Letter: On Certainty (2014)

Dear Senator Humphries, Good Health

I enjoyed our dinner at the End of Law Year dinner at the University of Canberra.

Thank you for your response to my speech. As requested, here is a copy.

Vale

Precis:  Hysteria can subvert the ordinary institutions of the state.  A robust legal architecture, based on the principles of human rights, may act as a bulwark against such challenges.

Friday 13th – introduction/heresy

·         It is Friday the 13th – a day we commonly associate with misfortune and terrible happenings.

·         Thanks for inviting me here.  I take comfort in the fact that, at least with respect to me, you are the authors of your own misfortune.

·         Well is Friday the 13th just a silly superstition or has something wicked this way really come?

·         Let’s put it to the test. 

·         Day is about to dawn on the east coast of the United States.  On the basis of past experience, we can confidently predict that today the US economy will take a $900m hit as people, for no good common sense reason, avoid stepping on cracks, buying shares, cars and other consumables, or flying by plane. 

·         So perhaps there does not need to be an objective evil lurking nearby –the propensity within us all for hysteria is just as dangerous – even for a gentle hysteria like “Friday 13th”.

·         Are particular races or countries, peculiarly susceptible to hysteria?  Take France.  Seven hundred years ago – 13 October 1307 - was not a good day for the Knights Templar.  They were all arrested on charges of heresy, tortured into making confessions and those that survived were then executed.

·         But is it just particular countries?  “Heresy” went on to become the preferred charge brought against witches in the great religious persecutions throughout the Christian world and which only ended in 1750. 

·         So – can we blame organised religion? 

·         Today it has become trendy to blame the Christian Right for the witch trials and the campaign against the  Knights Templar.  

·         Certainly, some in the Christian Right have reacted very defensively to such claims.  Apologists have argued that only 40-50,000 women were killed during the witch trials, not the 5 million claimed.  

·         Others in the Christian Right have reasserted their absolute belief that witches exist and have helpfully republished King James “Daemonology”, which concludes:

“They ought to be put to death according to the Law of God, the civill and imperial law, and municipall law of all Christian nations.”

·         The assumption of guilt by the religious right, whether in sorrow or with a little more enthusiasm is suspect. 

·         Allocating blame is not an easy matter of accusing present day religious movements, races or some other objective evil - because the fact is that the witch-trials were conducted by secular authorities.

·         Like the Knights Templar, witches were tried and executed under legal processes established and run by the State (albeit in an atmosphere of community hysteria). 

The Salem Witch Trials

·         The most famous of these trials was prosecuted some 300 years after the Knights Templar in the community of Salem.

·         Salem is on the coast in Massachusetts an hour’s drive north of Boston, a couple of hours north of New York. 

·         The trials that took place there in the 1690’s – the Salem Witch Trials - are an intriguing and important part of our legal history.  Most of us have a passing knowledge of these events through Arthur Miller’s play “The Crucible”.

·         The trials have left us an amazing record of a community suddenly struck with a catastrophe of almost unimagined cruelty as the community turned on itself.

·         From June to September of 1692, 24 men and women died in jail or were convicted of witchcraft and hanged. Hundreds of others faced accusations of witchcraft in Salem, until the horror faded.

·        The secular authorities were well prepared…

·         Thomas Newton had come to Massachusetts from England just 4 years earlier. He was one of the first legally trained lawyers in Massachusetts.  He was appointed by the state as the King’s Attorney to prosecute the witches.  Half way through the trials his place was taken by Anthony Checkley, the first person designated as “Attorney General” in early colonial Massachusetts.  Unlike Newton, Checkley was a merchant with no formal legal training. Indeed, he was accused of being “not only ignorant of the laws of England, but...himself an illegal trader.” 

·         Despite their very different backgrounds, both prosecutors were able to secure convictions, and executions.  Undoubtedly, their job was made easier because the state had set up a special court, and which applied its own rules of evidence.

·         Against the terror of a community in the grip of hysteria stood a few brave men.

·         Giles Corey was by all accounts a stubborn bloke.  A farmer, 80 years old – he was fascinated by what was going down.  On expressing criticism of the witchcraft proceedings, he was dragged into them – and was eventually pressed to death under heavy stones for refusing to submit to trial.

·         Giles Corey’s death was recorded.  As weights were piled on his body, Judge Stoughton could see his lips moving and thought the old man may have changed his mind and decided to plea. 

The jailer looked at Corey’s face for a moment. Then the jailer stood.

“Is he ready to enter a plea, constable?” Stoughton asked.

“No, milord,” the man answered.

“Then what was he saying?”

