Tintin

My interest in Tintin centres on slash but I was interested to read 'A Human Rights Reading of Tintin' by Monash University academic Sarah Joseph.

She indicates that -

This paper analyses Herge's Tintin books in terms of the politics of the series, as a precursor to its human rights messages, in particular regarding racism, sexism and due process. Politically, Tintin swings from right to left. Despite heavy (and often justified) criticism of the series as racist, Herge's books are more nuanced, as they include conscious if clumsy anti-racist messages.

Ultimately, Tintin is a quintessentially European product of his time, and the books are in fact a unique chronicle of one half of the twentieth century, warts and all. Nevertheless, the warts (and even Herge's failure to recognise them) have not stopped the ongoing globalisation of the Tintin books' appeal many decades after their creator's death. ...

The books are essentially “adventures” in which our hero grapples with and finally defeats various “bad guys”. Yet the Tintin series is much more than that: it is a quintessential European cultural artifact of the twentieth century which has had a global impact. It is therefore instructive to examine the connections between Tintin and human rights issues.

Of course, a “human rights” assessment is not a litmus test on its own for an evaluation of the worth of the Tintin series, something which is very personal in any case. Hergé’s prime aim was after all to entertain children rather than promote (or denigrate) human rights. Nevertheless, as a prominent and popular cultural product, Tintin implicitly conveys human rights messages (for example, regarding the freedom, equality and dignity of human beings) to its (largely) young readers. In this article, I examine what those messages are and why they are as they are, as another piece in the enormous jigsaw of understanding how attitudes towards (or against) human rights have developed.

Advice to small female persons

Mark Twain's Advice To Small Girls -

Good little girls ought not to make mouths at their teachers for every trifling offense. This retaliation should only be resorted to under peculiarly aggravated circumstances.

If you have nothing but a rag-doll stuffed with sawdust, while one of your more fortunate little playmates has a costly China one, you should treat her with a show of kindness nevertheless. And you ought not to attempt to make a forcible swap with her unless your conscience would justify you in it, and you know you are able to do it.

You ought never to take your little brother's "chewing-gum" away from him by main force; it is better to rope him in with the promise of the first two dollars and a half you find floating down the river on a grindstone. In the artless simplicity natural to this time of life, he will regard it as a perfectly fair transaction. In all ages of the world this eminently plausible fiction has lured the obtuse infant to financial ruin and disaster.

If at any time you find it necessary to correct your brother, do not correct him with mud—never, on any account, throw mud at him, because it will spoil his clothes. It is better to scald him a little, for then you obtain desirable results. You secure his immediate attention to the lessons you are inculcating, and at the same time your hot water will have a tendency to move impurities from his person, and possibly the skin, in spots.

If your mother tells you to do a thing, it is wrong to reply that you won't. It is better and more becoming to intimate that you will do as she bids you, and then afterward act quietly in the matter according to the dictates of your best judgment.

You should ever bear in mind that it is to your kind parents that you are indebted for your food, and for the privilege of staying home from school when you let on that you are sick. Therefore you ought to respect their little prejudices, and humor their little whims, and put up with their little foibles until they get to crowding you too much.

Good little girls always show marked deference for the aged. You ought never to "sass" old people unless they "sass" you first.

Will the subaltern please shut up

From 'Theorizing Resistance in Spivak's Deconstructive-Marxist Postcolonial Criticism' [PDF] by Ding Zhaoguo in 2(1) Studies in Literature & Language (2011) 19-25 -

Resistance has been an important subject of debates in recent postcolonial studies. This paper discusses the problematic of resistance in Gayatri Spivak’s deconstructive-Marxist postcolonial writings by focusing on her critical concepts "the subaltern" and "strategic essentialism". It concludes that though her deconstructive-Marxist postcolonial criticism is suspicious of valorizing the constitutive effect of the colonial discourse on colonized subjectivities and debilitating their power of initiating resistance, Spivak's problematization of the colonized subjective agency in terms of imperial epistemic violence and its heterogeneity and the intellectual's positioning helps interrogate the notion of identity as independent and self-sufficient consciousness, thus exposing the danger of reproducing the imperial power structures and re-silencing the subaltern involved in the process of postcolonial textual re-writing.

If Bhabha continuously interrogates the nature of colonial discourse and relationship in terms of its ambivalence and hybridity, it is Gayatri Spivak’s works that persistently problematize the constitution of the colonized subjective agency from various angles. She endeavors to theorize the possibility of counter-knowledge of the subaltern, such as those constructed by colonizers or scholars of the Subaltern Studies group. In her frequently quoted essay 'Can the Subaltern Speak?' Spivak engages with the effect of the "epistemic violence" imposed by colonialist and imperialist discourses on the colonized native subjectivity and the complex issue of the denial of subjectivity to the native subaltern women in nationalist histories. She examines the pitfalls and aporias into which even the radical Subaltern Studies group may fall through a deconstructive problematization of the category of "the subaltern" and a further analysis of the subaltern women who are ignored even by the revisionist histories. Meaning as "a junior ranking officer in the British army" and "of inferior rank" (OED), the term subaltern is used by Gramsci to refer to those social groups subjected to the hegemony of the ruling classes in his 'Notes on Italian History' (1934-5). Gramsci uses this term to cover a great variety of people, including peasants, workers and other groups having no access to hegemonic power. Thus the history of the subaltern is necessarily fragmented and episodic because they are always subjected to the hegemony of the ruling classes even in their rebellion. It is obvious that the subaltern has less access to cultural capital and social institutions to produce their own representation. According to Gramsci, only a permanent revolution of class adjustment can break this pattern of subordination of the subaltern class (Prison Notebooks 52-54). This term was adopted in the Subaltern Studies collective “as a name for the general attribute of subordination in South Asian society whether this is expressed in terms of class, caste, age, gender and office or in any other way” (Guha vii). This group argues that, the problem with the historiography of Indian nationalism lies in the fact that it is dominated by both colonialist elitism and bourgeois-nationalist elitism. Therefore, it defines its goal as examining the subaltern "as an objective assessment of the role of the elite and as a critique of elitist interpretations of that role" (Guha vii).

Zhaogou goes on - nothing like sectaries smacking the teacher - to conclude that -

Compared with the conception of resistance strategy as principally based upon a relatively autonomous and coherent notion of ethnic or national identity in the early anti-colonial writings, Spivak’s problematization of the constitution of colonized subjective agency in terms of imperial epistemic violence and its heterogeneity and the intellectual’s subjective position of power and desire helps interrogate the notion of identity as independent and self-sufficient consciousness, exposing the danger of reproducing the imperial power structures and re-silencing the subaltern involved in the process of postcolonial textual re-writing. However, the implication of this theorization and problematization consequently overemphasize the constitutive effect of the colonial discourse on colonial subjects, going so far as to disable their agency to initiate and sustain anti-colonial resistance and fail to get out of the captivating concept of discourse and power to imagine alternatives for effective resistance.

That'll teach her, won't it!

