Passing Bull 407 – What is the Question?

16/06/2025 / Geoffrey Gibson / Leave a comment

In his weekly column in The Age today, Sean Kelly says that a taboo question for the Australian government is ‘at what point does America become the type of country we no longer want to ally with’?

There are two different questions we might have for potential allies. Do we like their politics? We are for, example, much more at home with the politics of Japan than say India or Indonesia. But that does not mean that we should not enter into alliances with either. Even before Trump, aspects of American politics troubled us – for example guns and Medicare, and their propensity to join with very undesirable governments, and then lose wars. But that did not preclude us – on a non-partisan basis – from continuing our alliances with the US. And toeing the line while snapping to attention.

But there is another question that is far more important. Can we trust the U S to discharge its obligations to us under a treaty of Alliance like AUKUS? Before Trump, we answered with a wobbly ‘Yes’. Since Trump, the answer must be ‘No’ – and unequivocally. Just look at Ukraine or the Middle East.

And that answer will not change with the passing of Trump. That will take a long time indeed. A period in the dog house may be good for them.

It follows in my view that we should be looking to terminate AUKUS and entering into other alliances. I agree with Mr Brandis that we should enter into an alliance with the E U.

The bonus is that we are far more at home with their politics than those of the US. At the age of nearly eighty, I regard both Germany and Japan as more dependable and essentially democratic than the U S.

Sic transit gloria.

Two great Dutch historians

09/06/2025 / Geoffrey Gibson / Leave a comment

EXTRACTS FROM TWO VOLUMES OF A CURATED LIBRARY

DEBATES WITH HISTORIANS

Peter Geyl, 1955

B T Batsford, London, 1955; rebound with orange boards in navy slip case.

The Dutch have earned a reputation for tolerance and enlightenment. In the 17^th century, they offered sanctuary to great European thinkers like Spinoza and Locke – Spinoza died there; Descartes also sought protection there.

Holland has also produced great historians. One of them was the late Pieter Geyl (1887-1966). Don’t just take my word for it. A J P Taylor said: ‘If I were asked to name the historian whom I have most venerated in my lifetime, I should not hesitate for an answer. I should name Pieter Geyl.’

Every now and then – it is not very often – you come across a writer who soon puts you at your ease. There is a breadth and depth of learning; there is an absence of arrogance or waspishness; and there is some compassion, some generosity of spirit, too. We may not be able to call someone ‘wise’ unless we can see something on top of a very fine mind – something like humanity, for the want of a better word.

The late Professor Geyl qualifies on all counts, in spades. He was trained in Holland, but he spent a lot of time teaching and writing in England and in the States; he also spent some time in Germany, something that I will come back to.

The first essay in Debates with Historians comes from about 1952 and is called ‘Ranke in the Light of the Catastrophe.’ A Times Literary Supplement piece had in the eye of Geyl suggested that Ranke had by his ‘political quietism’ been a pioneer of National Socialism – the ‘Catastrophe’ of the title. (In the fashion of the time, the article was unsigned. Geyl referred to its ‘vehement one-sidedness’ and had said that in ‘this case it is not difficult to guess who is the writer’.) Geyl was intent on defending the German historian against this charge, a very decent undertaking for a Dutchman so soon after that war, you might think.

There are two things. One is the great insight of Ranke that ‘Every period is immediate to God, and its value does not in the least consist in what springs from it, but in its own existence, in its own self.’ This to me sounds like Bonhoeffer. It is to preach humility to historians – and some of them could do with the sermon.

Then there is the magisterial closure to the refutation of the charge that Ranke had prefigured National Socialism. It contains the following.

If we are tempted by our horror at the culmination of evil that we have just experienced or witnessed to pick out in the past of Germany all the evil potentialities, we may construct an impressively cogent concatenation of causes and effects leading straight up to that crisis. But the impressiveness and straightness will be of our own constructing. What we are really doing is to interpret the past in the terms of our own fleeting moment. We can learn a truer wisdom from Ranke’s phrase that it should be viewed ‘immediate to God’, and he himself, too, has a right to be so considered…..Comprehension, a disinterested understanding of what is alien to you – this is not the function of the mind which will supply the most trenchant weapons for the political rough-and-tumble….To understand is a function of the mind which not only enriches the life of the individual; it is the very breath of the civilization which we are called to defend.

God send us more people who can think and write with that largeness of spirit – and consign our mediocrities to the dustbin that they deserve.

There is an essay on Carlyle, and ‘the spirit of the Old Testament that seems to be present, coupling anathematization with adoration.’ It is about Carlyle’s ‘impatience with baseness and cowardice, his feeling of being out of place in a world of superficial sentiment and mediocre living……the babbling of lifeless religiosity or the sham assurance of modern idealism. Instinct, intuition, the myth, these were his challenge to the rationalists and glorifiers of science who (unappeasable grievance) had made the Christian certitude of his childhood untenable for him’. Carlyle was impatient with those in thrall to logic.

Geyl, as it seems to me, gets the sadness in Carlyle exactly right: ‘the sentimental tie to a spiritual heritage which his intellect rejected, the painful reaction against the false teachers who gave him nothing in exchange for what they had robbed him of.’

That condition is very common now – it may define our time, as the time of the claimed death of God, but the author concludes on Carlyle: ‘and the perception of that tragic quality makes it possible to accept gratefully that which is vivifying in his work and serenely to enjoy its beauties.’ Would that other professional historians might be so generous with this poetic and prophetic lightning-conductor from the north.

Then follows an essay on Michelet, the first great historian of the French Revolution. I have read Michelet, mostly in translation, the better to understand the loathing of the French for the church and, for many of them at one time or another, the English. His father was an unsuccessful printer – as Professor Burrow reminds us, ‘exactly from the stratum from which the revolutionary crowds were chiefly recruited.’ But, Professor Geyl instructs us, business was bad under Napoleon, and ‘the memory of the Revolution was thus, in that poverty-stricken family, allied to detestation of the Corsican despot.’ It helps to have the inside running on the local knowledge of some historians.

Michelet talks of the ‘people’ – le bon peuple – while Carlyle speaks of the ‘mob’. Or, rather, as Geyl tells us, it is the people when it is good – the storming of the bastille; but when they are bad – massacring the inmates of prisons until the streets ran with blood – it is not ‘the people’ but ‘three or four hundred drunks.’ If the awful Terror was an awful weapon, it only had to be employed because of the evil English without, and the traitors within – ‘the people’ and France were guiltless. (Do you recall Francois Mitterrand saying of Vichy France that ‘The French nation was not involved in that; nor was the Republic’? Did they all come from Mars? Have you heard a Russian say that it was not Russia that invaded Afghanistan – it was the Soviet Union?)

On the one hand, Michelet dislikes Robespierre for the lack of that ‘kindness which befits heroes’; on the other hand, the moderates, who literally lost their heads, lacked ‘that relentless severity which it seemed that the hour required.’ Only seemed, Professor? When people walk on egg-shells like that, they are protecting someone.

There are four papers on Arnold Toynbee – but we have seen enough to gauge the quality of this fine book. Professor Geyl represents something very, very fine about the European tradition. He came from a nation that holds some of the title deeds of western civilization, to adopt a phrase of Churchill’s, a nation renowned for its tolerance. His was a Europe that had just been convulsed in an appalling war, for the second time in a little more than a generation, but this historian is able to analyse its history in a way that does great honour to his calling. In those essays, he had defended one German historian charged with being a step-ladder for the Nazis, and he had sought to understand what he saw as the ‘catastrophes’ that had befallen both France and Germany in different centuries and with different dictators.

I mentioned that Geyl had spent some time in Germany and that he wrote the Dutch version of the Talleyrand essay during the German occupation of Holland. For thirteen months, Pieter Geyl, even then a most distinguished Dutch historian, had been kept at a place that Chancellor Angela Merkel and President Barack Obama visited a couple of years ago. Its emblem was Jedem das Seine, ‘To Each his Own’. We know it under a name of unspeakable horror – Buchenwald.

On his release from Buchenwald, Geyl was kept in a Dutch prison by the Germans until the end of the war. And, yet, in the period following that war, he was able to write about Europe, and the world at large, in the terms that I have indicated. This, surely, was a colossal achievement, and one that humbles us.

Professor Geyl has produced work that helps us come to terms with our humanity, and that is I think the proper purpose of the world of learning, or, as I would prefer to say, men and women of letters. Or as A J P Taylor is quoted as saying in the blurb on this book, ‘Geyl is one of the few living men whose writings make us feel that Western civilisation still exists.’

MEN AND IDEAS

Johan Huizinga

Eyre and Spottiswoode, 1960; translated by J S Holmes and H van Marle. Rebound in red and white fancy paper with matching slip.

The Dutch have long enjoyed a reputation for tolerance and for being a refuge for dissident intellectuals – like Descartes and Spinoza. Johan Huizinga is a model of the European intellectual. He has a lot in common with Pieter Geyl (whom we looked at in the second volume). Both were Dutch historians arrested and held by the Germans. Both were gracious and humane scholars with an open European world view.

In The Waning of the Middle Ages, Huizinga spoke of the ‘vehement pathos of medieval life’ and the ‘extreme excitability of the medieval soul’. Incidents were ‘by the sacredness of the sacrament raised to the rank of mysteries’.

