Flowering Times at the English Bar

08/07/2025 / Geoffrey Gibson / Leave a comment

[This began as a short note in comparison with the US but got expanded into a potted history of English law.]

During the period historians call the waning of the Middle Ages, the history of England was shattered and then shaped by the Wars of the Roses. As Shakespeare envisioned it, these wars were ignited during a meeting of the leading members of the ruling class at a place called the Inner Temple, a lawyers’ communal house in central London. They argued about who had the better title to the English crown. It got so loud that they quit the hall and repaired to the garden. Richard Plantagenet, the Duke of York, had stated his claim and he asked those who followed him to pluck a white rose for the House of York. Others chose a red rose for the House of Lancaster. It was all very English – people of power and substance who had been trained in the law debating ‘nice sharp quillets of the law’ – until it descended into ‘blood-drinking hate’ condemning a ‘thousand souls to death and deadly night.’ We get a grim combustion of privilege, savoir faire, and raw violence.

Well, that is certainly high drama – enough to be shown in an evocative painting that hangs in the House of Commons. There is a copy of it at the entrance to my Yarraville flat, because it stands for the confluence of the law, history, language, and theatre that has coloured my whole professional life.

And it leads to the following reflections.

The ‘activist’ is commonly the kind of person who gets up the noses of other people. Just look at the fate of the Jewish hasid whose gruesome execution on Good Friday is annually recalled with reverence by millions throughout the world.

The institution known as the English bar, the grouping of its first lawyers, has a very long history. It is a story that comes from centuries before the white men arrived in America, and even more before they settled, if that’s the word, in Australia.

An English legal historian – it was Theodore Plucknett – said that by about 1300 there was ‘a very brilliant bar’ in England. I once wondered how a legal historian or jurist could be so confident about that – but I don’t now. And what I do know is that this bar would unleash activists who shaped the history of England in a way not seen anywhere else in the world.

The lawyers were obviously involved in drafting Magna Carta, which we now see with the common law as the foundation of the English constitution – and therefore ours here in Australia – and what we call the rule of law. You can watch Kenneth Clark’s Civilization yet again, but I doubt if you will see any reference to the rule of law. What Magna Carta established in 1215 was that the king was under the law because the law made the king. And the king could not proceed against me except by and with the law.

The world had not seen anything like it – and most of the world – say China, Russia and nearly all of Africa and South America – is yet to experience anything like it even now. But there is not much point in having a Ph D on the enigmatic smiles in Leonardo, or the opera buffa of Mozart, if you live in perpetual fear of a knock on the door just before dawn, when two programmed thugs in black leather take you away, and you are not seen or heard of again. We only get a hint of that powerlessness when we go, say, to Moscow or Rio for the first time – or, as I am now told, you get off the plane now in the U S under President Trump.

For reasons I have never understood, English jurists tend to be coy about the contractual effect of the Great Charter. Well, there was an enforcement clause, that was Exhibit A in the duress case at the Vatican, but the promises were mutual, and intended to be binding, by the most sacred bonds then known to the law, and by and large they were. That is what we call a contract. It was just like the service contract entered into now by the CEO of a public company or the principal of a private school. And Richard II was just one of a number of kings removed from office, and then life, for falling into what lawyers might call a fundamental breach of contract or a repudiation of his fundamental obligations contained in his coronation oath.

The lawyers made their presence felt in Magna Carta. They could see a monopoly in the offing and moved to protect it. Clause 45 of Magna Carta provided that the crown would only appoint as officers of the law ‘such men as know the law of the kingdom and well desire to observe it’. This is still part of our law (although it is routinely ignored by governments intent on promoting activists that are to their liking).

Then in 1292, the king sent a writ (a form of letter) to the Common Bench ‘concerning attorneys and learners’ stipulating that the ‘better, worthier and more promising students…. should follow the court and take part in its business; and no others’. It is fundamental that legal education and the profession as a whole were put under the direction of the courts, and not some institution of learning or government at large. From the very start, the English bar, or profession, asserted its independence from government by the crown. That has been so for 800 years. It is no longer so in the United States.

