The whacko right-to-lifers have emerged blinking from their burrows to badger Victorian politicians in favour of a Bill to “decriminalise” abortion.
And pat to the happy moment comes that rarity, a monument of research and compelling narrative: The Racket: How Abortion Became Legal in Australia (MUP September 2008), by Mr Gideon Haigh (pic).
The Racket amply demonstrates what any half-way sane person knows: ending a pregnancy can be the lesser of two evils.
For example, “Milly”, 14. That simple soul went to Whitehall one evening in April 1938 to see a parade of Horse Guards and accepted an invitation to see “a horse with a green tail” in the stables.
Thugs in fancy dress raped her for hours.
“Milly” became pregnant. Dr Aleck Bourne, the Bert Wainer of his day, had wanted to test the law on abortion since 1935. He ended the pregnancy and was charged by the Met.
The case came before Sir Malcolm Macnaghten (1869-1955, King’s Bench 1928-47), not to be confused with Daniel M’Naghten (1813-65, pic), a real or feigned lunatic and incompetent assassin.
M’Naghten intended to murder the Prime Minister, Sir Robert Repeal, but instead clipped his secretary, Edward Drummond, outside 10 Downing Street.
Sir Malcolm told the jurors that abortion was lawful if it saved the mother from becoming a “physical and mental wreck”. They acquitted Bourne in 40 minutes.
What may be termed the Macnaghten rule on abortion happily joined the M’Naghten rule on insanity.
At common law, termination had thus been lawful in certain circumstances since 1938, but certain interested parties found it useful to pretend it was always unlawful.
They included right to lifers; extorting detectives like Don Fergusson, Ray Kelly and Fred Krahe, of Sydney; and Jack Matthews, of Melbourne; and lornorder politicians like Matthews’ sodden and sinister pal, Sir Arthur Rylah.
The pretence collapsed when Justice Clifford Inch Menhennitt (1912-79), encouraged by the astute Commo barrister, Jack Lazarus, regurgitated Macnaghten in R v (Dr Ken) Davidson (Victorian Supreme Court, 1969).
The so-called Menhennitt Benchmark was replicated in the Levine (pic) rule (NSW, 1971), and the McGuire rule (Queensland, 1986).
Now that the Victorian parliament is debating whether to make terminations lawful by statute as well as at common law, it might be noted that it is a breach of parliamentary privilege to try to deter members from discharging their duties to their constituents.
Bullying right to lifers – one politician was sent parts of dead animals – thus risk being done for contempt of parliament.
French without tears
Here’s something I found in the lining of an ancient Panama hat I bought at a Sotheby’s auction.
I suspect it was extrapolated from the Hon Russell Fox’s groundbreaking work, Justice in the 21st Century (Routledge-Cavendish, 2000). It says:
- Justice means fairness.
- Fairness to everyone concerned, including the community, can come only from a search for the truth, i.e. reality.
- The search for reality thus gives a legal system its moral face.
- The common law does not have a moral face because lawyers in the 13th century decided that truth does not matter.
When academics got into the law caper a couple of centuries ago, they thus had three choices, none of them good:
1. They could simply ignore the questions of truth and morality and hope their students did not notice that the system is bereft of both.
2. They could blandly say the system does search for the truth, and hope their students did not mulishly point out that that cannot be true.
3. Or they could say morality doesn’t matter either. That desperate line was taken in the 19th century by London University’s John Austin and Harvard’s Christopher Columbus Langdell, and in the 20th century by the famous Oxford cuckold, Herbert Lionel Augustus Hart, pic (see Justinian May 13, 2008).
I mention all this because Michael (Cardinal) Pelly has extracted an interesting admission from Bobby French, our new and distinguished CH (Chief Humpty).
The Cardinal reported (The Oz, Sept. 5):
“Even after he finished his [law] degree, he was unsure of his professional path. Law hadn’t inspired him, save the subject of jurisprudence for ‘the intersection of law and morality’.”
That raised a number of questions I assume His Eminence was much too polite to ask:
- Is Bobby for or against morality in the system?
- If for, does he understand that morality derives from a search for truth?
- If so, how does he propose to introduce truth to the system before his term ends in 2017?
I also see from Butterworths Concise Australian Legal Dictionary (1997) that jurisprudence, is defined as:
“The theory of law; the study of the principles of law and legal systems and their fundamental philosophical basis.”
