On Dust And Ashes
ON DUST AND ASHES AIJA Appellate Judges’ Seminar
29-30 April 2004
Sydney
The preparation and delivery of this speech is a metaphor for its topic. I was originally scheduled to speak at the Dust Diseases Tribunal Conference in Pokolbin in December 2002. Bush fires prevented me leaving Sydney. At that stage we were also in the grip of drought and the English cricketers were having a terrible tour. Last December I proposed opening my remarks in the following terms:
To some, my topic may conjure up thoughts of drought and cricket. Our English friends are certainly having a terrible drought. Australia has won the Ashes hands down. One British tabloid proposes a new Ashes trophy with the suggestion that England should let Australia keep the bails and burn the players instead. There are also reports that the English players are demanding increased match payments because someone has let on that Ashes Tests sometimes go to a fourth day.
My chosen topic On Dust and Ashes touches on themes of durability and impermanence, constancy and change. After the result of the World Cup Rugby final I have stopped making sporting jokes at England’s expense. At least the uncertainty of the weather endures, as does the England-Australian sporting rivalry.
Dust is all around us. It is in the air we breathe and the water we drink. It gets everywhere – in our eyes, up our nose, deep into our lungs.
And in more ways than one it is part of our very essence as human beings.
Billions of tons of tiny particles of dust rise into the air annually – the dust of deserts and volcanos, sea salt, vegetable fragments, fireplace soot, shreds of man-made objects and specs of man himself.
Given the right conditions, dust can hitch a ride on the wind and travel the globe. In April this year, skiers in the Swiss Alps got a dramatic reminder of its mobility when some 80,000 tons of fine sand fell over Geneva and the resorts of Zermatt and Verbier, turning the snow a reddish-brown colour. The sand hailed from the Sahara, thousands of kilometres away.
In August last year the United Nations drew the world’s attention to the “brown cloud” hanging over Asia. This is a noxious mix of particles and gases from forest fires, vehicle exhausts and millions of small inefficient cookers burning wood and cattle dung. The pollution is thought to kill thousands a year in the region and is probably disrupting its climate. The Asian “brown cloud” extends to some three kilometres high and stretches from the Arabian Peninsular across India, South East Asia and China. It cuts the amount of sunlight reaching the ground by between 10%-15%, possibly reducing evaporation and rainfall, and affecting crop yields.
Movements of dust definitely affect climate. For example, dirty snow melts faster and dust falling on the ocean cools it. Dust in the stratosphere alters the heat balance of the globe by reflecting sunlight away, cooling the surface, and by reflecting heat rising from the earth back downwards, warming it. This is part of the greenhouse effect.
But scientists believe that the overall effect of dust clouds is that they cool the earth. After the eruption of Mount Pinatubo in the Philippines in 1991, the world cooled by about half a degree celsius over the ensuing 18 months.
It has been estimated that natural sources are the biggest contributor to dust in the air, releasing ten times as much particulate matter into the atmosphere as humans do. The problem is that “the deadliest particulates are the finest, and we are responsible for pretty much all of them"[1]. The most dangerous air pollutants include sulphur dioxide, nitrogen dioxide, ozone, carbon monoxide and various particulates including benzine, aerosols, lead particles and certain petroleum by-products.
You know the extent and cost of the problem much better than me.
During the notorious London smogs of the 1950s, poisonous mixtures of fog and smoke from coal-burning power stations and domestic fires are thought to have killed at least 4,000 people. And as recently as 1991, the number of deaths in London from respiratory disease shot up by 22% during a bad four day smog. Particulate pollution is believed to kill as many as 9,000 in southern California each year.
Dust has made significant contributions to the law. I don’t mean just the specialist jurisprudence of the Dust Diseases Tribunal. Dust and dust diseases have produced many of the issues that are at the forefront of the modern law on causation, forum non conveniens and limitation of actions.
Litigation involving tobacco dust is pressing the boundaries of the law of negligence. Tobacco goes well beyond tort law. I recently read of a family law case in which a parent was ordered not to smoke in the presence of her child. And the recent case involving Clayton Utz’s advice to British Tobacco about “document retention” has opened up whole new fronts in relation to the law of discovery and the impact of document destruction upon substantive rights.
It may be stretching the point, but I would also include the legal concepts of further and better particulars and particulars of title. As you know, particulars are metaphorical particles and particles are dust. (If you think my reference to “particulars” is a bit lame, you will be glad that I decided not to include mention of the author of Crime and Punishment, Fyodyor D[ust]oyevsky.)
The neophyte barrister that became Gilbert’s Lord Chancellor swore never to throw dust in a juryman’s eyes. But some barristers are not averse to this stratagem. Others raise storms of confusion unintentionally. Judges also have to be careful. In an oft cited passage, Lord Greene described a judge who takes over the examination of a witness as one who “descends into the arena [and who] is liable to have his vision clouded by the dust of the conflict”.
“Dust” is a very ancient word in the English language. The Oxford English Dictionary cites Old English usage extending back to the 9th century, meaning (then as now) earth or other solid matter in a minute state of subdivision so that the particles are small and light enough to be carried in a cloud by the wind.