“He said ‘More weight’ milord,” 

·         Tomas Brattle was one of the most outspoken opponents of the witchcraft trials.  Like the farmer Giles Cory, Brattle had real doubts about the trials.  A contemporary of Isaac Newton and Edmund Halley, and at considerable risk to himself, he published a pamphlet denouncing the trials.  The October 1692 pamphlet concluded –

“If our officers and Courts have apprehended, imprisoned, condemned, and executed our guiltlesse neighbours, certainly our errour is great, and we shall rue it in the conclusion.”

·         Brattle’s pamphlet had a profound effect in the colony.  The governor forbade further imprisonments for witchcraft and eventually released those still imprisoned.

·         Time heals most things.   Judge Samuel Sewall and twelve of the jurors asked the community and the dead for forgiveness.  And today, two of the main protagonists, the prosecutor Newton and the objector Brattle, lie at peace in the King’s Chapel Burial Ground in Boston.  

The Salem legacy

·         But, for another 50 years, the Salem experience was repeated thoughout the Christian world as the state apprehended, imprisoned, condemned, and executed their “guiltlesse neighbours”. 

·         However, after Salem, the pace gradually slowed.  It slowed as people started to emerge from the craze, as the world learnt about Salem and the tens of thousands of communities similarly effected, and the bravery of so many – who like Giles Corey and Tomas Brattle stood their ground.  Increasingly, prominent leaders including a couple of influential Jesuits, stood forward and brought the craze to a complete stop.

·         Salem remains important - it occurred at a pivotal time in history, in a place destined to become an intellectual powerhouse.

·         Tomas Brattle was a part of the Harvard University establishment in Boston – an establishment they helped make the engine of Western intellectual thought – and one that has survived as such for three hundred years.  An establishment that gave us the great American judges of the early Twentieth Century – those who have helped craft the modern notion of a fair trial.  Judges such as Oliver Wendell Holmes the American jurist who adopted a common sense approach to the law – who rejected the prevailing property-rights ideology embraced by the law, and who deferred to the decisions of democratically-elected legislatures.

·         The Salem experience still deeply influences Western thinking as a result. 

·         Those people in Salem who were hanged, lost their lives under legislation which made heresy a capital offence.  But this legislation was made hurriedly after the alleged crimes were committed.  Retrospective criminal laws should not be tolerated and such legislation is abhorred under international and national instruments.

·         Much of the telling prosecution evidence at Salem itself relied on witchcraft or torture.  Spectral evidence – evidence that cannot be objectively tested – was outlawed in 1703 by the Massachusetts General Court.  Torture has been increasingly discredited as a forensic tool in international and national instruments.

·         From a juristic point of view, the abuses by the prosecution in the trial were to become an inspiration to prevent future abuses of process.  

·         Now, I don’t mean to belittle the great work of the French bohemians – and their goals of Truth, Liberty, Beauty and Love.  These are noble goals to which we should always aspire – if only unsuccessfully.  We should always try hard to see the innocent in everyone in general and some in particular.  But these goals are remarkably unhelpful in working out the detail – and it was the detail that allowed Cory to be crushed and Spectral evidence to be tendered.

·         And, in times of great stress, the temptation to backslide becomes irresistible.

·         When the wicked are all around us, the arguments for exceptional powers are never properly tested. 

·         We have seen this time and time again during periods of great community stress.  At one end of the continuum we have the MacCathy hysteria of the 1950s – hysteria that overran entire nations.  On a lesser scale, we have seen communities tear themselves apart over allegations of sexual abuse in pre schools or within cults.  It seems that it is part of the human condition that we are predestined to revisit the Salem hysteria. 

Legislative safeguards

·         How does society protect itself from the horrors of the collective hysteria that overruns us at these times?

·         In Western legal systems, we teach our children that parliaments make the law, that the executive arm of government administers the law and that the courts make decisions about legal disputes that arise under the law.  This doctrine, is often described as the separation of powers – as each of the three aspects of a state is supposed to operate independently of the other. 

·         While there may be legitimate room for disagreement about the application of the doctrine in any given case, it is enduring feature of political life.

·         To work – these aspects must exist in a state of continuing tension – mistrust compromise, composure or agreement.  For the independence of the three arms of government is our first and most important check against the development of unfair, corrupt or oppressive states.  

·         We have a problem in this country.

·         When we look at the formal body of rules that constitute the law, separation of function has not really existed. 

