A Contagious Virus

Sir: Your learned correspondent John P. Bryson (April 2020), commenting on the High Court decision in Love and Thoms, presents a conundrum. Whilst accepting the correctness of the minority judgments, Mr Bryson enjoins us to accept that the majority judgments “contain every idea and enthusiasm for the firm grounding and splendour of native title” notwithstanding his conclusion that “there is something of a gap between immigration law and the removal of criminals”.

The consequence of the majority’s judgment is a new category of “non-alien”, founded upon Aboriginality and Aboriginal connections (at least for Mr Thoms). That few persons may qualify for its benefit is beside the point.

Yet the majority travelled down the progressive and otherwise unknown road. Both Justices Edelman and Gordon introduced concepts of metaphysical connection with the land; Justice Nettle is persuaded by essentially spiritual connection with country; whilst Justice Bell rejected the government’s concern that to categorise an Aborigine as an alien was race-based.

The perfidy of the majority is their introduction of criteria extraneous to the statutory provisions, rather being a gloss to address a lacuna.

In the minority Keane J observed that “biological descent” does not support this new class of citizen; Gageler J notes the plaintiffs’ attempt to introduce cultural and spiritual connections to the land to place some limitation on the legislation; whilst Kiefel CJ observes that the acceptance of the plaintiffs’ characteristics as aliens is a matter of values and policy—“it would usurp the role of parliament”.

Oh to have been at morning tea when our seven elevated persons met to discuss their differences—what delectable frisson.

The virus of judicial activism is not, as your author claims, so “splendidly vague” as to defy recognition. It occurs when words or meanings are discovered to facilitate an interpretation unconstrained by the literal words, assisted by adopted criteria to effect a policy outcome.

Some cynics call this approach the Harry Butler syndrome. In a pristine landscape an unexpected species is found under a rock or in a hollow. After much wrangling and perhaps a little finger biting—“Eureka!”

The judicial activist virus festers and is contagious, particularly at law schools. It is promoted by progressive legal practitioners. Problems come from changes in society and politics over time where an interpretation once favoured—for example by the great dissenter, Justice Michael Kirby—may not find favour in a later period due to changes in the judicial review of meaning reflected in the judicial view of a changed society.

Peter McEwen
via email

Roger Scruton and Religion

Sir: I read with greater than usual interest the March 2020 edition of Quadrant and, perhaps because of the series of recent disturbances to international order and even domestic order, found much to like in both the topics addressed and the seriousness with which they were addressed.

I was especially fascinated by Mervyn Bendle’s “The Conservative Odyssey of Roger Scruton”. I have long empathised with the late Professor Scruton and, reading Bendle’s deeply informed essay, I came to realise that there were even more reasons for me to do so than I had previously appreciated. His conservatism, rooted in Burke, Kant, Eliot, Leavis and Wittgenstein, “who had all rejected the ‘Jacobin’ lust to destroy in a maniacal pursuit of a world that can never be”, is at the heart of this. Another was his reaction to the anarchic outbreak in Paris in May 1968. I wrote my History honours thesis on that very matter in 1981. A third is Scruton’s abhorrence of Michel Foucault, Louis Althusser and their ilk. 

In centre frame, however, is the fact that Scruton placed so much emphasis on the idea of the Lebenswelt, drawing upon thinkers such as Wittgenstein and Edmund Husserl. This, it seems to me, is where the great inquiries and debates of the twenty-first century need to anchor themselves. Whether we are talking about the fate of religions, the malaise in civil society, problems of urban congestion and anomie, aesthetics and the entertainment industries or the future of a liberal political culture, this is where the most intractable challenges confront us: our need for a sense of lived and cherished human reality as against the glib, the superficial, the evanescent or the domineering and alien.

