The Search For The Good Nazi

I have been watching my way for the umpteenth time through the magisterial World at War (as an aside this reminds me that such compelling yet educational television just would not get made these days) and I am most intrigued by the contributions of that seismic fraud Albert Speer - a high-ranking Nazi who escaped from the Nuremberg trials with his life. It was the enigma of Speer that was brought to mind by recent cinematic encounters with interpretations of two other prominent National Socialists.

The Desert Fox is carried by James Mason's charismatic portrayal of Erwin Rommel, presented to us as an honourable and brilliant military man who came to see that Hitler was leading Germany over a cliff. When one considers that the film was made in the shadow of the War (1951) this is a balanced and generous work. 70/100. 

Nuremberg (2025) has an expert turn from Russell Crowe as the charming but malignant narcissist Hermann Goring. This is top grade acting. Rami Malek's efforts as the psychiatrist who endeavours to know Goring have attracted contrasting reviews (The Guardian is particularly hard on him) but I think he keeps just on the right side of manic. Juristically speaking the Nuremberg trials pose interesting questions for any sentient lawyer, particularly one like me who has always opposed judicial killing in the domestic setting. I still don't know where I stand on war crimes trials and I am grateful that I am not compelled to articulate one way or the other. Another worthy film. 70/100. Watch out as well for a fine subsidiary performance from Leo Woodall.    

The First Thing We Do, Let's Kill all The Lawyers

The above line in Henry VI Part II always gets a laugh, even from the affluent lawyers who make up an inevitable portion of the audience at performances of Shakespeare's lesser plays. Quite right too.

Q: Why don't man-eating sharks attack lawyers?

A: It's a matter of professional courtesy.

Q: What do you have if you have a lawyer buried up to his neck in sand?

A: Not enough sand.

Q: What do you call one hundred dead lawyers?

A: A start.  

I've heard them all before and am quite happy to join in the laughter. The lot of the lawyer is often a lucrative one (not always and not to the unworthy extent of some other professions) and, done properly it is a job that can be spiritually rewarding - yes, I do mean that. Good lawyering is important labour.

But something has happened to cast us all in an unfavourable light and that is the advancement onto the world stage of J.D.Vance, Vice President of the United States. Vance is an odious bigot and a massively educated (Yale Law School no less) lawyer. This, I'm afraid, casts a shade over all of us and we must call it out. So here is a variation on yet another of those lawyer jokes.

Q: What is the difference between lab rats and J.D. Vance?

A: You can get attached to lab rats.

 

Advent 16

Volume 16 (Mushr to Ozon): Names (in Linguistics)

Linguistics, the scientific study of language and its structure. This has been an overlooked element in my sprawling education. Yes there were bits and pieces in my primary education (more, I suspect, than is currently fashionable) and studying Latin at secondary school certainly helped (funny how we've come back to the classics for a third consecutive day!) but there was little of it an English degree. It does impinge upon the study and practice of law because meaning is at the heart of good drafting - and believe me, good drafting is a disappearing art. One of the great challenges with the advent of AI is going to be seeing whether it promotes clarity or rehashes obfuscation. If legal AI programs could take as their first source the delivered opinions of the very great Lord Denning (the greatest jurist of the last century) then we might just be in for a new age of enlightenment. As an undergraduate I used to eschew library time and instead wander down the Strand to sit at the back of the Master of the Rolls court to watch this titan in action. I have a signed first edition of his The Discipline of Law. 

Names. The intriguing and diverting article in my Britannica suggests ten categories of name in what it concedes is a 'rough classification': 1. Personal names (who is the real David Roberts?); 2. Quasi-personal names; 3. Names for things not definitely personified; 4. Place names; 5. Names of tribes; 6. Names of institutions and corporations; 7. Titles (The Overgraduate); 8. Brand names; 9. Names of events in history; 10. Names of abstractions not personified.

I could have hours of fun with this! But you don't want to know about my personal predilections.

  

 

Advent 5

Volume 5 (Castir to Cole): Causality or Causation.

This one carries reverberations for anyone who has ever studied and practised Law. It also has important contexts in philosophy and science but let's stick to something I know a bit about - I can already hear the snorts of derision emanating from my litigation colleagues who would (not entirely baselessly) question what precisely any commercial lawyer might know about any aspect of the law, never mind something as delicate as causation. Nonetheless I will plough on.