Poverty of Theory

From Richard Webster's 1983 piece 'E.P. Thompson and the Althusserian locusts: an exercise in practical criticism' -

As the various committee meetings of socialism have wandered in their discussions from practice to theory, from the concrete questions posed by the nature and circumstances of ordinary men and women to the metaphysical discussion of abstractions, Thompson has not hesitated to rise from his seat and, holding aloft the agenda-paper which has been neglected, to seize the chair from whichever self-appointed convenor has assumed it and recall the meeting to order. In The Poverty of Theory he does so again. Because he does not hesitate to hammer upon the table, because he speaks with thunder in his voice, nearly all those present have shown at least signs of attending to him

There can be no surer indicator of the weight and significance of Thompson’s voice within English Marxism than the appearance in 1980 of a book length study of Thompson's ideas and influence written by Perry Anderson. It was Anderson who, in the early 1960s so impressed the founders of the British New Left with his seeming intellectual fertility, his energy and his decisiveness that they, having reached in Thompson's words 'a point of personal, financial and organisational exhaustion' handed over editorial control of the New Left Review to him. This was in 1963. In the next few years those who had joined forces, sometimes at great personal cost, to construct the house of the New Left, woke up from their dream to find themselves outside the home which had once been theirs looking in on a new young occupant whose pride in ownership was tempered only by his evident distaste for the unfashionable and vulgar manner in which the house had been furnished by its original occupants. It was not long before those who stood outside their old home saw the first fleet of intercontinental removal lorries roll in. Swiftly and with very little fuss the old furniture was trundled out. That battered well-used sofa with its William Morris cover went out with it, earmarked for the dust-heap. The old kitchen chairs which were hewn from oak and worked crudely so that a little humanity had stuck to their rough forms, were now considered unusable. The old pictures were taken down from the walls and most of the books were stripped from the shelves, packed into tea-chests and loaded, along with the furniture, into the waiting container lorries. No sooner was the old furniture loaded up than was the new furniture carried proudly down the ramps of the same lorries. New steel and glass tables and chairs designed on the Bauhaus principle but purchased for the most part in Paris, were efficiently installed within the house – whose walls had already been replastered and painted in that uniform white beloved of the bourgeoisie. Only when the cantilever chair of mathematical catastrophe theory had been finally placed in position opposite the sofa of Althusserian structuralism and beneath the spotlight of Lacanian theory focussed by Juliet Mitchell did the new occupants begin to feel more secure and a little more at home. Unpacking their Habitat kitchen they started to cook meals which contained little goodness and less meat but which were deemed all the better for that.

Some few of those original occupants of the house who continued now and then to peer into its windows were impressed by what they saw. Withdrawing to their own establishments in provincial and university cities they quietly ordered furniture from the same suppliers and had it delivered to their door by men wearing the white overalls of the same inter-continental removal firm. Others were dismayed and retired to a distance. One in particular, however – and this was Thompson – returned to berate the new occupants. Although the charges he laid against them were arrogantly rebutted he refused to fall into the silence of deference or complicity. He returned again until eventually, in The Poverty of Theory, he produced a polemic of such power that it threatened to break apart even the newest and most gleaming pieces of intricately machined furniture contained within the usurped house of the New Left.

Ulysses and Deleuze

From Ron Rosenbaum's put-down of Ulysses -

on the whole Ulysses is due for more than a little irreverence. People still speak of it in hushed tones, perhaps hoping nobody will ask them about the parts they skipped over.

So you do think Ulysses is overrated?

In general, yes. Loved Joyce's Portrait of the Artist, but didn't need it blown up to Death-Star size and overinfused with deadly portentousness. Ulysses is an overwrought, overwritten epic of gratingly obvious, self-congratulatory, show-off erudition that, with its overstuffed symbolism and leaden attempts at humor, is bearable only by terminal graduate students who demand we validate the time they've wasted reading it.

I do wonder what he'd say about 'Law, Space, Bodies: The Emergence of Spatial Justice' by Andreas Philippopoulos-Mihalopoulos in Deleuze and Law (Edinburgh: Edinburgh University Press, 2011) edited by L. de Sutter -

This is a text that brings together spatiality and legality in the work of Deleuze and Guattari, thus allowing for a renewed understanding of what is Spatial Law and Spatial Justice to enter the debate. Employing Deleuze and Deleuze and Guattari’s writings, I read diagrammatically a novel by Michel Tournier called Vendredi (Friday). The novel is a rewriting of Robinson meets Friday but through a spatial/legal lens. My reading enhances this perspective while extracting a few fundamental practices of law’s spatiality, namely its immanent, posthuman and material qualities. The island is part of the assemblage between the various bodies (human and otherwise) that move from logos to nomos, namely from a rational distribution to nomadic movement. While Robinson succumbs to Friday’s animalistic spatiality, the whole island bows to the emergence of what Deleuze has called "a second island." This is what I take to be the space of emergence of spatial justice, a concept immanent to the law yet only appearing at its very edge.

The author goes on to state that -

The second island is the body of Deleuzian jurisprudence. If the latter is that which “acts as the event or abstract machine of the legal assemblage”, then spatial justice is simply another name for Deleuzian jurisprudence. Deleuze’s engagement with the concept of jurisprudence was sporadic and incidental, and in many ways leaves an open space for concept construction. My aim therefore is to add to the existing subsequent literature on jurisprudence by emphasising two things that I believe emanate directly from Deleuzian thought: spatiality and immanence. Spatiality in spatial justice is as much a statement of something painfully obvious (can there ever be a justice that is not spatially emplaced? an abstract, universal justice that transcends the concrete?), as it is a political gesture that aims at moving law away from its traditional historicisation and into the open, fragmented, material space of geography, of earth and geophilosophy, of violent falls and dirty fingernails. My other aim is to emphasise the immanence of justice, namely its self-enclosed generation that is, however, necessarily based on a connection of withdrawal with the law. Spatial justice is immanent to law, flowing along the legal orientation towards justice, yet overcoded by the withdrawal of the law.

Spatial justice is jurisprudence that retains the law within, in withdrawal and perennial movement, like the empty square of the chessboard. As Deleuze writes, “there is no structure without the empty square, which makes everything function.” The second island orients everything on account of its empty space, a space of withdrawal within. And Deleuze carries on by urging us to keep moving the square: “today’s task is to make the empty square circulate”. The space of withdrawal is always there but needs to be constantly flowing, for otherwise justice becomes frozen in the regime, a pillar amidst other pillars. Just as justice cannot be disengaged from the law in its paradoxical flow of the logic and the nomic, in the same way there is no telling how much of either needs to be withdrawn for the empty square to follow the lines of escape and keep on moving. Withdrawal is a revolutionary, dangerous move that takes risks by allowing spaces to discover their immanent legality.

The second island is the product of a Deleuzian encounter, pulsating with its infinitely repeated singularity. It is the space of here into which the law throws itself, the luminosity of "erected" spaces, the singularity of "erected" times: “each day stands separate and erect, proudly affirming its own intrinsic value ... They so resemble each other as to be superimposed in my memory, so that I seem to be ceaselessly reliving anew the same day. The space of justice is the space of “second origin”, which is “more essential than the first, since it gives us the law of repetition, the law of the series” that repeats to the ‘nth’ degree the encounter every time anew. The second island, the space in which spatial justice emerges, is then the desert island par excellence. It is uncharted, unreachable except through the conjuncture of a shipwreck, closed, “a sacred island”. But to retain this sacredness, the island must remain desert yet open to shipwrecks and people arriving: "far from compromising it, humans bring the desertedness to its perfection and highest point. Humans pierce the island, make it a "holey space" that "communicates with smooth space and striated space", they set the ground on which the 'perfection and highest point of desertedness', namely of the world without law, might eventually emerge.

He didn't like her

From Joseph Epstein's snarky WSJ review of Sempre Susan (Atlas & Co, 2011) by Sigrid Nunez -

Sontag wasn't sufficiently interested in real-life details, the lifeblood of fiction, but only in ideas. She also wrote and directed films, which were not well-reviewed: I have not seen these myself, but there is time enough to do so, for I have long assumed that they are playing as a permanent double feature in the only movie theater in hell.

In case you didn't get the message that Epstein didn't like her he comments that -

In the end, Susan Sontag may have been most notable as a photographic subject and for the querulous interview, of which she gave a bookful (see "Conversations With Susan Sontag.") She was photographed by the best in the business, in poses sexy, earnest, sultry, brainy and sublimely detached. She did the siren in a thousand faces. Her last partner, Annie Leibovitz, is, appropriately, best known as a celebrity photographer. Sontag's obituary in the New York Times was accompanied by no fewer than four photographs — an instance of intellectual cheesecake.

If Susan Sontag had been a less striking woman when younger, her ideas would not have had the reach that they did. Something similar could be said about Mary McCarthy, another attractive writer, who claimed that Sontag was "the imitation me." Today, more than six years after Sontag's death, not her writing — as a prose stylist she gave no pleasure — but only the phenomenon of Susan Sontag is of interest.

