Character imbues the endeavour

Behind every successful enterprise is the character of its founder, without which it can only fade into mediocrity. History is but the biography of great men, Carlyle assures us: we prefer now to see systems and processes, but he was right: that initial spark of genius puts life into words and forms it into success or failure. The departure of that founder may often be its end.

Rome required Augustus. There could have been no Napoleonic Empire without Napoleon. As in the macrocosm, so in the microcosm.

A successful institution cannot be created just by one who knows that something must be done, but who knows what must be done, and how. It is not enough to determine objectives and pay hired men to pursue them: they do not have the vision nor motivation. Real objectives cannot be rendered in words but must be lived. It was the genius of the late Duke of Edinburgh that he could see the destination and the route, he could find those who shared his vision and he made them enthusiastic. He also made sure they got on with it. He was a consummate naval officer.

He did not see ideas in a one-dimensional nor black-and-white manner. His enthusiasm for science and engineering saw no contradiction in his love of nature and drive for conservation. The two do not conflict and have come to complement each other. Nature conservation is very much of our time, but before the Duke of Edinburgh took a hand it barely registered beyond the confines of the National Trust and faintly embarrassing feelings of nostalgia – but while the National Trust were content to buy to preserve and leave otherwise alone, the charities established by Prince Philip took on active research, education, engagement of local bodies, and creating a ‘conservation community’. That cannot be done without vision and a clear objective, and these cannot be achieved without the mind to direct them. The Worldwide Fund for Nature, the Wildfowl Trust (‘We formed it over dinner – duck I think it was.’); these are the product of a focussed mind.

The most popular legacy is the Duke of Edinburgh’s Award Scheme, which was quickly established all over the Commonwealth, and it above all bears the stamp of the Prince’s character and drive. It breeds drive, independence and resilience: I cannot imagine any committee coming up with it. Those of us who have been through it up to Gold, carry its legacy with us, which is a piece of the character of the Scheme’s founder. It has gone beyond the Commonwealth too and had imitators. (The Duke of Bragança, the man who should be King of Portugal, formed his own scheme in his homeland, but follows the template and the drive laid down by the Duke of Edinburgh.)

The challenge for a founder is to keep the foundation going beyond his time.  It is not easy.  The state built by Cromwell could be built only by Oliver, and when he died, his son Richard was unable to hold it even for a year, as Hobbes recounts:

Thus was Richard Cromwell seated on the imperial throne of England, Ireland, and Scotland, successor to his father; lifted up to it by the officers of the army then in town, and congratulated by all the parts of the army throughout the three nations; scarce any garrison omitting their particular flattering addresses to him.

….The army was inconstant; he himself irresolute, and without any military glory. And though the two principal officers had a near relation to him; yet neither of them, but Lambert, was the great favourite of the army; and by courting Fleetwood to take upon him the Protectorship, and by tampering with the soldiers, he had gotten again to be a colonel. He and the rest of the officers had a council at Wallingford House, where Fleetwood dwelt, for the dispossessing of Richard; though they had not yet considered how the nations should he governed afterwards. For from the beginning of the rebellion, the method of ambition was constantly this, first to destroy, and then to consider what they should set up.

Systems are attractive, but systems are dead hands: it needs men and women of vision. Systems without new growth are restraints against the very creativity which was required for the foundation they bind. The founder must therefore not just create a system but create successors who have the life of the idea within them. Robert Baden-Powell achieved it, with a good deal of the cult of personality to follow him – each troop runs as if B-P were looking over their shoulder even today.

I think of the sudden enthusiasm for free schools, which had great success, when there was for each a directing mind. As long as that mind has remained to guide and to chide, they continue to thrive. Some were established by parents wanting a better school for their children, but they have seen their sons and daughters grow up, leave the school, and they themselves need no longer be involved: those schools can flourish only if the enthusiasm is renewed with each upcoming generation.

Now, to be fair, vision is not enough for continuance: Jordan Peterson observed that two characters are needed: it takes a liberal, creative mind to create a new endeavour, and a diligent, conservative mind to run it. The great men are those who can be both.

Some foundations of our age have fallen into dotage by following good but dead rules, the fire having gone out. Many have been captured by political activists lusting after their funds and the prestige of their name, but with no care for the original drive.

For those foundations created by the Duke of Edinburgh there is hope, because much of his drive was in creating in his successors the same vision. The Award Scheme has alumni ready to take on the world, knowing what the scheme is for. The conservation charities found a new dynamic, beyond mere preservation. He has gone, but his spirit imbues them all. Long may it last.