I dimly recall those lectures on the Law of Tort delivered by the brilliant Tony Guest in those over-heated subterranean lecture rooms at King's. It is the greatest compliment to the estimable Professor Guest that I actually managed to stay awake for his lectures, hung-over and sleep-deprived as I too often was. My first degree was not the cerebral high-point of my time in education.

Anyway, causation. This is how I recall it: in terms of liability for a negligent act, the plaintiff has to establish a causal link between the negligent act and the damage alleged. That is to say that the damage would not have occurred but for the act. Once you have got over that hurdle we get onto the question of damages and that is tied-up in the knot of foreseeability, blah blah.

For me the importance of causation is best illustrated by examples where there is no causation but one is somehow implied by the lazy application of post hoc ergo propter hoc reasoning. And if you want a brilliant explanation of that phenomenon then you can do no better than refer to series 1, episode 2 of the matchless West Wing. Or if you want real-life examples just tune-in to any political show and listen to the shysters of all political hue. The standard of public debate is disgraceful, but then I've told you that before.

Crazy Golf

I love my golf. You knew that already. I love to see it played well. You knew that already. I despise any lack of courtesy in this most mannered of sports. You knew that already. All of which preamble leads me to the vexing subject of LIV Golf, the new incarnation of professional golf that has arrived at our televisual door (you have to go to YouTube to watch it) drenched in immoral Saudi dollars. I've been doing a lot of thinking about this. I spend a lot of time pondering these things when I might be better served thinking of something else. You knew that already. 

So what are we to make of this new bastard child of professional sport? Well, the amounts of money involved are eye-watering so it will have some effect. On balance I liken it to that other bastard child, Twenty20 cricket. Pop will eat itself. You knew that already.

So we have the pathetic spectacle of assorted greedy golfers being paraded before the world's press (at their most sanctimonious - the press that is) to justify their presence at a confected tournament that has next to nothing to do with rewarding sporting merit. It's all rather sad. I don't deny they are entitled to take the filthy lucre that is on offer but some of the attempts to separate themselves from the proper queasiness at the Saudi backing are nothing short of pathetic. Phil Mickelson has always struck me as a nice if rather simple soul. I have had to modify that view - he's plain thick. As for Graeme McDowell (not so thick, much lesser golfer) sitting there in his sponsored hat (hasn't anybody told them it's rude for a chap to wear his hat indoors?) and spouting the party line that 'the Khashoggi business' is 'reprehensible', well, yes Graeme dear, the strangling and dismembering of a journalist is a tad on the naughty side. Just admit that you're there for the mega bung of cash and stay off the politics. And while you're at it admit that the desecration of the seventy-two hole strokeplay format as the supreme measure of a golfer is asinine - 'LIV' - fifty-four in Roman numerals. Geddit?

And while on the subject of golfer's hats (which I was a few sentences ago) have you noticed that poor old Mickelson has lost his KPMG sponsorship. Since KPMG and the others in the Big Four symbolise all that is wrong with the professional services market these days, I'm rather surprised that they wanted out of association with somebody getting grossly overpaid. Don't get me wrong, there are loads of talented people in these firms but they are not ubiquitous. Do I sound bitter? Honestly I'm not - I'm just disillusioned. And before anyone asks the obvious question - yes I do feel the same way about the big law firms. When parasites become bigger than their hosts something has to give. Pop will eat itself.

Just to finish with a petty but true observation - I never much cared for Greg Norman. This LIV business seems to give some weight to my unreasoned prejudice.       

Regulation 6

I have been doing something that is open to anyone with an internet connection - I have read the Coronavirus Regulations that have, in the context of Dominic Cummings, got the commentariat and various legislators so exercised. If more of the fuckwit journos and politicos had bothered to do this then we might be enjoying (probably the wrong verb but sod it I'm on a roll) a rather better debate about that drive to Durham that the Boy Cummings saw fit to take. The only issue on which we have clarity is that there are a lot of people in our political and journalistic elite who utterly detest Cummings. Plain and simple they loathe the man, blame him for Brexit and Boris' mini-landslide. By the way we haven't heard the end of Brexit just yet - there are still people (take the sanctimonious windbag Ed Davey) getting themselves in trim for one last attempt to confound the will of the people. We can safely leave that for another day.

