WHAT’S
SPIRITUALITY GOT TO DO WITH THE LAW?
Spirituality
in the Pub,
Paddington
,
Wednesday 6 May 2009
Justice
Terry Sheahan AO
I am honoured to be asked to speak in this series on
spirituality and various elements of life. I am particularly sorry now that I
missed the March meeting about spirituality and religion because it might have
cleared my thinking on tonight’s topic.
For many years the official law year (or term) has commenced with church
services. In the late 1990s and
early 2000s we also had some Christmas services to close the Law Year.
At all such services, legal and clerical clothing are in full view –
reminding all of us that both originated from a time when the Lord Chancellor of
England (that nation’s highest ranking judge) was a bishop and most judges
were clerics, and when the legal system of our parent democracy had been
intimately connected into the religious environment of the first 1000 years
after Christ.
Civil and ecclesiastical courts did not separate until after the Norman
Conquest and many people are not clear as to if and where the boundary should be
drawn between religion and the law, God being so frequently depicted as a Judge,
in art and the scriptures.
Judges go to work every day to find answers to questions posed by others,
so we usually begin by trying to define the key terms employed. Try googling the
words “spirituality” and “law”.
One site, called “Living Words of Wisdom” more or less said of
“spirituality” – as others have said of pornography and justice –
you can’t really define it, but
you’ll recognise it when you see or feel it.
“Law” on the other hand is variously defined, depending on
whether the word appears standing alone or with a “the” or an “a”
in front of it. The topic for tonight has the “the”, so I guess we
all are thinking tonight of not only the rules, written or customary, by which
our government bindingly regulates our society and its/our behaviour, but also
of what we might think of as the “industry” of the law and the people
who work in it.
I
venture to suggest that one theme for an answer to tonight’s question is that
we have long seen the need to add a “dimension beyond the human” to
both the body of rules and principles laid down to regulate our behaviour, and
also to those citizens who have to interpret and administer it.
Because most people have difficulty sorting out spirituality from religion
we firstly need to try to segregate the part law plays in church from the part
church plays in the law.
So, let me return to the commencement services for a moment.
The lawyers
open their year with a religious commitment service, rather than secular pomp
and ceremony, because we all need to affirm to ourselves and to the community in
general that the law they practise administer and enforce should, and, in
a free society like ours, hopefully does, reflect high moral and ethical
values such as lie at the heart of all the great religious traditions of
civilised societies. Principally, we all believe that every citizen is entitled
to equality of access to, respect by, and treatment at the hands of, the law.
The “official” commencement service for Sydney and NSW is at St
James’s Anglican Church in
King Street
,
Sydney
’s oldest church and the “parish” church of the
legal profession and the courts which have surrounded it since 1827. These days
major court complexes are more broadly spread with the development of the
Downing/Maddison/Bowen precinct nearer Central, and now the Justice precinct at
Parramatta
.
This year-opening ritual is replicated in other cathedral centres where
judges are regularly sitting – Parramatta, Newcastle, Wollongong, etc – and
also these days in other denominations – Catholic, Jewish, Greek Orthodox and,
sometimes Uniting.
There is strong resistance to having only one large ecumenical service,
perhaps in the ceremonial
Banco Court
– neutral religious territory – although there is a
strong ecumenical flavour to the services held outside the Sydney CBD.
The Liturgy at St James is much the same each year. Generally the Anglican
Archbishop of
Sydney
presides and he also
often preaches. All sectors and individuals present – judges, advocates,
solicitors, law teachers, and all of them together – after the customary
readings, prayers and hymns, make
acts of dedication, and pray for one another, for peace, and for the oppressed.
We
are all deeply conscious that many people who are not at peace feel that the
legal system under which they live oppresses them rather than secures their
freedom. The challenge for us is to demonstrate at every opportunity, and in
visible and practical ways, that the law is a liberating force for good.
We dedicate ourselves and our work to God “to maintain the kind of
order which undergirds community life and … also secures the basic freedoms
for the individual”. We pray also that individual citizens will exercise
responsibility in daily life and work, and that we can overcome the “imperfections
and misjudgments to which our human limitations make us vulnerable”.
The Attorney General, the first Law Officer of the Crown and the minister
for legal matters in the elected government of the State, usually attends the
services, but takes no particular part and has no particular prayers said for
him.
