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Ian Callinan’s first novel would have gained little attention but for his subsequent appointment to the High Court. The following two reviews present two different perspectives on the book, and what lawyers may learn from it. The first review is by Margaret Thornton, Professor of Law and Legal Studies at La Trobe University, the second by Bron McKillop, Senior Lecturer at the University of Sydney.
Callinan’s book will not gain fame as an elegant work of fiction: the writing is flat, the conversation stilted and the characterisation wooden. The sex scenes, which the broadsheet journalists had to go to quite a lot of trouble to find, are crass and perfunctory. Nevertheless, the novel is fascinating – because the author is a High Court judge.
The legocentric reader is bound to want to know what light the book sheds on the workings of the judicial mind, and the extent to which it might be useful in predicting the outcome of future decisions. Prediction, however, is a fraught exercise and I am reminded of the questionable pursuit of jurimetrics, with its tendentious belief that adjudication would have predictive value if only the art of predicting were more scientific. A colleague who spent some years plotting judicial decisions on a graph finally decided that the entire exercise was misconceived, for there was no way that one could capture and measure the elusive human variables that an accurate predictive instrument would require. Reliance on Callinan’s novel could be just as risky. Nevertheless, there are plenty of clues to tantalise the adjudicative sleuth.
What is of particular interest to me is the light the book throws on the sociology of the legal profession. The reader is given kaleidoscopic glimpses of the extraordinary masculinist and homosocial world populated by lawyers, corporate tycoons and public figures. Albeit unintentionally one suspects, the book helps to provide an understanding of why the legal profession has been so resistant to the acceptance of women and “others’ as authoritative members of the jurisprudential community. We see the bald ambition, greed, jealousy, and vindictiveness, as well as the narrowness, of professional men as they pursue money, power and “success’ to the virtual exclusion of all else. Having recently conducted a study of women in the legal profession, I found that the book supported my thesis that the fraternal ties linking Anglocentricity, class, boys’ schools, sport, militarism, heterosexuality and corporatism effectively produce normative images of law that subtly relegate women and racialised “others’ to fringedweller status – a thesis moderated by the contemporary demands of corporate capital and “the economy”. [1]
This theorisation challenges the liberal progressivist understanding that it is just a matter of time before substantive equality is effected through the admission of comparable numbers of women. “The Lawyer” of the title is Stephen Mentmore, whose life trajectory is traced from his early years to his appointment as Chief Justice of the High Court, illness and premature death. “The Libertine” is George Dice, Mentmore’s lifelong rival, who became a politician and Attorney-General. Between the two is their mutual friend, Edward Lester, a journalist, who occupies the “neutral” role of observer and commentator. The book spans half a century from the 1930s to the 1980s. It is set against the backdrop of actual historical events – the post-Depression era, World War II, the Cold War, and the election and downfall of the Labor Government. While there is the usual disclaimer that the book is a work of fiction and “no resemblance of any kind is intended to any living person”, there is a more equivocal statement relating to “real people now deceased”. Some of the latter, such as H V Evatt, are clearly identifiable. Evatt is depicted as a vainglorious character called Doc Neroty. I assumed that the moniker was intended to suggest “neurotic”, but a colleague thought the allusion was to “Nero”, with its even more damning overtones. Dice, the libertine, is a thoroughly reprehensible character: “traitor, blunderer, hypocrite ...wife beater” (p315), a “violent, deceitful lecher, a vile libertine, a voluptuary” (p322). Some of the events in which he engages suggests that he is based on a pastiche of Labor men, including the late Justice Lionel Murphy, who was Attorney-General in the Whitlam Government before appointment to the High Court. What is clearly discernible through the lens of “accuracy” claimed by the author for the historical background is the unrelieved hatred and disdain for anyone associated with the Labor Party. In contradistinction, is Mentmore, the “arch-conservative”, who is not particularly likable either. He is described as a “narrow, fastidious man” (p2) and a “social neuter” (p293), whose lack of imagination induced some to say that “his mind ran on railway lines” (p3). We are nevertheless informed on many occasions that he is “brilliant”, although the evidence in support of this claim is somewhat thin as he seems to possess neither insight, reflexivity or vision about either law or life. We are expected to accept a