The English, for this is what they now called themselves, liked to get involved ‘politically’ at all levels. They also invented pubs and gentlemen’s clubs. It was only natural, then, that the lawyers would gather socially and professionally in collegiate groups. They were called Inns of Court. One of them was the Inner Temple referred to above, and eating dinners was a fixed part of the regime of becoming a lawyer. You went there to be indoctrinated – rather as a Catholic later might subscribe to the Society of Jesus the better to practise and champion his religious faith, rather than a learned profession.

You had the bar and the bench, and the tradition that judges should only come from the bar soon hardened into custom, and then into law. But your membership of an Inn stayed with you for life, and over time the Inns would become a kind of finishing school for young men wanting to take part in the governance of England. The apprentices had to attend so many dinners each term, and such teaching as there was never extended to anything like theory or philosophy. They learned on the job, and only on the job. That is still the case. Universities had little or no place in the training of working lawyers until many centuries had passed. The result was that the lawyers were not just involved in formulating the law – they were driving it from birth.

Now, people coming together to gain strength in numbers, especially if they owe a form of allegiance to their group, unsettle monarchs and government generally. (Milton noticed that ‘fear of change perplexes monarchs’.) The French revolutionaries quickly banned combinations in a manner that would be followed by the ruling class elsewhere to the appearance of trade unions. Indeed, as the great French historian Marc Bloch suggested, it is hard to think of a more evocative term in the history of Europe than commune. Well, the communal life of the English bar would justify all those apprehensions, and it would haunt and finally tame the English crown.

The Serjeants at the bar had their curious outfits and head gear; their coifs reminded some of tonsured clerics (or latterday nuns); and their descent into the esoteric may have reminded others of strolling players, the Freemasons in The Magic Flute, or besotted Tarot card readers. But their whole training and close upbringing led them, in the words of the legal historian Sir William Holdsworth, to ‘maintain in the common law and the common lawyers that boldness in the face of authority which has always been the chief bulwark of our constitutional liberties.’ This attribute of the lawyers, and the readiness of the nobility to join with them against the English Crown, are two massive columns of the political differences between England and Europe.

Then there was the way the English bar and bench went about making the law. The great legal historian F W Maitland published lectures under the heading The Forms of Action at Common Law. It is rarely taught now. That is worse than a blunder. What we call the common law is law made by judges applying the doctrine of precedent. It is as natural as Pavlov’s dog to deal with a problem by asking ‘How did we deal with this before?’. The notion that like cases should be treated alike is fundamental to our sense of fairness – that is, justice.

It started in England with arguments about whether the person moving the court had bought the right form from the court. Not just pink for trespass or blue for debt, but something like that. This dedication to forms was par for ‘primitive’ law – as it is now the curse of our lives under robots.

After a while, lawyers started taking notes of these arguments. These were published as the Year Books. They are our first law reports. (I used to be the proud owner of a complete set – Law French and Latin in Gothic Print.) Perversely, our ancestors worked back from the legal process to look at what kind of legal right was being invoked – a process that led to the celebrated remark of Sir Henry Maine that our substantive law was secreted in the interstices of procedure.

(The English also played a leading part in the development of sports like football, cricket, tennis and golf. It may well be that in each case, what started as a simple custom for idle pastimes settled into something more permanent and mature when the English took the trouble to formulate elaborate bodies of written rules for the governance of sports that now underlie businesses worth billions of dollars. You can see a similar thread of accidental growth. Perhaps the Corsican parvenu may have been closer to the mark had he described them as a nation of book-keepers rather than shopkeepers.)

While the bar argued and the judges decided cases, texts began to appear that that would become what were called ‘works of authority’. There were names like Glanvill, Bracton, Fortescue and Hale. In the 18^th century, Blackstone’s Laws of England would achieve something like biblical status in the U S.

The descendants of the Anglo-Saxons in Germany had been corralled by the Normans from France, but whereas Germany and France adopted Roman law, the English willfully, stubbornly, and then proudly refused to do so. The common law was native to England – indigenous if you like, just as the boomerang was indigenous to the first peoples of Australia – so that a distinguished American jurist, Professor James Barr Ames, could say with a straight face in his Harvard lectures that the ‘English common law is more German than the law of Germany itself’. Their law was Teutonic in origin, even when filtered through German folk laws preserved in the Salic Law published in the fifth century.