And -

"Intelligence," Sontag wrote, "is really a kind of taste: taste in ideas." In her thrall to ideas she resembles the pure type of the intellectual. The difficulty, though, was in the quality of so many of her ideas, most of which cannot be too soon forgot. Her worst offenses in this line were in politics, where her specialty was extravagant utterance.

During the Vietnam War, Sontag went off to Hanoi as one of those people Lenin called "useful idiots"—that is, people who could be expected to defend Communism without any interest in investigating the brutality behind it. There she found the North Vietnamese people noble and gentle, if a touch boring and puritanical for her tastes. Doubtless that trip led to her most famous foolish remark, when she said that "the white race is the cancer of human history," later revising this judgment by noting that it was a slander on cancer. Hers was the standard leftist view on Israel, which was — natch — that it is a racist and imperialist country. All her political views were left-wing commonplace, noteworthy only because of her extreme statement of them.

Andrew Roberts in the WSJ adopts the same tone in his review of Lelyveld's Great Soul: Mahatma Gandhi And His Struggle With India (Knopf, 2011) -

"Great Soul" ... obligingly gives readers more than enough information to discern that he was a sexual weirdo, a political incompetent and a fanatical faddist — one who was often downright cruel to those around him. Gandhi was therefore the archetypal 20th-century progressive intellectual, professing his love for mankind as a concept while actually despising people as individuals.

George Scialabba emotes from the other direction -

Gandhi is, to my mind, the gold standard of 20th-century political greatness. He produced tremendous effects, overwhelmingly good, and he achieved them not by luck, force, or guile but virtuously, by persuasion and example. Martin Luther King is perhaps his peer in these respects, but the scale of Gandhi's accomplishment was much greater. ...

Lelyveld's probing account of the visionary-as-politician reveals that, as one might expect, the politician often prevailed over the visionary. The Mahatma had a remarkable capacity for compromise, and even for nimble rationalization. But he was morally serious, a genuine "great soul," and thus lacked the true politician's talent for convenient self-deception. "By the end," Lelyveld writes, he was "forced to recognized that the great majority of his supposed followers hadn't followed him very far," spiritually speaking.

Oh dear

'The Liar As Hero' by historian Benny Morris in TNR (17 Mar 2011) begins by stating -

At best, Ilan Pappe must be one of the world's sloppiest historians; at worst, one of the most dishonest. In truth, he probably merits a place somewhere between the two.

Morris' demolition of Pappe proceeds with comments such as -

Those who falsify history routinely take the path of omission. They ignore crucial facts and important pieces of evidence while cherry-picking from the documentation to prove a case.

Pappe is more brazen. He, too, often omits and ignores significant evidence, and he, too, alleges that a source tells us the opposite of what it in fact says, but he will also simply and straightforwardly falsify evidence

and

The disproportion also reflects Pappe's worth as a historian. Let me explain. To cover the history of Palestine—a geographically small backwater in the giant Ottoman domain—and the activities of its aristocracy and their interaction with the authorities in the eighteenth and nineteenth centuries, one would have to spend many months in the Ottoman archives in Istanbul. There one would need to locate and pore over reports and correspondence from and about the relevant vilayets (provinces), Syria/Damascus and Beirut, and the relevant sanjaks and mutasarafliks (districts), Jerusalem, Nablus, and Acre, in addition to the central government’s deliberations and decision-making about Jerusalem and its environs. Pappe, who lacks Turkish, has not consulted any Ottoman archives. There is not a single reference to any Ottoman archive, or any Turkish source, in his endnotes.

and

Pappe repeatedly refers to "Harry Lock" of the British Mandate government secretariat in the 1920s —b ut the chief secretary's name was Harry Luke. Pappe obviously encountered the name in Hebrew or Arabic and transliterated it, with no prior knowledge of Luke against which to check it: if he had consulted British documents, he would have known the correct spelling. Pappe refers to "the Hope Simpson Commission" — there was no such commission, only an investigation by an official named John HopeSimpson. He refers to "twenty-two Muslim ... states" in the world in 1931, but by my count there were only about half a dozen. He refers to "the Jewish Intelligence Service" — presumably the Haganah Intelligence Service — and then adds, "whose archive has been opened to Israeli historians but not to Palestinians". To the best of my knowledge, this is an outright lie. All public archives in Israel, including the Haganah Archive in Tel Aviv, which contains the papers of its intelligence service, are open to all researchers.

and

It is unclear what Pappe is quoting from. I did not find this sentence in the commission’s report. Pappe's bibliography refers, under "Primary Sources", simply to "The Shaw Commission". The report? The deliberations? Memoranda by or about? Who can tell? The footnote attached to the quote, presumably to give its source, says, simply, "Ibid". The one before it says, "Ibid., p. 103." The one before that says, "The Shaw Commission, session 46, p. 92." But the quoted passage does not appear on page 103 of the report. In the text of Palestinian Dynasty, Pappe states that "Shaw wrote [this] after leaving the country [Palestine]". But if it is not in the report, where did Shaw "write" it?

and so on.

Getting Hitched

Reading 'Reassessing the Saul Bass and Alfred Hitchcock Collaboration' by Pat Kirkham in 18(1) West 86th (2011)

Drawing upon a wide range of sources, including interviews with designer and filmmaker Saul Bass (1920–96) and film director Billy Wilder (1906–2002), this article reassesses the evidence, scholarship, and debates about the contributions made by Bass to three films directed by Alfred Hitchcock (1899–1980). Between 1958 and 1960 Bass created main title sequences for Vertigo (1958), North by Northwest (1959), and Psycho (1960) and an advertising campaign for Vertigo, and he also acted as a "pictorial consultant" for Psycho (a role that included the design and storyboarding of the now-famous shower scene). The article, which seeks to reopen and redirect certain debates, constitutes a major evaluation of one of the most visually productive collaborations in the history of U.S. cinema.

I wanna wanna, be your dog

Today's NY Times (a welcome refuge from the 428 page report on misbehaviour onboard HMAS Success and from the demolition of Christchurch, one of my favourite cities) features an item by Colin Buckley on 'ghosting' Ted Kennedy's dog -

... when I moved to Washington five years ago to attend graduate school at Georgetown, I resolved to get a job with Senator Edward Kennedy. I hoped to become an assistant at least, or an adviser or perhaps even — dare to dream — a speechwriter.

Instead, I became Splash, the senator's Portuguese water dog.

Having begged my way into an internship with the senator, I spent most of my time making copies, keeping records and answering phones. But then on a quiet winter afternoon when there was not much else going on, my supervisor came to me with an apologetic look on her face.

The senator, she explained, had recently written a children's book called My Senator and Me. The book depicts a day in his life from Splash's perspective. Someone — I'm not sure who — suggested including an e-mail address where curious young readers could reach the supposedly computer-savvy Splash.

That's where I came in. Someone had to reply to Splash's e-mails, in his voice, lest the children think the dog had let the thrill of being a published author and Washington power broker go to his head.

I'd taken Splash on walks on more than one occasion. Once, near the Russell Senate Office Building, we happened upon a mysterious pile of pellets that appeared to be some kind of fertilizer. Splash lurched toward them and devoured a mouthful before I could stop him. As I ferociously tugged on his leash, a headline ran through my head: "Intern Returns Poisoned Dog to Living Legend".

But beyond Splash's indiscriminate eating habits and love of tennis balls, he was little more than a furry mystery to me. What would he say in response to the hundreds of e-mails that came to him from children across the country? School simply hadn't prepared me for this.

Most of his messages went something like this:

Dear Splash,

My teacher read us your book. You are so cute! Can you come over and play with my dog? What kind of dog food do you like? My mom says your senator is a great man. I hope he feels better.

After checking with the senator's assistants on Splash's preferred dog food brand, and then reading the book myself to better prepare for my role, I answered every single e-mail, ending each reply with the mandatory "WOOF WOOF!! Splash".

My feelings on this assignment were conflicted, to say the least. On the one hand, I was impersonating a dog. On the other, I was heartened by the warmth that people from so many other states felt for the senator from mine.

