Truth and the law: legal should also mean moral

Truth and the law: legal should also mean moral

Bishop Peter Elliott

The following is the edited text of Bishop Peter J. Elliott's homily at an ecumenical service in St Paul's (Anglican) Cathedral, Melbourne, on 29 January 2008, to mark the Opening of the Legal Year. Bishop Elliott is an Auxiliary Bishop of Melbourne and Director of the John Paul II Institute for Marriage and Family.

Secularists assert that religion is a 'private matter', for they are radical individualists. Moreover, they assume that everyone is naturally an atheist, that they represent what is normal. This secularist illusion gets to us, particularly through the media, and we may even absorb that false assumption.

But anyone who makes a stopover on a flight to Europe can enter cultures where life is communal and religion is normal. If you observe the world beyond our narrow horizons, assertive individualism and atheism find no place in the lives of most of the people who inhabit this planet.

At the heart of the 16th Century, in the England of Henry VIII, two Christian lawyers rose to the highest office in the land and both of them ended up on the scaffold at the Tower - Sir Thomas More and Sir Thomas Cromwell. In the Catholic tradition, the former is revered as a canonised saint, the patron of the noble legal profession, while the latter is reviled as a toady and plunderer of monasteries.

But Thomas Cromwell was no monster. A flawed but brilliant man, he also died courageously and prayerfully. Yet he represents something else that, I would argue, undermines truth in the practice of the Law. He is one of the remote fathers of legal positivism. By acceding to the dictates of a tyrant, he divorced morality from law.

St Thomas More remained faithful to an older and richer tradition, to the Natural Law. The Judaeo- Christian ethic rests on this Natural Law: that good is to be done and evil avoided, that there are objective moral standards, moral truths. Throughout the Hebrew and Christian Scriptures, in the highest literature and the best popular culture, we find a fascination with the human struggle to discern right from wrong, to identify good and evil, questions requiring a moral judgement we call 'conscience'.

The Natural Law posits that these realities are knowable through reason, indeed written into the very nature of the human person. Hence the making and application of good laws is assured by remaining true to the higher principles of an ethic grounded in our very nature as moral beings, derived from what may be called 'the truth of the person'.

Legal positivism, by contrast, separates morality from law. There are many ways of attempting to define this dualism, this self-verifying theory of law. The autonomy of law was articulated by the utilitarian Jeremy Bentham, an atheist, who in my world-view, represents the shadowy side of the Enlightenment.

A brighter side of that ambiguous movement held to the Natural Law tradition, as did the Founding Fathers of the United States. This Natural Law tradition ultimately flowered in the 1947 Universal Declaration of Human Rights, which, for the record, was partly influenced by the Catholic lay philosopher, Jacques Maritain.

Right and wrong

At least in its extreme form, legal positivism offers no guarantee of protecting human rights from tyranny. At that stage we can no longer find truth in the law. Law now depends on the dictates of the State, or is determined by the more forceful opinions of individuals or factions, or law making may be driven by ideology, such as the push for a so- called 'right' to abortion. In our society such trends are justified by appealing to an undefinable authority, 'community values' or 'community standards', so right or wrong is replaced by approximate consensus.

In this decadent context we have great and urgent responsibilities. We now face the challenge of social engineering, that is, attempts to use legislation and subsequent laws to change the way people act and think. Ethical, hence legal, issues arise, concerning the value of human life, the right to life, the integrity of marriage, even the nature of parenthood and the family.

Many people are concerned about these matters. In January this year the John Paul II Institute for Marriage and Family held its annual National Colloquium on Bioethics. Experts from all over Australia and beyond and from different denominations worked on the theme 'Conscience in Professional Life: Doctors, Lawyers and Legislators' with doctors, lawyers, legislators and bio- ethicists discussing such topics as the question of the Jurist and conscience.

The Catholic social ethics tradition, which has been carefully thought out and reasoned, is coherent, based not on blind faith, as secularists imagine, but on the Natural Law tradition together with the spiritual and moral wisdom and experience of many people across four millennia.

Our prudent advice to legislators is critical, if the good of society is to be promoted and harm avoided. In the brutal 20th century, calculated social engineering destroyed life and liberty. Today it entices legislators and those who advise them 'to make a name for themselves'. Those tempted in this way should beware. They will leave a name for themselves, but in the annals of infamy, held responsible for consequences of human suffering, deaths and social fragmentation.

In any social context we also see that the law is a great teacher. The pedagogy of the law raises another dimension of truth and the law. Law not only maintains justice, with equity and impartiality, but can educate people to respect human rights and dignity.

Nevertheless, in the estimation of the masses, what is legal is what is moral. Therefore changing law may well change moral perception. This possibility obviously complicates debates on legalising drugs. It is relevant in the conversation on decrim- inalising abortion. But there have been more sinister possibilities.

