History

Namier on English politics

/ Geoffrey Gibson / Leave a comment

Sir Lewis Namier made his name with The Structure of Politics at the Accession of George III published in 1929.It landed like a bomb, and Namier attracted conflict all his life.  I idolize him.  As a practising lawyer, I found it odd that Namier was said to be revolutionary because for primary evidence he preferred contemporary notes made at the time to secondary rehearsals made by scholars who were not present at the relevant times.  I then regarded him as I regarded Maitland on the history of the common law – if the inquirer devotes his life to digging so deep and with such understanding, he may well command our intellectual assent when he ascends to make observations that in others may sound too large and unfounded.

In 1961, Namier published the second edition of England In the Age of the American Revolution.  Amid the mountains of primary evidence that Namier assembled in the work of a lifetime, we still find large statements of insights that distinguish the story of England from that of Europe or the United States.  All of what follows comes from that second edition. 

It is a story of a remarkable people written by a most remarkable man.

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The social history of England could be written in terms of membership of the House of Commons, that peculiar club, election to which has at all times required some expression of consent on the part of the public……In its origin, the House of Commons was akin to the jury, and the representative character of the two were in a way cognate; from an intimate knowledge of conditions, the House declared the sense of commonalty on questions which most patently and directly concerned them….it came to represent not so much the sense of the community, as the distribution of power within it…(3)

England knows not democracy as a doctrine, but has always practised it as a fine art.  Since the Middle Ages, no one was ever barred on grounds of class from entering the House of Commons, and in the House all Members have always sat on equal terms; as between freemen, England never knew a rigid distinction of classes….

Trade was never despised, and English society has always showed respect for property and wealth.  The financial expert, usually a moneyed man, was valued in the House, and the Treasury has for centuries held a pre-eminent position in the government…. ‘gentry are always willing to submit to raising their families by what they call City fortunes….’ (6)

Feudalism was a system of social organisation whereby both army service and administrative functions were bound up with the holding of land. (7)

The fine growth of English Conservatism is due, in a high degree, to the country having been free from the revolutionary action of war within its borders, and of militarism within its social organisation.  The true Conservative is not a militarist. (8)

Trade was not despised in eighteenth century England – it was acknowledged to be the great concern of the nation; and money was honoured, the mystic common denominator of all values, the universal repository of as yet undetermined possibilities…. for the English are not a methodical or logical nation – they perceive and accept facts without anxiously inquiring into their reasons or meaning. (13)

Classes are the more sharply marked in England because there is no single test for them, except the final incontestable result; and there is more snobbery than in any other country, because the gate can be entered by anyone, and yet remains for those bent on entering it, a mysterious, awe-inspiring gate. (14)

Whereas on the Continent scholarships rank as poor relief, at Oxford or Cambridge the scholar holds a privileged position, coveted as a distinction.  More intellectual work is done by aristocrats in England than anywhere else: …. What is not valued in England is abstract knowledge as a profession, because the tradition of English civilization is that professions should be practical and culture should be the work of the leisured classes. (15)

When a tribe settles, membership of the tribe carries the right to share in the land.  In time, the order becomes inverted: the holding of land determines a man’s position in the community. (18)

English history, and especially English parliamentary history, is made by families rather than individuals; for a nation with the tradition of self-government must have thousands of dynasties, partaking of the peculiarities which in other countries belong to the royal family alone.  The English political family is a compound of ‘blood’, name and estate, the last, as the dominions of monarchs, being the most important of the three…. the men who are most intimately affected by the government have a primary claim to share in it; in reality, this conclusion is based on instincts and modes of thinking much deeper and much more cogent than any conscious reasonings…. [the British Parliament] is territorial rather than tribal….

Though the State primarily belongs to the owners of the land, it is the circulating part of the nation which is most directly concerned with government…. (29)  Trade is the natural form for the acquisitive endeavor of islanders… (30) Continental nations engaged in wars for loot and talked of glory (31); the English went out for adventure and talked of trade…. (32)  Colonies… were not ‘planted with a view to founding new empires, but for the sake of trade….’ (37)

No great historic problem has ever been settled by means of a brilliant idea…. Restraint, coupled with the tolerance which it implies and with plain human kindness, is much more valuable in politics than ideas which are ahead of their time; but restraint was a quality in which the eighteenth-century Englishman was as deficient as most other nations are even now. (36)

The basic elements of the Imperial Problem during the American Revolution must be sought not so much in conscious opinions and professed views bearing directly on it, as in the very structure and life of the Empire; and in doing that, the words of Danton should be remembered – on ne fait pas le proces aux revolutions.  Those who are out to apportion guilt in history have to keep to views and opinions, judge the collisions of planets by the rules of road traffic, make history into something like a column of motoring accidents, and discuss it in the atmosphere of a police court.  (40)

History is made up of juggernauts, revolting to human feelings in their blindness, supremely humorous in their stupidity.  One of the greatest caricaturists that ever lived, Francesco Goya y Lucientes, reached the highest level of historical humour in his picture of a military execution of Spanish rebels.  A bundle of feeling, suffering humanity is huddled together in the last stages of agony, despair or defiance, and facing them stands a row of the most perfectly trained Napoleonic soldiers, with their hats and rifles all cocked at the same angle.  One knows that the next moment the rebels will be at peace, inanimate matter, and the firing squad will dissolve into a number of very ordinary, dull human beings.  Similarly in Breughel’s ‘Fall of Icarus’, the true humour of the tragedy is not so much the pair of naked legs sticking out of the water, as the complete unconcern of all the potential onlookers…….History of infinite weight was to be made in the absurd beginnings of a reign which was to witness the elimination of those who had hitherto governed England…..and the break-up of an Empire such as the world had not seen since the disruption of the Roman Empire – history was to be started in ridiculous beginnings, while small men did things both infinitely smaller and infinitely greater than they knew.  (131)

In the absence of distinct definable programs, it was becoming increasingly difficult to say who, from the angle of practical politics, should be considered a Tory and who a Whig …. and parties at all times at all times rest on types and on connections rather than on intellectual tenets…. (179)  Moreover, the disturbing element of personal connexions is always present in politics; the game is played by groups, and human ties continually cross and confound the logic of social and political alignments.  (184)

The territorial magnates were the nucleus of that governing class, whose claims even now are based on rank, wealth, experience, and a tradition of social and political pre-eminence (or, according to George Meredith, are ‘commonly built on birth, acres, tailoring, style, and an air’).  (181)

***

We don’t get history like that anymore.  And that is a great worry, because every word of it bears on our travails here and now.  Namier was I gather from people at Cambridge not easy to like, and I can understand how he may have unsettled the academic Establishment.  But Sir Lewis Namier stands very high in my pantheon because of the depth of his insights into our humanity.

Bismarck

/ Geoffrey Gibson / Leave a comment

Count Otto von Bismarck, known as the Iron Chancellor, was a Prussian Junker, and therefore a notable man of the land, and the lord of a German manor.  He was also a servant of his State and of his God, and, to the extent that the word ‘conservative’ still has any meaning, about as conservative as any man at any time could be.  That did not prevent him from becoming the de facto master of Europe by reference, if necessary, to ‘blood and iron’. 

Nor did it prevent him from achieving the following.  The unification of Germany.  The grant of universal suffrage in the German democracy.  And the beginning of the Welfare State. 

As it happened, the first would lead to the most appalling consequences for not just Europe but the whole world in two world wars – but Bismarck could not be held responsible for either.  The second was alarmingly ‘progressive’ for its time, and the third even more so.  History does not give Germany or Bismarck sufficient credit for laying the foundation of the Welfare State – which the United States still refuses to accept.

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’. 

Nearly thirty years later, Lloyd George and Winston Churchill followed that lead in England with the People’s Budget.  They spoke of the ‘business of the state’ in looking after the infirm and the aged.  They provoked a constitutional crisis.  The English averted revolution by having the King threaten to create enough peers to get the legislation passed.  They followed the precedent of the passage of the Reform Bill in 1832.  In each case, the ancient safety valve saved the day.

Bismarck was a most extraordinary man.

Politics are not a science based on logic; they are the capacity of choosing at each instant, in constantly changing situations, the least harmful, the most useful.

As my friends know, that accords exactly with my view of the common law, which underlies our constitution, and politics.  That may not be all that surprising, because that in my view is the Anglo-Saxon – and therefore German – preference for experience over theory, which so distinguishes England from Europe – including Germany.  That is not meant to be confusing.  The roads by which we got where we are have never been straight.

Bismarck had God and could accommodate Him.

A statesman cannot create anything himself.  He must wait until he hears the steps of God sounding through events; then leap up and grasp the hem of his garment…. I am content when I see where the Lord wishes to go and can stumble after him.

Some, especially right now, may wish, like Hamlet, to substitute Providence for God in detecting even the fall of a sparrow.

I have never been a doctrinaire…. Liberal, reactionary, conservative – those I confess seem to me luxuries….

Can you imagine a better statement of the sheer banality of politics today either here or in places we once respected?

Bismarck spent his whole political life dealing with people he could not respect.

There are white men, there are black men, and there are monarchs.

God only knows what fate would await someone rash enough to say that now.

For his scheme of social insurance, Bismarck was content to accept the label ‘progressive’, even ‘socialist’!  A J P Taylor said:

German social insurance was the first in the world, and has served as a model for every other civilized country…At the end, he [Bismarck] talked of ‘the right to work’ and thought of insurance against unemployment – this was the final step to the welfare state of the twentieth century…. He was a despairing conservative, staving off a dreaded though inevitable future, clinging to the present for the fear of something worse.  Real conservatism is rooted in the pride of class.  Bismarck had no feeling for the Junkers from whom he sprung.  In taste and outlook, he was nearest to the rich merchants of Hamburg.

Well, they don’t write history like that anymore.

Nations crave security.  So do their subjects.  The king commanded his subjects to hold him and the state securely.  People now elected governments so that the state would keep the people securely.  That was change indeed.

Bismarck was a soldier who never read Clausewitz.  Ranke was his favourite historian, but he had a soft spot for Taine.  He soaked himself in the Bible and Shakespeare, but he fancied the novels of Dumas.  He naturally had no time for philosophy – Kant, let alone Hegel – and he dismissed Wagner as a monkey. 

In other words, he was ein mensch with whom you knew where you stood – and when you should stop.  What would we give to have on record what passed between this German and Benjamin Disraeli?  A J P Taylor said:

Both had the brooding melancholy of the Romantic movement in its Byronic phase; both had broken into the charmed circle of privilege…. both had a profound contempt for political moralizing…. In politics both had used universal suffrage to ruin liberalism…. Both genuinely advocated social reform….

So much, then, for pigeon holing people.

I referred above to the banality of our politics.  Hannah Arendt, who had some of the most piercing insights of her time, got into trouble talking about the banality of evil.  We now have to live with the evil of banality.  Those vacuous standard-bearers of theory and ideology, who falsely claim to be prophets of ‘conservatism,’ should look on the works of Bismarck and despair.

A rotten state

/ Geoffrey Gibson / Leave a comment

The desolate prince was right when he described the state of Denmark as ‘rotten’.  The Compact OED gives us ‘rotting or decaying…. morally or politically corrupt.’  And there was a lot more to that decay and corruption than an ‘o’er hasty marriage’ and binge boozing behind the battlements. 

We can see signs of this rotting in governments generally in what we call the western world, but none more so than in the United States.

In her most enlightening book, Autocracy Inc, Anne Applebaum traces the similarities between the current regime in the U S, and those autocratic regimes like China or Russia, or ‘illiberal democracies’ like Turkey, Malaysia, India, the Philippines, or Hungary.

They share a brutally pragmatic approach to wealth.  Unlike the communist and fascist leaders of the past…the leaders of Autocracy Inc often maintain opulent residences and structure much of their collaboration as for-profit ventures.  Their bonds with one another, and with their friends in the democratic world, are cemented not through ideals, but deals – deals designed to take the edge off sanctions, to exchange surveillance technology, to help one another get rich…. Autocracy Inc offers its members not only money and security, but also something less tangible: impunity.

Does that not describe the Trump malaise in the U S?

After referring to ‘the fascist belief in the liberating power of violence’ and describing the feeling of success and calm after the fall of the Berlin Wall, Anne Applebaum says:

Everyone assumed that in a more open, interconnected world, democracy and liberal ideals would spread to the autocratic states.  Nobody imagined that autocracy and illiberalism would spread to the democratic world instead.

Later, the author refers to the remarks of a U S senator who said that ‘the same techniques of concealment used to facilitate offshore thugs and criminal activities also facilitate the political activities of domestic special interests.’

The book prompts discussion of the following – the relationship between political and financial dishonesty; the fundamental fallacy that underlies every aspect of the Trump administration; the limitations of the notion of kleptocracy; and the liability of the profiteers to account for their obtaining profits from their offices.

