The Jesmond Conference: Session 2: The Rule of Law
Is there truth so we can make true judgments about right and wrong?
In Western democratic liberalism historically the aim or value of "pursuing" truth has been paramount. But there is nothing automatic about that. You only have an honest search for discovering what is really there or really happened and with agreed procedures and methods of testing hypotheses, when there is a prior assumption that there is an objective reality that calls for exploration and description.
But this assumption depends on something like the prior Christian understanding of man and the world, namely that this world is the arena both of God's normal "regular" working and of his "irregular" or "miraculous" intervention; and man stands in relation to the external world as fundamentally a creature and not as a Creator. His own ideas, plans and activities do not determine reality. They are reactions to what is given or the reordering of what is already there. So man, the world and God are differentiated. God is real and not just a figment of man's imagination. The world is real. It is not all in flux. It behaves in a reasonably predictable way; yet testing of theories about it is required, because not everything that happens is predictable. And it is objective; it is there in external space and time as distinct from in your imagination.
But with the loss of a Christian world view, that is no longer assumed. There has, also, been a loss of confidence in science for a range of reason; and from an awareness of other religions and ideas through the distorting lens of relativistic journalists, people believe that there are no permanent features to human experience and that morals and values are subtle ways of people seeking power over other people. So anything that is possible is permitted, hence homosexual marriage, and, God-forbid, hybrids of humans and animals.
But with little certain what you now have in this post-modern world are "preferences". Politics and law-making involve "bargaining" and "trade-offs" regarding preferences. As Alisdair MacIntyre, the philosopher put it, politics has become "civil war by other means". Less and less is there rational arguing for the truth of things; instead there is (still in Britain) a non – violent form of "might is right". So the pursuit of truth regarding "right" and "wrong", has, been affected.
All this causes problem for our second British Value, The Rule of law. For the whole Western tradition has presupposed what C.S.Lewis in Mere Christianity called the Law of Human Behaviour and about which he writes in the Abolition of Man. There he reminds us that it has been proclaimed in various ways by all the major religions and philosophies. So all of them recognize that our ability to know how we should behave is greater than our ability to behave as we should. But this is no excuse for dismissing the idea of natural law as some have done in the modern period – a law that is accessible to all and that Paul calls, "the law written on their [Gentile] hearts, while their conscience also bears witness" (Rom 2.15) – Gentiles being those who have not received God's special revelation through prophets and apostles. John Locke that "father of liberalism" speaks for this Western tradition when he says:
"It is certain there is such a law [the law of nature], and that, too, as intelligible and plain to a rational creature and a studier of that law as the positive laws of commonwealths [laws voted by parliaments]."
And natural law came into its own again at the Nuremburg trials of Nazi War Criminals and indeed the UN Declaration of Human Rights.
Professor V A Demant says the idea is vital for securing …
… that the positive laws of particular states and legislatures are not treated as absolute and that they should be dependent on the constitution of reality – sometimes called Natural Law or Natural Rights.
But back to the rule of law itself.
By itself that is as problematic as the concept of Democracy. For it depends on whether the law is just or unjust - whether it is in accordance with that "constitution of reality" - or like Nazi law for its being valued? In simple terms are we talking about British law as it is, or Sharia Law, and if Sharia law, what Sharia Law?
Of course, any law is usually better than none, in situations of social collapse or widespread terror, when mobs are on the streets looting and "running wild". Then bad government providing "the rule of bad law" is better than no government in terms of social order.
I discovered that when on leaving the university I went to work in the Sudan in the sixties and arrived in the middle of a coup. When you know the government has been removed, but no one is yet in control; and when to reach your destination you have to drive through rioting crowds and tear gas on the journey from the airport that has been shut for a few days; and when you get to your destination you discover you are living virtually next door to an army barracks full of fully armed Sudanese soldiers and you don't know who is giving the orders as to whether, and when, and at whom, to pull the trigger, it is quite frightening.
But we will assume for our discussion of the Rule of Law the aim or value of traditional Western liberalism. That is where all men and women deserve moral respect and legislative protection. For all are equal before the law. This also must, however, not be taken for granted. It depends on an important assumption that is by no means self-evident, namely that all are equal in reality.
But here, if anywhere, is a value or aim that is faith-related, for it comes from the belief that men and women are made in the image of God.
It is obvious that the common factor does not, and cannot, have its roots in human social relationships; it must be related to a belief that is, so to speak, above these relationships. For the harsh realities of life would make us think that all men are unequal. Inequality is inherent in the human condition as regards nature (some are born strong and some are born weak) and as regards function (some end up ruling and some being ruled). That is why, if man's significance is confined to the secular – to this world and to man's place or job in society – there can be no equality and no common element for the human condition, other than the accidents of birth. It is because we relate to a reality over and above our place in social history that there is the phrase "our common humanity."
So truth, right and wrong and fundamental human equality have all sprung from the Judeo-Christian tradition that endorses the Natural Law tradition and the doctrine of creation. And unless those aims or values are continually watered by the Christian faith and its tradition, there is no reason to believe that they will thrive or even survive.
I, therefore, am worried when I read that in 2013 Sir James Munby, the current head of the Family Division, said the courts should not give more weight to Christianity than any other religion; and he added that modern day judges had abandoned any claims to be guardians of public morality.
