It has been a while since I have posted on this blog. I have been consumed by my submission to the Royal Commission on Antisemitism and Social Cohesion. I have said that the Commission may make my submission public, in due course. There’s probably something in it with which every reader can agree, and something in it with which every reader will disagree. None of the views expressed in it will be a surprise to anyone who reads this blog.

Among other things, I submit to the Commissioner at paragraph 106(1) of my main Submission that universities must develop:

[a] commitment to ideological diversity among faculty members, and to modelling respectful, scholarly disagreement. The right to freedom of speech is not protected if the loudest and most aggressive group on campus can speak, but everyone else is too afraid to disagree or even to ask questions. Respectful disagreement and consideration of other points of view are the foundations of scholarly innovation and learning.

However, I concede in this post that fostering ideological diversity may not be simple, because the current atmosphere in universities is a result of the incentives which have been entrenched by both the right and left of politics across the West over the last sixty years, particularly in the Anglosphere. At the moment, the academy is not a conducive environment for those who have a conservative outlook on life. It’s even difficult for a moderate person like me to survive, at least if I want to be able to speak my mind.

A little while ago, I had an argument on a social media platform about this very point. When I expressed concern about the lack of ideological diversity in academia, an interlocutor responded that progressive people tended to be drawn to academia, because the mission of academia was inherently progressive, and hence there was a self-selection bias. I asked him what he meant by “progressive”, and he expressed a view that progressives cared less about making money, more about helping humanity, whereas conservatives only cared about making money and self-interest.

This exchange got me thinking. I consider that my interlocutor was right in a way, and wrong in another. He was right, I think, that the academy incentivises progressive approaches, and that there is a self-selection bias. I will expand on that below.

However, my interlocutor seemed to define conservatism as “self-interest and making money” and progressivism as “other-interested and helping people.” I disagree with that characterisation. I suspect that my interlocutor has no close conservative friends or colleagues, nor has he spoken with any conservative people, which, for an academic, is the norm. I do have conservative friends, and I would not paint them in the way he did. My friends, at least, possess an immense sense of duty and honour, and a sense of obligation towards society.

We must consider the true roots of the words: to conserve and to progress. What does it mean to conserve and to progress, in the production of knowledge and the teaching of others?

In what follows, I take “conservatism” to mean “honouring the wisdom of the past, conserving tradition, and preserving past hierarchies” and “progressivism” to mean “questioning the wisdom of the past, developing new ways of thinking about the world, and undermining past hierarchies.”

The mission of the modern university is profoundly progressive in the sense I use above. It’s untrue to say that progressive people are not motivated by money—the desire for government grants is a significant motivator for progressive stances in academia, the arts and media—but academics are also hugely motivated by a desire for moral status and standing within the academic community, which requires adopting the incentivised approaches.

As I have also said in my Royal Commission submission at paragraph 73, status games are baked in to academia, because “support from one’s colleagues is necessary for citation, publication, promotion, and award of government grants.” Therefore, there are significant incentives to conform and to keep quiet about any views one might hold which are not the norm among academics. Norms of academic freedom may not help much on their own, in the face of these incentives, particularly in fields where there is not much viewpoint diversity. If expressing a view which is unpopular in academia means that you don’t get funding for your work, no one cites you, you don’t get promoted, and you are ostracised by your peers, then you’ve chosen a difficult path.

I think of the slogan attributed to Ezra Pound—“make it new”—as the animating slogan of modern creative arts and academia. One is incentivised to question the wisdom of the past, to develop new ways of thinking about the world, and to undermine past hierarchies.

However, to teach students effectively (at least in my field) it is necessary to describe what we know about a topic as it currently stands, accept certain hierarchies as true (at least for the purpose of teaching foundational subjects) and to follow the works of scholars and judges who have gone before. For foundational subjects, it is necessary to possess a certain level of conservatism, in the sense that one discusses knowledge and tradition from the past, presenting it in a structured way to students. Teaching existing knowledge has come to be regarded as a chore which distracts from the “real” business of academia: publishing and developing new theories.

Personally, I have given up on grants. It struck me, after I had a discussion with two scientist friends about the difficulty of getting grants in my area, that fundamentally, lawyers and scientists do different things with our research. The scientists were of the opinion that I could get more grants if I advanced hypotheses and set out things in the way they suggested, but I realised during our discussion that this is neither what I actually do, nor what I want to do. It distorts my research to force it into this shape.

In fact, common law reasoning likely looks despicable to a scientist, because it tends to proceed casuistically (namely, from case to case) not syllogistically (namely, by ascertaining whether something does or does not fit within the general rule). However, prior to the scientific revolution, casuistic reasoning was the main method we had of ascertaining truth. It can, of course, produce error, which is why one must take care with it, and why it got a bad name in science.

Let me explain what I mean by casuistic reasoning with a practical example. Presume that a judge has a case before her, about a fox biting a man. Also presume there’s no statute which expresses a clear rule about foxes biting people (which might require us to reason syllogistically). In the absence of a clear statutory rule, in our legal system, the judge will have to look at the previous common law cases and work out what her decision will be from the earlier decisions of judges. I sometimes think of the common law as a sea of fluid law, with solid islands of statutes enacted by Parliament floating upon it.

Presume now that the judge looks at the previous decisions of the court, and does not find any cases about a fox biting a man. She finds several other cases: many cases of a dog biting a person and a case of a monkey biting a woman.1 She must look at these cases, work out the reasoning of each judge, decide which case the fox case resembles most, and apply the principles in that case. Perhaps she will think that vulpine and canine species should be treated as equivalent. Or perhaps she will think that generally, wild animals such as monkeys and foxes should be treated as equivalent. Perhaps there are some variations which distinguish this case from all previous cases, and she will have to develop a separate principle. Incidentally, this is why it takes years of learning and practice to become a common lawyer, to get a sense of what the best answer may be. And even then, the decision of the judge may be overruled by an appeal court, who may come up with a different analysis.

As I often tell my students, one of the complexities in the common law is that for some contested areas of law there can be a range of answers. As a lecturer, what I look for in the work of my students is sound and carefully explained reasoning and reference to relevant cases and statutes, but a student need not necessarily come to the same answer as I have, as long as it is well-reasoned and correctly identifies the relevant facts and context. After all, the judges of the highest courts of the land often disagree. Decisions are not always unanimous, in the common law.

In some senses, I am progressive: I really enjoy questioning the status quo, and developing new ways of thinking about things. In psychological tests, I display extreme openness to new experience.

But in other senses, I am conservative, as I am always aware of the dangers of taking away “Chesterton’s Fence”, derived from a parable by the author, G.K. Chesterton:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

[emphasis added]

As a common lawyer, I frequently have to look to the past to discover what the law is and where it came from, and why it arose. The common law is not perfect. It has problems at times, and once an error has been built in, it is difficult to remove. Sometimes a principle needs to be critiqued or reformed, or the reasons which underlie it no longer exist. But sometimes, a principle can be repurposed, or upon a careful analysis, it can ascertained that it existed for a certain reason which still carries importance in the modern world.

A lot of my research does not provide something that is entirely new and revolutionary, because this is not usually how the law develops. Rather, I think of much of my research as providing a possible map through the maze that is the common law, along with explanations for why that first fence is there, why this second fence should be removed, and why this third fence must be replaced with a different one. It is, therefore, both progressive and conservative, all in one. There’s a reason I started this post with my yin and yang fish painting. In my mind there is a balance in my research between conservation and progress, and this flows through into my research.

However, I fear that the balance has gone awry. We have made the academy only look to progress, which means that many academics simply critique and tear down what has gone before. Make it new, make it new.

Consequently, this is the sense in which my interlocutor was right to question why a conservative would wish to become an academic. What conservatives are inclined to do—honour the wisdom of the past, conserve tradition, and preserve past hierarchies—is inimical to many of the current academic projects. In the arts and social sciences, we are into deconstruction, not conservation, at least in relation to Western knowledge and sources. Many arts and social science academics regard Western knowledge as a senseless monstrosity that has somehow sprung up in their path, and which should be smashed or deconstructed as much as possible. However, such an approach lacks nuance.

I spoke before of Ezra Pound’s maxim to “make it new”. In fact, the history of that phrase is much more complex, in ways that are revealing. Gregory Wolfe explains:

Pound’s fascination with Confucianism led him to read deeply in the ancient chronicles. There he came across a story of Ch’eng T’ang, the first king of the Shang dynasty (1766−1753 BCE). This monarch is said to have had his washbasin inscribed with the phrase, a daily reminder. But the best translations stress that the meaning of the phrase is closer to “renovation” and meant in the sense of personal moral and spiritual renewal, rather than as a call to artistic creation.

Pound’s own translation of the Chinese original—first published in 1928, well after the initial heyday of modernism—used “renovate,” and only alters that to “make it new” in a footnote. It wasn’t until the mid-1930s that he would use these words as the title of an essay collection and not until the 1950s that it would be picked up by literary critics as a catchphrase of the modernist project.2

I interpolate here that Confucianism is a highly conservative ideology, requiring a person to respect one’s elders, teachers, leaders and the proper order of things. Of course, because I am teaching myself Mandarin, I decided to find out exactly what the phrase inscribed on the bathtub was. According to the Book of Learning in the Book of Rites, it was, 茍日新，日日新，又日新, which was translated in the linked version I found as, “If you can one day renovate yourself, do so from day to day. Yea, let there be daily renovation.”

“Renovate” carries an entirely different sense to “making anew”. “Making anew” suggests knocking something down, clearing the ground, building a new thing. “Renovate” suggests maintaining respect for what went before, leaving the necessary bones of the past intact, but updating and changing where necessary. Perhaps my common law training makes me think in this way, because I have to look both backward to ascertain the law, and forwards to apply the law, but it seems to me that the mission of the academy should be to renovate. We need to restore the balance between conservation and progressivism, so that useful things are not destroyed. We need to change the incentives.

A few years back, my mother and I became curious about why that particular date was chosen and when that choice was made. This post is the result of our research.

You might think that 26 January was the anniversary of the date upon which Australia was formally and legally colonised.1 You would be wrong. Australia was not formally colonised by the British until 7 February 1788, when Governor Arthur Phillip read out the formal proclamation of the colony. Nor does it reflect the date when we became a separate country and a Federation of States (1 January 1901).

26 January 1788 was the day when the First Fleet landed at Sydney Cove and Phillip raised the Union Jack and toasted the health of King George III.

The first officer from the New South Wales Corps to set foot in Sydney Cove was reputed to be one Major George Johnston.

Exactly twenty years later, on 26 January 1808, Johnston, now the commander of the New South Wales Corps, marched on Government House in Sydney, in Australia’s only military coup, dubbed the “Rum Rebellion.” He removed the incumbent Governor, William Bligh—he of the Bounty mutiny—and placed him under house arrest.

I do not think it is a coincidence that “Anniversary Day” (as 26 January was then known) began to rise in popularity in the years after Bligh was appointed governor, while Johnston was commander of the New South Wales Corps.

Indeed, it seems possible that when Bligh made his secretary write a letter on 25 January 1808, summoning Johnston to appear before him at 9am the next day, one reason why Johnston did not attend or reply was that he had already been celebrating Anniversary Day. Bligh’s notes on his secretary’s letter say,

“In place of any letter being written in answer to my above letter, Thomas Thornby, one of my bodyguard, who carried it, returned and said:—“Major Johnston’s compliments to Mr. Griffin [Bligh’s secretary]. That he was sorry he could not write an answer to him to the note he had received; that he was dangerously ill, and it would endanger his life to come into camp; his right arm was tied up, and he said he had been bled…”2

Johnston had been celebrating in the army mess, where he had been the main toast, as the first officer to step ashore. He had fallen from his gig while driving home, and had seriously bruised his face, and his arm was in a sling. It was perhaps Australia’s first prominent drink-driving accident.

What led to Johnston’s coup? Put bluntly, the first twenty years of the colony of New South Wales were chaotic. We don’t even have the final instructions given to Phillip about the establishment of the colony, although draft instructions have been found in England.

The First Fleet had only £300 in English currency (held by Phillip) and coins brought by passengers (including English guineas, shillings and pence, Spanish dollars, Indian rupees, and Dutch guilders). It was intended that officers would be paid in goods and provisions, and free settlers would be self-sufficient. Of course, convicts did not want to work for no reward. A complex bartering system arose, using food, clothing, and alcohol. Convicts and lower ranking military personnel were paid in goods, with the prized but rare payment being rum.3 The New South Wales Corps became known as the “Rum Corps” as a result.

Lack of workable currency was a persistent issue in the early Australian colonies. An early solution was to cut up Spanish dollars and to use the pieces as currency, as reported by a passing American sailor, Robert Murray, in his diary in 1794.4 Murray suggests that the person who came up with this was my convict ancestor, Simeon Lord:

Some persons who are acquainted with the parties say it was discovered by the ingenious Mr McA— [John Macarthur] one of the Lieutts. in the Corps, and the Governor of Parramatta. others, that it was found out by a convict acting as a clerk in the service of the Adjutant [Thomas Rowley], for which he is said to have had a present of a bottle of Grogg and a pair of military shoes from that Gentleman.—but the majority say the Master discovered it himself-Certain it is, that the discovery has been of the greatest utility, and is now, universally adopted.—5

I am biased, but given Lord’s later activities and financial inventiveness, I think that it is entirely in character for him to have developed this method. Later, Governor Lachlan Macquarie made the “holey dollar” (an adapted Spanish dollar) the Australian legal tender from 1813 to 1822.

Captain Thomas Rowley, mentioned above in Murray’s diary, had arrived in Sydney in 1792 on The Pitt. Rowley, then in his forties, was allowed to choose convicts to be his “servants.” He chose eighteen-year-old Elizabeth (Betsey) Selwyn (who had been on The Pitt with him) and nineteen-year-old Lord. Both convicts were thieves. Selwyn purportedly bore Rowley five children. My mother and I are descended from Selwyn’s fifth child, Eliza Rowley.

Rowley’s farm, Kingston Farm, was next to Johnston’s residence, Annandale House. Johnston had also chosen a convict to be his “servant”: a Jewish thief named Esther Abrahams, who already had a daughter called Rosanna, born in Newgate Prison in 1787. Abrahams then bore Johnston seven children, and married him in 1814.

However, as I have already written, Eliza Rowley’s parentage was a little more complex. People descended from Eliza Rowley (including me and my mother) have been genetically matched to many of Lord’s descendants on an ancestry site. It is therefore likely that Lord was Eliza Rowley’s true father, not Rowley, as there is no other way for us to be related to Lord’s descendants. When Eliza Rowley was conceived, Lord had left Rowley’s service, and had set up his own trading enterprise. Whether anyone knew of Eliza’s true parentage is unclear. Rowley died in 1806, two months before Bligh arrived, when Eliza was two years old.

The celebration of 26 January as “Anniversary Day” was a creation of emancipated convicts who wanted to celebrate their new life in Australia.

I have at least eight convict ancestors, including Lord and Selwyn. All of them, without exception, had a better life in Australia than they would have had if they had stayed in England. This is particularly true of the six who were transported between 1791 and 1803. Lord became a magistrate and successful entrepreneur and married another convict, Mary Hyde. Selwyn struggled with money after she was “widowed” but lived into her seventies. My ancestor, George Barnett, a teenage orphan pickpocket, married another convict, Hannah Manley. They had seven children. George owned a house in The Rocks and ran a carting business. Mary Brown, a diminutive “lady of negotiable virtue”, was sentenced to death for hitting a client over the head and robbing him, but her sentence was transmuted to life transportation. She married William Goodwin, a weaver who had been transported for stealing a side of beef. Goodwin had been on The Pitt too. He became a soldier in the Loyal Association (a civilian militia) of which Rowley was commandant. He then became a respectable constable for twenty years.

In the early colony, there was no sharp division between officers, settlers and convicts. When Bligh arrived in July 1806, his mission was to close down private enterprise, stop the sale of “grog”, and re-establish New South Wales as a penal colony. He was horrified to see that the officers and the convicts were so intermingled.

Bligh swiftly managed to annoy almost everyone, including Johnston; John Macarthur, the powerful and splenetic former Rum Corps officer; and Lord, whom he placed in gaol for questioning his decisions about Lord’s trading ship.

In October 1807, Johnston—otherwise known for his pleasant, easy-going manner—wrote to the military secretary of the Duke of York, complaining that Bligh had interfered “in the interior management of the Corps by selecting and ordering both officers and men on various duties without my knowledge; his abusing and confining the soldiers without the smallest provocation and without ever consulting me as their commanding officer; and again, his casting the most unreserved and opprobrious censure on the Corps at different times in company at Government House.”6 Bligh made himself very unpopular with the New South Wales Corps.

Bligh’s final mistake was to charge Macarthur with an offence relating to one of his ships:

Macarthur was arrested and released on bail of £1,000. Macarthur immediately demanded that Judge-Advocate [Richard] Atkins repay a debt he had owed Macarthur for 15 years. Atkins, a non-lawyer, was notorious for his poor legal knowledge, irresolution, drunkenness, and failure to pay debts. Bligh and Atkins relied heavily on legal advice from George Crossley, a former lawyer who had been transported for perjury, because there were no free settler lawyers in the Colony.

The Court of Criminal Jurisdiction was comprised of Judge-Advocate Atkins, and six military officers, who were supposed to confer over criminal verdicts. However, when the court met on 25 January 1808, the officers assigned to Macarthur’s trial (all members of the New South Wales Corps) refused to recognise the Judge-Advocate’s authority, or to swear him in, and the trial could not be completed. Macarthur abused Atkins for failing to pay his debts, and also challenged his authority. Upon Atkins’ and Crossley’s recommendation, Bligh charged the officers with treason (a capital offence).7

Johnston might have refused Bligh’s summons to appear at 9am, but he was well enough by 4pm on 26 January 1808 to order Macarthur’s release, although he had never previously been aligned with Macarthur.8 Macarthur then wrote a petition seeking that Johnston remove Bligh, on the basis that “every man’s property, liberty, and life is endangered” and presented it to Johnston. At first, it was only signed by six people, including Macarthur, Gregory Blaxland, John Blaxland, James Badgery, James Mileham, Nicholas Bayly and one S. Lord (the only emancipated convict to sign). Bligh’s dyspeptic note on the petition states that it was signed by the above seven individuals, but “upwards of one hundred other inhabitants of all descriptions, some of whom are the worst class of life”9 signed it thereafter.

Johnston marched on Government House and put Bligh under house arrest. He later claimed that he wished to prevent Bligh from being killed by angry soldiers.10 Bligh remained under house arrest until 20 February 1809, where he escaped and commandeered a ship called The Porpoise in Sydney Harbour. Eventually, Johnston was recalled to England and court-martialled. He was found guilty but his punishment was the most lenient possible, and he returned to Australia. Governor Lachlan Macquarie took control of the colony in 1810; he also brought a regiment with him.

Michael Duffy explained in an article in The Sydney Morning Herald that the Rum Rebellion was not about grog but was about the nature of the early colony:

…it was the culmination of a long-running tussle for power between government and entrepreneurs, a fight over the future and the nature of the colony. The early governors wanted to keep NSW as a large-scale open prison, with a primitive economy based on yeomen ex-convicts and run by government fiat.

In contrast, a growing number of entrepreneurs wanted to build a vigorous economy, and sought political influence for themselves (as they would have had back in Britain). So the rebellion is important as the first major crisis in the fight between government and capital in Australia.

In any case, “Anniversary Day” celebrations lived on, with a select group of people of non-elite background. In January 1817, Isaac Nichols, another former convict and the colonial Postmaster, advertised that he was holding an “Anniversary Day” dinner party. Nichols was married to Johnston’s step-daughter, Rosanna Abrahams.