Calamities and indigence were more afflicting than at present; it was more difficult to guard against them, and to find solace. Illness and health presented a more striking contrast; the cold and darkness of the winter were more real evils. Honours and riches were honoured with greater avidity and contrasted more vividly with surrounding misery. We, at the present day [1925], can hardly understand the keenness with which a fur coat, a good fire on the hearth, a soft bed, a glass of wine, were formerly enjoyed…. The modern reader of newspapers can no longer conceive the violence of impression caused by the spoken word on an ignorant mind lacking mental food.

Monkeys abounded as pets. Beggars were everywhere, many disfigured – in fact or fiction. The legless dragged themselves around by wooden stumps. The Church put a woman in the Godhead, and persecuted all her daughters on earth as the source of evil, according to a myth that everyone had to believe. The Church also said that the Mother of God was a virgin, and the cult of the Virgin arose out of the failure of the Church to come to grips with the facts of life – we like sex, and were meant to, because otherwise the human race would just fade and pass away. Doctors, as some were called, did not know what they were doing, but were admired. Everyone loathed lawyers, and very few trusted any monk or friar.

Let us see how the commentary of this remarkable historian is so relevant to us right now.

…. the general evolution of the dominant groups – the democratisation of society – constitutes a danger. Professional scholarship can never be more than for a few: it is aristocratic. Literature (and with it popular scholarship) is for the many, must be for the many. Modern culture must be democratic if it is to be at all. …. The ultimate problem remains like a ghost, ever present and unlaid: Is it possible to extend a higher civilisation to the lower classes without debasing its standard and diluting its quality to the vanishing point? Is not every civilisation bound to decay as soon as it begins to penetrate the masses?

That question may have been unfashionable, but the crash of all decency and fineness around populists like Trump makes it very urgent.

What about that other accursed ‘–ism’, nationalism?

Whether the relationship was large or small, the basis for the emotion embodied in ‘natio’ was the same everywhere: the primitive in-group that felt passionately united as soon as the others, outsiders in whatever way, seemed to threaten them or to rival them. This feeling usually manifested itself as hostility and rarely as concord. The closer the contacts the fiercer the hate.

Does not what Huizinga called this ‘great ethnic antithesis’ underlie the rise of people like Farage, Hansen and Trump?

The Crusades, far from uniting the faith that was divided by language dissent and allegiance, reinforced the national enmities of Latin Christendom by bringing those peoples together again and again in martial equipment, battle array and a more or less sanctified rivalry…. A Frenchman remarkably observed that the French tend to behave themselves intractably among foreigners if they are not kept well in hand.

And as France, Russia and Germany showed, a revolution just makes things worse.

Then came the Revolution, when the mouth still called out for the universal good of virtue and love of mankind, but the mailed fist struck for the fatherland and the nation, and the heart was with the fist. The factors ‘patrie’ and ‘nation’ had never before had such an intense influence as in the years from 1789 to 1796. That fact merely confirms that nature constantly proves stronger than theory. …. But as soon as one sets out to formulate the rights of man, the state appears to be required as the framework for his society.

That process reached frightful apotheoses under Napoleon, Stalin, Hitler, Franco and Mao. But the author goes on:

Since Montesquieu, it had become a doctrine that liberty was born in the forests of Tacitus’ Germania, and that England’s political institutions had developed from that soil of that Old Germanic freedom. France too had accepted the doctrine.

So had F W Maitland, but are we talking of doctrine or myth? Whatever the answer may be to that question, this book seethes with insights like these. This is not just learning or scholarship – this is wisdom of a kind that we so rarely see now.

France and England Compared

29/05/2025 / Geoffrey Gibson / Leave a comment

The Lectures on Foreign History, 1494 – 1789, by J M Thompson (see below) may be the most read history book on my shelves. It fills in a lot of holes, but I want to set out some observations of the author in the final lecture on the events leading to what is known as the French Revolution. They illuminate major issues in the history of England that, in my view, still set us apart today from the U S.

French writers, unlike the English originals, had no practical experience of politics, and had not experienced a revolution. ‘They tested their politics not by the experiment of self-government, but by the uncertain analogies of Greek and Roman history’. Here is the age-old divide between the love of theory over the channel and the commitment to hard experience by the Anglo-Saxons. It is fundamental and too little noticed.

Dr Johnson was cryptic about class and hierarchy. ‘The great in France live very magnificently, but the rest very miserably. There is no happy middle state as there is in England.’ This too is fundamental. He might have added that the English aristocracy paid its way, in more ways than one, while the effete French refused point blank and got blotted out for their trouble. While the English nobles in the 17^th century joined with what the French called the bourgeoisie to bring the Crown to heal, the French nobles indulged in the Fronde, which delivered the Sun King and an absolute monarchy that a Tsar might have marveled at. There is a chasm of difference between the two nations.

When the French Revolution came, its first practical reforms followed the English model, but its abstract Declaration of Rights was borrowed from America. There lay just the difference between the two.’

A ‘mixture of arbitrariness and impotence was the tragedy of Louis XVI’s government.’ That is spot on – in every page of Carlyle.

The French were nothing like a unified nation with a uniform law – that England had been building at least since Magna Carta in 1215. (Before they achieved Home Rule for religion in 1534.) Voltaire remarked that ‘you changed your laws, your horses, at every stage of the road’. (He also accused his countrymen of being ‘so full of vehemence, so free of depth.’)

‘Unjust taxation, because the privileged classes were largely exempt, and the wealthy could afford to compound with the tax-collector, whilst the poor and underprivileged were fleeced in proportion to their apparent means – one must either be very rich, or pretend to be very poor.’ This is another fundamental difference between the two hierarchies, and the world’s richest man now, in a rare lucid moment, might glimpse the truth of the real world.

‘Social disunity, then, and social unrest were the most fundamental causes of the Revolution. The order of social privilege should correspond to the order of social service; in eighteenth century France the one exactly inverted the other.’ (My emphasis.) I have always been leery of the phrase ‘ruling class’, but the above seems to be a fair description of the U S ruling class now, especially the revolting robber barons intent on obliterating – with a chain saw Texas and Deliverance style – as much of the order of social service as they can lay their polluted mits on.

This leads to the grand finale. Speaking of England, Dr Thompson said that the ‘political spirit of the eighteenth century was based not on the equality, but on the harmony of classes. Poor and rich together took a patriotic pride in ‘our free constitution which they continually contrasted with the slavery of continental countries’. …. What prevented revolution in England was the social duties of the rich and of the political rights of the poor: it was the absence of this recognition which made the French Revolution inevitable. Liberty does not depend on the institutions of a country, but upon the spirit in which they are administered. Democracy is not a constitution, but a state of mind.’

‘It is as difficult for a nation to change its character as it is for an individual’.

These are piercing insights. As

it happens, the three passages I have emphasized represent just about all I have learned in seventy years of looking at the past. The French term is noblesse oblige, and what counts is a state of mind. If the descendants of slave driving Puritans ever had it – which I doubt – they have certainly now spat it out. And they have done so with their eyes wide open and their minds utterly closed.

The following note is from A Curated Library.

LECTURES ON FOREIGN HISTORY 1494 – 1789

J M Thompson

Blackwell, 2^nd Ed, 1944, rebound in half claret leather with cream label.

The author wrote extensively on the French Revolution. I have read and enjoyed everything he wrote on that period. A tutor at Cambridge understood my respect. He said that the author wrote at a time when style mattered.

James Matthew Thompson lived between 1878 and 1956. His father was an Anglican priest. He studied theology and philosophy at Oxford and was ordained in 1903. In 1906 he became Dean of Divinity at Magdalen College, Oxford. He challenged orthodoxy, and resigned as Dean in 1915. After the war, he returned to teach history. The lectures in the present book were delivered to first year students during the winter terms of 1921 to 1924. The book of those lectures was first published in 1925. It may lack the complete style of the later works on French history, but it is wonderfully assembled and crisp, and it fills in many holes in the historical knowledge of those who go straight from the Renaissance and Reformation to the French Revolution.

In the Preface, Thompson says that ‘the essence of history is not the learning of facts, but the judging of evidence.’ In the first chapter, he puts that another way.

You don’t study history to learn historical facts, but to acquire historical judgment. It is not learning that makes a historian, but discernment.

That is rolled gold. Two pages later, we get: ‘Politically speaking, England in 1494 is already 400 years ahead of the rest of Europe’. That proposition is not just English hubris.

Since the eleventh century it has been virtually one country under one king – a condition that France and Spain are only just reaching, and which Italy and Germany will not reach for another 400 years. It has the only effective parliament in Europe, and the only limited monarchy which remains limited during the seventeenth and eighteenth centuries. Its kings have suppressed the arbitrary power of the nobles without transferring it to the crown. By losing their continental possessions, they have learnt the uselessness of foreign conquest. England in 1494 is peaceful and orderly, and the richest country in northern Europe.

And that’s without mentioning Magna Carta, the common law, habeas corpus, the Inns of Court and the judiciary, or the fact that England would shortly repatriate its church – which would further distinguish itself from Europe, even the Protestant parts.

The cannons of the King of France were inscribed Ratio ultima Regum – ‘the final argument of kings.’

Anyone could learn to fire a gun, and one gunman was almost as good as another. Armies grew bigger. Disciplined masses took the place of erratic heroes. The business of raising and arming troops passed from the feudal lord to the professional soldier, and from the professional soldier to the State.

