Law, Literature and Western Civilisation

In the distant past—it seems a long time ago now—the law was known to and understood by the general community. It was, in substance, customary law, developed over the ages and aptly called the Common Law. That more people can write and read is not the only reason why those who govern us have tried to put so much of the old law, and too much new law, into writing. They frequently assume too much: that they can say it better than it has been and will be said and developed in reasoned decisions over time. Even allowing for increases in population, and the complexity of human and business affairs, I strongly believe that legislators legislate too much, and in language insufficiently informed by a broad education and experience. Oliver Wendell Holmes, in the introduction to his book on the Common Law, pointed out that the life of the law is experience and not logic.

Another criticism is that legislators rarely pause to consider that each new law will almost always require a new or enlarged bureaucracy with its own insiders’ acronym-laden language to oversee compliance with it. Such a bureaucracy will sometimes take the form of a regulatory agency, and all regulatory agencies ultimately under-reach or over-reach: under-reach by encouraging a flood of trivial complaints to justify an expansion of their bureaucracies; or over-reach by targeting a big name, getting, as the media say, a big scalp.

There are three respects in which an acquaintance with the best writers should be regarded as indispensable to legislators and parliamentary draftspeople. The first is that reading the best writers painlessly educates in the simplest and clearest way to write. Second, broad reading, including fiction, tells us facts that we would not otherwise know. And third, and in a way most important of all, the best authors give us an insight into human behaviour itself, and the thinking, feelings and experiences of human beings over the ages.

Included in the store of knowledge that Western civilisation holds is of course the Bible, the relevance of which is, if anything, increased rather than reduced by the gradual secularisation of society which has been occurring throughout my lifetime.

There was only one time, I think, during the ten years that I sat on the High Court, that biblical allusions were made. These occurred, curiously enough, in a case concerned with damage caused to the cargo of a ship during a stormy passage across the Great Southern Bight. The references were made because the Hague Convention, which governed the issues, used the expression “perils of the sea” that appears in several places in the Bible.

The famous law case of the snail in the bottle, Donoghue v Stevenson, determined a new and less uncertain order for the law of negligence, and only incidentally decided that an action could lie against the manufacturer of the soft drink in which the snail’s corpse floated. In the course of his famous speech, Lord Atkin used the language of the parable of the Good Samaritan from the New Testament. On the eightieth anniversary of that famous case, my former colleague and Chief Justice, the Honourable Murray Gleeson, in a speech which he gave in Brisbane, made the point that in 1932 a judge could quite confidently make a biblical allusion of which practically everyone in British, or indeed Western society, would be aware and understand. Mr Gleeson went on to say that a judge today would probably need to footnote the reference, as indeed I did in the case about the perils of the sea.

We should be willing to accept that a deal of the foundation for the Common Law, and even some legislation, is to be found in the Christian religion of Western society, despite the secularisation to which I have referred, a secularisation which has tended to substitute what Mark Steyn has called “rock star morality” for Christian ethics. That there is such a foundation in no way itself impairs freedom of worship, or gives rise to a concern that the nation might become an intolerant theocracy. The fact that other cultural heritages may in the past have been debased or discarded is no reason not to be proud of the best of our Western civilisation.

Even if one were an atheist, or a follower of another religion, in speaking or writing in the English language, one would find much in the Bible, especially the King James Version, to improve clarity and, when required, vividness of expression. Until at least, I would say, 1960, most judgment writing, indeed most writing of any kind in the English language, owed much to the language of the King James Version.

Specialised and intense legal education is a relatively modern idea. The main prerequisite for a successful career as a barrister used to be a sound education in the humanities. A subsequent, fairly brief, and rather perfunctory legal education would then be regarded as sufficient for admission to the ranks of practising barristers. Today, a conventional law degree requires the study of a number of subjects, including so-called core subjects. No non-legal subjects are required. When I took the LLB course in Queensland, a full-year course in English, Political Science, a foreign language, and one other arts subject was compulsory. It is almost inconceivable to me that these have not remained as essential components of a law degree. Most of my contemporaries, as I did, chose Philosophy as their optional further arts subject. Not much, you might say, but at least enough to give me an insight into the immensity of what I did not know. It seems to me to be unarguable that any lawyer should know the mother tongue, its history, and the nature and history of the political institutions of which an independent judiciary is an essential part.

The English language is the weapon of the advocate. It can also be a formidable instrument in the hands of a literate judge. But like any instrument, it can be dangerous in the hands of the clumsy or imprudent.