It follows that the law books of the English were quite unlike Roman law texts – they were the for the most part collections of precedents with some commentary. Anyone looking for any theory of the law would have sounded very odd – as odd as someone sounding off about the elegantia juris (juristic excellence) of the laws of Justinian that had evolved from the Tablets of Rome over a period of about one thousand years, and by which almost all the known world had been ruled. In the result, this perverse island stubbornness has left the world divided between two great legal systems – common law and Roman law.

Students of philosophy – the few of them still left – are brought up to know the difference between the empirical approach of the English and the rationalist approach over the Channel. It, too, is fundamental, as is the difference between the adversarial and inquisitorial mode of trial. It is very sad that an insular attitude of our places of higher learning leaves our graduates ignorant of this mighty chasm which is as deep as the Atlantic.

The Roman law derived from codes. It prefers codification. The Code Napoléon is a good example. The common law eschews theory, grand designs, and codification. It arrived, as if by accident, over a period of time – the product of trial and error in applying the doctrine of precedent to events that unguided chance throws up.

One is the rationalist view of the world. It leans to theory. The other is the empirical. It leans to the experimental – or, simply, experience. Ultimately that philosophical divide is reflected in the logical divide between deductive and inductive reasoning. From our point of view – that of the common law – there is a lot of truth in the well-known statement of Oliver Wendell Holmes that the ‘life of the law has not been logic, but experience.’ (The risk in the rationalist view is that logic may dictate that there can only be one correct answer – and then you are on the path to the absolutism of totalitarian government.)

But the difference in world view (Weltanschauung) between England and Europe is far greater and of more significance than the difference between Aristotle and Plato or Hume and Hegel. Yet so few understand that difference, and nowadays it takes someone like Jonathan Sumption to refer to it.

If you go back to the period covered by the Year Books (1268 to 1535), you find something else we have not given nearly enough attention to. The Inns were coming into being and their teaching was taking effect at that point in medieval history when English universities were still getting off the ground. Until then, the priesthood had had a monopoly of higher learning. And they had guarded and abused that monopoly viciously by burning at the stake people who wanted to read the gospel or conduct their worship in their own tongue. Only the priest had the power to loose and bind – and the rest of us just had to take them on trust.

Now that monopoly was busted. Sure, the lawyers had their own tricks and quirks, that fascinated Shakespeare and that would revolt Dickens, but they were English foibles. And they were foibles held by people who did not duck a fight – as nations of Europe would find out severally to their cost.

History has in my view underestimated this achievement of the English bar. When you link it with events called the Reformation that we are coming to, the priesthood is being put back in its box in a way that we do not see much of anywhere else. It looks to me to be a form of emancipation in the long march of history from our own self-imposed immaturity.

Luther in Germany protested about religion and the Church. The Reformation in England had very little to do with religion. The Tudors came to power when the magnates had exhausted themselves and fractured the nation in the Wars of the Roses. Henry VIII had to secure his succession. The Vatican had an imperial conflict of interest, and could not accommodate Harry. England seceded, and it did so not by royal proclamation, but a series of carefully drawn statutes. The judges had used ‘fictions’ to break the fetters of the old forms of action. The parliament was not shy about doing the same in affairs of state. They trotted out the line used for Magna Carta – they were just confirming the status quo. ‘Where, by diverse sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire….’ Simple really – you just talk yourself into a position of moral rectitude – and not long after that, Shakespeare would descant on the ‘imperial’ theme in Henry V.

But from then the title of the crown derived from statute – the parliament. The English were moving toward democracy. Representatives of the people in parliament made the laws. Representatives of the people in a jury decided whether someone had broken one of those laws. They had given themselves Home Rule in religion, and no one else on the world had got even close to any such liberation.

Now, Thomas Cromwell, the lawyer, was actively involved in overhauling not just leadership of the English church, but the whole system of government in England – but we would not say that it was the lawyers who drove the Reformation. Their most vivacious political flowering time came in the seventeenth century with the Stuarts. It was as if these four kings were sent by God to put a bomb under the English Establishment that was far more explosive than any bomb dreamed of by Guy Fawkes.

These erratic kings ran into king-breakers from Hell – landed gentry who had God, and training in the Inns of Court, like Pym, Elliot, Hampden – and Thomas Cromwell. Behind these ‘amateurs’ was Sir Edward Coke, as tough as old boots, and the bane of the monarchy – whom he could contradict at will because he had the law in him and the kings didn’t. The others were for the most part polite revolutionaries, armed only by God and the law. The word ‘activist’ would have been the ultimate insult. Perhaps it now merely reflects on our anemia.

