War against Humanity
Our present discontents
One problem is that people in government and business who should be looking after us prefer to look after themselves. Our community is being trumped by their egos.
When the babyboomers like me were born at the end of World War II, Australia was heading for a period of sunny growth, peace and prosperity. The organs of government and business that we had inherited from England were working well enough. Our prosperity was underwritten by what we found under the ground and what we could grow above it. We were about to be enlivened by migrants first from Europe and then from Asia and Africa – to our never-ending betterment.
Our condition was famously defined by the remark of Donald Horne that ‘Australia is a lucky country run mainly by second rate people who share its luck’. That is still the case, in spades, but no sane Australian then or now would ever dream of living elsewhere.
Government was then as now both timid and mediocre, but the party that might now be labelled ‘progressive’ had just shot itself in the head – again – leaving us with a generation of one-party rule.
Business was staid and protected. Our parents had survived the Depression and the war. They would never be as free of care as us, but they mowed the lawns listening to the footy or cricket in their suburban refuge, while waiting for us to be their triumph and bring home the bacon on the ‘broad, sunlit uplands’ envisioned by Winston Churchill. We were truly blessed to have been born there and then. (Provided, as a male mate mordantly remarked, you were a boy.)
In those days, most of the girls waited to be married. The boys, if they were not stupid, were assured of a free university education. (And we beneficiaries of that system are horrified that others now deny it to our children and grandchildren.) For the boys who were not so fortunate, or not disposed to engage in what technical education there was, there were at least two courses open to them that may have seemed dull to some, but which were both respectable and provided an assured future – the civil service and working for a bank.
All that has gone – in the space of one lifetime. Our whole understanding of communal life – life in our community – has shifted. And that shift has been inward toward the ego rather than outward toward the community.
All too often now when we deal with government or business, we are invited, if not made, to do so on the phone or online, or both. This of itself is threatening for those of my generation who now feel our age. We are not then dealing with a human being, but a robot in the form of a computer that feeds into our laptop or mobile phone.
And we have meekly surrendered.
For the most part, we are not dealing with a man or woman in government or business who can take responsibility for a decision and the action of the department or company that they represent. And who can therefore discuss with us the reasons for the decision and how it might be best implemented – or perhaps altered or withdrawn.
The decision will usually mean far more to you than to them, and in most cases, they will have much more power and resources than you. And the capacity to live with a bad decision or failure of process. Robots do not lose sleep, hit the bottle, have trouble with the tax man or a cranky bank manager, or get divorced. Or get insulted by an ATM that refuses to issue money, or get a threatening notice for being late with some response.
The Adversarial Trial
1
Conflict
A court of law – the place that Sir Owen Dixon called ‘the judgment hall’ – is a combat zone. People go there to fight. It may not look that way to you, but it certainly does to most of the punters. A court room is a scene of conflict. For ‘conflict’, the Oxford English Dictionary gives us ‘an encounter with arms; a fight; especially a prolonged struggle’. That is very apt for this note.
The court sees two types of conflict. What are they?
People generally go to law because they have been hurt and they think that the law might be able to give them some form of redress – in the writ that starts their legal action, their lawyer often asks for ‘relief.’ That is a good word for what they want. They believe that someone has done them some harm by breaking their word or their trust, or by some careless act, or by some other harmful conduct that some precedent or statute enables the court to do something for them in return. The conflict starts with a perceived wrong, and the victim believes, usually with legal advice, that if they go to court, the process of the law will help them to deal with that wrong. They hope to come out better off than they were before suing.
If a stranger runs into the back of your car, or bad mouths you in the press, you are put into a position of conflict. By and large, only deranged people enjoy conflict or seek to create it. Most of us try to avoid it, or we at least try to reduce the risk or extent of it.
But some conflict is worse than others, and this is why although it is hard to think of any good litigation, some litigation is worse than others. The conflict is usually worse if there has been a breakdown in a previous relationship, especially one of trust, say between business partners or husband and wife, or where the parties have to live together, and the conflict is eating into their lives, as in a fencing or nuisance dispute between neighbours. The resulting litigation is likely to be a lot more wounding and stressful – and the wounds incurred are likely to take much longer to heal, and to be even more beyond the kind of relief that a court can direct than wounds suffered in conflict between strangers. Purely commercial brawls might involve money and face, but they are a lot less wearing than cases where real people have real lives on the line.
Under our process, which goes back for many hundreds of years, the judges do not sit under a palm-tree, make such inquiries as they think fit, and then pronounce some decree that they think is right to resolve the conflict. That system has not appealed to us – as someone said, he who sits under a palm-tree knows not where the nut may fall.
Under our system, each side presents their side of the case according to the rules laid down for this kind of contest, and the judges award the decision to the party found to have the stronger case under those rules. We do not hold an inquiry into some kind of abstract truth. That kind of thing is far too grand or, too ambitious, for our taste. We leave that kind of inquisition to foreigners and royal commissions.
