Murmuring the judges – 2

The system of appointing and keeping judges is often under scrutiny. A few little pushes and a constitutional outrage can be committed in the dark.

In a previous article I looked at the condition of the judiciary and concluded that actually the quality of British judges, in all three of the jurisdictions, is very good, possibly the best in the world, and generally neutral in political controversies.  That makes the system a target for activists.

It would be worse if judges were forced to be political, as they are in the United States. British judges do not get to overturn primary legislation they dislike, and delegated legislation can be struck down only on narrow grounds. They are more vulnerable when decisions turn on social attitudes, and in a multicultural and acultural society in the midst of a culture war, there is no cultural norm and no equilibrium.

David Gauke, Lord Chancellor at the time of writing, gave a speech on 3 July 2019 in which he observed the pressures on judges:

“Those grappling with complex problems are not viewed as public servants but as engaged in a conspiracy to seek to frustrate the will of the public. They are ‘enemies of the people’.”

– and that:

“Our judiciary has a reputation for intellectual rigour, careful consideration of the arguments, and a serious-minded determination to each decision based on what is right and not necessarily what is superficially popular. I am not sure that all politicians have the same reputation.”

The easy target in the speech was ‘populism’, but there is more pressure from social justice warriors. A judge stepping out of line in a judgment or an intervention may be attacked more ruthlessly then being called an enemy of the people.  A judge may make the rather obvious point that a young woman who gets recklessly drunk in a low dive wearing provocative clothes is putting herself at unnecessary risk, but those judges who have said that have reaped a whirlwind of complaints. Had they suggested ‘she deserves it’ that would be despicable but just to suggest that people take more care of their own safety should not be criticised.

This post could be filled with pages of examples of magistrates and officials removed for expressing the slightest dissent from the progressivist line, but that would serve little purpose: the process of Twitterstorm, written complaint and disciplinary action is well known. The main point is whether social justice warriors can enforce their will, and to what extent.

High Court judges have a constitutional protection: they can only be removed after a joint address from both Houses of Parliament.  That ensures that they are politically independent.  Over the course of the three centuries since that rule was enacted, only one judge has been removed by this procedure, for criminal abuse of his position. Circuit judges are less well protected, but there cannot be removed at a whim. For those in the lowest positions, and lay magistrates, a word may remove them.

Watch for voices claiming the current system is old-fashioned or, worse still. ‘obsolete’. It will not be the populists who do that, but the ‘unpopulists’; those with a woke agenda.  They will be working in the dark, in committees and all the little offices that that have been infiltrated on the Long March.

We should all worry about making it easier to sack judges, as that they would be removed for petty reasons.  The argument in learned reports will talk of taking action where a judge has committed a crime or corruption, or become a Weinstein, for that is the way to prise the lid off.

The lid off, it would open the way to politically motivated sackings and we would have an ochlocracy.  The Daily Mail headline about “Enemies of the People” was mild and brief compared with pressure from within the establishment; and the new establishment, not the democratic overlay.  Political storms are easy to begin without thought: when the ‘Birmingham Six’ had their convictions overturned, one MP tried to start the process to sack the judge who had gaoled them, but could go no further as constitutional procedure is robust against emotional lashing-out, but when there is a disciplinary procedure, ,that will be another matter: every so often there is a Twitter storm demanding sackings for public officials alleged to have said something unfortunate (whether they did or not – Roger Scruton’s treatment is still raw). When once even High Court and Supreme Court judges are vulnerable, there is no stopping it.

We would end up with fearful, bland, useless judges, taken from the ranks of those meek and willing to be led by the changing fashions of discourse, not those willing and able to command, which is what a judge must do.

See also

Books

The Curses of Caesarea

A Channel 4 documentary on Saturday night brought home an ancient controversy. Illustrated with a treasure-trove of material from Caesarea on the coast of Roman Judea, what was found is shocking.

The programme was on Roman chariot racing, but that is not what stuck in the mind – it was the physical evidence of life in a city which was not as it should have been.

Today Caesarea is a modern city, and its predecessor was modern in the Roman world too, founded by Herod the Great as his capital, named after Augustus and modelled on the cities of the Graeco-Roman world. This city had all the trappings of a Roman city, including a theatre, a temple dedicated to Roma and Augustus, and a hippodrome, for chariot racing. Around the circus were all those shady stalls found in every Roman arena – the temples, the taverns, the cauponae, the knocking-shops and magicians selling charms and curses.