In 1818, Macquarie declared “Anniversary Day” an official celebration for New South Wales. Official “Anniversary Day” dinners were held from 1821 to 1846, in which a select group of men, such as Lord and William Charles Wentworth were involved. By the 1840s, however, celebrating convict ancestry was increasingly déclassé. In 1837, 37.7% of the population of New South Wales were convicts, but by 1847, this proportion had dropped to 3.2%.11 Lord himself stepped out of public life so that he did not taint his children’s prospects.

26 January has always been controversial, for different reasons, and its popularity has been subject to ebbs and flows. I was fascinated to discover the convict origins of the celebration. Whether that date is kept for Australia Day or not, the events which occurred on 26 January profoundly shaped the country we are today.

The memory of the just is blessed: but the name of the wicked shall rot.

King James Bible, Proverbs 10:7

I am not a “hot take” person, and it is difficult to know what to say in the wake of a tragedy like the massacre at Bondi Beach on 14 December 2025. It seems that the perpetrators—I’m not going to mention their names, because I do not believe that they deserve to be given that honour—deliberately targeted people who were attending a Chanukah by the Beach event at Bondi Beach. Chanukah is the Jewish Festival of Lights, where, for eight days, Jews light a candle in the Chanukiah or Chanukah menorah. What a horrible irony it is to have lights snuffed out on such a day!

Despite my fear of “hot takes”, it seems remiss of me to let this event pass without saying something. First, may the memory of those who died at the hands of the perpetrators forever be a blessing. My condolences to the families of the deceased, and may those who were wounded heal as well as they can. My thoughts are with everyone who was injured, with the Australian Jewish community, and with all those Australians who are utterly dismayed and heartbroken that this has happened in our nation.

I have family members who live near Bondi—one was near the massacre when it occurred, but he was mercifully unharmed—and I love that beach. Some of my ancestors are buried in Waverley Cemetery in Bronte, overlooking that marvellous emerald sea, flecked with white waves.

Anyone who is a long-time reader of this Substack knows that I have a long association with the Jewish community, although I am not Jewish. Earlier this year, my mother and I discovered that our ancestors had the same attitude, including a brother of one of our ancestors. His name was John Rowley and he, too, is buried at Waverley Cemetery.

John was listed on 28 October 1854 as having made a £1 donation to “the Starving Jews in Palestine”. Further research disclosed that John’s son, George Rowley, a lawyer, had already donated 10 s on 25 September 1854. Moreover, the list of donors in the Sydney Morning Herald indicated that a substantial proportion of the donors to this cause were not Jewish. What had prompted these two men (and many other people) to donate such sums? This discovery led my mother and I to a fascinating and moving journey into the relationship between Jewish and non-Jewish settlers in Sydney in the 1850s, giving insight into how some non-Jewish Australians valued their fellow Jewish Australians, and we wrote a paper about it. It seems the right time to remind people of that relationship.

These non-Jewish Australians had donated to the cause of “the Starving Jews in Palestine” after a meeting held by prominent Australian politicians seeking aid for Jews. None of the politicians who spoke at this meeting were Jewish: they were Christians of various denominations. However, their words were distinguished by a respect for their fellow Jewish Australians, and a desire to ensure that Australia was not divided by religious sectarianism, but united by humanism.

Here, I reproduce in full the speech of Sir Henry Parkes, four times Premier of the Colony of New South Wales, known as the “Father of Federation”:

The Jewish residents of Sydney shared largely and justly in the respect of their fellow-citizens, and a time like the present alone could bring out the warmth and extent of that feeling of respect. The spirit of commercial enterprise which they displayed under adverse circumstances, and their glorious martyrdoms for their ancient faith in times past, were still visible in the Jewish race in the ability and energy with whom they carried on their various pursuits, and assisted to advance the useful arts of civilized life, and in their religious zeal, unostentatious charity, and unbending social virtues. And all these excellent qualities distinguished the Jews of this community.

With regard to the sufferings of the Jews in Palestine, which had called them together in that meeting, the miseries endured had been described in the published addresses so forcibly and eloquently that it was impossible for them not to respond to call for relief. Those miseries almost equalled in their severity those of former times.

But after that frightful siege when, under the banners of Titus, it was thought that the Jewish nation was exterminated by death and slavery, we are told in history this remarkable people, by their skill and industry in commerce, their literary treasures, and their high devotional feeling, endured the the wretchedness of exile with a fortitude and a steadfast attachment to the land of their forefathers which no other people could have exhibited. Scattered over the face of the earth, the Jews were everywhere known by these virtues, and in their present trials they had a strong claim on this community, which, he felt assured, would be cordially and promptly acknowledged.1

Please note, I am not saying that Parkes was perfect in all regards, or entirely without bigotry or fault. I have noted that some academics seem to think that we should only listen to voices from the past if they comport entirely with current progressive values. This is impossible. People are products of their times, and all of us have expressed regrettable opinions at times, or have done regrettable things. No one is perfect. History may judge all of us as wanting, and it behooves us to have humility in the face of this. I cannot presume that I am on the right side of history. I can only hope.

Nonetheless, it is important to recognise that modern Australia is built on distinctly humanist lines, designed to reduce sectarian and religious conflict. The conflict in the early Colony of New South Wales was not between Jews and Christians, but between Catholics and Protestants. It is no accident that another of the speakers at the event seeking donations for Jews was the Venerable Archdeacon John McEnroe, an Irish Catholic who sought to tamp down sectarian conflict and build common cause between people.

Among other things, McEnroe said in his speech:

It was unquestionably the duty of every human being to assist his fellow creature in the hour of his distress, be he Jew or Gentile: for all were created by the same God—and when a man is in want, none should inquire what creed, or country or complexion he is of. Every person was aware of the high encomiums passed by our Saviour on the Good Samaritan, who, when he met the poor man, robbed, beaten and suffering by the way, did not enquire whether he worshipped on Mount Gerasim or on Mount Sion—whether he was a Jew or a Samaritan—whether he believed in all of the Old Testament, or in the Pentateuch alone—but he relieved him at once; pouring oil upon this wounds, and putting money in his purse to relieve his necessities. Like the good Samaritan, then, they were not to enquire what was the creed of the sufferers, but as fellow-creatures, to relieve their distresses at once.

He could bear ample testimony to the generous and liberal manner in which the Jews of Sydney contributed for every charitable purpose: the funds of the Infirmary, Dispensary, and all other charitable institutions in this city, gave evidence of their support. And when his own fellow-countrymen in Ireland were suffering the distresses arising from want and famine [the Potato Famine], the Jews of this colony came forward and contributed most liberally for their relief, and he now, in his turn, felt it his duty to raise his humble voice in aid of the suffering Jews of Palestine.

There was another consideration why the call on the present occasion should be generously responded to; the Jews in every Christian country where they had sought refuge, had been deprived of their civil rights and privileges. They could not wipe off the Statute-books the unjust laws that fixed civil disabilities upon the Jewish race, but they should, if possible, endeavour to clear of part of the long score they owed, and to repay the debt which their forefathers contracted against them. It was once his great pleasure to be in association with the Catholic Bishop of Charleston (Dr. England), who took an active part in repealing the civil disabilities that once pertained to the Jews in the State of Maryland. That was the first time for ages in (1824) which the Jews were admitted to the civil rights and privileges of their fellow-men of other persuasions.2

Australia is not perfect, nor can it ever be. In my very mixed background, I have Indigenous ancestry, along with many convict ancestors. They all had very hard lives. However, in our paper, my mother and I noted that John Rowley and his friend Bob Nichols3 worked not only to help Jewish Australians, but to help Indigenous Australians. As a young man, John Rowley catalogued the Gamilaroi language and learned from these people. If there is an Australian history I want us to reach back to, it is this.

As I said in an earlier post, too much politics these days is the politics of division: pointing out how we fall into different categories, and calling out problematic behaviour, rather than recalling what unites us as human beings. This is not the Australia I want. We were founded on anti-sectarian, humanist values, even though the people espousing these principles may not have been perfect in all regards. As my mother and I conclude in our paper: “Jews have always been part of Australian history since colonisation, and, at times, Jewish and non-Jewish relationships in Australia were strong and affectionate.” There is no better time to recall that history than now.

What am I? I am Australian. It matters not whether I am Jewish, Muslim, Christian nor any other religion, nor what other characteristics I may or may not have. To quote Walt Whitman, “I am large, I contain multitudes.” I cannot be constrained by attempts to confine me to identitarian boxes. What matters is how I behave towards my fellow Australians.

I have been immensely moved by the stories of bravery from Australians in the wake of the Bondi Massacre, including Boris and Sofia Gurman, who almost stopped the massacre before it began, and lost their lives as a result of their bravery; Reuven Morrison, who advanced toward the gunmen throwing rocks and was killed; fourteen-year-old Chaya, who sheltered two small children under her and was shot; Ahmed El Ahmed, a tobacconist who bravely disarmed one of the gunmen and was shot; and the police officers who approached the shooters, with two grievously injured.

The Australia I want and love is an Australia which embodies the values of tolerance, where people can have a religious celebration by the beach without being attacked and killed.

Let this post be a reminder of who we were, who we are, and who we want to be.

In most ancient European societies (Greek, Roman, Teutonic, Celtic and Scandinavian cultures, among others) a domestic animal or thing which caused someone’s death or injury had to be given to the victim or the victim’s family, to allow retribution to be exacted on the animal or thing, or to accord some kind of reparation. An item which caused someone’s death became tainted and became known as a ‘bane’.1 The giving up of a harmful item or animal was known as ‘noxal surrender’, from the Latin noxa, meaning ‘guilty body’. Please note the elision of animals and things in this rule. In Roman law, people, things and animals could all be categorised as ‘things’ for which another could be held responsible.

We have records of the Ancient Greeks punishing both animals and inanimate objects which caused injury or death (including spears and statues). Pausanias describes a case where a statue of a famous Olympian athlete, Theagenes of Thasos, killed a man.2 Theagenes’ rival had been in the habit of visiting the statue at night, and whipping it, but one night, the statue fell on the man and crushed him. The man’s sons then sued the statue, which was exiled by being tossed into the sea. However, the land then became barren, and the Oracle of Delphi advised that it had to be restored. Luckily some fishermen were able to recover the statue in their nets, and restore it.

Roman law made owners liable for the harm caused by animals and slaves, and even sometimes, the parents of children. In relation to slaves or sons-in-power, the owner or paterfamilias respectively had to pay compensation or surrender the wrongdoer into debt bondage.3 Debt bondage was abolished in the later Roman Republic.4 In relation to animals, the owner of a domestic animal who had injured a person was obliged to either surrender the animal (noxae dedere), or to pay compensation for the damage (pauperies). Initially, surrender of the animal was the usual remedy, but later, damages were regarded as a preferable remedy. When an animal caused harm, for the owner to be liable, the action of the animal must have been out of character, and not because it was in pain.5

The origin of the English law of deodand likely go back to Anglo Saxon times, perhaps with some Biblical influence as a result of the provisions in the Book of Exodus about ‘goring oxen’.6 In the Book of Alfred, there were provisions for the noxal surrender of trees: if a tree fell on a man and killed him while it was being felled, the wood was to be given to a victim’s family.7

Sutton argues, however, that there is little evidence of the uses to which the deodand was put before 1194.8 In any case, the law of deodand was taken up by the Norman conquerers of Britain and the monarchs thereafter. Typically, if a person died, the coroner would determine what thing or animal caused the death, and demand that it be forfeited, and also cause the owner to pay the value to the state, where it was to be applied for general charitable purposes,9 or sometimes for the benefit of relatives of the person killed or other poor people.10 A jury of twelve locals assessed the value of the thing which had caused the death. Of course, there was always an issue as to what precisely caused the death, and there was a suggestion in some commentaries that the cause must have been in motion in some way, which allowed juries some leeway in determining the cause.11

Things which were subject to deodand included not only animals, particularly horses and pigs, but also cauldrons, boats, ladders, bowls, carts, wheels and rope.12 I highly recommend this post on the medieval deodand on the Legal History Miscellany blog by Professor Sara M. Butler (whose work I have consulted on other matters of legal history):

Part of the problem, of course, is that there was no law of deodand clearly spelled out for medieval coroners and their juries to implement. The one stipulation that appears in both the legal treatises and the legal record is that movement matters: omnia quae movent ad mortem sunt Deo dandum (“all things, which while in motion cause death, are to be given to God”). While this may seem a minor stipulation, it made an enormous difference in terms of exactly what was eligible for forfeiture. To offer an example: an inquest, dated 3 Sept. 1377, into the death of William Wanter of Stoke Goldington (Bucks.), recounts how the deceased went to the fulling mill at Stoke Goldington on the River Ouse and was killed there by the mill, his body later found lying in the water by his wife. Rather than pronounce the entire mill deodand, the inquest jury instead narrowed their sights on the (unspecified) moving part, which they appraised at 3s. For the miller, this declaration meant the difference between an oppressive fine for unsafe conditions at his mill versus the loss of his livelihood altogether.

Compassion is apparent also in the jury’s verdict in an inquest dated to 28 Aug. 1386 over the body of Maynard Fanyeheline, a ten-year old German boy living in Boston. The boy was epileptic. While standing onboard a ship called the Mary Stantem at the port in Boston, he suffered a seizure, causing him to fall from the ship. The ship was lying between some rocks, such that when he fell, he hit the rocks and smashed his head. He did not die immediately – rather, he languished for two days before the injury finally took its toll. In this instance, the jurors could very well have declared the ship deodand and had it confiscated; instead, they placed the blame for Maynard’s death on the rocks, assessed at 4d.

The jurors’ determination in the death of Maynard Fanyeheline hints at their admirable creativity in implementing the law to prevent the deodand from impoverishing fellow Englishmen and women. Something similar is evident in the 1378 inquest into the death of Thomas Ballard of the parish of Clyve (Kent). The shipman was “carelessly standing upon a manure heap” on Billingsgate wharf, trying to unfasten an empty boat called “cokbot” moored there, when the heap collapsed inward. Thomas was thrown into the Thames and drowned. The jury declared that the boat did not move throughout the process; thus, it was the bottom of the manure pile that was really to blame, and it had no value worth confiscating.

Of course, people called for the deodand to be abolished—it was particularly deleterious to carriers, such as carters and ship owners, and incentivised people whose items had caused the harm to flee or try to hide the damage—but as Butler goes on to explain, it advantaged the monarch to keep the deodand:

Petitions presented in the House of Commons demonstrate that the seizure of goods as deodand was disastrous for trade relations. In November of 1381, a petition showcased concerns about foreign merchants and their willingness to come to England to trade. For them, the deodand was a bizarre custom – nothing like it existed anywhere else in Europe – and they were sometimes reluctant to take on the added risk that trade in England involved. As the petition explains, foreign merchants needed to be treated amicably – and the forfeiture of their ships through the deodand did not fall into that category. The plight of the Fredeland, a Hanseatic ship from Eastland, demonstrates just how risky trade in England might be. The Fredeland was anchored at the port of Great Yarmouth (Norfolk), when “certain men floating carelessly by night in a boat ran upon the cable thereof and were drowned.” As the complaint heard in Parliament recounts, the merchants aboard the ship knew nothing about what had happened. Nor was their behavior at all reckless or irresponsible: it was merely an accident. And yet, the ship and all its contents were seized as deodand. The appeal before Parliament held in favor of the Fredeland: they declared that the ship should not be held for deodand.

Parliament also expressed numerous concerns about the deodand and its impact on domestic shipping. In 1377, they reported that many English subjects have been “greatly injured, and many of them ruined, because their ships and boats have many times in the past been forfeited to the king and to other lords of franchises” through deaths by misadventure. And because of the forfeitures,

said lieges have no means to keep ships, or invest their money in the making or repair of the same, as they did in the past, to the great reduction of their fleet and harm to the land.

Thus, the House petitioned the king to abolish the custom, at least as it applies to ships. His answer: “The king will readily do that for all who wish to plead theron in particular, saving always his regality.” That is, he would not eliminate the custom, but he might consider waiving it, if a ship’s owner complains sufficiently.

In 1381, Commons again complained that if the king did not modify the forfeiture of ships and vessels on the sea and in fresh water by way of deodand, he will see the consequences of his actions. Deodand “contributes greatly to the reluctance of men to build new vessels, and if it endure it will destroy the fleet forever.”

Finally, in 1399, Commons adopted a new tack. Their complaint focused on flat-bottomed boats, used to ship wares up and down the river Thames. Noting the vast range of accidents involving these boats, “through the breaking of the cable, rope, sprit, or mast of a flat-bottomed boat,” resulting in forfeiture as deodand, the complaint explains that no one dares make flat-bottomed boats anymore,

to the great detriment of the lords and commons of the aforesaid realm, and this is a major reason why victuals and various other commodities are dearer, both in London and elsewhere in the country, because of the lack of flat-bottomed boats to transport them.

They respectfully requested that in the future, such ships not be subject to forfeiture.

The crown’s response was as one might suspect: silence. Why give up such a lucrative privilege? It made more sense to keep the privilege in place and simply waive it when seizure of a ship as deodand might damage international trading relations or enrage a loyal servant. Moreover, doing so only emphasized the king’s reputation for mercy, painting him the magnanimous lord who puts his subjects’ needs before his own.

The deodand was only abolished in the nineteenth century, in both English and Australian law. Railway accidents were central to the abolition of the deodand, because nineteenth century coroners and juries tried to use the deodand to deal with the shortcomings of the common law inability to compensate for injury causing death. The final straw was the Sonning Cutting Railway accident in 1841, on the Great Western Railway.

On 24 December 1841, a train consisting of a locomotive, the Hecla; a tender (a carriage carrying fuel for the boiler); three third-class passenger carriages (carrying mainly working men returning from London to their homes for Christmas) and heavily laden goods waggons went through Sonning Cutting, near Reading in Berkshire. Unfortunately, in the early hours of morning before dawn, the train derailed, after it ran into soil which had slipped onto the track at some time in the night, after heavy rains. The passenger carriages were crushed between the tender and the goods waggons; one immediate recommendation was that passenger carriages and heavily laden goods waggons should no longer be coupled together. Eight passengers died at the scene and seventeen were seriously injured, one dying later in hospital, necessitating a second inquest.

At this time, the relatives of the deceased passengers could not sue at common law. A claim in tort died with the victim in whom it vested and did not survive for the benefit of the estate (actio personalis moritur cum persona), even if the tort caused the death. Moreover, the death of a victim was held to cause purely emotional and pure economic loss to their relatives, for which damages could not be recovered.13 This meant that relatives were in a worse position if a victim died immediately as a result of a tort, than if the victim survived but was badly injured. Obviously this situation was unjust.

The solution coroners and juries had developed to deal with these accidents was to deodand the trains which caused the injury and to try to petition the local lord to distribute the proceeds to the families of the deceased. At the two inquests, deodands of £1,100 (equivalent to £134,900 in 202414) in total were made on the train engine and the trucks, payable to the lord of the manor of Sonning. In 1846, the Parliament of England and Wales abolished the deodand and passed Lord Campbell’s Act, to allow relatives of those killed to sue for damages.15 The New South Wales parliament followed suit and abolished the deodand in 1849.16 And so, the legal oddity that was the deodand passed away into history.

Regular readers may note I have not written many posts lately. I have about fifteen unpublished, unfinished posts. They will remain unpublished. No one wants to read posts written when I’m miserable and angry. Well, no, that’s not true. Actually I could probably build a huge audience! But that’s not what I want. For people who tell me that I let it all hang out: no, no, you haven’t seen unfiltered Katy. Let’s not go there!

