Law And Religion In Australia
LAW AND RELIGION IN AUSTRALIA Justice Keith Mason National Forum on Australia’s Christian Heritage
Monday 7 August 2006
Canberra
At the time of white settlement in this country, the idea that Christianity was not embedded in the law would have been regarded as a heresy both of a legal and a religious nature. For example, when in 1797 Kenyon CJ effectively instructed a jury to convict the publisher of Paine's Age of Reason for blasphemy, he told them that "the Christian religion is part of the law of the land". [1] The Church of England was established by law in England and, to a degree, also in this country. It enjoyed several privileges in the early decades after New South Wales was first colonised. This tended to upset other Christian groups more than church outsiders.
Many rules of the common law, including its crime of blasphemy, were traceable to the Ten Commandments. But it was the law of man and not Scripture that defined the offences in detail, established procedures for trial and determined appropriate punishments. Not every Old Testament crime was punishable under inherited English statute or common law. And sometimes the law imposed different remedies to those prescribed in the Old Testament, as for example in regard to adultery. Australians would always have been uncomfortable with the Biblical penalty of death for that sin.
Furthermore, murder, theft and false swearing are crimes everywhere, not just in the cultures of Jews, Christians and Muslims, the "people of the Book". This suggests, if proof were needed, that guidance about right and wrong derived from Holy Scripture may indicate, not just that something is good for humanity if it is willed by God, but also that God wills that which is by its nature good. Non-Christian and pre-Christian societies have in many instances come to a similar understanding about matters the law should address, perceiving signposts to truth in what Catholic theology calls natural law. There is, of course, nothing wrong with a Biblical source for rules of right conduct. It is just that most people nowadays expect to be given additional justifications in which the values and policies are spelled out.
Claims that Christianity is part of our law are often associated with statements about Australia being a Christian nation. The latter proposition may be true in terms of predominant religious orientation acknowledged in the Census. But the label tells us little about the nature or depth of religious conviction in this country, or its impact upon the public or private lives of our citizens. In any event, a claim to be a Christian nation should be an acknowledgement of a blessing received and not some badge of national merit. If we have a good system of law and a sound democracy, we should regard these benefits as products of divine grace not things the nation has achieved because many of its citizens have been Christians.
Some claims of biblical pedigree were quite false and only demonstrate our capacity for self-delusion.
Slavery was recognized by the English common law as part of the law of property until the late eighteenth century. Biblical defences of the institution were mounted well into the nineteenth century in the southern United States. In 1843 1200 Methodist clergy owned slaves in that country. It was a famous decision by Lord Chief Justice Mansfield in 1772 that proclaimed slavery within England to be incompatible with the common law. [2] Mansfield would have been branded a judicial activist for this bold conclusion had that sloppy term of abuse been in vogue at the time. It would require legislation by the Parliament in the early nineteenth century to ban the overseas slave trade within the British Empire. This only came about through the political efforts of the radical Clapham Sect lasting more than a decade. They were stoutly opposed by traders concerned about loss of profits and bishops concerned about social stability. [3] Slavery was not an issue in Australia because convicts provided the cheap labour necessary for our pre-industrial society.
The common law established that it was lawful for a husband to rape his wife and Biblical explanations were offered for this rule. This doctrine lasted until 1991 when it too was overturned through the proper exercise of the lawmaking powers of judges in Britain and Australia. [4] The biblical principle that husband and wife are "one flesh" also created a strange common law doctrine that prevented one spouse from suing the other in tort. The doctrine, which survived well into the twentieth century, was a perversion of any scriptural principle because it interpreted the "one flesh" metaphor literally and then concluded that one person could not sue himself. The ultimate beneficiaries of this odd rule were insurers of motor vehicles who invoked spousal immunity to avoid having to pay up if a person injured his or her spouse through negligent driving. This so-called Christian legal principle was finally swept away in Australia by the Family Law Act of 1975.