Trust and probity

People who hold office in government are in a position of trust owed to those who put them there.  They were not appointed or elected to look after themselves, but to serve the interests of others.  If they choose to break the rules about the limitations on their political powers, then they may just as easily break the rules about how they help themselves financially.  If they are dishonest politically, why not be dishonest financially?  If you are rotten about the rights of others, why not be rotten about their money?

There is nothing new in the notion that those in charge of the most austere political regimes are also likely to be the most corrupt financially.  Here from my schooldays is J B Bury, the bible on ancient Greece, on Sparta.

…..  the ‘communism’ which we observed in the life of the citizens was only superficial.  But it was specially provided by law that no Spartan should possess wealth in the form of gold or silver.  This law was at first eluded by the device of depositing money in foreign temples, and it ultimately became a dead letter; Spartans even gained throughout Greece an evil reputation for avarice.  By the fourth century, they had greatly degenerated, and those who wrote studies of the [Spartan] constitution contrasted Sparta as it should be and used to be with Sparta as it was.

The Spartans were not alone in having an evil reputation for avarice.  Greed was good generally – just look at Timon of Athens.  Bury remarks that Solon of Athens introduced reforms that ‘hit the rich hard,’ but that he was ‘too discreet to attempt to interfere seriously with the money market by artificial restrictions’. 

But it does seem that otherwise austere regimes cause its members to resort to graft as a way of life.  Does anyone believe that the rulers of Burma or Iran or Venezuela have clean hands?

Yet for centuries, Oxbridge clung to the myth that ancient Athens and Rome were civilized.  The wealth of each was built on slavery and the protection racket called empire.  Both slavery and empire disqualify the ancients from being called civilized. 

It was not until England shed its empire that it saw the ancient world for what it was.  Neither Athens nor Rome had ever dreamed that each of us is born with a dignity or worth merely because we are human – the sine qua non of civilization after the teaching of Jesus of Nazareth or Immanuel Kant.

For many, including me, The Republic of Plato is a blueprint for fascism.  But if we go to authentic fascists like those of Nazi Germany, we find real graft and corruption on a huge scale.  Put aside the dog-like loyalty of people like Hess and Rohm – Hitler, Goring and Himmler wallowed in mansions and riches, much of it the product of what the Romans called rapine.  Indeed, the conquering Roman armies lived off rapine – vae victis – in a manner that would only be surpassed by Attila the Hun, and Napoleon the Corsican.

It is not surprising that people cannot silo their dishonesty or greed.  That is why I take the view that we should be wary of dismissing as irrelevant the failures of those in public life that may be characterized as ‘private’.  If a person in a position of public trust cannot be trusted by those close to them, where does that leave the rest of us? 

That view may sound old fashioned.  That is not of itself a problem for most of us – if, for example, you also believe in having a trained independent civil service, or two political parties both capable of serving equally in government and opposition.  Each of those has gone clean out the window here in the last two generations.

So, that is the first point.  People in power who break the rules of government may be just as likely to break the rules about crime generally, and enrich themselves at your and my expense.

The present Trump regime stands for every part of that proposition.  Its own contribution is to be more brazen – shameless – than any of those who came before it – starting in the garden of Eden.

Government and business – and profit

The second point is the fallacy that underlies the whole Trump administration.  About forty years ago, some business people in Melbourne thought it would be simple to save struggling football clubs.  Just run them like their business.  They were dead wrong, and they sadly failed in their mission. 

Trump makes the same error.  He thinks he can run the U S like a business.  He is wrong. 

A trading corporation is formed and managed to return a profit on its business for its shareholders. 

That is not what the United States was formed for.  Its founders may have been grandiose, and hypocritical, but their stated object was not to make money.  Putting to one side the dreams of the Puritans, the aim of the founders was to deliver and ennoble the new Promised Land:

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 ….

The congeries of slave owners who had their own self-evident truths were not after profit, but justice, tranquility, and general welfare. 

Those aspirations are pure moonshine for the New York property developer and his rough mates.  He is in it for profit and fame, and that contradiction undermines every part of his administration.  To adopt the phrase of Anne Applebaum, he puts deals way above ideals. 

Although he did not write one word of the book, Trump is obsessed with ‘the art of the deal,’ and his coming out the winner.  This is a different universe to that of Lincoln, Roosevelt, or Truman, whose one aspiration was to serve the people of the United States – ‘of the people, by the people, for the people.’  Trump does not believe in God, but if he did, he would surely know that God did not create him to serve the people.

It follows that this presidency stands on an obviously false premise.  But it gets worse.  The first object of government is to keep the peace – to ensure domestic tranquility and general welfare.  The laws of the union about guns make the first impossible, and the opposition to the Welfare State, that is pursued everywhere else in the West, make the second impossible.  The United States has not achieved its stated objectives.

Trump must be taken to have admitted that the United States has not ensured tranquility for Americans.  He says he should send the federal army into cities that have let crime run amok.  That would be unthinkable in Western Europe – or, say, Australia or Canada.

Because Trump is so egocentric, his political responses are often so personal.  During the Dark Age, the justice of the state was created to replace the vendetta.  Trump now uses – or abuses – the organs of the state to pursue his own personal and political vendettas, and to give succor to those whom he persuaded to try to overthrow the Constitution.  We therefore have a fearful combination of Alice in Wonderland and Nineteen Eighty Four.

There is something more about Trump’s infatuation with ‘deals’ – as when he told President Zelensky that he, Zelensky, did not hold the right cards.  To which the obvious response was – this is not a card game. 

But deals are games for Trump, and he is a very bad loser.  (Witness the Nobel Prize, a loss he suffered in full war-like mode.)  

People do not come back for repeat business with Trump.  Good business people know that the best ‘deals’ are contained in documents that are put on file and left there.  Ongoing arrangements turn on trust – and Trump’s whole career in business suggests he cannot be trusted. 

You can, if you wish, start with two admitted facts – he avoided national service, and he avoided paying tax.  In any other western nation, his history on those grounds alone would disqualify him from being elected to any significant public office.

So, there is something unsettling, is there not, about the following proposition?  ‘Jack and Jill went into politics – and then Jack and Jill got filthy rich.’

Kleptocracy

That leaves the kleptocracies discussed at length in Autocracy Inc.  Trump puts Mammon before God every time.  (His ego has no room for God.)  And he is making millions for himself and his family from the public offices he holds.  (I could be typing this under a framed cartoon of Trump as Superman.  He sold the cartoons.  The proceeds did not go to charity.  The very idea would be absurd.) 

Words like kleptomania come from the Greek kleptos meaning ‘theft.’  Wikipedia says:

Kleptocracy is different from plutocracy (rule by the richest) and oligarchy (rule by a small elite). In a kleptocracy, corrupt politicians enrich themselves secretly outside the rule of law, through kickbacks, bribes, and special favours from lobbyists and corporations, or they simply direct state funds to themselves and their associates.

That is not Trump.  His schtick is not theft.  That is a crime.  But Trump’s profiteering certainly looks unlawful and dishonest.

Under our Westminster system, ministers of the Crown, the members of the executive government, hold positions of trust.  As the great English legal historian, Maitland, said in another context, ‘for every exercise of the royal power, some minister is answerable’.  Civil servants are servants of the Crown and the people, and being in the same position as employees, they owe obligations under the general law of loyalty and good faith to those whose interests they serve.

It is not the Westminster model, but the rule of law that regulates the way that our governments ministers discharge their obligations under the law, at least to the same extent that we regulate the way that directors of public companies are obliged to act – in the interests of shareholders, and not themselves. 

That is very much the way of the common law in the view we take of the proper role of all those in government.  It is not to the constitution that we ordinarily look in order to control those who direct government, in much the same way that we seek to control those who direct business.  Parliament looks after its own, but otherwise these are matters for our general law – the common law and the statutes of our parliaments.  The rationale is the same.  These people are where they are for us, and not for themselves.

Unjust enrichment or unconscionable profit?

The ministers are, therefore, subject to legal duties owed to those who put their trust in them.  As such, the Ministers must put the interests of the public before their own; they must act toward the public with the utmost good faith (uberrima fidei); they must avoid any external obligation that conflicts with their duties to the public; and they must account to the public for any financial benefit they derive from breaching any such obligations.

There is a kicker for grifters in that last remedial proposition.  We are not constrained to talk about cases where the fault of the agent has led to loss of the principal.  If the principal happens to score a win, the agent may get the windfall.  The liability to account under our laws does not turn on dishonesty. 

The duties I refer to are customarily called ‘fiduciary’.  That is a very slippery word.  It is not understood by most lawyers, let alone those who are appointed as Ministers of the Crown.  It is a standing invitation to circular reasoning – he has to account, because he is a fiduciary; because he is a fiduciary, he has to account. 

But the obligations owed by public officers (or public servants) to the Crown (the Commonwealth) are described as ‘fiduciary’.  And the law is clear that the ordinary relationship of a contract of employment entails that the employee is subject to fiduciary duties to the employer.  It follows that those serving the Commonwealth, including Ministers of the Crown, owe these duties to the people of Australia.  They are accountable to the people of the Commonwealth for any failure to observe those duties and are liable to account to those people for any profit they derive from doing so.

Now, there may I suppose be nuanced arguments about the extent of these duties for public officers, but it would be difficult for ministers to say that they did not have to act in good faith, or that they could make and keep a profit arising from their position without seeking some form of authority – or without disclosing it.  Such a denial would of itself lead to loss of office.

This part of the law, generally called equity, turns on conscience, rather than fault, and it provides a remedy for conduct it regards as unconscionable.  And it does so in terms that would shock those shysters who are wont to clip the ticket, and with much greater thrust than our regulators can summon up.

Here are extracts from two texts of undoubted authority on equity.  The first is the standard text of Maitland.

….wherever a person clothed with fiduciary character gains some personal advantage by availing himself of his situation as a trustee, he becomes a trustee of the advantage so gained…the rule includes persons who are not trustees properly so called, but all those who stand in what is called a fiduciary position …it is a general principle of equity that if an agent acquire any pecuniary advantage to himself from third parties by means of his fiduciary character, he is accountable to his employer as a trustee for the profit he has made.  

The second is the great American text of Story.

But by far the most comprehensive class of cases of undue concealment arises from some peculiar relation, or fiduciary character, between the parties …the relation of client and attorney and principal and agent.  In these and the like cases, the law, in order to prevent undue advantage from the unlimited confidence, affection, or sense of duty, which the relation naturally creates, requires the utmost degree of good faith (uberrima fides) in all transactions between the parties.  If there is any misrepresentation, or any concealment of a material fact, or any justsuspicion of artifice or undue influence, courts of equity will interpose and pronounce the transaction void ….

In short, it may be laid down as a general rule, that a trustee is bound not to do anything which can place him in a position inconsistent with the interests of the trust, or which has a tendency to interfere with his duty in discharging it.  And this doctrine applies, not only to trustees strictly so called, but to other persons standing in like situation.  … Besides, agents are not only responsible for a due account of all the property of their principals, but also for all profits which they have clandestinely obtained by any improper use of that property.

Story originated in the U S.  These citations come from an English edition.  But I am not qualified to say what may be the American law relevant to the millions upon millions Trump and his family are milking from the people as a result of his use, or abuse, of public office. 

Nor do I know whether abuse of, or misfeasance in, public office gives rise to a cause of action there, or whether our law of unjust enrichment may apply.  (That law derives from the decision of Lord Mansfield given before the United States was born, in Moses vMacferlan, and which was founded simply on the ‘ties of natural justice’ and ‘the equity of the plaintiff’s case’.)

It may help to mention two English cases where people have had to account for profit they made out of a relationship where they had to act in good faith.  Only one case involved dishonesty. 

In Reading v Attorney- General, an English sergeant during the war made a large amount of money by using his position and uniform to assist smugglers.  The court held that the assets of which the sergeant had control, or the facilities which he enjoyed, or the position which he occupied, were the real cause of his obtaining the money, and he was therefore accountable for it to his employer – at common law.  It mattered not that the employer had not lost any profit, nor suffered any damage.  (Sadly, our texts on equity are reluctant to discuss this decision at common law – given at the highest level.)

Previously, the same court (the House of Lords) in Regal Hastings Ltd v Gulliver had ruled that where the directors of a public company had, as if by accident, derived a profit from a corporate restructure, they were liable to account to the company for that profit.  It arose while they were discharging a fiduciary obligation, and that liability did not depend on any finding of fraud or bad faith.  ‘The profiteer, however honest and well intentioned, cannot escape the risk of being called to account.’ That is not comfortable reading for company directors.  Or servants of government.