People love polarisation, and egg on authors to more extreme positions: that’s how you get audience capture. However, I am not writing this blog to get a huge audience or to further polarise people. I’m not even quite sure why I’m writing it, except to think my own thoughts through to the end, to share interesting things I find, and to (hopefully) make you think.

A significant reason for my recent misery is the polarisation I’ve seen in broader society, and particularly in academia and on campus. People take radical, entrenched positions, and anyone who disagrees with them is automatically in bad faith. And if you believe that anyone who disagrees with you is evil, you will not listen to them and dialogue is impossible. This seems to me to be inimical to the scholarly mission. We learn through discussion with others.

Another reason I have been depressed is because I continue to feel that academic institutions are foundering. I note that two government reports in Australia (here and here) have recently concluded that there are huge issues in university governance. I concur. As managerial class grows, and is paid more, the student and staff experience seems to just get worse.

However, I remain unconvinced that any of the proposed reforms will fix the underlying problems. In any case, as my colleague Emeritus Professor Ian Ramsay notes, some of the proposed solutions are not consistent with one another. Lessening the reliance on management consulting firms, and changing the way the upper echelons operate, is a start, but only a start. Greater transparency is also really important.

But there are much deeper problems, created by the bureaucracy of the modern academy and the incentives which guide our research and priorities. As Charlie T. Munger has said, “Show me the incentive and I’ll show you the outcome.”

Bureaucracy and the principal-agent problem

I teach private law, an area where it is increasingly difficult to find other lecturers. Many of the colleagues who might help me co-teach these subjects are going back to practice, and I understand why. Although I absolutely love the teaching and research, for the past few years, I’ve felt as though the kind of work I do might be valued more by practitioners. Perhaps it’s no surprise that we have a succession problem in private law academia across the globe. There are not many young private law academics coming up through the ranks.

For many problems which arise during the teaching year, these days, the first port of call is “online self-help”, or some kind of communal email or help desk, for both me and my students. The number of students increases, while the support for lecturers who teach large subjects falls. The students become unhappy. Meanwhile I receive complaints about matters I can do nothing about, all accompanied by a background burden of online administrivia and tortuous training modules which are more about signalling that “something has been done” than about anything else. It is disheartening.

Who bears the consequences of the way in which the university is managed? The answer is the students, the administrative staff, and me.

Who made the decisions which placed me in this position? Bureaucrats within university leadership who earn three times what I do.

What happens if the decisions which university bureaucrats made were disastrous and made things worse for both staff and students? Nothing. Let’s suppose that their KPIs simply required them to “streamline and centralise administrative processes” and “increase EFTLs.” Tick! ✅ They met their goals!

For the uninitiated, EFTSL stands for “Equivalent Full Time Student Load”, and is a term used in the Higher Education Support Act 2003 (Cth), and defined in s 169-27 of that Act. The particular division in which this definition is present is Division 169, “Administrative requirements on higher education providers”.

Do you see why I am somewhat cynical about the prospect of government regulation fixing problems with higher education? It’s a very Australian solution—“regulate it within an inch of its life”—but in this instance, I believe that the bureaucratic hoops set up by government contribute to the problem. They cause university administrators to be more focused on ticking the boxes in the legislation so that they don’t get in trouble with the government, and less focused on… well, actually making things work for those at the coalface.

More fundamentally, the current governance structure sets up a situation of moral hazard. The people who make the decisions about the administration and governance of the university (namely, university bureaucrats) are not the ones who suffer the consequences if those processes go wrong (namely, students, lecturers, administrators who assist students and lecturers).

In economic terms, this is a principal-agent problem: the person who exercises the decision-making power and has all the resources is not the one who bears the risk if that decision goes wrong. Consequently, there is information asymmetry, or in layperson’s terms, a lack of a feedback loop. Bad decisions might be made, which make a university worse, and those who are responsible for making those decisions do not bear the risks of those decisions. Indeed, the consequences of those decisions may take years to come down the pipeline, by which point, the bureaucrats who made the decisions have likely gone elsewhere.

Large bureaucratic organisations also have other issues. A colleague and I were chatting privately, saying that among some right-wing commentators, there is likely a view that university bureaucrats are all “social justice warriors” with blue hair. In our experience, this is not the case.

What do bureaucrats want? They want a given problem not to be on their desk. And how do they achieve this? Take the path of least resistance. Give in to whoever shouts loudest, to get the problem to go away. The fact that this may not be ideal for the university is not to the point. The point is that the problem has gone away. Tick! ✅ This incentivises university bureaucracies to bend to the demands of obsessive people with axes to grind. Whoever has the shrillest voice often wins.

To be clear, I don’t blame bureaucrats for this. It’s both painful and tiring to stand up to difficult people, particularly if your institution doesn’t incentivise pushing back against them. It’s much easier to give in.

Lately, I’ve been thinking of the Japanese phrase, 出る釘は打たれる (deru kugi wa utareru): “the nail that sticks out gets hammered down.” Suffice to say, I feel that I’ve been hammered in the last few years for insisting that various problems within the university were not shoved under the carpet. It can be utterly thankless to stand up. Often, the nail that sticks out is regarded as the problem: a negative person who is not a team player, and who won’t just keep quiet like everyone else.

Several people have said, “Well, I guess you’ve learned your lesson: don’t stand up for others, because you’ll just suffer. Next time, stay quiet.” I don’t even know if I should write this post. Maybe I should just stay quiet and say nothing. All I’ve done is create a lot of trouble for myself. People say, quietly, “You’re so brave.” No, I’m not. I’ve simply got a possibly terminal tendency to think out aloud and question. I thought that was people wanted in an academic, but maybe it’s not, these days.

I’m not trying to be negative or difficult. I’m trying to be Reviewer 1: that person who makes your paper better by being critical and pointing out problems in a constructive way. Better you hear from me than end up pilloried in a newspaper. I love teaching and my students. I want things to work, and I want my students to have a good classroom experience.

Incentives: grants and sexy topics

Another reason why I do not think any governance reforms will succeed is because they do not get to the heart of the issue. The heart of the issue, in my view, is that government grants distort the academic mission.

This is not the intention of such grants. The intention is to fund useful research, and often, they do so. Many colleagues have produced excellent research using grant money. However, it means that universities focus on doing things which maximise their chances of getting grants, often to the exclusion of other core duties.

Teaching established subject matter or writing textbooks is not a way to get grants. The way to get grants is to publish like a maniac—“publish or perish”—and be able to present your topic in a way that is appealing and worthy of funding. As this post by Rob Kurzban indicates the incentives of academic publishing require two things:

First, to be published in a top journal, the work must be new. For example, publishing a replication of prior work is vastly more difficult than publishing new studies. This fact explains why replication has historically been so rare: there’s a very low payoff to the researcher. Many observers of science have wondered about this because in their middle school science classes, they were taught that the foundation of science is replication. The Royal Society’s motto, nullius in verba—take no one’s word for it—is testimony to the point. Science requires checking other people’s results.

Second, in the social sciences and the humanities, the focus of the rest of this essay, work is likely to be published to the extent that it is counterintuitive. If you send a paper to a top journal saying, people like sweet things, you won’t even make it to the peer review stage. The editor will send it back with a polite note that says, in so many words, my grandmother could have told me that. No news.

The same is the case in law. New theories and new analytical structures are rewarded.

Although the intention of the grants process is good, other incentives and flow on effects may also be perverse, as I have discussed. Certainly, the grant process adds to the need for a burgeoning bureaucracy.

I recently taught a Masters’ subject, but I was not teaching in my normal rooms on Level 6. In this other room, I spotted these cartoons on the wall. They were drawn by a former student: I’ve blanked out the name of the artist because the intention of this post is not to criticise the artist.1 Someone—maybe a human rights lawyer?—had colour-photocopied the cartoons, blown them up, and put them on the wall as paintings.

The grant, publishing and academic promotions processes incentivises academics to present themselves as superheroes, saving the world from evil. Saying, “I am going to promote legal theories which result in a more just society and save people from being oppressed” sounds sexy as hell, right?

Saying, “I am going to present a nuanced and balanced discussion of allowances for skill and effort in accounts of profit” does not sound very sexy. … Well, actually it really does sound great, to me, but I may be unusual. I hope it will be useful, but I don’t feel that usefulness is valued in broader academia. It’s the new and outrageous.

We do better in promotion and grant processes if we over-egg our puddings. I have started wondering if this contributes to the polarisation we see on campus. We want to be superheroes, on the side of Good, not Evil. Who wants to be a defender of Breach Man? Indeed, we can’t even be silent about his crimes: silence is violence. In some campus milieus, if you refuse to call out Breach Man vocally at all times—even if Breach Man is not relevant to the topic you’re discussing—you’re complicit in his wrongs.

I shouldn’t feel too sorry for myself: “first world problems.” I showed the cartoons to a friend who can never go back to his birth country, because he will be gaoled. The reality is that if you are a sticky nail in places ruled by authoritarian regimes, you and those associated with you will be hammered (and unfortunately, sometimes you will pay with your life). Despite this, my friend has a nuanced view of people who live under this authoritarian regime. He looked at these cartoons and said, “Anyone who believes that has never put themselves on the line.”2

I suspect that those who pursue people like my friend do not generally go around cackling, saying how evil they are. Indeed, I’m pretty sure that at least some believe they are utterly morally in the right: that they are saving their society from dangerous ideas imported from a hegemonic and racist Western society. I wonder if they see themselves as superheroes, and my friend as a traitorous Breach Man. Others are likely just keeping their heads down, doing their jobs, and trying not to think about things too much (see the comments about bureaucracy and living a quiet life, above).

For me, one of the most worrying possibilities is that I may commit a wrong, even though I think I am doing the right thing. I do not have the arrogance to believe that I am a superhero, or that I own morality, and that I know better than anyone else how to organise a just society. It behooves me to be humble and to question what I do, and take feedback from those who think differently from me, because it is only in that way that I can learn and grow. It is really important for academics to be able to admit that they were wrong.

We need to reset academic incentives. We need to ensure that teaching and custodianship of existing knowledge is valued as much as new research and theory; that it is seen as virtuous to admit error; and that free exchange and respectful discussions are incentivised, not polarised rants. It is only when this occurs that the problems with academic institutions will be resolved.

I’ve outlined where I think the lines lie in an academic context in an earlier post on this Substack, using the hypothetical example of a soccer-hating professor.]

If you aren’t from Australia or New Zealand you may be tempted to think of Anzac (Australian and New Zealand Army Corps) Day as simply a variation of Veteran’s Day or Remembrance Day—but for many Aussies (and Kiwis), it’s a little bit like Veteran’s Day combined with the Fourth of July or St. Patrick’s Day. It is a deeply patriotic holiday that many regard as a semi-sacred, particularly because we celebrate it on April 25 to mark the anniversary of the day in 1915 when Anzacs arrived on the shores of Gallipoli, Turkey to fight in a battle that would result in over ten thousand soldiers losing their lives. Like it or not, Anzac Day has become patriotic mythology.

To mark Anzac Day in 2015, Special Broadcasting Service (SBS) reporter Scott McIntyre took to Twitter and wrote: “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan.” To make matters worse, he also asked “if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered.” Then to round things off he added that Australia and its allies perpetrated the largest single-day “terrorist attacks in history” by dropping atomic bombs on Hiroshima & Nagasaki.

Happy Anzac Day, Australia.

[Then] Australian Prime Minister Malcolm Turnbull, who was Communications Minister at the time, tweeted back to McIntyre that his tweets were “despicable remarks which deserve to be condemned.”

The following day the media reported that McIntyre had been sacked by SBS News although he later settled an action for unfair dismissal against the network.

Then in 2016 in what was dubbed a “witch hunt by conservative extremists,” La Trobe University temporarily stood down academic and LGBT anti-bullying advocate Roz Ward after she privately posted to Facebook a picture of a rainbow flag with the text: “Now we just need to get rid of the racist Australian flag on top of state parliament and get a red one up there and my work is done.” The reference to the “red one” was understood to refer to the socialist flag, as Ward is an active member of the Socialist Alternative. She was also the prominent co-founder of the “Safe Schools” program, designed to educate children about LGBT issues.

The backlash was swift but so was the defence of Ward by the National Tertiary Education Union (NTEU), who released a statement saying, “This NTEU branch stands firmly against such modern-day witch-hunts and calls on La Trobe University management to publicly state their support for Roz’s ongoing employment with Safe Schools Coalition.”

Yassmin Abdel-Magied also faced calls for her sacking from the national broadcaster after she posted on Facebook on Anzac Day 2017: “LEST. WE. FORGET. (Manus, Nauru, Syria, Palestine …).” (Manus and Nauru are Australia’s offshore asylum seeker processing centers). Abdel-Magied was not fired but instead the ABC program she hosted was axed.

But in Australia witch hunts are bipartisan. Conservative indignation for leftist ideas generates much the same treatment. In 2017, Dr. Pansy Lai appeared in a television advertisement for the ‘Coalition for Marriage’ calling for a vote against same-sex marriage. “When same-sex marriage passes as law overseas,” she said, “this type of program [the Safe Schools program] becomes widespread and compulsory.” Dr. Lai was threatened, and a petition was set up to demand that she be deregistered by the Australian Medical Association.

Earlier this year [April 2018] Australian rugby superstar Israel Folau wrote on his Instagram account that gay people would go to hell “unless they repent of their sins and turn to God.” He later published an anti-gay sermon on Twitter. This resulted in calls for him to leave Rugby Union, and speculation that Rugby Australia will not renew his contract.

‘Sack Israel Folau’: Liz Ellis urges Rugby Australia to act over ‘homophobic’ comment https://t.co/JuuUsnjwybFolau was asked the Question and he replied - Ellis should go not Folau

— Stephen Russell (@SJWR) April 8, 2018

Sometimes it’s clear to see why someone’s controversial comments have an impact on their employment. For example, the former Victoria police assistant commissioner resigned after it was revealed he had made racist and sexist comments online under a pseudonym, including about colleagues and the commissioner. Given that he was the head of the police’s ethical standards body, his own ethics and neutrality were clearly called into question. But often, the offensive conduct is private and has nothing to do with how people perform their job.

Should a doctor be able to practice medicine because she opposes same-sex marriage, or should a reporter be able to keep his job if he criticizes Australia’s military history on Anzac Day? It’s my guess that depending on their politics, many Australians would passionately say yes to one but no to the other. So no matter what our political position when we express controversial views, whether from the left or the right, we count on offense, backlash and calls to get that person sacked. When we enter the realm of controversy, both sides want retribution and one of the most damning things you can do to a person is take away their livelihood.

Pitchfork-wielding mobs have always existed, but never have they been able to form in a matter of minutes and get people fired within hours. The speed of outrage on the internet moves so quickly that we could tweet something at the breakfast table before heading out the door for work only to find that when we arrive we don’t have a job. Whether we like it or not we are all governed by this rapid-growth wrath and the possibility that expressing our honest opinions on social media could destroy our careers.

As a practicing lawyer, I’m interested in looking at how social media is changing our ideas of justice and tort law. We live in a time when the dialogue itself can be the severest punishment we can inflict.

When people attempt to resolve disputes on their own, lawyers call it self-help. Self-help is all that exists in societies which lack an overarching legal system to determine rights and duties. Examples of self-help include something as benign as cutting off the branches from your neighbor’s tree when they overhang on your fence. However, self-help may also include trespassing on private property, or even assaulting a person. It is for this reason that the eminent textbook author Percy H. Winfield observed, “self-help has always been reckoned as a perilous remedy owing to the stringent rules against its abuse.” In other words, when people take the law into their own hands, the courts only allow it if the conduct is reasonable and proportionate. At its worst, self-help leads to vendettas, public shaming, and mob-violence.

In societies lacking functioning legal systems, feuds founded on self-help can descend into vendettas. Jared Diamond in The World Until Yesterday: What Can We Learn from Traditional Societies? details his experiences in Papua New Guinea, where a driver named Malo accidentally strikes and kills a young boy named Billy. Diamond notes that in Papua New Guinea, drivers are allowed to flee the scene and head to the nearest police station because bystanders might drag them from their cars and beat them to death.

Adding to the tension in the incident Diamond describes, Malo and Billy were from different tribes and ethnic groups. In the event, the matter was resolved when Malo’s employer spoke to Billy’s father and offered to transfer food to Billy’s family, and gave a formal apology at Billy’s funeral. The first option with this kind of traditional justice is an attempt to achieve peace by compensation and negotiation, but if this doesn’t work, the second option is to seek personal retribution by violence, which tends to escalate into further retributive acts and then war. What is interesting about Diamond’s story is that the laws he describes are not an attempt to replace self-help but in fact work within the parameters of it.

While “an eye for an eye” may look bloodthirsty to us now, it was in fact an effort by ancient civilizations to forestall blood vendettas. In other words, the retributive response to an injury should be proportionate to the original injury, and the matter ends once proportionate retribution has been taken. Unlike Malo, the victims of a social media mobbing can’t flee. They can close their personal social media accounts, but they can’t stop people from calling, writing, emailing or campaigning against them. And we don’t have the capacity for peaceful negotiation in our modern global society, particularly when the mob is large, scattered and apt to expand exponentially.

My argument that social media campaigns are a form of self-help is at odds with the argument recently advanced by Bradley Campbell and Jason Manning in The Rise of Victimhood Culture. Campbell and Manning argue that social media campaigns to get people sacked are the opposite of self-help. This is because, unlike in the tribal Papua New Guinean context, they say that we have a comprehensive overarching governmental and legal system whereby we raise concerns with third parties to resolve disputes. Consequently, they assert that these situations involve “legal overdependency,” where rather than resolving their own disputes, people rely too heavily on an external third party.

Campbell and Manning deal specifically with disputes in the university context, where students bring claims of offensive behavior to university authorities rather than resolving them between themselves (which would be a form of self-help). They use the example of Nicholas and Erika Christakis, both of whom had to stand down as faculty-in-residence at Silliman College, Yale University, after students became offended by an email about Halloween costumes and then organized protests and petitions against the couple.

Nonetheless, there’s still a self-help aspect to these disputes. Typically, the third-party authority is afraid of the mob and accedes to the demands rather than making a decision based on principles of justice and the facts at hand. Decisions are not made based on the private law rights between the parties (what their employment contract states, or what wrong has been done). In fact, as Campbell and Manning outline, often these cases involve a startling lack of legal procedural protections.

Insofar as these decisions are said to represent legal decision-making, they don’t reflect the way law should operate in a liberal democracy. Every defendant is presumed innocent until proven guilty, all parties are accorded procedural fairness and entitled to know what accusations are made against them, and all defendants are entitled to a relevant legal defense. There is an absence of law here, particularly when it comes to social media and the quick retribution a social media mob can exact.

In fact, civil recourse theorists argue one of the aims of tort law is to prevent self-help as much as possible, particularly when it takes violent forms if people feel they’ve been wronged. Instead, courts vindicate the victim’s rights in a public forum. While social media inflames tensions, the law aims to remove emotion and passion from disputes. This was recognized by John Locke in his Second Treatise on Government, written in 1690:

…thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offenses which any member hath committed against the society, with such penalties as the law has established…

This is the way in which liberal civil society should be organized. We want our disputes to be resolved by impartial judges who do not take sides, who drain the emotion out of matters, because a society that uses self-help to resolve disagreements is a more dangerous and violent one.

Democracy is predicated upon the free exchange of ideas. You might say, “Ah, but that doesn’t include a right to be offensive, and to hurt others!” The difficulty is that “offense” is a subjective term, and what is offensive to one person may simply be a joke to another or have no impact at all. Occasionally during my teaching evaluations, a student will write comments indicating I’m a ginger-haired nerd. I’m not offended. I made peace with the fact that I have red hair, glasses, and a prodigious enthusiasm for academic topics.