Another anomaly worth noting is that these services are State system
events; Federal Judges take a very low profile at them, and the Commonwealth
Attorney only rarely attends.
In any event, at the conclusion of the service the Archbishop sends all
the players in the legal system out to begin each new Law Year, with the
stirring injunctions:-
“Go forth into the world in peace; be of good courage; hold fast that
which is good; render to no one evil for evil; strengthen the fainthearted;
support the weak; help the afflicted; give honour to all; love and serve the
Lord, rejoicing in the power of the Holy Spirit”.
The Catholics have had their own separate service – the Red Mass – for
many years. The “Red” is from the vestments for a Votive Mass for the
Holy Spirit – not to upstage the scarlet and ermine of our Supreme Court.
The Mass was first celebrated in St Mary’s in 1931, with the blessing of
the Protestant Chief Justice of the day,
Sir Philip Street
. However, the traditional
Red Mass dates back to 12th century
Europe
, and the Papal courts at
Avignon
.
It is thought to have commenced in England not long afterwards, and in
Sainte Chapelle in Paris – a very holy place indeed,
right inside the Palais de Justice, across the river from Notre Dame
Cathedral – in 1245. It commenced in the
US
only in 1928 but
Presidents since Truman regularly attend.
Members of the early informal Red Mass organising committee became, in
1945, foundation members of the St Thomas More Society, a guild or fellowship of
Australian lawyers, mainly Catholics. My father was at the first Red Mass and at
the Society’s foundation meeting. The Red Mass is celebrated annually under
the patronage of St Thomas More, the celebrated English jurist and humanist who
served Henry VIII as Chancellor 1529-32, only to be martyred by him for his
adherence to the dictates of his conscience on
6 July 1535
.
In 1523 More had been elected Speaker of the Commons, so John Paul II
declared him in 2000 also patron saint of politicians and statesmen, as well as
of lawyers. A statue of St Thomas More now stands in the Speaker’s garden at
Parliament House, where so much of our (statute) law is made, in sittings always
opened with prayer.
So, the making and enforcement of laws have long established links to
organised religion.
As one who has worked in all three branches of government or “organs
of the State”– legislature, executive, and judiciary – I have always
felt the need for, and the value of, adding that “dimension beyond the
human” to my preparation for work, and I have tried to find that
spirituality through the guidance of the various “religious”
opportunities available to me. For me Micah’s mantra is the prime source –
my preferred translation being “Act justly, love tenderly and walk humbly
with your God”.
We do not want our public life to be almost devoid of ideas and ideals. I
have seen, worked with, and admired, lawyers and politicians who neither worship
nor believe, who “affirm” rather than swear an oath, and don’t
believe in the Parliamentary prayer or the Law Term services, but who
steadfastly stand up for what they believe is “right”. They see no
need for God or faith, but they have values, commitment and integrity, and their
light shines for all to see.
I expect it was easier for our forebears, who were presented with “black
and white” codes to be followed without question. Not so long ago the
Anzacs fought for “God, King, and Country”, but many who now honour
the Anzacs have little respect for any of those three.
At the big Ordination at St Mary’s last Thursday night, the Cardinal
took us back to some “black and white” as he instructed the four new
priests to:
“Meditate on the law of God, believe what you read, teach what you
believe, and put into practice what you teach”.
So, what is the “law of God” for their purposes and ours?
Are all the roots of our law in the Work and Will of God himself, with the
collaboration of Man?
And is there any difference between that “law” and the value
system which underpins the work of those who don’t share my need for Divine
inspiration or guidance?
Moses came down from the mountain with the Decalogue. The Ten Commandments
were often referred to as “the Law”, but they have mutated over the
centuries into “timeless laws of God and man”, or rather, laws of the
heart, or guideline principles for a good way of living, and Jesus came onto his
mountain with the beatitudes, to put a “just” context on living
together under the law.
Neither pronouncement was legislation to be obeyed and enforced, to the
letter, as we understand modern law. Despite the separation of church and state
we are not long past the days when the law of the land sought to enforce the
Commandments as far as possible – we never could not find a way of legislating
against covetousness, but we did punish blasphemy and adultery. In a modern
pluralistic society, to deny Christ’s divinity may be blasphemy to a
Christian, but to assert it will be blasphemy to a Muslim.
