||Issue No. 310||09 June 2006|
I'm No Economist, But �.
Interview: Rock Solid
Industrial: Eight Simple Rules for Employing My Teenage Daughter
Politics: The Johnnie Code
Energy: Fission Fantasies
History: All The Way With Clarrie O'Shea
International: Closer to Home
Economics: Taking the Fizz
Unions: Stronger Together
Review: Montezuma's Revenge
Poetry: Fair Go Gone
The Locker Room
Greens Are Good For You
Calling All Micks!
Coming Up Swinging
Mining For Gold
Blood Spangled Banner
Never To Be Repeated Offer
Letters to the Editor
Her Honour Judge Judith Scheindler
Sorry this is so long, but you may be interested in the read.
In a recently published (Network Ten, 25 May 2006, 3pm AEST) law judgment, her Honour Judge Judith Scheindler determined against a landlord suing for the cost of a broken bed. Scheindler J ended her judgment by admonishing the plaintiff: �Nothing lasts forever.�
The litigants before her Honour�s Court in the State of New York were icons of New Christian Century America: two young, super-size, self-confident matrons.
The plaintiff was 30s, waved platinum tresses unfolding beyond her shoulders, grey-blue eyes wanting over dimpling pout, a contralto siren to justice, arms� gesturing without pastel chiffons.
Her litigation quarry, the tenant of her furnished room, was the same age, a black woman, hair short, curled, loose and tinted light tips, shaking over giggles at the landlord�s testimony. The plaintiff wanted to demonstrate the black woman was morally liable.
�It looked like, you know, she was playing mambo on the bed,� was the blonde�s testimony. This reduced the defendant and the audience to bending sniggering. Only the white lady plaintiff was unamused. She repeated the mambo insinuation. That was even after the defendant had told how the bed had broken as she had sat on it with her daughter, to brush the youngster�s hair before school.
Neither mother nor daughter was hurt in the fall.
While the defendant was later working away, the landlord inspected her room and on seeing the broken bed, had telephoned the defendant, and demanded reparation, which the defendant refused. She maintained her refusal and moved out, without any rent owing. The claim was merely for the cost of the bed.
The stout blonde plaintiff admitted to Judge Judy that the bed had been broken before the lease. The plaintiff assured the Court her boyfriend, a present brunette prepster, had repaired the bed, sturdily with �solid wood�, which would have withstood all use, except the implicitly reprehensible �mambo�.
From the legal practitioner�s point of view, this is a basic case, with a question of tort in the destruction of the bed, and that question within a further question of the contract of the lease of the furnished room. Contract and tort are two of the species of the genus of laws known as common law. In these long years after 9/11, American and Australian audiences have been assured that common law, especially tort law, has been an instrument of the devil, thus justifying the raft of parliamentary Acts known as �tort law reform�, which have restored global insurance funds.
But common law embraces more than the liability of occupiers. Within the broader ranks of the definitions of common law, as well as contract and tort, there are the laws of the Acts, including the Constitutions of the United States and the Commonwealth of Australia, and the State of New South Wales, and the Parliaments� licence to publish Bills, the income tax powers, the disposition of properties by testaments, the criminal law, administrative law, and natural justice.
Tort law reform is TV law. It�s law originating from the parliaments as a result of �spin�, or the PR campaigns to influence community and legislator opinion. The resulting paper statutes have meant that ordinary people who get hurt get less money than they did before, and usually you can�t sue the insurance company or Government department. These legislative efforts enshrine a new virtue, �personal responsibility�, which has been invented in this 9/11 legislative frenzy as a standard for other people.
In the case before Judge Judy, the landowner plaintiff was entitled to sue for the cost of the bed property, even though she failed. With tort law reform, such as in New South Wales, and many American States, the black tenant would not have been entitled to sue for her bruises. That�s how personal responsibility works. Black and white.
That personal responsibility has precedent over the common law is patently the parliamentary philosophy, in both Australia and the USA. This new legislative jurisprudence reflects, especially in the United States, the influence of New Christian Natural Law theory, particularly as espoused by the Princeton University McClintock Professor of Jurisprudence, Dr Robert P. George, a distinguished academic and leading American Roman Catholic jurist and author, and Bush appointee.
