accused should get the benefit of it.  And we would prefer guilty people to go free rather than jail innocent people.  (And thank God we did not hang Lindy Chamberlin.) 

Even in civil cases, an unspoken leaning might surface at about two o’clock in the morning, as the judge wrestles with the law and her conscience or humanity – ‘Well, bugger it – if someone has to suffer, let it be the side who can best bear it.’  That premise is never articulated, but it is normally there – and those judges who stifle it become known.  (This was given eloquent expression to me many years ago by a decent war horse named Les Ross: ‘I have just been appearing before a snake on a rock.’  Who had ginger hair.)  

The case was stated with what I might call Dominican subtlety by Lord Devlin (whose star has now been so sadly burnished), when discussing that great triumph of our law, the jury:

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.

As it happens, these predilections of our law sit well with us here in Australia.  We distrust theory and we reject ideology outright.   No one I know takes seriously the wafty outbursts of people like the Institute of Public Affairs or those who chase the illusory Golden Fleece called ‘Western Civilisation’.  They are just little children who stoutly refuse to grow up, and who amuse themselves with wordy but quite useless board games.  They putter about like Eskimos in their sequestered igloos, while real life goes on in the Savannah, or what Churchill called the broad sunlit uplands.  They prattle on in their own special dialect – call it Poodle-Dum.  They are truly privileged.  And groomed and manicured to the hilt.  They do not have to do anything.  They merely comment on what others do.  Power without responsibility is what used to be called the privilege of the harlot through the ages.  These think tanks could have sent Plato clean out of his mind.

There is an engaging ongoing intercity derby – who can be the most banal – the Institute of Public Affairs or the Menzies Research outfit?  Each is fronted by a world-class champion bullshit-artist, the quintessence of banality.  There are moments of hilarity.  Their cadres bang on endlessly about elites – as if excellence were to be avoided.  But the IPA is fronted by the noblesse of the Melbourne club and one of the richest people in Australia.  In a way, they resemble the aristocrats who laughed so loudly at The Marriage of Figaro – and then saw themselves humourless at the base of the scaffold.  We just have to hope that our children and theirs see the joke on what Gina leaves to us on this blasted planet.

And when it comes to a dispute with management, the natural reaction of Australians is to line up against management.  Indeed, that inclination is nigh on mandatory if you are talking about sport or government.

All these traits of ours are I think well enough known.  What is sadly less well known is the danger inherent in those who would see a man deprived of rights merely because of suspicion – as happened in France with the Law of Suspects in 1793.  That period is known as the Terror.  If is from there that we date the use of the term ‘terrorist’.  Government by terror became the order of the day.  The rights of an innocent individual had to give way to the interests of the State.  That is precisely the modus operandi of those regimes that we least respect (to use a phrase of Sir Owen Dixon).  It is a point-blank denial of the rule of law that we have sat under since 1215.

But that looks to me to be just what people are seeking in the case of Michael Vaughan.  ‘Terribly sorry, old boy – but you will just have to take a hit for the team.’  Except that here the ‘team’ is that ghastly construct, the State. 

This does remind me of a story told by Luke Hodge, who had become one of the most highly respected captains in the Australian Football League.  Hodge had been frisky early in his career, and his coach, the rightly revered Alistair Clarkson, came down heavily on him. ‘You will think you have been dealt with unfairly – and you may well be right.  But there are other interests in play.’ 

That is fine – in a footy club.  Its reasoning there is impeccable; but in affairs of state, it is verboten.  The notion of conduct ‘prejudicial to the interests or reputation of’ a body is OK where people are free to contract in or out – and who get paid enough to warrant some check on their baser instincts – or in a uniformed service that has an interest in preserving a decent public image – but it does not hold for you and me and our government. 

This is serious.  We must not pussyfoot about it.  In Darkness at Noon, Arthur Koestler introduced us to ‘The Grammatical Fiction’.  There is no such thing as ‘I’.  One protagonist put this note in his diary:

We have thrown overboard all conventions; our sole guiding principle is that of consequent logica; we are sailing without ethical ballast.