Anyway back to those Regulations. Here are the relevant facts and pertinent questions - trust me, I'm a lawyer:

• The Regulation states baldly, 'During the emergency period, no person may leave the place where they are living without reasonable excuse.'
• The Regulation then has thirteen sub-clauses which list examples of what will constitute a reasonable excuse.
• Those thirteen sub-clauses are not intended as an exhaustive list - there can clearly be other unspecified examples of reasonable behaviour. It is into this unspecified category that Cummings asserts his behaviours fit. That assertion is his right. It is the right of anyone else caught up in this wretched pandemic (so that means all of us) to attempt to exploit what lazy journalese calls this 'loophole'.
• So the two proper questions it seems to me are these: (i) was that initial 260 mile jaunt to Durham reasonable in the context of Cumming's precise situation vis-a-vis childcare? (ii) (and this I think is the more difficult one for Cummings) was that shorter excursion to Barnard Castle also reasonable in all the circumstances?

That's it - simple. If you think that these questions merit the public expense of judicial determination then you differ from me. That is your right. As to the crap about public opinion well, I'm sorry, that's irrelevant garbage as is the call for some sort of government enquiry - what a waste of resource. As to whether Cummings should resign (or be sacked) because he has breached some invisible 'spirit' (more lazy journalese) of the law, well that is a purely political question which we can safely leave to the political class as they roll around the whole bloody mess of them in the gutter.

One final biblical thought - those who live by the sword, die by the sword.    

Quebec.7

Been back for a couple of weeks now and there has been time for some sober reflection. Considered opinion: Quebec is ace; Canada is ace.

Montreal would not be on my shortlist for best city in the world (its west coast cousin, Vancouver, would be) but that doesn't mean it's not nice - plus you can even get a decent pint of bitter, another international sign of the rise of the craft breweries. But once we proceeded out of the city the scenery and the wildlife (principally those whales) took over and, put simply, soothed this savage beast. All of which natural bounty can mask an important fact, namely that Canada is an intensely civilised nation. I picked up a free copy of the Globe and Mail (still a broadsheet) at the airport on the way home and two items summed this civility up for me. First consider this sane and impartial editorial on the topic of their then imminent election (Trudeau and his hair have since narrowly prevailed):

It wouldn't be much of an election if the leaders confessed the truth - that it won't in fact be the end of the world, and that Canada won't stop going forward and you won't stop getting ahead, just because another party wins the election ... Keep calm, give thanks for the country we have and don't let the cynics get to you. The election matters. Your vote matters. And the country we share won't end if your side doesn't win.

This speaks of the solid moderation that marks Canada. I have just been watching our parliament debating whether or not there is to be a general election and the quality of the debate tells us that here the cynics already rule. And what is more whereas a national paper in Canada can eulogise that blessed moderation, we live in a far more dangerous place where there is the real prospect of a ruinous government. I really do despair.

And on page B 14 of the same paper there is a moving death notice paid for by the friends of David Stewart Fushtey:

A true renaissance man, Dave was a landscape architect, sculptor and multi-talented lawyer. He loved music, art and beauty. Law was everything Dave believed in - discipline, justice and consideration of others without compromising his values.

I would like to have met Dave.

 

That Rule Of Law Thing I Mentioned

I finished my last blog by saying that Peter Hain should know better. I am delighted to find my view echoed by several legal notables. Philip Green gives every impression of being a rough-edged, chippy gobshite but he stands equal before the law with the rest of us. Peter Hain gives every impression of being a smooth, chippy gobshite who enjoys privileges before the law because he is a peer of the realm. I do not begrudge peers their advantages - they are there for a reason. However when those privileges are exercised in a spirit of arrogance and self-righteousness we, the great unwashed, should shout our heads off. And please don't tell me that if the allegations against Green are later proven (I know where my money's going) that such an outcome will justify Hain's presumption - if you think that, I'm sorry, you've missed the point.