In the upshot, after a civil war, one king was executed, and another was deposed, or just thrown out. And the balance of power between parliament and the king was settled in the manner we now find it by the Bill of Rights.

A bright young junior barrister named John Somers was briefed to do the first draft. Jefferson would top and tail it for the Declaration of Independence. Everyone knows about Thomas Jefferson, and his memorial. Hardly anyone has heard of John Somers. But in my view, which is biased, Somers was a much better draftsman.

Perhaps I may just refer to one member of the bar, Oliver St John, of St John’s College, Cambridge and the Inner Temple. Charles I raised money without parliament by resorting to an ancient form of naval levy called Ship Money. To a constitutional lawyer now who is used to the complexity of tax cases, there were obvious legal problems (as there now are in the tariffs of Donald Trump). However, a challenge to their legality nearly 400 years ago in England was going to be hard – and out of the question anywhere else. But a challenge was set up and led by St John, whose arguments were gone over for days in the pubs at Westminster. It took me a full day to follow his argument in the octavo State Trials. They were differently educated back then – in Latin, grammar, logic, and rhetoric, and boy, can’t you see it.

St John lost by a tame, slim majority (that the parliament dealt with when recalled). The whole process would be very hard to replicate now, and just about impossible in most of the world. I am still not sure that I understand how the legal issue came to be formulated, but St John followed our preference, articulated by Sir Owen Dixon, for a ‘strict and complete legalism’ in sensitive issues of political governance. The whole process looks to me now to have been centuries before its time – centuries.

Then there was the trial of the Earl of Strafford. He had been on the side of the Commons, but he had gone over to the crown and King Charles I. He had an army in Ireland and the force of character to use it against the people in England. He really put the wind up the English and they determined to take him down – terminally.

On trial for his life, he ran rings around his pursuers in an impeachment in parliament. They then dusted off the old process of sentence to death by act of attainder. To put it softly, this was not really cricket. If you look at his portrait, you will see both aloofness and something like compassion in the tall striking figure of St John. But he was a most formidable advocate and opponent.

Strafford and his king were confident when St John got up to speak in Westminster Hall on 29 April 1641, but the ice in his veins left no room for compassion. He spoke for hours on legal arguments as sophisticated as those in the Ship Money Case. Then, after nearly three hours of high technique from the Year Books on, he struck to kill – an English gentleman acting like an Australian taipan.

It was never accounted either cruelty or foul play to knock foxes and wolves on the head as they can be found, because they be beasts of prey.

That is by far the deadliest submission I have ever seen or heard. Strafford was doomed, and his king had to sign the warrant.

So, the people who gave the world that polite game of cricket could be lethal when stirred. Many forget that Lord Denning, M R, that latterday champion of the people, had worn a uniform in the First World War. He held that the executive government must never be allowed more power than is absolutely necessary. His Lordship said so in a very English way.

…. there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’ We taught the kings that from Runnymede to the scaffold at Whitehall: and we have not had any serious trouble about it since.

Quite so.

Well, the governance of England was now set in place. In the eighteenth century, they developed the Cabinet and the Westminster model, and they started coming to terms with the quite blatant corruption, so finely detected by Sir Lewis Namier, by which the whole country had been run.

In the eighteenth century, Lord Mansfield rewrote English commercial law with the help of experts who made up special juries – and occasionally supped with his Lordship, even when they were all involved in hearing a case. Things were different then, and we cannot be heard to say that we do things better. But some things never change. The Elizabethans liked an old proverb: ‘Fools and obstinate men make lawyers rich.’ And they continue to smell each other out at the end.

In the nineteenth century, which is called the Age of Reform, the English sought to clean up their whole act in the administration of both the courts and parliament and the civil service, and make laws to deal with the grosser kinds of our inhumanity. Then the suffrage became universal, women got the vote, the Welfare State was set up, the United Kingdom saved Europe from Germany, England gave up its empire, and it’s been sadly downhill ever since.

Still, the common law went its own way, and still does. It does so very differently to the way in which Roman law works, and Sir Owen Dixon reminded us that the rule of law was not known to the Romans or their later followers. As the common law judges were wont to say to government ‘Don’t tell us what the law is – we made it.’

