National Day of Secularism

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.

Update 2

Feel like having a bet both ways? Apparently a US Creationist museum has put two dinosaurs on Noah’s Ark. Craziness.

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16 Comments

Filed under Australia, christianity, history, human rights, islam, judaism, law, morality, religion, tolerance

16 responses to “National Day of Secularism

  1. AV

    I support the separation of church and state in Australian society and law.

    Ah, but does the separation of church and state actually exist in Australia?

    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.

    But whose morals should provide this foundation?

    Let’s take the example of homosexuality. Your morality (for argument’s sake) might dictate that homosexuals should be entitled to the same rights as everyone else. Someone else’s morality might, on the other hand, prescribe the criminalisation of homosexuality.

    Why should your morality prevail over the other’s as a basis for laws regarding homosexuality? Why should the other’s morality prevail over yours? How do we break the stalemate?

  2. AV,

    Your post was very interesting – I recommend it to anyone out there who hasn’t read it. It seems to me that the High Court’s interpretation of s 116 is downright wrong.

    As for whose morality prevails? That’s a difficult one. As I say, I think the prevailing morality should be non-religious, but of course it will share some themes with religious morality – eg, treat others as we would like to be treated ourselves. The kind of morality I would like to see prevail is based on mutual respect and empathy, as well as allowance for differences between people.

    As far as I can see, the same problem arises with reason. Whose reason prevails? Both reason and morality taken to extremes can create unfairness. Again, taking the example of homosexuality, someone might argue that there is no cause for our society to tolerate homosexuality because in rational Darwinian terms, the evolutionary success of the human race requires procreation, and homosexual relationships inhibit this process. (I should stress that this is not my belief in any way! I am just trying to show that “reason” can lead to unfair results if taken to extremes, just as “morality” can).

    I have always found it difficult to pin down a list of essential norms of human conduct (whether those norms are based on reason or morality). I can always think of exceptions – situations where it might be just to kill someone, for example.

    I don’t have a way to break the stalemate. All I can say is that I think my ideals would lead towards a happier society where ideas flow, but perhaps someone might point to somewhere like Singapore, where there is a very restricted “moral” regime, but it seems to be successful. Majority rules can’t be the answer. Do you have any ideas?

  3. AV

    Both reason and morality taken to extremes can create unfairness. Again, taking the example of homosexuality, someone might argue that there is no cause for our society to tolerate homosexuality because in rational Darwinian terms, the evolutionary success of the human race requires procreation, and homosexual relationships inhibit this process.

    The difference is that reason is a method, not a doctrine. So while the argument you describe above might be the outcome of someone’s reasoning, that doesn’t stop you from reasoning against it. (E.g. by pointing out the flaws in your opponent’s reasoning.)

    This is far better, surely, than (say) pointing to the Bible and saying “the Bible forbids homosexuality; ergo, the law should proscribe it.” The first method is at least open to a continuing discussion. The second simply shuts down dialogue altogether. (It’s also an invalid appeal to authority, but that’s just me taking the side of reason again 😉 .)

    I don’t have a way to break the stalemate. All I can say is that I think my ideals would lead towards a happier society where ideas flow

    Ah, so it’s not that the ideals are “good” in themselves, it’s that they lead (in your view) to a happier society. This is an example of reasoning, and you’ve proved my point.

    Do you have any ideas?

    Yes: if it’s a choice between critical/reflective thinking (i.e. reason), magical thinking (i.e. “gut-driven” thinking, truthiness) or dogma (whether religious or ideological), I choose the first option.

  4. 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.

    I’d say that it is often faked, rather than manipulated. The punditocracy seems to run on this principal.

    Reason cannot be the be all and end all of our law.

    Are we going to go into Kant’s “Critique of Pure Reason”? Incidentally, I’ve previously argued that it is reasonable for reason to defer to less reasoned heuristics when reason isn’t up to a specific task.

  5. Particularly enjoyed the last paragraph, where you analyse the law vs fairness dichotomy. There are so many times when the law is an ass, simply because people believe that the law must be right, regardless of its content. The constant review provided by law reform pressures is essential. Justice Earl Warren of the US Supreme Court was often reported as saying when approached by lawyers, “Now I know the law gentlemen, but is what you’re proposing fair?”

  6. Lad Litter,

    Justice Earl Warren sounds like a dude and a kindred spirit. If the law doesn’t “feel” fair to me, I think there must be something wrong with it.

  7. AV and Bruce,

    I think the dichotomy between reason and morality is a false one. Morality is essentially a question of what kind of behaviour is “good” behaviour. This process must involve some kind of reason.

    Religious morality often has some kind of reason behind it. It may not be a reason that we find acceptable or appropriate in this day and age, but it is still there. Take “Thou shalt not kill.” The reasoning behind this is that it is not desirable to have civilians killing each other whenever they want to. Disputes should be resolved in other ways in a civilised society. But it is easier to enforce if the lawmaker says, “You have to refrain from doing this because God says that you can’t do it, and He will send you to hell if you break the law.”

    I don’t find the “God says so” argument convincing. I require reason behind morality, and a consideration of opposing arguments and exceptions to the rule.

    Often with “gut feelings” of unfairness, there is also reason behind it when we look closely. Equity in Anglo-Australian law is the closest we get “gut feeling”. But, quite properly, it has a structure and a reason to it. You can’t just overrule something because you think it’s “not fair”. You have to give proper reasons, and apply certain doctrines to identified factual circumstances. Otherwise the law becomes impossibly unpredictable.