positivistic paradigm in which technical ability and skill in devising ways around regulation are equated with brilliance. Justice for Mentmore would seem to be incidental. But then we know that law and justice are not the same thing at all. The men prove their masculinity on the football field, in war, and in the bedroom, as well as in the courtroom. Militarism and/or sport produce cultural capital that is vital to “success”. For example, Mentmore joins the Air Force and participates in the bombing of Dresden – which is applauded. In contrast, Dice’s decision to enlist at a very late stage, and his assignation to a lesser theatre of War – Intelligence in Borneo – is derided. Mentmore’s “good war service” is subsequently noted as a factor in his favour in the context of appointment to the Bench. The unstated assumption is that militarism, particularly the perpetration of barbarous acts, is appropriate training for the adversarialism and violence of law, as well as for public “service”. The protagonists grew up in Sydney’s working class Mascot during the Depression, where life was further divided along religious lines. The issue of class ostensibly disrupts the idea of the paradigmatic middle class man of law. However, the suggestion is that any perceived disadvantage emanating from working class origins can be overcome by consciously positioning oneself close to sources of power and wealth. Dice, whose parents ran a general store and who became rich through Mick’s SP betting shop, attended a prestigious boys’ school run by the Jesuits – St Bartholomew’s (Riverview?). At school, fraternal bonds are forgedwhich underpin his political and professional life: He made a number of friends among the boarders. Later those friendships came to provide him with a valuable network of supporters among some of the richest and most influential Catholics in the country (p59).In fact, Dice’s first legal job was in a firm in which the son of the senior partner had been a classmate at St Bart’s. Mentmore, whose father is a union official, goes to Inner Street (Fort Street?) High School. We learn nothing of the experience, and it is inferred that the cultural capital acquired in a public school, or even a university, is likely to be of comparatively little assistance in legal practice. Thus, Mentmore is compelled to embark on a career at the Bar with “no contacts, no influence, no money, not even legal friends, just his brilliant results and a will to succeed” (p174). Nevertheless, he is rescued by a fairy godfather, the salvation of many an ambitious young man – a leading “silk” who takes him under his wing. He marries, moves to the North Shore, has children (whom he sends to private schools), joins a prestigious club (nominated by his master) and specialises in equity and commercial work (the “carriage trade”), thereby firmly aligning himself with the rich and the conservative. Like Sir Garfield Barwick, Mentmore effects a political and class transmogrification. [2]
Indeed, Mentmore’s fortunes come to be intimately intertwined with corporate capital, for he is retained by powerful newspaper proprietor, Dinny O’Hearn. As a result, he is offered “one of the safest seats in the country” if he agrees to stand against “the dishonesty and destructiveness of people like Dice” (p280). Mentmore is even assured of the position of Attorney-General, but he is not interested. Instead, he becomes Chief Justice of the High Court – complete with automatic knighthood – at the behest of the newspaper proprietor. In what one can only hope is a “genuine” fiction, O’Hearn categorically informs the Liberal Prime Minister: “I’ve decided Stephen Mentmore should be the next Chief Justice” (p289). Here, we see how conservatism, corporate power and benchmark masculinity are imbricated with each other in the constitution of merit. The fact that Mentmore is a good technical lawyer clinches his acceptance as the “best person for the job”. The technocratic veneer effectively occludes the sociopolitical factors that animate the decision. In any case, their normativity in high level appointments has come to be accepted as evidence of impartial decision making. If one factor is altered, vociferous cries of partiality can be heard. The point is thrown into high relief when a woman is appointed as Chief Justice, following Mentmore’s resignation. Shirley Leeme emerges from nowhere, even though she must have had a spectacular career somewhere, having been appointed a QC at 33. Despite the claimed attention to historical background, there is no sign of the changing gender profile of the legal profession that began to occur in the 1970s. Shirley Leeme’s values are the antithesis of those of Mentmore. Instead of neutrality and order, we have partiality and disorder. (Is her name meant to be an unsubtle anagram of melée?):
She was an avowed centralist. If she had her way, the Constitution would be interpreted to hasten the accrual of power to the central government. She would be receptive to all the fashionable arguments to expand the rights of minorities. She would be a bold and fearless innovator according to her own confident opinions, and without regard, when it suited her, to precedent (p307).
