Religion and the Law
This is an edited text of a paper on ‘Law and Religion in Australia’ delivered by the Hon Justice Keith Mason AC, President of the NSW Court of Appeals, to Australia’s Christian Heritage Forum in Canberra during August.
At the time of white settlement in Australia, the idea that Christianity was not embedded in the law would have been regarded as a heresy. 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.
Murder, theft and false swearing are crimes everywhere - not just in the cultures of Jews, Christians and Muslims. This suggests that guidance about right and wrong derived from holy scripture may indicate not just that something is good for humanity, but also that God wills that which is by 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.
Claims that Christianity is part of our law are often associated with statements about Australia being a Christian nation.
1. Williams’ Case (1797) How St Tr 654 at 703.
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This doctrine lasted until 1991 when it too was overturned through the proper exercise of the lawmaking powers of judges in Britain and Australia.
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” (Proverbs 13:24) are no longer acceptable. Indeed, an Australian parent who caused injury through beating a child would expect to be in trouble with the law.
we should be questioning whether our readiness to resort to law is the problem, not the answer
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 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 thirty years ago be punished according to today’s sentencing tariff, or the tariff when the offence was committed?
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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)). 6.
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.
we are fortunate to have been spared the worst excesses
of the legal culture wars
we see in North America
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.
Individuals have many important rights, human rights, which neither the government nor Parliament should transgress. My point is that courts are not the best place to work out and define the content of these rights.
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 channelling them into the debating chambers of our constitutional courts.
Yet this is what happens if we pass high-sounding Bills of Rights or 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.
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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.
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 positively misleading.
the Christian mainstream
was unfair to non-Christians
in the area of free speech
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. 8.
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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 (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 recognising that what is true is not always relevant to the particular legal dispute.
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.
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.
Legislation by the Parliament in the early nineteenth century banned 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.
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Testament distinguishes clearly between crime and sin. Law and morality have always been separate spheres. They generally reinforce each other, but not always - because not every human law is just, and because even just laws may be self-defeating.
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.
We must never forget that law is not an end in itself. Some types of law may lack a sufficiently high level of support 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.
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’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.
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.
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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 or psychologists and they have no special skills or present mandate to be making society’s decisions for it.
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 (i.e. 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.
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 here 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.7.
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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.
Those concerned with the law as it should be (i.e. public and politicians) and as it is (i.e. 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 gospel ministries when pursued with integrity.
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.
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.9.
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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 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.
The full text of this paper can be obtained from http://www.australiaschristianheritageforum.org.au/aboutUs/forum-papers.aspx