Even sound Biblical authority for particular conduct being right or wrong does not mean that the law should necessarily intrude. Nor does it indicate what legal response is appropriate.
Different times may also produce different attitudes about the wrongness of particular conduct and the proper sanctions for curbing it. Approaches to child discipline based upon a literal interpretation of the Biblical Proverb about “sparing the rod”[5] are no longer acceptable. Indeed, an Australian parent who caused injury through beating a child would expect to be in trouble with the law.
Societal attitudes may swing from particular conduct being permitted and even morally obligatory, to it being frowned upon morally, then to it being prohibited by law. For example, attitudes to smoking cigarettes in restaurants and burning off leaves in the backyard have changed profoundly in the lifetimes of many people attending this Forum. In times past, each activity would have been strongly encouraged in particular contexts. The moral worm later turned, but when the sanction of public disapproval proved inadequate we resorted to the criminal law. Sometimes things move in the opposite direction: for example, consensual homosexual conduct involving adults is no longer criminal.
We take child sexual abuse much more seriously nowadays than in the past. This has thrown up a fascinating jurisprudential debate in sentencing law. Should a person convicted today of having committed such a crime 30 years ago be punished according to today’s sentencing tariff or the tariff when the offence was committed? [6] The question raises issues of consistency as well as exposing the tension between the deterrent and denunciatory functions of sentencing law and practice.
The Old Testament distinguishes clearly between crime and sin. Law and morality have always been separate spheres. They generally reinforce each other, but not always. “Not always,” for at least two reasons: because not every human law is just, and because even just laws may be self-defeating.
As to the first reason, Christianity teaches that, while we must respect those put in authority, some laws may be so unjust that a believer's higher duty to God requires martyrdom unless and until the unjust law can be lawfully overturned.
As to the second reason, we must never forget that law is not an end in itself. Some types of law may lack a sufficiently high level of support to be appropriate for the mere majority to force through Parliament. Other laws may be counterproductive if only because they provoke disobedience rather than compliance. Some laws may simply be too costly to police and enforce. Some good ideas are too nuanced for law and lawyers. No laws are self - executing.
We cannot therefore always look to “the law” to achieve what is good or prevent what is bad. Law and government have limited roles in promoting public welfare and even more limited roles in promoting the Gospel, however we view it.
Sometimes sound laws produce unintended outcomes that are unjust. Sometimes legal rules are invoked inappropriately. Human limitations prevent us from seeing all the consequences of our actions, even those stemming from good intentions. Contracts can become tools of oppression. Statutory schemes designed to confer benefits to the needy can be rorted. Law has its limits and we do not necessarily overcome them by passing more detailed or onerous laws. Sometimes we should be questioning whether our readiness to resort to law is the problem, not the answer.
Law doubtless has an ethical dimension, but, in the words of Cardinal Clancy:[7]
[That ethical dimension] is limited by the law’s primary function of maintaining right order in society. While it is of great importance to preserve and respond to the moral dimension, it is even more important to recognize that civil law does not say the final word on morality. Unfortunately, a society that wishes to preserve traditional Christian morality while abandoning the Christian faith on which such morality is founded, more and more looks to the law to be a substitute foundation. Hence, a law to decriminalize a proscribed practice is interpreted by many as a law sanctioning that practice. “Legal” and “illegal” become “moral” and “immoral” respectively. When a society then finds that it cannot preserve a traditional morality without its proper foundation, it takes the easy way out and adopts the current practice – whatever it is – as the new morality, but still looks to the law for its sanction.
Law’s greatest limitation is that it depends on human actors for its enforcement. Yet police can overstep the mark, witnesses can be dishonest, confused or biased, judges and juries can make mistakes in forming decisions. The highly improbable happens sometimes. Both the Bible and human experience teach us that terrible miscarriages of justice occur from time to time and that they are not always remedied in the lifetime of the actors. Over the last hundred years or so we have responded by adding extra layers of appeal and judicial review, royal commissions and every manner of inquiry. We have come to believe in Lord Atkins’ famous aphorism that “finality is a good thing but justice is a better”, [8] as if a choice between finality and justice is always clearly presented. Christians at least should know that justice and truth are attributes of God, and beyond the complete grasp of sinful humankind no matter how much we aspire towards them.