In time I found a strange satisfaction in writing back to these puppy-crazed children, one that I never got from answering the office phones. None of Splash's correspondents cared about or even knew Senator Kennedy's position on the estate tax, or whether he'd invoke cloture on a resolution to incrementally finance the defense budget. In fact, a simple "Woof!" seemed to be all the constituent outreach they needed to be assured that the senator was on their side. ...

I wonder what Weber would say about the rise of - and manufactured personality (blogs, memoirs, interviews, email) for - The Presidential Pet and its senatorial epigones.

'The Dog that Didn't Bark: The Role of Canines in the 2008 Campaign' by Diana Mutz in 43 PS: Political Science & Politics (2010) 707-712 comments that -

American presidents have always had pets, although their political significance is vastly understudied. White House occupants have long included many species, from John Quincy Adams' pet alligator to Jefferson's pet grizzly cubs to Madison's famed parrot who attended the inaugural ball. According to one authoritative source, around four hundred pets have lived in the White House to date. In fact, if one counts horses, Barack Obama is the very first elected president to be petless. Moreover, Obama's petlessness was widely publicized during the election through his public promise to his daughters of a post-election canine companion. While some pundits felt this promise only made him appear more charming to the pet-loving American public, it may have unintentionally highlighted a key point of difference between the candidate and the public. Republican John McCain, on the other hand, had a menagerie that included two dogs, a cat, two turtles, a ferret, three parakeets, and some saltwater fish. Moreover, given the attention that the campaign promise drew to pets (and Obama’s lack thereof), it is not surprising that the American public was well aware of this point of difference between the two candidates.

Presidential pets, and canines in particular, have been widely acknowledged to play a significant role in the political success of their masters. Many presidential pups have become celebrities in their own right, exceeding even their masters’ success in the White House. President Harding’s Airedale, Laddie Boy, became a national celebrity and was given a chair at cabinet meetings. Roosevelt’s black Scottie, Fala, traveled abroad and joined the president at international meetings promoting world peace. Pushinka, a fluffy little white dog given to Caroline Kennedy by Nikita Khrushchev, was long suspected of being infested with bugs. However, after an extensive Secret Service clearance process, she was allowed to have intimate relations with the Kennedy’s Welsh terrier, Charlie, and the two went on to produce four pupniks. Roosevelt’s dog, Fala, later gave Nixon the inspiration for his infamous “Checkers speech” about his own dog. In short, canines have clearly played an important role in presidential politics, affecting both a politician’s image and effectiveness.

Despite their high profiles once in office, there is little empirical evidence as to whether or why dogs matter either to electoral prospects or to a president’s success once in office.

Mutz goes on to explain that -

Using the most extensive dataset available on the 2008 election, I examine the impact of dog ownership on presidential vote preference. Canines were elevated to the status of a campaign issue when, during the 2008 campaign, Barack Obama publicly promised his daughters a dog after the election was over, a campaign promise that has since been fulfilled. However, this announcement appears to have unintentionally highlighted the absence of a key point of potential identification between this candidate and voters, and thus to have significantly undermined the likelihood that dog-owning voters would support Obama. I elaborate upon the implications of this finding for future presidential candidates. ...

In Obama’s case, the negative impact of his petlessness is clearly driven by the dog-owning public’s inability to identify with a president who didn’t know Frontline from a filibuster. I found no evidence that the votes of owners of other kinds of pets with more Obama-like personalities (e.g. cats) benefited his candidacy. In fact, the impact of owning other kinds of pets was either negative or negligible throughout, thus casting greater support for canine group identification theory. The dog-owning portion of the electorate appears to agree with Calvin Coolidge's admonition that "any man who does not like dogs and want them about, does not deserve to be in the White House".

In short, Democrats should be wagging their tails over the arrival of Bo Obama, who could play well to potential swing voters in 2012. It is probably no accident that a seasoned politician like Ted Kennedy gave the Obamas the dog as a gift when the public was just about to give up on this long-awaited campaign promise. On the one hand, Obama supporters may feel some relief at knowing that the White House now has a canine resident, particularly in advance of the 2010 midterm elections. But if he is to reap the benefits of this change in lifestyle, President Obama would be well advised to give the pooch a much higher public profile than he has to date.

Thus far, Bo Obama has spawned a lookalike Beanie Baby and two children’s books, but he has yet tomanifest a strong presence among the adult, voting public. The fact that he makes so few public appearances has prompted at least one blogger to speculate that this Portuguese water dog might be a Vietnamese water torture dog instead. Dog owners cannot be brought on board unless they are reminded of Bo’s presence. Assuming Bo does not bite (and perhaps even if he does), the president needs to parade him in front of theWashington press corps regularly to remind the American public that he, too, has a best friend.

A comity of animals

From Rouse's translation of Nonnos' Dionysiaca, via Bowersock's NYRB blog post on the Lod Mosaic.

So she brought the baby into the light. The girl was bathed by the four Winds, which ride through all cities to fill the whole earth with the precepts of Beroe. Oceanos, first messenger of the laws for the newborn child, sent his flood for the childbed round the loins of the world, pouring his girdle of water in an everflowing belt. Time, his coeval, with his aged hands swaddled about the newborn girl's body the robes of Justice, prophet of things to come ; because he would put off the burden of age, like a snake throwing off the rope-like slough of his feeble old scales, and grow young again bathed in the waves of Law. The four Seasons struck up a tune together, when Aphrodite brought forth her wonderful daughter.

The beasts were wild with joy when they learnt of the Paphian's child safely born. The lion in playful sport pressed his mouth gently on the bull's neck, and uttered a friendly growl with pouting lips. The horse rattled off, scraping the ground with thuds of galloping feet, as he beat out a birthday tune. The spotted panther leaping on high with bounding feet capered towards the hare. The wolf let out a triumphal howl from a merry throat and kissed the sheep with jaws that tore not. The hound left his chase of the deer in the thickets, now that he felt a passion strange and sweet, and danced in tripping rivalry with the sportive boar. The bear lifted her forefeet and threw them round the heifer's neck, embracing her with a bond that did no hurt. The calf bending again and again in sport her rounded head, skipt up and licked the lioness's body, while her young lips made a half-completed moo. The serpent touched the friendly tusks of the elephant, and the trees uttered a voice.

Bowersock's post quotes the Dionysica as -

In late antiquity, the Greek epic poet of Dionysus, Nonnos of Panopolis, waxed eloquent in complex verse about the comity of the god’s animals:

The lion in playful sport pressed his mouth gently on the bull’s neck ... The spotted panther leaping on high with bounding feet capered toward the hare. The wolf let out a triumphal howl from a merry throat and kissed the sheep with jaws that tore not. The bear lifted her forefeet and threw them round the heifer’s neck, embracing her with a bond that did no hurt. The calf bending again and again in sport her rounded head, skipped up and licked the lioness’s body ... The serpent touched the friendly tusks of the elephant.

Over-ripe and under-cooked

From Fred Inglis' A Short History of Celebrity (Princeton University Press, 2010), a sort of Limburger cheese of a book -

So social action for the novelists and the journalists alike justified itself in private lives and conspicuous leisure. Sure, the money had to be made, but its blossom was made manifest in such fruits of the spirit as (and supremely) works of art, exquisite but unassuming dress, careful and uncondescending courtesy, the reticence of high, withheld intelligence, discreet but massive generosity towards the nation, a complex and interestingly ironic attitude to life. 

Against these grand, middle-aged and bounteous qualities, exuding the certainty of success, the narratives of spontaneity, passionate (probably erotic) expression, vivid impulsiveness, hot allegiance, financial insouciance thrust themselves forward on the side of youth. Calm and fulfilled marriage on one side, the reckless love affair on the other; this is the twist-point of value as the First World war trundled over the horizon, and it was in these terms that celebrity was called onstage to enact the constellation of ideas. 