The city attracted a large gentile community, though the majority of the city’s population were Jewish, until later centuries. What they could see around them in this new Hellenistic city was abomination: heathen temples, murders as entertainment in the theatre, soothsayers and magicians. A foreign culture was taking over and one which offended against every aspect of the Law.  In a well in the city Israeli archaeologists have found many curse tablets, rolled sheets of lead with curses written in Greek invoking Greek deities to bring death or ill-fortune on enemies, or on the opponents of favoured chariot racers.

The reaction of observant men must have been of horror that here within the Land of Israel there stood in stone the very antithesis of all the law and the prophets.  Further, it was modernity and seems to portray the inevitable future for all, and it was embraced by those who went to live within the city. We do not know if any of those curses invoking the Goddess were laid by Jewish inhabitants of the city, but the fact that pagan idols were being invoked and pagan magicians thriving in the land, seducing even Jewish men, must have looked like the evil that arose in the days of the prophets.

Unlike the days of the prophets though, no end could be imagined as all the civilised world was in the hands of the Romans and the Greeks and all modernity embraced their civilisation. To reject that culture was to reject modernity and to be “on the wrong side of history”. Therefore it could only grow: pagan temples, pagan culture, idols, orgies, indulgence, ritual murder, debauchery, astrologers and soothsayers and all that the Law forbids celebrated in the cities of Israel with official approval.

The men of Judea were strangers in their own land, mocked by those who had come among them for their old-fashioned, joyless religion and stale morality.

There were rebellions.  They were suppressed, with brutality: Roma triumphans.

However there may have been a memory of the prophecy of Daniel, the King’s dream in which “a stone was cut out without hands, which smote the image upon his feet that were of iron and clay, and brake them to pieces”, and “the stone that smote the image became a great mountain, and filled the whole earth” – this was a vision of the future Messianic kingdom, but for those in the land seeing everything ebbing away, this must have seemed a vain hope.

It was not a vain hope:  Roman culture was in time overthrown by “the stone the builders rejected”.

Our western culture, our world culture, has been built on religion and morality that King David would understand and Caesar Augustus would not. Now that foundational culture is under relentless attack we are urged to give up, to accept an inevitability of modernity which claims eternal truth, as did Rome. I hope that the ruins of Caesarea can provide us with a lesson for today.

Betsy Ross and the losses of Victory

Perhaps Nike could change their name from Nike (“Victory”) to Ētta (“Defeat”), as they have been routed in the culture war. If you missed it, for Independence Day 2019, the company launched a new range of trainers, the Air Max 1 Quick Strike Fourth of July, with the Betsy Ross flag on them – and were then accused of racism, and immediately withdrew the range, and were then accused of being unpatriotic and lost a $1 million subsidy and the respect of millions of customers.

A single accusation of possible racism caused the whole range to be pulled, at a loss to the company we can only imagine. Into this stepped Doug Ducey, Governor of Arizona, not in a formal address but (in the modern style) in a series of Tweets:

“Words cannot express my disappointment at this terrible decision. I am embarrassed for Nike.  Instead of celebrating American history the week of our nation’s independence, Nike has apparently decided that Betsy Ross is unworthy, and has bowed to the current onslaught of political correctness and historical revisionism”.

In retaliation for this slur against the United States, the Governor withdrew a state subsidy that was to help Nike develop a factory in Goodyear, Arizona. From our side of the pond it is hard to imagine a politician not siding in terror with the Cultural Marxists, but here is the Governor of Arizona punished the company for rolling over to the mob. That is sturdy resolve we do not see amongst British politicians.

Now Nike is facing a boycott by American patriots.

The BBC report was its usual one, accepting the accusation of racism without demur: of the Betsy Ross flag they wrote “Although opinion is divided over its origins, the flag was later adopted for use by the American Nazi party.” and give prominence to a picture of an American Nazi rally in the 1950s where it appeared. They say the alt-right have used it too. Truly, the BBC are incurable. (The only divisions of opinion on the flag are not political; just whether Elizabeth Ross herself designed it and whether Washington had a hand in it.)

My first reactions to the story were surprise: first that a politician has not rolled over to the first whiff of accusation, and secondly that one of the richest companies in the world, which sells sneakers to the poorest at hundreds of dollars a pair, lives off taxpayer subsidies.  In America they have name for that: ‘corporate welfare’.