Australians have always been unhappy with the State assuming the role of moral guardian or religious nanny. Remnants of establishment of the Church of England were swept away by the mid nineteenth century. Since then, courts have bent over backwards to avoid becoming embroiled in religious doctrinal disputes. Indeed, judges have had to remind warring Christians of St Paul’s injunction against “go[ing] to law before the unjust” (1 Corinthians 6:1-7 (KJV)). [9]
Hostility to any form of theocracy is definitely an aspect of our Australian legal heritage. I also like to think of it as part of our Christian heritage, because it reflects my understanding of scriptural principles about not using the institutions of the State to resolve religious disagreements. Australian law’s unwillingness to get involved in theological disputes also stems from our pragmatic spirit and distrust of authority. It is part of the reason why we have not needed to erect a strong wall of constitutional separation between Church and State.
I believe that we are fortunate to have been spared the worst excesses of the legal culture wars we see taking place in North America. In my view, constitutional law is not the place to be having profound debates about sexuality, the nature of marriage, when it is right to have an abortion and who decides, the proper separation of Church and State, or the circumstances in which discrimination is a good or bad thing.
Please understand what I am saying. Individuals have many important rights, human rights, which neither the Government nor Parliament should transgress. The Universal Declaration of Human Rights includes rights such as:
- the rights of race, colour, sex, language, religion, political or other opinion (Article 2);
- the right to life, liberty and security of the person (Article 3); and
- the right not to be subjected to cruel, inhuman or degrading treatment or punishment (Article 5).
My point is that courts are not the best place to work out and define the content of these rights. If we hand this task over to our judges there are also costs and consequences that must be taken into account.
Topics such as sexuality, the nature of marriage, when it is right to discriminate and when it is not, abortion and the proper separation of Church and State are too important to be sidelined by channeling them into the debating chambers of our constitutional courts. Yet this is what happens if we pass high-sounding Bills of Rights or open-textured anti-discrimination statutes. I do not want decisions about such issues to be set in concrete by a cabal of seven legal scholars in the High Court, no matter how eminent. Legal precedents on constitutional issues become very hard to recall and American experience shows that the stacking of constitutional courts is not a desirable way to address the problem.
Judges are skilled and experienced in the matters of the law and (to a degree) in the way that law intersects with ethics, psychology, politics, public health, economics etc. But judges are not ethicists, psychologists etc and they have no special skills or present mandate to be making society’s decisions for it. It is a delusion to think that a few motherhood words in a Constitution or a Bill of Rights can define, let alone resolve, the nuanced issues involved in a proper assessment of such profoundly divisive matters. It is also crazy to think that law’s adversarial system is the best place to be thrashing them out. If laws are to be involved in these areas, they require prolonged debate, accurate cost assessment, sharp definition, and a good deal of trial and error. Changes may need to be phased in. Remedies and sanctions may need to be ratcheted up or down over time. Courts lack the means or the expertise of doing these things. Adversarial litigation is not the best place to be attempting to do so.
Only the profoundly naive think that giving judges the role of defining our most contentious and sensitive rights will reduce the heat of debate. Judges have their own passions, even those who loudly proclaim the value-neutrality of the law. One consequence of constitutionalising any issue (ie removing it from the sphere of development through the common law or by Parliament) is that the highest judiciary itself becomes politicised. Candidates for office are vetted for their political correctness in hot political areas, sometimes at the cost of concentrating on their capacity to perform core judicial functions. American experience also shows that politicians may like to talk tough on litmus issues, while hoping (with fingers crossed) that the courts will neuter or strike down the very legislation they have promoted in order to placate single-issue constituents.
