Oh no. The Rolls Royce of legal systems

Jarndyce lives ... Judges admit sophistry is a snack - yet the consequences are expensive ... Illicit carnal congress that has lasted for 844 years ... NSW coppers want right to silence modified ... What official inquiries need are the services of competent reporters ... Evan Whitton at large

Paterson: dividing Gilhooley's estateA reader has kindly dawn my attention to words by the man on the 10 dollar bill, A. B. Paterson (1864-1941).

The Banjo was a poet, war correspondent, and my illustrious predecessor at Truth.

He was also a lawyer, and so knew all about the ramp that has made lawyers rich, and legatees poor, for three and a half centuries. A few bars from Gilhooley's Estate:

But his Honour the Judge said, 'I think that the joint
Legatees must be called to pro-bate;
Ex parte Pokehorney is clear on the point,
The point of Gilhooley's Estate.

'I order a suit to be brought just to try
If this is correct that I state --
A nice friendly suit, and the costs, by and by,
Must be borne by Gilhooley's Estate' ...

From the Barristers' Court there's a mighty hurrah
Arises both early and late:
It's only the whoop of the Junior Bar
Dividing Gilhooley's Estate.

Nothing changes. My distinguished colleague, Tulkinghorn, fount of all legal knowledge, advises that Prof. Prue Vines, of the University of NSW, told Radio National's Law Report on February 12, 2008:

"It's been traditional for a very long time for people to ... assume that unless they're doing something very, very bad, that the estate would pay the costs of the litigation.

But recently, particularly in the New South Wales court, there's been concern among the judges that there's ... quite a lot of litigation which actually is completely wiping out the value of the estate in the legal costs."

Judicial sophistry begets anomie

The Sophists were not called morally bankrupt charlatans (MBC) for nothing: they taught lawyers how to lie.

The mighty Tulk recently (November 11) noted that Spigelman CJ (NSW) said (Garran Oration, October 22):

"It is all too easy to dress up a conclusion, reached on other grounds, by selecting from the smorgasbord of maxims and principles of interpretation those which assist the achievement of the predetermined result."

The implication is that judges can also find sophistry a snack.

Scalia: Of course judges distorted the ConstitutionA judge on the US Supreme Court, Antonin Scalia, now 74, told an audience at the University of Central Missouri on March 4, 2008:

"I don't mean to suggest that in the bad old days judges never distorted the Constitution. Of course they did. You're going to have wilful judges with you until the end of time. But in the good old days they had to distort the Constitution the good old fashioned honest way. They lied about it."

Sophistry has consequences, and not only about the Constitution.

In 2000, Scalia himself was one of five judges who contrived to wrongly appoint George Bush President.

According to economist Joe Stiglitz, the $3 trillion that Bush blew on an unlawful invasion of Iraq was a hidden cause of the global recession.

Piddling by comparison was the result of a ruling by Sir G. B**wick MBC that a profit is a loss. It cost Australian taxpayers not much more than $5 billion at today's rates.

The point: if citizens cannot know whether any given ruling is fair dinkum or the product of sophistry, they will suffer from anomie and alienation.  

The solution: start training judges as judges separately from lawyers.

The genius of the common law

Sir Fred Pollock (3rd Baronet, 1845-1937) was Professor of Jurisprudence at Oxford 1883-1903.

He got a KC at the mature age of 75, perhaps as a late reward for his series of lectures, The Genius of the Common Law (1912). The first was titled Our Lady and Her Knights. Fred said:

"We are here to do homage to our lady the Common Law; we are her men of life and limb and earthly worship."

He decently did not say that down the centuries some Knights have crept into the boudoir and had their swinish way with their Lady.

Or that the real genius of the common law is that, as of today, they have got away with illicit carnal congress for 844 years.

Criminals' right to get off

The Sydney Telegraph's Joe Hildebrand reported on December 2 that the NSW Police Association is campaigning to modify the right of silence.

The privilege gets off about 25 percent of the guilty. As Justice Ken Marks pointed out 26 years ago, it is based on a lie by Blackstone MBC, the first law academic.

The cops apparently seek to allow prosecutors and judges to tell jurors that if a suspect/accused had an explanation, he would have given it.

Cameron Murphy, president of the NSW Council for Civil Liberties, told Mr Hildebrand that being pressured to answer questions that might incriminate them would result in countless innocent people going to jail.

Really? Cambridge law professor Glanville Williams said in The Proof of Guilt: A Study of the English Criminal Trial (Stevens, 1963):

"Immunity from being questioned is a rule which by its nature can protect the guilty only. It is not a rule that may operate to acquit some guilty for fear of convicting some innocent."

Bloody Sunday (2)

Five ways to improve commissions of inquiry were noted in the issue of October 22.

A sixth can be added.

For an inquiry into a single event, you could do worse than appoint a competent reporter. It would probably be more accurate and would certainly be quicker and cheaper.

Sayle: beer, fish & chipsLord Saville and teams of lawyers recently took 10 years to find that British soldiers shot unarmed civilians in the back on Bloody Sunday, 1971.

Depending on who you believe, the cost was either £192 million or £400 million.

In 1971, Murray Sayle, the great Australian reporter who died last October, took four days to learn and confirm the same thing.

His inquiry cost perhaps £200: fares to Northern Ireland, a room in a seedy hotel, and a lot of beer and fish and chips.

Torch that metaphor!

Murray Sayle said there are really only two newspaper stories:

ARROW POINTS TO DEFECTIVE PART

WE NAME THE GUILTY MEN

Several arrows are required for the common law: truth does not matter; lawyers trained in sophistry are in charge of evidence, and thus can while away the days, months, years; untrained trial judges hide evidence from jurors.

Common lawyers are a tiny fraction - about 0.04 percent - of the people on the planet. Not surprisingly, nobody else believes that the defects can result in a system of justice.

Germans are among the 99.96 percent who believe that truth does matter. In their system, judges trained separately from lawyers control evidence; trials take a day or two.

The all-observing Tulk - we must stop meeting like this - noted (September 24) that an ace on the German system, Annette Marfording, has reported that senior Australian judges, including Tony Mason, Murray Gleeson, Jim Spigelman, and Ronnie Sackville have, "expressed ... resistance to the possibility of learning from the German system".

Mason, now 85, probably wheeled out a tired and quite inaccurate metaphor to resist learning from the German system. I actually heard him say:

"The common law is the Rolls Royce of legal systems."

If so, Tony spoke truer than he knew.

On November 4, an explosion in a Rolls Royce engine - arrow points to defective part - went within a centimetre of torching 459 petrified Qantas passengers.