Going back to Carlyle, he explained his theme at greater length than an line:

Universal History, the history of what man has accomplished in this world, is at bottom the History of the Great Men who have worked here. They were the leaders of men, these great ones; the modellers, patterns, and in a wide sense creators, of whatsoever the general mass of men contrived to do or to attain; all things that we see standing accomplished in the world are properly the outer material result, the practical realization and embodiment, of Thoughts that dwelt in the Great Men sent into the world: the soul of the whole world’s history, it may justly be considered, were the history of these

The imperial system of Augustus went into decline the moment he breathed his last. Napoleon’s too as he boarded the Bellerophon to exile. Their achievements were “the practical realization and embodiment, of Thoughts that dwelt in the Great Men” and nothing without them. We may hope for better from the foundations left to us where the spirit of the founder still fills them.

See also

Unreasonable Judicial Review

The government’s response to a paper on judicial review, which was my last post here, is good as far as it goes. It holds back from necessary reform though: the first such reform is a restatement of the Wednesbury rules, and specifically the ‘reasonableness’ element.

The Wednesbury rules are set out in a page on this site (Judicial Review: a guide). In essence, a decision must take account of all relevant purposes, take account of no irrelevant purpose, and must not be unreasonable. All these are hostage to fortune: the last is a bear-trap, misused to side-step the rule of law.

The paper does not refer to Wednesbury directly but does give a firm background for it: any power granted by Parliament has explicit limits, but may also have implied limits. The Wednesbury rules are implied, unspoken limits. For example, Parliament may grant councils an explicit power to licence certain businesses, but it must not use the power to favour councillors’ family businesses and suppress competitors: that will not be set out in the Act but is implied. The paper contains a stern reminder that these limits are only implied, and not a universal truth, and Parliament could disapply them, and has done.

‘Reasonableness’ is a problem though. In Wednesbury and later cases it has been explained: unreasonableness is insanity: a decision made by someone who has lost his power of reason.

Decision-makers are rarely clinically mad though, so impliedly it is an evidential question: ‘Was the decision so devoid of reason that no sane man could have made it? If so, and assuming the decision-maker was not mad, it must have been made without regard to the genuine factors or for an improper purpose.

The word ‘reasonableness’ has other meanings though in everyday life, and these have been used by some judges to widen their remit. It can be used by a judge to usurp the decision-making process so that the judge substitutes his own reasoning a the mete-rod of ‘reasonableness’. That, negating powers and discretions given by law, subverts the rule of law.

The Government paper is sound on all these points as a restatement of the strict law. However, it is only a government paper – it is not an Act of Parliament nor a legal judgment: it has no force of law whatsoever. The Ministry of Justice may feel they have done will in preparing this paper, but no judge could take it into account. It needs an Act of Parliament to give direction.

A lurking instability are that the Wednesbury Rules themselves are found in no Act of Parliament. They were deduced by the Court of Appeal in 1948, in Associated Provincial Picture Houses, Ltd v Wednesbury Corporation. That in itself may tempt an judge with a sense of a good cause to determine that some other implications are yet to be found by a judge with his own perspicacity.

The idea of reasonableness in Wednesbury is strictly limited though, and Lord Greene knew it could be abused:

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation   [1926]  Ch  66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.

…….

I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose.

To set this strict definition out in black-and-white law may be a challenge to the sesquipedalian legal draftsmen of our day, but it is quite simply when boiled down.

To retain the requirement of ‘reasonableness’ is consistent with what Parliament must have intended and so supports the rule of law. To extend it to allow a judge to strike a decision down by applying his own standards of reason and preference would discard the rule of law entirely, in favour of the rule of lawyers.

See also

Books

A start to fixing judicial review

A very encouraging government response in the review of judicial review suggests that the system will be made to work better. It is still the start of the process.

The Law Society fell over themselves to find something to object to, which they would have done irrespective of the outcome: in fact the government’s paper is everything the Law Society could have wanted.

Some of the problems found in the current judicial review process are set out in the paper, but only some. The main reforms proposed are encouraging, as a start, and on their own they would make the system work better for everyone, not to stop judicial review of administrative decisions but if anything to make it a remedy more available for genuine cases, while providing a mechanism for remedying decision-makers’ faults. It is not a wholesale reform, but it sets the tone.