Our founding fathers made a deliberate choice to leave State and Federal Parliaments generally free in the matters about which they might legislate. Certain powers were assigned to the Commonwealth Parliament, but few matters were excluded from the reach of all legislators. We have no constitutional Bill of Rights. Nevertheless basic freedoms are widely enjoyed by those fortunate enough to live in or get to our shores.
One of the few exceptions to the policy of having no constitutionally embedded rights was s116 of the federal Constitution which provides:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The provision was framed cautiously and has been interpreted narrowly. This is hardly surprising given that the Preamble to the same Constitution humbly relies on the blessing of Almighty God. [10] Section 116’s prohibition does not extend to State laws, it does not preclude government aid to religious institutions and it does not prevent religious displays in the public arena. In theory, Australian Parliaments have considerable scope to legislate in matters religious if they choose. In fact, they have kept away, only intervening to facilitate church governance if there is very high consensus among the adherents of a particular church for this to occur. Our constitutionally laid back polity is free to debate prayers in Parliament and Christmas trees in public schools and public places, but the debate does not take place in the High Court of Australia.
The practical consequence of keeping religious issues out of our Parliaments and Courts has been that, unlike our colleagues in the United States, judges in this country have not been embroiled in the often evanescent culture wars of the day. This has been to the good of our society and most fortunate for those who hold judicial office in this country. Judges have enough to do in the core areas of the law.
Men and women of goodwill who share a common Christian heritage may disagree strongly about what is or should be the law. Christian judges do not always agree about the outcome of a particular case. Christians are on all sides of politics and may tend to disagree on what Biblical values are important as well as the ways and means of giving effect to them. For example, Christians hold widely divergent views about the appropriate levels of punishment of crime and about whether we should allow a fresh start for certain categories of offender.
In public discourse in this country, including legal discourse, there is increasing reluctance to acknowledge the source of genuine Biblical principles. Citing Scripture may be needlessly controversial or, as I have indicated, positively misleading. Sometimes a Scriptural badge of origin appears to detract from authenticity or at least persuasive appeal. Sometimes it is recognized that Biblical principles are not the monopoly of believers; or even that believers may be amongst the slowest to give them effect.
But at times believers have been silenced by a false argument, much in vogue nowadays. This is the idea that so-called secular policies have free passage into public discourse while faith-based policies must be suppressed on that account. How often have we heard it said that X should keep his religious ideas to himself or at least confine them to preaching to his own flock.
There is a false dichotomy at work here, because all policies have values, including secularly-derived policies. There is, of course, a more fundamental objection, in that free speech is both an important individual right and vital to the welfare of society. There should be no spurious barriers to entry into public debate. With this attempt of modern secular society to gag the religious voice it is hardly surprising that we find modern Christians restating classical free speech doctrines. [11] There is an irony here, because in times past it was the Christian mainstream that was unfair to non-Christians in the area of free speech.
Those proclaiming that our laws are value-free or should at least be purged of faith-based values are either deluded or dangerous. National security, self-reliance, the unhindered pursuit of profit, the good of the environment, individual healthiness, protection of the vulnerable, tolerance and privacy are all values. Of course, some of them derive from Biblical principles and have been given effect through law because they are widely supported by voters or embedded in authoritative legal precedents. Of course, some policies in statute and common law will be hostile to gospel values, although one might expect disagreement in identifying them. Those concerned with the law as it should be (ie the public and politicians) and as it is (ie the judges) should be allowed to debate the strengths of relevant values without having to keep silent merely because certain values are labelled as faith-based.
Lawmakers (including our judges, who are responsible for law’s application and the development of the common law) bring a diverse range of attitudes to their task. A substantial number of them are practising Christians who hold to an increasingly unfashionable view among Christians (especially evangelical Christians) that the daily vocations of the laity are themselves gospel ministries when pursued with integrity.