Big Fat Pig looking swell

Cheerier news - after an absence of a few weeks I've been out running this week and, a twinge in the knee aside, I feel quite good for a fifty-eight year old with a body ravaged by four decades of rugby. And today, shamed into it by the Groupie, I went to the gym and swam (drowning stylishly maybe) a dozen lengths. It's a start - I hadn't been in a pool for an age. Next year: a couple of triathlons. Watch this space!

Writers Write

Which, as those who have been with me from the outset of this journey will recall, is the First Law of Marchant, he being the man what schooled me in writing. I think you'll agree, he did a bang up job.

By turns this brings me to the crux of my dilemma (do dilemmas have cruxes? Is that the right plural? How did I get here? That last one a knowing crib from Talking Heads): of late I mostly feel just so low about the fate of Planet Big Fat Pig that I can't be arsed to write. This is silly (that's an understatement) because all is golden domestic-wise - the Groupie is still with me (she must be bonkers I know) and Daughter Number One and Daughter Number Two are both thriving, a credit to their parents in fact. No, it is the wider world that aggravates me. No, not just bloody Trump (doesn't help though); no not bloody Brexit (doesn't help though); No it is the sheer asininity (one of the Pig's favourite words - mind you, if you've been with me on the journey this far, you'll know that) of what passes for adult discussion these days. Just listen to serious radio news and hear what I mean. We live in interesting times but debate takes place behind a screen of mediated PC bollocks. Brexit is, I suppose, the biggest and best example - a major constitutional moment being mishandled by a failed political class whilst the unlovable and the condescending (work out for yourselves which is which) are pitched at each other in the deepest circle of Hell by a flippant commentariat. Too serious to be funny.

I'm avoiding the Trump business most of the time but he still makes me sick - how's that for a telling response to asininity! In that connection however my eye was taken by this:

[He] has been honest, but he has been vulgar; and there is no greater external misfortune ... than for a great nation to be exclusively represented at a crisis far beyond previous, and perhaps beyond future, example by a person whose words are mean even when his actions are important.

You may have guessed that this is our old mate Walter Bagehot. He was writing about another Republican President - one Abraham Lincoln, no less. You have to wonder what the Boy Bagehot would have made of the ghastly Mr Trump. Walter, by the way, had the decency (and one has to admit, unusually for him, the modesty) to recast his views on Lincoln as the full scale of Lincoln's political genius unfolded. I'm not even remotely persuaded that I will have similar cause to repent of my opinion of Trump.

On the subject (which I sort of have been) of the unspeakable in pursuit of the uneatable (another favourite BFP aphorism) Baron Hain (Pete to his mates) has used the cloak of parliamentary privilege to out Philip Green as the beneficiary of a super-injunction preventing his being named as an alleged serial racial and sexual discriminator. I could bore you on the rule of law on this one but, you know what, I can't be arsed. Green should know better - and so should Hain.

The Trouble With Being A Faux Intellectual

The trouble is that your eyes glaze over when you read complex texts and, in the spirit of the blogger, you reach for salient aphorisms and skip-read the whole, this latter reading quite often out of sequence as you dance around in searching said aphorisms. A little learning can go a long way. That, at least, has been my sad experience. But what the Hell, let's go for it anyway. Nobody's looking.

Sir Thomas Smith

Sir Thomas Smith was Secretary of State to King Edward VI, sometime cleric, sometime parliamentarian, sometime Cambridge Professor of Civil Law, and author in English (this is important because the language of most varsity scholarship was still Latin) of De Republica Anglorum, published in 1583, six years after his death. The subtitle to the tract (which I will render into modern spelling) tells us what to expect: 'The manner of government or policy of the realm of England'. It's good stuff. Did Shakespeare read it? Interesting.

In much the same way as my boy Walter Bagehot (you must have guessed that he was going to crop up) Smith is an erudite hedger of bets - but that's ok with me, I lean that way myself. In fact the older I get, the less I am plagued by certainty. De Republica Anglorum posits three types of commonwealth: monarchy; aristocracy; democracy. Within each of those categories lie the possibilites of either just or unjust manifestations. Thus there are six possible types of constitution. However (and here Smith is removed from the absolute designations of a theorist such as Bodin) Smith accepts that though any constitution will have a dominant inflection, it will usually have strains of the less dominant. So what did he make of his England? As I say, he hedges his bets but we can perhaps come down on the side of a monarchy infected by democracy - what later theorists might deem a constitutional (rather than an absolute) monarchy.