·         For example, Parliaments have been largely uninvolved in rule making in the civil law.  Instead the courts have developed the formal rules at both a substantive and procedural level.  Recently, there has been parliamentary intervention in the general civil law.  This change has been treated as unwelcome by many.  In particular, practitioners portray legal systems based on the English common law as stable systems of law, which deliver consistent outcomes while retaining the flexibility to adjust to meet emerging situations.  Based on decisional law, practitioners often believe that statutory intervention should play a secondary role, limited to checking unexpected effects of decisional law.  Statutory intervention is often characterised as ill-timed, partisan or expensive.  While sometimes based on self-interest, these arguments are not devoid of merit. 

·         Recent intervention by parliaments has been premised on a need to check unrestrained costs that have limited insurance options and which seem to have been outside the capability of the courts to address.  While there is a legitimate debate about the cost-effectiveness or social desirability of any particular legislative intervention, having now intervened, it is unlikely that the legislatures will simply quit the field. 

·         Those of you who have heard me lecture on this issue previously know of my real distaste for the conventional Commonwealth and NSW approach to law making.  

·         On self government in the Australian Capital Territory, as a legacy of the manner in which NSW makes legislation and the Commonwealth maintains it, ACT law was a confused mess.  In 1980:

·         Before self government, 4 laws dealt with witches.

·         A law limited the number of words on a grave stone to 96 characters.

·         Women could not run or own pool halls - widowers only excepted

·         Yet no effective laws on occupation health and safety.

·         In NSW and the Commonwealth legislators still face the same mess. 

·         Far too often, the legislator is faced with a confused statute book and too often retreats to a point where it is necessary to carve out a separate legislative shelter, often in the teeth of conflicting provisions and contrary practice.  

·         Instead of simply changing the light globe, too often a new room is added on to the sprawling edifice of the law.  And when this approach is commonplace, the doctrine of the separation of powers starts to crack.

·         Only in civilised jurisdictions, where the statute book has been tamed through dint of hard work, does the doctrine work.  

·         For example, US 1890’s restatement of the civil law led to the great movement in the US to consolidate laws.  Consolidated laws create coverage and depth in relation to the law.  American Realists demonstrated the futility of attempting to legislate in great detail.  Scandinavian Realists demonstrated how law could be structured.

·         Many have aspired to a unified statute book, which covers the law at an appropriate depth, but few have achieved it. 

·         It is sometimes said that the stunning success of mercantile Venice was due to the strength of its commercial statute book - given unity through codification early in the history of the republic.  

·         While English justice is often said to be encapsulated in Portia’s plea: “The quality of mercy is not strain’d, It droppeth as the gentle rain from heaven upon the place beneath. It is twice blest, It blesseth him that gives, and him that takes . . .”. The irony, of course, is that the plea could not have been made in an english court.  

·         It is telling that the bard had it put by a doctor of civil law in the course of commercial proceedings in Venice.   

·         Over the last few years a real effort has been made to tame the ACT  statute book - the efforts of the parliamentary counsel seem to have made our laws the envy of many other jurisdictions.  

·         The establishment of a unified statute book is an important milestone in the development of a state - and, to a degree, it is symptomatic of the different approach to governance we can adopt here.  

·         Again, a little like the republic, our state is characterised by cooperative structures with strong cross-agency connects.  

·         Unburdened by the need to maintain provincial control, the ACT is able to maintain strong central focus on issues.  

·         We seem almost able to defy gravity – we can move faster than other jurisdictions and that flexibility, within a robust legal framework, gives us an edge that may one day help us overcome the disadvantages of a small cold inland city planted well off the beaten track.  

·         We have had our share of set backs – but in the face of adversity we have never surrendered our principles – because across the centuries we can hear that whisper - “more weight”.

·         Today, it is possible to think of our statute book as a single entity, for which we all bear some responsibility, rather than a disparate collection of rules that can be subverted by special rules or exceptions.   It is possible to apply reason across the statute book – to apply the same criteria and tests. 

·         In this jurisdiction the wicked are dealt with in our criminal courts – not in special courts with special rules of evidence, like those in Salem so long ago.

·         Our statute book is based on and consistent with the basic human rights of individuals - a  framework less likely to break or be subverted in the face of hysteria.

·       Hysteria can subvert the ordinary institutions of the state.  A robust legal architecture, based on the principles of human rights, may act as a bulwark against such challenges.

Notes:

Gary John Joseph Humphries AO is a Deputy President of the Administrative Appeals Tribunal. At the time of this letter, he was a member of the Australian Senate representing the Australian Capital Territory (2003 to 2013). Formerly he served as Chief Minister and as Attorney General (and other portfolios) in the Australian Capital Territory.

This is one of a series of letters (2000-2020) that explores issues from slavery, law reform, deontic logic, plague and legal theory. Some were originally included in a legal text "Lessons" (2019) prepared for teaching legal theory to legal students. Others simply address or reflect on issues of the moment.

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