In an authoritarian society people may accept something that is immoral, for example racism, because it has been legalised by the State. That happened through the Nuremberg laws of 1935 in Germany. Eleven years later, after unspeakable horrors, in that same city the political criminals responsible for those debased laws were held to account. But those who think the Nuremberg Trials, and current inter- national cases against genocide and war crimes, can be justified by anything but Natural Law principles, should think again.

The legal profession is called to serve society through this pedagogy of the law and in a different, but related, way I share in this responsibility. But let us all do a reality check for we function in an ethically confused society, where nice people do nasty things, driven by greed. In the work of the legal profession and in mine we are encountering more of this 'respectable' criminality.

Political correctness

Hypocrisy is evident. Sectors of the media make celebrities out of terrorists, gangsters, abortionists, teenage delinquents and con men. Judges are lambasted for being too severe or too soft. Ethical thinking is befuddled by sentimental political correctness. The only fumbling attempt at ethical discourse is the use of safe relativistic terms, 'appropriate' or 'inappropriate', never 'right' or 'wrong', for those words express objective morality and suggest that there is moral truth. Yet our legal system rises or falls on its fidelity to moral truth.

In some universities and on the fringe of popular culture, the fashion is 'post-modernism'. Its radical individualism tells us that there is no truth, only 'your truth' and 'my truth'. Culture wars are reduced to power struggles. All values are human constructs to be 'deconstructed', preferably by cynical comedians posturing at 'comedy festivals'.

Postmodernism echoes the empty words of Pontius Pilate - 'truth - what's that?' But even as he spoke, there was the Truth, standing in front of him, staring him in the eyes, scourged and crowned with thorns. To serve the truth is to serve Him and be prepared to suffer for it.

At the same time, amidst all the moral confusion and cant, there is a beautiful simplicity and tranquillity about the truth we find in the practice of the law. This is evident in some of the great decisions of our legal tradition, those magisterial precedents that benefit both individuals and the common good, and do no harm. Note, however, that in such decisions, great jurists do not hesitate to have recourse to the concept of 'natural justice'.

Let us now focus on religion, in particular Christianity.

To what I propose, secularists may reply that Natural Law involves specific religious beliefs, that is, faith, and for this reason it can have no part in the making and practice of the Law in a secular society. Yet nowhere have I appealed to faith. The principles of the Natural Law and their interpretation and application as Natural Justice rest on reason.

Certainly reason often needs the illumination of revealed religion, yet even that is received best through a reasoned faith, brilliantly articulated by the late Pope John Paul II in his letter, Fides et Ratio, Faith and Reason, further developed by Pope Benedict in his amazingly controversial Regensberg Lecture.

Undaunted secularists go on to warn us against 'imposing religious values' on society. So we have yet another phobia or prejudice on our hands! Some call it 'Theophobia', fear of God, or 'christophobia', fear of Christians. But Christians cannot and do not want to turn Australia into a theocracy. If one tries to identify the engines driving social engineering, it is the secularists who are trying to impose their values on our society, strange values indeed: a 'toleration' that breeds intolerance, 'choice' that kills the innocent, 'dying with dignity' that could unleash terror and also ruin another noble profession.

In this context, just before Christmas, in an aggressive article in The Australian, a secularist journalist invoked 'the separation of Church and State'. Now he could have been reminded that this is Australia, not the United States. Even there, several centuries ago this 'separation of Church and State' expressed the wish of religious people to be free from any Established Church, and that is in our own Constitution.

Only later, in the last century, was the separation of Church and State reinterpreted by the US Supreme Court in dogmatic secularist terms, leading to the silliness of banning Christmas cribs in public places. Such foolish trends are evident in this country.

However, a final consideration is how Natural Law and our own Christian traditions open a more personal dimension of truth and the law, what we might call 'the truth of service'. Here the practice of the law is understood as a service to society and individuals, especially the poor, the most vulnerable and dysfunctional.

Vocation

Unfortunately, in our times there is a temptation to replace service with expertise, to slide into an impersonal mechanical functionalism. But that is not impartiality. It only reduces judges, magistrates, barristers and solicitors to technicians, under the tyranny of the laptop.

By contrast, service rests on commitment to seek whatever sustains and protects people, for their human flourishing and liberty. The values of the Natural Law are behind those goals. Only through service can the noble legal profession be understood as a vocation, rather than a skilled and frenzied quest for money, power or prestige. Service has an attractive integrity of its own, constantly reforming and cleansing our working lives.

May this personal truth in the practice of the law shine forth in its practitioners who need to keep asking for the spirit of truth and pray for that Spirit in seeking to rediscover and value what really lies behind the marvellous edifice of the law.

Above all, the legal profession needs to offer people the best service it can. We are a flawed humanity on a common journey, or should I say in the light of Christ the Truth, we are on an adventure, a pilgrimage where life has form, a plan, meaning, purpose and a destiny.

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