An Anglican divine may have something to say about the Reformation.

It is always a difficult question, how far it is proper to receive wages for religious work, or to exact payment in return for spiritual privileges. But all conscientious men feel (and they felt the same in the sixteenth century) that it is wrong to make a profit out of religion.

What would the Mormons now say?

It was not merely the demand for books, or the interest in theology, which secured Luther his circulation; but also his style. Michelet compared it to a mixture of Moses and Rabelais [!]. The upshot of Luther’s teaching was to dethrone the Pope and enthrone the Bible. Authority was not destroyed; it was only transferred. Orthodoxy was not impaired; it was refounded on the Scriptures.

You now see why style matters.

You might then wonder on the benefits of a marriage between Germany and Luther.

The lecture on the Netherlands Revolt from Spain is riveting.

Politically, the Revolt leaves all Europe in debt. The success of the northern states gave ‘the right of citizenship to revolutionary principles.’ For the first time since the organisation of the New Monarchies, a whole people had claimed and won its independence…. the Netherlands Revolt was a striking instance of the political results of the Reformation. It showed that Protestantism could give not only the desire for political freedom, but also the resolution to achieve it

As to the Sun King, Louis XIV, French historians believe that in a single generation, six millions of people died of want. The author quotes Acton:

It would be easy to find tyrants more violent, more malignant, more odious than Louis XIV; but there was not one who ever used his power to inflict greater suffering or greater wrong.

Louis XV? ‘…. he was one of the most evil men who ever occupied a throne.’

What is the upshot?

…. we cannot fail to be impressed by the strength of nationalism, and its claim to be the ruling principle of political science. This is the first lesson of modern European history; and none is more necessary nowadays; for it explains the disaster of 1914 – the nemesis of nationalism…

Those remarks were indeed prophetic in 1924. The worst of nationalism was yet to come. It is crude nationalism that now undermines the United States and is undoing the European experiment.

There are times when I think that my fondness for this book, and books like it, is about on a par with my fondness for footy. This book is a must for those who want to try to understand where we have come from and where we may be going.

And it’s worth getting for the Michelet quote on its own. Moses and Rabelais! From a sometime divine.

All’s Well That Ends Well Revisited

13/05/2025 / Geoffrey Gibson / Leave a comment

This is one of my very favourite plays. The other night I played for the first time the 2011 Globe production in a set of the comedies put out by Opus Arte. It was a serendipitous choice.

I really enjoyed the show. I see from the extracts below of my note in Windows on Shakespeare that I thought the Countess was a great role for a leading lady getting on. Janie Dee at the Globe was perfect – fresh as a daisy – and she knows it. She oozes West End sexiness – at altitude.

And the relief and redemption of Parolles – a victim of caste – is a very moving and under-rated part of this playwright’s output.

The final resolution is not quite as good at the Globe as in the BBC version – they dropped a critical line – and the performance of Michael Hordern does stay with me. Otherwise, James Garnon was right up to Parolles. He and the Countess are for me the two leads. That view may be said to be idiosyncratic.

In the end, Lafew tells Parolles – ‘Good Tom Drum’ – he will ‘make sport’ with him at home. It is just like Claude Rains saying ‘This could be the start of a beautiful friendship.’ It’s as if Lafew can not only smell onions, but see that all the world is but a stage.

And it is a reminder that plays are meant to be seen and heard.

Perhaps not enough attention has been paid to Helena’s introduction of Parolles in the first scene:

And yet I know him a notorious liar,
Think him a great way fool, solely a coward.
Yet these fixed evils sit so fit in him
That they take place when virtue’s steely bones
Looks bleak i’ th’ cold wind. Withal, full oft we see

Cold wisdom waiting on superfluous folly.

If we parse the difficult ending, we may get something like: ‘In the cold light of day, it is often hard to do the right thing, but we often see that those at the bottom of the ladderdo better than those above them.’ Chivalry had been a target – why not mere gentility? Good grief – it would all sound downright Bolshie at 36 Collins St.

This production is an English gift to the world. I have been fortunate to see six of the plays at the Globe, but All’s Well is I think the only play of the thirty-eight that I have not seen on the stage (allowing that the three parts of Henry VI were condensed.) This production may close that loop.

I could not think of a better introduction to William Shakespeare for children than this Globe production – not least because the cast take their bows in dance form to a cheering audience who had been with them all the way.

And each of the BBC and Globe performances can be bought singly on Amazon. I recommend both warmly.

And anyone who can trace the Shaw quote below will get a box of Jaffas (not to roll down the aisle at the flicks).

ALL’S WELL THAT ENDS WELL – A TALE OF TWO CADS
It is always the Conservatives who stop behaving like gentlemen first.
(G B Shaw)

When an officer and sometime gentleman dumped on the late Princess of Wales, The Times newspaper published a column that concluded by saying that the system had flushed out ‘an absolute shit’. That is a more earthy and more general way of saying that he was a ‘cad’ or ‘bounder’ or ‘rotter’. We have a perpetual interest in this type of figure because it involves a failure in one of the better people, and that gives a degree of comfort to a lot of the rest of us. …. All’s Well that Ends Well has two different types of cad, Bertram, the Count of Rousillon, and his follower, Parolles (a variant of paroles, French for ‘words’). The play involves three themes well known in legends and fairy tales: the healing of a sick king; the completing of the hero of impossible tasks to achieve vindication; and the ‘bed trick’ – someone being duped into sleeping with someone other than the person they thought they were going to bed with. At least some might be precluded from denouncing the bed trick as an impossible fairy tale, because we first see it in Genesis between Jacob and Leah and Rachel……

We have, therefore, two cads. Let us look at the difference between them. Bertram is a spoiled brat……He has the magnificent incapacity of the egocentric to see that another person may be involved. He can think only of himself. He has little or no imagination. The snobbery is not the problem. It is not a question of class, but of caste….

No, the problem is that Bertram is all give and no take. He accepts the benefits, not the burden noblesse, yes; oblige, no. Bertram is the herald of the collapse of the aristocracy……

……..Parolles would have been the final nightmare for Mistress Quickly– he is the definitive ‘swaggerer’…….He is relatively harmless. There is not much malice in him. There is not much of anything there. He just comes and goes like an autumn leaf, but he can only address his betters – nearly everyone– in terms of fantasy. He is a permanent prisoner of fantasy land because he was not born able to cope with the world as the rest of us see it. …. Cads who come from a privileged background have so much more to answer for than cads who have never had a chance.

……. But Parolles knows he is skating on thin ice. ‘They begin to smoke me, and disgraces of late knocked too often at my door. I find my tongue is too foolhardy.’ (4.1.28-30) When the balloon goes up he is ‘thankful’.

… Captain I will be no more
But I will eat and drink and sleep as soft
As Captain shall. Simply the thing I am
Shall make me live. Who knows himself a braggart,
Let him fear this; for it will come to pass
That every braggart shall be found an ass. (4.3.346-351)

The second difference is caste. Bertram is a noble; Parolles is a nobody…. For a lot lesser failing, Parolles is utterly cast out, and returns to Court unrecognised as a beggar. One cad is humiliated and crushed; the other cad is forgiven and pampered – and told to come back for more. Bertram likes to see himself as a victim; Parolles doubtless is one.

This is where this play gets its real edge – in the benefits and burdens of caste – and this has not been sufficiently noticed. The kindly old Lord Lafew (wonderfully played by Michael Horden for the BBC) regularly reminded Parolles of his lack of substance. He does not recognise him on his return. There is a most affecting scene……

This is very high theatre. This broken wreck of a nobody is taken up by the informed charity of an older man who is a member of the real nobility in a way that would have been unthinkable to Count Rousillon or his mates. ‘Give me your hand. How does your drum?’ The simplest words are usually the best, not least with this author.

…. While Coleridge thought Helena was ‘Shakespeare’s loveliest character’, Shaw thought that the Countess was ‘the most beautiful old woman’s part ever written’. The Countess is a great role for great actresses in the autumn of their careers. You can listen to Edith Evans or Celia Johnson in the BBC production. They supply a marvellous blanket of humanity on the rough and nervous edges of the men. The 2009 National Theatre production was a little too twee for some; you feared that Puss in Boots might jump Little Red Riding Hood.

……. Here, then, is a comment on the class structure – if you like, the aristocracy– that looks forward to the protest in The Marriage of Figaro; and the sterner protest in the French Revolution. Just as directors and audiences have altered their perspective on Malvolio and Rigoletto, now it may be time to do so with Parolles……. Perhaps it is just a matter of time until some impious clown suggests that this ratbag Parolles may be a more substantial character than that ratbag Falstaff. Such a promotion of Parolles would not be without precedent – of the highest order. Royalty. Falstaff may have been the favourite of Queen Elizabeth, but Charles I substituted Parolles for All’s Well as the play’s title in his copy of the Second Folio.

This is a very entertaining night at the theatre. We go to the theatre to be entertained, and also to sit and look down upon ourselves, and come out later with hopefully just a little more light inside than when we went in. From any other playwright All’s Well would be saluted as a great play– and it is a great play, because it affords us a lyrical insight into the way we are.

And let us hear no more of ‘problem’ plays, the subject of a Cambridge weekender. Troilus and Cressida is too long, and its main characters or ideas are either boring or out of fashion. But All’s Well and Measure for Measure are not ‘comedies’ as we know that term. They are plays written with an edge that is just right for modern audiences and written by a great playwright when writing at the height of his powers. We do not need to have them spoon-fed to us as fairy tales. That is about all that they were before this genius got his hands on them.

