St James Church Sydney
Christmas Service for Lawyers
29 November 2000
Occasional Address
The Australian Constitution commences with an expression
of two sentiments, both of which are now deeply unfashionable.
It recites that the people of the uniting colonies
were humbly relying on the blessing of Almighty God.
Humility and reliance on God are now not generally
regarded as virtues.
The Constitution might be more in keeping with
the spirit of our times if it recited that the people
of Australia were confidently relying on themselves.
The Constitution contains one important provision
concerning religion.
Section 116, curiously located in Chapter 5, which
deals with the States, provides that the Commonwealth
shall not establish any religion, impose any religious
observance, prohibit the free exercise of any religion,
or introduce a religious test as a qualification for any
office under the Commonwealth.
In our community there is no established church.
Church and State are separate.
The majority of people do not regularly go to church.
Most do not expect the law to enforce religious doctrine.
Our community prides itself on being multicultural.
Multiculturalism necessarily involves a multiplicity
of values, including religious and moral values.
We do not equate religion with morality. Many people have strong moral values without basing those values
on religious doctrine.
People of religious faith do not assume that they
have a monopoly upon moral values.
Some people who profess religious beliefs are notably
deficient in religious virtues.
Our legal system is not in the least theocratic.
The separation between religion, morality and law,
which most people now take for granted, is relatively
recent. Even
now, is not as clear cut as many people assume.
After Thomas More was convicted, he asserted that
the indictment on which he was charged was based on an
Act of Parliament which was oppugnant to the laws of God
and of His holy church.
To a modern lawyer, what is interesting is the
brief argument he advanced in support of that proposition.
He developed only the minor premise, explaining
why the legislation in question was contrary to religion.
He did not bother to develop the major premise,
no doubt because, in the 16th century, it would
have been generally accepted that Parliament had no authority
to make a law contrary to true religion.
Now, both in the United Kingdom and in Australia,
the opposite view prevails. The fact that legislation might be contrary to religious teaching
might sometimes be of some political significance; but
it would be legally irrelevant.
In many respects these changes are a good thing.
We are now largely spared concerns about fine points
of doctrinal contention. It is more than 50 years since Catholic school children were
expected to know what the Albigensian heresy was, and
to understand how fortunate we are that Europe was saved
from it. (That, I suppose, was looking on the Inquisition from the bright
side). And
modern Australia is largely free of the unpleasant sectarianism
which used to be associated with religious observance.
In 1902, Australia's first Prime Minister, Edmund
Barton, visited London.
In the course of his journey he went to Rome, and
while there, paid a courtesy call on the Pope.
The response was a petition said to have been signed
by 30,000 Australians, protesting against his action.
This does not mean, however, that the significance
of religion is now confined to personal piety, and charitable
works.
The influence of religion on various aspects of
civil and criminal law is indirect, and largely by way
of the influence of religion on morality.
In his book entitled "The Enforcement of Morals",
Lord Devlin pointed out that the criminal law functions
best when the rules it enforces reflect moral principles
generally accepted in the community.
No one believes that the law should prohibit all
conduct which is immoral.
At the same time, it is usually difficult to justify
imposing serious criminal sanctions upon conduct which
is not generally regarded as morally wrong.
Lord Devlin wrote ("The Enforcement of Morals"
page 42):
"To
my mind the law of tort is the least satisfactory branch
of English law.
It may not be accidental that it is also the
one which of its nature has least to do with morals. The criminal law is shaped by the moral law; the quasi-criminal
is based on it; the law of contract is the legal expression
of the moral idea of good faith; the law of divorce
formulates the permissible relaxations from the moral
ideal of the sacramental marriage.
The judges of England have rarely been original
thinkers or great jurists.
They have been craftsmen rather than creators.
They have needed the stuff of morals to be supplied
to them so that out of it they could fashion law; when
they have had to make their own stuff their work is
inferior."
The law concerning marriage still provides a good
example of the influence religion has had, and continues
to have, on the law.
Section 43 of the Family
Law Act 1975 of the Commonwealth, (the so-called Murphy
legislation), provides that the first of the principles
to which the Family Court must have regard in the exercise
of its jurisdiction is "the need to preserve and
protect the institution of marriage as the union of a
man and a woman to the exclusion of all others voluntarily
entered into for life."
That definition of marriage, which accords with
the common law, and the assertion of the need to preserve
and protect it as an institution, has its historical origin
in religious doctrine.
However, for many people the community values reflected
in the legislative provision exist independently of religious
conviction.
The modern law regulates marriage, and the incidents
of marriage, closely.
Consider three aspects of that regulation: exclusivity, formality, and publicity.
Bigamy, and polygamy, are crimes, even if they
involve no element of deception.
A person cannot have two or more spouses at the
same time, even though the spouses involved may consent.
It is difficult to explain why bigamy is criminal,
even though no deception is involved, except by reference
back to religious doctrine.
The law imposes formalities upon entering into,
and ending, the relationship of marriage.
Dissolution of marriage requires an order of a
court, even where there are no matters in dispute between
the parties.
Entering into a relationship of marriage carries
with it an obligation of publicity. Even in an age which treats privacy as a human right, especially
in the sensitive area of personal relationships, people
who desire to enter into the relationship of marriage
must publicly register their status.
Public disclosure of marriage is not optional.
These requirements of formality, exclusivity, and
publicity, reflect a view of the nature and importance
of marriage which was derived from religious teaching.
This brings me to the point I want to make about
the continuing public importance of religion.
In the work to which I have referred (page 25)
Lord Devlin pointed out that "no society has yet
solved the problem of how to teach morality without religion".
Individual people have personal moral values which,
in many cases, have been formulated without any religious
underpinning. These
values are often more firmly held than the corresponding
values of many people who profess religious faith.
There can be morality without religion; just as
there can be religion without true morality.
But having an individual and personal conviction
is not the only thing that is important.
It is the general acceptance of values that sustains
the law, and social behaviour; not private conscience.
Whether the idea is expressed in terms of teaching,
or communication, there has to be a method of getting
from the level of individual belief to the level of community
values. Religion
is one method of bridging that gap.
What are the alternatives?
Apart from religion, what is it that forms and
sustains the moral basis upon which much of our law depends?
How are community values developed and maintained
in a pluralist society?
I do not suggest that it cannot be done; but it
is not easy.
This aspect of the contribution of religion to
society, and to the law, is often overlooked or underestimated.
People sometimes react with surprise, and even
indignation, when church leaders make a public affirmation
of religious doctrine.
But what is to be expected of church leaders if
they do not, from time to time, do that?
Have people really considered what the social consequences
would be if the great religions abandoned their teaching
role?
The relationship between the Church of St James
and the courts and legal profession of this city reflects
a lot more than history and geography.
The Supreme Court of New South Wales has long forgiven
the Parish of St James for appropriating its building.
But I am sure it continues to expect, and we all
continue to expect that from this church, and others like
it, there will continue to flow that stream of teaching
which is so important to the sustenance of the law.