Hers is a “blatantly political appointment with unimpeachable Labor credentials” (p14). Like the Labor men, she is stereotypically unscrupulous and ambitious. She is also the victim of that grossest of gender stereotypes: she has slept her way to the top to compensate for her (obvious) lack of “merit”.
The other women who appear in the novel, largely as rather shadowy figures in the background, are also stereotyped. For the most part, they are good women who tend the hearth and provide (sexual) comfort for, or are preyed upon, by the important players, the men of law and politics. Unlike Shirley Leeme, they accept their subordinate social roles. If they must venture into the workforce, it is out of necessity (not ambition), as in the case of Mentmore’s mother or his old flame, Hannah East; they then pose no threat to the main players.
Rather than a well crafted work of literature to be enjoyed, Callinan’s book, for me, fell into the category of work. However, if you want an insider’s perspective on the masculinist values underpinning the legal profession, which are entrenched through the intimate linkages forged between Anglocentricity, class, private boys’ schools, militarism, sport, able-bodiedness, heterosexuality, corporate capital and political power, this book is worthwhile – even though it confirms what many of us already know. The book also shows how benchmark masculinity can be ethically corrosive, a phenomenon that may be less obvious. I am not referring to corruption on the grand scale attributed to Dice, but to the way that the granting of reciprocal favours has come to be accepted as a perennial subtext of fraternity. It is these perspectives on legal knowledge and the multiple sites in which that knowledge is constituted, rather than the narrative itself, that is of most interest in the reading of Callinan’s book.
This is a “work of fiction” about lawyers and politicians in Sydney and Canberra from the 1930s to the 1980s. It was written by a Brisbane barrister who is now a High Court Judge. Not surprisingly it is a book that lends itself to different readings. I propose to separate out some of those readings for the purposes of this review although readers will doubtless be able to effect, to degrees depending on their interests, the several readings jointly.
The basic story is constructed around two male protagonists, Stephen Mentmore and George Dice. They are, respectively, the lawyer and the libertine, although Dice is a lawyer also. The two grow up together in Mascot, a working class suburb of Sydney, during the Depression of the 1930s, Mentmore with a seriously Protestant (Baptist) mother and Dice in an Irish Catholic family. Stephen is invited on a Dice family holiday up the north coast where George punches him into submission after he lashes out at George for speaking lewdly about Stephen’s sweetheart, Hannah. With this incident the two males “join issue for life”. Mentmore’s secondary education is in a top high school (very like Fort Street) and Dice’s at a Jesuit school (very like St Ignatius). The two boys are opposed in a school rugby union game in which Dice repeatedly tackles Mentmore heavily and often late but Mentmore kicks an equalising field goal. Mentmore gives up football after this game but Dice later becomes a rugby league star. After school they both enrol at the university to study law. But with the Second World War then on Mentmore joins the Air Force as soon as he can to train for aircrew and later flies bomber raids over Germany, while Dice, by pulling strings and at the end of the war, enlists in the Army as a Captain so as to obtain rehabilitation benefits and to avoid disadvantage in a political career.
After the war the two complete their law studies, Mentmore brilliantly and Dice by doing enough to get by. They commence practising as barristers. After a long and successful career at the Bar, Mentmore finishes up as Chief Justice of the High Court. After a few years as an aggressive advocate Dice is elected to the Federal Parliament as the Labor member for Mascot and later becomes Attorney General. Mentmore is presented as reserved and lonely, hard working and dedicated to the law and Dice as charming and gregarious, a political opportunist and supremely self-interested.