In Campbell and Manning’s terms, my response is typical of a “dignity culture,” where the proper response to personal insults is to ignore them or rise above them. I may also have a touch of “honor culture,” where the proper response to a personal insult is to strike back physically, but I suppress that response as unworthy. I do not reflect “victimhood culture,” where a person’s status is predicated upon their ability to tick certain categories of disadvantage related to oppression and minority status (the more boxes ticked, the higher the status). I could fit into several disadvantaged boxes if I wanted to, but I have spent my life trying to overcome disadvantage, not being defined by it.

But I understand that it can be traumatic to be on the receiving end of online abuse aimed at having you sacked from your job. I’ve received it myself for expressing certain opinions in public, and I’ve recently seen others (both colleagues and friends) receive similar abuse. Entire topics are off-limits for public discussion for me because of the abuse I received in the past. After my experience, several people told me, “We think the same as you do, but we’d never say it publicly.” Goodness knows, many others may have similar doubts to me, but we’ll never know, and in the meantime social policy will be predicated upon a totally different set of assumptions.

Joseph Overton postulated that there was an ever-shifting window of ideas that are politically acceptable (the “Overton window”). I feel as if the Overton window of acceptable political ideas is shifting to polarized extremes, and views which I have long held (e.g., I prefer to judge people according to their conduct, not as members of the ethnic group to which they belong) may now be regarded as unacceptable on parts of both right and left.

In Private Truths, Public Lies: The Social Consequences of Preference Falsification, Timur Kuran explains why it’s less than ideal to have situations where there is widespread preference falsification—where people don’t say what they really think out of fear. First, widely disliked social structures may be preserved because no one is brave enough to say publicly that they, too, do not agree. Secondly, social structures which are predicated on false preferences are prone to sudden collapse once the majority realizes that no one else likes or believes in the particular thing which is being upheld. Finally, preference falsification distorts public opinion, public discourse, and human knowledge. If people cannot openly discuss their views, then certain views will not be explored or discussed, and the sum of human knowledge will be diminished.

Resentments may also fester in ways that are unhealthy, and which may erupt in unpredictable ways. And in the context of people being sacked for unpopular or offensive views or comments, employers will respond to those who make the most noise, regardless of whether the majority of consumers actually care about the issue. With all of this in mind, we need disincentives to stop a small group of aggressive people from policing other people’s opinions.

Moreover, it is important to recall basic labor law principles, and why it’s wrong to sack people for expressing political opinions that we do not like. Trade unions were the first to assert that workers should not be sacked because of their political beliefs or because of the people with whom they associated, and they continue to fulfill this role. My own union, the NTEU, rightly supported academic Roz Ward, mentioned at the outset of this piece as having caused offence by questioning the Australian flag. However, it is also standing up for Professor Peter Ridd, an academic who questioned the theory that the Great Barrier Reef is dying as a result of global warming. James Cook University sacked Ridd for alleged “serious misconduct,” but he is (again rightly, in my view) being supported by the NTEU, even though many union members would disagree with his position.

In this excellent post, UK labor lawyer Virginia Mantouvalou considers the broader issue of employees being sacked over social media posts, and notes there’s a legal inconsistency between protection of freedom of speech in the UK and rights against employers. She says:

The employer cannot police workers’ moral character, their political opinions or their preferences. The retention of someone’s job should not depend on the tabloid press and the effect of its (mis)reporting on employers’ reputation. At present, speech that is protected against state interference is not protected in the employment context against dismissal and other disciplinary action. This is disturbing.

Dismissal can be devastating for its effect on income, reputation, and social life, as the Strasbourg Court itself has recognized, and even on people’s health.

The last point is a really important one. Employment is the way people make a living, but it can also be important to one’s identity and social status. To lose one’s job, or even to be at risk of losing one’s job, is so devastating that it can lead to PTSD or even suicide.

In an Australian context, an employer who sacked an employee would be subject to the Fair Work Act 2009. It’s worth noting that McIntyre—the reporter who was sacked for his offensive tweets on Anzac Day—brought an action in unfair dismissal under this legislation, but not all employees are able to take advantage of such laws, or even make it past the loss of a single pay check.

There’s another issue here, too. Why do employers not stand up for an employee in the face of mob pressure? My own theory is that it comes down to “corporate branding” and the way in which an individual’s “personal brand” is thought to mesh with the employer’s “corporate brand.” In other words, companies want to be perceived by the public in a certain way, and if individuals behave in a way that doesn’t match the brand, they must be disposed of before the brand is affected. This is even if the individual’s offensive comment is made in a private context and is not associated with their employment.

This strikes me as a form of market failure. Universities in particular should not operate according to corporate branding. A better indicator of the strength and health of a university is the extent to which it allows rigorous dissent and discussion, not in how it micromanages opinions expressed by staff.

I’ve talked above about the legal relationship between employer and employee, but what about the social media mob? This is a little more difficult. However, there are several tort doctrines which may be helpful. The first is defamation, which prohibits communication to third parties of false statements that injure the reputation of a person. Importantly, the defamatory statements are presumed to be untrue, and it is for the defendant to prove that they are in fact true (or “substantially true” in Australia). Unsurprisingly, social media defamation cases are on the rise, not only in Australia but around the world. Recently, a south Australian judge held a man liable not only for his Facebook posts, but also for the comments on those posts which brought a commercial rival into disrepute. Damages were awarded for the loss of business which resulted. Consequently, if persons make or even just allow defamatory comments on social media which lead to a person getting sacked, they may be liable.

The other relevant tort doctrines are the economic torts prohibiting interference with contractual relations: inducing breach of contract, interference with contractual relationships, and conspiracy.

The history of these torts is odd, although it does show they’re long-lived and flexible. They arise from the action of per quod servitium amisit or “loss of services,” a common law action which arose in early medieval England. The feudal lord was held to own not only the services of his servants, but also the services of his wife. Injury to the wife therefore gave rise to damages for “loss of consortium.” The tort of inducing breach of contract was an offshoot of loss of services and arose in the wake of the Black Death after a third to one half of the population in Britain had died.

In response to the resultant labor shortage, the English Parliament passed the Ordinance of Labourers in 1349, followed by the Statute of Labourers in 1351. The Statute made it a crime to break an existing contract of service and attempted to fix wages at pre-plague rates. It was generally unsuccessful at achieving this aim and is thought to be one of the factors leading to the Peasants’ Revolt in 1381. The Statute allowed judges to discover a common law action preventing a servant from breaking a contract and moving to a new master.

The modern tort of inducing breach of contract arose from the case of Lumley v. Gye, where Lumley (the manager of Her Majesty’s Theatre) sued Gye (the manager of Covent Garden Theatre) for inducing an opera singer, Johanna Wagner, to breach her contract to perform for Lumley in order to perform at his venue instead. The tort of inducing breach of contract later became notorious as it was part of the private law armory used by employers against trade unions, along with the contractual doctrine prohibiting restraint of trade, and the tort of conspiracy. Thus, in Taff Vale Railway Company v. Amalgamated Society of Railway Servants the tort of inducing breach of contract was used to hold unions liable for losses which companies suffered due to striking workers. All these doctrines were ameliorated by statute in due course.

Importantly, the longevity and flexibility of these torts are suggestive. The tort of inducing breach of contract is rarely used and as the brief history outlined above shows, it has generally been used by employers, either to prevent employees from working for a rival employer, or to prevent unions from encouraging members to refuse to work for certain organizations. However, it could be repurposed to protect employees, and to disincentivize social media mobs.

Could someone like Scott McIntyre take action against people who called for him to be stood down from SBS? His employment contract was clearly cancelled as a result of social media outrage, and certain public people were on record as saying his views were unacceptable (including Malcolm Turnbull). Damage flowed from the cancellation of the contract, although it is not clear whether the contract was in fact breached by his employer (I’m not aware of what the terms were). However, causation might be difficult to show. There was a social media pile-on and thus it might be difficult to prove (a) which individuals made the call to sack the employee and (b) that the calls in fact caused the sacking. It might be a situation of a death by a thousand cuts, and it would be difficult to show exactly which cut caused the final demise, or whether the decision to terminate the contract was an independent decision by the broadcaster.

Secondly, defendants may try to argue justification, perhaps in terms of general societal norms against offensive conduct, or in terms of specific provisions in McIntyre’s contract (as noted above, we don’t know the terms).

However, if McIntyre could establish liability he could perhaps obtain an injunction restraining SBS from sacking him, or obtain damages from those who called for his sacking, reflecting the income and opportunity lost as a result of the cancellation of the contract, and perhaps aggravated damages for distress flowing from the cancellation. It is worth noting that courts in England, Australia and the U.S. would be less inclined to force SBS to rehire McIntyre in the event that the contract had already been terminated. Courts are reluctant to force people to work together once relations have broken down, although there is some Australian authority to the effect that the situation is different where an employee seeks an injunction against an employer.

Fundamentally, we have to stand against social media mobs who call for a person’s sacking simply because the person was offensive. Employers must make a measured decision on the basis of the legality of the situation. I’m not saying that a person can never be sacked on the basis of being offensive on social media (sometimes it is clearly right that a person is sacked), but I am saying that we should resist mobs and think about the position of the employee dispassionately. Private law may help us to challenge employers who buckle at the first sign of anger on social media; it encourages a measured view of disagreements.

We do not want a society where self-help becomes dominant, because in such a society, decisions are made in anger, and almost always result in some level of injustice. Moreover, it is bad for society if we cannot freely exchange ideas. Unfortunately, being open to different ideas means that sometimes you get offended.

When in legal practice and at law school, I was trained always to look at the other side’s argument and to take its merits seriously. This meant that I gained a better idea of the strengths and weaknesses of my own position. Sometimes it was unpleasant and uncomfortable to have my views challenged, but I grew and learned as a result, and sometimes I even listened and changed my mind.

I’ve said this before, but I’ll say it again. I have views. You may be able to discern what they are. I am more than happy to chat with you about them in an open and civil fashion.

I make it clear to my students: they do not have to agree with my views. I don’t presume that all right-thinking people agree with me; in fact, I know many very good people who disagree with me strongly.

I will not mark students down or humiliate them if they disagree with me, and in fact, an intelligent, civil challenge to my ideas is one of my favourite things. I love being made to think. There may be angles I haven’t thought about before. It’s how I learn.

As a lecturer, I have a duty of care towards all students. It should not matter what their background is, or what their beliefs are. I hope that my students can attest that I do care.

I mark assessment blind, so that I am impartial and fair. I try to give detailed reasons for my decisions so that they know how they can improve and why I made the decision I did. I try to treat everyone equally.

I was telling my husband about “my students” (talking about my JD students from last semester). My husband said, “But you’re only teaching Masters’ students this semester—” which is true. He continued, “—they’re not technically your students right now.”

I responded, “once you are my student, you are my student for eternity.” I am afraid it is true. You may become a Supreme Court Judge, but be warned: you are still my student first and foremost. And I will check in, even if I am not your lecturer any more, if I am concerned about you. I don’t care who you are, or whether you agree or disagree with me.

There have been rare instances when I have hoped that a student will not ask me to be an academic referee, because the student has been rude or unprofessional to me, and I would have to regretfully decline. So far, thankfully, I haven’t been faced with this. Even then, if the student were in trouble, I would help them.

If universities wish to welcome students from diverse backgrounds, they must also care for and support all students.

Obviously, there will be times when supporting all students will involve difficult choices. One group will demand that the university “pick a side” in order to properly express care for that group. They will say that if the university does not “pick a side”, they are failing to care. They may assert that the university must agree with everything the particular group says.

It is not the duty of a university to affirm our personal religious, political or moral views. The very point is that universities are—or should be—a place for open discussion of views, without fear of violence or threat.

University is a place for tolerance of different viewpoints, not for affirmation.

In my recent post, I argued that the Melbourne Branch of the NTEU should not have passed a strongly partisan motion supporting one side in the Israel-Gaza conflict.

The union chose to support only some members affected by a terrible conflict, and not others. They had a duty to look after all members, just as I have a duty to look after all students. With great regret and anguish, after seventeen years, I resigned from the union.

I feel like a broken record right now, but if you’re called on to make a decision in a contested matter, “picking a side” can be difficult. I’ve worked for a trial judge. It is not generally something to be done hastily, in response to submissions by the loudest and most partisan among us, simply because our heartstrings are plucked, or we are scared that we will be derided or threatened if we do not comply.

At common law, it is very rare for a court to judge a matter after only hearing one side of the story. Multiple opportunities must be given to affected parties. This is why going to court is not cheap.

A court will grant an ex parte injunction restraining certain actions only in very urgent circumstances. “Ex parte” means only one party turns up to court, with an urgent application for relief. Generally speaking, if the judge grants the injunction, it will only operate for a matter of days, and the matter will be called back before the court to hear from all parties (“inter partes”).

Why do judges do this? Making a decision after you’ve listened to only one side of the story can produce great injustice. Even with the best will in the world, the aggrieved party tends to interpret events through the lens of what is most congenial to them. Everyone does this. It’s called a “self-serving bias”.

It is necessary, therefore, to acknolwedge that others may have a different view of events, and to think carefully about a fair response. It’s rare that a complex, long-running dispute will have a simple, straightforward answer. If someone suggests that a straightforward answer is available for such a dispute, I’m on my guard. It’s possible, but it’s very unlikely.

I have never been comfortable coming to swift judgement (unfortunately this means I’m a slow marker). I don’t do “hot takes”. Sorry. If that’s what you want, go elsewhere. If I seem to come to a conclusion quickly, it’s generally because I have been thinking about an issue for years. That’s why I am interested in other views, even views which offend or deeply challenge me. I’m always thinking.

It is not my place as a lecturer to stand in judgement of my students’ political or religious beliefs, as long as my students behave in a professional and civil manner in class, and engage with the subject material I teach. I am their teacher, not the moral arbiter of their private choices or beliefs.

I do have a duty to ensure any disagreement in my class is productive, and provides learning opportunities.

At base, my role is to teach my students, and ascertain how well they understand the principles of private law, not to convert them to my way of thinking. What they do with their beliefs, and with the knowledge I seek to impart, is up to them.

As a lecturer, I want any student who is distressed by current events to feel comfortable explaining to me how they are adversely affected, without the student worrying that I am going to judge them or hate them simply because they have connections with one group or another. If students have connections with a country which is currently at war, they are likely to have lost friends or family members, or to know people who are under attack. I must be both compassionate and professional in such circumstances.

Maybe, if I were a global military policy expert, or I had expertise in international relations, I might be able to opine on what should be done in international disputes, but I’m not.

Of course I have private views, but they’re not straightforward, and I don’t pretend to know everything. While I have many areas of expertise—private law, comparative law, legal history, animal law—I don’t delude myself about my limits.

I realise this is no longer fashionable, but I choose to be guided by the idea that we all have a shared humanity. All I can do, in these terrible times, is to act with humility and care for people when I deal with them in everyday life.

I will always look out for my students, all of them, regardless of their backgrounds. It is my duty and my vocation.

This comes with an important proviso however. Artificial intelligence is a tool that carries with it risks as well as opportunities. Its use must take place therefore with an appropriate degree of oversight, and within a regulatory framework that ensures compliance with well-established professional and ethical standards if public confidence in the administration of justice is to be maintained. As Dias J said when referring the case of Al-Haroun to this court, the administration of justice depends upon the court being able to rely without question on the integrity of those who appear before it and on their professionalism in only making submissions which can properly be supported.

In the context of legal research, the risks of using artificial intelligence are now well known. Freely available generative artificial intelligence tools, trained on a large language model such as ChatGPT are not capable of conducting reliable legal research. Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect. The responses may make confident assertions that are simply untrue. They may cite sources that do not exist. They may purport to quote passages from a genuine source that do not appear in that source.

Those who use artificial intelligence to conduct legal research notwithstanding these risks have a professional duty therefore to check the accuracy of such research by reference to authoritative sources, before using it in the course of their professional work (to advise clients or before a court, for example). Authoritative sources include the Government’s database of legislation, the National Archives database of court judgments, the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales and the databases of reputable legal publishers.

This duty rests on lawyers who use artificial intelligence to conduct research themselves or rely on the work of others who have done so. This is no different from the responsibility of a lawyer who relies on the work of a trainee solicitor or a pupil barrister for example, or on information obtained from an internet search.

We would go further however. There are serious implications for the administration of justice and public confidence in the justice system if artificial intelligence is misused. In those circumstances, practical and effective measures must now be taken by those within the legal profession with individual leadership responsibilities (such as heads of chambers and managing partners) and by those with the responsibility for regulating the provision of legal services. Those measures must ensure that every individual currently providing legal services within this jurisdiction (whenever and wherever they were qualified to do so) understands and complies with their professional and ethical obligations and their duties to the court if using artificial intelligence. For the future, in Hamid hearings such as these, the profession can expect the court to inquire whether those leadership responsibilities have been fulfilled. (my emphasis added)

My understanding is that the algorithms for Large Language Models (AI programs) will inevitably produce hallucinations, because they put 2 and 2 together and make 5. The problem is that the misinformation produced by these models looks very convincing. However, the consequences of misusing AI in a professional context are very grave. At worst, as Dame Victoria notes, such conduct may (rarely) constitute the crime of perverting the course of justice. It may also constitute contempt of court, result in referral to the regulator, costs orders against the lawyers, and public admonishment by the court.

I made what I thought was a fairly uncontroversial point on a social media platform, as follows:

I plead with students not to use AI for tasks such as essay writing. Not only does the person fail to learn how to do important tasks themselves—the point of a degree is not to get good marks, rather to learn how to research and write—but there is also the risk that AI makes stuff up (“hallucinates”). It seems the King’s Bench is even less impressed. Present nonsense before a court at your peril!

Of course, I was immediately attacked by some non-lawyers as a fuddy duddy and a technophobe, and told that my role was to teach students how to use AI. It swiftly turned into a dispute between lawyers versus non-lawyers. I think part of the problem was that the non-lawyers believe the law can be easily described and encapsulated. No one who has worked in the law would believe this.

Fundamentally, the difficulties AIs have in describing the law reflect something important about human norms and laws. It is this: the law is made by humans. The law is not an algorithm. Law is an art not a science. It is something distinctly human: often contradictory, often confusing, and very difficult to capture, except with great practice. Very experienced lawyers will have different ideas of what the right answer is to a problem.

I am not denying that AI might be useful in some contexts, for some tasks that lawyers formerly undertook. As Dame Sharp observes, it might be useful in discovery (formerly the bane of young litigators and paralegals who had to inspect roomfuls of documents to work out what was relevant. Yes, I have been one of those unfortunates whose role it was to inspect documents).

As it happens, I have been chided for distrusting AI before. My distrust stems from the time a few years ago when I asked an early version of Chat GPT to write me an bio for a conference (I hate writing those things) and it billed me as Australia’s first female Asian-Australian private law professor. I could not stop laughing. I am not Asian: it’s one of the continents from which I have no discernible recent genetic heritage.

It is true to say, however, that I have written on the law of the Asia Pacific region, including not only Australia but also New Zealand, the Cook Islands, Hong Kong, China, Singapore, Malaysia and India. I suspect that the algorithm looked at the papers I’d written and the conferences I’d attended, added 2 and 2 and made 5. She writes on Asian law, she goes to conferences in Asia, therefore she is Asian.