We must recall that as part of their profession, the lawyers spent their time protecting the liberty of the subject and ensuring due process. As often as not, it was their duty to argue against the crown, or moneyed interests, and if they felt intimidated, they were not up to it. In the 16^th century, the Chancery had a sign on its door: …the refuge of the poor and afflicted; it is the altar and sanctuary for such as against the right of rich men, and the countenance of great men, cannot maintain the goodness of their cause.

Well, Dickens justly slammed that pious smugness in Bleak House and other novels, but the ‘oppressor’s wrong and proud man’s contumely’ dreaded by the prince of Denmark remain. Unlike the Romans, we have not yet developed contumely as a separate cause of action, but it is a term you will see in claims for damages to make an example of the oppressor. And it is in standing up against the oppressor’s wrong and proud man’s contumely that the profession of the lawyers justifies itself.

It all comes down in my view to a state of mind that is fundamental to what we understand, with the teaching of centuries of history, as the rule of law. And although these things cannot be measured, we see a kind of individualism that underlies our view of government. As Henry Lawson saw it, we are not keen on tugging the forelock.

This is all a very remarkable story. The romantically inclined could get downright starry-eyed about it all. But if we go back to the glory days of the revolts against the Stuarts, we see that the lawyers were in league with the parliament against the crown. The Trevelyan clan were apt to go over the top about all this, but it is worth recalling what G M Trevelyan said:

Coke had not striven in vain. He had enlisted the professional pride of the students of the common law against the rival systems especially favoured by the Crown and the Star Chamber, the Admiralty and the Ecclesiastical Court. He had turned the minds of the young gentlemen of the Inns of Court, who watched him from afar with fear and reverence, to contemplate a new idea of the constitutional functions and of political affinities of their profession, which they were destined in their generation to develop in a hundred ways, as counsel for England had gone to the law with her King.

I used to think that most of this kind stuff was just waffle. Now I fear that we are losing it altogether. And if you want to know what it might mean if you forget the history and role of the bar entirely, just look across the Pacific now. The legal industry there, for that looks to be all there is, having the dollar as its only regulator, tamely tossed in the towel to a greedy government, and all its members should hang their heads in shame. They have let down the people they are there to serve.

Perhaps I may be allowed a footnote on my experience with ancient forms of legal process, and the habit of our English ancestors in developing a form of writ, and then going about formulating a law to drive it.

A great instance is the writ of account. ‘I left you in charge of my stables while I took the Cross to Jerusalem. Now that I am back, I find that horses are missing or lame, and I am not happy with what you say about expenses and receipts – and the local ale house is flourishing. Here is a form of command from His Majesty that you duly account to me for your stewardship. You know what fate awaits you if you do not respond properly to our Lord King.’

Does this not smell just a little of the Inquisition? In order to justify this imposition, the judges of our common law later looked to Rome. They came up with the term fiduciary – which has dazzled and bedevilled us ever since.

I should know. I spent the best part of a quarter of a century of practice dealing with greedy but sloppy trustees of family trusts who treated their trust like an Amex account. I would open the war with a writ of account. What could be more polite? Well, this could lead to a public inquiry of great interest to the keepers of His Majesty’s revenue, and no one likes hanging out their dirty washing in public. (I spent eighteen years hearing tax cases, and could there see all kinds of very nervy diffidence at first hand.)

Only one lawyer in all that time really called my bluff. He later ascended the heights, and most worthily, but only after his definitively patriarchal client had made a seven-figure donation to my fair lady, and Truth, Justice, and the Australian Way. Who said that dragons don’t exist? They named a bloody footy team after them.

So, I was interested to read that a very long time ago, Professor Ames had said that the action of account ‘is very analogous to a trust,’ and that the important thing to remember is that the action of account is ‘the father of the count for money had and received’.

Too many lawyers don’t understand this. We still need every piece of bedrock we can find. And we should teach lawyers the history of the law because that is what the law is – history drawn up from events of the past to meet the needs of the present. We don’t unleash doctors on the public who have not been taught anatomy. Lawyers who do not know the history of their law are hard put to say that they know the law, or what it means to be a member of a learned profession.

NOTES

Wars of the Roses: Henry VI, Part 1, 2.4, 17, 108, 127.