The differences between the two protagonists are also made manifest in their relations with women. Mentmore becomes involved with three women in his life – a childhood sweetheart (Hannah), an English wife (Virginia) and Dice’s wife (Margaret) – but, although he is said to be capable of great love and faithfulness, these relationships are not particularly satisfactory, either emotionally or sexually, and they do not endure, though through no fault of his. Dice, on the other hand, has been a sexual predator since boyhood and exploits to the full his seductiveness to women. He rapes Mentmore’s childhood sweetheart Hannah after Mentmore had rediscovered her struggling along as an impoverished university student, causing her to clear out of Sydney and to disappear again from Mentmore’s life. He savagely beats his financially supportive but neglected wife when he discovers that she has been seeking solace with Mentmore (causing her too to disappear from Mentmore’s life).
The book is described on the title page as a “novel of passion and revenge”. The passion is Mentmore’s, both for his work and his women, not the predatory and opportunistic Dice’s. The revenge also turns out to be Mentmore’s, presumably for all the pain, physical and emotional, inflicted on him by Dice and effected when Mentmore, having left the High Court, is dying of cancer. Mentmore is able to expose Dice for having arranged a secret commission for himself as part of a Labor government attempt to procure a loan from a Dubai bank to finance the “grand scheme” of a national power grid.
So how well is this “life-long two-handed drama of Mentmore and Dice” dealt with in novelistic terms? Not very well, it has to be said. The characterisation is essentially flat and lifeless, and this is compounded by the authorial tendency to tell the reader early on what a character’s basic traits are rather than revealing them by the way the character acts and speaks. Thus we are often told that Mentmore is a man of passion but we do not see much manifestation of this. The dialogue too is stilted, often reading like formalised argumentation or exchanges of information rather than genuine human verbal interactions. The plot however is quite well crafted in tracing the inter-acting, generally conflicting, paths of two Depression boys to prominence in law and politics through to their interrelated demises, although there are some contrived coincidences to push the story along. The settings for the story are also quite well realised – Sydney during the Depression, Protestants and Catholics, rugby union and rugby league, the business of the courts. (For a Sydneysider there are however some discrepancies – the Law School during the 1940s was (and still is) in Phillip Street not on the Sydney University campus near Glebe, and if you lived in Glebe you would be highly unlikely to go for a walk in Centennial Park.)
There are some problems with the structure of the novel. There are two longish episodes that do not fit easily into the development of the basic story. One is about Mentmore’s wartime experiences. Over many pages he is trained for aircrew, spends time in bomber command in England and eventually flies bombing raids over Germany, including the firebombing of Dresden. All this allows him to meet his future English wife, to show determination and courage, and to know grief for the loss of fellow flyers, but it adds insufficiently to the main story. The other episode concerns a defamation case in which Mentmore appears for the plaintiff, a Minister in the State government, against a newspaper which had the Minister “Caught in Lovenest”. Mentmore outsmarts his opposition and the trial judge and wins the case but, apart from showing Mentmore triumphant over the other players in the case, it is a diversion from the main story. The subject matter of the case cannot really be related to any similar predicament of the protagonists in the novel. (There is another small discrepancy in the telling of this episode. Mentmore at one stage refers the judge to section 17 of the Evidence Act in support of an argument that he should be allowed to prove that a witness for the defendant newspaper had made a previous statement inconsistent with evidence of the witness given under cross-examination. Section 17 of the then NSW Evidence Act dealt with something quite different. This matter is however dealt with in Section 18 of the Queensland Evidence Act with which the author was probably more familiar).
Another problem is with the character who purports to link the two main protagonists throughout the novel, one Lester. He grows up with the protagonists in Mascot, becomes a journalist with the leading Sydney newspaper and the confidante of the two protagonists, listening to their views, and giving them information, about each other. His wife justly complains that he lives his life through the lives of his two friends. Although he appears frequently in the novel, his character is insubstantial and his contribution to the novel quite limited. So as a novel, the book does not rate too highly, but it will be a worthwhile read for those interested in a story about law and lawyers in recent times in Sydney.