I was told that AI had improved greatly from those early iterations, and that I should try it again. I tried to get it to write my bio again, and this time, it no longer hallucinated my ethnicity and took away the hallucination of a Clarendon scholarship to attend Oxford. Sadly, that hadn’t happened in reality. Chat GPT had certainly improved, it was true. It was now a useable bio.

I decided to test several AIs with a legal topic a few weeks ago. I will give the AIs this: they correctly identified the case I needed, the court, and the judge. However, when I then read the case, I discovered that in different ways, each had misrepresented what the court had actually found, sometimes fundamentally (saying that the judge had found the opposite of what he had actually found in some instances), sometimes in subtle ways which would only be obvious to an experienced lawyer (no, the description was not quite right, even if it sounded really convincing). The case was long and detailed, and yes, it was a slog to get through it. But I was glad I had done so.

I’ve said above that law is not an algorithm. To be sure, I prepare flowcharts for my students of issues they might want to consider. But as I tell the students, these flowcharts must be used with care. First, they must be caveated with exceptions to the rule. Secondly, the emphasis an experienced lawyer will put on certain matters is not equal. Thirdly, sometimes, courts make new law which does not fit into the rubric or the existing precedent, because the law has to adapt to new circumstances.

There is a reason it is called the practice of law. I have a sense of the emphasis to be put on issues, gained from years of teaching, reading cases, statutes, textbooks, and articles, and some years of legal practice, as a litigator, a court clerk and a consultant. I realised the other day that I have been admitted to practice for almost twenty five years. Goodness, where did that time go?

I also write my own works. As I have said before on this blog, I think and learn in part by writing. It is only by writing things down that I realise how things might fit together or where there may be inconsistencies. Part of the reason I write this blog is to think my thoughts through to the end. If I get someone else (or something else) to do my writing for me, I lose a really important part of how I think and learn. I also lose that hard-won expertise I have gained through practice. Therefore, for me as a legal academic, AI will often only be useful as a glorified search engine, which I will then follow up by checking its results thoroughly.

The point of setting essays for students is for them to learn how to write in a particular format, and to learn the law while doing so. While some students seem to think that the main point of a university degree is to get good grades so that they get a good job, my main hope is that they learn something, so that they can undertake their job in a professional manner. An undue focus on grades as a measure of learning risks falling foul of Goodhart’s law: namely, “when a measure becomes a target, it ceases to become a good measure.” I regard my role as a professor to teach students how to think legally and to give them a scaffold for how to approach problems in practice, whether they become lawyers or not. I want students to have a fuller understanding of the law when they finish my subject. They might not learn immediately; the use of what I have taught may only come out later.

If a student uses a LLM to lay out the structure or even the substance of an essay, then they outsource that part of their learning to something else. Let’s say—contrary to my experience with AI thus far, and conceding that maybe I don’t know how to command AI—the AI does a really good job of giving them the basics of a law essay. The student might get a good grade, but they do not learn. They have not learned how to structure an argument, how to refine their writing, how to research. They have not engaged in the practice of being a lawyer. Consequently, while their grades might be good, they have not learned and they will not be a good lawyer in practice, when faced with the messiness of real human situations, some of which are so strange you couldn’t make those facts up.

True expertise involves doing something many times, even if that thing is boring. For example, I could just have made an AI find the relevant passages in the judgment it identified, meaning that I would not have to bother to read the entire case, some of which was irrelevant for my current purposes. However, my understanding of the case and its circumstances would be much poorer.

Even experts make mistakes. I still make mistakes to this very day; the important thing is that I try to learn from them and amend them. When I got AI to write that bio, it really startled me how much LLMs are set up to be “people pleasers”. The AI tries to give you what you want, and to affirm you, even if what it gives you is utterly false. Weirdly, when you question it and say, “Did you make that up?” it freely admits it.

One of my kid’s friends showed me a disturbing trend yesterday, where people think they are in relationships with LLMs, or fall into psychosis because of LLMs’ constant affirmation of their perspectives or desires. Actually, humans should not be constantly affirmed. We need people to tell us when we are wrong, and to provide boundaries, not to pretend that everything is great, and to please us in all regards.

Moreover, I think Dame Victoria makes a really important point. If lawyers outsource their thinking, writing and research to something else, they render their presence nugatory. If the work the LLM produces is wrong and untrustworthy, and results in a client losing a case or being hit with a costs order, lawyers risk ruining their reputation. The point of a client seeking advice is to rely on that human expertise, gained with practice, something that can’t easily be conveyed or searched for on the internet. The duty of a lawyer, ethically, is to check that the advice they have given is accurate, a duty owed both towards the client and towards the court. To fail to do so is a derogation of our professional role. If you’re going to use an LLM, it’s incumbent upon you not to accept it trustingly, but to double check it. In which case… well, might it not be easier to do the work yourself?

So, thanks but no thanks. I’ll stick to my guns and do my research and writing myself.

This first happened to me in 2018, with respect to my own university. No, I can’t tell you what I saw.

Since 2018, I have had this experience on numerous occasions, in relation to several incidents, issues and people, at different academic institutions. No, I can’t tell you about these, either.

Would I like to tell you about this? Yes, I would. I can’t. I would be breaching confidentiality and privacy policies and risking an action in defamation in Australia (the most plaintiff-friendly regime in the common law countries).

I understand that these policies of privacy and confidentiality are there to protect complainants and persons subject to workplace complaints. I can see that there are numerous situations where they might be necessary, including:

• Where the allegation is baseless and the subject of the complaint is exonerated, but the nature of the complaint might lead to gossip or permanent reputational damage;

• Where the complainant does not want to be identified because the nature of the complaint might lead to humiliation;

• Where the associates or family of the subject of the complaint might be tarred by any accusation, but they are not involved; or

• Where the subject of the complaint did something wrong, but intends to learn from the experience, reform and behave better.

However, at times, these policies can make the process of a university investigation a punishment in itself, whether for the complainant or for the subject of a complaint, because it is not clear what is happening.

I may feel disillusioned at the moment. It can sometimes feel as if, in practice, these policies operate primarily to protect an institution’s reputation, and shove systemic failures under the carpet. Lack of transparency can also produce the “Watergate effect”. Even if the original conduct was not so bad, the efforts to shove it under the carpet, to pretend nothing’s happening and to stop people from talking create a far greater problem. Rumours swirl around in the absence of clear information.

As a friend pointed out the other day, this problem is endemic to all large organisations: corporations, religious organisations, government departments, schools. When someone within the organisation behaves very badly on a systematic basis, institutions sometimes suffer what a second friend has called “moral and bureaucratic paralysis.” If things eventually come to a head—as they generally do—the organisation tends to hope the wrongdoer quietly moves on, so that he or she becomes someone else’s problem. Ironically, the worst and most systematic behaviour is more likely to be hushed up, precisely because it is just so damning. The creepy crawlies are not exposed to the disinfecting sunshine and can crawl off somewhere else.

In large hierarchical organisations, it seems that sometimes, loyalty to the institution can override any duty to individuals. We can see this most clearly in the behaviour of the Catholic Church in relation to priests who perpetrated sexual abuse. When it became evident that individual priests were a problem in one particular diocese, notoriously, they were moved on to another, where they repeated the conduct.

I’m sure that universities across the globe would hate to be compared to the Catholic Church. Bad luck: the shoe fits, so wear it. All too often, an academic who has displayed sustained bad behaviour (often across multiple spheres) is allowed to jump to another academic institution, which may be unaware of the problem. I’ve spoken before about the way in which non-disclosure agreements exacerbate this problem. Universities don’t want to be the one left holding the hot potato, so they let the hot potato be tossed to someone else. “Phew! Not our problem any more. We won’t be burned.”

Here a distinction must be made between academics who have made a one-off mistake (even if it’s a grave one) and academics who have displayed sustained patterns of misconduct. It is the latter with whom I am concerned: they often use the measures designed to be merciful to the former to their advantage.

Unfortunately, when an academic who has shown to have engaged in sustained misconduct moves on, the conduct is likely to continue elsewhere. If you think I’m vague-blogging about a particular incident—think again—I have numerous incidents at different institutions in mind. I’m talking about a broader phenomenon, and likely one that pervades many different organisations, from government departments to firms to universities.

It is rightly difficult to sack someone in Australia, and due process must be followed. But this has its own issues. Damian Counsell was a union rep for many years. He came up with The Disliked-to-Dismissal Pipeline heuristic in relation to employees who are sacked:

In the UK, even as a matter of admin alone, sacking an employee is always tedious and unpleasant^. Managers do everything they can to avoid it—often including constructive dismissal (trying to drive the person to give himself/herself the sack so they don’t have to do it).

Because of this, most sackings require the additional incentive—beyond, say, criminality from the soon-to-be-ex-employee, and certainly beyond that employee’s mere incompetence—that the employee in question is unpleasant for his/her coworkers to be around.

The corollary of this is that, if you ever read or hear of someone (in this country especially) being fired, then there is a high probability that, in addition to the official reason for that person’s dismissal, no one liked having them around.

This is sad in itself and, sadder still, implies that, if you want to keep your job (especially at an employer already looking to make redundancies), it’s more important to be widely liked by your fellow employees, especially your superiors, than it is to be competent. Similarly, most of your colleagues won’t fret about your professional integrity, unless your lack of it puts their own employment at risk; and most of your colleagues won’t care about your contribution to an organisation’s aims or bottom line, as long as your shared employer is big enough that the output of your work doesn’t affect their income as well. (emphasis removed)

Cynical, yes, but I’m afraid to say that it reflects my own anecdotal impressions. First, the willingness of a superior to stand up for you can make all the difference. Secondly, unions have an intrinsic conflict between their duty to represent people who are accused of misconduct and their competing duty to protect people who are victims of misconduct and this is difficult to balance. Thirdly, I know people who are both competent and friendly—their organisations did not sack them—but they were constructively dismissed.

“Constructive” as a legal term means “implied from the circumstances.” Their lives were made utterly miserable so that they could not stay at the institutions, firms or corporations where they were employed. They quit of their own choice, but implicitly, their employer was the true force behind the dismissal, because their positions were made untenable. This is still effectively a sacking and can be unlawful under Australian law.

As he notes in his post, Counsell also came up with four laws about human conduct in the modern world. The relevant one for present purposes is as follows:

Counsell’s Second Law: The two most powerful forces known to contemporary humankind are peer pressure and the desire for a quiet life.

Sometimes, I think that I am a fool, for not choosing a quiet life, and for not going with the flow. My decisions to speak up at various times have placed considerable stress on me and my family. However, as this post shows, it seems to be something about the way I am built.

Failing to deal with the creepy crawlies under the rock—putting the rock back down and insisting everything’s fine—pollutes the broader society we live in. It is time for this to stop, whether at universities or elsewhere.

In fact, almost without exception, everyone I met in the United States was very pleasant. At Dallas Airport I was somewhat taken aback when a stranger hugged me and thanked me for coming.

On the streets of Cambridge, MA, or at museums, several people heard my Australian accent, and stopped and chatted to me. Everyone was uniformly welcoming.

I got to see a triceratops skull at the Harvard Museum of Natural History—my favourite dinosaur—as well as many interesting minerals and other fascinating things.

It was hot and humid in Boston in summer: thank goodness for the friend who had bought me a fan to take along. I even got a little bit of a suntan. (My sister, inspecting that “suntan” yesterday: “That’s really technically an addition of more freckles to earlier freckles.” Okay, point conceded.)

When I’m talking about non-substitutable contractual performances, I often use the example of a contract to buy a Ming vase. I was delighted to find two Ming vases in the Harvard Art Museum: they shall feature in slides henceforth. I can put the fun back in fungible, trust me.

Then it was conference, conference, conference, for the rest of my time in Boston. My paper was entitled ‘How the Institutional Revolution shaped common law remedies for breach of contract’. No, that’s not a typo, I’m referring to Douglas W. Allen’s work, The Institutional Revolution: Measurement and the Economic Emergence of the Modern World. It’s hard to award damages for breach of contract if you don’t have reliable means of measuring the failure to perform, in short.

As I say, I was very nervous beforehand. Part of it was that I haven’t done a really long haul trip alone (i.e. 18+ hours) since 2015, when my physical disability really started to have an impact on my mobility. However, I am so glad I made the effort. It was wonderful to see many colleagues I hadn’t seen for years, and to meet new friends. I gained really helpful comments on my paper from participants and I heard so many interesting papers from others. I love being inspired by the work of others. There’s so much to learn from an international exchange of perspectives and ideas.

I haven’t got anything particularly witty to say or any deep political observations to make. I’ll simply say that, in this difficult global climate, it was a pleasure to interact with a diverse group of scholars from many nations and to learn so much from others.

My Chinese friends were a little taken aback by my fascination with this phenomenon. “It’s just a very typical trope,” said one.

I said, “Is it one you have ever seen in a Western drama?”

We had to stop and think. No, in Western dramas, the hero is not set upon by mobs. Nor is stoicism and humility in the face of the mob used to signal heroism.

Unlike in Western dramas, the main division in Chinese dramas is not between Good and Evil. It is between Order and Chaos. Order may be either good (keeping things peaceful) or evil (overly constraining and blind to its own injustice). The same is true of Chaos. Sometimes it’s necessary to have disorder and to shake things up, particularly when order becomes overly constraining and blind to its own injustice. However, too much Chaos is usually evil. The mobs represent Chaos, generally not of a good kind.

The lack of mobs in Western dramas doesn’t mean that we’re unaware of the violence mobs can do. In GCSE English, many moons ago, I had to read Lord of the Flies by William Golding. Below, I quote a scene that from that book that has haunted me ever since I first read it. It’s a large chunk, as that’s really the only way I can get the cosmic terror of it across to you.

“Kill the beast! Cut his throat! Spill his blood!”

The movement became regular while the chant lost its first superficial excitement and began to beat like a steady pulse. Roger ceased to be a pig and became a hunter, so that the center of the ring yawned emptily. Some of the littluns started a ring on their own; and the complementary circles went round and round as though repetition would achieve safety of itself. There was the throb and stamp of a single organism.

The dark sky was shattered by a blue-white scar. An instant later the noise was on them like the blow of a gigantic whip. The chant rose a tone in agony.

“Kill the beast! Cut his throat! Spill his blood!”

Now out of the terror rose another desire, thick, urgent, blind.

“Kill the beast! Cut his throat! Spill his blood!”

Again the blue-white scar jagged above them and the sulphurous explosion beat down. The littluns screamed and blundered about, fleeing from the edge of the forest, and one of them broke the ring of biguns in his terror.

“Him! Him!”

The circle became a horseshoe. A thing was crawling out of the forest. It came darkly, uncertainly. The shrill screaming that rose before the beast was like a pain. The beast stumbled into the horseshoe.

“Kill the beast! Cut his throat! Spill his blood!”

The blue-white scar was constant, the noise unendurable. Simon was crying out something about a dead man on a hill.

“Kill the beast! Cut his throat! Spill his blood! Do him in!”

The sticks fell and the mouth of the new circle crunched and screamed.

The beast was on its knees in the center, its arms folded over its face. It was crying out against the abominable noise something about a body on the hill.

The beast struggled forward, broke the ring and fell over the steep edge of the rock to the sand by the water. At once the crowd surged after it, poured down the rock, leapt on to the beast, screamed, struck, bit, tore. There were no words, and no movements but the tearing of teeth and claws.

Then the clouds opened and let down the rain like a waterfall. The water bounded from the mountain-top, tore leaves and branches from the trees, poured like a cold shower over the struggling heap on the sand. Presently the heap broke up and figures staggered away. Only the beast lay still, a few yards from the sea. Even in the rain they could see how small a beast it was; and already its blood was staining the sand.

Now a great wind blew the rain sideways, cascading the water from the forest trees. On the mountain-top the parachute filled and moved; the figure slid, rose to its feet, spun, swayed down through a vastness of wet air and trod with ungainly feet the tops of the high trees; falling, still falling, it sank toward the beach and the boys rushed screaming into the darkness. The parachute took the figure forward, furrowing the lagoon, and bumped it over the reef and out to sea.

Toward midnight the rain ceased and the clouds drifted away, so that the sky was scattered once more with the incredible lamps of stars. Then the breeze died too and there was no noise save the drip and trickle of water that ran out of clefts and spilled down, leaf by leaf, to the brown earth of the island. The air was cool, moist, and clear; and presently even the sound of the water was still. The beast lay huddled on the pale beach and the stains spread, inch by inch.

The edge of the lagoon became a streak of phosphorescence which advanced minutely, as the great wave of the tide flowed. The clear water mirrored the clear sky and the angular bright constellations. The line of phosphorescence bulged about the sand grains and little pebbles; it held them each in a dimple of tension, then suddenly accepted them with an inaudible syllable and moved on.

Along the shoreward edge of the shallows the advancing clearness was full of strange, moonbeam-bodied creatures with fiery eyes. Here and there a larger pebble clung to its own air and was covered with a coat of pearls.

The tide swelled in over the rain-pitted sand and smoothed everything with a layer of silver. Now it touched the first of the stains that seeped from the broken body and the creatures made a moving patch of light as they gathered at the edge. The water rose farther and dressed Simon’s coarse hair with brightness. The line of his cheek silvered and the turn of his shoulder became sculptured marble. The strange attendant creatures, with their fiery eyes and trailing vapors, busied themselves round his head. The body lifted a fraction of an inch from the sand and a bubble of air escaped from the mouth with a wet plop. Then it turned gently in the water.

Somewhere over the darkened curve of the world the sun and moon were pulling, and the film of water on the earth planet was held, bulging slightly on one side while the solid core turned. The great wave of the tide moved farther along the island and the water lifted. Softly, surrounded by a fringe of inquisitive bright creatures, itself a silver shape beneath the steadfast constellations, Simon’s dead body moved out toward the open sea.

Simon is the gentle boy who tries to reason with everyone and tell them the truth. But “the throb and stamp of a single organism” can’t be reasoned with. They can’t be told that the beast they so feared was actually a dead soldier, trapped in the trees by his own parachute. Instead Simon himself becomes the beast in their eyes and is sacrificed.

Sometimes, when the people are unhappy, they have a point, and it is important for those who rule to listen. Even mobs sometimes have a point. In that scene from the Chinese drama I picture above, the people have genuine reasons for their unhappiness with their Governor, although their response is disproportionate and unfair, because they do not know the full complexities of the situation. I would also note that the online ecosystem has made modern mobs more complex: online mobs can form very quickly, on the basis of mistaken information, and proceed accordingly.

It must be emphasised, however, that there is a huge difference between peaceful protest and a mob. We allow peaceful protest in Australia because it is important to allow people to express their views and to seek to tell others about matters of concern. Feedback loops matter. Nonetheless, there is always a possibility that a peaceful protest can get out of hand. It’s something we have to guard against, because the mob can’t be reasoned with, and it may mete out revenge unfairly, based only on prejudice. We speak of lynch mobs with fear, because of this history.

My own university has recently had to grapple with the difficult question of when peaceful protest crosses the line. Two students have been expelled and two have been suspended. As I understand it, these disciplinary actions have been taken because they “occupied” the office of a professor.

I have written of these events before, but here is a more detailed account. For some months, a small group of pro Palestinian protesters had singled out a professor—a visibly observant Jew who wears a kippah—because they objected to his views on Israel and his association with joint PhD program between our university and Hebrew University of Jerusalem. They alleged that this made him complicit in genocide.

Their campaign against him began with posters mentioning him by name, ramped up to rallies focused on him outside his building and then culminated in the occupation of his office. At least 20 - 25 protesters, most wearing masks, hoods and scarves, congregated at the professor’s laboratory and waited for him to arrive. They stuck posters and stickers around his office. When he arrived, they chanted that he was a murderer and demanded to talk to him. He asked them to leave and to make individual appointments to speak with him. They refused and kept chanting, surrounding him.