From time to time appellate courts have to grapple with legal claims that force judges to confront large issues without the direct guidance of statute or judicial precedent. Two notable examples in recent times were Cattanach v Melchior[12] and Harriton v Stephens. [13] Cattanach involved a parent’s claim for damages for the cost of raising a healthy but unintended child born because a negligent doctor performed an inadequate sterilisation procedure. The High Court decided by four votes to three that damages were recoverable and were not to be offset by the benefits or blessings stemming to the parent from the birth of a healthy child.
Harriton involved a severely disabled child whose pregnant mother contracted rubella that was not detected through the negligence of her doctor. For the purpose of the case it was assumed that the mother would lawfully have terminated the pregnancy had the doctor diagnosed rubella. By six votes to one the High Court held that the child could not sue the doctor, in effect because she would not have come into existence were it not for the doctor’s negligence. The Court held that it was impossible to estimate the damages suffered by the child because a judge has no means of comparing and placing a monetary value upon the difference between a severely disabled existence and non-existence altogether.
In each case the issues were agonised over by a trial judge, three judges in a State Court of Appeal and by all seven members of the High Court of Australia. A vast range of legal and other considerations were taken into account. Many of the judges were at pains to emphasise the law’s agnosticism as to the value of life, death or profoundly disabled existence. But the questions to be decided, the legal obligation to spell out reasons, and the conscientious need to wrestle publicly with highly vexing questions ensured that the judgments are replete with a lot of metaphysical discussion. Some of it is thinly disguised under discussion of earlier legal precedents or sociological observations.
In Cattanach’s case, the judges were inevitably drawn into discussing the relevance to the issue at hand of whether a healthy but unplanned child could be regarded by the law as both a “blessing” to the parents and a burden that could be laid at the feet of the negligent doctor. The judges also anxiously considered how the child in question might later react to the news that he was presented as a financial liability for the purposes of the litigation.
Cases such as these force judges to confront literally life and death issues. There were no direct legal precedents in Australian law and a wide range of conflicting overseas ones. Inevitably the judges drew upon personal experiences, values and belief systems. This was entirely proper in the circumstances where, unlike Parliament, the judges did not have the option of doing nothing on the topic. They had to decide where the loss fell and to explain why.
Often legal policies can be sourced to earlier precedents that appear at first blush to represent a neutral root of title. But on closer analysis they may turn out to be the product of the beliefs and values of judges from an earlier generation. At times, judges quote encyclopedias and learned works dealing with non-legal issues related to the case. At other times judges have, in Kirby J’s words, “attempted to objectify the foundation for their judgments” by appealing to the supposed opinion of the fictional character known as the reasonable person. [14] This character is known in England as the man on the Clapham omnibus or the London Underground.
At other times, when faced with cases like this, judges quote great works of literature or Holy Scripture itself to justify, explain or express the profound values they are seeking to capture. To cite Kirby J again [15]
Lying deep in many of the judicial opinions are perceptions of moral or ethical factors, illustrated by the recourse to Biblical citations.
Michael Kirby himself has often done this, although in Cattanach he chided judges who seek to enforce what he called “judicial interpretations of scripture”. [16] He expressly had in his sights Meagher JA who said in an earlier case: [17]
Every child is a cause of happiness to its parents. Every parent looks on his child as David did on Absalom, or Oedipus on Antigone. In St John’s Gospel (16.21) it is said “A woman when she is in travail hath sorrow, because her hour has come: but as soon as she is delivered of the child, she remembereth no more the anguish, for joy that a man is born into the world.”
This was hyperbole, but the basic message was clear. In Mr Justice Meagher’s view, the law should endeavour to bring into account the positive side of having a healthy child in any assessment of the financial downside to parents with an unplanned extra mouth to feed.