Likewise, if we go to Jesus’s fundamental teaching we realise we cannot
make it binding by law to “love thy neighbour as thyself”.
We Australians are also the beneficiaries of the profound underpinning
spirituality of the original Australians, who have no written laws, and the
well-intentioned non-believing colleagues to whom I have referred find their
version of, or their alternative to, spirituality, from within.
What we are all looking for is some form of “peace”, as a base
or a goal!
John XXIII identified the four pillars of peace as truth, justice, love
and freedom, and those called to the law have an opportunity and an obligation
to focus on all four – the search for individual justice is noble and
challenging work, but I doubt that any of us could do some things, like
sentencing, adoptions, and deportations, to name but three of the hardest,
without something beyond the self or beyond the human.
Rabbi Apple preached bluntly that the “well being of a nation depends
on its attitude to the law and its respect for the rule of law”. The “Rule
of Law” does not mean rule by law – rather it comprehends a
system of universal values, respected by all three organs of state and,
hopefully, by all citizens as the basis of peace and order in a free society. It
is often described as “our final defence against tyranny”.
Archbishop
Stylianos speaks of the “sacredness of legal order [in] the Word of God”,
and of justice not being achieved without love and knowledge. Bishop Anthony
Fisher, a lawyer priest/bishop, says we associate religion and the legal system
because “justice … is the foundation of any genuine reconciliation”.
Not all laws or lawyers are intrinsically just or good, so it must be more than
a question simply of “who has the power to impose what upon whom?”
One does not need to be a zealot, or even privately pious, to have an
instinctive concern about what our laws do, for example, to refugee children, or
what American law did to David Hicks.
In
a way it is not our commitment as lawyers or even Christians that tingles our
nerve ends about such matters – we’d like to think it was our nature as
Australians to respect human dignity as Christ taught. In that we are the heirs
to our own “ethnic” spirituality, which tells us from within that
something is wrong.
Regrettably the public gaze and the media are fixated not on the rights
and wrongs of such things, but on the popular obsession with “sin”,
and the role of the courts in sentencing offenders for “sins”.
Unquestionably sentencing offenders is probably
the judge’s hardest task, but it is not his or her only task, in the
administration of justice. Looking for a just result is the constant challenge.
So I’d like to say a few things, finally, about the broader legal system
and where spirituality of some sort finds a role in it, remembering John
XXIII’s linkages among peace, justice, truth, love and freedom.
The notice for tonight quoted from Sister Elizabeth McDonough, so I went
surfing on the net to learn more of her thinking and the relevant thoughts of
others. I found some interesting work by one Joseph Allegretti, a Professor of
Legal Ethics at
Creighton
University
in
Nebraska
, but none more inspiring
than some of the writings of Australian Christian lawyers Gerard Brennan, Bill
Deane, Keith Mason, Michael Kirby, and Frank Brennan.
Allegretti notes that lawyers “have an innate tendency to sharply
separate love and justice” while God sees them as “inextricably
entangled – to do justice is to love, and to love is to render justice”.
That struck a cord with my deep commitment to reforming our adversarial legal
model by injecting into it more of what we call Alternative Dispute Resolution,
because Allegretti calls for compassion to replace aggression and reconciliation
to replace “legal vindication”, and he sees law as the clay for
pottery or the paint for pictures, rather than as always an absolute in itself.
While
McDonough wrote principally about the review of Canon Law, she articulates that
law, in dealing with, primarily, external conduct, is subordinate to deeper
spiritual realities dealing primarily (but not exclusively) with internal
dimensions of the heart. Both, to be meaningful, must operate for “good”
in the “concrete reality of life”, and good law, like spirituality,
recognises a “value” towards which we all must work. Both are rooted
in faith, and McDonough believes a person’s expression of spirituality and
approach to law are indicative of his/her theological orientation. One’s “positive
regard for law” involves knowledge, interpretation, adaptation,
confrontation and dissent, and one’s spirituality is the foundation for
all “positive regard”. Law aims at life being well organised, and
Canon Law aims at it being well lived.