He became worried for his safety and retreated. He fled to a secure area, chased by two individuals, one of whom tried to stop him from escaping by putting his foot in the door. Security then arrived and asked the protesters to leave. When they would not leave, the police were called. The protesters left after being given orders by police, but they said they would be back.

How do I know this much detail? After all, I wasn’t there. I decided to write an opinion piece for the newspaper. I thought I should ensure that I really understood what had happened. I spoke to the professor, but from my time as a judge’s associate, I know that events can often be more complex than people recall (particularly when they are stressed). As it happens, I had an alternative source of events. The protesters had proudly uploaded videos and pictures of their activities to a public social media account associated with their protest group.

I watched the videos several times. And then I felt sick. I had witnessed the “throb and stamp of the single organism” in those videos.

If some students have been either expelled or suspended for participating in this incident, the university’s decision was right. This protest crossed a line.

Of course, I’m sure I’ll get some pushback from at least some on the progressive left, who will say that the actions of the protesters are morally justified. To them, I ask, would you feel differently, say, if the professor concerned had been a pro-choice feminist, and the mob which had confronted her had been comprised of Christian pro-life activists? If you’d see the situation differently, why? Is it simply because you agree with one professor, and not the other?

To all my readers, regardless of where your prejudices lie, if you would treat the two cases according to different rules, you’re failing to follow the rule of law: that is, we apply the same rules, regardless of whether we agree with the person or not and regardless of their identity.

You might respond to me, “Oh, Katy, but that professor with whom I disagree is complicit with wholesale murder. It’s a moral imperative for me to intervene, whereas I don’t believe that’s the case with the other professor.” I don’t care what the cause is, or how righteous or genuine the protesters’ beliefs are.

Also, if you’re going to tell me that I’m complicit with genocide or murder, simply because I don’t accept every single proposition activists demand of me, please save your breath. I am not interested in zero-sum loyalty tests or Jacobin purity spirals.

For the record, as I have stated before, I would equally well stand up for a Palestinian academic or for anyone else who found themselves at the mercy of a protest mob. I would do this as a matter of principle, because I have always known that the mob is not rational, and that it can commit great wrongs in the name of justice.

There are three reasons academics should beware of defending violent protest mobs, particularly one which targets individual academics.

First, if a person cares about the cause, targeting an individual academic is counterproductive, and repels all but the most rusted-on true believers. After my op ed in the paper ran, some people (including Palestinians) wrote to me to say how dismayed they were by the targeting of an individual, because it took away from their legitimate concerns and the issues they wanted ventilated.

Secondly, targeting individuals and mobbing them simply because they have views you don’t like is inimical to academic freedom and freedom of speech. There seems to be a view among some on the progressive side of politics that any kind of “civil disobedience” should be excused in the name of political protest, as long as the protest is righteous. If the protester believes that if their actions are necessary to resist tyranny and genocide, no holds are barred. I call it the von Stauffenberg conceit: everyone likes to believe that they are Claus von Stauffenberg. This view becomes very dangerous, once you begin to target people individually, occupy their spaces and personally intimidate them.

Thirdly, who is to say you will not be faced by your own protest mob, one day, when the political tables flip? This is a beast you do not want to let off the leash. Do not only consider how such tactics might be used against those with whom you disagree: consider how they would be used against you or your allies.

I end again with a quote from another twentieth century author, Aldous Huxley, from Chrome Yellow:

The surest way to work up a crusade in favor of some good cause is to promise people they will have a chance of maltreating someone. To be able to destroy with good conscience, to be able to behave badly and call your bad behavior ‘righteous indignation’—this is the height of psychological luxury, the most delicious of moral treats.

Do not be tempted by that treat. Recall that, sometimes, the worst deeds are committed precisely when we think we are doing good.

I confess that I had a rant in the preface of the treatise:

At a time when the salience and worth of doctrinal academic research has come under fire from many corners, I believe that black letter law academics can and do provide an important service to the legal community more generally. Unfortunately, it seems that the global expansion of the “publish or perish mentality” has meant that some “research outputs” are prioritised over others. In research metrics, the value of treatises and textbooks can be overlooked, because some mistakenly consider that they do not produce “new discoveries.” To this, I first respond that the role of academics is not only to make new discoveries. We are also custodians of knowledge and teachers, and hence there is real value in describing the accrued and evolutionary wisdom of the law. Secondly, the law is changeable, and keeping on top of its ever-changing flows in multiple jurisdictions is a life-long mission of discovery. Thirdly, academic treatises and textbooks were vital to my understanding of the law when I was a student and a young practitioner, and they remain vital now.

My understanding from conversations with legal publishers is that it’s becoming increasingly difficult to find academics who will write treatises and textbooks. Some useful works are at risk of falling into abeyance, as authors retire and no one is willing or able to replace them. Moreover, in fields like mine, accessible books written for the general public are not valued either.

Academic incentives currently favour journal articles (particularly in top international journals) and (in my field) highly theoretical monographs. The push to produce “new discoveries” is a product of World War II and the Cold War, when Western governments (beginning with the United States) sought to incentivise universities to produce new scientific discoveries, to ensure that the West kept up with the Soviet Union.

They did this by the provision of government grants. Of course, they did not want to give grants to people who were not worthy. How to measure academic worth? The government measured the worth of scholarship by requiring a proven track record of publications, work that was widely cited by others, and they demanded peer review of new journal articles (to check they were reputable). Although this model was first applied in science, technology, engineering and mathematics disciplines (STEM), it now applies across the board, including to humanities, arts and social sciences (HASS).

Goodhart’s law states “when a measure becomes a target, it ceases to be a good measure.”

When the incentives were put in place, they might have been a good measure of academic worth. However, once these measures became a target, then they ceased to be an effective measure. I personally believe that many of the problems with academia can put down to the unintended perverse incentives arising from how we now measure worth in academia. Currently, incentives prioritise discovery and research over teaching or the custodianship of existing knowledge. This is why treatises and textbooks are regarded as less worthy.

Something has to shift with the academy. Additional governance structures and regulation won’t make a difference; indeed, these will just contribute to the ballooning bureaucracy which already exists to ensure universities conform with government requirements and regulations. Everything is awry, and it’s all down to the incentives.

A recent article by Jason Matchett in The Australian suggested that the fix to the lack of emphasis on teaching is to make university lecturers undertake a diploma in teaching, or at least some teaching training.

I would recommend that some teaching training be given to lecturers. I learned to teach on the job. I was perhaps a natural teacher: my mother was a high school teacher and one of my sister’s and my favourite games was “schools” (with me as the teacher). I began as a Law Students’ Society tutor and tutor with the Koori Students’ Liaison Unit in 1997, and then tutored at various university colleges while I was in practice. When I left practice, I was a sessional (adjunct) academic for four years, and then I was hired on an ongoing basis when I finished my PhD. I was also lucky to be mentored by senior colleagues; I have tried to pay that forward by mentoring others (both formally and informally).

I undertook the Melbourne Teaching Certificate in 2012, a six month course with our Centre for the Study of Higher Education. This was absolutely ideal for my circumstances—I could do it while teaching and apply the lessons I’d learned in my classes. I found it immensely valuable. I still use the techniques I learned. I would recommend it for everyone.

We have to be careful, however, with the hurdles we impose upon academics. An academic with an ongoing position has already undertaken postgraduate study, typically up to PhD level. The three years while I was doing my PhD were very financially difficult. If I had to do a Diploma on top of that, I would not have become an academic, particularly given that I could jump back to practice. There is a risk that by imposing such a barrier, you incentivise those who have practical skills to leave the academy, particularly if people with practical skills can earn far more money outside the academy. This is a persistent problem in some fields as it is.

What’s the fix? I don’t have any easy answers, but at a minimum, I believe the academy must resist “publish or perish” as a measure of success. It creates an illusion of productivity and innovation, but I think it has led us down the wrong path. It means that the measure of success is, effectively, how popular you are with other academics. This is not always a good measure of success or of quality work.

Moreover, the push for new discovery should not be our only focus. Not all of us are Einstein, nor should we be expected to be. I wonder how someone like Einstein would fare in the modern academy. I suspect he’d be very unhappy.

The past cannot be ignored, and in fact, as I tell my students, by its past shall you know it. Often I can only fully explain legal principles by explaining the history behind them. I am dismayed by much activist “history”, which presents a cartoon version of the world with “goodies” and “baddies” and lacks nuance. Proper history recognises that people have complex reasons behind their actions, and that often they think they are doing the right thing. Sometimes, by doing what they believe is the right thing, people commit terrible wrongs. Activists should sit back and take note. The only certain law is the law of unintended consequences.

Academics must also recall that we are custodians of knowledge. Our role is not just to theorise about what might be, and to explore those theories, but to conserve the knowledge we have collected about what is (as far as we know right now). We need to convey that knowledge clearly to those in the field, and to the general public. That is a role of much honour and worth, even if the incentives don’t currently reward it.

As I worked in the court system for about three and a half years, and I was a litigator for about two years, I had thoughts on this. People do not always behave in rational ways, particularly when the issues in a case go to the core of who they are. People who fight doomed legal cases remind me of some psychologists who infiltrated a cult. Bear with me, there is method in my madness.

In When Prophecy Fails, social psychologists Leon Festinger, Henry W. Riecken and Stanley Schachter open with the following observation:

A man with a conviction is a hard man to change. Tell him you disagree and he turns away. Show him facts or figures and he questions your sources. Appeal to logic and he fails to see your point.

We have all experienced the futility of trying to change a strong conviction, especially if the convinced person has some investment in his belief. We are familiar with the variety of ingenious defenses with which people protect their convictions, managing to keep them unscathed through the most devastating attacks.

But man’s resourcefulness goes beyond simply protecting belief. Suppose an individual believes something with his whole heart; suppose further that he has a commitment to this belief, that he has taken irrevocable actions because of it; finally, suppose that he is presented with evidence, unequivocal and undeniable evidence, that his belief is wrong: what will happen? The individual will frequently emerge, not only unshaken, but even more convinced of the truth of his beliefs than ever before. Indeed, he may even show a new fervor about convincing and converting other people to his view.1

Festinger et al infiltrated a cult which had a prophecy about the end of the world, said to occur on a specific date, namely 21 December 1954. The leaders of the cult, Mrs Keech and Dr and Mrs Armstrong (all pseudonyms) believed that Mrs Keech was in communication with divine astral beings, who told her that the Earth was going to be catastrophically flooded, but that her followers would be rescued by aliens in UFOs.

Mr Keech, Mrs Keech’s husband, did not believe the prophecy in the least, but he was an extraordinarily patient and gentle man:

He simply went about his ordinary duties in the distributing company where he was a traffic manager, and did not allow the unusual events in his home to disturb in the slightest his daily routine.2

Before the date of disaster struck, the believers were secretive. However, once the prophecy was falsified, the behaviour of the believers changed markedly. While they were despondent at first, they then increased in fervour, and rather than being secretive, they tried to convert others to follow their beliefs.

This tended to support the hypothesis of Festinger et al, who had looked at historical instances where doomsday prophecies had been disproven and formulated the following five conditions where believers would increase their fervour, rather than giving up their beliefs:

1. There must be conviction.

2. There must be commitment to this conviction.

3. The conviction must be amenable to unequivocal disconfirmation.

4. Such unequivocal disconfirmation must occur.

5. Social support must be available subsequent to the disconfirmation.3

So, the belief must be very deep, and it must require certain actions or behaviours to be undertaken. The more drastic the commitment to the belief, the more wedded the believer becomes to it. Therefore, for example, if a believer has given up her job and cut herself off from family, the believer will be more wedded to the belief. If the disconfirmation occurs, this causes cognitive dissonance: “I have changed my behaviour, given up my job and cut off my family for nothing.” This is painful for people to face. It’s also related to the sunk cost fallacy: if I have already sunk costs into this activity, I must continue it.

However, if a believer is surrounded by others who continue the belief, it is less painful to presume that the beliefs still have validity; it is just that there was a mistake, or that they misunderstood something about the prophecy. Believers then reassure each other and go out to try to proselytise after the disconfirming event, because of the importance of social proof.

Humans are social beings. If other people also believe that something is the case, then we become increasingly convinced that it is true. Therefore, when our beliefs are rocked to the core, we may run around, desperately seeking social proof from others, in order to bolster our conviction that we have not made a mistake and taken drastic action for no good reason. Our desire for social proof is particularly ardent when our beliefs have been rocked or where we are uncertain.

Reading this book, I was reminded of a legal trial I once saw. The judge told the plaintiff in the first half day that he should consider speaking with the defendants. This is “judge-speak” for, “Plaintiff, you have absolutely no case at all, and you should go settle this matter before you rack up your legal costs.” The plaintiff did not take the judge’s advice. Instead, he doubled down, and argued his case more vociferously. At several points during the evidence, the defendants’ barrister presented him with information (including contemporaneous documents written by him) which explicitly disconfirmed his account of what had happened. In each instance, he had an explanation as to why what he had written did not really mean what it seemed to mean.

The weird thing, from my point of view, was that the plaintiff did not seem to be lying. Lying requires a consciousness that one is not telling the truth. Conversely, it seemed to me as an observer that he believed absolutely in his own account of what had occurred. It was just that none of the documents or the witnesses confirmed it, and hence his evidence was unconvincing. If he was lying, he was lying to himself, to save himself from cognitive dissonance: “I could not have done such a foolish thing.”

Of course, he lost the trial. I saw later that he appealed, and lost the appeal. Leave to the High Court of Australia was refused. I still wonder if he accepted those decisions.

I’m not a proselytiser by nature. I write for myself, and to make people think, but I’m not seeking to make you agree with me. I do not like being preached at, and I tend to recoil from it, and so I tend to avoid doing this to others. I also hate my emotional buttons being pressed in efforts to persuade me into something I feel uneasy about.

Whether others believe what I say or not is up to them. As a result of reading When Prophecy Fails, I am also now careful, if I feel I must go out and convince other people of the truth of something. Why do I feel I must convince others? Is it because I have sound evidence, or is it because (counterintuitively) I lack certainty and I’m seeking social proof from others, to avoid cognitive dissonance? Many of the most dogmatic statements on social media seem to me to be in search of social proof where the situation is uncertain.

In any case, in short compass, that is my explanation for why people fight hopeless legal cases. It may also explain why sovereign citizens and some litigants-in-person (who tend not to accept the jurisdiction of the court) flock together and surround themselves with others who will confirm their beliefs. This provides the necessary social support, so that even when a judge does not behave in the way they predicted or apply the law as they anticipated, they can still gain social proof from those around them.

Something I have also been thinking a lot about lately is that it is painful to admit you are wrong. This is particularly the case, perhaps, if you are generally clever, and you are used to being right. Some people will continue to swear that red is blue, or that up is down, to save themselves the pain of cognitive dissonance. On the other hand, I am prepared to admit that I am fallible. I think humility is important. I don’t like being wrong! But I am human. I will sometimes be wrong.

I had a “moment” the other week. My PhD thesis, and my first monograph, was on accounting for profit for breach of contract, and how this could be justified. In a recent United Kingdom Supreme Court case, Rukhadze v Recovery Partners Ltd,4 Lord Leggatt said that the case I relied upon, Attorney-General v Blake,5 was “anomalous”6 and Lord Burrows said it was “exceptional.”7 This was just another step in the sidelining of Attorney-General v Blake, which had already been thrown into doubt by One Step (Support) Pty Ltd v Morris-Garner.8

Despite this, I continue to believe that there are ways in which Attorney-General v Blake could be appropriately rationalised. The case was too vague in its criteria and hence courts did not know how to apply it, and that caused a mess. I think I came up with workable criteria.

However, in my writings describing the law of England and Wales, am I going to say that Attorney-General v Blake is emphatically correct? No, I am not. In my view, it has now been confined to its facts (involving the betrayal notorious traitor and double-agent, George Blake, who defected to the Soviets, and then wrote the most depressing memoirs when the Iron Curtain fell). I don’t think those facts will often arise.9

I don’t want to become one of those academics who continues to push her theory when it’s been rejected. For me, it is less important to convince others of my correctness, than it is to reflect what the law currently is and to be a trustworthy source. I’ve accepted now that if the courts don’t read my theory or reject it: them’s the breaks. The nature of being a private law scholar is that one’s theories are reality-tested by the courts. I must have the ability to admit that my theories will not always be right, even if there is a certain painful cognitive dissonance involved.

So, I think we have to be ready in this very polarised world to accept cognitive dissonance, and to accept the prospect that sometimes our deeply held beliefs will be challenged, or even proven wrong. There is a difference between evidence, reasons for our decisions and the way we rationalise those decisions. Hopefully I have made you think about why you believe what you believe, and why you seek to persuade others.

Since I wrote that post in 2023, the succession problem has become even more acute: not only are we lacking young private law scholars to replace existing scholars, but we are losing the people we had, as private law academics retire or (increasingly) leave academia and go back into practice.

As I explained two years ago, the subjects I have taught during my career are mostly compulsory “black letter” private law subjects, including property law, contract law, trust law, tort law and so forth. Law students must undertake these subjects to qualify as lawyers. In recent weeks, aspects of the legal curriculum and the approach of law schools towards Indigenous materials have been in the news. I don’t intend to discuss such a fraught topic in any detail here.1

I will observe, however, that teachers of compulsory subjects and law school deans are caught between Scylla and Charybdis. On the one hand, you face practitioners and the media, asserting that you do not teach enough black letter law nor do you prepare students for practice. On the other hand, within the academy, at best, some might assume that “black letter” law is both easy and boring (a suggestion I would strongly reject). At worst, some might think that teaching positive law lacks value, because our role as academics should always be to question assumptions and take strong theoretical positions, not to accept the status quo.

Your subject becomes packed with the competing demands of many different cooks, making the broth a complex one, and sometimes threatening to spoil it.

Is it any wonder that we have difficulty recruiting people to teach private law, when we are stuck between Scylla and Charybdis in this way?

This week, I gave a lecture on causation, remoteness and mitigation in contract damages. Obviously, a large part of this required me to teach what the law is. I think my students would agree that the concepts are very complex, and difficult to apply to practical situations without a good deal of thought. Students are required to undertake logical reasoning. How do we decide whether an action causes a certain response? Part of the business of law schools is to teach law students to think like lawyers, and to get used to applying legal analysis to fact scenarios, hence the use of hypothetical problems in exams.

There are times, as I tell my students, where no single principle can be distilled from a case, or there are multiple answers to a question, or the answer is unclear. Sometimes there’s leeway in applying a principle. What one person thinks is “reasonable” may differ from another’s view. It follows that students must also consider why the law is as it is, and what the law should be. For example, in the context of contractual remoteness, should Australian courts adopt Lord Hoffmann’s “assumption of responsibility” test from The Achilleas for contractual remoteness, or stay with the rule in Hadley v Baxendale? There isn’t a right answer to that, although I have my own view. I accept that others might have a different view.

Moreover, even if the principle is certain, what the law is might appear unjust or perverse when it’s applied. It’s necessary, then, to discuss what the law should be, and how it could be improved.

As a consequence, although I teach black letter law, my teaching necessarily involves explaining not only what the law is, but also why it is that way and discussing what it should be. I try to allow room for students to express different opinions on what the law should be, and what principles should prevail. I explicitly state that I welcome reasoned disagreement in my first class or lecture.

As I said in my previous post on the succession problem:

Compulsory subjects can be difficult to teach. At first, students don’t necessarily think that they want to be there—at least some want to do “sexy” electives like international human rights law, and think that more commercial areas are “boring”,“dry” or difficult. Compulsory classes are large and the marking load heavy.