Drama thrives on the collision of values in which either the admirable or the hateful is destroyed. In this short fresco of American life culminating in 1920, the gangster as celebrity is one favourite such action, particularly in the United States where social forms were so plastic, and success so defined in terms of physical action and sudden reward - gold mines, railroads, herds of cattle, newspapers, murder, So the ambiguous dramas of Al Capone, John Dillinger, the Pinkerton agency, and the grisly escapade in a garage on St Valentine's Day have a brightly lit corner in the moral imagination of the epoch, and in ours, its inheritor.

In contrast Gargan v Magistrate Dillon and Anor [2005] NSWSC 1106, involving recurrent litigant Peter Alexander Gargan, featured the Supreme Court's observations on the sort of "pseudo technical legal rubbish" that is unsuccessfully used by sovereign citizens.

The judgment notes that Gargan sought an order that “the question of fact in this matter in federal jurisdiction be tried with a jury”, a declaration that the magistrate has no power to hear a matter pending before him and that a sequestration order made by a single judge of the Federal Court of Australia in Commonwealth Bank of Australia v Gargan [2004] FCA 707; (2004) 206 ALR 571 s “utterly void”. 

 The Bank persuasively argued that the proceedings initiated byGargan’s statement of claim were frivolous, vexatious and an abuse of process, no reasonable cause of action being disclosed. 

The Court states that Gargan’s statement of claim, 'omitting formal parts', reads as follows: 

“Particulars 1. The Plaintiff is a student of Constitutional law, who has completed three years study at University, and was made bankrupt on the personal opinion of a single federal court Judge. 

2. In 2004 the Second defendant requested consent from the plaintiff to the bankruptcy and requested a Statement of Affairs be filed, with the Sydney office, citing Section 54(1) Bankruptcy Act 1966 as authority to make that request.

3. In protest at the refusal of the Federal Court Judge, to constitute the Federal Court of Australia as a Court of Judicature, as required by Chapter III Australian Constitution and the further refusal of the Insolvency and Trustee Service of Australia to obey the Statutory command contained in Section 86(1) Bankruptcy Act 1966 the plaintiff has refused to ratify the sequestration order, by filing a Statement of Affairs. 

4. The ITSA organisation issued a Penalty Notice returnable at the Downing Centre which was first heard on the 7th May 2005 and were represented by the Director of Public Prosecutions (Cth). 

5. The plaintiff objected to the jurisdiction of the Magistrate on the founds that in its totality, the amendments to the Bankruptcy Act 1966 effected by Act no 44 of 1996, made the jurisdiction of the Federal Court of Australia exclusive. 

6. Those changes were effected to Section 5, 27 and 273, Bankruptcy Act 1966 and the plaintiff argues it was the duty of the Magistrate to give effect to the will of the Parliament of the Commonwealth lawfully expressed, in an Act, and dismiss the penalty Notice, as brought in the wrong jurisdiction. 

7. The jurisdiction of the Parliament of the Commonwealth to grant the Federal Court of Australia exclusive jurisdiction in bankruptcy matters, is contained in Section 77(ii) Australian Constitution.  

8. By section 65 Supreme Court Act 1970 the Supreme Court is empowered to make orders requiring officers of lower courts to perform their public duties according to law. 

9. The magistrate was at all times exercising the executive power of the Commonwealth of Australia and that power is exclusively vested in Her Majesty ELIZABETH THE SECOND by section 62 Australian Constitution. 

10. The ITSA and magistrate exercising federal jurisdiction, are defined in the Dictionary of the Criminal Code Act 1995 separately as a Commonwealth judicial officer in the case of the magistrate, and the category is then included in Commonwealth public official together with the officials in the ITSA and the plaintiff. 

11. In 1986, the magistrate became bound, by reference to Section 5 Commonwealth of Australia Constitution Act 1900 and S 109 Australian Constitution to give effect to the International Covenant on Civil and Political Rights which became schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986. 

12. In 1995 the Parliament of the Commonwealth enacted the Criminal Code Act 1995 and it was proclaimed on the 16th October 2001, and the dictionary proclaims the International Covenant on Civil and Political Rights as Australian Law. 

13. The magistrate failed to do his public duty, and decline to proceed further and that refusal enlivens the jurisdiction of the Supreme Court to compel him to do so. 

14. The plaintiff is a practising Christian, and under Section 116 Australian Constitution is entitled to freely exercise his beliefs, and refuse to accept the usurpation by the State of New South Wales represented by the Magistrate of the power of God Almighty, vested in Her Majesty ELIZABETH THE SECOND by the Australian Constitution and Coronation Oath taken by the Queen, at Westminster Abbey in 1952. 

15. The separation of powers claimed by the Australian Government Solicitor as being strict, in its publications of the Australian Constitution is not effected by vesting judicial power in an individual with both judgmental powers and administrative powers, but by separating absolutely the power to administer judgments, from the power to make judgments, by requiring that the power to judge, is exercised by a jury, as required under Sections 79 and 80 Australian Constitution. 

16. The Separation of Powers, comes from the Bible, and the Gospells, and the Chief Executive Officer of Australia Her Majesty ELIZABETH THE SECOND is at one, head of the Church of England and Presbyterian Churches, the Army, and the Chief Magistrate of the realm, and has been restrained by the Bible, since 1297 and the Magna Carta, from issuing warrants to allow her subjects to be assaulted, abused, forced to obey unjust laws however made, and from allowing her delegates as defined in the Criminal Code Act 1995 from issuing unwarranted demands. 

17. Her Majesty ELIZABETH THE SECOND is obliged not to judge, by Matthew 7 verse 1, to observe the separation of powers by Matthew 18 Verse 20, and to allow Her subjects to put themselves upon Jesus Christ as judge, by John 5 verses 22 and 23, where a Christian insults His God, if he fails to request and insist upon a jury trial. 

18. Since 1297, and the Magna Carta, numerous Acts have enacted the Biblical separation of powers into Christian Law, and these Acts, include, the Habeas Corpus Act 1640 (16 CAR 1 c 10) (IMP), The (1623-24) James 1 C3 (Statute of Monopolies) ss1 and 6, the Coronation Oath, 1 Will & Mary C 6 (Coronation Oath) (1688), The Charter of Justice 1824, The Australian Constitution, the International Covenant on Civil and Political Rights, The Evidence Act 1995, (CTH) s143, and the dictionary to the Criminal Code Act 1995. 

19. The judicial power of Her Majesty ELIZABETH THE SECOND is expressed by warrants, and only warrants issued in accordance with the procedure prescribed by law, are validly issued. 

20. Section 51 Placitum (xxxi) Australian Constitution requires that any property whatsoever taken by Her Majesty ELIZABETH THE SECOND or any of her delegates as public servants, be taken on just terms, and just terms imputes a jury trial before sequestration, unless consent to arbitrary judgment is made. 

21. Section 2 Judiciary Act 1903 (Cth) defines “appeal” to include an application for a new trial and any proceeding to review or call in question to decision proceedings or jurisdiction of any Court or Judge. 

22. Christianity and communism represented by Islam and Judaism have been opposed to each other since Jesus Christ was crucified, and there has been a continues conflict between the two ideologies, which was resolved in favour of Christianity, in the United Kingdom and all its colonies, from 1297, by legislation, but the central them of Christianity, which is individualism, has been constantly under attack, by two party communism, in Australia since 1969, when the State of New South Wales purported to repeal the separation of powers, by repealing Imperial Acts, outside its powers, and replacing the separation of powers, with compulsory communism, enforced by magistrates, disenfranchising the people from their right to be the judges in the community. 

23. The (1623-4) James 1 C3 (Statute of Monopolies) ss 1 and 6 reproduced in full in the Imperial Acts Application Act 1980, (Vic) Section 8, binds the Crown, not to create or condone monopolies, and the Crown cannot condone the exercise of monopoly powers by any magistrate whatever name he or she may carry. 

Gargan's claims proceeded downwards 

24. The erection of Star Chamber Courts prohibited by the Habeas Corpus Act 1640 (16 CAR 1 c 10) (IMP) is enacted to prevent the vertical integration of a communist state, by the control of the administration of justice by the state, and the Insolvency and Trustee Service of Australia has acted with bad faith, in attempting to use a State magistrate to punish a political protester, in the face of a clear legislative prohibition on doing so. 