Kirby J would have none of this reasoning. He said: [18]
The language of “blessings” … is a distraction from the real subject matter of parental claims. Neither the invocation of Scripture nor the invention of a fictitious oracle on the Underground (not even its Australian equivalent) authorises a court of law to depart from the ordinary principles governing the recovery of damages for the tort of negligence. If such recovery is to be denied, its rejection must find some other and different reasons or another and different law-maker. If there is any area where the law has no business in intruding, it is in the enforcement of judicial interpretations of Scripture and in giving legal effect to judicial assertions about “blessings”…
In my respectful view, citation of the Bible is not an attempt to enforce interpretations of Scripture, any more than a judge who quotes Shakespeare to explain his or her thought processes is trying to enforce the dramatic themes of that playwright. If we want transparency in our lawmakers and judges, then we surely want them to be up front with the ideas moving them to decision-making. A judge’s personal ideas and religious beliefs count for nothing if they conflict with statute or binding precedent. If the judge cannot abide by the judicial oath to do right according to law then he or she should resign. But there are sometimes situations where there is no clear precedent, where the very question to be asked is uncertain and where the answers are highly contestable. The two cases I have been referring to were of this nature.
Hopefully we have not reached the stage that an idea relevant to public or legal discourse is off limits if it is sourced to the Bible or because it forms part of a larger corpus of philosophy or theology. I am pleased to report that, in the New South Wales Court of Appeal decision in Harriton, one Jewish judge cited the New Testament and one Christian judge cited the Old Testament. [19]
In modern times, the common law has turned its face against formalism and legal fictions. Judges are expected to explain and justify their actual thought processes and not to cloak them in a fog of legalese. This is a vital aspect of judicial accountability. Of course, it may expose the judge to criticism from legal brethren or outsiders. Such criticism goes with the turf and tenured judges have broad shoulders. The point I wish to emphasise is that the judge’s duty, both as a judge and a person, is to give an honest account of his or her true reasons. If they are unacceptable they may be corrected on appeal, ignored by judicial colleagues on the same appellate bench or overturned by Parliament (at least if the ruling does not involve a matter of constitutional law).
Our Australian legal system is replete with Biblical and Christian values. Its central role is to deliver justice and to settle disputes. It aspires to find out the truth, while recognizing that what is true is not always relevant to the particular legal dispute. The criminal law endeavours to suppress what the Book of Common Prayer describes as “wickedness and vice”, while realising that the divergent aims of penology are hard to reconcile and even harder to achieve across the board.
The human fallibility of judges will ensure that these mighty (dare I say it Godly) goals of justice, peace, truth and goodness are not always attained. But the goals are important enough in themselves. Our legal heritage does not have to seek out dubious Biblical roots.
ENDNOTES
1. Williams’ Case (1797) How St Tr 654 at 703.
2. Somerset v Stewart (1772) 1 Lofft, 98 ER 449.
3. See E M Howse, Saints in Politics: The “Clapham Sect” and the Growth of Freedom (1971).
4. Reg v R [1992] 1 AC 612, The Queen v L (1991) 174 CLR 379.
5. Proverbs 13:24.
6. See MJR (2002) 130 A Crim R 481.
7. Homily in 1989 Red Mass, Sydney.
8. Ras Behari Lal v The King Emperor (1934) 150 LT 3 at 5.
9. See my lecture, “Believers in Court: Sydney Anglican going to law”, The Cable Lecture 2005.
10. See generally Tony Blackshield, “Religion and Australian constitutional law” in Peter Radan, Denise Meyerson and Rosalind F Croucher, Law and Religion: God, the State and the Common Law, Routledge, 2005.
11. See eg Bishop Robert Forsyth Dangerous Protections, How Some Ways of Protecting Religious Freedom May Actually Diminish the Freedom of Religion, Acton Lecture 2001.
12. (2003) 215 CLR 1.
13. [2006] HCA 15, 80 ALJR 791; 226 ALR 391.
14. Cattanach at 52 [135] per Kirby J.
15. Cattanach at 52[135].
16. At 58 [151].
17. CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at 87.
18. Ibid.
19. Harriton v Stephens (2004) 59 NSWLR 694 at 700[17] (Spigelman CJ, referring to Matthew 19:19), 721[155] (Mason P, referring to Job 3:3).
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