The great legal historian F W Maitland compared our judges to cricket umpires – people who stand there silently and respond to the question: ‘How’s that?’ Sir Daryl Dawson put it this way (in a criminal case, where onus plays a bigger role):
A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted, and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side. When a party’s case is deficient, the ordinary consequence is that it does not succeed.
Put differently, the party with the stronger case wins and the one with the weaker case loses.
It would be silly to suggest that mistakes are not made or that innocent people do not get hurt under our model. What we have is a kind of judicial duel where the prize goes to the side that is found to have the stronger case – and in the process, both sides, including the eventual winner, can get badly hurt.
People thinking of going to court to resolve some conflict need to understand these things. In an attempt to resolve their conflict, they are taking it to another level, and to a process that involves its own kind of conflict, often in a very public way. There must be the risk that in escalating the conflict, they are making it worse. They are certainly raising the stakes.
One of the first things that the lawyer has to tell someone complaining of the hurt flowing from some felt wrong is that it is highly unlikely that as a result of legal process they will be put in a position as if that wrong had never happened. They are now worse off than they were before the wrong was done, and the probabilities are that they will stay that way, even if they ‘win’ in the court battle.
This is important. To go back a bit, they may or may not come out of court better off than they were before suing, but they are quite unlikely to end up as if nothing bad had ever happened at all. You might compare the process to that of a surgeon asked to operate to deal with an injury or illness.
Paraplegics who get millions would hand them all back, even with a few more zeroes, if they could be put back to the way they were before the accident. Money is very imperfect in measuring pain and suffering. If someone instructs you to insert a clause in a contract requiring one party to ‘make the other whole’ after a breach, you should tell them that this may or may not be possible in dollars, but it will very likely be impossible for other purposes.
It is fundamental in considering any legal action, and whether to settle it once it has started, that the party claiming to be wronged is quite unlikely ever to return to their position before they suffered the wrong. They’ve taken a hit, and we can’t just wipe out the effects of that hit. The law cannot rewrite history.
And this goes for the other side as well. No sane person wants to be sued. Some know that it is coming, because they know they have done something to upset the person suing, but often the writ will come as just as nasty a surprise to the person sued as would a slap in the face.
But once the party is effectively sued, they too are likely to have suffered a form of harm – the anxiety, cost, and risk flowing from being sued – that they will never entirely get over – even if they ‘win’ the case.
The point is that in both these kinds of conflict, neither side is ever likely to feel quite as well as if the relevant events – the initial hurt or the resulting legal action – had never happened. They are both behind scratch – and, sadly, often one side or the other has a lot of trouble getting over that simple fact of life.
The Pursuit of Happiness
What I believe
I
Well, then, I am not a dog or a cat. The Wolf and I were close – but not that bloody close. I was born a human being. This means a lot to me. I can think and talk in a way that cats or dogs can’t. If I was a baboon, we would not be having this conversation – even if you were all baboons.
Our humanity is a comfort to us since we live on a planet that revolves around one of the countless millions or billions of stars in creation. For me, the whole notion of humanity is basic. Too many of us take it for granted.
I believe that human beings evolved from animals on earth. I am told, and I believe, that this process of evolution was completed round about 200,000 years or so ago, in that part of Africa that is now thought by some to be one of the most backward parts on earth. (Being first is not therefore everything.)
I believe that humans started moving out of Africa about 70,000 years ago. I forget when they first arrived down here in Australia, but I believe that two things that distinguish us from the gorillas are cutlery and courtesy. Those figures for time are very rough, but that hardly matters – we can hardly grasp the extent of those times as they are.
My part in time is therefore minute – much less than a drop in the Pacific Ocean or a grain of sand in the Sahara Desert. If you reflect on the inconceivable vastness of the universe, my part in space is even smaller.
If there is a God, He or She must have a very big filing cabinet. I do not believe in God as most people understand that word. The idea of God does not answer any questions for me. But if I could, I would pray that there is no God with the personality that many religions seem keen to describe. The Bible and the Koran both speak of atrocities by or in the name of God. And history suggests that too many of the worst wars and atrocities were suffered because of strife with or within the faithful – the latter being the more savage.
When I say that I don’t believe in God, I mean just that. I am not saying that there is no God. It is, if you like, a matter of personal choice. Whether you follow Arsenal or the Storm is a matter of choice, and people usually arrive at a choice of God in a similar way to choosing their footy team – by inheritance or by chance. The most devout Muslim may have been an equally devout Hindu had she been born next door or over the road.
Others have a different view about God. That is their perfect right, and good luck to them – as long as they don’t try to inflict their views on me. I, for my part, find it handy to use the term God when I am talking, even though I personally do not believe in one. I am, if you like, a God-fearing doubter.