So, our law makes not only the greedy pause before feathering their nest.  For present purposes, we need not stay to see what particular legal rubric – what we call common law or equity – that the court applied, since all have moved on since.

Under our laws therefore, Trump and his family would be liable to be sued for millions.  I do not know what is the position in the U S. 

It is easy to hear the response of Trump.  ‘I have not even been furtive; I am the most brazen hero of the Golden Age since Achilles.  In any event, I can do what I like since I am the President of the United Sates.’  Neither could be a defence, and either should inflame the remedy.

The assertion that the President is above the law represents an argument that was lost in England in 1215.  The President would strike at the very basis of the rule of law in the United Sates if he asserted that he could derive profit from breaching the trust imposed on him by virtue of his office, and that the law denied any remedy to the people.  Such a proposition may or may not hold in China, Iran or Russia, but not in the United States.

There is a medieval background beside Magna Carta.  The Statute of Westminster 1275 provided that ‘No Sheriff nor other’s King officer shall take any reward to do his office, but shall be paid out of that which they take of the King.’  Later, Lord Mansfield said that a ‘public officer’ held ‘an office of trust and confidence concerning the public.’  The general law – common law or equity – had for long provided that someone misusing an official position for personal gain was liable to the relevant authority under a writ of account.  This was not a matter of what we call ‘constitutional law.’  It is the law that applies to the boy selling pies at the footy.

The old writ of account at common law, which was later effectively taken over by courts of equity, goes back to at least the twelfth century.  It involved two phases.  First, the issue was whether the defendant was accountable.  Secondly, a judgment for the return of capital and any profits from its use.  As was common with the development of substantive law from procedure, the writ came first, and the doctrine followed later – reluctantly.  Still, a leading text book is entitled ‘The Duty to Account’.

There is nothing therefore extraordinary, at least for Australian lawyers, about public officers at the highest level being subject to the general law of the land.  To adapt the language of A V Dicey, no one is above the law, but all of us, whatever our rank or condition, are subject to the ordinary law of the land, and amenable to the jurisdiction of the ordinary tribunals.  ‘The principles of private law have with us been by the action of the courts and parliament so extended as to determine the position of the Crown and its servants; thus, the constitution is the result of the ordinary law of the land.’

The second proposition does not apply in the United States.  The first did not apply in France.  I would be surprised if that were so in the United States.  (A footnote in Dicey, published in 1885, refers to the ‘servitude of the French.’)

The Prime Minister of Australia and the janitor at Parliament House are subject to the same laws about how they go about serving the people of Australia.  If the barons got it right at Runnymede in 1215, this issue is not one of governance, much less the constitution, but one of domestic housekeeping.  The law in Australia is clear that employees are liable to account to their employers and this applies to employees of government.  It would be odd if the Prime Minister had less exposure to the law than the janitor.  Is the state of the revenue less important than the state of the loo?

Put differently, the question is not whether Ministers of the Crown are accountable to the Commonwealth and the people for any profit obtained in the carrying out of their trust, but on what legal ground could it be submitted that they are not?  A standard work of authority is blunt: ‘Wherever A owes a duty to B, B is entitled to recover from A every benefit obtained by A by virtue of his fiduciary position, without B’s knowledge and consent.’

If the legal position is not the same in the United States, it might be time they came clean about it.

Now, the proper plaintiff in any action against the President would, I suppose, be the nation – the United States.  Trump could prevent that – but only while he is in office. 

There are ways around this where a company refuses to sue its directors – one is a ‘derivative shareholder action’ – but I do not know what the position may be in the United States.  Eventually, however, Trump and his family could be held to account.

Which brings me back to the disconsolate prince of Denmark.  He fell to ground like the providential sparrow.  He felt cursed that it was left to him to put things right in Denmark.  The problem for America is that no one is putting their hand up to do so there.

And it would be a shame if they were seen to go back nine hundred years on the bequest of the nation from which they seceded.

Notes

Maitland on ministers of the Crown: The Constitutional History of England, C U P, 1963, 203.

Equity: Maitland, Lectures in Equity, Cambridge, 1910, 82-83.

Equity: Story, Commentaries on Equity Jurisprudence, First English Edition, Stevens and Haynes, 1884, pars 218, 232, and 462.

Moses vMacferlan (1760) 2 Bur 1005.

Reading v Attorney- General [1951] AC 507.

Regal Hastings Ltd V Gulliver [1967] 2 AC 134n, 144.

Statute of Westminster, 1275, 3 Edward I, Ch 26: Paul Finn, Fiduciary Obligations, 2016, 358, fn 15. (Wikipedia offers a different version.)

Lord Mansfield: R v Bembridge (1783) 22 State Trials I, 155-156.

The writ of account: J A Watson, The Duty to Account, Federation Press, 2006, pars 2, 61, and 169.  The writ said the defendant must ‘duly and without delay render to the plaintiff an account’ for the time during which he held the plaintiff’s money: Pollock andMaitland, The History of English Law, 2nd Ed, Vol II, 221.  The authors there say that in the thirteenth century, statutes ‘sanctioned a procedure against accountants which was in that age a procedure of exceptional rigour.’

Dicey, The Law and the Constitution, Macmillan & Co, 1885, 177 (and footnote), 216.

Quo vadis, Conservatism?

/ Geoffrey Gibson / Leave a comment

The most abused word in our language may be ‘conservative’.  When applied to the political attitudes of a person or party, what does it mean?  Is it of any use here in Australia now?  Do we have a conservative political party?

The Shorter OED has: opposed to change and holding traditional values… (in politics) favouring free enterprise and private ownership.  The Macquarie has: disposed to preserve existing conditions…cautious or moderate…traditional in style or manner….

These categories are very wide, and obviously open to questions of degree.  They practically invite the application of bromides like ‘broad church’ – until the body is so wide that it is no longer a church. 

Most labels are suspect – this one is even more so.  Some people are optimistic about the work of government.  Others are pessimistic.  Some crave change.  Others fear it.  There may be deep emotional values underlying differing world views.  The place of ‘science’ in all this is wobbly.  The temptation of deception is strong.  And the poseur might have a field day.  Especially one who craves the ear of the ‘people’.

We can see the room for slippage in the notion of ‘conservative’ from the definition in The Oxford Definition of Philosophy.

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

Those remarks are English and dated now.  No sane person here would refer to ‘a properly subservient underclass’.  But no political party in the Welfare State can reject ‘benevolent paternalism’.  That would be political suicide. 

We inherited the Welfare State from the English.  The constant political issue is that we demand to retain the benefits, but we turn against those who want us to pay for them.  The result is that our government is broke, because its members are too scared of us to do what is required.  They just pass the buck to the next lot. 

They deny that, but we do not believe them.  Nor do we do anything to fix the problem.  This failing looks to be inevitable in our model of democracy.  I have no idea what the end will be.

Another thing we inherited from the English was a rejection of theory or ideology.  We distrust both.  ‘Ideology’ comes from the study of ideas.  We act on the lessons of experience rather than the demands of logic.  You see very different attitudes across the Channel or the Atlantic.

Another thing we inherited from England, after America had not, is that the English had accepted the responsibility of government for looking after the poor from at least the time of Queen Elizabeth I (1558-1603).  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 most 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 English did not do this for ideology or out of charity, but for the prosaic object of keeping the peace against vagabonds.  They faced reality, not God.  Common sense trumps theory.  The distance from this very old English position to that in America now is as deep as the Atlantic.

When you add to that the fact that the Welfare State was introduced to England by Lloyd George and Winston Churchill in the People’s Budget, you get a better idea of the difference between us and the U S. 

Before Churchill, Disraeli had been the pin-up boy of English Conservatives.  That did not stop him taking the plunge and introducing something like universal male suffrage.  The great Prussian, Count Otto von Bismarck, had done the same for Germany before he introduced the Welfare State there.  Disraeli and Bismarck were archetype conservatives – and I admire both.

‘Conservatives,’ then, could be alarmingly ‘progressive, to use another very plastic label.  Even when ‘conservatism’ was in full flower it allowed policies we now call liberal or progressive and which would be pure heresy to those who claim to be ‘conservatives’ in the U S today.  Burke, Bismarck and Disraeli did things that would lead to apoplexy on Sky After Dark.

England had both a conservative party and a liberal party.  (Churchill flitted between both, but he was one off.)  England still has a party with ‘Liberal’ in its name beside the party of the Tories.

Australia has a party called the Liberal Party.  It also claims to be conservative, although its lore is that the title ‘Liberal’ was deliberately chosen.  It now looks neither liberal nor conservative.

For about a generation it was wedded to a party of very determined agrarian socialists.  That party now looks to be in the hands not of farmers, but mining companies and urban ideologues in think tanks.  The coalition further dilutes any recognisable platform.

What are the results in Australia? 

 First, neither of the two main parties can come close to forming a majority in parliament.  Each is on the nose to the public at large.  One is accused of forgetting its roots or past.  The other is accused – and fairly accused – of not fulfilling its obligations in opposition and of turning its province into a one-party state. 

Secondly, on vote-driving issues, the only differences between the two parties are those of degree.  With the possible exception of preserving the environment, neither major party offers policies that derive from its platform, and are different in substance to those of the other side.  Each is engaged in a listless and useless game of charades that turns people right off politics as a whole.

Thirdly, whereas two generations ago it was the Labour Party that was unelectable because of division, ideology, cranks, and crooks, now it is the turn of the Liberal Party.  They look useless and bent on sustained irrelevance under the sedative of the ideology of their media drivers. 

It is best to pass over the National Party and One Nation in silence.

The conclusion is, I think, that the word ‘conservative’ has no place in Australian politics.  It is at best useless, and at worst misleading.  Like ‘socialist’, it is a darling dodo of our time.

And no populist can claim to be ‘conservative.’  They stand, they say, for ordinary people against the ruling Establishment, whose members they brand with the term ‘elites’.  I long for the day when an Australian says ‘I don’t want the best cricketer in my Australian XI – I want a dinky die Aussie battler or bludger.’  Or someone walking into a hospital saying ‘I need surgery to deal with a life-threatening condition, but I don’t want a Top Gun surgeon – a GP from the sticks suits my schtick.  I distrust all elites.  I am but a child of the people. Who was it who said of the people, by the people, for the people?’

The most hilarious claimant for the label ‘conservative’ is Donald Trump.  His mission is to obliterate the whole status quo by deceit, and if necessary by violence and force.  And a frightening number of Americans are happy to go along for the ride on a violent road.  And the last thing Trump wants to ‘conserve’ is the planet.

His major trumpet, Fox News, has nothing to do with politics.  It exists simply to enrich and aggrandize its owners.  In this respect, it resembles Trump.  By contrast, the function of the Murdoch press in Australia is simple.  It appeals only to a portion of the voters who can only vote for one party, and while doing so makes that party unelectable.

The American ideology is home grown – the family, God, and the flag.  They look still to have a hankering after royalty, as do the French, but at its worst in the U S, you get the spewing hate of Stephen Miller, who is besotted by the very idea of ideology.

There is an ideology that has steadily been growing in this country which hates everything that is good, righteous and beautiful and celebrates everything that is warped, twisted and depraved.  It is an ideology at war with family and nature. It is envious, malicious, and soulless.  It is an ideology that looks upon the perfect family with bitter rage while embracing the serial criminal with tender warmth.  Its adherents organize constantly to tear down and destroy every mark of grace and beauty while lifting up everything monstrous and foul.

You would not want to be left alone in a room with a man who talks like that.  Goebbels would have blanched.  This is wild uncharted Scapegoat Territory.

So, the future looks bleak for democracy all round. 

Conservatism is a natural and decent instinct, but it has been claimed by people who are anything but decent, either because they are stupid, or greedy, or both.

Oddly enough, Australia may be well placed to deal with the Fall.  This is because we are not interested in ideology – or, for that matter, politics at large.  Life offers so much more.  Most sane Australians would much prefer to talk about footy or cricket than the so called ‘culture wars’.  And that is very healthy.  Australians correctly suspect those who have the time and inclination to indulge in what are called the ‘politics of grievance’.  What more do these people want?  What drives them to keep stirring the possum?  Did they not have enough toys in their childhood?

I was reminded of a very cold morning in the middle of winter on a crowded platform on a railway station an hour from Melbourne some years ago.  Then came the dreaded announcement.  The train was delayed.  Yet again.  That led to the following conversation.

I am going to punish these bastards for this at the next state election.

So am I, Mate.

Can you just remind me, Cobber – which set of bludgers claims to be running this bloody joint at the moment?

The Mob – and Some of our Vices

/ Geoffrey Gibson / Leave a comment

Shortly before white men began occupying this country, London was consumed by riots against Catholics.  These were the Gordon Riots of 1780.  Night after night, many substantial buildings, including the home of Lord Mansfield and his library beyond price, were burnt down, and hundreds were killed when the military established law and order. 