It is tempting to make a leap from Smith to the Boy Bagehot but we are warned off such presumption by William Maitland, Smith's Victorian editor: 'One fact, however, stands out clearly. The "constitution" does not for Smith consist of the same elements as for Walter Bagehot or his imitators ... For Smith the framework of a commonwealth consists almost entirely of its courts, its judicial system, and its methods of police.' So is that my sloppy contention (that Smith stands at the front of a queue that leads to Bagehot) blown out of the water? Not quite I think, and that is because, just as Smith (a good lawyer) was fixated on the place of the courts in exercising sovereign power, so Bagehot (a failed lawyer - he was called to the Bar but never practised) was fixated on everything but the courts. Both however had an eye for the mutability of sovereign power not possessed by more rigid commentators. And both can help us with another possessor of that discerning eye - the Boy Shakespeare. Which is the point I am making. Badly. 

Today Not So Grumpy

I had a dig at Sharron Davies yesterday for her over-familiar style of swimming poolside reportage. I stand by that but the Overgraduate is nothing if not fair-minded. So I dutifully report that Ms Davies gave a balanced and sane interview to The World Tonight on Radio 4 last night on the topic of drug abuse in sport. Good stuff.

I was listening to the radio on my way back from yet another exercise in Bardology. This time it was the Lord Chamberlain's Men performing Much Ado About Nothing at a Shrewsbury Castle. Another good production and worth tracking down as they tour the country to various outdoor venues - website at Lord Chamberlain's Men

If you're forever bemoaning the intellectual maw into which we have descended, try this article for size - Hate Crime . And if you've never read any Kafka, well try that as well and then you can call the befuddled world the article describes as Kafkaesque. This is the land we live in, a land revered for its legal system. Go figure.

Ooh sorry, getting grumpy again.

One For Us Lawyers To Bear In Mind

Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers. Luke 11:46

So that's me told then.

I Wish I'd Said That

I have been searching around in an effort to master giving voice to the unease I feel as an officer of the Supreme Court about EU institutions. As is usually the case I find that someone esle has got there before me and done it rather better to boot.

The European Court of Justice uses its doctrines to expand EU law into 'ever wider fields' to coerce our courts into disregarding the laws of our democratically elected parliament. No other trading bloc in the world coerces its members in this way, or imposes a system of law which penetrates into national courts and overrules national laws. Our new relationship with the EU can end that and work towards true cooperation. We can now return to the well-trusted principles of the common law as interpreted by our own courts, applying statute laws made by people we elect.  Martin Howe QC

58 Days To Shape Up

It was back on the mountain bike today - in the tipping rain which made the obligatory Oakleys a little silly but I've got 'em so I wear 'em. Besides it is a scientific fact that they make you go faster. I ended with thighs screaming at me and sunglasses specked with road dirt. If all goes well I am aiming to run for the first time in almost three weeks tomorrow morning. Watch this space.

What else? Well I have been doing a lot of thinking about my future and therefore immersing myself in the labyrinth that is the professional regulation of solicitors. All I want is to be able to do a little bit of work for selected commercial clients. Such small ambition seems to be frowned upon. Again, watch this space.

Busy, Busy, Busy

Oh darling, we were simply wonderful. From the stamina-sapping self-indulgence of Cheltenham to the, well,  stamina-sapping self-indulgence of amateur dramatics. The Boy Roberts gave the world his Rafe Crompton last week. Four performances of variable quality with a prelude of a truly awful dress rehearsal on the Monday. The play was Bill Naughton's Spring and Port Wine - if you do come across a production of it I suggest you give it a chance because this is a seriously good little play. My best line (I was by way of a change a stern patriarch) - "I'll thank you not to dip your nib where there's no ink."

Friday night was the by now traditional cast and crew curry at Shaban - I'm a sucker for their Butter Chicken. Shaban

Quite the most extraordinary culmination to the Six Nations - bucket loads of tries and excitement. Let's just get it clear that England did not lose the championship last Saturday but rather the previous week when they butchered so many scoring chances against Scotland. Such profligacy is unprofessional I'm afraid. Full credit however to the well-honed skills of the triumphant Irish.