To my mind, private law is part of the oil which keeps the gears of society going around smoothly: if the rules work well, we barely even notice them. The subjects I teach are far from boring or dry, at least in the way that I see them: they raise questions which are fundamental to the way in which we organise our society and deal with each other as private individuals. A lot of the scholarship I do (not all) is doctrinal.

It’s easy to point the finger at the “woke academy” but much harder to actually make a difference.

People respond to incentives. It is now impossible to attain the rank of professor without a PhD (this has been the case since about 2005 in Australia). If firms and practitioners wish to encourage more private law or commercial law scholarship, or further teaching in this area, they might consider contributing to scholarships for PhDs in private law, to encourage younger scholars so that the succession problem is not so acute. Alternatively, they might sponsor professorial chairs in commercial law (as some of the large firms do in the United Kingdom).

I note too, that it’s also difficult (although not impossible) for private lawyers to get government grants for their research, and the acquisition of grants is often an important aspect of the academic promotion process. I was lucky enough to obtain a grant funded by a practitioner to undertake my visiting scholarship to Oxford in 2013, otherwise I would not have been able to afford it.2

One of the problems, perhaps, is a growing divide between practice and the academy, where the two do not understand the constraints under which the other operates. Personally, I would like to keep a foot in practice. But it’s difficult. Recently, we had an interesting discussion on LinkedIn, as a result of this post by my friend and colleague, Professor Cathy Sherry.

If I were in the UK, I could become a door tenant at a barristers’ chambers, and give boutique remedies advice, as well as continue my academic career. Alas, I am in Victoria, and so I have to consult for a firm, set up my own firm, or do the Bar Reader’s course to hold a practising certificate. I can’t afford to do the Bar Readers’ course, and it seems like a waste of time and money, since I wouldn’t want to appear anyway.

A practitioner friend pointed out that the same is true in reverse for people like him, who want to keep a foot in the academy. Teaching for practitioners has become increasingly difficult, because of the practical and administrative hurdles. As someone who is coordinating a large compulsory subject with practitioner or ex-practitioner tutors, I can only agree. The nightmare of university processes and hiring policies is a significant disincentive. Moreover, practitioners often expect to have administrative support of a kind that universities simply don’t supply any more.

At the moment, it’s difficult not to feel like law schools are under attack on all sides. It’s incredibly disheartening. People keep saying, “But your students enjoy your teaching.” I’m glad to be told this. My students are what keeps me going.

It’s easy to criticise law schools, but to change them in a positive way is more difficult. My intention with this post is to start the conversation, and to think constructively about what we can do to ensure that law schools fulfil the needs of students, lawyers and academics.

I also want to ensure that others share the joy of my area of research, and that there are others to carry on the torch when I eventually retire.3

This is not the piece I wanted to write. I wanted to write something quirky on animal law, or legal history. It’s clichéd, I know, but the only way I can explain this is to say that the muse would not let me. She wanted me to explore the stories we tell ourselves, about creativity, abuse and redemption, uncomfortable as that may be.

I’m used to this, now, but it took a while. I was a highly creative child, but when I was about fourteen, my stories dried up. I only began to be able to write fiction again ten years ago. My style became strange, flat, and matter-of-fact. I think I know why, although knowing oneself back then can be difficult.

The muse is quixotic. I’m a law professor. I should be finishing an article on contract damages, or a textbook on equitable remedies: sometimes, a story or a short article pops into my head. I can’t continue with the academic work until I jot down the basics at the very least.

The story or article I’m given is not always one I expected, nor do I always know how it ends. Nonetheless, I am the conduit, the imperfect vessel. I wonder if the muse should have chosen JK Rowling, so the story would have a huge audience, but I accept the bounty of the muse. It seems churlish to do otherwise.

Sometimes, in my fiction, characters appear. I’m not alone in experiencing this phenomenon. My favourite author, JRR Tolkien, wrote to his son Christopher about the character Faramir, in The Lord of the Rings: “…I am sure I did not invent him, I did not even want him, though I like him, but there he came walking into the woods of Ithilien…”.

At times, my characters won’t “let” me write the story I’d planned. If I try to force the characters, they won’t comply and become wooden. Sometimes, it takes a few drafts before I find out what really happened, or why characters behaved as they did. They can be coy about their motivations.

The genes for creativity, mental illness, and linguistic ability seem to be linked. No, I don’t hear voices, and I can distinguish between reality and fiction. Nonetheless, I can understand how these traits might be linked. Perhaps, subconsciously, my mind has protected me, holding back the more florid aspects of my personality until I could manage them.

The stories we tell ourselves about our own lives are highly culturally inflected. A recent article in the Journal of Personality and Social Psychology considered the different stories told by American, Danish, Israeli and Japanese subjects about difficult times in their lives, and linked this to their cultures and broader well-being.

Culturally, Americans were most likely to tell redemptive stories (where they had a hard experience, but overcame it and worked towards a positive end) and to find meaning in the stories they told about their lives.

Japanese were least likely to tell redemptive stories or to find meaning in the stories they told about their lives. Moreover, Japanese subjects saw both positive and negative aspects of life as coexisting and complementing each other and did not necessarily have a conclusion or draw a moral from their stories.

The Danes were more likely to recognise realise that the scars of bad things remain, but to still accept a redemptive narrative, and to tie this in with their place in their community.

I was fascinated to realise that American and Japanese filmography reflects the stories they tell about themselves. I don’t like Hollywood movies. “And they all lived happily ever after,” has always seemed unrealistic to me. Maybe Tolkien had similar thoughts. The words of Samwise Gamgee about “happily ever after endings” come to mind: “Ah, and where will they live? That’s what I often wonder.”

This is not the only observation Sam makes about stories in The Lord of the Rings. As he sits in the darkness of Cirith Ungol with Frodo Baggins, wondering whether Gollum will betray them, they have a lengthy discussion about their own tale:

“The brave things in the old tales and song, Mr. Frodo: adventures, as I used to call them. I used to think that they were things the wonderful folk of the stories went out and looked for, because they wanted them, because they were exciting and life was a bit dull, a kind of sport, as you might say. But that’s not the way of it with the tales that really mattered, or the ones that stay in the mind. Folk seem to have been just landed in them, usually – their paths were laid that way, as you put it. But I expect they had lots of chances, like us, of turning back, only they didn’t. And if they had, we shouldn’t know, because they’d have been forgotten. We here about those as just went on – and not all to a good end, mind you; at least not to what the folk inside a story and not outside it call a good end. You know, coming home, and finding things all right, though not quite the same – like old Mr Bilbo. But those aren’t always the best tales to hear, though they may be the best tales to get landed in!”

Frodo goes on to observe that the great tales never end; people just come and go within them. Perhaps I’ve taken Sam’s explanation into my own psyche. The tales I tell myself seem more Danish than American, with a lashing of Japanese fatalism, an acceptance that the negative and the positive coexist and complement each other, and a feeling that there is no clear end, and no happily ever after. The muse may visit me, but the way the tale is told is filtered through my culture.

The stereotype of the tortured artist exists in part because creativity can be spurred by pain and suffering, and a desire to retreat from the world. Anaïs Nin wrote in her diary:

“I could not live in any of the world offered to me — the world of my parents, the world of war, the world of politics. I had to create a world of my own, like a climate, a country, an atmosphere in which I could breathe, reign, and recreate myself when destroyed by living. That I believe is the reason for every work of art.”

The same is true for readers, too. Books allowed me to escape temporarily into a different reality. I have had cerebral palsy since birth and suffered health problems. I was teased badly as a child. I was drawn to fantasy and science fiction stories, where the rules are different, and magic or new technology often gives rise to other abilities. While other children aged six or seven wanted to become a firefighter or a doctor, my life’s ambition was to be a hobbit or a fairy with wings.

I wonder if science fiction and fantasy attracts a higher number of “broken” people than the average, because of that desire to escape reality. Anecdotally, I’ve been told that Tumblr, Reddit and other online fantasy and science fiction groups are filled with the broken. I didn’t participate in these groups; I dipped my toe into a listserv in the late 90s and beat a hasty retreat.

However, at times, I too have been broken.

The broken nature of the fantasy and science fiction fan scene has been brought to the fore by allegations that Neil Gaiman, the author of many books, comics and screenplays, has sexually assaulted several women. For many years, Gaiman has been put on a pedestal by a phalanx of adoring fans and authors who loved the worlds he created. In Terry Pratchett’s and Gaiman’s 1990 book Good Omens—a book I have always loved—the angel Crowley “did not so much Fall as Saunter Vaguely Downwards” into Hell.

If Gaiman ends up falling, by contrast, it could be meteoric.

Gaiman’s lofty perch began to wobble when a young woman, Scarlett Pavlovich, alleged that she had been raped and repeatedly sexually assaulted by him, after she had been hired as a nanny for Gaiman’s son.

When Pavlovich’s allegations about Gaiman became public, other women came forward. They alleged that they had experienced similar conduct to Pavlovich, and that Gaiman had used his fame and fan base to recruit women to participate in sadomasochistic sexual practices. These included making women behave like slaves, alleged non-consensual sex, and coercing them to do degrading and vile acts. These claims have been given comprehensive airing in Vulture, a section in New York magazine. Gaiman has categorically denied the allegations of rape and sexual assault and stated that any sexual interactions with these women were consensual.

I can’t judge the truth of the criminal allegations. It’s for a court of law to determine guilt. A friend observed to me that “Gaiman’s books were dark. In some ways, it’s not surprising that he was into sadistic acts, whether they were criminal or not.”

This gave me pause. My own fiction is dark too. My former PhD supervisor said, “I thought you were a sunny, upbeat person, until I read your fiction.” As his surprise indicates, my behaviour in real life is not in keeping with my fiction.

I have a mug which quotes Agatha Christie: “Don’t annoy the author. She’ll put you in a book and kill you.” Writing is a form of catharsis for me, of exploring why people do things, and considering how people may see the same events in different ways. I may kill off characters—they may even be murdered viciously—but this doesn’t I’m a murderer. It simply means that I have a very vivid imagination—verging on morbid—and have thought deeply about why people do terrible things.

Everyone has moments where they have terrible thoughts. Acta non verba: acts not words. It is what people do with their thoughts that matters. The bad man does what the good man dreams.

Sometimes, however, the dreaming good man and the doing bad man are one and the same person. Gaiman is not the only fantasy author to be accused of serious abuse. Two other famous fantasy authors were found to have engaged in abuse after their deaths. Marion Zimmer Bradley, who wrote The Mists of Avalon, was accused of egregious child sexual abuse of both her own children and other children. David Eddings—who wrote The Belgariad—had local authorities remove his adopted children from him because he and his wife had physically abused and beaten their adopted son and locked him in a basement.

Does this mean all fantasy authors are abusive? Of course not. However, this does show that it’s dangerous to put the creators of beloved worlds on marble plinths. The fact that someone creates compelling and beautiful worlds, or entertaining and insightful stories, does not mean they are without sin or flaw. Angels live in fantasy worlds, not in reality. I do wonder if Gaiman’s appeal lies in his dangerous edge. He seems like the kind to make a pact with a demon at the crossroads if offered it.

I’ve always found extreme fandom disturbing, where a creator is venerated, and the characters he or she created are treated as real. Maybe that’s why I kept away from fan chat groups. I’d prefer to know less about authors and creators, not more. I’ve never understood the worship of creators, or the desire of fans to make creators comply with their own fantasies of what authors should be like or should believe.

I was struck, however, when reading the allegations regarding Gaiman, of the yarn which potentially knits together Gaiman, his ex-wife Amanda Palmer, and Pavlovich. At least two of those involved, if not all three, were victims of serious abuse when they were young.

Pavlovich has alleged that on the first day she went to Gaiman’s house to look after Gaiman’s child, he encouraged her to get into the bath. She alleges that he turned up naked, got into the bath, and then asked him to sit on his lap, but she tried to explain why she did not want to do this. The New York magazine article states that Pavlovich said, “She was gay, she’d never had sex, she had been sexually abused by a 45-year-old man when she was 15.”

Palmer, too, has publicly spoken out about her experience of sexual abuse, sexual assault and rape as a teenager and young woman. And Gaiman, it seems, might have suffered abuse of some kind as well. His parents had been deeply involved with the Church of Scientology. In his most recent book, The Ocean at the End of the Lane, the main character, a little boy, is punished in horrendous ways by his parents. Gaiman has said the little boy is him, but he has also denied that these things happened to him.

In Pavlovich’s account, I felt a shock of recognition. A much older man abused me when I was 14. For ten years afterwards, I was unsure about my sexuality: was I straight, was I gay, was I a man in a woman’s body? Was I so broken that I was destined to be alone forever? I was lucky to have the support of my family, and to be protected by friends, even though they did not know about the abuse, and did not understand why I was falling apart.

Had I been faced with a naked man propositioning me in the bath, I likely would have leaped out screaming, and run, such is my absolute horror of such situations, even were I forced to run down the road nude. I have run before, when I was under serious threat, cerebral palsy notwithstanding. However, I have someone to run to; by contrast, Pavlovich came from a broken family and had cut herself off from them when she was in her teens. She was broke and alone. She had nowhere to run.

I’m not going to get into feminist debates about the nature of Pavlovich’s consent, or what the rules should be for vulnerable people. Others have had those debates. I want to focus on the tales we tell ourselves.

In the West today, particularly in the United States, the redemptive narrative has been prominent: the victimised, downtrodden, and abused gain a special wisdom and insight that others do not.

Sometimes this may be true, but often it is not. To say otherwise is a fantasy. Victimhood does not always bring virtue, and to survive abuse, people can adopt maladaptive behaviours. The uncomfortable truth is that statistically, often abusers have been abused when they were younger. One of the maladaptive responses to abuse can be that a victim continues to act out that behaviour upon others.

I must be crystal clear: this does not mean that all abused people become abusive, or even that the vast majority are abusive. Kaufman and Zigler’s 1987 seminal paper on the topic states:

“The rate of abuse among individuals with a history of abuse is approximately six times higher than the base rate for abuse in the general population. Although this suggests that being maltreated as a child is an important risk factor in the etiology of abuse, most maltreated children do not become abusive parents.”

As a teenager and in my early twenties, I turned any abusive tendencies inwards towards myself, instead of outwards at other people. It sounds, at least from the media reports, as if Pavlovich did too; she reportedly suffered from eating disorders and other psychiatric problems and was admitted to hospital.

In my own case, after I was sexually assaulted in my teens, I dissociated. This is like being a passenger in your own body, watching from above or from the back of your head. Sometimes—terrifyingly—you’re not there at all. Others who’ve seen me in this state tell me I am coherent, yet wooden or robotic. I have gaps in my memory during certain periods of my life, particularly during my teens. This is one of many reasons why I never prosecuted the perpetrator of the abuse.

If the allegations against Gaiman are proven by a court of law—or even if they’re not—am I going to throw his books out? The answer is no. I love Good Omens, so won’t be binning it. The only other one of Gaiman’s books I’ve managed to finish is Stardust, which I didn’t enjoy, and gave away to someone else. I started both American Gods and The Graveyard Book and never finished them. They didn’t grab me, but they’re still sitting on my shelf, waiting, in case I feel like going back to them. I still have The Mists of Avalon, and many of Eddings’ books.

I make a distinction between the art and the artist. So often, a creator can be a dreadful person in some ways and nonetheless produce wonderful art, stories, music or films. We should be wary of venerating creators in the way fandoms do.

Moreover, people are complex. Was the person who abused me wholly evil? No. He did many good things too. That’s what makes this complex. The abuse I suffered was wrong, but the person himself was not wholly evil. I still wonder if it were a temporary episode of madness in that man’s life, later brought under control. Does that mean I excuse him? No. It simply means that people are neither angels nor demons, unlike in fiction. Someone can do both good things and terrible things (whether criminal or not).

How do we get through this? I have two suggestions for the reading public. First, do not presume that people who are victims are better than others. Secondly, do not worship authors or creators (or anyone else) as superior human beings, or project your fantasises on to them. They have flaws like the rest of us and should not be idealised. Yes, I realise saying this in a literary magazine is almost perverse.

You can’t pretend the past didn’t happen, or erase it, and you can’t forget it. There will be days when it is hard. Perhaps I was compelled to write about Gaiman because the allegations stirred up the muck at the bottom of my mind-pond; I try to avoid disturbing it too much, while still recognising that it’s there. It seems to me important, however, not to make past abuse or pain the main feature of your identity.

There’s a Japanese method or repair known as kintsugi, where cracked bowls are glued back together with lacquer mixed with precious metal. The repair becomes a feature, a thing of beauty, not a shameful breakage to be hidden or denied. Perhaps this reflects the Japanese notion that positive and negative aspects of life coexist. It’s certainly how I have chosen to treat my own life.

I’m not sure what will happen to Gaiman. It’s reality, not a tale. Still, we must watch the tales we tell ourselves. The redemptive narrative is inspiring, but does not always hold true. Suffering does not always make people better, although it can.

For many lawyers in Australia and beyond, Harold Luntz was a giant in the field of tort law. His name is synonymous with two things: first, his enormous contribution to the scholarship and teaching of tort law generally; and secondly, his championship for a no-fault compensation scheme to ensure that injured people were more readily compensated, regardless of fault. He was also erudite, gentle, and very generous in his support of younger scholars and students.

Professor Luntz born in Johannesburg in 1937. He was descended from Lithuanian Jews who had been forced to flee Europe by growing antisemitism. His extended family in Lithuania later mostly perished in the Holocaust, vindicating his ancestors’ decision to flee.

An only child, he was educated at Athlone Boys’ School in Johannesburg, and went on to complete both arts and law degrees with distinction at the University of Witwatersrand. After a short stint in practice, he was admitted to the Bachelor of Civil Laws at Oxford, at Lincoln College, in 1960. He had always been opposed to the racial segregation of Apartheid South Africa, but his time in England brought home to him how deleterious it was. He returned to South Africa and lectured at the University of Witwatersrand for three years, but regretfully decided that the Apartheid system could not be changed, and emigrated to Australia.

Fortunately for generations of Australian lawyers and law students, Professor Luntz was employed by Melbourne Law School at the University of Melbourne in 1965, as a Senior Lecturer, and remained there for the rest of his career. He was appointed a Reader in 1971, and a Professor in 1976, where he held the George Paton Chair of Law until 2002. He also served as the Dean of the Law School between 1986 and 1988, during which time he helped to bring the faculty together. He “retired” in 2008, and became an Emeritus Professor, but this retirement was in name only: he continued to write, research and assist other scholars and students until his death.

Professor Luntz had visiting professorial positions at the University of California, Berkeley, Queen’s University in Ontario, and Wolfson College, University of Oxford. Outside academia, reflecting his interest in no-fault compensation schemes and law reform, he held a variety of roles, including being the Deputy Chair of the Seafarers Rehabilitation and Compensation Authority (1993–1998), a Senior Member of the Workcare Appeals Board (1990–1992), and the Secretary of the Victorian Chief Justice’s Law Reform committee (1967–1984).

Professor Luntz was one of the founding editors of the Torts Law Journal, and acted as its General Editor from 1993 to 2012. He remained on the editorial board until his death. His scholarship was prodigious and unparalleled, as was his recall and his eye for detail. He received many awards for his contributions towards legal scholarship, including the John G Fleming Award for Torts Scholarship in 2000 and the Australian Insurance Law Association Prize in 2003. In 2019, he was made an Officer of the Order of Australia (AO) “for distinguished service to legal education, as an academic and editor, to the professional development, and to the community.” No award was ever more deserved.

