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Evan Whitton
13 May, 2008  
Book review: Why Sir I. Berlin cuckolded Prof H. Hart

How come Bonaparte and Innocent 111 are rated lower than Blackstone, Madison and Marshall in the ranking of those who most influenced the law? ... Three New York coppers win the trifecta and get off shooting charges … We’re now more than six years into the Afghan loser


The Legal 100 (Citadel, 1998) is US law professor Darien McWhirter’s “ranking of the individuals who have most influenced the law”.

We cannot expect academics to know much about legal history, and Prof McWhirter does not disappoint, e.g. the man who invented the West’s most important legal system, Innocent III, does not make the cut, and Bonaparte, who reinvented it, gets in at 36.

Nor does the good prof seem totally seized of the significance of some on his list. A few examples:

James Madison (1) believed the lies of the first academic, Blackstone (13), and made the Bill of Rights impenetrable enough to be a fete champetre for the judge-lawyer cartel.

imageAlexander Hamilton (2) invented the fatal flaw in US “democracy”, i.e. government by oligarchy. He also invented the notion that US business has a manifest destiny to rule the world, by hook or by crook.

Hamilton’s star pupil, Chief Justice John Marshall (3), gave the manifest destiny a leg up. He ruled that corruption is OK when it greases the wheels of business.

Prof McWhirter says novelist Erle Stanley Gardner (99) “did more than anyone else to educate the American public about law and the American legal system”. The education consisted of Gardner’s character, Perry Mason (seen here), endlessly propagating rubbish, i.e. all accused are innocent, and their innocence always emerges at trial.

He says of novelist and scriptwriter Sir John Mortimer QC (100):

imagebq. “His stories have served the all-important purpose of teaching the public that sometimes innocent people really are accused of crimes and that the police [unlike judges, trial lawyers and academics] do not always tell the truth”.

Sir John actually thought the system was pretty dreadful. In Where There’s a Will (Viking 2003), he noted “the gulf between the law and reality, the law and morality or, in many cases, the law and justice … or even common sense”.

Prof McWhirter bills Oxford Professor Herbert Lionel Augustus Hart (89) [pic] as “the most important legal philosopher of the 20th century” because he argued “throughout his career that law and morality should be separated”.

imageThat false argument was great news for any number of Oxford dons, including Sir Isaiah Berlin (pic). They apparently took the view that cuckolding a goose like Hart was:

(a) Fun.

(b) Almost obligatory: if law and morality should be separated, so should adultery and morality.

The Trifecta: unfair trial No. 1098765 …

Judges and trial lawyers know that 99 of every 100 accused are guilty.

After properly giving borderline cases the benefit of the doubt, fair trials would thus result in about 95 in every 100 being found guilty, as they are in France and Germany.

So here is another case study for the forum on the federal criminal justice system being laid on by the Home Affairs Minister, the Hon Bob Debus.

imageIn November 2006, three New York detectives suspected, wrongly, that three men in a car had a gun. They did not say: “Please step slowly out of the vehicle.”

Instead, they fired 46 bullets into the car. The fusillade killed one of the unarmed men, Sean Bell (pic), who was to have been married later that day.

The detectives were charged with crimes ranging from manslaughter to reckless endangerment. Wisely advised, they chose:

(1) To be tried by a judge alone. By itself, this gave them a 75 per cent chance of getting off.

(2) To keep their mouths shut. By itself, the right of silence, the product of one of Blackstone’s lies, gave them a 25 per cent chance of getting off.

imageAnd the unintelligible “beyond reasonable doubt” formula gave them, by itself, a 25 per cent chance of getting off.

That particular trifecta does not mean the cops were 125 per cent certain to get off, but it did give them a nicely unfair start on the late Mr Bell, his (in effect) widow, his family, the prosecution, and the public.

On Anzac Day 2008, Judge Arthur Cooperman, 74, (pic) found the detectives were not guilty of anything, not even reckless endangerment.

The Pole Doctrine, or Why are we in Afghanistan?