The book could be read as an account of recent legal and political history in Sydney and Canberra. Although there is a note at the front of the book in which the author claims that the principal characters “are entirely characters of the imagination”, he hopes that the “background to the events in which they are involved is accurately described”. It is a hazardous task creating fictional characters against an historically accurate background. The characters may turn out not to be so fictional, the background not so accurate and the distinction between the two can easily become blurred. There is also the underlying problem of the author’s predilections distorting the background and discriminating in sympathy among the characters. There is the risk, particularly, of political bias. The author has not entirely succeeded in overcoming these hazards.
As to the principal characters, there are many similarities between Dice and Lionel Murphy. They both came from Irish Catholic backgrounds, they both practised industrial law in Sydney, they were both Labor Party politicians and Commonwealth Attorneys General, they both led raids on ASIO and they were both involved in trying to raise large sums of money overseas for national development schemes though stated to be “for temporary purposes”. There are also similarities between Mentmore and Garfield Barwick. They were both leaders of the Sydney Bar, had similar philosophies of law and approaches to advocacy, they both cross-examined notably at a Royal Commission into espionage and they were both Chief Justices of Australia. Although there are considerable dissimilarities in both cases (Dice, unlike Murphy, was not on the High Court; Mentmore, unlike Barwick, never became a politician (and Mentmore was over 20 years younger than Barwick)), it is difficult to read about Dice and Mentmore without associating them with Murphy and Barwick. The more serious concern, however, is that some readers may come to infuse their understanding of Murphy and Barwick with what they have read of Dice and Mentmore.
As to the historical background, there is sufficient accuracy in the earlier events and characters in the book – the Depression, the Second World War, the Gulganin (Petrov) Royal Commission, Sir Lionel Portson (Sir Robert Menzies), Dr Neroty (Dr Evatt – although not everyone would accept that the Doc was as neurotic as Dr Neroty). There is, however, a strange rewrite of history in the character of the managing director of the leading Sydney newspaper, the long established Sydney Clarion (presumably the Sydney Morning Herald). This character, Dinny O’Ryan, is a devout Catholic, an implacable enemy of the Labor Party (socialists and “irredeemably evil”), and responsible for Mentmore’s appointment as Chief Justice. Few would recognise Sir Warwick Fairfax, managing director of John Fairfax Ltd during the relevant period.
As we get closer to the present, with some of the players still alive, public events become less historically accurate. The Labor Government, which had come to power in 1968 (rather than 1972), loses office in the late 1970s after much factional fighting, rorting of the system and the national power grid fiasco, but not because of any problem with supply. Labor is re-elected in about 1983, Dice becomes Attorney General (Mr Justice Murphy was then on the High Court) and arranges, as a piece of political opportunism, to have Shirley Leeme QC – Labor Lawyer, political activist, feminist and widely believed to have been Dice’s lover – appointed Chief Justice of the High Court. If Leeme’s appointment as Chief Justice in the 1980s is to be read as “background” it is obviously not accurate. Leeme is a creature of the imagination, although not a principal character. She seems to have been introduced both to show how reprehensible Dice can be and to express the author’s concern about having a person anything like Leeme as Chief Justice of the High Court.
There are clearly problems in reading this book as recent legal and political history. Of the two principal characters, only partly fictional, Mentmore is decidedly more sympathetically drawn than Dice. As to the background characters and events, mainly political, the right side of politics comes out much better than the left. The right has no disasters like the demented Dr Neroty, the ASIO raid or the national power grid scheme. History is always under threat from the historical novel, but more so in the face of political bias.
Reading into a novel the views of the author about the matters dealt with is a dangerous enterprise. There is an obvious difference between a novel and a personal manifesto. Many of the views and attitudes in this novel however are expressed by way of authorial statement, rather than by way of the thoughts and words of the characters. In addition the author is fairly clearly sympathetic to the views and attitudes of some of the characters (particularly Mentmore) and unsympathetic to those of others (particularly Dice). It could be plausibly argued therefore that the views of the author on law and lawyers, the subject matter of the novel, can be discerned from a reading of the novel. This is more so as the author is a lawyer and will obviously have views about such matters. Such a reading becomes more significant as the author, since writing the book, has himself become a High Court Judge.