Charles Dickens told the story of those riots in his novel, Barnaby Rudge (1841).  It is an epic tale full of sound and fury, but an idiot is the hero, and this story is full of significance.  In the words of his mother, Barnaby, with the soul of innocence, ‘has been led astray in the darkness of his intellect.’  It must have taken real courage to write a novel so constructed, and having now read it for the third time, I regard it as the most powerful novel that this author has left to us.

It was not in my view an accident that led Dickens to write about the actions of the London mob with an idiot in the central role.  In words that will ring true for those who experienced the march against migrants that was patronized by neo Nazis in Melbourne in the beginning of Spring 2025, Dickens spoke of ‘this vast throng, sprinkled doubtless here and there with honest zealots, but composed for the most part of the very scum and refuse of London.’ 

One thing the novel is clear on.  People in a mob can be divided in two groups – the puppeteers, those who do the manipulating, and the base, those who are content to be manipulated.  It is an unholy marriage.  In the novel, one of the mob calls a puppeteer ‘so awful sly.’

Reading the novel again has prompted reflections on aspects of the Melbourne disturbances compared to the riots in London.

Selfishness

Even hermits may feel the need to call a plumber, night carter, or doctor.  If you wish to live with, or at least have access to, other people, you will not be able to act as if you were one person standing alone.  You would have to contradict Richard III expressly when he said ‘I am myself alone.’  (And he is the archetype villain.)  If you want to be able to take, you must be able to give.  In the vernacular, you must pull your weight.

This is too much for too many.  We saw it during the Covid emergency.  In an emergency, the need for cooperation and cohesion is increased.  Yet many selfish people asserted a right to opt out.  They sprouted ideological claptrap about ‘liberty’, or doubts about vaccines.  They were more concerned about their alleged rights than the vulnerability of others.  They were selfish. 

Some even claimed to be ‘sovereign citizens’.  Sovereignty is a tricky notion at best, but this looks like a contradiction in terms that makes as much sense as ‘powerless monarch’.  There is a term for such people.  ‘Bush lawyers’ are serial pests.

Then, after two police officers were murdered, and all available police were involved in a search for a dangerous killer, some decided to go ahead with a public event that they knew would take up police time and cause serious trouble.  They generated division and loathing, and some confronted and attacked police at the worst possible time. 

They seemed to be equally opposed to recent migrants and those who had been here for many thousands of years before any white people arrived in their boats.  (A lecturer of colour at Cambridge said the British Empire was spread by ‘water-borne parasites’.  It was a great line about ‘boat people’.)  The flag they purported to celebrate features a foreign flag – the one that was run up by those white migrants who first arrived here in 1788.  These marchers were in large part as nasty as they were selfish.

Prejudice

Truth matters.  Or it used to matter. 

We arrive at it, or try to arrive at it, by thinking.  There are many ways that process can be corrupted.  The most common is prejudice.  We tend to prejudge issues based on insufficient evidence and to arrive at an opinion that suits our world view.  Antagonism between people of different race, religion, sex, or sexuality typically starts this way.  It is harmless in sporting competitions, but poisonous elsewhere.

That is one way we fail to arrive at truth and risk being lost in Fantasyland.  But truth as a whole has been undermined by what is called ‘social media’, so that the man who was called the leader of the free world looks to have lost all connection with truth.  There is in play a catatonic movement in how people at large think – or, rather, don’t think.

Laziness

Too many people are too loose in their language.  We all have our prejudices – about religion and sport for example – but we are insulted if someone says we are prejudiced against people on the grounds of race, sex, or sexuality. 

The relevant terms of abuse include ‘anti-Semitic’, ‘misogynist’, and ‘homophobic’.  They have all been used so loosely that none has scarcely any useful content left.  If John the footballer is said to be ‘homophobic’, the relevant emotion is not fear.  Rather, the charge is that John dislikes gay people; that his dislike is irrational; and that he regards all gay people as being in some way inferior.  John is in truth endorsing a form of branding – something we normally reserve for cattle.

You do not compliment John by describing him in that way.  On the contrary, you are attacking him by denigrating his humanity.

There are then these problems.  This charge is far too often made with no adequate foundation.  And in circumstances of strife where prejudice and malice too often are manifest.  And the person making the charge is indulging in a form of branding, and so engaging in something like the vice he or she is attacking.

Stupidity

This ‘branding’ commonly involves its own kind of stupidity.  Do I have the right to call John a loud bigot just because he barracks for Arsenal or Collingwood?  Or can I call Ivan uncivilized just because he is Russian?  Or can I say that no Irish man can be trusted to pay tax because of the attitude of Irish government to tax? 

In each case the available premises do not support the conclusion.  The Latin phrase is non sequitur.  And in each case, there is an insult to the humanity of the target. 

Insult weighed very heavily in the Roman law of civil wrongs.  And you can find authority for a very large proposition of Roman law that any affront to the dignity of the individual was actionable for the wrong of inuria.  The common law knew nothing of the kind.

Victimhood

You know you are in Lala Land when Donald Trump claims that he and Vladimir Putin, and, for that matter Benjamin Netanyahu, are victims of some undue process.  (He is happy to pass over the fact that he is so far at least the only member of the trilogy to have been convicted of a serious crime.)  Nigel Farage claims the right to stand up for victims.  He says that ordinary English people are victims of excessive migration.  That claim was being aired in the marches against migrants here in Australia.

This is I suppose an example of what some people in the press call ‘identity politics’.  The problem is that to claim each member of a group should be regarded as different to the rest of the community, and therefore dealt with differently, can lead to the most pernicious consequences in the history of mankind.

Naivety

If you watch programs like American Greed, you will wonder at the stupidity of victims of con men.  You may wonder if you could be so vulnerable.  ‘There is one born every minute’ is a truth that comes from the fact that the promise of wealth distorts, or blows, people’s minds.  They forget one maxim of investment: the greater the return, the higher the risk.  At best, the victims look naïve, and when the scam is uncovered, they feel shame that they allowed themselves to be taken for a ride.  (I speak from experience of having been scammed.)

Recently, people marched in Melbourne protesting, they said, against migration.  Very few would acknowledge that all white people in Australia – the nation of the infamous White Australia Policy – are migrants, or descendants of migrants going back to 1788, but we can put that to one side.  We are assured that many of these people were decent people exercising their democratic right of protest in an event that was taken over by neo Nazis. 

That takeover was foreseeable, if not inevitable, and those decent people must be naïve to a level that makes them dangerous.  They were after all participating in the inevitable replay of an historical process.  Children fight hard to gain control of the tree house, and then fight like hell to lock out other upstarts threatening to dilute their power or wealth.  Try for example The Lord of the Flies by William Golding.

Jealousy

If you look at western democracies that embody the welfare state – and the U S is not one of them – you face the same problems.  People want to receive the same benefits from government, but they don’t want to pay for it.  Those at the top get cross at the increasing demands made on them, and those at the bottom are incensed at the lack of fairness in the distribution of income and wealth.  And they resent newcomers who look to them to be here to get their heads in the trough.  They fear that their own standing is being debased.

You know you have a problem when both ends are whingeing, but it is hard to persuade a bank teller that the system is fair and reasonable when her boss gets paid one hundred times what she gets, and when some professional people are charging north of thirty thousand dollars a day.

Righteousness

This term is not often used favourably now.  It is downright obnoxious when claimed for one’s self by the speaker – usually by implication.  It is implicit in the bearing of the victims.  The self-righteousness of some victims – actual or alleged – can be revolting, especially with those who look like anything but victims, when they seek to benefit from the suffering of others.  (A droll observer, might offer, from a safe distance, Collingwood supporters as a good example.  People of wealth and standing posing as victims.) 

Not many of these standard-bearers of the downcast are surgeons or silks.  But we see it now from those at the very top to those at the very bottom when they seek to assert some moral right in what is otherwise a sterile argument about wealth and power – underwritten by the green-eyed monster called jealousy. 

These claims on righteousness lead people into melodrama, and claiming a significance that life has otherwise denied them.  For a change, they mean something, and they have a cause.

And white Australians baiting migrants and people of colour, when all white Australians are white migrants or their descendants, are about as nasty as you can get.  Among other things, apart from our migrant past, you would have to shut down every hospital in Australia if you were to exclude migrants, especially those from Asia and Africa.

Insecurity

Insecurity is no more a vice than anxiety, but it plays a fundamental role in much of our communal unrest.  You do not see many professional people or leaders of business at MAGA or Nazi rallies, and you rarely hear complaints or fears about migrants from those whose position or status is secure.  The trouble often comes from those who are insecure, and therefore feel anxiety, a form of fear.  This then disfigures thought.  The great Dutch philosopher Spinoza said:

‘Men would never be superstitious if they could govern all their circumstances by set rules, or if they were always favoured by fortune …. The human mind is readily swayed this way or that in times of doubt, especially when hope and fear are struggling for the mastery, though usually it is boastful, over-confident and vain.  Superstition, then, is engendered, preserved and fostered by fear.’

Some cannot tolerate doubt, and along with superstition, they go after any conspiracy theory that they think might justify their world view.

It is, I suppose, a fact of life, if not language, that the weak are prey to predators.  And stupidity and insecurity lead inevitably to gullibility, as Spinoza observed. 

People become suckers for those who have the answer.  They are vulnerable, and when the aggrieved unite behind a leader, their communal belief and self-righteousness warps their minds, and strife and violence become more incidental than accidental.  On a bad day you get the Proud Boys.  Here it is the so-called neo Nazis – forget the neo, they are Nazis properly so called. 

Macaulay said:

‘We daily see men do for their party, for their sect, for their country, for their favourite schemes of political and social reform, what they would not do to enrich or avenge themselves…. virtue itself may contribute to the fall of him who imagines that it is within his power, by violating some general rule of morality, to confer an important benefit on a church, on a commonwealth, on mankind.’

Ambition

This does not sound like the people we are looking at.  ‘Ambition should be made of sterner stuff.’  Big hitters like Alexander, Julius Caesar, Napoleon and Hitler all had ambition and were brought down by it, leaving millions of dead behind them, but it does not seem the appropriate epithet for our protesting marchers.  They do not want to join the ‘elites’ – they loathe them.

Intolerance

Attaching headings to these traits should not give these labels any more force than traits to look for in trying to work out how we go off the rails.  They are all out there to combine to undo us.  But we may have left the worst to last.  Intolerance.  Sir Lewis Namier knew as much about history as anyone I have read.  He said what we miss is ‘tolerance with the restraint it implies.’  If you look at the flare-ups currently being encountered in the U S, the U K, or Australia, they arise from or are driven by intolerance and a lack of restraint.

Venom

The result of these vices can be a loathing that cannot be dismissed as irrational, and a form of vitriol that is anything but rational.  Such as Nazis or police killers who call themselves ‘sovereign citizens.’  These people are cancers on the common weal, and in looking at dealing with them, we should bear steadily in mind the forces for evil that were unleashed in Paris in 1789, in St Petersburg in 1918, and Berlin in 1933.  Those explosions led to catastrophic losses of life and human dignity.  It is curious that two are still celebrated in some parts.  But what we do know is that when revolution comes, the scum rises to the surface – and we can already see the scum before our eyes.

Dickens had at least two things in common with Shakespeare – the ability to depict precisely those at the bottom of the barrel, and an unholy fear of the mob.  In this Dickens novel, the hero was sentenced to death for his part in the riots.  He got a full pardon in the end, presumably on the ground of some kind of diminished responsibility.  Medicine may need to refine its views on insanity, and the law may need to do so on criminal liability, but it would be as well to remember the insistence of Hannah Arendt that:

‘The trouble with Eichmann was precisely that so many were like him, and that many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal.’

Being on the nose – the perils of minority

/ Geoffrey Gibson / Leave a comment

Where people within a community behave differently as a group within that community, you can get friction.  The Gypsies represent a paradigm case, but history offers many other examples.  Race and religion are the main drivers – say, black and white, Catholic and Protestant, Muslim and Christian – but the friction can have many drivers. 

Internal religious fights can be worse than those between faiths.  Apostasy is one thing – heresy is something else again.  The hereafter may be on the line.  And the friction can manifest itself in different ways.

Acceptance or rejection?

If the members of the minority have to behave and be seen to behave differently to others in their community, are they not satisfied with what the rest do?  Are they in substance rejecting the community at large? 

Believing in your faith or tribal connection does not warrant your being seen to demean or despise that of others.  But there is a real risk of deadly antagonism where a group in an otherwise tolerant society believes it has an exclusive answer. 

