AND ANOTHER THING
What happens when much-talking judges get swept along by the tides of history
PAUL JOHNSON
Lord Justice Simon Brown's 40-page judgment in the homosexuals-in-the-forces case is so extraordinary that it merits closer analysis than it has yet received. He had no alternative but to uphold the present ban on declared homosexuals in HM Forces because that is the law of the land, and even he had to admit that it was for Parlia- ment, not the courts, to determine such matters. But part of his judgment might have been written by Peter Tatchell and the gay lobby. The Ministry of Defence's views were 'wrong'. The homos had put a 'power- ful' case. He upheld the law 'with hesitation and regret' and eagerly prophesied that it would come unstuck in the European court. He thought it 'improbable' that 'the existing policy can survive much longer': the 'tide of history' was against it. He went out of his way to imply that the ban infringed 'the fundamental human rights' of homosexuals and was backed merely by `prejudice'.
Brown's endorsement of what I can only call the propagandist and emotional case of the homosexuals was so marked that I looked him up. Was he one of them? Not so, I concluded. He does not figure in the legal section of 'Britain's top 200 gay men and lesbians' published in the May 1995 issue of Gay Times. His record suggests nothing odd. He went to Stowe, which, to be sure, had a notorious homosexual head- master in the person of J.F. Roxburgh, but he retired in 1949 before Brown got there. The judge then went on to Worcester, never a dicy college — all the people I know who attended it, from Rupert Mur- doch down, or up, are 'straight', at least in that sense. He did his military service in the artillery: no problem, dull uniforms. More- over he married one Jennifer Buddicom and has three children. That does not nec- essarily mean anything, of course, but it helps to build up the picture. The real clincher is that his passion in life appears to be golf. Whoever heard of a queer golfer? No, Lord Justice Brown is not a closet homosexual: I would bet on that. He is just a silly fellow.
Why so? Betause he talks knowingly of `the tides of history'. If ordinary people rant about historical tides in pub argu- ments, it is deplorable but of no conse- quence. But when senior judges employ the image in written judgments, one is inclined to tear one's hair out. There is no such thing as a tide of history. The metaphor is all wrong. Those who employ it imply that tides continue to come in, for ever and ever, whereas tides come in and out, inter- minably, something history never does. If one must have a nautical metaphor of his- tory, it is best to see humanity as a giant ocean liner, pressing relentlessly forward into an unknown and unknowable future, leaving behind in its wake an irrecoverable past.
Nobody should engage in futurology without a profound knowledge of and feel- ing for history, something which few judges possess. Although their work is to a great extent based on precedent, they are often amazingly ignorant even of legal history in the broader sense. The commonest mistake made by amateur futurologists is to sup- pose that the present will continue into the future, only more so. That, in effect, was what Judge Brown was saying. Sexual liber- ation started in the Sixties, didn't it? And it's been continuing more or less ever since. So it will go on continuing, won't it? And even better. Stands to reason, as Alf Gar- nett says. And any attempt to limit the activities of homosexuals in any respect whatever is doomed, outmoded, old hat, sheer prejudice. The tides of history will sweep these old laws and attitudes into the dustbin of history, you can be sure.
The logic of this train of thought is that all of us will eventually spend our entire days, as well as nights, in some form of sexual activity, with all legal restraints lifted on sodomy, necrophilia, pederasty, sado-maso- chism etc. You name it — we'll be doing it. And there is nothing anyone can say to stop it, this libidinous march of history.
I can't believe that even Judge Brown believes such nonsense. When people talk about- continuing irreversible forces in his- tory, I often think of the case of poor Hegel. No one ever paid more attention to the Zeitgeist than -he did. No one was more persuaded of the invincible march of histo- ry than he was. In fact, after Bonaparte's victory over Prussia in 1806, when he him- `She left me a Dear John voice mail.' self watched the Corsican gangster ride through Jena in triumph, he referred to him as the Weltseele, the personification of reason. Here, he thought — and Wrote was the very tide of history itself washing away the ruins of the old world, and with it God, religion etc. But then Bonaparte lost the war, and suddenly Hegel discovered that the world spirit was embodied not by France but by Germany. There was, too, an unforeseen and — to Hegel — unwelcome revival of religion, and suddenly he had to get God out 'of the dustbin of history, where he had been deposited in 1806, and put back on the front shelf again. Indeed, Hegel had to profess public belief in this resurrected Deity in order to be sure of the Chair of Philosophy in Berlin, which he coveted.
The rebirth of religion in the second and third decades of the 19th century is one of those reversals of trends which should make foolish men like Judge Brown pause before they deliver their 'tides of history' pronouncements. Jane Austen, who allowed Emma to say, 'Good God!' in 1814, was criticised for indelicacy and vulgarity by her Victorian great-nieces. The process works in reverse too: I daresay people of Milton's generation thought Puritanism was here to stay in the 1640s and were con- sternated when bosomy whores and licen- tious court jackanapes resumed their sway in the 1660s. As Evelyn Waugh once remarked, the strength or weakness of the spirit of the times depends entirely on the number of people prepared to fight it. Determinism is a myth. There is no such thing as inevitability in history. It could be that within 20 years we will be well launched into a Puritan epoch and putting homosexuals behind bars again — maybe even burning them alive. Nobody can possi- bly know.
So the generals, admirals and air-mar- shals should ignore Judge Brown's unso- licited advice and uncalled-for predictions. There are sound reasons why self-pro- claimed homosexuals should be kept out of the armed services (covert ones are quite acceptable, as they always have been) and these reasons will remain valid for the fore- seeable future. The brass hats should have the courage of their convictions, continue to do what they believe to be in the inter- ests of the services and the country, and tell the homosexual lobby to go to hell. It's on its way there in any case.
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