This is not a card game (Volodymyr Zelensky)

04/05/2025 / Geoffrey Gibson / Leave a comment

Politics and politicians are on the nose in countries that like to call themselves democracies. This is especially so in countries like ours that have adopted a version of the English two party system. Failings in that system have led to what are called ‘populist’ movements in the U S and U K. By and large, we have escaped that curse here.

The main reason may be that we just can’t be bothered, but our failings are different to those in the U S or U K.

For the non-partisan observer, it is hard to tell what is the difference between the platforms of the Liberal Party and the Labor Party. Any differences are matters of degree only, and not of kind. That is unhealthy, because it creates the impression that neither stands for any distinct difference in principle.

Very few sane people want to pay more tax or get less benefits from government in return. The trick is to balance the two. People whose jobs are on the line at each election may not be the best at handling that trick. What is entirely clear is that the leaders of both parties have been well and truly frightened off taking a stand as a matter of principle.

But the reaction here has not been the rise of populism. That embarrassing flash in the pan has been largely contained here, notwithstanding some dropping of the guard by some vote-chasing Liberals. (It is called ‘dog whistling’.)

We have reacted by electing principled independents. Who happen to be women. Who then raise the question – are they just better at this than men? (In my view, they are.)

In the election just held, I could not bring myself to vote for either major party, because in my view each has been guilty of a moral failing in not responding to the vice of advertising gaming on sport. Since I am in a safe seat with no independent, and I could not care about the Senate, my time in the booth was as useless as it was short.

Every now and then, the two-party system produces a leader who is prepared to take a position, and fight for it, on an issue of principle. Margaret Thatcher and Paul Keating come to mind, but not many others – and you need to take care where you drop either name.

It is axiomatic that the two-party system is only as good as the two parties. A weak opposition will lead to bad government. We are acutely aware of this in Victoria, and must now look for it federally.

The election just held was a disaster for one party – and therefore the rest of us. The Liberal Party is now so weak, and seen to be both weak and unprincipled, that it may not be able to discharge its function in opposition of keeping government on the rails. As Philip Coorey remarked, you cannot engage in soul searching if you have no soul. We here in Victoria may be just as badly off in federal government as we are in state government.

In my view, the Liberal Party finds itself looking into the void because it has no defined world view, and it has failed to discharge its obligations as the party of His Majesty’s Opposition.

That fine English historian Dr J M Thompson stated the role of opposition parties as follows:

… an Englishman …. has been trained to exercise his party spirit in the game called the Party System; and among the rules of that game – not always observed [1929] as they should be – are the obligation to sink personal differences in party loyalties, not to criticise your opponent’s policy unless you have a better one that you are prepared to carry out yourself, and in case of national crisis, to help rather than hinder whatever government may be in power. But party politics in the French Assembly meant a very different thing….so majority legislation might be merely partisan, and minority criticism merely destructive and irresponsible.

You don’t criticize the government until you have a better policy, and you do not get in the way in a time of national crisis. That is not statesmanship, a word that now dies on our lips. It is common sense and common courtesy.

We are in a time of national crisis of a kind that some call ‘existential’ with the climate. The then Leader of the Opposition said he could not comment because he was not a scientist. That was downright silly, but it did entail that the issue is one to be resolved by scientists, not politicians. It should never have been a party-political issue – on which the Liberal Party delivered raw tripe, and looked to be in thrall of a very rich lady who has bought a think tank just for herself.

Nor should the treatment of the First Nations have been allowed to degenerate into a demeaning party-political squabble. It was far too important for that. The referendum was called as part of government policy carried at election, and the opposition knew that history showed it would fail if they opposed it. So, they did, and with fear and deception. The result was in my view disgraceful, and the worst failing of governance in Australia since the Dismissal in 1975. Those calling it a win remind me of Douglas Jardine on Bodyline. As the poet said, ‘out went the candle and we were left darkling.’ Round up the usual suspects; as it happens, the same Born to Rule crowd that sends us to war on false premises.

Now they have paid the price.

But it is obvious that we are all worse off. The Murdoch crowd have form for being bad losers (as of course does their American idol). They pout and they sulk, and one lady looks like her soul has left her body. Then she and the booster in chief last night joined hands to proclaim that they had not fought enough culture wars, and that the referendum was one culture war they had won.

What was really sad is that they did not see this as a confession. And they forget that the Anglo-Saxon peoples distrust intellectuals and ideology. (Name one nation that has benefited from either.)

The two-party system of democracy is like our adversarial system of litigation. It involves a contest, but it is not a game. And these people do not just fail by treating it as a game, but they play the wrong kind of game – they play poker, when what is needed is the demurer contest of bridge.

In truth, they have been sucked into what might be called the ‘McConnell Model’ of opposition. Just oppose everything the government proposes. Put a spoke in the wheels of government. And then let the government feel the wrath of the people. Then it will be our turn again to hand out the goodies, and the folks at home will get what they deserve.

What could be simpler? It goes down a treat in Africa.

The independents are alive and well. The minor parties – the Greens and One Nation – in my view deserve each other and their decline.

As it seems to me, we are beginning to transition away from the two-party model to the European. It is hard to see how we could be worse off.

So, what is the answer? Simple, Mate. Turn the footy back on, and then go back to sleep.

Passing Bull 406 The Madness or Badness of Truth

02/05/2025 / Geoffrey Gibson / Leave a comment

Karoline Leavitt may be the most frightening performer in the Washington freak show. She was riding shotgun in a press conference for Mr Bessent, who looked and sounded like a totem pole. He was asked about Amazon’s listing the price of tariffs on delivered goods. She intervened to say that this action of Amazon was ‘hostile and political.’

So, that’s what you get for telling the truth. But why would the President not want the truth of his gospel to be spread like wild fire? He says tariffs are money for jam – they may make income tax unnecessary.

As usual, the answer was nonsense. Why did not Amazon give Biden the same treatment? This assumes the treatment is harmful, and it also trashes the nation.

If the CEO of BHP said the company had been trashed over four years by its worst CEO ever, he would be sacked and sued.

But not in the bastion of capitalism.

Passing Bull 405 The Maverick

29/04/2025 / Geoffrey Gibson / Leave a comment

Joye has a column in the AFR – The Maverick. I don’t read it because I think the author is odd. But my eye did fall on a note at the weekend extolling Trump and his tariffs. ‘What he really displayed was sublime decisioning…. Trump then shimmied into a genius pivot.’

Put to one side the rape of the English language. This is deeply disturbing from a man who advises people about investments. The paper tells us he ‘is a portfolio manager with Coolabah Capital, which invests in securities, including those discussed in his columns’. So, we are all on notice.

But as I understand it, Trump claims the legal right to impose tariffs in an ‘emergency’. That is flatly inconsistent with shimmying them into a genius pivot.

Insults and outrage

20/04/2025 / Geoffrey Gibson / Leave a comment

The longer I live, the more I think that all I know about the law can be found in Holmes, The Common Law and Pound, The Spirit of the Common Law. It was with some relief in these dark times that my eye today fell on this passage from the former – ‘the original Roman law dealt with injury to the person under the head of insult’. What balm to a beleaguered mind and psyche.

My red leather-bound version of Buckland, A Text-Book of Roman Law, Cambridge, 1921 runs to 756 pages. You don’t get learning like this any more – even at Cambridge. The subject of delicts (our torts or civil wrongs) occupies just 27 pages. Its treatment on Injuria covers only four pages, but it does look to me to be clearly ahead of our law.

Buckland tells us that as a ‘special delict,’ inuria, meant contumelia, insult or outrage. This wrong rested not on economic loss, but on outraged feelings. The plaintiff had to claim the nature of the inuria complained ofand the damages he claimed.

Convicium involved public insult. The wrong consisted of –

outrage or insult or wanton interference with rights, any act, in short, which showed contempt of the personality of the victim or was of a nature to lower him in the estimation of others, and was so intended. All that was needed was that the act be insulting in kind and intention, and unjustified.

Well, there is law stated crisply. And students of the history of our law will see immediately the connection between this wrong and the primal common law action for trespass. The conduct complained of is precisely that which can lead to a duel – or a breach of the peace of the king. And that goes to the core of the history of our common law.

Let us look at what the language of the Roman law entails for us in English – with just the Compact OED. To ‘insult’ someone is to speak to or treat them with ‘disrespect or abuse’. ‘Contumely’ involves ‘insolent or insulting language or treatment.’ ‘Insolent’ means ‘rude or disrespectful’. ‘Contempt’ means ‘the feeling that a person or thing is worthless or deserves no respect at all’.

All that sounds to me so appropriate to describe what so often happens when we the voter or customer deal with a government department or major trading corporation like a bank. We feel like they have been rude and abusive and shown us no respect – we have just been used in a way that involves abuse. Have we no worth at all?

And under the law of ancient Rome we might have been able to sue the offender. ‘All that was needed was that the act be insulting in kind and intention, and unjustified.’

Some here speak wistfully of a tort called, say, ‘outrage’. There is no such thing. The closest we come is that damages may be increased in order to punish the offender – that is, in order to deter them from repeating their misconduct.

