Bruce has tagged me for the National Day of Secularism meme.
He’s interested to see what I will say because of a comment I made to him when discussing those stupid citizenship questions…namely:
“The Ten Commandments can be regarded as forming one of the precedents for modern law, canon law, and all kinds of other law. So to the extent, our legal tradition is based in part upon notions expressed in the Old Testament (which is broadly equivalent to the Tanakh), we can be said to have a legal system which depends on “Judaeo-Christian” values and notions.”
Now, those of you who read my blog know that I was not brought up with any particular religion. I must confess to a bit of an obsession with millennial cults and heresies. I love it when people predict the end of the world or the arrival of a new Messiah and it doesn’t happen. Maybe I’m just mean. But I always wonder how the cult leader explains it away. I imagine, for example, the Fifth Monarchy Men during Oliver Cromwell’s rule of England, standing on a hill waiting for the Rapture to pick them up. Apparently they had their hands in the air all night, waiting for the Second Coming. What happened the next day? Apart from, of course, the fact that they had sore arms? How did they explain it? (“Oh, we must have made a mistake, the Second Coming is a month away….oops, no, a month after that…“)
So Bruce has asked me to put my money where my mouth is. Do I think religion has a place in the law? Do I think it has a place in our wider society?
As Paul at A Roll of the Dice has pointed out, s 116 of the Australian Constitution states:
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.
This is a good thing. I support the separation of church and state in Australian society and law. It means that everyone can be equal in Australia, regardless of whether they believe in one God, many Gods or no God at all. This is how it should be.
What position, then, does religion play in the law? On a practical level, the main way in which religion still comes into the law is in relation to the oaths people swear upon giving evidence. These days, you don’t have to swear upon the Bible. There are procedures for many different religions, and affirmations for those who choose not to swear an oath at all. Personally, I’m an “affirmer” which is always a little bit controversial, even in these secular days, but if I swore on the Bible I feel like a hypocrite. In the Victorian Supreme Court, sometimes the Tipstaff also announces “God Save the Queen! I now declare this honourable court open.” Those are the only two ways in which religion comes into the courtroom.
When I was young and angry, I used to be a staunch atheist. I would go so far as to say that I was a fundamentalist atheist. I think this arose in a number of ways:
- The prominence of science and reason in my upbringing.
- In Grade 2, a Religious Education teacher told Cherryripe and I that our parents were going to go to hell. It put me off religion big time (and, if I’m not mistaken, Cherryripe was put off as well). I decided that if the teacher was right, I’d rather be in hell with Mum and Dad than in heaven with her, and if she was wrong, well, it didn’t matter.
- In Grade 4, a Religious Education teacher told me that Jesus resurrected her dead goldfish after she prayed to Him. She had placed the goldfish in a saucepan and stirred it with a wooden spoon, praying as she stirred. (No, I’m not being funny here, this really happened. Cherryripe will back me up. We had some doozies).
- Some bad experiences with religious people who talked about holiness, but were all about hate and excluding others.
- A dislike of groups, and a natural desire to be contrary.
- A perception that religion led to hatred and war (the Middle East, Northern Ireland) as well as bad treatment of women, homosexuals and minorities.
- That old chestnut: Why do bad things happen to good people? How can there be a just God or Gods if He/She/They let bad things happen to good people? (I’ve explored this a little already in my post on the Virginia Tech shootings)
It was only really until I got to university that I mellowed. I looked at my friends, who come from very varied backgrounds, and saw that religion can be both a positive and a negative. It can inspire people to great deeds and creations. Some religious figures can be truly inspirational and good people. But religion can also give people an excuse or a reason to do great cruelty. It can screw with people’s minds totally, for example, where someone who is religious discovers they are homosexual, but this is not sanctioned by their religion. However, atheism can also be both a positive and a negative. A fundamentalist atheist is as bad as a fundamentalist anything else. These days, I would say I am agnostic. I am accepting of all religions, as long as those who follow them are accepting of me and my traditions and background. I have found that people are very welcoming if you are open and ready to learn. I have been a bridesmaid at a Jewish wedding and a Muslim wedding in the same month. I have gone to Sunday lunches, Eid celebrations, Passover seders, Sikh weddings, Buddhist weddings, Christian funerals…you get the picture. I do think that religion has an important part in our society, and I would not want to deny that.
What of religion and the law? I see the place of religion in our law as a historical one. In Australia, we do not have religious courts or religious laws that we have to follow, unless we choose to submit to the dictates of a particular religious body (eg, the Jewish Beth Din in Australia). I do think, however, that religion has had an important historical impact on the development of the law. The thing which amazed me when I studied the halakah (Jewish religious laws), the hadith (Islamic religious laws) and a little bit of canon law is the similarity which they bore to modern day laws. Much of the subject matter was the same as that which comes up every day in courts today. When is it okay to break a contractual agreement? When is murder legal, if ever? What is the penalty for stealing a man’s cow? Is divorce permitted? How many witnesses are required to prove certain things? Funnily enough, they each developed in an organic way which is very similar to the English common law.
Religion has played a important part in the way in which our law has developed, and it cannot be fully understood without knowing something about that historical background. Many religions provide moral guidelines for how we live our lives, and I believe that the notions expressed in the Old Testament or Tanakh and the New Testament have been an important influence on the way in which our law and our notions of governance have developed, along with many other factors. I am not suggesting that we should rely on the Bible or the Talmud for legal precedent in this modern day and age. (Dare I say, “God Forbid!”? ;-D) I am just noting a historical fact.
I am glad our present-day law and our state are secular. If the state privileges a particular religious ideal, this means that those who do not believe in that ideal are somehow less a part of the state.
That being said, I am wary of relying too much on reason as a source of law. As a lawyer, I know how easily reason can be manipulated. After all, us lawyers make a living from trying to persuade people that the unreasonable is actually reasonable. Reason cannot be the be all and end all of our law. Even if we do not believe that religious ideals should presently inform our law, there must be some kind of moral basis to it. This tension is known in legal circles as the divide between positivism and natural law. Positivism says that the law is what you say it is. If a statute is properly enacted, it is legal, regardless of the content of that statute. Natural law says that the law is what is good and moral. If a statute does something that is immoral, it cannot be law, even if it is validly enacted. I do believe that there are some things which are fundamentally wrong or immoral. That is why I believe in human rights. To me, an element of morality or natural law is essential – not for religious reasons, but just because it’s the right thing to do.
Update – 27/5/07
Just watched the second half of Richard Dawkins’ television series, The Root of Evil. It was interesting. I think Dawkins is a little too hardcore for me.
I don’t have a problem with religion generally, as long as it doesn’t prevent people from questioning why things are. Some of those people in that documentary were pretty scary – they were so sure that they had the absolute truth, and that one could not question it.
Religion gives those with an inflexible mind a schedule to which to adhere, but I wonder whether religion is to blame. I suspect that if they didn’t have religion, they’d find some other doctrine to which they had to adhere (political or otherwise). I am reminded of a friend who was brought up in a very strict religious household. He rejected his upbringing, but kept seeking substitutes. At one point he was an evangelical scuba diver, and tried to convince me to become a scuba diver too. I think he was just evangelical in general, regardless of religion.
Feel like having a bet both ways? Apparently a US Creationist museum has put two dinosaurs on Noah’s Ark. Craziness.