    I should confess here that I specialise in Equity and the like. In Aristotle’s Nicomachean Ethics, he contrasts law with equity. Law is universal, and applies to everyone regardless of circumstance. Aristotle says that equity is “a rectification of law where the law falls short by reason of its universality”. There are always exceptions to the rule. And so there should be.

    LE

  8. AV

    I think the dichotomy between reason and morality is a false one.

    As do I. The dichotomy I’m talking about is that between reason and unreason as a guide to moral decision-making, or more importantly, a guide to what a society should deem lawful or unlawful.

    Take “Thou shalt not kill.” The reasoning behind this is that it is not desirable to have civilians killing each other whenever they want to. Disputes should be resolved in other ways in a civilised society. But it is easier to enforce if the lawmaker says, “You have to refrain from doing this because God says that you can’t do it, and He will send you to hell if you break the law.”

    I find this disturbing. Why should a law be more difficult to enforce if there are reasonable grounds for having it? The theological ad baculum might be a powerful motivator, but it depends upon acceptance of the theology. What happens when the people stop believing in God?

  9. Personally, I also find the idea that we should keep the law because God might punish us as disturbing. I certainly don’t condone this view. As you say, the laws lose their force if certain groups in society do not believe in the enforcing God. Therefore, it is important that laws have a logical and moral compass independent of religion.

    To my mind, laws are in place because we need them to have a peaceful and stable society, and to regulate transactions and interactions so that we have some idea of what to expect when we make a contract or buy a house or get married, or whatever. Historically, laws as explained in religious texts may have had an influence on our law, but God has no place in the law today.

    I was thinking about the way in which parents try to teach their children what is right and wrong.

    Sometimes, parents say, “Don’t do that!” to their children. When the child asks “Why?” the parent answers, “Because I say so.” Religious laws can be like that. The problem with mixing religion and law is that religion involves faith, which can lead to a lack of questioning and inquiry. I’ve never found “because I say so” to be a particularly satisfying response. It’s likely to make me want to disobey (I am naturally contra-suggestible).

    Sometimes parents explain why a certain course of action is not advisable: “Because you’ll hurt yourself” or “Because it isn’t nice to other people to do that” etc, etc. I was far more likely to obey my parents where there was a reason behind a particular stricture they put on me. I think the same applies to the law.

  10. AV

    Sometimes, parents say, “Don’t do that!” to their children. When the child asks “Why?” the parent answers, “Because I say so.”

    That’s why they say philosophers are just like children 🙂

    (Or is it the other way around?)

    The problem with mixing religion and law is that religion involves faith, which can lead to a lack of questioning and inquiry.

    My thoughts exactly.

  11. I am afraid I was an inveterate asker of the question “Why?” when I was a child. Hopefully, growing up hasn’t stopped me asking that question either…

  12. Just watched the second part of Dawkins’ program too. I must say that he is not too extreme for me, and his focus on asking people the simple question, “why?” and on the fact that, whatever people may choose to believe, they do not have the right to impose it on others, is admirable.

    There seems to be a vein of ‘fundamentalist’ rationalists emerging in the last few years – it’s an intriguing development.

  13. Cherry Ripe

    Thank you LE, I had a big giggle when I remembered those bizarre RE teachers we had at school. Do you remember the same fish women told us about another fish – that jumped out of its tank, but through God’s will it happened to land in an open, empty drawer, where it thumped its tail until someone happened to come in, hear it, and return it to its tank.

    A miracle!

    Anyway, I have too many opinions on this to justify the time that I could spend on it.

    That said, I these days profess myself to be an atheist. That doesn’t mean I don’t have “beliefs”. I believe in a great deal of what Jesus stood for. I believe in many principles found in various faiths. I believe in wonder and creativity, and humility. I belief in continuing to doubt myself and explore ways of being.

    As for morality, I like the idea of morality and spirituality being grounded in the here and now; in people, creatures, science and imagination; in the known and unknown; and not in any books, laws or scriptures of dubious origin. Religion provides no real morality – only a set of rules. Real morality is about choosing empathy and humanity over the needs of the self.

    As for the afterlife? I like Bob Geldof’s theory: “after death, there is simply blessed oblivion.”

  14. Yep, I remember the story about the fish in the drawer. That woman really had a thing about fish. I am envisaging a special car bumper sticker just for that woman saying “JESUS SAVES…fish.” Blasphemous, but certainly appropriate in her case.

  15. AV

    Thank you LE, I had a big giggle when I remembered those bizarre RE teachers we had at school. Do you remember the same fish women told us about another fish – that jumped out of its tank, but through God’s will it happened to land in an open, empty drawer, where it thumped its tail until someone happened to come in, hear it, and return it to its tank.

    I went to Catholic schools. My Year 11 RE teacher once asked the class if any of us were atheists, and I raised my hand. (As I recall, I was the only one to raise my hand.) My RE teacher told me that God would one day make me have an “accident” (a la bolt of lightning), and then I would become a believer.

    He was also a science teacher–I daresay someone who was able to compartmentalise his mind into reasonable and unreasonable spheres.

  16. When I studied religious history at university, I was the only non-believer in my tutorial. I got called a blasphemer at least twice, just for asking “why?” about certain doctrines. I was quite proud of myself.

    A question that always bothered me but I never got to put to my tutorial group (shame): Why is God prepared to show Himself to Paul on the road to Damascus but I have to take it on faith? I would be quite prepared to believe if He revealed Himself to me with an accompanying stairway to heaven filled with angels. Interested to hear responses by both believers and non-believers…

    AV, I’m presuming you haven’t been hit by a lightning bolt. Yet. 😉

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