American First World War Democrat President Woodrow Wilson, in the 1890s, held the professorial chair occupied this past decade by Professor George, who is as well the Ivy League varsity�s Director of the James Madison Program in American Ideals and Institutions. The James Madison referred to is one of the Founding Fathers of the United States, a signor of the Constitution and the Bill of Rights, and a co-founder of the Republican Party, as well as fourth President, serving between 1809 and 1817, another graduate of Princeton, when it was known as the College of New Jersey.
Two centuries later, the political jurisprudence of Princeton is firing the zeal of Washington�s lobbies.
According to the Internet�s Wikipedia, �[Professor] George was a principal author of one of the proposed constitutional amendments that would ban same-sex marriage . . .� Professor George condemns abortion vigorously. He decries homosexuality. He is the US President�s legal philosopher. Like President Bush, and many other Americans, Professor George accepts that it is the God of the Bible which guides the United States. He is a member of Opus Dei.
Professor George has a lengthy anthology. He still adheres to his 1998 paper, God's Reasons: The role of religious authority in debates on public policy in which he included this: �In short, many religious people - most informed Catholics and many Protestants and observant Jews - understand reason not only as a truth-attaining power, but as a power by and through which God directs us as individuals and communities in the way of just and upright living. In his formal account of natural law as a participation in what he called the �eternal law�, Aquinas says that although God directs brute animals to their proper ends by instinct, God directs man - made in God's image and likeness and thus possessing reason and freedom - to his proper ends by practical reason through which men grasp the intelligible point of certain possible actions for the sake of ends - goods, values, purposes - which, qua intelligible, provide reasons for choice and action: see St Thomas Aquinas, Summa Theol
ogiae, I-II, q 91, a 2.�
St Thomas Aquinas lived between 1225 and 1274 in Italy. He is the Roman Catholic Church�s fundamental and foremost legal philosopher.
According to St Thomas: �Consequently the first principle of practical reason is one founded on the notion of good, viz. that �good is that which all things seek after�. Hence this is the first precept of law, that �good is to be done and pursued, and evil is to be avoided�. All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man's good - or evil - belongs to the precepts of the natural law as something to be done or avoided�: Summa Theologiae, I-II, q 94, a 2.�
Two months after September 11, 2001, Professor George was calling for Americans to go to war, against anyone. For Crisis, an American Roman Catholic forum, the pre-eminent Catholic constitutional lawyer wrote: �In current circumstances, however, the United States and its allies have exhausted every means short of war to deter and disable the forces of international terrorism. The murderous attacks on the World Trade Center and the Pentagon are powerful evidence that nothing short of war will be sufficient to protect innocent Americans and others from future terrorism.�
Professor George entitled this contribution, Responding Justly to Terrorism. It ended: �Although not all of Bush�s policies are fully in line with Catholic moral and social teaching, he has in his campaign and in the conduct of his office listened respectfully to Catholic voices and sought to learn from the wisdom of Catholic teaching. Indeed, some of his key initiatives seem to be shaped quite directly by principles of Catholic social thought. It is hard to think of a president who has been more interested in what the Church has to say. I hope that in shouldering the profound burden of sending men abroad to kill and die, the president will draw heavily on what the Catholic tradition teaches about principles of justice in warfare. My prayer for him, for our country, and for all who will be affected by his decision is that he will observe these principles strictly. He could do no better for all of us than to do that.�
Professor George profits from private billionaire and Protestant and Roman Catholic pro-life foundation grants, which fund his researches and publications in jurisprudence. Last year, Professor George, and a clutch of his Princeton graduate students, received substantial cash benefice as well as the Lynde and Harry Bradley Foundation Prize. President Bush appointed the professor to his Council on Bioethics.
Stipends, along with author royalties, accrete to Professor George a private legal practice of the rarest feather, that is, of giving the US Government�s actions moral and legal defense, relying on an unwritten spiritual law, under process of discovery from within and without the documents, the uses of the Ancients.
Professor George enjoys high standing among international Roman Catholics. His lengthy anthology appears on Catholic web sites, including the Ratzinger Fan Club. Former German nationalist youth member, Cardinal Ratzinger is now Pope Benedict XVI.