Reflecting Professor Luntz’s generosity, and his dedication to scholarship, the Harold Luntz Graduate Research Thesis Prize is now awarded each year by Melbourne Law School to the best thesis of the previous year.

Few people have written as much or as extensively as Professor Luntz, and his works were always treated with respect by the apex courts in many common law jurisdictions, even in times when academic works were not generally cited. In 1980, he, Robert Hayes and David Hambly came together to write the first edition of what later became known as ‘Luntz and Hambly on Tort’, a textbook which shaped the studies of tort law in Australia. He also wrote Assessment of Damages for Personal Injury and Death (more colloquially known to most as ‘Luntz on Damages’). Fittingly, Professor Luntz was awarded an LLD for the second edition of this book in 1983. He remained an author of Luntz and Hambly on Tort, published in its ninth edition in 2021 (now joined by Kylie Burns, Joachim Dietrich, Neil Foster, Genevieve Grant and Sirko Harder as co-authors). Also in 2021, Professor Luntz was proud to publish the fifth edition of Assessment of Damages for Personal Injury and Death, with Sirko Harder as a co-author, and with the invaluable proofreading assistance and help from Marina Loane.

Professor Luntz reflected with characteristic gentle irony that he was an expert in areas with which he fundamentally disagreed and thought should be abolished: negligence law and the calculation of damages. His concern was always to ensure that injured people were compensated fairly, regardless of whose fault it was.

In his eulogy for Professor Luntz, Professor Ian Malkin recounted that he had been hired by Professor Luntz, via a phone call to Winnipeg, and that Professor Luntz picked him up at the airport when he arrived in Australia. Professor Luntz infected Professor Malkin with his passion for torts and teaching.

Professor Malkin also observed that it was as if Professor Luntz had a computer chip in his brain. Professor Luntz’s recall for all manner of things—but particularly tort law—was extraordinary. His knowledge could readily be described as catalogic. The Honourable Michael Kirby, upon Professor Luntz’s retirement, recounted an event where Professor Luntz was pitted against a machine, in a contest of knowledge about the law concerning “nervous shock”. To the surprise of no one, Professor Luntz trounced the computer. Kirby stated:

Perhaps we should be grateful that we still live in an age where the human brain, with its rare capacities to conceptualise, select and analyse, can beat machines. So far no-one has been able to program a machine as good as the brain — and certainly not as good as Harold Luntz’s brain. No-one has yet attempted to program a machine with a will to do justice.1

This was Professor Luntz’s guiding passion: a will to do justice. He was what is called in Yiddish a mensch: a thoroughly good man who embodied integrity, honour and a sense of responsibility towards others. His son Stephen described Professor Luntz in his eulogy as a person who, if he had been a character in Dungeons and Dragons, would have been the embodiment of Lawful Good. This is true. I remain very honoured that Professor Luntz was my friend. I wish I were more like he was, but I strongly suspect myself of being Chaotic rather than Lawful.

Professor Luntz suffered from severe Parkinson’s disease, scoliosis and other problems towards the end of his life. I was undertaking a rehabilitation program at hospital for my own disability, and my neurophysiotherapist said, in a conversational way, “Is there something which makes law professors who specialise in damages especially friendly, interesting people?” I said, “Oh you’ve met Harold!” She declined to confirm it, on the basis of patient confidentiality, but a quick text to Professor Luntz confirmed that I was right. He never complained about his illness, and the fact that he lived such a rich intellectual inner life sustained him even while his mobility and other aspects of his life were constrained.

In what was to be our final correspondence, I sent Professor Luntz and Emeritus Professor Bryan a draft paper I had written on bailment, as was my wont. Professor Luntz replied a few days later to say that he enjoyed it, but noted (correctly) that there were four typographical errors, and that the paper could be improved by a reference to the recent High Court case of Arsalan v Rixon.2 As in so much else, I immediately took his advice. I am sad that this was our last correspondence, but I am glad that it was so quintessentially Harold.

Professor Luntz was a dedicated family man and a devoted husband to Jennifer. He was buried beside her at MCK Lyndhurst Cemetery on 31 January 2025. He is survived by his son Stephen, his daughter Heather and their families. He will be missed but his contributions to legal scholarship, law reform, teaching and society will live on, and his memory truly will be a blessing.

See the animal in his cage that you built
Are you sure what side you’re on?
Better not look him too closely in the eye
Are you sure what side of the glass you are on?
See the safety of the life you have built
Everything where it belongs
Feel the hollowness inside of your heart

And it’s all
Right where it belongs
What if everything around you
Isn’t quite as it seems?

What if all the world you think you know
Is an elaborate dream?
And if you look at your reflection
Is it all you want it to be?

What if you could look right
Through the cracks?
Would you find yourself
Find yourself afraid to see?

What if all the world’s inside of your head
Just creations of your own?
Your devils and your gods
All the living and the dead…

‘Right Where It Belongs’, With Teeth, Trent Reznor, 2005

Writing fiction is very odd. I make marks on a page, and share the devils and the gods in my head with you.

Long time readers may recall that my original aim with this Substack was not to rant about academia or to tell you interest facts about legal cases. That happened accidentally.

My original aim was to get feedback on my second novel, The Hidden People, and hopefully find a publisher.

Alas, I suspect it’s not de rigueur these days to write a fantasy novel drawing from Celtic and Norse mythology, with quotes from Shakespeare sprinkled throughout. I ended up self-publishing it on Amazon. You can still read Chapter 1 and Chapter 2 on this Substack.

Joanna and her two brothers are doing their best to live a normal life, but it’s a challenge. When they were growing up, their Mama hid them from authorities and didn’t send them to school, until they were taken from her care in their teens.

However, when Henny, Jo’s oldest brother, disappears in the middle of the night, and Jo has to find him, she starts to wonder - what’s true and what isn’t? Has she really fallen into a different world? Or is this all just a dream? And if it’s real, can Jo really trust Annurin, the hunter who’s captured her, and who’s bringing her before a mysterious “King”?

My daughter’s friend “dexalyys” is a talented artist. Some time back I commissioned him to do sketches of some of the characters: Jo, her brothers Simon and Henny, Annurin, Méabh, and the Bone King. Below are the fruits of his labours.

I’m just so delighted: he really got the sense of the characters. I thoroughly recommend his work - you can commission him here. He understood the devils and the gods in my mind and gave them shape.

Trigger warning: discusses historical sexual assault

I could, if I wished, tell you a very sad tale, of a girl who was born prematurely. She has cerebral palsy and suffers difficulties with her lungs to this very day. She could not walk properly, and was teased as a child. Every week, during primary school sport, she was the last person to be picked for teams: the other children would groan and say, “not her, we don’t want her.” She had multiple operations, and was in and out of hospital. As a teenager, she was sexually assaulted by someone she loved and trusted, but did not tell her parents out of shame, and became suicidal instead.

And we haven’t even yet plumbed the depths of the pains suffered by her ancestors! Not one of them had an iota of privilege. Her grandparents were so poor none of them attended school past the age of fourteen. One lived in a shack with a dirt floor.

Her Gaelic-speaking Highland Scots ancestors were cleared from their ancestral lands. One drowned in Sydney Harbour (possibly suicide), another burned to death after a candle fell over in her bedroom. Her Irish ancestors, Orange and Green both, came to Australia because they were starving as a result of the Famine. Her Aboriginal ancestor might have come from a Rockhampton tribe decimated by the Native Mounted Police; or perhaps he was a member of the Native Mounted Police himself. We don’t actually know. Many of her English ancestors were impoverished convicts: pickpockets, thieves and prostitutes, transported to a land they knew nothing about. One was picked to be a concubine to a Rum Corps Officer: a convict “comfort woman”.

I could, if I wished, tell you a tale of privilege, of a girl with pale skin and freckles, and reddish brown hair. Despite a difficult start in life, she thrived, and excelled at school. She made many close friends whom she maintains to this very day. She also had the rare ability to shine across arts and sciences, as well as artistic talent. As a teenager, she attended a private school in Australia, and then one of the top academic private schools in England. She got into a prestigious degree at a top Australian university, and completed it. She travelled the world from a young age, and was loved and supported by her family. Eventually, in her twenties, she was even invited to join a womens’ soccer team! She was incredibly lucky.

You’ve guessed, haven’t you? Both girls are me. Two sides of the same coin. I could, with perfect truth, paint myself as one or the other. The way things are currently, I’d get far more sympathy with the first portrait of myself. Female. Tick! Disabled. Tick! Indigenous ancestor. Tick! Survivor of sexual abuse. Tick! These disadvantages give me a bulwark.

But should they? I have, as it happens, been speaking out on Indigenous issues and teaching Indigenous students since 1998. I didn’t know about my Indigenous ancestor until a lot later (although a lot made sense once we discovered it). Should it make a difference? Do I suddenly gain a right to speak which I did not have before, through a previously hidden accident of birth and ancestry?

Someone asked me how I continue, with illnesses, my disability, and the difficulties I have suffered in the past. The answer is: I do not think of myself as a victim. Don’t get me wrong, I’ve been tempted at times to dwell on the ills done to me, particularly in relation to the sexual assaults. I’ve not discussed that aspect of my life publicly before, only explored it in fiction.

For ten years, I called these events ‘the bad thing’ and I wouldn’t allow my mind to go there. If ‘the bad thing’ popped into my mind, I’d stop and close my eyes and repeat, “Don’t think, don’t think, don’t think,” until it went away. I learned some years ago that one of the responses I developed is called ‘dissociation’: it’s like you’re a passenger in your own body, sitting at the back of your mind, watching things happen to you—but you’re not home. I didn’t realise that normal people don’t do that.

Now, I try not to deny the past, but I also try not to allow past events to overwhelm me. Of course, these events had an impact. During my teenage years and early twenties, I struggled to trust men, and thought I would never have an intimate relationship. I couldn’t bear to be touched in an intimate way unless I was blind drunk. I was confused about my sexuality. Much of the time, I wore long floppy jumpers or dresses to hide my body.

When I was twenty-five, and trying to put the pieces of myself back together, I travelled around South East Asia (Thailand, Laos, Vietnam and Cambodia). Many people I met on that journey had suffered unimaginable pain—war, genocide, forced removal, starvation, death of family members, dreadful injuries, terrible authoritarian regimes—far worse than any pain I’d suffered.

At one point, when a North Vietnamese cyclo driver asked me where I was from, I confessed I was Australian and wondered if the North Vietnamese bore any ill-will towards Australians for their part in the Vietnam War. He looked at me with puzzlement, when I turned to meet his eye. “Why would we? That was then, this is now.”

We are all moments in time. And people change, and this is now. There is so much more to me than just victim: I am a mother, wife, daughter, sister, friend. Yes, I ended up marrying a man, and having children, despite my certainty as a teenager that I never would. Professionally, I am a lawyer, a professor, a teacher, an author. The past still rises up to haunt me at times, but I try not to let it consume me.

I decided not to prosecute the perpetrator of the sexual assaults when I was twenty-four. I was afraid I’d tear myself and my family apart, and cause distress to his wife. Because I am a lawyer, I was also concerned that, after the passage of ten years, I couldn’t name precise dates, and that, even if he was gaoled, it wouldn’t make things better. The harm had been done, and I didn’t think he was a risk to others—if I had thought he might do it to someone else, I’d have felt differently. I never confronted him before he died, and I still don’t know why he did those things.

As I’ve said elsewhere, it doesn’t follow that I am good or wise because I’ve suffered hardships. This is even less the case simply because my ancestors suffered. Suffering does not always make you a better person.

For some people, it may enhance their empathy and understanding of difficulty, although I think I am naturally empathetic. But not all people respond like that to disadvantage.

Some people want to take revenge, and flip the tables on those who bullied them. I do not: when I heard a girl who had teased me in high school was rendered disabled in a car accident, and unable to walk properly, I was horrified.

For others still, I suspect that pain makes them solipsistic, focussed on the self and their own suffering.

Being a victim, or being descended from people who were treated badly, does not necessarily give you special insight.

That was then, this is now. Sometimes, justice can’t be done, as any lawyer knows. I know it more than most; I specialise in remedies law.

Things can’t always be put back as they were. Some wrongs can’t readily be fixed. You may as well try to unscramble an egg, to make it unbroken and whole again.

If I had a message I could convey to my young self, it would be this: “You are strong. You will survive. It will be okay.”

All we can do is survive, try to live our best lives, and not be consumed.

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People who point out the Emperor’s nakedness are not popular. In Anderson’s story, it is significant that a child tells the truth—no one can blame a child. For similar reasons, monarchs had Fools to point out the things no one else could. An ordinary person, however, points out the Emperor’s lack of clothing at his or her risk. Too many other people have accepted the existence of the clothing to let someone point it out. People are invested in maintaining the illusion.

Trust the Chinese to have a version of this story illustrating how the truth can be dangerous to those who dare speak it. There is a chengyu (idiomatic four character expression) 指鹿為馬 (zhǐ lù wéi mǎ) “Calling a deer a horse” which sums up the story. The full version is told by Sima Qian in the Records of the Grand Historian:

Zhao Gao was contemplating treason but was afraid the other officials would not heed his commands, so he decided to test them first. He brought a deer and presented it to the Second Emperor [Qin Er Shi] but called it a horse. The Second Emperor laughed and said, “Is the chancellor perhaps mistaken, calling a deer a horse?”

Then the emperor questioned those around him. Some remained silent, while some, hoping to ingratiate with Zhao Gao, said it was a horse, and others said it was a deer. Zhao Gao secretly arranged for all those who said it was a deer to be brought before the law. Thereafter the officials were all terrified of Zhao Gao.1

In this version of the tale, there is no moment where everyone looks at each other and acknowledges the lie: “Oh, the deer is really a deer!” Instead, the willingness to repeat the lie identifies those who are honest and courageous, in order to ensure they are eliminated. It’s a reverse “loyalty test”, with a perverse outcome: the dishonest and cowardly are promoted.

In the event, one attempts such loyalty tests at one’s own risk. Zhao Gao apparently met a sticky end. Ziying, the man whom Zhao Gao installed as the next Qin Emperor, ordered him assassinated and exterminated his entire family.

A while back, I applied for a leadership position in the university. In my application, I said that two of my strengths are courage and honesty. I didn’t get the job—don’t worry, I wasn’t sad—I didn’t have the relevant leadership experience, nor would I have been right for the job. I am not good with administrivia. Universities are increasingly jam-packed full of administrivia.2 I really enjoy teaching and research, and I’m better off staying there. However, I felt honour-bound to apply.

When I told non-academics what I’d written about courage and honesty, they nodded. When I told anyone from an academic institution that I’d written this (whether they were Australian or from overseas) they winced and sometimes laughed. Some said, “Well, you lost your chance at an interview, right then and there.”

There is a problem in a sector if this is the general perception. Having witnessed the performance of the presidents of several Ivy League universities before a Committee of the US House of Representatives, it is entirely evident why academics across the globe might be cynical about the qualities valued in academic leadership. The disturbing aspect of the testimony of the Presidents was their unwillingness to call a deer a deer.

My own belief is that academic institutions have become managerialist behemoths, which operate more like a mega-corporation than an institution of learning. This is not conducive to displays of courage and honesty. It is also not conducive to student learning.

Mind you, it has always been dangerous for scholars to stick up for their principles. While I was researching the history of remoteness in contract law damages for a journal article, I came across two legal scholars. The first, Charles du Moulin (‘Molinaeus’), a Frenchman (1500 - 1566) was originally a Catholic. During his lifetime, he converted to Calvinism, then to Lutheranism, then back to Calvinism, and finally, back to Catholicism on his deathbed. He was forced into exile for his religious beliefs, and fled to modern-day Switzerland, among other places. Later he was imprisoned by the parlement of Paris for speaking out against the Council of Trent. He was also instrumental in developing what later became the rule of remoteness in Hadley v Baxendale: he developed the argument that the rule depends upon what was known or perceptible at the time of creation of the contract.

The second Huig de Groot (‘Grotius’) (1583 - 1645), was the famous Dutch natural law scholar. Grotius was a Dutch Protestant. He spoke out against religious influence in civil government, including in appointment of academics to positions in universities. This lead him to be accused of being “diabolical”, and he was condemned to life imprisonment. However he was able to flee to France. Grotius also used the work of the Late Scholastic scholars in his discussion of contract law, to help popularise the notion that consent was the animating principle behind contract law (although Pufendorf proved more influential).

I know that, sometimes, I rub people up the wrong way. However, I felt better after reading of the lives of these two men. I am not yet so annoying that I have not been imprisoned for my beliefs, nor have I had to flee to another country, unlike Molinaeus and Grotius. Nor have I had to be smuggled out of a castle in a book chest, like Grotius.

It takes courage and honesty to speak out against ideological and religious norms in this way. Would I be that courageous and honest? I’m not sure. I hope I’m not tested.

A friend noted that in a modern democracy, it’s unlikely that you will be killed or imprisoned for your beliefs. What, then, can be leveraged to produce ideological conformity in the modern age? That which keeps you alive: your income, and your employment. The stories of these two men caused me to wonder—if I transgressed an ideological norm, would it be possible to flee to a different country, as they had? The world works differently now, because of the global information economy and the Internet. You could go somewhere else and remake yourself back then. It’s less easy now. The fact that I’ve been public and outspoken about my views means I can’t escape them.

The importance of employment has been recently noted by the High Court of Australia in Elisha v Vision Australia Ltd,3 where the court quoted approvingly from an English case, Johnson v Unisys Ltd,4 and said:

It has been described as a “social reality” that a person's employment “is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem.”5

Therefore, the decision to terminate a person’s employment should not be made lightly. This is particularly the case in academia, where, as established in Ridd v James Cook University,6 academic freedom means that academics must be allowed to express views with which others may disagree.

A corporatised university, however, may prefer academics not to be “difficult” in order to maintain the brand.

Academic institutions are also in a bind. It is very difficult to terminate a senior academic and a time-consuming and intricate process must be followed. I have a hypothesis that this has an unexpected side-effect. As I’ve described in my post on non-disclosure agreements, it may mean that an employee who displays deeply problematic behaviour gets away with it, particularly if they are productive researchers who otherwise add to the university’s prestige, and bring in grants. By “deeply problematic behaviour” I mean serious sexual misconduct and serious unprofessional behaviour (discriminating against or harassing students, bullying or assaulting colleagues).

The difficulty involved in terminating a permanent academic appointment means that it’s easier to indicate to the employee that they should look elsewhere, and to help them become another institution’s problem. Even absent a non-disclosure agreement, the process is shrouded in confidentiality, so that even victims of any problematic behaviour are not aware of what is happening. Unlike, for example, my publicly expressed heterodox views, the very nature of the conduct means that it’s usually not public. No one wants to risk a defamation suit. The best case scenario is that the academic moves elsewhere and desists from the conduct; the worst case scenario is that the academic repeats the same or worse conduct at another institution.

I don’t have much hope that recent Australian reforms, such as a National Student Ombudsman, will make anything more than a superficial difference to academic institutions. Indeed, my fear is that more government intervention may just make the layers of bureaucracy worse.

It is clear that the Australian university sector is in crisis. As I have described in one of my first posts, I believe that the incentives created by government grants to publish or perish are at the heart of the malaise of modern universities.

I’m prepared to call a deer a deer. We must return to institutional neutrality; we must emphasise knowledge, not activism; and most importantly, we must fundamentally reform the perverse incentives created by grant processes and academic publishing. Let’s ensure academics believe that courage and honesty are valued.

May all my readers, friends and family have a happy healthy year ahead.

I gift you an image of one of my favourite events of 2024: the visit of our echidna friend.

With best wishes, Katy