When I started at the Bar, I had the good fortune to have as my master and mentor an outstanding jury advocate. In a criminal case, he warned, “never make a joke or laugh at anything that occurs in the courtroom. Everyone else around you may be laughing, but it is not for you to do so. A criminal court is a very serious place.” He was right. Little can be more serious than the work of a prosecutor or defence counsel. Another wise piece of advice which he gave me was never to try to cap a judge’s joke. I did so once, and rather regretted it. I was appearing before a judge with a Scottish name and a well-deserved reputation for Scottish financial prudence. I submitted, in the presence of a crowded courtroom, that my opponent’s client should not be heard to deny a representation which he had made, and upon which my client had acted to his detriment. The judge scoffed at my submission. “What do you say that the representation was?” he inquired. I said that it was in an account which had been sent to my client and was stated to be a “final account”. The judge combatively responded, “Final account! I often receive second or third accounts which bear the word ‘final’.” I knew I should not say it, but I could not help myself. I replied, “I wouldn’t know about that, Your Honour, I pay my accounts when I receive them.” My riposte was much enjoyed by the crowded courtroom. I cannot say for sure that that’s why I lost the case.

I could not as a judge cap what I think to be not only a most amusing, and not inappropriately so, in the circumstances, judgment, but also one of the best and most literate that I have read. Its author was His Lordship Justice Megarry, as he then was. Here is its brilliant opening passage:

On June 20, 1909, Errol Flynn was born in Hobart, Tasmania; and on October 14, 1959, he died in Vancouver, British Columbia. When he was seventeen he was expelled from school in Sydney; and in the next thirty-three years he lived a life which was full, lusty, restless and colourful. In his career, in his three marriages, in his friendships, in his quarrels, and in bed with the many women he took there, he lived with zest and irregularity. The lives of film stars are not cast in the ordinary mould; and in some respects Errol Flynn’s was more stellar than most. When he died, he posed the only question that I have to decide: Where was he domiciled at the date of his death?

The sentences in the passage are perfectly balanced. The issue is elegantly defined. The poetic rhythm of the language reads like a piece of blank verse. Later in his judgment, the judge said that he had been assisted by a memoir of Errol Flynn which had been published with a collaborator in the actor’s lifetime. He sagely wrote:

I am not covertly suggesting that what is said in the book is untrue; but truth is many-sided, and a wrong impression is perhaps more often conveyed by what is omitted than by what is said. Nor is it unknown that in the telling, a story intended to entertain should grow and be refined. The resemblance between a tombstone and an autobiography may not be very close; but just as in lapidary inscriptions a man is not upon oath, so may autobiographies, even though verified by the oath of a collaborator, fail accurately to convey the truth, the whole truth and nothing but the truth, as the author knows it.

The debt owed by the law to Western civilisation and its literature is by no means one-sided. The law, its participants, those ensnared in its processes, and the drama of its proceedings have provided rich fodder for authors of both fiction and drama. Although Portia’s famous plea for mercy in The Merchant of Venice was not made to a British court, it might as well have been because it bears all the eloquent trappings of a final impassioned plea for a convicted person by an accomplished advocate. A great deal of the best literature of the nineteenth century is concerned with the law, and the plot often turns upon a legal outcome. Galsworthy, himself a lawyer, made Soames Forsyte, a man with a preoccupation with property and legal forms, one of his most memorable characters in his Forsyte Saga.

In Dickens, talk of an estates tail, law suits, legacies, trusts, marriage settlements, will constructions, wardships, and the legal byways of Doctors Common are much discussed. In David Copperfield, the villain Uriah Heep is a solicitor’s clerk in the office of David Copperfield’s father-in-law to be. The recurrent detention of Micawber in the Marshalsea, the debtors’ prison, teaches us something of the way in which the law of bankruptcy then operated. The chapter in which Dickens narrates the trial of the breach of promise suit against Mr Pickwick in Pickwick Papers does not only tell us something about that cause of action, which changing times including possibly egalitarian feminism, among other things, have now caused to be abolished. It is also a caution against relaxation of vigilance. The chapter incidentally is jocularly unsparing of the judiciary, and includes more than a few paragraphs which have entertained me:

Mr Justice Stareleigh summed up, in the old-established and most approved form. He read as much of his notes to the jury as he could decipher on so short a notice, and made running-comments on the evidence as he went along. If Mrs Bardell were right, it was perfectly clear that Mr Pickwick was wrong, and if they thought the evidence of Mrs Cluppins worthy of credence they would believe it, and, if they didn’t, why, they wouldn’t. If they were satisfied that a breach of promise of marriage had been committed they would find for the plaintiff with such damages as they thought proper; and if, on the other hand, it appeared to them that no promise of marriage had ever been given, they would find for the defendant with no damages at all. The jury then retired to their private room to talk the matter over, and the judge retired to his private room, to refresh himself with a mutton chop and a glass of sherry.