25. The education of over forty years of lawyers, has deliberately concealed the separation of powers, and the existence of the (1623-4) James 1 C3 (Statute of Monopolies) ss 1 and 6, the Habeas Corpus Act 1640 (16 CAR 1 c 10) (IMP) which bans Star Chambers, and communism, and the disenfranchisement of the true judges, the people, and their replacement by public servants working for the communist State. 

26. The Federal Court of Australia is a communist institution, which has the means to be Christian, but chooses to be communist, by refusing to separate the power to judge, from the power to administer a judgment, and staffs the court with magistrates, whose education has never been completed. 

27. Section 80 Australian Constitution separates power with respect to criminal matters, and section 79, which uses the word ‘judges’ which is both uncapitalised and singular, gives effect to the separation of powers, by distinguishing the word, ‘judges’ from the definition of Chief Justice, and Justices, in Section 71 Australian Constitution which are capitalised. 

28. The Crown, which cannot consent to monopolies, has created an equal Supreme Court in each of the former colonies, and the Supreme Court of New South Wales when exercising federal jurisdiction, has absolutely unlimited Australia wide jurisdiction, by virtue of Section 15C Acts Interpretation Act 1901, (CTH) and its decisions, when made, are given Australia wide effect, by Section 118 Australian Constitution. 

29. As a Court of Judicature, the Supreme Court of New South Wales has a duty, under Section 63 Supreme Court Act 1970 to fully dispose of these proceedings. 

30. The High Court is supposed to be the Federal Supreme Court but has never constituted itself as a Supreme Court since its inception, and is now almost irrelevant, as a venue for the settlement of political differences, being in effect a council of Rabbis, in the Jewish tradition. 

31. In 1996, in Kable v DPP of New South Wales (1996) 96/027 the High Court declared by majority, that the creation of a Star Chamber to try and jail Gregory Wayne Kable, was ‘ultra vires’ the power of the Parliament of New South Wales and that decision is relied upon to claim that the Federal Court of Australia as it currently constitutes itself, is also illegal. 

32. This matter would never have come before a magistrate, had the High Court not refused to file an appeal, in its original jurisdiction. 

33. Should the matter be contested, the plaintiff, under Section 85 Supreme Court Act 1970 will seek to have the matter tried with a jury and not otherwise. 

34. The plaintiff is a Commonwealth public official by the definitions contained in the Criminal Code Act 1995, Dictionary, and has a civil and political right to ensure the law is applied and the course of justice in respect of the Judicial power of the Commonwealth is not defeated, delayed, obstructed or perverted. 

The Plaintiff claims: 

1. An order that the decision of the magistrate be set aside and the Magistrate re-consider the matter in the light of the Supreme Court decision. 

2. A declaration that the Bankruptcy Act 1966 was amended to make State Magistrates unable to hear bankruptcy matters, or matters arising out of the Bankruptcy Act 1966 since act no 44 of 1996. 

3. A declaration that a sequestration order, made in a contested matter, by a single judge is unconstitutional and utterly void.”

In response the Court states 

8 In so far as they can be gathered from the statement of claim itself and discursive and voluminous written submissions filed by the plaintiff, as supplemented by oral submissions, a number of propositions of law are seen by the plaintiff as underpinning the claims in the statement of claim. The main propositions appear to be as follows: 

1. A charge of failure to lodge a statement of affairs in accordance with s.54(1) of the Bankruptcy Act 1966 (Cth) cannot lawfully be determined by a single judicial officer since, in particular, this is contrary to the Statute of Monopolies (21 James I c.3). 

2. The jurisdiction to determine such a charge resides exclusively with the Federal Court of Australia, having regard to amendments to the Bankruptcy Act by the Bankruptcy Legislation Amendment Act 1996 (Cth); but the Federal Court, “as it currently constitutes itself”, is “illegal” because of principles enunciated by the High Court in Kable v Director of Public Prosecutions [1996] HCA 24; (1997) 189 CLR 51. 

3. The magistrate was bound to give effect to the International Covenant on Civil and Political Rights as part of Australian law and failed to do so. 

4. The authority of the magistrate is inferior to that of Almighty God whose power is, by virtue of the Coronation Oath, exercisable by Her Majesty Queen Elizabeth II. 

5. The power to judge, being the power exercised both by the magistrate and, as regards the sequestration order affecting the plaintiff, by the Federal Court, is vested by ss.79 and 80 of the Constitution of the Commonwealth so as to be exercisable only by a jury. This rule is reinforced by Biblical passages which, via the Queen’s intermediation (see proposition 4), form part of Australian law. 

6. The proceedings in which the plaintiff was adjudged bankrupt were irregular in that they were tried by a single judge without a jury.

There may be other legal propositions inherent in the statement of claim and the plaintiff’s submissions. If there are, I merely say that they are so obscure and outlandish as not to merit serious consideration. 

The second defendant says, quite simply, that each of the six propositions I have extracted is not only wrong but so glaringly and palpably wrong that the plaintiff’s claims are entirely devoid of merit and represent a waste of court time and resources and therefore amount to an abuse of process. I entirely agree. I shall explain why.  ... 

18 Proposition 1 seems to rest in part on a view about the operation of the statute 21 James 1 c.3 (the Statute of Monopolies). That view is to the effect that it is contrary to the statute for judicial power to be exercisable by one judicial officer alone. The view is erroneous. If the Act 21 James 1 c.3 had any continuing force in Australia beyond the limited extent recognised in the Patents Act 1990 (Cth) and allowed by State provisions of which s.6 of the Imperial Acts Application Act 1969 is an example, it would be entirely irrelevant to the question at hand. This is because the statute is (or, at least, was) concerned with the exercise of the prerogative to create monopolies, grants, licences and the like “of or for the sole buying, selling, making, working or using of any thing within this realm or the dominion of Wales or of any other monopolies or of power, liberty or faculty to dispense with any others, or to give licence or toleration to do, use, or exercise any thing against the tenor or purport of any law or statute ...” – added to which it was made clear by s.8 of the Act that it did not extend to the jurisdiction of courts “having power to hear and determine offences done against any penal statute”. This remnant of legal history has no bearing upon the matters under discussion or, in particular, the investing of jurisdiction in courts by statute. 

19 The plaintiff’s second proposition (item 2 at paragraph [7] above) is one that has already been canvassed. It is true that the amending Act of 1996 put s.27 into its present form but, for the reasons stated, the general specification in s.27 did not (and does not) detract from the particular provisions with respect to trial of offences in s.273. The latter section was itself amended by that Act but the relevant parts of it were left intact. To the extent that the plaintiff places reliance on Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 in submitting that the Federal Court could not, in any event, hear and determine the proceeding against him, he not only introduces an irrelevancy but also fails entirely to say how, in his submission, the ordinary procedures for trial of proceedings in the Federal Court overstep the limits allowed by Chapter III of the Constitution, that being the matter at issue in Kable. There is no basis at all for concluding that those procedures involve any exceeding of those limits. 

20 The plaintiff’s third proposition (that is, item (3) at paragraph [7] above) proceeds on the footing that Australian courts are bound to give effect to the provisions of the International Covenant on Civil and Political Rights as part of Australian law. This is simply incorrect. A succinct statement of the status of the provisions of the covenant in Australian law may be found in the judgment of Kirby J in Re Kavanagh’s Application [2003] HCA 76; (2003) 78 ALJR 305 at [10]- [14] (with footnotes omitted):

“It is clear from the proceeding presented by the applicant, and from the terms of his affidavit, that he seeks to rely on Art 14.1 of the International Covenant on Civil and Political Rights (‘ICCPR’) to support the proceeding. Australia is a party to the ICCPR. It has also subscribed to the First Optional Protocol to the ICCPR. That Protocol permits persons in the position of the applicant to communicate to the Human Rights Committee of the United Nations where they contend that, in particular respects, Australia is in breach of its obligations under the ICCPR. This, it appears, the applicant has done, or intends to do, in consequence of his complaints about the outcome of the foregoing proceedings. 