Brilliant bar: T F T Plucknett, A Concise History of the Common Law, 4^th Ed, 1948, 211

King under the law: Bracton, On the Laws and Customs of England, (Ed Woodbine, trans Thorne) Harvard, 1977, Vol I, 38.

1292 writ: Plucknett, above, 206.

Fear of change: Paradise Lost, Book One.

Ames on German law in England: Lectures on Legal History, Harvard, 1913, 34

Bloch on commune: Marc Bloch, Feudal Society, Folio Society, 2012, 433-4.

Holdsworth on boldness of common lawyers: History of English Law, cited in Gibson, The Common Law, A History, Federation Press, 2012, 41.

Maine on procedure: Sir Henry Maine, Law and Custom, John Murray, 1890, 389.

Homes on logic and experience: The Common Law, Little Brown, 1881, 1.

Self-imposed immaturity: Kant, What is Enlightenment? Kant’s Political Writings, Ed Reiss, Cambridge, 1970, 54.

Realm an empire: Act in Restraint of Appeals, 1533, 24 Henry VIII, c. 12.

Henry V: Henry V, 3.6.120 and 4.1.42.

Ship Money Case: Hampden’s Case, State Trials, 2^nd Ed, 1730, Volume 1, 483.

Trial of Strafford: John Adamson, The Noble Revolt, Weidenfeld and Nicholson, 2007, 272

Denning on the executive: Freedom under the Law, Stevens, 1949, 15.

Dixon on legalism: Jesting Pilate, Law Book Co, 1965, 247.

Dixon on Roman law: Again, 101.

Trevelyan on English counsel under Coke: England under the Stuarts, Folio, 1996, 105-106.

Writ of account: this matter is now dealt with in great and scholarly detail by J A Watson, The Duty to Account, Development and Principles, Federation Press, 2016. Life may perhaps have been simpler had it been published forty years earlier.

Ames on action of account: Lectures, above, 119, 121.

France and England Compared

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

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

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

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

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

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

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

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

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

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

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

These are piercing insights. As

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

The following note is from A Curated Library.

LECTURES ON FOREIGN HISTORY 1494 – 1789

J M Thompson

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

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

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

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

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

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

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

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

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

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

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

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

What would the Mormons now say?

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

You now see why style matters.

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

The lecture on the Netherlands Revolt from Spain is riveting.

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

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

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

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

What is the upshot?

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

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

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

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

This is not a card game (Volodymyr Zelensky)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Now they have paid the price.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What went wrong?

I Deception and ideology from the start

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2 Failure of responsible government

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4 Bill of Rights written into Constitution

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

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

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

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

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

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

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

That for us is an abomination.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5 Bad electoral laws

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

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

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

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

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

6 Failure to deal with God

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7 Conclusions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Haffner: Defying Hitler, 2002, 110.

The musical: South Pacific, Rogers and Hammerstein.

Two Dictators

26/03/2025 / Geoffrey Gibson / Leave a comment

Each views the existing dispensation with contempt, and looks back on a mainly imaginary past, and a wholly imaginary future.

Each counts himself and his nation as a victim.

Each has suffered a crushing loss either personally or by the nation. ‘Never again.’ Each reacts by denying the loss or inventing reasons for which it must be avenged. In one sense, each wants to replay events leading to the downfall to produce a different result.

Both can look at their lives as a struggle against the forces of darkness. Each is therefore the archetype of a hero. If either knew who Tolkien was, he would have asked that myth maker to write his story.

Each claims the power to diagnose the cause of his suffering and that of his nation.

Each claims to have the answer.

Neither has any time for middle ground.

Those they accuse are enemies of the nation.

Each brings a self-righteousness that is nauseating to others.

A savage and vengeful bully lies close to the front of each that sometimes drops. His whole life is a charade.

Neither has any sense of shame. Each is shameless.

Each bully has no trouble in finding a weak minority to beat up as scapegoat.

Each claims that by taking revenge on the enemy, he can restore the nation to its greatness. But both are addicted to and feed off conflict in a way that reminds others of Napoleon’s addiction to la guerre éternelle. They look like Ponzi schemes of conquest.

Each exploits the envy felt by those who have not done so well for those who have. Envy, as Othello learned, is a killer.

And God help any minority whose members are seen to do better than the locals, and who threaten to challenge the established order. Some are left with only their bare civic standing to barter with, and to lose that is to lose all.