What a pleasure it would have been to have heard a Dickens reading (of this chapter in particular) as he was accustomed to do, often before large and appreciative audiences. The debt owed to the law by authors is not owed only by Anglophone authors. Continental authors have created some memorable legal characters. Eugene de Bastignae, important in Balzac’s Père Goriot, and an aspiring law student, is only one of the legal creatures in European fiction. Madame Bovary’s lover Leon, a law student too, is another.

Lawyers, even more so than apothecaries, have been easy targets, not only of novelists but also of playwrights and lyricists. Sir William Gilbert’s lyrics for the comic opera Trial by Jury ridiculed the professional progress of the Learned Judge who, as a young barrister, had tired of dinners of bread and water, and in consequence, contrived to fall in love with a rich attorney’s elderly ugly daughter. You will recall the song:

“You’ll soon get used to her looks,” said he,

“And a very nice girl you will find her.

She may very well pass for forty-three

In the dusk, with a light behind her.”

 A great strength, I think, of Western civilisation, especially its English-speaking components, is its capacity for humour and self-mockery.

I spoke earlier of the need for a liberal education in our language and literature as indispensable elements of it for prospective lawyers. Reading beyond the law should not however be confined to prospective lawyers. Practising lawyers and judges would do well to continue to read fiction and drama. This theme is developed and more fully explained by Martha Nussbaum, the distinguished American philosopher, in Poetic Justice: The Literary Imagination and Public Life. It is her opinion, which I fully respectfully endorse, that judges need to read extensively the better to understand human affairs and human frailties: to achieve—the fashionable current expression is I think, emotional intelligence—a capacity to empathise with litigants who come before them. I do not know what she would think of a judge who might choose to write as well as read fiction. I suppose there is no problem if the judge does not confuse the two.

Nearly all the writers whose work has lasted have, to a large extent, been guided by the moral purpose of Western civilisation, of promoting the triumph of good over evil. The ends of morality can sometimes be achieved by a work in which evil does prevail. This is so because it brings home the enormity of the result, and the need for corrective measures to cure it. The most skilful of writers have been able to achieve their purposes without detracting from the interest and entertainment of their fictional works. I return, as any basically educated person is bound to do, to Dickens. His writing made a major contribution to reforms of child labour law. Upton Sinclair in his powerful novel The Jungle wrote so compellingly about the meatpacking business in Chicago that President Theodore Roosevelt was able to procure changes to the oppressive labour laws and deficient food hygiene laws of the day.

Sinclair, who lived to the age of ninety and wrote about ninety books, was also a journalist, polemicist, essayist, critic, political pamphleteer and ultimately, political candidate. His World’s End fiction series, despite some improbabilities of its plot line, in fourteen volumes gives one man’s comprehensive and generally accurate view of the political history of the first half of the twentieth century. Winston Churchill, whose every intellectual, ideological fibre was opposed to the socialist ideas of Sinclair, was nonetheless overawed by the force of The Jungle, which Sinclair wrote when he was only twenty-eight. As Churchill put it in his own stylish way, the book “had agitated the machinery of a State Department [and] disturbed … the Old World and the New … and perhaps the consciences of mankind”. Churchill empathised with Sinclair’s poor migrant workers, whose way of life would otherwise have been unimaginably remote from Churchill’s, which began with his birth at Blenheim Palace. Churchill’s almost contemporaneous lengthy two-part review of The Jungle was published in an obscure North American journal.

Churchill himself always claimed that he had to, and was able to, support himself by his journalism and other writings. By reason of his long and colourful career in politics, it is sometimes overlooked that he was awarded the Nobel Prize for Literature principally for his magnificent history of the English-speaking peoples. Even though his distinguished literary contemporary Evelyn Waugh described Churchill’s prose as sham Augustan, it is fluent and easily read and is a magnificent repository of information about the ideas and achievements of Western civilisation.