This is how Rome saw the early Christians.  The pagans were very tolerant when it came to religion – their own, and that of others.  But the Christians were fanatics who believed that they had the exclusive answer in the way of the Cross.  The Romans were insulted in their majesty, and in their civilised tolerance.  The Christians were in truth zealots, even more so than the obscure and singularly distinct tribe that spurned them, and no government likes to deal with zealots. 

This leads to a much deeper and slippery trap for a minority.

The fear of combination

Very few in government welcome people coming together to review, comment on, or act in response to government.  Milton said that ‘fear of change perplexes monarchs’, but monarchs are in truth aware of the trade union motto that strength comes from unity.  And this just gets worse when the true believers shun rather than court their home-grown neighbours.  Gibbon was caustic.

By embracing the faith of the Gospel, the Christians incurred the supposed guilt of an unnatural and unpardonable offence.  They dissolved the sacred ties of custom and education, violated the religious institutions of their country, and presumptuously despised whatever their fathers had believed as true or reverenced as sacred.

These zealots were following the teaching of a holy man executed under Roman law – and their numbers and fanaticism were bound to be seen to be threatening.  Here is Gibbon again.

Roman policy viewed with the utmost jealousy and distrust any association among its subjects; and the privileges of private corporations, though formed for the most harmless or beneficial purposes, were bestowed with a very sparing hand.  The religious assemblies of the Christians, who had separated themselves from the public worship, appeared of a much less innocent nature: they were illegal in their principle, and in their consequences might become dangerous; nor were the emperors conscious that they violated the laws of justice, when, for the peace of society, they prohibited those secret and sometimes nocturnal meetings.

Some may be reminded of the Freemasons in Europe at the time of Die Zauberflote; people of colour in the American South may be reminded of a truly evil association given to ‘secret and sometimes nocturnal meetings’.

The embryonic English Labour movement was boosted by a decision of the House of Lords in 1901.  In the Taff Vale Case, the English courts held that at common law, a trade union could be liable for loss of profits to employers caused by strike action by members of the union.  Although that may now look to be a case of class bias, the action for damages for breach of contract had to be dealt with by parliament if unions were to retain a workable right to strike.

But a more stunning example of the fear of combination can be found in France after the fall of the Bastille.  Some workers decided to press for better rewards.  Workers used strike federations (coalitions) to get a share of improved trade.  This led to the Loi Le Chapelier which in 1791 prohibited all such associations Well, whatever else may be said of 14 July 1789, nothing could have happened without associations.  The historian J M Thompson mordantly remarked:

It forbids corporate action, in the name of liberty.  It denies it to all alike, in the name of equality.  It prohibits any appeal to force, in the name of fraternity.

That is the history of the world – after a huge fight, children win control of the tree house, and then slam the trap-door shut to stop the next hungry lot claiming their share.  How could you square slavery with the Rights of Man?  How could the Declaration of Independence say that all men were created equal?

And traditionally, the targets of such laws against combinations were directed at the workers rather than the employers.  The first economist, Adam Smith, would have none of it.

We rarely hear, it has been said, of the combinations of masters [employers]; though frequently of those of workmen.  But whoever imagines, upon this account, that masters rarely combine, is as ignorant of the world as of the subject.  Masters are always and everywhere in a sort of tacit, but constant and uniform combination, not to raise the wages of labour above their actual rate.  To violate this combination is everywhere a most unpopular action, and a sort of reproach to a master among his neighbours and equals.

Those remarks caused me to ask if The Wealth of Nations was banned in some think tanks.

Divided loyalties

The Bible says that no man can serve two masters (Matthew 6 24).  It is hard to think of any ruler who does not subscribe very firmly to that view.

Catholics in England after Henry VIII had to explain how they could be loyal to the king or queen of England as their monarch and the head of the Church England, and at the same time owe allegiance to the head of the Universal Church in Rome – who happened to regard the English monarchs as heretics. 

The question that had been fraught became unanswerable after the Armada.  There is little doubt that the Spaniards would have burnt Queen Elizabeth I at the stake; and then along came Guy Fawkes. 

Charles I tested the boundaries, and paid for it with his life.  He was not Catholic.  James II was, and he went out of his way to provoke every part of the Anglican Establishment in a way that led to his losing the crown and to a change in the English Constitution after the Glorious Revolution.  It was, and is, impossible for a Catholic to be the head of state of England – or, now, Australia. 

That may all look old hat now, but any attempt to revoke that law – which is entirely repugnant to our general laws – may not be well advised.

The extreme peril of heresy

It is sufficient to set out lengthy citations from Kant, Religion within the Boundaries of Reason Alone.

Now, when, as usually happens, a church proclaims itself to be the one church universal (even though it is based upon faith in a special revelation which, being historical can never be required of everyone), he who refuses to acknowledge its (peculiar) ecclesiastical faith is called by it ‘an unbeliever’ and is hated wholeheartedly; he who diverges therefrom only in path (in non-essentials) is called ‘heterodox’ and is at least shunned as a source of infection.  But he who avows allegiance to this church and; diverges from it on essentials of its faith (namely, regarding the practices connected with it), is called, especially if he spreads abroad his false belief, a ‘heretic’ and, as a rebel, such a man is held more culpable than a foreign foe, is expelled from the church with anathema (like that which the Romans pronounced on him who crossed the Rubicon against the Senate’s will) and is given over to all the gods of hell.  Exclusive correctness of belief in matters of ecclesiastical faith claimed by the church’s teachers or heads is called orthodoxy.  This could be sub-divided into ‘despotic’ (brutal) or ‘liberal’ orthodoxy ….

We have noted that a church dispenses with the most important mark of truth, namely, a rightful claim to universality, when it bases itself upon a revealed faith.  For such a faith, being historical (even though it be far more widely disseminated and more completely secured for remotest posterity through the agency of Scripture) can never be universally communicated so as to produce conviction.

For heresy, thousands upon thousands of human beings who were perceived to be deviant would be executed by the followers of a holy man who was executed for just that sin against God.

Imported strife

The conflict between Catholics and Protestants in Great Britain was made far worse by events in Ireland.  The contempt felt for indigenous Irish people in England was originally a contempt for a race.  It all began before the Reformation split the Universal Church – with, say, the Statutes of Kilkenny of 1366.  But over time, the division came to be driven by religious differences.  And it became even more vicious because the stakes were so much higher.

In a migrant nation like Australia, where still about thirty per cent of the population was born overseas, there is a risk that people coming from foreign regions of conflict may bring that conflict here with them and so infect the people at large.  Something like that appeared in the fifties when people coming from the Balkans brought with them the products of centuries of conflict in their old homes.

But far worse for Australia, and so much more lasting, was the conflict between Ireland and England, and Catholic and Protestant.  It flared in an ugly and damaging way during World War I, and after World War II it was fundamental to the split in one of two parties in a two-party system.  The result marred our politics for a generation.  The problem then dissipated, largely because of the decline of religion.

There does not appear to be much risk of imported strife now, but if a group owes or expresses some form of allegiance to a foreign power, its members will need to tread warily if representatives of that power turn publicly against an Australian government.  That may well call for a test of allegiance.

Scapegoats

Migrants are usually in a minority, and so become prime candidates for the role of scapegoats.

In Ancient Greece there was a practice or rite of casting out someone like a beggar or cripple or criminal in the face of some natural threat or disaster.  There are traces of a far older tradition in Syria when a goat would be invoked in the purification rites for the king’s wedding – a she-goat was driven out into the waste with a silver bell on her neck.  More recently, but before the Greek custom developed, the Old Testament, Leviticus 16:8, said that ‘And Aaron shall cast lots over the two goats, one lot for the Lord, and the other lot for Azazel.’  The goat of the Lord was sacrificed, and the high priest by confession transferred the sins of himself and the people to the goat that was permitted to escape in the wilderness – where its fate would depend on what sort of predators it may have to contend with.  This was a form of atonement.  The goat that escaped became the ‘scapegoat’.  The traditions or rites might be said to prefigure the role of the Son of God being offered up to redeem mankind by atoning for its sins.  A scapegoat is one who is punished for the sins of others.  This ancient Middle Eastern rite has become a universal custom involving people rather than goats.

But the term has got much wider than that – a scapegoat now is not just one that has to answer for the sins of others; it has to answer for all the problems and failings of what might be called the host people. 

The worst example occurred in Nazi Germany.  The war had been lost only because of the failings of some generals and because Socialists and Communists had stabbed the nation in the back.  Once the German people got released from the hold of these forces of evil, it could realize its potential for the first time, and nothing could stand in its way.  The German character was not just innately good – it was superior; therefore, the reason for any failings had to be found elsewhere. 

You can see that now in what are called ‘populist’ politicians in the U K, Europe, and the U S.  Migrants become the source of all evil.  The scapegoat is the natural first base for a weak and insecure person who is a moral coward. 

It is also the kind of sloppy thinking that attracts insecure people, edgy commentators and journalists, and weak governments.

The threat to the status quo

The Gypsies may have been seen as a threat to civil order, but they were hardly a threat to the status quo.  A minority needs a lot more clout to achieve that status. 

The Huguenots in France and the Puritans in England had that clout, in large part because so many came from so high in the society that they were part of.  If you are going to be a strident minority, it does not help if you were already far better off than most before you stated your own particular claim to standing in the social fabric.  That could lead to the St Bartholomew Day Massacre, what would otherwise be called a pogrom.  Historians assess the standing of the Huguenots by looking at what they call the brain drain in France after their brutal suppression and expulsion.

The Puritans would come to be seen as a pest in England.  Under Cromwell, this fevered minority wanted to shut the pubs.  (They had previously shut the theatres – we could have been denied Shakespeare.) 

In America, the Puritans had the numbers – and it shows.  Among other things, they could make life difficult for Quakers.  The Quakers had been fined, whipped, jailed and banished during Puritan rule in Maryland before it passed its Toleration Act in 1649.  Women had been stripped to find signs of witchcraft, but this act made it unlawful to use hostile language about the religion of others, such as ‘Heretick, Schismatic, Idolater, Puritan, Jesuit…’  Then Penn started his Holy Experiment with Quakers in Pennsylvania.  At this stage of their development in the New World, the colonists prefigured the Enlightenment.  That did not last.  Slavery is not compatible with civilisation.

Religion does sadly seem to be at ease with hierarchy – rather like the judiciary.  And whatever else may be said about the Friends, they made the existing hierarchy feel uneasy – you could see traces of anarchy – and they were very effective leaders of the movement against slavery together with members of the Church of England.  If you take the view that slavery is contrary to any decent notion of civilisation, then the world had to wait until at least this level of abolition before it could consider itself civilised.  That is no small proposition.  And no small vindication of the Quakers.

The position of the Puritans in England was discussed by Paul Johnson in The Offshore Islanders.

English Puritanism was born among the Marian exiles of the 1550s [when the Catholic Queen Mary was burning Protestants]; it was thus an alien import.  It had a consistency wholly foreign to the English….The doctrine of predestination was ludicrous…. The Puritans, like the Roman Catholic extremists, believed that religion was the only important thing in life, whereas most Englishmen thought it was something you did on Sundays.  They were influential out of all proportion to their numbers because, like the Communists in our own age, they were highly organised, disciplined, and adept at getting each other in positions of power…. They oozed hypocrisy …But they did not believe in free speech.  They believed in doctrinaire religion, imposed by force and maintained by persecution…. The privileges the Puritans claimed for themselves they would certainly have denied to others…Above all, Puritanism was the dynamic behind the increase in witch-hunting.

No wonder they got up the noses of the English, and then took their love of witch-hunting to the New World. It still loves the hunt.  Just ask the President.

Caste from within

It is odd to many of us that some minorities have elaborate rules for confining contact with people outside their group.  It is as if they were creating their own kind of caste from within – and most Australians regard caste as a dreadful form of discrimination.  They are utterly and implacably opposed to any form of hierarchy imposed at birth.  We believe, with Sir Henry Maine, that the progress in human society has been from status to contract – we get where we can, not from what we are born with, but what we can achieve in life.  The caste system of the Hindus is anathema to us.  Among other things, it is an invitation to see people as type-cast, and that offends what Kant called the ‘principle of humanity’.

For example, the Gypsies had elaborate rules relating to dealings with gadze – non-gypsies – with life-changing consequences for those who infringed.  Here is what Sir Angus Fraser says in The Gypsies:

Even more pervasive is the dread of contamination….their purity beliefs can now be seen as a core element of their cultures, serving to express and reinforce an ethnic boundary and to delineate a fundamental division between Gypsy and gadzo….Wherever it is strictly adhered to, the taboo system informs all interaction between male and female and Gypsy and Gadzo, and for a Gypsy to be declared polluted is the greatest shame a man can suffer, along with his household.  It is social death…. but their overwhelming concern is with the uncleanness of the female and her potential threat to ritual purity…. The code thus serves to isolate those Gypsies who practise it from any intensive, intimate connection with the gadze; and its existence makes all the more understandable the concern, so apparent in their history, to avoid any form of employment that would require such contact.