A passing word too for those boycotting Nike; good for you. Perhaps you could help us in Britain to organise boycotts of companies here who bow before a handful social justice warriors with laptops and nought else.

It is not of course that protesters are actually offended, just pretending to be offended, unless the offence is just that someone has different priorities from theirs. They are not offended: they want power over those companies.  As this site noted before on this:

The Betsy Ross flag, for those unfamiliar with our colonial cousins, was the first independent flag of the new United States, or the most famous version of it, in a pattern first sewn (according to some accounts) by Betsy Ross of Philadelphia.  The canton of the flag has a ring of thirteen stars, for the thirteen newly independent colonies. It has been used in patriotic celebrations ever since it first flew during the War of Independence and is a common display on Independence Day.  We will not see it disappearing:  it appears each 4th July, and at Presidential inaugurations, including that of Barack Obama, who was not exactly alt-right.

The proof it the inherent racism in the flag was a photograph showing the American Nazi Party displaying it at a rally in the 1950s, beside a vast icon of George Washington. That the flag has been used by millions of Americans of all opinions, religions and races over two hundred years is weighed as nothing when a Nazi purloins it.

(I shall have to hide my collection of Beethoven in that case, as Hitler was a fan, and swear never again to eat pickled cabbage for the same reason. The latter is no hardship.)

What now for Nike / Ētta? A single expression of concern that need not have gone beyond the company’s wall has left them looking cowardly, which is not a good look in sportswear, has cost them $1 million in corporate welfare, millions more in losing the sales of goods they had already made and marketed, and now they are facing a consumer boycott. Mighty as you may be, never think to yourself ἀνίκητος εἶ ὦ παῖ.

Books

4IR: understanding and fear

Alan Mak MP recently wrote a series of articles on Conservative Home about the ‘Fourth Industrial Revolution’, which its aficionados dub ‘4IR’.  The excitement and the possibilities echo through the whole piece.  The IT revolution is exciting and inviting of innovation that has transformed life as we could not have imagined not just in my lifetime but the last decade, and the next leap can make new transformations we can barely imagine.

It is a promise of the future but also the reality of the present:  we are deep within the ‘third’ industrial, revolution, the computer revolution, and ‘4IR’ is all that follows or might potential follow from it: beyond apps to artificial intellegence, robots, synthetic biology, ‘the internet of things’, augmented reality, biohacking, and more we cannot yet conceive across the world and beyond it. It is the fusion of technologies: you might say that 4IR geeks must step out from their screens and create real things in the real world.

Is it true that no new thing has been invented since the 1950s- 1960?  Then we saw the first hovercraft, lasers, maglev, the silicon chip – all since has been the improvement of existing technology.  The latest Tesla may be a revolutionary car it is a car, and nothing Henry Ford would not recognise.  Since the IT revolution, innovation has shrunk to the confines of a screen, and has changed the world from there, but it is limited.  The promise off the next stage, this ‘Fourth Industrial Revolution’ is to bring all the strands of technology, from Boulton-Watt to Microsoft. Together to do new things which each alone cannot achieve or even conceive..

We should not however get carried away with imagining that the new age is unimaginable.  It is called the ‘fourth’ revolution after those of steam, of electricity and of computers.  As we saw the previous upheavals, so we see this one, and we can learn not to underestimate it, nor to be afraid of it.

It is no different from the others.  This new revolution is governed by pure Adam Smith logic, as have been the preceding industrial revolutions and all innovations since man first lifted a hunting spear:  if there is incentive for an individual to innovate then he will innovate, in order to make his work less boring or more profitable.

If the system were ever established that takes from a man all that he can produce then there is no incentive to innovate and society ossifies:  Smith identified this deadening factor in the feudal states of his day.  Innovation and the motors of prosperity existed only where a man could earn more by working hard and innovating, and were strongest in America, as land rents were low. In the French countryside a seigneur would take as rent the whole increase in production, and as a result tenant farmers made no innovations, but lived from day to day. It was in the towns, freed of this system, that new machines and techniques were developed, and in Britain both town and country fizzed with innovation, leading to prosperity for all: profit for the innovator and cheaper goods for the customer.

The deathly feudal system is in vogue today: its idea of taking from each according to his abilities, to each according to his needs, is a cornerstone of Marxism to which Messrs Corbyn and McDonnell are devoted, and a large section of the unthinking population too.

