The German jurist Friedrich Carl von Savigny (1779-1861) introduced the concept of "volksgeist" into legal and political thinking.
The "volksgeist" was the national spirit, or national character. Savigny argued that law and policy could not be seen in the abstract but as the product of people living in society and they are the outcome of a culture of a society - the "volksgeist".
Many jurists reject the idea of national character as stereotyping. But underneath the stereotypes a truth often lies.
One of the crudest expressions of the "volksgeist" is the old joke about heaven being the place where you have French and Italian chefs and lovers, German administration and the British sense of humour and hell is where you have British food; German lovers; and French and Italian humour and administration.
Where does that leave Australia in 2023?
Hitherto, political leaders have extolled the virtues of our tolerant, compassionate, successful multicultural society; our fair go; egalitarianism; a progressive political history with female suffrage, preferential voting etc; and as having more things in common than things which divide us.
After Saturday, surely all this has been exposed as self-delusional claptrap. Was it ever true? Perhaps some of it up to about 1970.
Saturday's result, and coincidentally the anti-Semitic behaviour at the Israel-Palestine demonstrations put paid to nearly all of them.
The division is much greater than the 60-40 split suggests. The closer to the centre of a capital city and the higher the education and income, the higher the "yes" vote. The more distant from the centre of a capital city and the lower the education and income, the higher the "no" vote. It goes from more than 80 per cent "yes" in the seat of Melbourne to more than 80 per cent "no" in the Queensland seat of Maranoa.
Sorry John Howard, there are more things that divide us than unite us and there is nothing to be relaxed and comfortable about here.
Other pieces of the false "volksgeist" were also exposed in the referendum. Hitherto, Australians had regarded themselves as hard-working, rugged individualists and optimists.
The success of the "don't know, vote no" slogan reveals lazy apathy and sheep-like behaviour. Hard-working individualists would have responded with more adherence to the slogan: "don't know, find out."
There was a shocking gullibility in the electorate. Indeed, computer scammers say Australia is a great place for them. The gullibility made voters easy game for two sorts of "no" campaigners: those who saw an opportunity for self-promotion and self-aggrandisement and those who saw an opportunity to make some cheap political points against Labor. All it took was a few lies and a bit of misinformation and much of the lesser-educated electorate swallowed it unquestionably.
The lies about Indigenous land-grabs, power-grabs, and privilege (really) targeted the resentfulness that now plays a significant part of the Australian "volksgeist".
And having swallowed it early because the "no" campaign got away early, they fell for group-think conformity after it became "acceptable" to say "no" and to be fearful and timid at the suggestion of any change.
Opposition Leader Peter Dutton was always determined to oppose whatever the government put up for ulterior, selfish, point-scoring motives. Just a little negativity resonated in the pessimistic Australian character, which so well put in the Hanrahan poem: "We'll all be rooned!"
Prime Minister Anthony Albanese's failure was not a moral one, like Dutton's, but was tactical and strategic. He should have seen the referendum would be doomed without opposition support, and should never have gone ahead without that support.
In short, he should have wedged the opposition in the way that the Coalition constantly wedges Labor into agreeing to things they are historically uncomfortable with, such as tax cuts for the rich and being led into foolish conflicts through the American alliance.
Albanese can now no longer wedge Dutton by calling out his hollow suggestion of another referendum on Indigenous recognition as long-held Coalition policy states, because Dutton has walked back on the policy. Moreover, it was never predicated on broad Indigenous support so it was always worthless and was not acted upon when the Coalition was in power for nearly 10 years.
The polls show that from the moment Dutton announced opposition to the referendum, support for "yes" fell dramatically.
It reveals an unthinking tribalism. Whatever the party leader espouses, they unwittingly follow. Hand in the fire stuff.
MORE CRISPIN HULL:
Dutton is probably hoping he can blame Albanese for the whole sorry mess and suggest that it's typical of all his policies. But the two-party and leader-to-leader polls suggest that that is not working, at least to date.
Moreover, all the teal seats the Liberal Party needs to win back voted "yes".
But now Australia's real "volksgeist" or national character has been revealed maybe it will not be too difficult for the Coalition to dog-whistle up some racism; plant a few lies and misrepresentations; and play upon fear, resentfulness, and selfishness to sway the vote. After all, an appeal to the national character that we thought we had did not work last Saturday.
Instead, we have a new divide - not Liberal v Labor or left v right - but a few very rich people swaying gullible lower-income and less-educated people in regional and rural Australia, on one hand, and better-educated higher-income urban people on the other.
If that divide is exploited, it would not be a very attractive future for any Australians, let alone the Indigenous people who have yet again been ignored, condescended to and marginalised with tragic results.
- Crispin Hull is a former editor of The Canberra Times and regular columnist. crispinhull.com.au