The views expressed in the book about law and lawyers largely focus on the role of the judge. The author’s views on this clearly favour a strict legalism. Approvingly referred to are reliance on precedent, legal reasoning, a principled approach, a comprehensive knowledge of the law, the judge as interpreter rather than maker of the law, the elimination of prejudice and prejudgment, and judgments of brevity, clarity and precision. Disapprovingly referred to in relation to judges are political agendas, policy implementation, social engineering and lack of respect for the law. Other discernible views are reservations about environmentalists, feminists and minority rightists. In relation to environmentalists (and the interpretation of the Constitution) there is a revealing judgment by Mentmore CJ in a case involving an attempt by the Queensland government to allow the development for commercial purposes of a coastal bay.
To prevent this but having no direct power to do so the Federal Government, “much pressed by an environmental lobby”, rushed into an international treaty to confer World Heritage status on the bay forever. Queensland challenged this in the High Court. In a dissenting judgment Mentmore CJ would have found for Queensland. His judgment “affirmed the principle clearly written in the Constitution” that that document was a contract negotiated by the colonies and binding on the central government with an implied term that that government would not act indirectly (eg, through a treaty) to impinge on an admitted head of state power. It will be interesting to see if the High Court revisits the Franklin Dam decision while Callinan J is on the Court.
Another suggestion of Mentmore CJ’s is for the creation of a judicial commission, to nominate appointees to the courts, to fix their conditions of employment and to scrutinise their behaviour as judges. It is hard to resist asking whether Mentmore’s creator would have made it onto the High Court if such a commission had been in place at the time of his appointment. Another of Mentmore CJ’s views is that the High Court should go out to the people rather than the people having to come to the High Court. With this may be associated some disparaging remarks about Canberra (and also about the High Court building) scattered through the book. Does this mean that Callinan J will not want to be too much confined in the National Capital’s Gar Mahal?
It is even more dangerous reading into this novel the author’s views about life than his views about law and lawyers. There are many characters in the novel expressing disparate views about life. But there are also many authorial observations about life and, as remarked already, there is a manifest authorial preference for Mentmore’s life view over that of Dice. Thus duty, dependability, courtesy, the maintenance of professional and moral standards, and openness to love, are clearly preferred to self-interest, the exploitation of others, opportunism, and sexual predation.
The greatest concern about what may be manifest as the author’s views about life is likely to be in relation to the way women are portrayed. That they are portrayed as outside the main games in law and politics is not surprising as that accords, to date, with the real world. If they do make it into the main game that is suggested to be by virtue of having seduced appropriate men, as in the case of the new Chief Justice Shirley Leeme. As to women in their relations with men they either inspire romantic fancies in men and/or provide them with sexual services, with or without desire in the women (these three categories are exemplified by the three women in Mentmore’s life), or they have a “well of desire” waiting to be “tapped” by the appropriate man (the women Dice generally taps into). Some of the language used to describe Dice’s women and their behaviour is quite quaint, if also demeaning of its subjects. Thus Dice has a woman with his hands inside her pants in the cinema “squirming with pleasure” (he having “taken” her both before and after this event), and has “virgins and non-virgins” fighting to be the first to remove their clothes for him at a rock concert. Even Margaret, Dice’s neglected wife, asks Mentmore “to fuck me – now, soon, please” as she is “very frustrated”.
As to men in their relations with women things are presented, as far as Dice at least is concerned, as much less complicated (for the men), being “all a matter of genes and hormones and testosterone”. Even Mentmore was obliged to accept, on his sexual initiation with Virginia in England, while “almost comatose” after a bombing raid, that “his potency couldn’t be denied”.
It will be interesting to read any judgments of Callinan J in appeals to the High Court involving sexual offences. How, particularly, might Dicean attitudes be viewed?
The book as a novel – plods along well enough; as recent legal and political history – not too reliable; as the author’s views on law and lawyers – prefers judges who say they are applying the law rather than those who shape it for political ends (which should add an interesting dimension to the scrutiny of the author’s judgments up there on high); as the author’s views on life, at least as between men and women – in need of refinement. The book as a whole – not a reason not to carry on judging.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/30.html