There is fear over the new industrial revolution.  This too is nothing new. The Luddites, Captain Swing, and all machine-breakers did what they did convinced that machines would take their jobs and leave them to starve.  Today, identical fears are heard, and those most vocal about it will tell the world on Twitter and Facebook, while sending out for online pizza.

The lesson of all revolutions in innovation has been that it can produce unexpected prosperity in all society, with new jobs arising where others are lost:  as less work is needed, there is time and energy to do more work, and new prosperity opens up new opportunities.  If a ship once took a year to build from timber and can now be built in two months, then that is not five out of six workers on the scrapheap – it is building six ships in place of one, or building them bigger for new cargoes, or building them of steel.

When robots take jobs, as they will and must, it is to make consumer goods more affordable and industrial processes cheaper, and it creates more jobs, and ones less backbreaking.

Each sudden change produces fear and protest – when the mines closed in the 1980s commentators thought the mining villages lost to poverty forever, but they throve, with more jobs there now than ever before, and jobs that do not involve crawling through a mine in the blackness waiting for a cave-in, and retiring with lung disease.

The future is good.

Books

Liberals, conservatives and the Jordan Peterson thesis

Why Liberals are always wrong about everything but cannot see the error of their ways nor even accept that there are other opinions, is a constant frustration for the right-thinking man.

Jordan Peterson provides the answer, in part, in a number of his online videos.  You might want to sit down for this:  they are not wrong as such but seeing the world through different eyes.  This has implications for how we consider the choice of our political leaders, but more fundamentally how we treat our neighbours in a fractious society.

Peterson suggests the difference between “liberals” and “conservatives” may even have a biological element, which would be eye-opening; biologically determined socio-political views would take some swallowing.  His thesis needs serious consideration.

I am not a psychologist and am not the great Hobbes himself, so a take a great deal on trust from Hobbes, Smith and Peterson. I want to say “essentially, Peterson is not talking about our political parties but about…” but I here in my voice echoes of Cathy Newman saying “So what you are saying is…” and getting it wrong every time.   I have no right to reinterpret his words, but I can say what I think in accepting them.

The thrust of Peterson’s thesis is that liberals and conservatives have come to their positions not so much from different axiom and reasoning, but from having very different personality types. It is even possible, Peterson suggests, that part of that difference is inherent in our biology rather than learned.  (It would be a radical change in our usual view if we found that socio-political views are genetically determined.)

In essence:

  • Liberals have a personality trait of “openness,” which is to say that they have an affinity for abstraction and aesthetics
  • Conservatives have a trait of “conscientiousness” but not creativity.

Putting it as bluntly as Peterson does suggests two a human race cut in two, but it is obviously not that and it is instead a sliding scale between two extremes. Perhaps social expectations cause any individual to gravitate to one side of the divide and identify himself or herself there, deserting the centre.

(Incidentally, it is not at all a male-female split:  each sex exists in strength on both sides; otherwise there would be a shortage of conservative brides for conservative men and vice versa:  a conservative will prefer to marry a conservative and a liberals to shack up with a liberal. If there is a genetic element, this would sharpen it.)

It is natural to lack respect for someone who obviously has the wrong approach to life.  However if that is because they see the world through different eyes, and theirs is not a wrong view but a different view, then we are committing an injustice.

Naturally conservatives see conscientiousness as key to reliability and trustworthiness, and naturally liberals see conservatives as repressed and dull.  We cannot live without each other though.  The world does not work without conscientious people to keep it running, and it runs into the ground unless there are open-minded, creative people to find the new ideas to keep it renewed.

In politics we need both, but we tend to have small-c conservatives in dominance. Liberal-minded and conservative-minded voters alike value reliability and trustworthiness, and a lack of surprises, in those entrusted with government, so this dominance by those of conservative-temperament in all main parties is to be expected.

Sometimes we need a different approach, and liberal-temperament rulers.  Whenever the system of government becomes moribund, a new, creative approach is needed. Whenever there is a crisis which the normal way of doing things cannot solve, then we need an original mind which thrills to take risks.  It may be a disaster or it may be a roaring success, depending on the individual.  Benjamin Disraeli, David Lloyd-George, Randolph Church, Winston Churchill – they achieved through creativity and abandoning timidity.

I have got all the way through so far without mentioning Brexit; here is a situation where a tunnel-visioned approach has brought an impasse, and it needs someone who can step back outside the tunnel and fix it a new way.

Books