Many figurative meanings have ensued. Thus we speak of “throwing dust in some one’s eyes”, “biting the dust” and “shaking the dust from one’s feet”. The lastmentioned expression is found in four passages in the New Testament. It may represent a near Eastern custom of Biblical times. Jesus spoke of the action as a solemn sign of repudiation and separation of one who rejected the gospel.
The expression “waiting until the dust settles” is obvious in its meaning, but it does suggest that dustiness is a state of normalcy.
In many cultures dust placed on the head is a symbol of mourning or repentance. There are references in the book of Job to this connotation.
A recent book by Hannah Holmes is called The Secret Life of Dust. Holmes describes dust as a messenger, full of information about past, present and future. This notion of messenger is graphically illustrated by the Tempel-Tuttle comet. Every 33 years its highly elliptical orbit brings it close to the sun, causing the comet to boil and shoot dust and gas into space. After passing the sun, the comet heads back out beyond the orbit of Uranus with its dust clouds streaming along behind. What is fascinating is that two celestial fireworks shows from the comet that were visible on Earth on 19 November 2002, approximately 7 hours apart, were explosions that happened in 1767 and 1866 respectively.
“Dust” is often used in a figurative sense to describe a corpse and (by transference) the grave or the state of death. Biblical references to this connotation abound. Poetic ones as well. Thus, Gray’s famous Elegy Written in a Country Churchyard asks:
“Can storied urn or animated bust
Back to its mansion call the fleeting breath?
Can honour’s voice provoke the silent dust,
Or flatt’ry soothe the dull cold ear of death?”
The final chapter of The Secret Life of Dust is full of interesting material about the way people go about disposing of human remains. The author’s bottom line, as it were, is that we never really succeed, whatever method is used. She states:
“A human body is mainly water and bone. Bone is mainly calcium phosphate, plus traces of other elements, including stored pollutants like lead. The watery parts are tinged with carbon and nitrogen, iron and sulfur, chlorine and sodium, and a suite of trace elements from arsenic to zinc. All of these elements, of course, originated in space and were bundled into the planet during the birth of the solar system. They’re yours for as long as you live.
But as soon as you die, your borrowed elements start to slip back out of your body, to recirculate. Even people who go in for modern mummification and storage in a stainless-steel pod aren’t going to last forever. When the Sun begins to throb like an overtaxed heart, there will be no exceptions to the rule: Dust thou art, and unto dust shalt thou return.”
My favourite burial story was told to me by Bret Walker QC’s father, who was the rector of the Anglican parish in which I grew up. Ronnie Walker presided at the cremation of a man whose widow rang him up the next day asking how soon she could pick up the ashes. “What’s the rush?” he asked. “I want to flush him down the toilet” was her response.
When God said to Adam “For dust thou art, and unto dust shall thou return” (Genesis 3:19) he was making more than a scientifically accurate statement. But, before I leave the realm of science, it must follow that, if we return to dust, then at the very least we have the certainty of a random reincarnation. Shakespeare touched on this point when he wrote (in Hamlet iv sc 3):
“A man may fish with the worm that hath eat of a king, and eat of the fish that hath fed off the worm.”
Echoing the double meaning in God’s description of Adam, Shakespeare made a famous pun in Cymbeline, when he said that
“Golden lads and girls all must,
As chimney-sweepers, come to dust.
To some the dust of death is sad and endless. Thus Fitzgerald’s Omar Khayyam urges his listeners:
“Ah, make the most of what we yet may spend,
Before we too into the Dust descend;
Dust into Dust, and under Dust, to lie,
Sans Wine, sans Song, sans Singer, and – sans End!”
Of course, to many death is only a transition. Thus the sonorous confidence of the Book of Common Prayer:
“We therefore commit his body to the ground; earth to earth, ashes to ashes, dust to dust; in sure and certain hope of the Resurrection to Eternal life.”
Henry Wadsworth Longfellow also saw things in a more positive light than Fitzgerald, because he wrote, in A Psalm of Life:
“Life is real! Life is earnest!
And the grave is not its goal;
Dust thou art, to dust returnest,
Was not spoken of the soul.”
The Christian’s prayer on Ash Wednesday that is offered before ashes are applied to the penitent’s forehead is breathtaking in its presumption as creature addresses Creator:
Blessed are you, God of all creation,
you have formed us out of the dust of the earth
and breathed into us the breath of life:
may these ashes be to us a sign of our mortality
and penitence, that we may know that it is by your grace
alone that we are restored to eternal life;
through Jesus Christ our Lord and Saviour.
Death is a milestone, but different views are held as to the existence and nature of the journey beyond. Those of us who believe that men and women are of infinite worth may find support for that belief in Scripture. To me, additional corroboration comes from recognising the essential nature of a dusty human while yet he or she lives.
In his dialogue with Rosencrantz and Guildenstern, Hamlet describes man as “this quintessence of dust”:
“What a piece of work is a man! How noble in reason! how infinite in faculties! in form and moving, how express and admirable! in action, how like an angel! in apprehension, how like a god! the beauty of the world! the paragon of animals!”
Men and women can be very grubby at times. Yet, their dusty frailty is also the dust of the eternal spark that merits them being described as made in the image of their Creator.
END NOTES
1. John Merefield, Dust to Dust, New Scientist 21 September 2002.
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