How do we critique that and the Rule of Law to make a helpful response?
Most would agree that the State is the one social cohesion that alone is allowed to use physical force in society; and the army, the police and the law are related to that use of physical force.
But since the birth of modern liberty in the late 17th century the State may not use force to enforce beliefs. But that does not mean the State may not be guardians of public morality. John Locke, who was so significant in the late 17th century, believed the law should deal with those who threaten the moral foundations of society (I quote): "no opinions", he wrote, "contrary to human society, or to those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate". And from his first letter it seems that such threats could come from "libertinism and licentiousness" which in practical terms seem to mean "adultery, fornication, uncleanness, lasciviousness, idolatry and such like things". These, he implies, should be the concern of the magistrate (or the state) rather than theological ideas and church controversies that the magistrate (or the state) should not be involved in.
The radical change away from such thinking came in the 1950s.
That was when the Wolfenden Committee Report of 1957 on prostitution and homosexuality was published. The Committee had to discuss, (I quote) "What is the connection between crime and sin and to what extent, if at all, should the Criminal Law of England concern itself with the enforcement of morals and punish sin, or immorality as such." The Committee's conclusions were as follows. They said the function of the criminal law was
To preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others … It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior, further than is necessary to carry out the purposes we have outlined.
Then Professor H L A Hart followed and developed this conclusion with some famous lectures that were published under the title Law, Liberty and Morality. Like Wolfenden, Hart was taking and refreshing the proposition of the 19th century philosopher, John Stuart Mill when he said,
the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right
And following a moral concern to rid the streets of prostitutes and grossly exaggerated figures regarding the incidence of homosexual activity, the Sexual Offences Act 1967 was passed and homosexual sex was decriminalized and that gave impetus to the 1960s sexual revolution
Four things can be said about all of this.
One, Mill was suggesting that when the law is simply restricting private moral liberty, repealing it is a positive good. But the 19th century philosopher T H Green had pointed out that that is not a sufficient argument for repeal, because it is not only liberty that is a positive good for the individual but the restricting law as well. For it
is not just the means by which I restrain the liberty of others to injure me; still more fundamentally it is the means by which I secure my own liberty to live as a good citizen against my own occasional desires to act otherwise
It acts as a restraint on us if we feel tempted to transgress.
Two, Mill was unrealistic. No man is an island. Mill (and Hart) did not understand what counts as "harm to others". Guy Brandon, has plausibly argued in a recent Jubilee Centre Paper Free Sex – Who pays? that the cost of the 60s sexual revolution of which Wolfenden and Hart were all part, in the UK today is £100 billion a year – more than the Education budget and not far behind the NHS budget! Much of that is through the breakdown of families and all that results.
Three, there is a failure to realize, no doubt contrary to intention, how educative the law is. What the law allows, for good or ill, is taken as moral. So Wolfenden and Hart far from separating the law from morality and the criminal from the sinful, have led to Parliament legislating for a new immorality with the law seen to encourage old sins.
Four, the separation of the law from morality is an entirely new thing. As Richard Neuhaus put it, looking back on the last half of the 20th century and with the religious still in a majority:
the genuinely new thing has been the effort of the cultural elites and the knowledge class … over the last half century to try to formulate what never would have occurred to Jefferson or Rousseau or Locke – to try to sustain the democratic procedure without some kind of moral and, at least for democratic and popular purposes, religiously grounded legitimation. This has really been an astonishing experiment in which the courts have most recklessly been leading the way.
Fifth, this is all part of the drift from any concept of "natural law" or some moral absolutes other than the absolute that there are no absolutes, for all is relative. That then leads in public life to there being no "common good" except liberal democratic procedures. But then the democratic procedures simply become a contest among different interest groups. Without agreement as to justice or what is right or wrong, legal decisions and appeals to legal decisions become problematic.
The solution in recent years is, on the analogy of genuine human rights of the natural law tradition, is to operate with a system of voted "parliamentary" rights, which is a euphemism for privileges that those who shout loudest get – hardly a liberal solution or a value to commend.
And sixth, led by Wolfenden and Hart, it is now felt that lawmakers can overturn centuries of wisdom without proper attention to what has gone before. This was the horror and seriousness of the Gay Marriage Act. According to Mary Ann Glendon, a Harvard Lawyer, "Both in continental Europe and in the Anglo-American tradition the idea of law as command is the dominant idea … as distinct from law as coming from the bottom up - that is law as custom elaborated over the ages."
I discovered that truth of that on the one occasion where I actually was responsible for a new law of England as a member of the Steering Committee for the Patronage (Benefices) Measure 1986. At one point we were discussing ancient trusts established in the 19th century and still of financial benefit. It was proposed by someone on our committee that these be abolished. I replied by instinct, saying in my naïveté, "You can't do that." "Oh yes, you can!" I was told by the senior lawyer present and with the Parliamentary draftsman in attendance, "Parliament can do anything."
So the Rule of Law as a British Value raises huge questions. How you translate something of that natural law tradition into current British Law is for lawyers and politicians. Certainly a repeal of the Gay Marriage Act could be a first step!