With the Ruddman bracing the nation for more deaths in the Afghan War, it must be time to ask the strategy question: What’s it all about? Or, as Field Marshal Foch (1851-1929) [pic] put it in his froggy way: De quoi s’agit-il?

imageIt is ultimately all about a brilliant plan to get cheap petrol by grabbing Iraq’s oil and using it to smash the petrol cartel.

We can start soon after December 13, 2000, when five Humpties installed Dick Cheney in an off-white house.

Cheney shortly became chairman of an energy policy group and, according to Neil Mackay (The [Glasgow] Sunday Herald, October 6, 2002) commissioned former Foreign Minister Jim Baker III to report on “energy security”.

Baker sought advice from experts including Enron’s Kenny Boy Lay, Shell’s Luis Giusti, BP’s John Manzoni, and ChevronTexaco’s David O’Reilly.

Baker’s report, Strategic Energy Policy Challenges for the 21st Century, advised Cheney to integrate energy and security to stop …

“manipulations of markets by any state … Unless the United States assumes a leadership role in the formation of new rules of the game, US firms, US consumers and the US government [will be] in a weaker position.”

In April 2001, the Cabinet nominally headed by George Walker Bush agreed that the risks were unacceptable and that “military intervention” in Iraq was necessary.

The war did not happen immediately because of Bush’s summer holidays and/or the lack of a colourable excuse.

Then, on Wednesday, September 11, 2001, that cunning monkey, Osama bin Laden (b. March 10, 1957), a Saudi resident of Afghanistan, tapped several hot US buttons: xenophobia*, manifest destiny, “This government wants Perdicaris alive or Raisuli dead”**, the merchants of death lobby, and the Israel lobby.

imageWould a measured response to 2,974 dead at the World Trade Centre include going to war? If so, a politician who cared about his soldiers and their families would carefully weigh a checklist for or against getting into another Vietnam.

The checklist was compiled by General Colon Pole (not to be confused with Anthony Pole (pic), who wrote A Dance to the Music of Time).

In Vietnam, Major (as he then was) Pole demonstrated his fitness for promotion by covering up the My Lai massacre. His list:

  • Is there a vital national security interest at stake?
  • Is there a clear and attainable goal?
  • Have non-violent efforts been exhausted?
  • Is there a viable exit strategy?
  • Do the American people support action?
  • Is there broad international support?

    You could probably tick two boxes for a war on Afghanistan and none for a war on Iraq, but the upshot was delirious for Mr bin Laden and the war/Israel lobbies: Bush declared a worldwide War on a High Order Abstraction, i.e. Terrorism.

    His first step in the global war was to accuse Afghanistan’s Taliban government of guilt by association with Mr bin Laden, and he and Jackie declared war on Sunday, October 7, 2001.

    The war was called Operation Enduring High Order Abstraction, i.e. Freedom.

    The next step, in March 2003, was to declare war on the well-known terrorist, Mr Saddam Hussein. This war was first called Operation Iraqi [Oil] Liberation and then Operation Iraqi [Oil] Freedom.

    Unfortunately, the brilliant plan did not quite work. The oil was not liberated in sufficient quantities; the cartel remains intact; petrol is dearer than ever.

    imageAs for Afghanistan, it seems no one told Jackie that no invader of Afghanistan had ever been able to subdue the locals, not even Alexander the Grape (356-323 BC) [pic], who doggedly gave it three years of his short life.

    So what should our gallant War Minister, the Hon Joel Fitzgibbon, 46, do now that we are six-and-a-half years into the Afghan loser?

    Perhaps he should stick the Pole Doctrine on his forehead so the Ruddman can read it every time they have a chat about the war, or any other little adventure around the Pacific rim.

    Meanwhile, they might bear in mind that the only thing the Central Intelligence Agency was ever any good at – apart from demolishing smallish governments who failed to grovel before the manifest destiny of US business – was drug-running.

    On form, the CIA chaps will be getting their share of the Afghan poppy business. But are they doing the decent thing and cutting us in to help with the Budget?

    *It means fear and hatred of foreigners. I looked it up in the Macquarie.

    **Try the Wiki