It comes as a shock to recall that millions of people in both Russia and China look back on mass murders of many millions with mixed feelings.  We are now told that many Americans have mixed views on the insurrection at the Capitol of 6 January 2021.

The defiance of the rights of the individual was again evident in the way Cricket Australia threw Tim Paine straight overboard.  Leaving us to read press reports of concern for the mental health of both him and his wife.  And people call for footballers to be dropped if they face allegations of sexual offences.  Even though our bloated criminal justice system may take years – before finding that the case had failed. 

This is not just the loss of livelihood.  We are speaking of wrecking a life and a person’s standing among us.  And don’t speak to me of someone taking a hit for the team.  We are talking of voracious trading corporations – like Cricket Australia or the Australian Football League – whose care for the people they trade on resembles that given to Russian serfs by the boyars circa 1812.  They just look after themselves and their bottom line. 

In twenty years acting for Anglican priests pursued by their own superiors, I saw just this response from a neurotic and selfish hierarchy who threw their accused out of sight and out of mind in a fevered defence of their face and their brand. 

At least since 2016, and the advent of Trump, we have had to contend with people who choose their own reality over that lived in by the rest of us.  We see it just as frighteningly now with warped minds prattling about ‘freedom’ when matters of life and death are at hand. 

It is worth recalling some insights from the luminous mind of Hannah Arendt (in The Origins of Totalitarianism, 1975).

The attraction of evil and crime for the mob mentality is nothing new.  It has always been true that that the mob will greet ‘deeds of violence with admiring remark: it may be mean but it is very clever.’  The disturbing factor in the success of totalitarianism is rather the true selflessness of its adherents…The temporary alliance between the elite and the mob rested largely on this genuine delight with which the former watched the latter destroy respectability…The object of the most varied and variable constructions was always to reveal official history as a joke, to demonstrate a sphere of secret influences of which the visible, traceable and known historical reality was only the outward façade erected explicitly to fool people…the difference between truth and falsehood may cease to be objective and become a mere matter of power and cleverness, of pressure and infinite repetition.

Well, all that related to the evillest people in history – but it is shocking to see how well it describes the U S in 2022.

Yes, but what has it to do with the campaign to discredit and unseat Michael Vaughan?  Just this –the decline in the place of truth in our lives leaves us so much worse off.  As does the decline in common sense and common decency.

Let me take one example from The Weekend Australian of 1-2 January, 2022.  James Allan is apparently Garrick Professor of Law at the University of Queensland.  His piece is headed: The dangerous path towards segregation and despotism.  It is full of the tropes of bloated ideology that we get here on weekends.  Two extracts will be enough.

Yet Covid-19 comes nowhere near the level of lethality needed to justify what amounts to a huge inroad into the basic standards of a functioning liberal democracy…If you are over 80, or obese, or have a number of comorbities, then look out.

My own bias is that I am squarely within the high-risk area that the professor identifies.  The virus could have me for breakfast.  But I am apparently expendable – in the interests of ‘freedom’ for Jimmy, Clive, Craig, Pauline and their mates. 

And the professor does not stay to mention what he understands by the word ‘lethality’, the criteria for assessing it, or the capacity of a lawyer to identify and apply those criteria.  When the consequences may be fatal.  Such is life in the likes of Fox News in the U S, and the front office for those spent political parties that they seek to protect.  One for lucre; the other to hand it out to keep the better people and the evangelicals in power.

You might wonder how a professor of law might view a GP who challenged him on the juristic basis of his chosen area of specialisation in the law.  Or perhaps we might ask about the wisdom of a plumber electing to act for himself in a murder trial, based on what he had learned about advocacy from a DIY book on how to become a successful vacuum cleaner salesman.

You might also wonder about that part of our law that says that we should take care not to hurt our neighbour.  And I wonder why I should now be reluctant to go the pub or the movies in case I have the bad luck to get near and infected by some poor deluded soul who has been badly afflicted by the noxious tripe peddled by people with the mentality and morals of Clive Palmer or Craig Kelly – in the hilariously labelled United Australia Party.