According to the Bush Administration�s Bioethics Council�s notes, Professor George enjoys yet another appointment, as he �
This firm of 50 attorneys is headquartered at Charleston, West Virginia, about two hours� drive from the White House and its congressional Rotunda. Robinson and McElwhee clients include AIG, American Electric Power, AT&T, Aventis CropScience, Cabot Corp, Charleston Newspapers, Chicago Title, Citicorp, FMC, Kaiser Aluminum & Chemical, K-Mart, Peabody Energy, USX, and Wal-Mart. The President�s confessor commands prestige.
For the Bush family interests, the view of the Constitution postulated by Professor George offers the prospect of an elevation of the power and immunities of the US executive, compared to the other two branches of the tri-partite American government model, the judiciary in the Supreme Court, and the legislature in Congress.
In his unfolding theses, this professor of thought of law gives Roman Catholic sanctity to the hitherto secular American historical mileposts: Lincoln at Gettysburg, the signings of the Bill of Rights, Constitution and the Declaration of Independence, as well as the Mayflower Puritans landing at Virginia in 1620. From wintry old New England, Professor George finds persuasive natural law spring over the Atlantic and several centuries, direct to sunny Italy, to find in the 13th-century fundamentalist St Thomas Aquinas the reflection of the Founding Father, Thomas Jefferson, particularly in his �self-evident� truths.
According to Professor George, �Thomas Jefferson appeals to the law of nature and nature's God in justifying the American Revolution. Most modern commentators agree that the Founders were firm believers in natural law and sought to craft a constitution that would conform to its requirements, as they understood them, and embody its basic principles for the design of a just political order.�
This was in a 2001 talk Natural Law, The Constitution, and Judicial Review published by the Family Research Council, a powerful Washington lobby. Professor George referred to the opinions of another earlier McCormick Professor of Jurisprudence at Princeton, Edward S. Corwin, who in a 1949 speech to international and constitutional law luminaries at Notre Dame University had opined a natural law basis for regarding the US Constitution as more than mere temporary paper statute. This was in the context of preparing the written constitutions of modern Japan and Germany.
Professor Corwin�s constitutional law viewpoint needed to account for the extant jurisprudence of the British positivist John Austin. According to Corwin, just as the uncoded British common law has Divine elements in its misty antiquity and progress, so does the US Constitution, notwithstanding its original limitations.
Half a century later, the current McClintock Professor George is emergent mentor of the jurisprudence of the wannabe American empire. To advance the American nationalist position beyond Professor Corwin�s deference to the English common law, Professor George employs Austin�s positivist measures to steal from the English judges the prestige of the precedents of their Letters Patent. The king�s judges are mere parliamentarians, according to Professor George, of counsel.
�Central to Corwin's account is the idea that the English common law emerged historically as a sort of positive embodiment of the natural law, that is, as a body of law which is the fruit of juristic reason and enjoys its status as law precisely as such. It differs from statutory law inasmuch as its legal status does not derive, as does, say, an act of Parliament, from the sheer will of a lawmaking authority.�
Readers of Professor George�s legal opinions on the Family Research Council web site can also enjoy on another page, a picture of Council members enjoying Oval Office entertainment in the company of the President. There is a link to �Commentary: Judicial Outrage Story # 1,000,000,001�.
Professor George: �From the philosophical viewpoint, however, Corwin's distinction is highly questionable. Common law judges were lawmaking authorities. They, no less than legislators, faced choices between options as to what rules to lay down; like legislators, their stipulations conferred upon the rules they selected the status of binding law. In developing the law of contract, tort, crime, and so forth, they made decisions based in significant measure on judgments as to how the common good of their communities would best be served.�
First Things is a magazine published out of offices on Fifth Ave, New York, by The Institute on Religion and Public Life, which says of itself, �
One such, first published in April 2001, is entitled �What Is Law: A Century of Arguments�. The professor argues the usual suspects: Aristotle, Aquinas, Austin, Bentham, Hart, Hobbes, God. His concluding paragraph predicts the future of American law.