Those damages at common law are called ‘punitive’, and they sit oddly as part of our civil law. But in order to claim that remedy, you must be able to point to an established category of wrong – and we do not have a wrong of insult or outrage.

I very much doubt whether the courts now can develop that law, and our parliaments should give some thought to it. It looks to me to be worth considering when you look at the bruising failures of courtesy and civility all around us. Any such remedy could be reserved exclusively for major government or corporate targets who are in a position to take steps to improve their conduct in the future.

It could do the world of good to the CBA, Qantas, Telstra, Foxtel, Centrelink and the like – bodies that send shivers down the spines of the rest of us. A good hard smack occasionally could do a power of good.

Passing Bull 404 – No laughing matter

10/04/2025 / Geoffrey Gibson / Leave a comment

When Trump was re-elected, The New Yorker went into mourning. The agony was increased when he announced his cabinet. As Thomas Friedman reminded us in The New York Times, if you pick clowns, you will get a circus. But when it came to tariffs, you had also to fear what may happen when little boys play with matches.

The New Yorker’s editor made another point. Trump has no sense of humour. You never hear him laugh. But he is terrified at being laughed at. Do you remember his glacial anxiety when Obama made fun of him in public? On the hilariously named Liberation Day, even celebrated in the Gulf of America, Trump said up until then the joke had been on ‘us’ – now the U S could laugh at the world. Until Trump discovered what Friedman called ‘the art of the squeal.’

The United States – Ideology, and a Failure of Governance Since 1776

08/04/2025 / Geoffrey Gibson / Leave a comment

Law is a priestly craft…. Societies are not transformed…They evolve…. although abstract thinking matters, it contributes less to the development of societies than instinct and experience. (Jonathan Sumption, The Challenges of Democracy)

The white people who occupied America were religious zealots who had a covenant with their God. This enabled them to treat their Promised Land as a source of profit so that their God would never stand between them and the dollar. It also meant and that they could treat the original inhabitants of the land in the same way those who had first occupied the first Promised Land had been treated in what they called the Holy Land. The union of God and the dollar was complete from the start. You see it on their currency. Then they further debased their humanity by introducing slavery. They have never recovered.

They revolted when the mother country said they should pay their way. (It was a spoiler for what the United States now says to Europe.) The War of Independence was in part a savage civil war that England’s traditional enemy, France, bailed them out of. (And in so doing, bankrupted themselves and brought on their own revolution in 1789. It is an open question whether France has ever recovered.)

The issue of slavery led to another civil war, this time one that was far more brutal. Lincoln saved the Union, but too many white Americans have never accepted the verdict.

The still divided nation came late into two world wars, but the Great Republic finally found its heroic place in the world by leading its reconstruction after World War II.

Sadly, it has not won a war since, and a line of mediocre leaders and bruising inequality and racial insecurity has led to a government intent on repudiating most of what was decent in its past. The United States is withdrawing from the world and forfeiting all trust.

What went wrong?

I Deception and ideology from the start

The Declaration of Independence of the United States was of, by, and for, white men, and not men of any other colour. Opinions were asserted in 1776 that would find no place in America more than two hundred years later.

The Indians were written off as savage mass murderers: ‘He [King George III] has incited domestic insurrections amongst us and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions.’

So, an entire people is dismissed, Old Testament style, by reference to race. It may remind some of incidents in the Holy Land today, and whatever else might be said of Indian war-making, they did not have the same means for dealing out death that their enemies had – they were for the most part just trying to protect their own people and land; and no one could ever accuse the Indians of genocide. This, I think, is what psychologists refer to as ‘projection.’

The reference – or, as the Declaration was issued, the lack of reference – to African Americans is no better. Jefferson had drafted a clause making the fatuous suggestion that the English – well, they said King George III – had instituted a trade of slavery, frustrated attempts to stop it, and then excited the blacks to rise up against ‘us’ – and ‘we’ were by implicit definition white.

All this is expressed in the most colourful language: ‘He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the person of a distant people who never offended him.’ ‘This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king …. He has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce ….’ And so on. Mercifully, Congress struck all this nonsense out. But they left as it was the phrase ‘all men are created equal’ and that statement was, to their certain knowledge, untrue in their minds.

Well, this evasion, if that is the term, on the subject of slavery might be expected from a slave-owner from the largest slave-owning state. But what was not to be expected was the lack of candour on the causes of the revolt.

The American Declaration of Independence tracks the form of the English Declaration of Rights. It records the conduct complained of to justify the termination of the relationship. (This is what common lawyers call ‘accepting a repudiation’ of a contract.) The English did so in short, crisp allegations that were for the most part devoid of the oratorical colour that we find in the American Declaration. (The first draft was prepared by a junior barrister, John Somers – whom no-one has heard of.)

How does the American Declaration of Independence go about this process? Before it gets to an allegation that the king maintains standing armies, which is a relatively specific charge, it made ten allegations of misconduct that were so general that they would not be permitted to stand today as an allegation of a breach of the law on a conviction for which a person might lose their liberty. The fourteenth allegation, which is hopeless, but which appears to be an attempt to invoke the English precedent, is that: ‘He [King George III] has abdicated government here.’ (During the English revolution in 1688, James II had fled, throwing the Great Seal into the Thames.)

Then there is the fifteenth allegation: ‘He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.’ If that allegation of plunder and murder – the old word was ‘rapine’ – had been seriously put, you might have expected to see it before an allegation of abdication – and before every other allegation. The eighteenth allegation relates to the Indians. The nineteenth was the allegation relating to slavery and which was struck out. Those drafting the Declaration were not evidently keen to get down to the subject of people of another race. Or tax.

Let us put to one side that all these allegations are made against the Crown, and not the British government, and that none of these allegations refers to any statute of the British government. There is no history of the American Revolution that has been written that says that the American colonies revolted from their subjection to the British Crown for any of the reasons that are set out in the eighteen clauses of the Declaration of Independence. The primary reason that history gives for the revolt of the colonists was the imposition, or purported imposition, of taxes upon them by the British parliament – when those who were being taxed had no direct representation in the parliament levying the tax. Most divorces are about dollars, and this one was no different.

But British taxation is only mentioned once in the Declaration of Independence. That reference is fallacious. It is against the King. The Glorious Revolution made it plain that the King could not impose a tax in his own name. (The only reference to the English legislature comes when those drafting the documents scold the English for ‘attempts by their legislature to extend an unwarrantable jurisdiction over us’). Given that the 1688 revolution secured the supremacy of the English parliament over the English Crown, and made it transcendentally clear that only the English parliament could levy a tax on its subjects, it may have seemed a little odd for Jefferson to be suggesting that the American colonies were somehow subject to the English Crown, but not to the English parliament. ‘Jurisdiction’ is a word that has come to bedevil American jurisprudence, and it looks like the problem may have started very early.

Tax is one price of membership of a commonwealth. It is inherent in the language of the ‘common weal.’ A childish resentment of that brute fact of life has disfigured the Great Republic since its birth. And it reached its apogee under Trump and his rich mates.

The American Declaration of Independence is therefore of limited historical value in explaining why the American colonies proceeded as they did, or what values of humanity they proposed to pursue in their future. The tragic truth is that the barefaced lie about slavery would haunt the young republic until it was thought to have been expunged by the death of more than six hundred thousand Americans in the Civil War, and by the moral courage, intellectual genius, and cool hand of Abraham Lincoln, the one unquestionable gift of the United States to humanity.

Then, one of the great tragedies of the Union is that the South did not in substance accept the verdict of the Civil War.

The new republic was born under cover of deceit, and a many splendored deceit at that.

2 Failure of responsible government

Australia adopted the Westminster System of government from the English. As its name suggests, the English invented it. And the one fundamental of our (Australian) jurisprudence is that the English common law is the source of the authority of the Parliament of Westminster. The Westminster System was in large part in place by 1776, when the American colonies seceded. They deliberately declined to follow it – which is not surprising given the lethal enmity between the two sides.

For us, government is seen to come in three parts. The Parliament makes the laws. The executive branch carries them into effect. And the judges rule on any disputes about the working of the laws.

The king is in theory the head of the executive, but there are four parts of the Westminster System dealing with the working of the executive that are fundamental to our notion of ‘responsible government’. And an essential part of that is that the de facto head of government, the Prime Minister, and the rest of the Cabinet and ministry, sit in Parliament and are answerable – responsible – to Parliament. Having the head of government outside Parliament is barely comprehensible to us. (As would having a CEO of a public company not a member of the board of directors – at least in the way that Australian and British corporations trade.) The System provides as follows.

First, the king only acts on the advice of his Ministers.

Secondly, those Ministers – some of whom comprise the Cabinet – must have the confidence of the Parliament – and they must resign if they do not.

Thirdly, there is a permanent non-political civil service chosen and trained to give effect to the wishes of government, the members of which are under the supervision of a Minister – the Ministers of course being the members of parliament and who have the confidence of parliament.

Fourthly, the Ministers are responsible to the Parliament for the working of the civil service under them. If the civil service makes a mistake that cannot be dismissed as trifling, the Minister must account to Parliament for the error – and depending on its gravity, either apologise or resign.

That at least is the theory. The last is at best wobbly for us now, but you see immediately just how different things are in the U S. Since this point about responsible government is central to this paper, it may be as well to set out what A V Dicey says:

….it is now well established law that the Crown can only act through Ministers….who not only become morally but legally responsible for the legality of the act…. Hence, indirectly but surely, the action of every servant of the Crown, and therefore in effect of the Crown itself, is brought under the supremacy of the law of the land.