The headline points are short. The first of them seems very niche: reversing the ruling in Cart. That (and I had not heard of it either) was a decision allowing parties to challenge the Upper Tribunal if it does give them leave to appeal. It was pointed out that the Upper Tribunal is a senior judicial body that was never meant to be amenable to judicial review in this way and those appeals are the biggest single type of judicial review; 779 a year on average, with a miniscule success rate. It discredits the system, ties up judges in pointless work and wastes resources to no benefit.

The second-biggest set of appeals is one highlighted here before, namely immigration challenges. While this is not covered in the paper, eliminating those challenges by giving the Home Secretary complete discretion to do her job would knock out about as many cases again.

The second reform is interesting in terms of legal philosophy; the classical conception of judicial intervention would not countenance it, but modern conditions are far from the original conception. The classical formulation is that a decision made beyond authority is a complete nullity from the beginning, and therefore the court’s only role is to declare it so. In modern practice, decisions are very rarely quashed for being wholly outside the decision-maker’s powers, but for procedural inadequacy, such as failure to consult in the way laid down in a regulation, if that is a condition of action. In such a case, the court might in future be empowered to suspend the decision so as to give the errant decision-maker a chance to put right the procedural flaws. The challenge then is to allow that latitude to genuine correctable oversights and not extend it to actual exceeding of authority.

(The example of the latter given in the paper is if Parliament were to create a tribunal empowered to hear only tax cases but the tribunal started handing out murder convictions. That sounds wild, but it is exactly the sort of thing that used to happen back in the day, right up to the Revolution of 1688, and caused the Court of King’s Bench to issue many a writ of certiorari against lesser courts.)

A third string to the government’s paper is another one which has been highlighted here: the High Court’s blatant disregard of ouster clauses. Here the Law Society become vocal: “We need to consider carefully government proposals to change rules that would put some ministerial decisions beyond the reach of the court – so-called ouster clauses – but the guiding principle must be that the government, is, and must remain answerable to the law – just like the rest of us” – but that is a dishonest reading of the paper. Ouster clauses are rare, and there is no suggestion that they would become more common. Where they are needed to give finality to decisions, Parliament orders it, and to disregard the plain words of an Act of Parliament is the very antithesis of the rule of law: it is Parliament which makes the law.

If ousters become commonplace, then there would be an objection, but that is not suggested. What the paper actually discusses, if not in so many words, is “How to we stop judges from using sophistry to ignore the plain words of an Act of Parliament whenever they want?”

The narrative to the report, aside from the actual recommendations, is of as much interest in setting the tone. The golden thread is the rule of law. That is also the ideal championed by those cynical of the government’s motives.

It is right that Labour and the LibDems and the Law Society should be sceptical. It is right that they should voice suspicion of the government’s move. A government is not to be trusted with the delimitation of its own powers. Parliament is the trustee of that restraint. Care must be taken of a government looking at the limits of its powers, but in this case the writers of the report have trodden carefully.

The rule of law is here accepted, and whatever right and proper suspicions are expressed by the Opposition or the Law Society, when it comes down to it, the Conservative benches in the Commons have more respect for the restraint of government power than may be found opposite, simply by ideology.

One word mysteriously missing from the whole paper is “Wednesbury”. The Wednesbury principle is the foundation stone of modern jurisprudence on judicial review. It is placed in fact in the paper, not by the name ‘Wednesbury’ but as a reminder that basis of the modern rules is not to empower judges but to reflect the intentions of Parliament:

“while the standard grounds of Judicial Review are default conditions that Parliament intends to apply to the exercise of any power, these are just defaults and Parliament is completely free to add to or remove from them in specific cases.”

The actual rules in question have been discussed before. The originals have shrunk in the imagination to one: reasonableness. That word is open to misinterpretation, often deliberately. The meaning of “reasonableness” will be the next article on this subject.

To go back to the paper, it refers to ‘the tendency in the contemporary debate to see terms such as “the Rule of Law” as coterminous with the application of a range of moral and normative values’ and observes, correctly, that:

“there is a significant difference between defining the Rule of Law as the idea that the powers granted by Parliament or through the prerogative should be enforced by the courts (or another body) according to Parliament’s intent, and the idea that the courts should apply as a matter of course another source of authority such as their own concept of fundamental rights”

That is the fundamental trespass that activist judges can make. Judicial review is there to restrain officials from exceeding their lawful jurisdiction. It is not based on idea that judges are all-wise and ministers and officials are foolish so a judge would make a decision better.