That raises a fourth question for Bobby: if the common law’s fundamental philosophical basis if not to maximise the profits of practitioners, what is it?
An actually fair trial
French CH and Billy Gummow, Kenny Hayne, Dyce Heydon, and the two Susies, Crennan and Kiefel HH have as good as found in Cesan v Her Majesty; Mas Rivadavia v Her Majesty (Sept. 3) that accused people cannot get a fair trial if the beak has a kip.
This is an important ruling. Now that they have set themselves up as authorities on what is NOT a fair trial, we can expect them to take an early opportunity to rule on what IS a fair trial.
Hint: the second bullet in French without tears, above.
The 95 percent corrupt party
No, not Bob Askin’s or Joh Bjelke-Petersen’s.
Environment lawyer Robert F. Kennedy Jnr, nephew of Jack Kennedy, said in January 2005:
“The Republicans are 95 percent corrupt and the Democrats are [only] 75 percent corrupt.” (See, Justinian, October 4, 2005.)
People in the 95 percent party rightly believe that Chicago bosses Sam Giancana (the Mob), and Jake Arvey (the Democrat machine) stole the 1960 election from them and awarded it to Jack Kennedy. (Justinian, Nov 13, 2006.)
They also believe that the theft gave them the right to steal every subsequent election. Bob Parry usefully lists some of their techniques in Consortium News of August 29.
1968. Republicans, fearing that President Johnson would get Hubert Humphrey over the line by ending the Vietnam War, persuaded Vietnam President Nguyen van Thieu that he would get a better peace deal from Dick Nixon. Thieu stalled peace talks. Johnson and Humphrey were aware of Nixon’s treachery, but said nothing.
Nixon kept US troops in the war until August 1972, thus causing the deaths of another 20,763 US soldiers, and the wounding of another 111,230.
1972. This time Nixon’s Secretary of State, H. Kissinger (pic), who doted on his Kraut accent almost as much as he loved his reputation as a “swinger”, secretly negotiated with North Vietnam to end the war. When the agreement was revealed, Republicans portrayed it as a Communist ploy to embarrass Nixon.
1980. Republican partisans in the Central Intelligence Agency persuaded Iran’s Ayatollah Khomeini not to release 52 US hostages before the elections.
President Jimmy Carter was aware of the CIA treachery but said nothing. Ronnie Reagan, a third-rate actor, and George H.W. Bush, a former CIA boss, were elected.
1988. The Democrat candidate, Michael Dukakis, was Governor of Massachusetts, which had a policy of allowing prisoners an occasional furlough.
A black murderer, William Horton, raped a woman while on leave from prison. Republicans played the race and lornorder cards to get G.H.W. Bush elected.
1992. Republicans portrayed Democrat nominee Bill Clinton, who had visited Czechoslovakia and the Soviet Union as a student, as disloyal at best and a Russian spy at worst.
The smear backfired on G.H.W. Bush when it emerged in October that Clinton’s passport files had been improperly searched.
2000. Republican judge Warren Burger (1907-95, CH 1969-86) said: “We are the Supreme Court and we can do what we want.”
In 2000, five Republican judges, W. Rehnquist CH, A Scalia (pic), C. Thomas, S. O’Connor, and A. Kennedy HH, took Burger’s advice. They manipulated the Florida vote to steal the presidency from Albert Gore and award it to George Bush Jnr.
The judges thus replicated the Giancana/Arvey theft.
2004. Bush Jnr was the 43rd and worst president, but Bob Parry notes:
“In Campaign 2004 … the right-wing news media [had] a multitude of print, radio, TV and electronic outlets that could twist reality into almost any shape desired.”
Those media outlets ignored the fact that Bush had cunningly avoided being drafted to Vietnam, but gave space to false Republican claims that the Democrat nominee, John Kerry, was less of a war hero than he was.
However, Osama bin Laden, who revered Bush as the best al-Qaeda recruiting officer, decided the election. His last-minute denunciation of Bush was portrayed as bin Laden’s endorsement of Kerry. That gave Bush a surge of 3 percent in the polls, and he won by 2.5 percent.
2008. The world is agog to see how the 95 percent party can steal an unwinnable election.
They can hardly expect the bin Laden stunt to work again, but their elderly candidate, John McCain, has kept that possibility open by threatening to keep US troops in Iraq for a century.