�To stress law�s objectivity and relative autonomy from morality is by no means to deny the Thomistic proposition that just positive law is derived from the natural law. For Thomas himself did not suppose that positive law was anything other than a cultural artifact, a human creation, albeit a creation of great moral worth brought into being largely for moral purposes. Nor did he suppose that a single form or regime of law was uniquely correct for all times and places. His stress on determinationes by which human lawmakers give effect to the requirements of natural law in the shape of positive law for the common good of his community - enjoying, to a considerable extent, the creative freedom Aquinas analogized to that of the architect - reveals his awareness of the legitimate variability of human laws. Whomever Holmes may have had in mind in criticizing those text writers who saw law as a set of deductions from a few axioms of reason, the charge does not apply to Aquinas. In
this, as in so many other respects, the Angelic Doctor was a man of the 20th century and - if I may engage in a bit of prediction and prophecy myself - of the 21st and beyond.�
The Down Under equivalent of Professor George as forthright Roman Catholic natural law theorist is the Melbourne sportsman turned Sydney Roman Catholic Metropolitan Archbishop, George Cardinal Pell, who was naturally or coincidentally in nearby Virginia when Prime Minister John Howard sat down to eat at the Bush White House last month. Cardinal Pell was 80km distant, in Front Royal, Virginia, speaking to graduates of Christendom College.
In a Sydney Sunday Telegraph column on 21 May 2006, Cardinal Pell, or his clerk, wrote: �Political Washington, ruled by the Cheneys and Rumsfelds, is a distant world, and while the billionaires, film stars and ghettos dominate headlines, the secret of America's strength lies in the suburbs and these towns.
�I went for a haircut to Buddy the Catholic barber, a convert in an old shop with a picture of John Wayne on the wall. He explained that �we� the Southerners lost the Civil War and that Southerners were treated nearly as badly as Roman Catholics by the northern secular press. Two of the factors which nourish America's greatness are in evidence in Front Royal: their religious fervour and their commitment to education.�
To the young American graduates of Christendom, nestling in the green bosom of Constitutional America, Cardinal Pell had two messages: one, that Christendom had �nearly� 1,700 years of �positive achievement�, and two, that following 9/11, Christianity had a �new challenge� from Islam. The text of the talk is found at the College website.
Australian readers already know Cardinal Pell brings political clout. St Marys Cathedral, the Sydney Archdiocese�s lovingly hewn ancient sandstone jewel, attracts special grants and exemptions from the Sydney New South Wales Labor Government of Robert Carr and now Morris Iemma, and the Canberra Liberal-National Government of John Howard.
Shortly before the 2004 Australian national Parliament election, former Roman Catholic seminarian and Howard Government Health Minister Tony Abbott met privately at St Marys with Cardinal Pell. The Government afterwards announced a multi-million dollar grant for a new Catholic University in central Sydney, on the grounds of an old Benedictine parish to be renamed Notre Dame, not a kilometre from the world renowned, 150-year old Sydney University. The Cardinal issued a diocesan exhortation to vote for Howard.
Like Professor George, in Washington, in Sydney and abroad, Cardinal Pell adheres to the natural law. Last year, at the Canberra Roman Catholic parish of St Thomas More at suburban Campbell, the Cardinal cited as �more useful today� 19th century papal edicts which condemned any �conscience which rejected God and natural law�.
The Cardinal advocates reforming Australia�s political institutions. Like Professor George, he blames independent judges for many ills, particularly abortion in the United States.
In a 2004 Cambridge University lecture, Cardinal Pell articulated a natural law view, �Conscience: the aboriginal Vicar of Christ�.
According to the Cardinal, �Conscience is not a long-sighted selfishness, nor a desire to be consistent with oneself; but it is a messenger from Him, who, both in nature and in grace, speaks to us behind a veil, and teaches and rules us by His representatives. Conscience is the aboriginal Vicar of Christ, a prophet in its informations, a monarch in its peremptoriness, a priest in its blessings and anathemas, and even though the eternal priesthood throughout the Church should cease to be, in it the sacerdotal principle would remain and would have a sway.�
And, �For these reasons no individual moral decision of conscience, nor, any general conscientious moral teaching, has the primacy ie, is the ultimate judgement or decision. All actions and decisions are judged by conformity to the truth, or even to the Word of God.