Here's something you haven't heard in these pages before - whatever happened to the quality of parliamentary draftsmanship? If you are at a loose end and want to check out how the art has ben lost please consider the  Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2015. I did this afternoon and I'm telling you they're shocking. But it all makes work for the working man to do.

…Are Brilliant Mark XVII

A televisual bias today.

Smiley's People currently enjoying a re-run on that BBC4. Alec Guinness as Smiley gets it spot on.

We have a new hero - again courtesy of BBC4 - Neil Brand whose terrific Sound of Song is two episodes in and still available on iPlayer. I can neither play nor much less read music but Brand makes it sing (see what I did there?).

Good legal drafting - and all modesty aside I did some today.

Red wine.

Majestic Wine. Loads of choice, bags of knowledge and free samples.

The Good Lawyer

The first thing we do, let's kill all the lawyers.

The Bard always has a phrase when you need one and this familiar trope is from Henry VI Part II. And you know what, he had bloody point. I was spoiled in my first legal incarnation by the quality of the people for whom I acted and the temperament of the lawyers who first employed me and later took me into partnership. But now I feel myself being worn down to that sorry state where the answer is always no and any commerce is an unjustifiable risk. This I hate, so if you encounter me and find me obstructive, please accept my apologies. I never meant to be this way but they have made me. Tomorrow I vow to do better.

Advent 13

Of the various heroes recounted in this calendar I have met only three. Of those, we have already encountered Alan Murrall and the third will be related in a couple of days. Today however we have a man I spoke to only briefly and that to get him to sign a copy of his book, The Discipline of Law. He used a fountain pen and in a flowing hand inscribed it, 'To David Roberts, Denning M.R.'

An advantage of being a law student in London and in particular at King's is one's proximity to the Royal Courts of Justice. Nobody would have called me an assiduous student but I did pass time between lectures and before the bar opened watching Alfred Thompson Denning (Lord Denning, Master of the Rolls) administering justice in his matchless style. More than anything else one had the feeling of watching a great and accessible intellect at work. Here is Denning describing his method,

I refer sometimes to previous authorities - I have to do so - because I know that people are prone not to accept my views unless they have support from the books. But never at much length. Only a sentence or two. I avoid all reference to pleadings and orders - unless something turns on them. They are mere lawyer's stuff. They are unintelligible to anyone else. I finish with an epilogue - again as the chorus does in Shakespeare. In it I gather the threads together and give the result. I never say 'I regret having to come to this conclusion but I have no option'. There is always a way round - in my philosophy - by which justice can be done.

Denning lived for a century and I have read it said that in his dotage he betrayed some unsatisfactory opinions. That is sad but it is by his professional body of work that we should judge him and that, to my mind, makes him the greatest jurist of the twentieth century.

Ched Evans And The Nature Of Rape

Ched Evans was a professional footballer. Ched Evans was convicted of rape. Ched Evans served the sentence of imprisonment imposed upon him. On his release Ched Evans was invited to train once again with his former employer, Sheffield United FC, with a view, one presumes to his re-employment. Cue howls of outrage and an eventual withdrawal of the offer.

Consider these questions:

• Is rape a singularly heinous crime? 
• Should the punishment for the crime extend beyond the adjudged imprisonment?
• What is the difference from the multiple instances of professional football rehabilitating dangerous drink drivers or other species of criminals?   

The answers to these questions are uneasy but it would be nice to think that all of the outraged howlers had engaged with them before howling.

The Discipline Of Law

Beware the late night blogger nursing both a glass of wine and a grievance. Step away from the invective.

Trust me I'm a lawyer - a phrase that constitutes a not meritless joke. But joking aside - trust me I'm a lawyer, and something is bugging me about the way I am these days asked or counselled to practise my trade. You see the thing is this - any half-educated pillock can be the sort of lawyer who can only ever tell you the reasons why you shouldn't do something. The better educated pillock (for there is no ground rule that precludes any stamp of lawyer from being a pillock) will tell you not only why you can do something but also tell you the efficient and lawful way of doing it. Good lawyers are enablers not road blocks. My hero Lord Denning put it well in Packer v Packer in 1954,

What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both.