This would cause wild surmise in Washington. Would it be possible for someone with the history of Donald Trump to head a government in Australia? Would it be possible for something like the collection that Trump calls its cabinet to be installed in Australia? Either idea is absurd.

Perhaps because in 1776 the U S was moving away from a monarchical government, its constitution invests much more power in its president than do similar constitutions where the monarchy is retained. But the Founding Fathers had a taste for ideology that they certainly did not get from the Mother Country. The English have no taste for theory or doctrine in the common law or governance. They look only at experience, and ask the simple question: Does it work?

The English constitution turns on the legislative and political sovereignty of parliament. The parliament makes laws and ministers must respond in parliament for the formation and execution of policy. The United States does not share that notion of ministerial responsibility. Its ministers are answerable to their president not to Congress. That to us savours not of 1776 but 1576 – when the nobles in the ministry answered not to parliament but to the king.

Something in the air in the last part of the eighteenth century lead the secessionists to think more like the French. Does our scheme accord with our ideology? Must we not follow the dogma of Montesquieu and avoid any infringement of the doctrine of the separation of powers?

In the result, the president does not have to answer to Congress in person, but now may be confronted by a hostile Congress which is bad for both the efficiency of government and the faith of its citizens in the workability of government. McConnell and others ruthlessly exploited this weakness against the first black president, and the U S is now held up to world ridicule on a regular basis by being shut down. Congress effectively takes strike action – against those who put them there and the institutions they are sworn to uphold.

There is a related problem of the president not being in the parliament – neither is the leader of the opposition, because there is no such office. This does not conduce to honesty or sense from the party not holding presidential office. Since neither party is hardly allowed even to mention the word ‘tax’, the result is a sustained divorce from reality that is not healthy and that cannot last.

As we speak, the absence of a formal Opposition to a president trampling on law and custom poses a direct threat to the U S polity. We see it as essential to the principle of parliamentary control that ministers sit in parliament and answer to it. That has never been the case in the United States. If you said that Trump and his Cabinet were out of control, or simply not responsible, you might be uttering a legal truism. What, if anything, has Congress done to control President Trump or make him responsible to it?

3 Failure to provide for peace, welfare and well-being

We see our common law coming from England as having started about when the king sought to replace the vendetta with an action to protect the peace of the king. Instead of leaving it to the family of the victim to extract revenge from the family of the accused, the king proceeds in his own name against the person accused. He, most usually, was charged with having acted contra pacem regis vi et armis (‘against the peace of the king by force and arms’). It was now the function of the king to deal with crime. As steps forward go, this may be on par with the discovery of fire or the invention of the wheel.

Later, the role of government would be extended to providing for the welfare and well-being of the community. Matters of health, education and age would no longer be left to the family, the church, charity and the community, but to government itself.

If you asked most Australians or Canadians or New Zealanders if they would prefer to live in the U S, your best result may be a funny look. If you asked them to say what are the grounds of your hostility, you might reply – guns and medicare.

Then, you might say that the very first sentence of their Constitution reads:

‘We the People of the United States in order to form a more perfect Union, establish Justice, ensure domestic Tranquillity, provide for the common Defence, and general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity ….’

Well, since we the people outside the United States think that they have failed to ensure domestic tranquility by their gun laws, and that they have failed to ensure general welfare by their other laws, or absence of laws, dealing with the poor and health care, what went wrong?

I will not here rehearse my reasons for saying that the relevant rulings about guns of the U S Supreme Court were sadly unsound in history and at law. Not the least disturbing thing about Heller was the judicial giggling about a national tragedy, and the cavalier rudeness and malice shown by the majority to those of a different mind. This misbehaviour simply should not be seen or heard in a court of law. And when it comes to being rude, the ‘conservative’ justices are anything but conservative.

But I must say something about the failure of the United States to provide adequately for the welfare of its citizens.

When we speak of the kind of the community that we want to live in here in Australia, we tend to mention notions like a belief in human worth or dignity, universal rights, the prospect of each of us being able to flourish, the government needing our consent to act against us, and a subscription to the notion of the rule of law that gives us reasonable prospects of protecting those rights.

Some apply the term Liberalism to this bundle of values. The Americans spoke of inalienable rights to ‘life, liberty, and the pursuit of happiness.’ Others might prefer the more emphatic statement of the Germans at the start of their constitution: ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’

No, we speak of dignity in the sense of intrinsic worth – a word Kant invoked in discussing his ‘principle of humanity.’ The first meaning of dignity in the Oxford English Dictionary is ‘the quality of being worthy…worth…desert.’ We speak of that worth being intrinsic because we see it as deriving from the fact that we are human – and nothing more.

But in one way, ‘dignity’ may be a little like an elephant. We may have trouble defining it, but we know one when we see one. And we certainly know it when we see the flat opposite – as we do in, say, in governance in Russia or China or Iran.

Together with the sentiments that some address as Liberalism, there is something else that matters to us here in Australia and those nations that we respect – except for the United States. We may have a sense of compassion for those not doing so well – like the sick, the aged, or the unemployed – but we go further and recognise that it is a function of government to look after such people. We think that they deserve more than just our sympathy, and that they need and that they should get help from us through our government.

The English had accepted that view about the responsibility of government for looking after the poor from at least the time of Queen Elizabeth I (1533-1603). That was a long time ago, but it never took hold in the New World over the water. That nation was founded by stern Puritans who saw both success and failure as coming from God. The Puritans were gladly ushered out of England, but they had the numbers in America. What is sometimes called the Welfare State is an essential part of our governance. It is in practice irremovable here. That has never been so in the U S.

It is worth pausing on this huge chasm between us and America. In the sixteenth century, before white people had even seen America, the English people had assumed obligations for their poor that would have been abhorrent to their Puritans back then, and which still look at best alien to Americans today. By 1563, the English had made a law for the compulsory levy for the maintenance of ‘impotent, aged and needy persons’. The Oxford History of England records that the English accepted that the poor were ‘a charge on public benevolence’ and that ‘responsibility in the matter could not be left to the conscience of the individual, but must be enforced by law upon everyone.’

The distance from this very old English position to that in America now is as deep as the Atlantic. And the Elizabethans were not driven by ideology, God, or charity. They were too hardnosed for that. In Tudor times, unemployment took the form of vagrancy. The Tudors knew the threat to the peace of the realm (pacem regis) posed by vagabonds. They could terrorise small farms or villages. (And just look at how they rose up in France in 1789.)

To repeat, the ‘commonwealth’ inevitably involved the ‘common weal’. Under the heading ‘paternalism’, Sir Geoffrey Elton said that the ‘doctrine of the body politic knit together demanded obedience and assistance from the governed and put upon the government the duty of looking after its subjects…..Of necessity, therefore, the state had to accept the responsibility for the failures and victims of society, and the admission and elaboration of this important principle mark the development of the effective poor law from 1536 to the great Elizabethan codifications in 1597 and 1601.’ (My emphasis.)

This concern for welfare was to find its clearest statement when two future prime ministers of England presented what would be called the People’s Budget in 1908. In June of that year, Lloyd George, the son of a Welsh cobbler, introduced a bill for an old age pension to the House of Commons. In doing so, Lloyd George, who was aided by Winston Churchill, the son of an American heiress, stated the premise of what came to be called New Liberalism.

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

In so acting, the English were following the example of the great Prussian, Count Otto von Bismarck, hardly a darling of the Left.

But even before the twentieth century and the rise of the Labour Party in England, the old-fashioned conservatives – the lords of the manor, or the Tory knights of the shire – showed what Professor Simon Blackburn in The Oxford Dictionary of Philosophy called ‘benevolent paternalism’. That is no mere catch-phrase. The whole feudal compact depended on the notion that both lords and vassals had obligations as well as rights, andas we haveseen the Tudors accepted their paternal role as essential in their governance of the common weal. Paternalism had been blessed by the ‘law and order’ party.

This vast ocean between us, England, and most of Europe on one side, and the United States on the other, is too little noticed. The difference in political worldviews is fundamental.

And one word will never be applied to the United States of Trump’s America – dignity. It dies on our lips. MAGA has left America soiled and in the gutter.

It is sad that a flirtation with theory can become an addiction to ideology that leads to what we see as the disasters in America of their attitudes to violence (and not just in guns) and welfare (health and poverty). Their whole history dictates traits that we and the U K and Europe could not tolerate.

4 Bill of Rights written into Constitution

It is wrong to say that the English do not have a written constitution. You can find it in documentary form. The difference is that it is not is not contained, or mainly contained, in a single document or instrument. At bottom it stands on the common law, a blend of judicial precedent and ancient statutes, mainly Magna Carta, Habeas Corpus, the Bill of Rights, and the Act of Settlement. And the British Parliament could legislate about any of those tomorrow. There is no requirement of a referendum. Parliament is supreme. This is the ultimate endorsement of democracy and the U S Founding Fathers did not want much of that kind of democracy.

The Australian Constitution is set out in a schedule to an act of the Imperial Parliament. It has long been accepted that the English Constitution forms part of the common law. As such, each is the result of a natural process of evolution. It follows that it would be at best problematic and at worst misconceived to take a phrase uttered at one point of that process of evolution and try to freeze its meaning and effect as at the time it first surfaced. It would be wrong to take a notion expressed in the seventeenth century as frozen in time although invoked in the twenty-first century. It would be wrong because it contradicts the whole notion and process of evolution. Evolution and revolution are ‘clean’ two different things.