�Truth and truth specified as the word of God have primacy. It is interesting that when St Thomas deals with these matters, in his disputed question on truth, it is to a part of our minds called synderesis that he grants infallible knowledge of the human good. Conscientia or conscience is the act of applying that knowledge and this is fallible.�
The word conscience attracts attention among the ordinate of Sydney�s legal professionals, particularly those white wigged and black robed, of counsel, in the equity division of the Supreme Court of New South Wales. The Court overshadows the City�s Queen�s Square, opposite the convict church of St James and around the corner of the Land Titles Office, to the flying buttresses and millennial spires of St Marys.
Conscience is elementary to any equity cause. The conscience known to Sydney equity lawyers was ancient before England�s 15th century Lord Chief Justice Fortescue. It draws to sources predating Aquinas by more than one thousand years of learned records.
This is the fundamental difference between the jurisprudence of the island of Australia and the USA. Australia, particularly New South Wales, has available a reliable secular juristic inheritance of the power of the conscience of the king as agent of God, the Divine Right. The jurisdiction routinely secures the property of the weak from unrighteous predators, with unremarkable but reasoned, always recorded, regularity. While conscience vitalizes equity, it is available as well in the ecclesiastical jurisdiction of the Supreme Court of NSW.
At the sesquicentenary of the University of Sydney Law School last year, the Chief Justice of New South Wales, the Hon James J Spigelman AC, said this: �Blackstone's Commentaries were the first lectures on the common law ever delivered at Oxford, where he became the first teacher of the common law. For centuries the education of common lawyers was conducted by a medieval apprenticeship system in attorneys� firms or, in the case of barristers, by the Inns of Court, then often referred to as the Third University.� Blackstone wrote his treatise in the second half of the 1760s.
Chief Justice Spigelman is author of papers about the crisis between Westminster and Rome ordained by the unfortunate death in 1170 at Canterbury Cathedral of the Lord Chancellor St Thomas Beckett, in the reign of king Henry II, the first Plantagenet.
�Oxford and Cambridge taught only civil, canon and Roman law until Blackstone. It is not as if that was unrelated to private practice. The jurisdiction of the ecclesiastical courts was more significant and wide-ranging than common lawyers care to remember,� NSW�s leading juristic officer said.
That jurisdiction and source of power is not available to the United States Supreme Court because of the plain words and circumstances of its founding documents, which expressly reject the incidents of the powers of the office of the king vested by the divine right.
It is this vacuum of sanctity in the United States, above the established forms of equity and the common law, which inspires the flickering candle of the natural law jurisprudence of Professor George, and Cardinal Pell. Their hurdles are formidable. The prize is enormous. That is, to win the right, in the name of Rome and the Republic, to wield with apparent authority the Grace to forgive any presidential lapse. That is not an end in itself. The surrounding jurisprudential miasma in prospect resembles an ecumenical reconciliation between the Pope and his lost but faithful tribes of the Great American Plains.
Another hurdle is that Thomistic Catholicism cannot accommodate five sixths of the world�s immediate population, let alone include all the souls of the faithful, and faithless, departed. Apart from gun laws, another reason Canada is peaceful and the United States is violent is that Canadian judges have a respectable, worked, secular jurisdiction of small mercies, whereas their American counterparts are authorized only to the shrewdness of Solomon.
Before physics� quantum model of elementary particulate, the Dominican St Thomas Aquinas accepted the pre-Galilean geocentric spheres of Ptolemy�s cosmos. He was on the Julian, that is, Caesar�s calendar. Blacks, and whites, and yellows, and browns and pinks were slaves, then, too. The Aquinas Summa was published at the dawn of the Roman Catholic Inquisitions. CSI types of the Inquisition employed other protocols of proof. The Inquisitors were judges appointed by the Pope directly. Significantly, holy orders were an excuse from ordinary inquisition process.
Most different was the trial outcome. Inquisition process presumed guilt. The accused, by the fact of accusation, became obscure to conscience. The only question was expurgation of the shadow. In the United States, this fashion of alternative dispute resolution was engaged most famously in the 17th century witch trials in Shalom, Massachusetts.
The Senator McCarthy-led Congressional inquiries into Communism of the late 1940s and early 1950s exemplify natural law trial process.
Whereas an equity suit might effect forgiveness and remove temptation by relieving the property subject of unconscionable action, natural law simply excludes the offending soul. Professor George and Cardinal Pell want natural law to be the legislated law as well as the constitutional law of both Australia and the United States. Both advocate constitutional change.