Although at various times, it has been suggested that the ICCPR should be made part of Australia's domestic law, by the enactment of legislation giving it direct local effect, no such law has, to this time, been enacted. This does not mean that the ICCPR is irrelevant to Australia's legal system. Views differ concerning the precise ways in which the provisions of the ICCPR may be invoked in support of, and the extent to which they are relevant to, legal rights and duties in Australia. However, in Mabo v Queensland (No 2) writing in this Court with the concurrence of Mason CJ and McHugh J, Brennan J said: The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. 

In the same reasons, Brennan J said: The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. 

A reflection of the differing views concerning the way in which the requirements of the ICCPR may be used in expressing the law applicable in this country can be seen in the decision of the New South Wales Court of Appeal in Young v Registrar, Court of Appeal [No 3]. That case bears a distant similarity to the present one. As I said in that case, it is permissible, in my view, in accordance with the reasons of Brennan J in Mabo [No 2], to utilise the articles of the ICCPR in the development of the common law of Australia where that law is in doubt or otherwise undeveloped. Similarly, for my own part, I would be prepared to accept that the articles of the ICCPR may be used to assist in the resolution of an ambiguity that arises in the meaning of Australian legislation, including federal legislation. The ICCPR may be relevant in still further ways not presently material. 

However, where there is applicable Australian legislation which is clear, and without relevant ambiguity, and where such legislation governs the case to the exclusion of the common law, there is no room for the articles of the ICCPR to ‘bring to bear’ on Australian law the influence mentioned in Mabo [No 2] or as otherwise favoured by me. In such cases, because Australian parliaments have not, so far, given domestic effect to the ICCPR as part of the municipal law of Australia, the duty of Australian courts is clear. It is the duty stated in the Australian Constitution itself. It is to obey and give effect to the law of Australia, including the law stated by the Parliament. 

In the present case, the applicable law is expressed clearly in federal legislation. It appears in the Judiciary Act 1903 (Cth), relevantly s 35(2). By that subsection it is provided: An appeal shall not be brought from a judgment, whether final or interlocutory, referred to in subsection (1) unless the High Court gives special leave to appeal. In s 35(1), reference is made in para (a) to ‘judgments of the Supreme Court of a State’. The judgment in the applicant's case is such a ‘judgment’. This, therefore, is the law that confines appeals to this Court from judgments, such as those made by the Supreme Court of Tasmania in the applicant's case. Relevantly, such appeals lie only where this Court grants special leave to appeal.”

21 Even allowing for the view most favourable to the plaintiff about the operation of the covenant in Australian law, it does not have any impact where, as here, the matter in issue is the statutory jurisdiction of a court, clearly and unambiguously conferred by an Act of the Parliament of the Commonwealth. 

22 It is pertinent to point out that the plaintiff is well aware of the limited relevance of the provisions of the International Covenant on Civil and Political Rights in Australian law. In Commonwealth Bank of Australia v Gargan (above), in which, as here, he appeared in person, the plaintiff made submissions which caused Hely J to say in his judgment (at [20]-[21]):

“The respondent made a number of oral submissions in addition to the grounds relied upon in the affidavits referred to above. The common thread throughout these submissions was that it was incorrect to say that the Act ‘stands alone, and it’s not part of a matrix of laws’. The matrix adverted to by the respondent was said to include the Privacy Act 1988 (Cth) (the Privacy Act) and the International Covenant on Civil and Political Rights 999 UNTS 171, 6 ILM 386 (entered into force 23 March 1976) (ICCPR) (Australia is a party to the ICCPR, and the full text is set out in Sch 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)). While it is true that the Privacy Act and, to a more limited extent, the ICCPR form part of Australian law (see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 517–18 [65]–[67]; 72 ALD 613 at 628–9 (McHugh and Gummow JJ), [120]–[122]; ALR 530– 1; ALD 641–2 (Hayne J), [145]–[148]; ALR 538– 9; ALD 649–50(Callinan J)), the respondent has not established that these instruments impact upon what would otherwise be the operation of the Act.”

23 The last two words of this extract refer to the Bankruptcy Act. 

24 I turn next to proposition 4 set out at paragraph [7] above. It is sufficient to say, in relation to this, that it is wrong and that the plaintiff must know that it is wrong, two courts having previously told him so. In Gargan v Commonwealth Bank of Australia [2004] FCA 641, Hely J said (at [4]-[5]):

“In the applicant’s affidavit he also contends in para 6 that: Under Protestant Christian law, the only legitimate judge since 1297 is Jesus Christ, present in a jury of 12 in accordance with Mathew 18: Paragraphs 15–20, the Bible, and enacted into Constitutional law by the Magna Carta. This submission cannot be accepted having regard to the provisions of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). As O’Keefe J explained in Gargan v DPP [2004] NSWSC 10, since the supremacy of Parliament was finally demonstrated by the revolution of 1688, any appeal to scripture as establishing a moral principle higher than Parliamentary sovereignty has become obsolete.”

25 In Gargan v Director of Public Prosecutions [2004] NSWSC 10; (2004) 144 A Crim R 296, O’Keefe J said at pp.312-3: 

“A number of other arguments were raised in relation to the asserted invalidity of s 54(b) of the Jury Act. They included: (i) An invocation of scripture; Matthew Ch 18 v 20, John Ch 5 v 26-27. (ii) The terms of the Coronation Oath as set out in the Coronation Oath Act 1688 (UK) (1 William and Mary c 6). ... 

In view of the conclusion to which I have come in relation to the effect of the decision by the High Court in relation to the validity of s 54(b) of the Jury Act I do not consider it is necessary to deal with these arguments in great detail. It suffices to say that: (i) The appeal to scripture, that is to a moral principle higher than parliamentary sovereignty, is ‘out of line with the mainstream of current constitutional theory as applied in our courts’ (Building Construction Employees & Builders' Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 at 384 per Kirby P). The same principle was applied by Lord Reid in British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765 in which he said (at 782): ‘In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete. To a like effect is the decision of the Privy Council in Liyanage v The Queen [1967] 1 AC 259 in which it was held that an Act of the Parliament of Ceylon could not be challenged on the basis that it was contrary to the fundament principles of justice. This argument fails. (ii) The appeal to the Coronation Oath Act as a basis for invalidating the legislation is based on the assertion that at her coronation the Queen took such oath and swore to uphold the gospels. This oath of 1688 is then sought to be linked by the plaintiff to s 116 of the Commonwealth Constitution. Any linkage is obscure to say the least, since that section prohibits the making of any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion and it proscribes any religious test as a qualification for any office under the Commonwealth. Section 116 of the Commonwealth Constitution is irrelevant in relation to the validity of s 54(b) of the Jury Act. The oath of office to which the plaintiff adverts is enacted in the Coronation Oath Act. Pursuant to that Act the King and Queen were asked, inter alia: ‘Will you solemnly promise and swear to govern the people of this kingdom of England and the dominions thereto belonging according to the Statutes in parliament agreed on and the laws and customs of the same?’ To which the King and Queen replied: ‘I solemnly promise so to do.’ And: ‘Will you to the utmost of your power maintain the laws of God, the true profession of the Gospel, and the Protestant reformed religion established by law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them or any of them?’ To which the King and Queen replied: ‘All this I promise to do.’ The foregoing oath is not that taken by Her Majesty Queen Elizabeth II nor for that matter by His late Majesty King George VI, her father. The oath taken by Her Majesty Queen Elizabeth II in 1952 involved the Archbishop of Canterbury asking a number of questions including: ‘Will you solemnly promise and swear to govern to peoples of the United Kingdom, of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon, and of your Possessions and other Territories to any of them belonging or pertaining according to their respective laws and customs?’ (Italics added.) To which the Queen replied: ‘I solemnly promise so to do.’ And: ‘Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? ...’ To which the Queen replied: ‘All this I promise to do.’ 