No contemporary contemplation of the language should overlook the art forms of the electronic media. The electronic media (together with motion pictures) may not have entirely replaced live theatre, but they have certainly made a dent in it. They are not, in this country however, the only contributor to that. Government subsidisation of state theatre companies, an institutional name for what have become institutional bodies—another form of state meddling—has, I think, played its part.

Let me take, as an example, my own home city. As late as the 1950s, by when motion pictures were much patronised and enjoyed, live theatres accommodating audiences of 1500 or so people flourished. They were not subsidised. J.C. Williamson, a long-standing impresario company, quite often (but not always) imported, for the leading roles, famous overseas actors to star in what used to be described as well-made plays. The frequent presence and drawing power of these stars ensured sell-out houses. Their presence provided work for supporting Australian actors, stage hands, designers, lighters and costumiers. The productions were also an inspiration and lesson to Australian amateur and semi-professional companies who learnt a great deal from them. Today, professional theatre in this country is dominated by the state theatre companies whose objective often seems to be more didactic than entertaining. Political correctness and self-indulgence, in dwelling upon personal preoccupations, tend to reign. It is not as if state theatre has produced many successful or enduring Australian playwrights.

The practice of any of the arts has always been, for the majority of artists, precarious. But so too is professional tennis, or the Bar, as Gilbert’s young barrister found it before he married a rich attorney’s daughter, or any other competitive occupation or profession. In any occupation in which supply exceeds demand, more will fail than will succeed. The King James Bible puts it best: for many are called, but few are chosen. Success in the arts is a product of talent, creativity, education (self or otherwise), dedication, persistence and some luck. Not all can possess all of these. What the state can do is provide or assist in providing the education. I wonder whether, in any event, taxpayer subsidisation of theatre, if it is to occur, might be better done by helping the many amateur and semi-professional drama societies who would require little to do much better.

Another problem is that it is not now easy to import a star to breathe life into an otherwise Australian production. You may be interested to know that Regulation 2.72D(6) made under the Migration Act 1958 (Cth) provides that a Temporary Work (Entertainment) Visa will only be issued for a visiting entertainer if the minister is satisfied, among other things, that the entertainment sponsor (the producer) has consulted with relevant Australian unions in relation to the employment or engagement of the proposed actor or entertainer in Australia. In practice, the consultation has, on occasions, been treated as a right of veto, as readily exercised as the Russian veto on the Security Council during the Cold War. In those circumstances, lacking as it would the drawing power of someone of Errol Flynn’s calibre, fame, or perhaps more correctly, notoriety, the production does not go ahead, and there is no employment benefit to Australians, let alone the “net employment benefit” which paragraph (b) of the same regulation requires.

Neither Western civilisation nor the institutions and laws of it are flawless. But Western civilisation and our legal system have much to be proud of. George Orwell, a master himself of clarity and perspicacity, has written, a little harshly perhaps, of the rigid stern English judge who, notwithstanding his upbringing and privileged position in society, is nonetheless unwaveringly and utterly incorruptible. Our democratic institutions (of which our legal system is a notable part), again with all their flaws are, as Winston Churchill put it, a manifestation of the least worst form of government tried.

I am reminded of one outstanding exception to the generally banal and superficial literature of tele­vision. The exception is Yes, Minister, and its successor Yes, Prime Minister. These are brilliantly and accurately written. The characters and dialogue are so good that there is practically no need for sets.

As I was preparing this paper, I happened to watch an episode in which one of Hacker’s responsibilities was the arts. Sir Humphrey was trying to manipulate an addition to an arts subsidy, a measure by which, as that prototype bureaucrat said, the government gives the middle classes back some of the taxes it takes from them.

It is now a requirement of any practitioner of any profession, that the practitioner undertake continuing education in his or her profession. My suggestion for the improvement of government is that there be a compulsory political education program which requires that every politician who is a candidate for a portfolio watch all of the Yes, Minister and Yes, Prime Minister series, and sit and pass an examination on them afterwards before actual elevation. My acquaintance with bureaucracies and their obfuscation of their nominal masters, ministers, suggests to me these television series are about 90 per cent accurate.

Finally, and if you will forgive me for finishing on a humorous note, I will say something about Winston Churchill and another famous author of the last century, each equally repugnant to the other. George Bernard Shaw wrote to Churchill inviting him to attend a performance of his new play and to nominate a night to attend it, “with a friend if he had one”. Churchill replied, “I’ve chosen the second night, if there is one.”