Where I differ with Scruton—and, I assume, Bendle—is with regard to religion and the status of Christianity, in particular. While I agree that Christianity (for Scruton its Anglican variant) has embodied a great deal of our cultural heritage and that it is disturbing to see nihilism assailing and demolishing it, I have not, for decades, been able to accept that this heritage is adequate to the realities that have emerged in the modern era as our natural and human sciences have explored the world and taught us so very much more than was known to the ancients who constructed Christianity long ago.

Scruton and Bendle distance themselves from what Bendle describes as “the faddish fascination with philosophical atheism” and “arrogant scientism”. But I think both of them mistake here the effect for the cause. I have never abandoned a respect for or interest in the best of our cultural heritage, but I did abandon Catholicism and Christianity decades ago for the simple reason that I could not find in its dogmas or moral teachings the Lebenswelt I sought as a modern young man. I have learned a very great deal since, but it has not persuaded me that the truth or way of life I seek is to be found in Christianity. I do see myself as an atheist, but not as an enemy of our culture or as a destructive nihilist.

If the underlying premises of the conservative position are taken philosophically, rather than religiously, it seems to me that a perfectly rational and constructive dialogue ought be possible between believers and atheists about meaning, phenomenology and the overlap in experience and perception between their Lebenswelten. We do badly if we see the issue as an either/or issue of organised religion versus “faddish atheism”. I would like to think that Quadrant could be a forum for the exploration of just such dialogue.

Paul Monk
Melbourne, Vic

Deirdre McCloskey

Sir: Gertrude Himmelfarb is not a household name but it is clear from Keith Windschuttle’s tribute (April 2020) that she should be, and her books belong on our shelves alongside the recent works of Deirdre McCloskey.

The depth of McCloskey’s scholarship may tell against her; how many people these days want three 600-page tomes explaining why the bourgeois virtues are good things? She is a Chicago economist who turned to literature and cultural history to find that the economists overlooked the real institutional drivers of peace, freedom and prosperity that everyone in the world can enjoy if democratic capitalism survives. In brief, she ascribes the progress associated with the industrial revolution to the moral principles of bourgeois/Christian virtue that were embedded in the most influential literature of the early nineteenth century. In the mid-century a cultural groundswell displaced them and they have been on the slide ever since.

A conversation between Himmelfarb and the still-living McCloskey would have been a joy and a revelation. The book are The Bourgeois Virtues: Ethics for an Age of Commerce, Bourgeois Dignity: Why Economics Can’t Explain the Modern World and Bourgeois Equality: How Ideas, Not Capital or Institutions, Enriched the World. 

Rafe Champion
via email

Is Rape Avoidable?

Sir: Here are three dictionary definitions of rape: “unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is below a certain age or incapable of valid consent”; “unlawful sexual intercourse or any other sexual penetration without the consent of the victim”; a broader  definition is “an act of plunder, violent seizure or abuse, despoilation, violation”.

Yet the Reverend Michael Giffin (March 2020), in arguing against abortion, tells us that “exceptions are taken to be the norm. Obvious examples of this include abortion, whether it is justifiable if the foetus has abnormalities or the woman was raped. Foetal abnormalities are unavoidable. Rape is avoidable.” 

Given we all know that rape is unlawful, carried out forcibly, against a person’s will, and in the majority of cases with violence or the threat of violence, could he please explain? Isn’t this just another case of blaming the victim?

Jill Fenwick
East Melbourne, Vic

Game. Set. Match.

Sir: The smear campaign that was orchestrated by so many in the media and the justice system set the scene for the perfectly executed downfall of a religious figure, held in such contention by so many, for so many reasons and for so many years.

GAME.

Next comes the power of persuasion. They found the perfect witness. Someone who, in his own words, “can compartmentalise” (thereby seeming in control of his feelings and emotions). Someone who was not “fried”. Someone who could present himself as a credible witness.

Now let’s face it. The accuser’s account of events couldn’t meet the required standards of proof beyond a reasonable doubt. And those involved knew it. His power of persuasion, alone, “compelled” the jury of twelve and two of the three judges. And boy did he pull it off.

SET.