This book of Sir Angus strikes me as reliable.  First, when the author refers to an ‘ethnic’ division, he is referring to what we call ‘race’.  Secondly, the strictures relating to cleanliness, women, and contact with others have a lot is common with the beliefs of other ethnic or religious groups.  Thirdly, it confirms the truth of the saying that we all need someone to look down on, and that those who see themselves as different very rarely see themselves as inferior – the contrary is the case.  Fourthly, these codes militate against assimilation with or acceptance by the majority, with the result that the minority ends up worse off.  The various defence mechanisms come back to bite their adherents.  Fifthly, to the extent that any such code may require or authorise discrimination against those found to have breached it, it may well be against the law of the land.

Nor should we forget that some among us just get unsettled to run into someone who just wants to be different.  Some get unsettled by doubt – they crave certainty where that is illusory. 

Others fear a failure to conform – it threatens their attachment and subscription to the body politic which gives them such security and standing as they have.  That is why some go clean out of their minds during revolutions – their whole world is exploding under them, and just what will they be left to stand on?  It is like driving on dry ice.

Jealousy

Green-eyed jealousy is destructive.  When felt at a social level, it arouses the hurt felt at apparent unfairness.  It is then potentially lethal.  It is a real risk for minorities that are seen to beat the system.  Examples are the Huguenots, who came from the upper layers of their world, and the Armenians, who showed a business acumen apparently beyond many of their Turkish neighbours. 

I say that as someone who bought this flat in Yarraville from an Armenian chicken farmer in Sydney who just happened to pick up a few blocks of local real estate on a trip to Victoria.  The Armenians were certainly very active in redeveloping Toorak – in a manner that held no appeal to the remaining elders.  ‘Upstarts’ or ‘nouveaux’ were polite epithets.  It is one thing to see people do well; it is altogether another to be overtaken by someone you once saw as beneath you.  If you really insult someone, you hit them just where it hurts. 

The last tax case I heard involved a scarcely literate Sicilian who migrated here.  He was at first a butcher and then a baker who bought land around Werribee so that by the time he got to me, he was worth north of $40 million.  Some locals could handle that success story better than others.  This will always be a potential problem for what are called ‘aspirational’ migrants who happen to do so much better than the old timers because that is their chosen destiny.

Unity in revolt or persecution

When Benjamin Franklin signed the Declaration of Independence, he remarked: ‘Well, Gentlemen, we must now hang together, or we shall most assuredly hang separately.’  He was surely correct.  They would either be the heroes of a new nation or very dead martyrs of the ancien regime.  You see the same theme in the Tennis Court oath at Versailles and all the propaganda of the artist David – Lenin and his ilk were rather more prosaic; so was their murder rate.

And persecution is a great bonding force.  For ‘persecute’, the OED has ‘treat someone in a cruel or unfair way, especially because of their race or beliefs.’  That was the fate, and the conditioning, of the early Christians, Gypsies and Quakers, and the response to the persecution so often just fuelled the fire by binding the victims together and making them identifiable. 

The study of victimhood, which can descend to self-righteousness, is a favourite of those parts of the press that decry ‘identity politics’ – while positively revelling in themselves; and at the same time rubbishing ‘virtue signalling’.  It is remarkable how so many who are so well off can feel so oppressed.  That is just another record claimed by Donald Trump – and a good slice of the United States.

A triumphant minority

Finally, there is the tragedy than can occur when the minority becomes the majority. 

Take the United States and Australia as examples.  When the white people first appeared in each, they were in the minority.  Because of their overwhelming strength in fighting capacity, they became the majority, and shattered the lives of the indigenous people forever, and in ways that should continue to evoke shame. 

In America, the degradation was made much worse by the importation of black African slaves, with the mordant consequence now that fear levels among many white people are made worse by the day by the threat that the white people may find themselves in the minority.

Conclusions

It would be tart to say that when peoples live together, numbers matter – but they do.  And scripture may be correct when it says that there is nothing new under the sun.

For many, there is some comfort about the slippery impact of the supernatural in the droll remarks of Edward Gibbon:

The various modes of worship, which prevailed in the Roman world, were all considered by the people as equally true; by the philosopher as equally false; and by the magistrate as equally useful.  And thus, toleration produced not only mutual indulgence, but even religious concord.

Finally, some people may get up noses of others just because they seem to be different.  At least, that is why I think my dog looked askance at cats.  And I don’t blame him.

Being on the nose – the perils of minority

Where people within a community behave differently as a group within that community, you can get friction.  The Gypsies represent a paradigm case, but history offers many other examples.  Race and religion are the main drivers – say, black and white, Catholic and Protestant, Muslim and Christian – but the friction can have many drivers. 

Internal religious fights can be worse than those between faiths.  Apostasy is one thing – heresy is something else again.  The hereafter may be on the line.  And the friction can manifest itself in different ways.

Acceptance or rejection?

If the members of the minority have to behave and be seen to behave differently to others in their community, are they not satisfied with what the rest do?  Are they in substance rejecting the community at large? 

Believing in your faith or tribal connection does not warrant your being seen to demean or despise that of others.  But there is a real risk of deadly antagonism where a group in an otherwise tolerant society believes it has an exclusive answer. 

This is how Rome saw the early Christians.  The pagans were very tolerant when it came to religion – their own, and that of others.  But the Christians were fanatics who believed that they had the exclusive answer in the way of the Cross.  The Romans were insulted in their majesty, and in their civilised tolerance.  The Christians were in truth zealots, even more so than the obscure and singularly distinct tribe that spurned them, and no government likes to deal with zealots. 

This leads to a much deeper and slippery trap for a minority.

The fear of combination

Very few in government welcome people coming together to review, comment on, or act in response to government.  Milton said that ‘fear of change perplexes monarchs’, but monarchs are in truth aware of the trade union motto that strength comes from unity.  And this just gets worse when the true believers shun rather than court their home-grown neighbours.  Gibbon was caustic.

By embracing the faith of the Gospel, the Christians incurred the supposed guilt of an unnatural and unpardonable offence.  They dissolved the sacred ties of custom and education, violated the religious institutions of their country, and presumptuously despised whatever their fathers had believed as true or reverenced as sacred.

These zealots were following the teaching of a holy man executed under Roman law – and their numbers and fanaticism were bound to be seen to be threatening.  Here is Gibbon again.

Roman policy viewed with the utmost jealousy and distrust any association among its subjects; and the privileges of private corporations, though formed for the most harmless or beneficial purposes, were bestowed with a very sparing hand.  The religious assemblies of the Christians, who had separated themselves from the public worship, appeared of a much less innocent nature: they were illegal in their principle, and in their consequences might become dangerous; nor were the emperors conscious that they violated the laws of justice, when, for the peace of society, they prohibited those secret and sometimes nocturnal meetings.

Some may be reminded of the Freemasons in Europe at the time of Die Zauberflote; people of colour in the American South may be reminded of a truly evil association given to ‘secret and sometimes nocturnal meetings’.

The embryonic English Labour movement was boosted by a decision of the House of Lords in 1901.  In the Taff Vale Case, the English courts held that at common law, a trade union could be liable for loss of profits to employers caused by strike action by members of the union.  Although that may now look to be a case of class bias, the action for damages for breach of contract had to be dealt with by parliament if unions were to retain a workable right to strike.

But a more stunning example of the fear of combination can be found in France after the fall of the Bastille.  Some workers decided to press for better rewards.  Workers used strike federations (coalitions) to get a share of improved trade.  This led to the Loi Le Chapelier which in 1791 prohibited all such associations Well, whatever else may be said of 14 July 1789, nothing could have happened without associations.  The historian J M Thompson mordantly remarked:

It forbids corporate action, in the name of liberty.  It denies it to all alike, in the name of equality.  It prohibits any appeal to force, in the name of fraternity.

That is the history of the world – after a huge fight, children win control of the tree house, and then slam the trap-door shut to stop the next hungry lot claiming their share.  How could you square slavery with the Rights of Man?  How could the Declaration of Independence say that all men were created equal?

And traditionally, the targets of such laws against combinations were directed at the workers rather than the employers.  The first economist, Adam Smith, would have none of it.

We rarely hear, it has been said, of the combinations of masters [employers]; though frequently of those of workmen.  But whoever imagines, upon this account, that masters rarely combine, is as ignorant of the world as of the subject.  Masters are always and everywhere in a sort of tacit, but constant and uniform combination, not to raise the wages of labour above their actual rate.  To violate this combination is everywhere a most unpopular action, and a sort of reproach to a master among his neighbours and equals.

Those remarks caused me to ask if The Wealth of Nations was banned in some think tanks.

Divided loyalties

The Bible says that no man can serve two masters (Matthew 6 24).  It is hard to think of any ruler who does not subscribe very firmly to that view.

Catholics in England after Henry VIII had to explain how they could be loyal to the king or queen of England as their monarch and the head of the Church England, and at the same time owe allegiance to the head of the Universal Church in Rome – who happened to regard the English monarchs as heretics. 

The question that had been fraught became unanswerable after the Armada.  There is little doubt that the Spaniards would have burnt Queen Elizabeth I at the stake; and then along came Guy Fawkes. 

Charles I tested the boundaries, and paid for it with his life.  He was not Catholic.  James II was, and he went out of his way to provoke every part of the Anglican Establishment in a way that led to his losing the crown and to a change in the English Constitution after the Glorious Revolution.  It was, and is, impossible for a Catholic to be the head of state of England – or, now, Australia. 

That may all look old hat now, but any attempt to revoke that law – which is entirely repugnant to our general laws – may not be well advised.

The extreme peril of heresy

It is sufficient to set out lengthy citations from Kant, Religion within the Boundaries of Reason Alone.

Now, when, as usually happens, a church proclaims itself to be the one church universal (even though it is based upon faith in a special revelation which, being historical can never be required of everyone), he who refuses to acknowledge its (peculiar) ecclesiastical faith is called by it ‘an unbeliever’ and is hated wholeheartedly; he who diverges therefrom only in path (in non-essentials) is called ‘heterodox’ and is at least shunned as a source of infection.  But he who avows allegiance to this church and; diverges from it on essentials of its faith (namely, regarding the practices connected with it), is called, especially if he spreads abroad his false belief, a ‘heretic’ and, as a rebel, such a man is held more culpable than a foreign foe, is expelled from the church with anathema (like that which the Romans pronounced on him who crossed the Rubicon against the Senate’s will) and is given over to all the gods of hell.  Exclusive correctness of belief in matters of ecclesiastical faith claimed by the church’s teachers or heads is called orthodoxy.  This could be sub-divided into ‘despotic’ (brutal) or ‘liberal’ orthodoxy ….

We have noted that a church dispenses with the most important mark of truth, namely, a rightful claim to universality, when it bases itself upon a revealed faith.  For such a faith, being historical (even though it be far more widely disseminated and more completely secured for remotest posterity through the agency of Scripture) can never be universally communicated so as to produce conviction.

For heresy, thousands upon thousands of human beings who were perceived to be deviant would be executed by the followers of a holy man who was executed for just that sin against God.

Imported strife

The conflict between Catholics and Protestants in Great Britain was made far worse by events in Ireland.  The contempt felt for indigenous Irish people in England was originally a contempt for a race.  It all began before the Reformation split the Universal Church – with, say, the Statutes of Kilkenny of 1366.  But over time, the division came to be driven by religious differences.  And it became even more vicious because the stakes were so much higher.

In a migrant nation like Australia, where still about thirty per cent of the population was born overseas, there is a risk that people coming from foreign regions of conflict may bring that conflict here with them and so infect the people at large.  Something like that appeared in the fifties when people coming from the Balkans brought with them the products of centuries of conflict in their old homes.

But far worse for Australia, and so much more lasting, was the conflict between Ireland and England, and Catholic and Protestant.  It flared in an ugly and damaging way during World War I, and after World War II it was fundamental to the split in one of two parties in a two-party system.  The result marred our politics for a generation.  The problem then dissipated, largely because of the decline of religion.

There does not appear to be much risk of imported strife now, but if a group owes or expresses some form of allegiance to a foreign power, its members will need to tread warily if representatives of that power turn publicly against an Australian government.  That may well call for a test of allegiance.

Scapegoats

Migrants are usually in a minority, and so become prime candidates for the role of scapegoats.