There must be limits to ministers’ and officials’ powers, or freedom can be extinguished, and the courts will enforce those limits. However, the law is not just about limits: it is about actual powers granted, and they are granted for the benefit of the public. For a judge to invalidate a power actually given, because he has other ideas, that is to disregard a command of the law, and thus is a contempt for the rule of law.

See also

Books

Motivations of the Cancel Culture

The ‘cancel culture’ is so ubiquitous, so pervasive, that it needs no description. It is today’s ochlocracy. The two questions it raises are: what to do about it, and why it happens at all. The former has been discussed elsewhere. The latter is more interesting.

Apart from a few half-hearted hits back (or state interventions from Peking and its friends) campaigns to cancel, ban, or sack chosen targets are associated with the radical left. There is something about that psychology which encourages it.

I am indebted to Rob Henderson, who penned a piece of Psychology Today about the motivations driving the Cancel Culture.

A successful ‘cancel’ attack is an exercise of power of the collective effort against an individual or institution. Hobbes looked at motivations that drive our apparently inexplicable actions, observing:

“The Passions that most of all cause the differences of Wit, are principally, the more or lesse Desire of Power, of Riches, of Knowledge, and of Honour. All which may be reduced to the first, that is Desire of Power. For Riches, Knowledge and Honour are but severall sorts of Power.”

Whether the thought behind the eyes of the man or woman who types #canceljoebloggs, or whatever may be a desire for fame if they publicly lead the persecution, or just for the exercise of power: for those who follow sheeplike and type the same, there is a desire to have a share in the exercise of power. However Henderson’s observations are more insightful:

The cancel culture is a social activity.

Looking at how it develops, that appears correct:  it is primarily social activity, like all the local cultural customs we used to have, and perhaps in substitution for them.  It is also an anti-social activity of course, but like a tribal raid on a neighbouring island, it binds the immediate society in enmity for another.

Ours is a big, disconnected, anonymous society, and retreating behind screens leaves us lonelier still, against our every instinct for social interaction. Finding society of a sort in an on-line community is like oxygen to the suffocated soul. As with any social structure, the need for acceptance is the first motivating factor, followed by the desire for enhanced social status. Building this social bond requires the creation of common cultural preconceptions and group identity. This is an electronic tribe, and that tribe will go to war. Any young man knows that being the boldest, the most fearless and the hardest to strike provides status. When the weapon is a keyboard, girls can take part in equality with the boys, or may form their own tribal group.

In the classical model, common tribal identity is founded on culture, rituals, religion, and is intensified as members pursue “Desire of Power, of Riches, of Knowledge, and of Honour“. The same is true of the hard-left on-line communities, which have developed and enforce internally their culture, ritual and religion.

The pattern of cancel culture activity all follows precisely the essential Stone-Age social model which in in-built in us all and studied endlessly in other contexts of social interaction. The tools are modern and the tools shape a new methodology, and the religion is a nineteenth century one founded by Marx and developed in the twentieth century, but that is as far as modernity breaks in: the online society from which the cancel culture emerges is a tribal structure no different from the immemorial pattern of humanity.

See also

Books

I always side with the Morlocks

In The Time Machine, H G Wells drops his character, the Time Traveller, into a very different world, in the year 802,701.

If you have not read the book, it imagines humanity that is no longer human. Some great, decayed buildings still stand but mankind which built them has gone. There is a great sphinx monument, and across the landscape there are well-heads (or so they seem) but the human race as we know it is no more. At a past age it had bifurcated into two species: surface-dwelling eloi and subterranean morlocks.

It s a well-crafted book, written before Wells ‘sold his birthright for a pot of message’, so it need not contain a political or social point – just the author’s brilliant imagination giving a radical possibility for the future.

The Time Traveller is charmed by the eloi and repelled by the morlocks. The eloi amongst whom he finds himself, in their bright, carefree, arcadian lifestyle, gathering flowers, eating the fruit of untended trees and doing no manner of work, with no machines or science or writing, childlike in attitude and stature, seem to live out the dreamed ideal of mankind. The morlocks dwell in tunnels beneath the ground, where there are machines beating unseen in the dark. They are white-skinned and pink-eyed, and malevolent. They emerge at night from the sphinx and the wells and hunt for their meat – the eloi. The eloi fear the dark.

The BBC has (or had) a weird and worrying children’s television programme, called ‘Waybuloo’ (which was apparently Buddhist propaganda, not that the Beeb ever noticed) portraying childlike creatures living such an idyllic life with no cares and no work, living on wild fruit. I saw it, and knew instinctively that someone has to be doing all the work that they could live, and I could hear in my mind the thumping of the machines in a deep, unseen cave and the morlocks waiting the harvest the Piplings they had cultivated above. Don’t tell the children.