Judge Kidd: “I sentence you to a total effective sentence of six years’ imprisonment.”

MATCH.

In an age when faith is losing to the ideology of “I’ll believe what I want”, it’s little wonder such a powerful, religious figure could be brought down by lies and deceit.

If the question of restoring faith is an impossible notion for so many, surely we could reason that accountability, at least, could guide them in their actions. This accountability should then see all those responsible for this injustice be made to pay their dues; all those that ultimately should have known better.

In the end, aren’t we truly governed by the principle that you don’t give up on the things you believe? I for one am not going to.

Jane Thomsen
via email

Eric Hoffer’s Thoughts on Mass Movements

Sir: We live in an age dominated by mass movements in the area of inter alia environmental, social, economic, climate and population thinking and policy. The more thoughtful amongst us may have determined but perhaps cannot express fully and lucidly the common features and structures underlying such movements. I recommend to your readers the book The True Believer: Thoughts on the Nature of Mass Movements, written by Eric Hoffer in 1951. These thoughts are exemplified by reference to the barbarities of the first half of the twentieth century and the common features of the mass movements of which they were part. His analysis provides a common language with which the mass movements of the last seventy years and our own days can be dissected, discussed and rebutted. The book should be on the bookshelf of every Quadrant subscriber!

Tony McCurdy
Ryde, NSW 

Bushfires and Bureaucracy

Sir: It is distressing to read the article by Philip Drew about bushfire damage (March 2020). This is because the article presents green false agitprop that is harmful to public understanding of the causes and mitigation of bushfire damage. The article makes false statements, such as that the recent bushfires were of unprecedented scale and intensity, and false innuendo, such as that man-made carbon dioxide emissions lead to global warming and are reasonably expected to cause an increase in prolonged drought.

Those falsities serve to hide the horrid fact that the green city-dwelling bureaucracy was the main cause of the great severity of the fires. For decades, green city-dweller control of bushfire preventive mitigation and fighting has powerfully and progressively prevented and obstructed bush-dwellers from doing traditional regular relatively safe cool- and moist-season hazard-reducing fire-fuel-reducing burns. The results are progressive accumulation of fire fuel, neglect and obliteration of fire-fighting access tracks, and most important, loss of bush-dwellers’ fire-fighting knowledge and skills through lack of practice. Such accumulation and loss progressively make hazard control and fire-fighting more difficult and dangerous and less effective.

Moreover, the actual fire-fighting is hampered by increased centralised city-based bureaucratic control, causing dreadful delays in responding to the critical early stages of the fires. The accumulating difficulty and danger are then used by greens as excuses for tighter bureaucratic obstruction, all the while under cover of false claims of man-made global warming. Some city dwellers are deceived by that. The result is less frequent but vastly unnecessarily uncontrolled and destructive wildfires as against more frequent but safely controlled and less destructive elective fires. Instead of letting animals escape from small burns, the green policy kills them all in big conflagrations.

Christopher Game
Alphington, Vic

A Genuine Threat

Sir: At last a real problem and the real threat posed by the coronavirus has forced the perceived “threat” of global warming off the front pages. Hopefully those who are concerned about the future of mankind will now concentrate on stopping the spread of the coronavirus and not keep raising the ante on the alleged threat of climate change.

Despite what the grim warnings constantly tell us, sea levels have been rising two centimetres per century over the past 500 years, the polar ice caps are doing just fine (they should have melted by now according to past climate predictions), while extreme weather events and bushfires have actually declined over the past two decades.

Why do politicians keep listening to climate “experts” who continually spruik doom and gloom? Mankind has enough serious problems right now like the coronavirus to concern itself with, and we don’t need to have our attention drawn to global warming theory which postulates things which can’t be scientifically established.

Alan Barron
Grovedale, Vic

Correction

In the April issue of Quadrant, the Fourth Column, “Deconstructing the Calendar”, was written by Christopher Akehurst. In the magazine we erroneously attributed it to Christopher Heathcote.