The revenge of each is very personal.

Each is capable of cruelty for its own sake.

The character of each is fixed early, and his upbringing left no capacity for honest inquiry of himself.

Although hungry for power and acceptance, each fears inferiority and resorts to fantasy – a denial of reality.

Each is a showman – is there anything else? – but the Internet carries more clout than a torch-lit parade.

Each has an unerring feel for the parochial and the nativist – the gutter.

Each brings to his followers the ultimate gift of deliverance from the insecurity of doubt.

Each therefore raises a serious question about the upbringing or education of his followers – although it is very unwise for others to raise this issue.

Neither has any friends. Their ego leaves no room in their psyche for friends. When the end comes, they may stand alone.

God is obviously quite out of the question.

For similar reasons, neither marries well. Love is not in the vocabulary.

Because neither cares for other people, each gambles recklessly with the lives of others. If he goes down, he will take as many with him as possible. (His Grace the Duke of Wellington correctly identified Napoleon as being guilty of this failing.)

But although each gambles with the lives of others, each is terrified of failing – and refuses to acknowledge it when it happens.

Each has had brushes with the law that he seeks to paint in his favour. The prevailing faith in the community was premised on the life and teaching of a man subjected to the most gruesome form of capital punishment. He was a humble man who crossed the old regime.

Neither could ever be accused of humility. Each subscribes to his own cult.

Each has devoted cult like followers, but the rest of the nation has trouble taking most of it seriously. They regard the message and the messenger as fantasy – and banal fantasy at that.

Each is surrounded by toadies who from fear or ambition or both are too scared to contradict their leader. They betray their obligation to the nation, and they feed the already enlarged ego of the man appointed by destiny.

The press of course is brought to heel, and the judges are too. They get stacked or sacked in any event.

Each understands that the dictator must make all those around him complicit in what the regime is doing.

Their loyalty is personal to him – not to the nation. This is fundamental, and commonly fatal to the nation – and to those who pledge their civic faith.

Each sees the world as he wants to see it. Each shows all the signs of having been spoiled and pampered as a child, And that is another ground for saying the claim of victimhood is moonshine.

Each knows that if you are going to lie, and you most certainly are, you lie greatly.

Each relishes chaos – he remains the center of attention. If he happens to drop from view, he behaves like a baby throwing toys out of the cot.

Neither can accept being left in a room alone.

Each loves the sound of his own voice.

Each has many fronts, but is capable of an arrogant humility.

The result is that those who oppose the dictators do not understand them and are reviled by them. The new man is treated with disbelief and scorn, but that only fires up him and his supporters. (And what, in any event, is ‘reality’? What did reality ever do for you?)

Each claims to be a patriot, but each also ruthlessly attacks the nation insofar as it was or is outside his power. L’état c’est moi. This is just one of those spellbinding contradictions in terms in which he revels.

Neither has had the time or inclination to acquire any real learning – or taste. Each is utterly tasteless, and civilized people would be uncomfortable having them in their home.

Each has low intelligence and no conscience. Each is a moral cripple.

But that want of general intelligence does not prevent either from sensing the taste of the gutter, or an instinct for the weak spots of their enemy. Someone said of that instinct that it was a handy gift for a politician, but ‘had less in common with the eye of the eagle than with the nose of the vulture.’

Only one is a coward.

In the end, the old regime starts to fall apart, and the center cannot hold. As Yeats further said, the best lack all conviction, and the worst are full of passionate intensity. Chaos takes the place of fantasy, and each dictator trades on chaos.

What is essential is that neither lives in this world. There is more to this than egomania. Each lives in a world of his own. As someone remarked of one of them: ‘He does not really exist – he is only the noise he makes.’

But his raison d’être is simple. He is the hero who will save the nation and raise it to its rightful triumph.

Above all, each is heartless. I am myself alone. Et praeteria nihil. (And in addition, nothing.)

Well, then, both the fantasy and the chaos in their worlds seem to us so banal. We might look at what that observation entails.

The word ‘banal’ comes from France – curiously, a banalité was one of those feudal obligations that led the peasants to burn down chateaux during the French Revolution. The dictionary says that ‘banal’ means ‘trite, trivial, or commonplace’, but there is often a suggestion of emptiness or hollowness behind feigned or usurped importance that is pejorative. This may have been behind the observation in Fowler’sModern English Usage that ‘we should confine banal and banality, since we cannot get rid of them, to occasions when we want to express a contempt deeper than any of the English words can convey.’