When discussing the movement of law away from the enforcement of the Ten
Commandments, apart from the many synergies remaining between our law and such
moral codes, Mason preferred the term “reinforcing” Christian
messages, to any concept of enforcing a particular “belief”. He said:
“The law is a blunt instrument for making spiritual things new and relevant”,
and he quoted a man he described as an American Iconoclast (Grant Gilmore) who
apparently wrote in 1977:
“In
Heaven there will be no law … and in Hell there will be nothing but law, and
due process will be meticulously observed”.
Cardinal Clancy always gave great Red Mass homilies, from which we could
take away a simple one-liner – “to believe in God is to be committed to
righteousness, and the key to righteousness is love”, “the greatest
weakness of religion is to focus on the outer shell of ritual and regulation, so
focus on the person, not the case”.
In 1989 Clancy said that societies preserving traditional Christian
morality, but abandoning the Christian faith which underpins it, look to secular
law to become a substitute foundation, blurring the lines between legal/illegal
and moral/immoral.
Mason notes that as law can never be a universal conscience, and always
remains human, its sanctions will not invariably produce just results.
Some individuals in the law have great difficulty with changing community
standards represented in modern statutes. In my time on the Land &
Environment Court planning cases concerning brothels could not be listed before
two particular individuals who had strong views that they should never be legal.
What is legal is not automatically moral, and to act within the law may not
always be “just”.
Mason does not accept that Christianity was ever truly part of the common
law, but finds great Christian principles frequently at the root of great
developments in the common law, for example Lord Atkin’s linking of the then
emerging law of negligence (in the “snail in bottle” case, Donoghue
v Stephenson) to the Christian concept of duty to neighbour. The legal
doctrines of good faith, restitution and compensation are also clearly
representative of Christian values that enjoy broad community support.
Principles we identify as Christian permeate our legal institutions
because our legislators and our legal practitioners apply to their work their
personal beliefs (avowedly Christian, or inevitably measured as consistent with
them).
When George W Bush nominated John Roberts to become the
USA
’s first Catholic Chief
Justice, the questioning at his confirmation hearing bluntly challenged his
pro-life views as a possible threat to the authority of the so-called pro-choice
decision of the Supreme Court in Roe v Wade. His Honour bluntly
responded, in terms reminiscent of JFK, when confronted by his Catholicity, that
he would do his judicial duty by reference strictly to the law and not to his
personal faith or religious beliefs.
Sir Gerard Brennan (our own first Catholic Chief Justice) opines that in a
Parliamentary democracy it would not be “just” for courts to hold
that the law differs from what Parliament lays down, but Parliament should not
be easily taken to have intended an unjust rule. Keith Mason reminds us that the
law is not “an edifice” but “a living thing”, and that our
“contribution to its growth” should be “informed by faith and
values”.
These are difficult dilemmas for the modern judicial officer, and none of
them can be solved without a “dimension beyond the human”. Jesus was
often critical of lawyers – the scribes and Pharisees were the NSW Bar of
their day. In Matthew’s gospel (Ch.23, v.23) he attacks them for hypocrisy in
paying too little attention on the “weightier matters of the law –
justice, mercy and faithfulness”.
So, I end where I began, chasing down the key words to give them proper
meaning.
Jesus says the “weightier matters of the law” are “justice,
mercy, and faithfulness”, all weighty matters of our spirituality too, all
beyond the human – Like the words and concepts I have quoted tonight from
others: “Rule of Law”, moral, ethical, faith, values, peace,
oppression, divine, just/justice, truth, love, freedom, knowledge,
reconciliation, good(ness), righteousness, neighbour, and so on.
For me the answer to the question “What’s
spirituality got to do with the Law?” is, simply, “a lot”!
o o
O o
o
Acknowledgements
·
Mason, Keith: “Constancy and Change”
(Federation Press, 1990.
·
McDonough, Elizabeth: “Spirituality and Law:
The Coming of the New Code” (Spirituality Today, 1982, Vol.34, No.3, pp233
ff).
·
Addresses given by Prof/Fr Frank Brennan SJ AO
(Law Institute of Victoria,
29 November 2007
; and ACU Sep/Oct 2005).
·
Kirby, Michael: (1996) 14 Australian Bar
Review, pp 170 ff.
·
Brennan, Sir Gerard: (1996) 14 Australian Bar
Review, pp 89 ff.
·
Allegretti, Joseph: (1999) Vol.XXVI Fordham
Urban Law Journal, pp 1183 ff.
·
Various homilies published from Law Term
Services.