(In this context, as I have mentioned before, the Supreme Court in Heller did not refer to the statement of Sir William Holdsworth, the leading authority on the history of English law, that the Tudors had prohibited the carrying ‘of certain kinds of arms – such as pistols and handguns’. On that basis, the English Bill of Rights would never have applied to hand-guns. The suggestion would have been ridiculous in any event in light of the history of the law relating to the duty as well as the right to bear arms going back to the medieval fyrd.)

In the U K, the law relating to what we call civil liberties comes from the common law as modified by statute. As such, the Parliament could change it all tomorrow. We in Australia do not regard legal issues about civil liberties as part of what we call ‘constitutional law,’ and it may be as well to remember that the Bill of Rights was entered into and enacted to settle the state in England after a revolution which, by definition, was outside the law, and of which the great legal historian F W Maitland said ‘we cannot work it into our constitutional law’. Ultimately any rule of law must derive from an historical source – a brute matter of fact, such as a conquest, or a revolution that leads to the founding documents of a new regime.

The U S mindset is here fundamentally different to the U K and us. There the civil rights are most set out in amendments to the written constitution and they can only be changed by the procedures there set out. So, we can put that form of change to one side.

The Bill of Rights inevitably raises political issues for resolution by the U S Supreme Court. As a result, that body engages in political or ideological debate that can degenerate into personal abuse in a way that would never happen in a higher court sitting in, say, London, Paris, Canberra or Berlin. The Court is effectively a law-making body because its power to declare the meaning and effect of the Constitution becomes a de facto power to make laws in a body that is not elected, but the members of which are seen to have an agenda.

Then you get the ultimate irony – and ideological heresy. People vote for the President, the head of the executive, so that he can appoint well sounding candidates to the judiciary, who will then stand in place of the legislature to make laws about abortion. But only after they have stone-walled at the inquisition conducted by the real or lawful lawmakers.

That for us is an abomination.

The Australian Constitution is a remarkably prosaic affair that has little to do with what we call civil liberties. Its one indulgence of the transcendental – trade between the states shall be ‘absolutely free’ – caused heartburn to our High Court justices for ninety years, before their Honours announced that having looked at the debates that produced the Constitution, they could identify the purpose and narrow reach of this law – and normal business was resumed. That is that the court deals with these issues legalistically, and as apolitically as possible.

In 1942, Sir Owen Dixon, our greatest jurist, said this to the American Bar Association:

…. our constitution makers refused to adopt any part of the Bill of Rights of 1791, and a fortiori, they refused to adopt the Fourteenth Amendment. It may surprise you to learn that in Australia, one view held was that these checks on legislative action was undemocratic, because to adopt them argued a want of confidence in the will of the people.

Another way of saying that is that those who framed our constitution did not want to produce a document by which the political aspirations of the people could be frustrated by a claque of nitpicking village elders erstwhile clad in ermine.

It is not surprising, then, that polls give the U S Supreme Court low approval ratings. I am not aware of any such process for our High Court or the UK Supreme Court. The question of political alignment in those courts simply does not arise – except beyond the fringe. And no-one would ask what is the breakdown of religious beliefs in members of our highest court. (The closest we get to prurience is when we ask how many of them had a private school education.)

Then, by chance, the three Justices appointed by Trump got the chance to do what they were appointed to do – and they changed the law on abortion. As I read the reports in the press, five of the six justices who voted for the change were Catholic, and the sixth was raised as a Catholic.

It is hardly surprising that in a contest for loyalty between the nation and God, God won. Uncle Sam (now called POTUS) is potent. God is omnipotent. And depending on which version you choose, He might cause you agony for eternity if you let Him down. It was to be expected, then, that the altar would prevail over the bench.

And in reversing their law on abortion, the justices used the same kind of strident language that they had used on guns – including the epithet ‘grotesque’ for those of a different mind. Instead of a reasoned resolution of a legal issue, we get the impassioned assertion or defence of a position. Judges are not there to take sides.

Haven’t these judges learned the first lesson of judging? The most important person in the courtroom is the loser. And the time for fighting cases stopped when they left the bar. They are there to quell conflict, not provoke it. You say what you have to say in order to determine the case, and no more – and then you call on the next case. All we ask is that you do your job – and that’s it.

Well, if the Americans are about three hundred years behind the English on guns, their position is worse with the Germans – well over two thousand years worse. In his history On Germany, Tacitus said of the Germans before the birth of Christ that ‘it is repugnant to their custom for any man to use arms, before the community has attested his capacity to wield them’. It is impossible to imagine a state of the U S trying to pass a law to that effect.

As I recall it, Gibbon said the Romans did not subscribe to the ‘barbarous practice’ of wearing arms in the midst of peace and commented that he ‘who considers this circumstance as the test of civilisation would disdain the barbarism of a European court.’

There are two other differences between us and the U S in our approach to the law. We follow the English tradition that you learn the practice of the law on the job – and we do not have much time for law schools or universities. The Americans tend to lionise law schools and their products – especially from the ivy league. That looks unreal to us – and downright snooty.

We also follow England in having a separate bar. We see that as essential to a solid and independent bar and judiciary – both of which were fundamental in the history of the common law and the constitution. Europe knew nothing like it.

The response of the legal profession in America to Trump has been at best wobbly. And that is very worrying.

5 Bad electoral laws

When I was about sixteen, I studied nineteenth century English history – the Age of Reform. One reform was to legislate for a secret ballot at election polls – so that people could vote free of pressure. I never understood the argument against it.

Nor have I ever understood the argument against making voting in elections compulsory. That process is fundamental to our whole process of government, just as stopping at red lights is fundamental to our road traffic regulation. We do not make that process voluntary – nor do we make jury service, another pillar of our democracy, voluntary.

There is every reason to think that the U S would not find itself in the mess that it is in now if voting was compulsory. This is I suspect another case of common sense being trumped by ideology – and party loyalty. Which looks to be the case with appointing judges for life in the U S. Why do to the nation what you would not allow people to do to each other?

And that is before you get to gerrymandering and rigging the vote – corruption at the level of eighteenth-century England or nineteenth century Tammany Hall.

This aspect of U S democracy looks to be irredeemably soiled.

6 Failure to deal with God

In England, the Lord Chancellor was a member of the legislature, judiciary and the executive. Doctrinal anathema. The head of state was and is the head of the state church – and liable to be deposed if he ceases to be in communion with the Church. Worse than anathema! Heresy! Yet, the influence of religion on the governance in England is so slight as to be invisible.

Not many U S presidents believed in God. But they could not be heard to say so. Atheism was verboten, so most of them danced a minuet. Freedom of speech is a tricky phrase, but no sane person could suggest that the present incumbent believes in God – at least in any way that may impede his ego.

The 1641 revolution in England may be called the Puritan Revolution, but after the death of Cromwell, the Puritan influence in Britain fell, and the Puritans there had trouble keeping up their status as Dissenters.

It was different in America – the Puritans were in the majority and they had their own way. It still shows. As we have seen,the upshot of this continuing impact of the Puritan and frontier influences is what the rest of the western world sees as a cold indifference to the fate of those who are less fortunate – a reluctance to legislate for the welfare of the citizens of the United States.

And the one shot that was heard around the world came in 1831 when the British Parliament outlawed slavery. That very significant act of political and moral courage was brought about after an inspired campaign to change and direct public opinion in Britain that was organised and directed by the established church, the Church of England, and a group of religious fanatics who had been hardly done by in America, the Quakers.

Otherwise, although the Founding Fathers sought to sterilise the impact of religion in the republic, at least by banning any state church, it is difficult to avoid the conclusion that the impact of religion on the U S has been as sinister as it was pervasive. And that would be unthinkable here or in the common Mother Country.

There is not much point speculating which presidents may have been communicant Christians. Gary Scott Smith devoted years of study to the subject and published the results in Faith & the Presidency, a work of 400 pages and a North American quota of footnotes of half as many pages again. Its conclusions contain the following remarkable propositions.

The belief that God has especially blessed the United States and selected it for a special mission in the world is biblically suspect. It has inspired Americans to fight injustice at home and abroad, but it has also contributed to simplistic moralizing, overlooking national flaws, a lack of awareness of moral ambiguity, and an understandable hatred abroad of American hubris. (My emphasis.)

The author is obviously a deeply religious man, but he agrees with a scholar who spoke of the ‘rhetoric of empire’: ‘The assumption that the United States is morally superior to other nations, the assertion that it must redeem the world by spreading popular government’, and ‘faith in the nation’s divinely ordained destiny to fulfil this mission.’ The ‘rhetoric of empire’ is a lot worse than the Napoleon complex – that cost more than five million lives in European wars fought so that Europe might know the blessing of French republican liberty – and Napoleon did not even claim to be sent by God.

This kind of talk is terrifying to those outside America. And all of that was written many years before the arrival of Donald Trump.

Finally, the twin American indulgences in violence and fake religion came together shockingly in the Ku Klux Klan, an evil group of men more frankly vicious than the Nazis – and with a similar level of representation in the community. It is a fearful blot on their history that Americans are not handling anywhere nearly as well as the Germans.