Hannah Arendt had as penetrating an intellect as I know of in the realm of political philosophy. She wrote a book called Eichmann in Jerusalem, A Report on the Banality of Evil. She explained the sub-title as follows:

When I speak of the banality of evil, I do so only on the strictly factual level, pointing to the phenomenon which stared one in the face at the trial. Eichmann was not Iago and not Macbeth, and nothing could have been further from his mind than to determine with Richard III ‘to prove a villain’. Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all. And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post. He merely, to put the matter colloquially, never realised what he was doing……He was not stupid. It was sheer thoughtlessness – something by no means identical with stupidity – that predisposed him to become one of the greatest criminals of that period. And if this is ‘banal’, and even funny, if with the best will in the world one cannot extract any diabolical or demonic profundity from Eichmann, that is still far from calling it commonplace.

These observations derive from intellectual integrity, and they are of great moment. Arendt had previously said to the same effect: ‘The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were and still are terribly and terrifyingly normal.’

Eichmann was no devil or demon; he was just human, and the trouble for us is that he was ‘terribly and terrifyingly normal’. Those who do not accept that Eichmann was just human, and that there is a little of Eichmann in all of us, are seeking to impose some kind of grid or cattle pen over humanity and are at risk of falling into the error that fed the derangement of people like Stalin or Franco or Mussolini.

We might here note the matter of fact assessment of the American historian R R Palmer on Carrier, the man who drowned priests by the boat load in the Vendée during the Revolution, and after being at first applauded, was later guillotined for what we would now describe as war crimes.

Carrier, it may safely be said, was a normal man with average sensibilities, with no unusual intelligence or strength of character, driven wild by opposition, turning ruthless because ruthlessness seemed to be the easiest way of solving a difficult problem.

As Arendt said of Eichmann, ‘it was sheer thoughtlessness…that predisposed him to become one of the greatest criminals of that period.’

It is in the French Revolution more than under twentieth century dictators that we see people with little or no prior experience of government trying both to govern and to lay down a system of government, each of which tasks was beyond most if not all of them.

These tasks require more than a lifetime of experience – they require generations of history and experience, centuries even. It is here in France during the revolution that we see ordinary people placed in a whole new world doing their best in good faith to stare down chaos and the void, and just getting slowly more out of their depth until they run out air.

We see this all the time. If you have any experience with what we now call risk management, you will know that your biggest worry is the functionary who is getting out of their depth and either does not see that, or is incapable of admitting it.

In any revolution, you can normally back three horses. First, jealousy fairly shrieks its venom. Secondly, the scum rises to the surface, as if by an iron law of motion. (The world’s losers are the most vengeful.) Thirdly, self-interest usually prevails. And those at the bottom live in terror of the heavyweights leaving them to hang out and dry when the carousel comes to a stop – as it must. Their ultimate fear is replacement.

These are simple, obvious facts of life, but historians tend to forget that most humans are just that – ordinary human beings – when they consider how some of them reacted when the volcano that was France erupted. When looking back on how events unfolded, with the curse of ignorance and the false hope of hindsight, we may not be surprised to see that some ordinary people did some things that they would do very differently if they had their time again. There was no procedure or manual telling Robespierre how he might react: the script had not been written because no one had seen anything remotely like it before. And we might also remember that if the French could at least look back on the experiences of both England and America in their revolutions, the Russians had the benefit of the lot, and made a worse mess than anyone.

There is another term that is useful in dealing with people who are sleight of hand. Here is Brewer on mountebank:

A vendor of quack medicines at fairs…who attracts the crowd by his tricks and antics; hence any charlatan or self-advertising pretender. The bank, or bench, was the counter on which traders displayed their goods, and street vendors used to mount on their bank to patter to the public.

There is a big gap in time between Commedia dell’arte and Mussolini, but they have so much in common. And it is all there in MAGA.

Well, in my lifetime, the Germans and the world learned lessons from Hell. We have no idea what may unfold as the United States falls apart before our eyes. Who can say? Who in the name of God could have predicted that in my lifetime, thousands of Jewish people would choose to live in Germany rather than Israel?

Two Dictators