We now have to live with two sorts of failure in the life of our community.  One lot among us think they know better than those who clearly do.  Another lot seek more power to live as they wish than others are prepared to allow them.  Both involve people putting themselves above the rest of us.  The first are arrogant.  The second are selfish.  They commonly go together.  We have not just the return but the triumph of ‘I’.

Which brings me back to the failure to articulate the premises of logic in Mr Faruqi’s campaign against Michael Vaughan.  What precisely is the kind of ‘racism’ alleged?  What is the evidence of what was said and to whom and in what context?   What meanings might the alleged words have conveyed, and on what ground is it alleged that that meaning comes within what form of proscribed ‘racism’? 

There is nothing subtle about this – whether you call it natural justice, due process, or procedural fairness.  Or common sense – or just manners.

I remarked in another context that if someone alleged that you were ‘corrupt’, and you sued for libel, the court may well order you to say what form of corruption that you say is being alleged against you.  What do you say was the ‘corrupt’ conduct imputed to you?  The court would do this as a matter of fairness.  Someone being sued has a right to be told of the case that they have to meet – if the publisher wants to allege truth as a defence, what evidence must the publisher adduce for that purpose? 

May I repeat – we are not here speaking just of logic, but also of fairness – or common decency.  There is too much in the smearing of Michael Vaughan that recalls the dark workings of Senator McCarthy.  Or the latterday machinations of parts of the press.

They are the main grounds on which I maintain that the attack on Michael Vaughan is misconceived and without merit.  But that attack does evidence a very worrying trend in the decline of logic, truth and courtesy in our public life.  

At the height of the Terror in France, the presumption of innocence was as good as reversed.  Robespierre said: ‘Whosoever trembles at this moment is also guilty.’  He also subscribed to ‘trial by conscience’ – an intuitive decision rather than a reasonable one; the accused could be convicted for attitude as well as actions.  In another speech, Robespierre gave us all the essence of paranoia – ‘Look about you.  Share my fear, and consider how all now wear the same mask of patriotism.’  The good looked just the same as the bad.  

Now, we are nowhere near that level of moral collapse, and it would be silly to say that we were.  But I agree with King Lear – and he was not mad when he said this.  Violent outrage is being done upon respect.  There is far too much of it going on, and at least some of those guilty of this form of outrage should know better.

The cloud consists of allegations of ‘racism’ against Michael Vaughan, a former English captain, and current commentator. The only allegation that Mr Faruqi mentions is that Mr Vaughan is alleged to have said to a group of Asian cricketers ‘Too many of you lot, we need to do something about it.’   Mr Vaughan denies making saying that.  (If it matters, I believe him.  I hold Mr Vaughan in high regard.) 

The Age today has an article by Osman Faruqi, who it describes as a Pakistani born Australian journalist.’  Mr Faruqi says there is ‘a cloud hanging over this series that few in Australian cricket seemingly wanted to acknowledge, let alone discuss.’ 

English media organisations have apparently dropped Mr Vaughan as a commentator.  Mr Faruqi says Fox Sports should do the same here.

Mr Faruqi does not say which form of the very plastic term ‘racism’ he invokes against Mr Vaughan.  We cannot then judge – if we are into giving judgment – whether it would apply to his remark that ‘as a Pakistani-Australian cricket tragic, I absolutely love to see England lose.’  I can imagine people having very different views on that issue.  Or in the belief that English soccer is bedevilled by its overt reliance on too many imported players of colour.

But they are mere debating points.  What Mr Faruqi is saying is that Mr Vaughan should be dealt by a third party adversely to his interests and good standing among us because first, someone has made an allegation against him that he denies and, secondly, that other third parties in England have chosen to do so (albeit on grounds that we have not seen described). 

If we here were to follow that policy, we would be going back to the Law of Suspects implemented in France during the great Terror in 1793.  You could be deprived of your rights if someone made an allegation against you that you had conducted yourself in a way that was seen to be against the interests of the current regime.  Mere suspicion was enough to put you down.

That is a shocking suggestion.  It is the logical equivalent of saying that if there is a cloud above your head, we can say that you are standing in the rain.

And it does not get any better because it comes from a person who – it is transcendentally clear – is not a disinterested observer.

The Age should know better.  Indeed, it is dangerously close to standing under a cloud.