In Ancient Greece there was a practice or rite of casting out someone like a beggar or cripple or criminal in the face of some natural threat or disaster.  There are traces of a far older tradition in Syria when a goat would be invoked in the purification rites for the king’s wedding – a she-goat was driven out into the waste with a silver bell on her neck.  More recently, but before the Greek custom developed, the Old Testament, Leviticus 16:8, said that ‘And Aaron shall cast lots over the two goats, one lot for the Lord, and the other lot for Azazel.’  The goat of the Lord was sacrificed, and the high priest by confession transferred the sins of himself and the people to the goat that was permitted to escape in the wilderness – where its fate would depend on what sort of predators it may have to contend with.  This was a form of atonement.  The goat that escaped became the ‘scapegoat’.  The traditions or rites might be said to prefigure the role of the Son of God being offered up to redeem mankind by atoning for its sins.  A scapegoat is one who is punished for the sins of others.  This ancient Middle Eastern rite has become a universal custom involving people rather than goats.

But the term has got much wider than that – a scapegoat now is not just one that has to answer for the sins of others; it has to answer for all the problems and failings of what might be called the host people. 

The worst example occurred in Nazi Germany.  The war had been lost only because of the failings of some generals and because Socialists and Communists had stabbed the nation in the back.  Once the German people got released from the hold of these forces of evil, it could realize its potential for the first time, and nothing could stand in its way.  The German character was not just innately good – it was superior; therefore, the reason for any failings had to be found elsewhere. 

You can see that now in what are called ‘populist’ politicians in the U K, Europe, and the U S.  Migrants become the source of all evil.  The scapegoat is the natural first base for a weak and insecure person who is a moral coward. 

It is also the kind of sloppy thinking that attracts insecure people, edgy commentators and journalists, and weak governments.

The threat to the status quo

The Gypsies may have been seen as a threat to civil order, but they were hardly a threat to the status quo.  A minority needs a lot more clout to achieve that status. 

The Huguenots in France and the Puritans in England had that clout, in large part because so many came from so high in the society that they were part of.  If you are going to be a strident minority, it does not help if you were already far better off than most before you stated your own particular claim to standing in the social fabric.  That could lead to the St Bartholomew Day Massacre, what would otherwise be called a pogrom.  Historians assess the standing of the Huguenots by looking at what they call the brain drain in France after their brutal suppression and expulsion.

The Puritans would come to be seen as a pest in England.  Under Cromwell, this fevered minority wanted to shut the pubs.  (They had previously shut the theatres – we could have been denied Shakespeare.) 

In America, the Puritans had the numbers – and it shows.  Among other things, they could make life difficult for Quakers.  The Quakers had been fined, whipped, jailed and banished during Puritan rule in Maryland before it passed its Toleration Act in 1649.  Women had been stripped to find signs of witchcraft, but this act made it unlawful to use hostile language about the religion of others, such as ‘Heretick, Schismatic, Idolater, Puritan, Jesuit…’  Then Penn started his Holy Experiment with Quakers in Pennsylvania.  At this stage of their development in the New World, the colonists prefigured the Enlightenment.  That did not last.  Slavery is not compatible with civilisation.

Religion does sadly seem to be at ease with hierarchy – rather like the judiciary.  And whatever else may be said about the Friends, they made the existing hierarchy feel uneasy – you could see traces of anarchy – and they were very effective leaders of the movement against slavery together with members of the Church of England.  If you take the view that slavery is contrary to any decent notion of civilisation, then the world had to wait until at least this level of abolition before it could consider itself civilised.  That is no small proposition.  And no small vindication of the Quakers.

The position of the Puritans in England was discussed by Paul Johnson in The Offshore Islanders.

English Puritanism was born among the Marian exiles of the 1550s [when the Catholic Queen Mary was burning Protestants]; it was thus an alien import.  It had a consistency wholly foreign to the English….The doctrine of predestination was ludicrous…. The Puritans, like the Roman Catholic extremists, believed that religion was the only important thing in life, whereas most Englishmen thought it was something you did on Sundays.  They were influential out of all proportion to their numbers because, like the Communists in our own age, they were highly organised, disciplined, and adept at getting each other in positions of power…. They oozed hypocrisy …But they did not believe in free speech.  They believed in doctrinaire religion, imposed by force and maintained by persecution…. The privileges the Puritans claimed for themselves they would certainly have denied to others…Above all, Puritanism was the dynamic behind the increase in witch-hunting.

No wonder they got up the noses of the English, and then took their love of witch-hunting to the New World. It still loves the hunt.  Just ask the President.

Caste from within

It is odd to many of us that some minorities have elaborate rules for confining contact with people outside their group.  It is as if they were creating their own kind of caste from within – and most Australians regard caste as a dreadful form of discrimination.  They are utterly and implacably opposed to any form of hierarchy imposed at birth.  We believe, with Sir Henry Maine, that the progress in human society has been from status to contract – we get where we can, not from what we are born with, but what we can achieve in life.  The caste system of the Hindus is anathema to us.  Among other things, it is an invitation to see people as type-cast, and that offends what Kant called the ‘principle of humanity’.

For example, the Gypsies had elaborate rules relating to dealings with gadze – non-gypsies – with life-changing consequences for those who infringed.  Here is what Sir Angus Fraser says in The Gypsies:

Even more pervasive is the dread of contamination….their purity beliefs can now be seen as a core element of their cultures, serving to express and reinforce an ethnic boundary and to delineate a fundamental division between Gypsy and gadzo….Wherever it is strictly adhered to, the taboo system informs all interaction between male and female and Gypsy and Gadzo, and for a Gypsy to be declared polluted is the greatest shame a man can suffer, along with his household.  It is social death…. but their overwhelming concern is with the uncleanness of the female and her potential threat to ritual purity…. The code thus serves to isolate those Gypsies who practise it from any intensive, intimate connection with the gadze; and its existence makes all the more understandable the concern, so apparent in their history, to avoid any form of employment that would require such contact.

This book of Sir Angus strikes me as reliable.  First, when the author refers to an ‘ethnic’ division, he is referring to what we call ‘race’.  Secondly, the strictures relating to cleanliness, women, and contact with others have a lot is common with the beliefs of other ethnic or religious groups.  Thirdly, it confirms the truth of the saying that we all need someone to look down on, and that those who see themselves as different very rarely see themselves as inferior – the contrary is the case.  Fourthly, these codes militate against assimilation with or acceptance by the majority, with the result that the minority ends up worse off.  The various defence mechanisms come back to bite their adherents.  Fifthly, to the extent that any such code may require or authorise discrimination against those found to have breached it, it may well be against the law of the land.

Nor should we forget that some among us just get unsettled to run into someone who just wants to be different.  Some get unsettled by doubt – they crave certainty where that is illusory. 

Others fear a failure to conform – it threatens their attachment and subscription to the body politic which gives them such security and standing as they have.  That is why some go clean out of their minds during revolutions – their whole world is exploding under them, and just what will they be left to stand on?  It is like driving on dry ice.

Jealousy

Green-eyed jealousy is destructive.  When felt at a social level, it arouses the hurt felt at apparent unfairness.  It is then potentially lethal.  It is a real risk for minorities that are seen to beat the system.  Examples are the Huguenots, who came from the upper layers of their world, and the Armenians, who showed a business acumen apparently beyond many of their Turkish neighbours. 

I say that as someone who bought this flat in Yarraville from an Armenian chicken farmer in Sydney who just happened to pick up a few blocks of local real estate on a trip to Victoria.  The Armenians were certainly very active in redeveloping Toorak – in a manner that held no appeal to the remaining elders.  ‘Upstarts’ or ‘nouveaux’ were polite epithets.  It is one thing to see people do well; it is altogether another to be overtaken by someone you once saw as beneath you.  If you really insult someone, you hit them just where it hurts. 

The last tax case I heard involved a scarcely literate Sicilian who migrated here.  He was at first a butcher and then a baker who bought land around Werribee so that by the time he got to me, he was worth north of $40 million.  Some locals could handle that success story better than others.  This will always be a potential problem for what are called ‘aspirational’ migrants who happen to do so much better than the old timers because that is their chosen destiny.

Unity in revolt or persecution

When Benjamin Franklin signed the Declaration of Independence, he remarked: ‘Well, Gentlemen, we must now hang together, or we shall most assuredly hang separately.’  He was surely correct.  They would either be the heroes of a new nation or very dead martyrs of the ancien regime.  You see the same theme in the Tennis Court oath at Versailles and all the propaganda of the artist David – Lenin and his ilk were rather more prosaic; so was their murder rate.

And persecution is a great bonding force.  For ‘persecute’, the OED has ‘treat someone in a cruel or unfair way, especially because of their race or beliefs.’  That was the fate, and the conditioning, of the early Christians, Gypsies and Quakers, and the response to the persecution so often just fuelled the fire by binding the victims together and making them identifiable. 

The study of victimhood, which can descend to self-righteousness, is a favourite of those parts of the press that decry ‘identity politics’ – while positively revelling in themselves; and at the same time rubbishing ‘virtue signalling’.  It is remarkable how so many who are so well off can feel so oppressed.  That is just another record claimed by Donald Trump – and a good slice of the United States.

A triumphant minority

Finally, there is the tragedy than can occur when the minority becomes the majority. 

Take the United States and Australia as examples.  When the white people first appeared in each, they were in the minority.  Because of their overwhelming strength in fighting capacity, they became the majority, and shattered the lives of the indigenous people forever, and in ways that should continue to evoke shame. 

In America, the degradation was made much worse by the importation of black African slaves, with the mordant consequence now that fear levels among many white people are made worse by the day by the threat that the white people may find themselves in the minority.

Conclusions

It would be tart to say that when peoples live together, numbers matter – but they do.  And scripture may be correct when it says that there is nothing new under the sun.

For many, there is some comfort about the slippery impact of the supernatural in the droll remarks of Edward Gibbon:

The various modes of worship, which prevailed in the Roman world, were all considered by the people as equally true; by the philosopher as equally false; and by the magistrate as equally useful.  And thus, toleration produced not only mutual indulgence, but even religious concord.

Finally, some people may get up noses of others just because they seem to be different.  At least, that is why I think my dog looked askance at cats.  And I don’t blame him.

Who cares any longer about race?

/ Geoffrey Gibson / Leave a comment

Many summer schools at Cambridge and Oxford – and one at Harvard – have been lights in my life.  One or other university in England used to ask questions about what I suppose might be called my ‘race’.  Fortunately, they gave me the option of declining to answer.  This was just as well.  It’s not just that I did not know what the answer was – why was I even being asked?  I could not give a hoot about what label about race someone may seek to pin on me – but why would someone even try?

I suppose an exception would be if someone tried to pin me as being ‘Aryan’.  That would be deeply offensive – like calling someone – of either sex – an acolyte of Ayn Rand.  For that matter, I would be unsettled to be called ‘white’ – what decent inquiry could that be a response to?

As best I can see, I am a common garden Australian – in the name of God, anything but ‘Aussie.’  My dad’s mum was born in Scotland – hence my middle name ‘McPherson’.  On one of my trips through the Highlands, I got into the heart of the territory of the clan McPherson and visited the clan museum.  I went in thinking I might make a donation – as a member of the family, so to speak.  But I was informed, and not apologetically, that I was disqualified because the alleged clan connection was through the female line. 

‘McPherson’ means ‘son of a parson’.  My wife was born Clark and said to be Irish.  Clark meant ‘cleric,’ and the Scot thought she may have a stronger claim to being Scottish.  At that point I decided that they could stick any donation in a place happily made more accessible to those wearing a kilt.

That is a full account of any inquiry into my ancestry.  (But I was glad to hear years later that the McPhersons had a claim to fame.  Culloden was the site of the battle where the English toweled up the Scots once and for all.  My lot, I was told, were a day late.  Smart bastards.)

I was reflecting on this the other day while going to see my podiatrist.  He is Indian.  How do I know?  Because he is a person of colour with an Indian name and accent and we naturally discussed his background when discussing cricket, which has the power of religion in India.  Like so many from India, he is a passionate follower of cricket, especially when India is involved. 

We discussed a recent Test Match in England when most of the crowd was said to be Indian.  Perhaps I should say ‘of Indian extraction,’ since most of them probably lived in the U K.  We laughed at the difficulty of imagining such a scene in the land of any other former imperial power – like France, Spain or Holland.

When I lived an hour out of Melbourne in the sticks, I was occasionally heard to mutter that the problem was that there were too many white men.  In Yarraville, our needs are mostly met by people from every part of Asia.  The Greek and Russian Orthodox churches and the Greek and Italian cafes now look very Establishment, and if you cross over to Footscray, you may wonder what part of Africa or Asia you have landed in.

But in what instances might it be appropriate to talk of the racial background of someone?  If I say my mate Joe is Australian, Chinese, Aboriginal, Muslim, White, Coloured or Jewish – what does the epithet add to the conversation?  (I put to one side instances where the epithet may have consequences for the times of the meeting or the food to be served.)