Millions and millions of ‘ordinary’ Americans in the heartlands, for the love of God and the hatred of race, indulged in orgies of violence and loathing that make the torch-lit parades of the Nazis look like Sunday School picnics. The personal inclination to rape of the Grand Dragon of the Evil Empire would have appalled Heydrich and Himmler, and the rampant credulity and cowardly anonymity of the robed gutter-rats prefigured the banality of evil of Eichmann.

If you read a book like Timothy Egan’s A Fever in the Heartland, you might blanch if you ever have to fly over states like Indiana or Oklahoma again. Not the least revolting aspect of the Klan was that it became more popular as it brushed with an unavailing law, and its leaders were shown to be anything but ordinary Americans. The failures of the nation found salvation as the victims of those who kept it down. The whole history of the Klan was the reaching after a mythical past that left no room for the Civil War or Abraham Lincoln. The losers erected statues of losers. On what then could the republic stand?

If you have survived a diagnosis of terminal cancer, you wonder what poison may be left in your blood, and whether it might come back. We have had, and still have issues of race in Australia, but we have been spared the vicious combination of race hate, raw cruelty, and fake religion that still haunts and disfigures America.

In 1925, the Klan had more than six million members who paraded grandly in major cities to warm applause. Their savage cruelty went back to medieval or Roman times. The journal of their fake religion was The Fiery Cross.

The Klan and MAGA have something in common – they see themselves as victims – a proposition that would be hilarious in Myanmar, Rwanda, or Venezuela – who have been appointed as champions of other victims. They are characterised by hatred and contempt for those they regard as inferior – even if only because they are different. People who are content with their lot in life do not join outfits like the Klan or MAGA.

In April 2025, the federal Attorney-General of the United States said she would call for the death penalty for a man charged with murder pursuant to instructions from the President to Make America Safe Again. A life for a life. The victim was a totem of capitalism, and his alleged killer was the subject of broad support among the people. It is very hard to avoid the conclusion that there is something rotten in the state of America. And 10 April 2025 sees the hundredth anniversary of the publication of The Great Gatsby, the novel about ‘careless people’ that blew to Kingdom Come the myth of the American Dream.

7 Conclusions

The above look to me to be some of the ways the Americans find themselves in their current decline. And so much of it comes from their failure to follow the English, or Anglo-Saxon, model of preferring the empirical call of experience to the intellectual call for theory.

Sir Owen Dixon thought that the United States’ adoption of the separation of powers was ‘a curious and surprising departure from, indeed violation of, British constitutional practice and theory.’ His Honour was not, then, pulling punches.

The failure of the doctrine of separation of the powers of government to achieve a full legal operation here is probably fortunate. Its failure to do so may be ascribed perhaps to mere judicial incredulity…. Legal symmetry gave way to common sense.

Sense before style or theory is the way of the common law.

In 1921, the great American jurist Roscoe Pound published his majestic treatise, The Spirit of the Common Law. It contains juristic learning of the kind that we do not see today. Pound was the Professor of Jurisprudence at Harvard, but he did not have a law degree. He got that learning the hard way at the bar table before Nebraskan juries. (Perhaps for that reason, the book of 224 pages does not contain one footnote.)

On the second page, the author set out his stall:

For the strength of the common law is in its treatment of concrete controversies, as the strength of its rival, the modern Roman law, is in its logical development of abstract questions.

Elsewhere Pound summed it up with the crispness of a botanist:

The doctrine of precedents means that causes are to be judged by principles reached inductively from the judicial experience of the past, not by the deduction from rules established arbitrarily by the sovereign will… The common law doctrine is one of reason applied to experience.

The latter follows a very well-known statement of Justice Holmes, but at times the United States prefers logic to experience. We stick with Sir Owen Dixon when he said that conceptions derived from theory may be ‘too transcendental for a working lawyer’.

As I see it, ultimately our whole commitment to the rule of law rests on a certain state of mind that comes from a very long history that goes back to the forests of Germany in the time of Tacitus. When I refer to a ‘state of mind’, I mean that when the time to decide finally comes, we are likely to be moved unconsciously, perhaps, by what Sir Owen Dixon referred to as ‘instinctive assumptions’ or ‘tacit assumptions’. Montesquieu said that what mattered was the spirit of the laws, De L ’Esprit des Lois. It got tricky when others sought to apply his teaching by the letter. The Founding Fathers preferred the dogma of France to their inheritance from the history of England.

I have tried to set out how I see the relevant state of mind in America as being very different to that which prevails here and in the U K. We have touched on three ways in which England tended to differ from those across the Chanel.

First, in thinking – philosophy – they much preferred the empirical to the rationalist or metaphysical. They disdained theory and were at best uncomfortable with intellectuals.

Secondly, this mindset is reflected in the distinction between the common law and its preference for experience and Roman or civil law and its preference for codes and formal elegance. That in turn is mirrored in the distinction between the adversarial and inquisitorial modes of trial and the English reliance on the jury.

Thirdly, the governance of England has since the Middle Ages involved paternalism toward those not so well off – such that the word ‘socialism’ becomes more fraught than ever.

The deviations of the United States since 1776 look to veer toward the European rather than the English model – and in ways that have no appeal for us.

As we speak, we can see the very fabric of the United States being torn apart by a president elected by a people who were on full notice of his propensity to do just that, having tried and failed to rebel against a duly elected government.

And in the dark time just before dawn, they and we may have to deal with the unthinkable, and wonder if the nation of the United States has the fibre to go on. This is how Sebastian Haffner saw the collapse of one of the most civilised nations on earth.

The only thing that is missing is what in animals is called ‘breeding’. This is a solid inner kernel that cannot be shaken by external pressures and forces, something noble and steely, a reserve of pride, principle and dignity to be drawn on in the hour of trial…. At the moment of truth, when other nations rise spontaneously to the occasion, the Germans collectively and limply collapsed. They yielded and capitulated, and suffered a nervous breakdown…. The Kammergericht [superior court] toed the line. No Frederick the Great was needed, not even Hitler had to intervene. All that was required was a few Amtsgerichtsrats [judges] with a deficient knowledge of the law.

I have no idea what the answer may be. But I cannot see that we or anyone else with a similar history would seek to follow the lead of Uncle Sam. Rather, in the words of their musical from their one Golden Age, ‘we’re going to wash that man right outa our hair – and send him on his way.’

Notes

Dicey on responsible government: A V Dicey, The Law of the Constitution, Macmillan & Co, 1885, 332.

Presence of Ministers in Parliament: W E Hearn, The Government of England, Longmans, 1897, 236. (Sir Owen Dixon was a great admirer of this work.)

Prior remarks on gun laws: I refer to District of Columbia v. Heller, 554 U.S. 570 (2008) and Gibson, The Dragon in the Cave, published in Looking Down the Well, Papers on Legal History, Amazon, 2015.

Sources on welfare in U S: What follows draws on Gibson, The War against Humanity, The Decline of Courtesy and the Fall of Dignity in Government and Business, yet to be published. The remarks on governance also drew on it.

Kant on dignity and principle of humanity: Edited extracts from Groundwork of the Metaphysics of Morals 4.431 – 4.435; Practical Philosophy, Kant, Cambridge University Press 1996, 81-84.

Elizabethan property laws: Black, J B, The Reign of Elizabeth 1558-1603, being Volume XIII of The Oxford History of England, Clarendon Press (2^nd ed, 1959) 265.

Elton on paternalism: England Under the Tudors, Folio, 1997, 183ff.

Lloyd George and New Liberalism: cited in Gibson, History Essays, The Last Two Samurai, Amazon, 2018.

Bismarck:The role of Germany, and Bismarck in particular, in the introduction of what we call the Welfare State is not generally known here. In 1883 and 1889, Bismarck pushed through legislation for accident insurance for workers and then old age and disability insurance. For the first, the German government said it had put an end ‘to all those attempts to make health insurance a private matter …and asserts the role of the state’: see Jonathan Steinberg, Bismarck, A Life, Oxford, 2011, 417.

Blackburn on paternalism: Oxford Dictionary of Philosophy, O U P, (2d Ed), 2005, 75.

Maitland on historic foundations: Constitutional History of England, Cambridge, 1963, 285.

Dixon on Bill of Rights: Jesting Pilate, Law Book Co, 1965, 102.

Change in abortion law: Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

Tacitus on Germany: Germania, 13. But it is repugnant to their custom for any man to use arms before the community has attested his capacity to wield them. Upon such testimonial…. some kinsmen dignify the young man in the midst of the assembly with the shield and javelin. This among them is the manly robe, this first degree of honour conferred upon their youth. Before this, they seem no more than part of a private family, but thenceforward part of the Commonweal. That looks very advanced beside the United States in 2025.

Gibbon on Germans’ wearing arms: The Decline and Fall of the Roman Empire, Folio, 1987, Vol 5, 294.

Religion of U S: Scott Smith, Faith and the Presidency, OUP, 2006, 423.

Dixon on separation of powers: Jesting Pilate, above, 52.

Pound on common law; The Spirit of the Common Law, Marshall Jones, 1921, 2, 182-183.

Dixon on the transcendental: The Common Law as an Ultimate Constitutional Foundation, Jesting Pilate, above, 207.

Dixon on assumptions: Jesting Pilate, above, 38,106.

Haffner: Defying Hitler, 2002, 110.

The musical: South Pacific, Rogers and Hammerstein.