Some believe in a God. Some don’t. But no God has a majority, and most people accept that all Gods have no foundation – except theirs. Their faith is that they have drawn the best ticket in the lottery. The only difference between me, a doubter, and others, believers, is that I cannot find it within myself to allow an exception.
I am therefore like the great legal historian F W Maitland who said he dissented from all churches – although on another occasion, he described himself as a ‘very Protestant agnostic’ – a label I could live with.
About twenty years ago, I did an online philosophy course at Oxford: ‘Does God exist?’ (Philosophy was my major in my Arts Degree, and I have topped it up at summer schools at Cambridge and Oxford. I will come back to this.) I was mortified to learn, as were other members of the class, that the tutor had written a book endorsing Pascal’s wager. Pascal said that God may or may not exist, but if He did, it was worth your time to offer some form of allegiance. That looks like an each-way bet – not something a decent God would smile upon. (And here I refer to Groucho Marx. He said he would not want to join a club that would take him as a member.)
But there is an underlying truth. Many versions of God are offered to us. People who commit to one are in a lifelong gamble that theirs is the contender best placed to suit them. But the arithmetic is inexorable – most must be on a loser because they do not, like the Greeks or Romans, countenance multiple gods.
Very few believers face that quandary squarely. Gibbon said:
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.
The superstition of the people was not imbittered by any mixture of theological rancour; nor was it confined by the chains of any speculative system. The devout polytheist, though fondly attached to his national rites, admitted with implicit faith the different religions of the earth. …. The Greek, the Roman, and the Barbarian, as they met before their respective altars, easily persuaded themselves, that under various names, and with various ceremonies, they adored the same deities.
Since in my view nothing can come from nothing – that’s one thing King Lear got right – there can be no answer to the mystery of creation.
There is a fire station on the peak of Mount Victory in what white people call the Grampians in Victoria. I like to visit it at least once a year. If you look down and out over a valley between various mountain ranges, you will see our bush as God made it, or as the blackfellas first saw it. And at dawn or dusk, you will see our bush move through the kinds of colour changes that bedazzled Monet. We can document moments in the development of time and space – but not how it all began.
And just as I cannot conceive of nothing, I cannot conceive of infinity or eternity. Or God.
I certainly do not believe in any afterlife. The idea now sounds fanciful to me. I have no wish to keep going when I die. I agree with Einstein – once is enough for me, too. Or, as someone said in War and Peace, when you die, you either get the answers to all your questions, or you stop asking them. I fancy the latter.
Indeed, the idea of an afterlife may be fine. Like the idea of God. But which manufacturer, and which model? And how much do you want to pay? And do you really want to live forever – and never die?
Then there is the problem with religious texts – scripture. Two of what for me are the more obnoxious notions to enter the West from the East are these. There is only one God, and he can and does prefer one people or tribe over others. And humanity was infected by an original sin that called for divine intervention, and that sin was committed by a woman. Is it possible to imagine two better ways to sow the seed division on earth? The priests promptly put a woman in the Godhead and insulted and degraded her sisters on earth. The first of the two notions has sentenced the Middle East to eternal war.
And that is before you get to jihadis or caste, or the Latterday Saints, Scientology, Voodoo, Southern Evangelicals, the Orthodox Church in Russia, Islam in Iran, Buddhism in Burma, the Settlers and Exclusionists in Israel, or the Australian Christian Lobby.
The priestly caste tends to look after itself rather than the flock, and to align with the earthly establishment. They resent the notion of liberty. A left leaning cleric is close to being a contradiction in terms. And they have no compunction in building an establishment on the teaching of one sent to tear down the establishment.
I was therefore liberated by the observation made by Wittgenstein (and a Greek or two before him) that you do not live to see your own death. This suggestion may look self-evident, but not many people accept what follows from it. After you’ve gone, you have nothing to worry about – you are not here, or anywhere else. Turgenev wrote a fragment reflecting on death. Its title is ‘Enough’. Its last words are those of Hamlet: ‘The rest is silence.’
What more can we say?
Why do so many wish for life after death – to be immortal? Who wants to live forever? After three hundred years or so, the heroine of The Makropoulos Case has had enough. She felt that infinite life had no meaning – it only has meaning when it is finite. There is something permanent about death – but infinity has no end by definition. I would not like to explore the difference.
It is certain that each of us must die. But it is a miracle of chance that any of us was ever born. And it is an even greater miracle that I was ever born. That could only have happened after millions of years of pure chance in the development of life and then human life. I – and Mac and Norma before me – am just one product of this flirtation with immeasurable chance. How and why Norma and Mac met and conceived me was beyond them and me. Granted the accidental nature of my whole universe, I can hardly complain that my time must end.
………We are such stuff
As dreams are made on, and our little life
Is rounded with a sleep.
With Compliments 