Natural law is black and white law. Nonethless, if you read the Summa, you will see natural law serves the eternal law. Aquinas recognized there was something more reflective of the Grace of God than a measured pound of frankincense. He simply wasn�t aware of the Chancery Division.
While Professor George�s Angelic Saint whispered with Aristotle over the vellum at the Vatican, at the outstretched limb of Christendom in misty England, with remnant Druids darkening the western Marches to Wales, king Henry III was finding peripatetic inspiration in the English Roman Catholic king St Edward The Confessor, who died in early 1066, six months before the arrival of William I, and who was canonized a century later. King Edward had strong Saxon and Norman ties. His saintliness inspired the later Plantagenet king to romantic piety, as well as argument over the jurisprudence of the Magna Carta of 1215. These turns of the Conscience vested by right in the king, clarified and recorded by his Lord Chancellor, were available to elucidate a foundation statute, as well as the elder law of Canute borne by the inheritance of St Edward. Because of the various acts of inheritance, this source of jurisdiction of grace is available in Sydney, New South Wales, but not Washington
The Chancery experience has attracted criticism. Dickens for instance, in the first chapter of Bleak House (1853), wrote this of the Chancery Division: �Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds this day in the sight of heaven and earth. On such an afternoon, if ever, the Lord High Chancellor ought to be sitting here - as here he is - with a foggy glory round his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate with great whiskers, a little voice, and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog.�
Most international legal science commentators would think first of the Westminster Judicature Acts of the 1870s as a likely interruption to the inheritance in NSW of the Plantagenet chancery jurisdiction. But the jurisdiction came to the antipodes a century before, under the point of the banner staff planted at Sydney�s seaside Kurnell, under command of the king�s commissioned Lieutenant James Cook, RN, on 28 April, 1770, in a mode of solemn enactment recognised by both the Eora people and the traditional of Britain. It was a peaceful day. There was no contract. The Judicature Acts could find no backpacker accommodation at Bondi.
The first paper constitution of New South Wales were Letters Patent of the Crown under Sign Manual in 1787. An endless stream of statutes from Westminster, and in recent decades, from the NSW Parliament in Sydney, has altered and reshaped the State�s nominal Constitution into an unrecognisable document, bar its name.
Independent of the Parliament, the New South Wales Supreme Court maintained the divisional distinction between equity and the common law until 1972 in process, and subsequently in substance, with considerable internationally recognised expertise. In 2006, the equity division of the Sydney Court has commenced its first electronically managed case, where judicial directions of his Honour Justice Ian Gzell QC and parties� submissions are transmitted by email: Hill & Anor v W & F Lechner Pty Ltd  NSWSC 440. Electronic law joins paper, ribbon or rock.
Judicial grace is not the American experience. Note the author�s footnote in Bleak House, where Charles Dickens notes a lord justice remarking, something like: �I didn�t know what to think about this case when it came up 20 years ago, and I am firmly of the same view now.�
Mark Twain�s contemporary relation is: �Lincoln belonged just where he was put.� That was Twain in 1907, not to Abraham Lincoln�s demise, but in praise of the Kentucky birthright of the saviour of the Union.
And that is the common law tradition of American justice, bound to a tragically flawed Constitution by statute and usage, but lacking the eternal jurisprudence to forgive itself.
Natural law lacks the eternity America craves in its strident nationalism. Saluting flags over the slain under sunlit tears does not make a consecrated living body out of any lot of equal voters. That is why common law Judge Judy may only say: �Nothing lasts forever�.
Hypothetically, her Honour Lady Justice Judith Scheindler, KC, of the United Kingdoms of America � a rotational republican monarchy, like Malaysia�s - might have taken the tilt further. Armed with the perogatives, she might have had the jurisprudential tradition to have admonished the blonde plaintiff to the historical shamefulness of the basis of her cause, the notion of property in the outcome of the intimate moments of another of God�s creations.
To foggily recollect somebody or Lord Chancellor Eldon�s admonition: Whoever says there are two sides to every story hasn�t heard the third witness.
By Anthony P. Monaghan*, a retired Sydney barrister, and clerk.
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