Whilst this oath binds Her Majesty, it does not affect the law of New South Wales. Furthermore the oath involves Her Majesty undertaking the moral obligation to govern the people of Australia according to the laws and customs, not of England or the United Kingdom, but according to those of Australia. 

This argument also fails.”

26 The question whether the Coronation Oath, of itself, gave rise to legally recognisable rights on the part of the Queen’s subjects had previously been considered by the Victorian Court of Appeal in Little v State of Victoria [1999] VSCA 113. It is sufficient to quote a brief passage from the joint judgment of Winneke P and Charles and Batt JJA (at [16]) in order to demonstrate the basic unsoundness of the plaintiff’s reliance on the Coronation Oath:

“As we read them, the words of the oath are of such width that it seems to us they could only import obligations, carrying corresponding rights, if the State were to create such obligations and rights in a specific enactment (cf Simpson v Attorney-General of New Zealand [Baigent’s case] [1994] 3 NZLR 667 at 677, per Cooke P; and at 697-8 and 700-702 per Hardie Boys J, cf 704-6 per Gault J and 718 per McKay J).”

In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Gargan was declared a vexatious litigant in the Federal Court, having been declared a vexatious litigant in the Qld Supreme Court in 2000 - Lohe v Gargan [2000] QSC 140.

The Court states O 21 r 1(1) provides: 

(1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court.  

Principles relating to vexatious litigants 

A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established.

First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made. 

Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits. 

Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts. 

Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent. 

Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless. 

Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters. 

Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field. 

Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct. 

Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth). 

Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised. 

Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise. 

It is in light of those principles that Mr Gargan’s particular circumstances must be considered.  

Mr Gargan’s litigious history 

Mr Con Karantonis gave evidence on the Official Trustee’s application. He is a solicitor in the employ of the Australian Government Solicitor and is one of the solicitors responsible for the day to day conduct of the application by the Official Trustee against Mr Gargan. Between August and December 2008, Mr Karantonis carried out searches of various litigation databases to identify cases in which Mr Gargan was, or had been, a party and which, in Mr Karantonis’ opinion, were relevant to the question of whether Mr Gargan had commenced vexatious proceedings. He identified 20 cases which he thought answered that description. Those cases were put in evidence.

Buckwheat escapism

It's nearly Christmas Time ... the domain of faux bonhomie, Muzak carols (or Bing Crosby 'singing padre' reruns) and syrupy comments about good will, generosity and other ideological bling that's forgotten once we clear away the wrapping paper and deal with the unsightly demonstration of why you shouldn't feed Christmas pudding to your cat.

The Financial Times is getting into the mood, announcing that

A hundred years after his death in a small railway station, Leo Tolstoy’s eloquent responses to life’s big questions, as one of history’s great truth-tellers and as the first of his country’s dissidents, are more relevant than ever.

Let's be brave and demur, just a little.

In an indulgent review of new works and reprints A N Wilson, once known for his satirical bite, lauds the heroically self-involved and often extremely silly Sage of Yasnaya Polyana

To such deceptively simple questions as how should we live, the answers he gave caused tsars, armies, secret police and church inquisitors to shake in their souls. By the end, millions of people worldwide were hanging on his words. A week after he died, a woman in a Moscow railway cafeteria made a slighting remark about Tolstoy. The café workers rounded on her and the waiter refused to give her tea.

I'm with that woman, and with sceptics who ask whether the "tsars, armies, secret police" etc shook in their souls. Some, presumably shook with laughter at simplistic solutions or unintelligible questions. Some people saw the Sage as an unfortunate expression of escapism that inhibited small-scale, achievable and meaningful action to alleviate injustices and build a better society. Better a change to the Trade Practices Act 1974 (Cth) than a day of national repentence, self-flagellation and investment in coloured wristbands.

The anniversary of a writer's death is usually a chance to reassess and re-read their work but it is rarely a provocation to ask the most searching questions about the world as it is now, and about ourselves. Yet Tolstoy's death still challenges us to ask the deepest political and personal questions. It is hard to think of any of the great public questions facing the world today that Tolstoy did not anticipate and address in some way, whether we speak of the environmental crisis, religious debate (creationist versus atheist) or the anti-war movement.

Apart from questioning puffery about Tolstoy's omniscience, we might disagree with both his answers - often incoherent, absurd or inhumane - and ask whether the guru is a better model than more modest and moderate contemporaries such as Chekhov or Turgenev.

Wilson notes that after Anna Karenina -

Tolstoy had a mid-life crisis and became a fervent Orthodox Christian. Changing again, he decided that the Church was teaching mumbo-jumbo. What mattered was what Jesus himself had taught. And what Jesus taught, in Tolstoy's version – he actually rewrote the gospels – was pacifism, anarchism, no government, no army, no upper classes, no quest for wealth. To this was added Tolstoy's own increasingly obsessive vegetarianism.

A Russian Jihadi with all the answers and an indifference to those around him (inevitable among those who confuse the person of Jesus with that of themselves) is not exactly my idea of a positive role model.

Wilson acknowledges criticisms by Tolstoy's biographers that the "gigantic presence" was "an impossible husband and ... unattractively humourless". Never fear, it seems, for he was "godlike". Alas, like Mao, Stalin and other godlike monsters he wan't kind to small children or dogs. Don't be deterred by my cavill about the godlike, for Wilson indicates that -

From the first reading of War and Peace, it becomes clear that Tolstoy writes with the breadth and scope of Homer. Nowhere outside the Iliad do we find such a prodigious combination of artistic detachment from joy and suffering and yet at the same time such passionate engagement and sympathy. It is a paradoxical truth in these two European masterpieces, and Bartlett's book gives us the sense of how both these godlike qualities, of indifference and empathy, were constantly present in Tolstoy’s soul.

He goes on to comment that -

Briggs quotes something I wrote at the end of my own biography of the great man: that "the more evidence we possess about Tolstoy, the less he makes sense". I wrote those words more than 20 years ago, and the intervening years have changed my view. Tolstoy does now make very clear sense to me. The anniversary gives us the opportunity to realise that there are not two Tolstoys, the novelist and the sectarian anarchist. There was one. War and Peace is not just a great national and family saga, it is a novel about personal and national regeneration. He was one of history’s great truth-tellers, the first of the great dissidents, and their patron saint. In a world dominated by crooked rulers, unjust wars, malice and corruption, and, above all, lies, Tolstoy became what Dante called a “one-man party” and struck out to right and left.

Perhaps, to adopt the characterisation in The Life of Brian, he was instead "just a naughty boy".

Wilson admits that -

True, Tolstoy’s embrace of Christian anarchism was inconsistent on many levels but when the enemies in his sights included the grossly selfish Russian royal family, and an Orthodox Church that supported one of the most unjust political regimes in European history (and blessed field guns in the name of Christ), it is hard not to cheer the old bearded prophet and overlook any unkindness he might have displayed towards his wife.

That's that for Sofya Tolstoy. Let's not, it seems, acknowledge the unkindness and gross inconvenience inflicted by the guru on other people or quibble about the shallowness of the historical judgment (several regimes featured blessing of battle kit and most featured self-indulgent elites, dynastic, academic or ecclesiastical).

Cue the sound of Christmas cheer, with Wilson concluding that -

The recent conflicts in Iraq or Afghanistan do not suggest that war has ever been a solution to human problems. Tolstoy’s rejection not merely of war and violence, but of the very concept of government, still has a great deal of potential to change our world. At least, I have come to hope so. ... I have also, like the crowds in 1910, been overwhelmed with a sense that, if we could only live as he urged us to live in his later prophetic writings, we would find sanity in the midst of chaos.

Become a vegetarian, wear hand-spun clothing, spout incoherent prescriptions for groupies, mutter about a profound desire for a private life while basking in front of the camera? The self-involvement, lack of modesty and nuance, and escapism is not a recipe for sanity in the midst of chaos ... it is instead something fitted for the world of Perez Hilton, Gawker.com and Who Weekly.