I still prefer the Morlocks. The Eloi are clothed and fed by another’s work and sustained just as cattle in the field. They have lost all the attributes of humanity. They have a simple language, but little reason for it. They know no past nor future and do not even look after each other – Weena was left to drown in the stream without a thought. The morlocks however take a hand in their own preservation and prosperity. They work, they have machines. They are curious, carrying off the time machine to study it. They farm the eloi as a food source, and so the eloi depend on the morlocks, though little realising this. The morlocks impliedly built the sphinx so that all who see it know who is superior. The eloi neither build nor preserve anything. The eloi are a disgrace to their distant ancestry: they are mere animals. The morlocks alone continue the human story.

Wells, through the voice of his Time Traveller, supposes that the morlocks were descended from the working men forced underground to toil, while the eloi came from the masters in their airy villas who banished them, only to lose their vitality through indolence. Any division like that would be self-correcting in our world, as the vigorous class became masters over the useless. The world of 802,701 imagined by Wells had reached not a new equilibrium but a position between two separated species that had to be maintained by the constant work of the morlocks.

It is possible to read too much into The Time Machine by reference to the radical political ideas later espoused by Wells. His visit to Bolshevik Russia in 1920 may have been a turning point for him, seeing it as a science fiction writer might, for the imaginary being turned into a reality, and ignoring inconvenient subplots like the induced mass poverty and starvation, repression and massacres. During the Great War he had come to express radical ideas, spurred by a hatred of the Hun and their industrial violence, but the development of his political ideas through fiction can be traced back earlier. The War in the Air (1907) is more soundly Hobbesian in its concept of how the world would turn out if civilisation were to smash itself. The Time Machine (1895) looks far further forward, deeper into humanity and sub-humanity. Maybe this is what pushed him over the edge.

The world portrayed in the book is not really about the future: it is more personal and internal. Victorian philosophers used to talk of a good and an evil side to each of us (as expressed in Doctor Jekyll and Mr Hyde, but that is another article): the eloi and the morlocks represent those sides. Perhaps instead though they represent on one side the child’s happy dream and on the other are the monsters imagined in the dark. In waking, it may contrast the idyll of childhood summers against the toil of adulthood; or the ideal we dream of and the reality in which we find ourselves. The eloi are compared with children, in case we had not picked the clues up.

There is something worrying there too. The only named character of the future age is Weena. In the classic film adaptation she is portrayed as a lover. In the book her position is ambiguous: she is more like a clingy child, but the Time Traveller is not unreciprocating as he ‘returned to the welcome and the caresses of little Weena’. Not too childlike, I hope. (There are men who seek utterly limp and submissive women, but such men deserve no respect, and I pity the women concerned.) I will be generous and assume that in this case the man finding himself the only human being in the world needs some innocent, reassuring company.

He meets the morlocks in the tunnels beneath a well. In the dark there are just looming shapes, a mass of figures, the meat on a table, the huge machines of unknown function. Fingers paw at him, exploring, then seizing him and he wrenches himself away. Is it an attack or a desire to know more of this unknown being who has stepped amongst them, just as they wanted to understand the machine? We cannot know.

The night will come though, and it does, even as he and Weena are far from the communal hall of home, and the morlocks emerge. It is perhaps the first time we see them with characters of their own. They are still for the Time Traveller an anonymous swarm to be rendered no pity even as they scream in terror of the approaching fire. he does not see them as being closer to him than is the eloi girl in his arms, or maybe he does but does not want to know himself. He is as far as he can be from the comforts of that Victorian withdrawing room from which he stepped, but it has not left him. The eloi are comforting; the morlocks a deadly threat, but back in London men in the shadows are no less a threat.

In the book, the morlocks are observed as ugly, evil monsters, without any redeeming feature, and the eloi are beautiful perfection. However they morlocks cannot be all evil any more than people are. They must co operate and have a society in order to build and to thrive on limited resources.

All this analysis can be pushed too far. I might read the book for my own reading of it, or as the average reader (if there is such a thing), or the way Wells intended. As you wish.

What I take from it, which Wells did not intend, is that of the two species descended from mankind, the Eloi are lovely but a dead-end, unable to develop or even to survive on their own. The Morlocks look after themselves and each other, they plan ahead, they build, they are curious and accordingly they can develop and adapt. The future is theirs. I must always side with the Morlocks.

See also

Books