If I say Joe is Aboriginal or Jewish, I am I think making a statement about his racial antecedents.  When might that matter?  Put differently, when might a statement about the race of a person become racist?

The Australian Constitution contains on my search only one reference to race.  Section 25 refers to persons of any race being disqualified from voting by the laws of a state.  ‘Race’ is not defined, but had its own meaning in the Imperial Parliament of the Empress of India.  The primary criterion was colour, even when Disraeli was Prime Minister of the U K.

Nor is the word defined in the Commonwealth Racial Discrimination Act 1975.  Its operative provision (s. 9) refers to ‘race, colour, descent or national or ethnic origin.’  Those terms are not synonymous.

A glance at the Macquarie Dictionary (7th Edition) shows what a minefield we have.

race…. a group of people sharing genetically determined characteristics such as skin pigmentation or hair texture…. the differentiation of people according to genetically determined characteristics…. a group of people sharing a language or culture or traditional beliefs or practices….

racism…. the belief that human races have distinctive characteristics which determine their respective cultures, usually involving the idea that one’s own race is superior and has the right to rule or dominate others…. behaviour or language…. either demonstrating an inherent prejudice without specific hostile intent or, alternatively, intended to offend, insult, humiliate or intimidate…

Jewish: of or relating to or characteristic of the Jews; Hebrew…

Hebrew…a member of that branch of the Semitic people descended from the line of Abraham; an Israelite; a Jewish person….

Perhaps I should set out s. 9 of the Commonwealth Act:

 It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

It is apparent that the Commonwealth regarded the qualifier of ‘race’ as being at least potentially different to the qualifiers of ‘colour, descent, or national or ethnic origin.’  ‘National’ looks to be in a different kind of field to ‘race’, ‘colour’, ‘descent’ or ‘ethnic origin’.  But if you are speaking of ‘national origin,’ that may be as hard to shake off as ‘ethnic origin’ or ‘race’ ‘colour’ or ‘descent’.

But when might any such distinction matter – decently or at all? 

As I recall it, the Irish got justifiably sick of being on the wrong end of tasteless slips or slurs.  There is no doubt that England’s ‘Irish problem’ began many hundreds of years ago because they regarded the Irish as racially inferior – they had about the same level of contempt for indigenous peoples in Ireland as their successors would show to indigenous people in Australia when they settled here.  ‘Beyond the pale’ was an exercise in apartheid in the fourteenth century.  (The English had similar feelings of superiority toward the Scots, but the Scots were armed and dangerous to the people of England in their own homes, and accordingly were treated with less obviously lethal contempt.)

If you can afford a Zegna suit, a Panerai watch, or a Ferrari, you will be said to enjoy ‘Italian flair’ – and pay heaps for the privilege.  The Germans on the other hand have not had a good press since Dante or even Tacitus – where they are treated as a nation of drunks.  But they also meet more sinister and persistent aversions.  When I started following F1, Michael Schumacher was preeminent.  He was also guilty of misconduct – that I was, and am, prepared to make allowances for.  Then I read a sensible analysis by an English journalist who said that Ayrton Senna was much worse.  But his misconduct was mere ‘Brazilian flair,’ whereas Schumacher showed ‘ruthless Teutonic efficiency’ – and ‘Teutonic’ has shades that go back to the Dark Age.

Here was a typical case of how we slip back to prejudice through a combination of haziness, laziness, and nastiness.

If I talk about Joe’s beliefs, these are matters that Joe can, at least in theory, change.  But that is not the case if I am talking about qualities ascribed to Joe at birth – race, colour, or descent.

The real vice in each case is the same.  I am allowing an incursion into Joe’s dignity or worth that arises merely from the fact that he is human.  If it matters, the person who most clearly stated that opinion was a German named Immanuel Kant.  It may be described as a masthead of the Enlightenment – which was in large part driven in Germany. 

The other disservice I do Joe in looking at attributes he might be said to have been saddled with at birth is that it may appear that he has been denied the benefit of the movement, in what we call the civilized world, by which our rights are said to derive from Contract rather than Status.

And if we find that status is in some way genetically determined, at what point might we enter the verboten world of caste?

The upshot is that I see little or no point in talking about my race or that of any other people.  There are of course some harmless exceptions – like the wonderful capacity of Pacific Islanders to play rugby, or the endurance of Africans in long distance athletics, but they are exceptions.

And I am happy enough to live with ‘Australian’ as my only relevant signifier of my background or standing in my community.  If I had been embraced by the McPhersons at Newtonmore, and become a devoted self-proclaimed Scot, with the zeal of a convert, could I perhaps have got to the stage where I felt being called on to decide which was my best call sign – Australian or Scots? 

Or perhaps I may have reflected on The Divided Self written by the Scot R D Laing who said that if you put up a front long enough, you might wind up with nothing left behind the screen.  (At least, that is how I read it a very long time ago at university.)

As for religion, most people believe that religion holds nothing for them – except the one they subscribe to.  That is my view, except that I have no exception.  I have no faith in any religious faith.  Others can do what they like that is lawful, while I hope that they do not get in my way, either politically, or so as to cause me grief when it comes my time to go.

If you want to know why I am so cool about God, consider Deuteronomy 20:16-18.  The passage begins:

But of the cities of these peoples which the Lord your God gives you as an inheritance, you shall let nothing that breathes remain alive.  But you shall utterly destroy them….

As I follow it, the three major faiths to come from the Middle East give some credence to the book that contains this command from God to annihilate tribes other than God’s chosen people: ‘let nothing that breathes remain alive’.  Can you  imagine anything more lethal?  On a bad day, it might lead me to believe in another venomous proposition – Original Sin.

Since I was born in 1945, I came into man’s estate in Australia in a democracy crippled by the strife within one of the two major parties.  That strife was in no small part driven by forces out of Ireland and Rome – at least, that is what I was taught as a God-fearing Protestant.  The bigotry was both hurtful and harmful.  To my mind, it showed a national immaturity that only ended with the steep decline of religion. 

When the English and Irish strife arrived here, both sides were holier than thou, and my country right or wrong.  But it was beyond doubt that England had treated Ireland appallingly over the centuries, at first just on racial grounds, and later on both racial and religious grounds.  We don’t need to see anything like it again, and I am relieved that my children know nothing about sectarian or foreign division within Australia.

As I recall it from the mists of time, there were two twists in the tail for the Irish diaspora and the sectarian conflict between Protestants and Catholics here in Australia.  One was that if people here wanted to identify with people in Ireland, they were entrusting their standing to forces beyond their control.  What did they have to say about terrorism and the IRA? 

If I claim to be identified with a foreign regime because of some perceived genetic connection with those who run it, I may bring down on my own head unwelcome imputations if that regime behaves inhumanely.

The other issue with the Irish was that of divided loyalty.  This erupted in Britain with the Reformation, the Act of Supremacy, the Spanish Armada, and Guy Fawkes.  It was settled in the Glorious Revolution of 1689.  The result is that under the English constitution, and therefore relevantly ours, we cannot have a Catholic head of state. 

I wonder if we could pass a law to that effect now.  A key part of our inheritance from the United Kingdom would be against the laws that we presently have in place.

Well, then, in the year of Our Lord – anno domini – 2025, why do any Australians feel any need to get tied up about their ancestry?  Isn’t being Australian enough? 

After all, have we not enough on our plate already in dealing with the oppression of our indigenous people in the years that have elapsed since Governor Arthur Phillip ran up the Union Jack at Sydney Cove in 1789, and commenced the process leading to the creation of the Commonwealth of Australia? 

It helps to remember that Australia, as it now is, started off as a jail for the rejects of Britain – and those in charge were not much better than the convicts.   And not one of either had an ancestry to write home about. 

Not much of a rock to build a bloody nation on.

Non sequiturs

/ Geoffrey Gibson / Leave a comment

The most common form of fallacy, in the broad sense of that term, is a statement that the premises of an argument lead to a conclusion that they do not.  The conclusion simply does not follow from the premises.  The Latin term is non sequitur.  ‘My uncle smoked fifty a day and lived until he was ninety – when he got hit by a bulldozer.  Therefore, I can smoke the same amount without impairing my health.’

If I criticise the present government of Ireland, that act alone cannot establish that I have an irrational prejudice against Irish people at large – especially those people claiming to be Irish at the other end of the world.  That would be an obvious non sequitur.

But if Irish people in Australia accused me of such irrational prejudice against all Irish people on that basis, and no other evidence, I would resent that very much. 

And that resentment would be much greater if those making this untenable charge – because that is what it is – are plainly not stupid, but hold positions of responsibility and power.  (On a bad day, they may even get the sobriquet of being ‘influencers’, people who are rarely seen without a smart phone or podcast mike in their hands.)  I would regard this false charge from such a source as malicious. 

What do I mean by malice in this conduct?  In the words of Justice Holmes, ‘harm to another person was intended to come of it, and … such harm was desired for its own sake as an end in itself.’

The risk then is that a false charge against me has led to my having an adverse opinion of at least some Irish people.  And this might then be urged to support a claim that I had an irrational prejudice against Irish people at large.  And so, a false statement gets what some call ‘traction’, and this rolling ball can gather plenty of moss.

People can have their own views about the bearing of this analogy on the current discussion surrounding suggestions put forward by the Special Envoy to Combat Antisemitism.  The lady is obviously one of outstanding credentials and honours.  She is one of the most privileged people in Australia, one who could attract the ear of government – or, if you prefer, call on our government to hear her voice.  Her Wikipedia entry is a trainline of civic adornment and government recognition in the Sydney Establishment.  University Medal.  Harvard.  Associate to High Court Judge.  Partner of the Sydney Establishment law firm.  Director of a bank.  Officer of ASIC, member of the Opera board, and other quangos.  Order of Australia.  As elite as it is possible to get in Oz, she would be as far removed from Old Jack out the back of Yuendemu as any person, white or black, in this Commonwealth.

And at least two things seem clear about the envoy. 

First, someone of this training and experience would be quite incapable of committing the non sequiturs that I have referred to above.

Secondly, we are asked to accept that those as elite as their envoy are in need of protection over and above that afforded by our laws and governance to identifiable minority groups who do not have the same political clout or economic heft.

And even this discussion seems both petty and insensitive when we reflect on the inexpressible horror of events in the Holy Land that have led it to it.  Is it not the case that a whole ocean of ink cannot wash away the stain left by one lost child?

But, still, in what sense is the lady an ‘envoy’ – a title certainly denied to the people of Old Jack? 

If I look at the Shorter English Oxford Dictionary, I find ‘A public minister sent by one sovereign or government to another for the transaction of diplomatic business’ and ‘An agent, commissioner, deputy, messenger, representative.’ 

Surely neither party contemplated the kind of separation in our community that those terms would suggest.  Do the people the envoy was appointed to represent really want to be seen to be that different to other Australians?  Should I be looking at my friends of Irish or Jewish descent as being somehow different to me – branded, even?  Do Albanian or Anglican Australians see themselves as separated from the rest of us by race or at all?  Outside of the First Nations, does human pedigree somehow count in my country?

I will look later at some issues arising from the appointment of this envoy and her recommendations to the government that appointed her.  The only thing I wish to say of it now is that both the appointment and her advice seem to me to be predicated on the proposition that events in the history of one race of people may entitle or even require a government to treat all people who belong to that race differently as a matter of law to people of other races. 

That in my view is a proposition that is as pernicious as it is baseless.  And I fear it will generate real resentment and cause just the kind of grief and stress that the creators of the office of envoy sought to contain.

Trying to deal with Australians who are seen by some to be different is not, then, this Prime Minister’s strong suit.  He is in my view honest and well meaning, but this is his second gutser in the tricky realm of race in Australia.  Honesty may be necessary, but it is not sufficient, and the old saying remains true – the road to hell is paved with good intentions.

Well, at least some Australians may get some light relief from reflecting that those who support the appointment and the work of the envoy include a lot of those political and press warriors who spend so much time banging on about elites, identity politics (the tendency of people in a group to forge exclusive alliances), virtue signaling, or giving our First Nations people a Voice recognized in the Constitution – because, wait for it, it would be ‘divisive’ in the Australian community!

And then we could look at those people whom the envoy was appointed to represent, and ask how many people of, say, Aboriginal, Chinese, Arab, or Muslim descent or connection have risen to the same commanding heights as her lot in in the professions, business or government of Australia – or even just attained common garden membership of the Melbourne Club or Royal Melbourne Golf Club.

Events, dear boy, events – are what keep our weather cocks turning in the wind. 

, , , ,

Race – racism – Special Envoy.

France and England Compared

/ 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 17th 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, 2nd 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.

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

/ 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 (2nd 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.