Dilemmas of the Law in a Multicultural Society

[part 3] by Jenny Taylor

3. Some Twentieth Century Writers on the Religion and Law

According to Phil Harris (1980), the law consists of rules that are normative, and invite official retaliation if broken. Ronald Dworkin (1985) defines the law somewhat loftily as ‘rule by a coherent and uncompromised vision of fairness and justice’. Although most writers posit force, authorised by the sovereign (individual or body) as the ultimate test of whether law is law, most also agree that law falls into abeyance if large numbers of people generally do not observe it. Law therefore cannot avoid cognizance of social custom and values.

Harold Berman has written: ‘In virtually all societies the established legal processes of allocating rights and duties, resolving conflicts, and creating channels of cooperation are inevitably connected with the community’s sense of, and commitment to, ultimate values and purposes.’[1] This is the religious dimension of law, connecting a society’s legal order to its belief in a reality beyond itself - a reality whose existence is denied in modern law, with predictable results.

Lord Denning, then Master of the Rolls, wrote ominously just nine years ago: ‘Religion concerns the spirit in man whereby he is able to recognise what is truth and what is justice: whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs. If religion perishes in the land, truth and justice will also.’

He wrote a small book The Influence of Religion on Law listing the ways Christian truth lay behind much of the development of English law, not least of which was the notion that justice was the name you gave to the application of the injuction ‘Love Thy Neighbour’ to social institutions.

Denning does not consider it necessary to show here how the divorce of human law from ‘divine law’ was essential in any system that was to allow debate about the law’s parameters. Terrible inquisitorial sanctions in the case of any whiff of theological heterodoxy wrought their own eventual disqualification. Denning’s ‘certitude’ could seem to imply a reimposition of doctrinal purity on all aspiring lawyers.

Yet ‘the secular’ is a religious category, and theologically bears witness to God’s grace in allowing his creation its freedom. Secularization theorists such as David Martin and José Casanova have shown how the development of ‘secularism’ only arose in Christian cultures, and ‘the secular’ itself - from saeculum - existed originally only in terms of ‘the religious’ as in ‘sacred and profane’ - a ‘truly meaningless differentiation’ which centuries ago ago fell out of use.[2]

While Christian thinkers contributed to the high view of freedom largely by seeking to release mankind from the unChristlike tyranny of religious dogma, they did not imply a release from faith as a valid paradigm - which now confronts us. Any legal system therefore which does not acknowledge religious and secular interdependence is in for trouble

Nathaniel Micklem said the same in 1952: Looking at what had happened in communist Russia and in Nazi Germany, he wrote: ‘The rejection of religion heralds the end of the reign of law.’[3] Law became a fickle instrument of the State once spiritual doctrines of human personality were jettisoned, just as it had become a fickle instrument of the Church when its earthly power grew too great.

John Lloyd, another Law Lord and a relativist, writing in 1964 his The Idea of Law[i], a standard textbook on the subject, saw the flaw in the modern positivist solution, but was complacent about what might replace it:

. . . the more progressive positivist of the present day recognizes that the law, while entitled to regard itself as an autonomous field of study, has many close and intimate relations with other aspects of human activity. For law cannot be considered or rightly understood apart from the aims which it seeks to achieve, even though these aims may be only transient and variable and not absolute sub specie aeternitatis.

Consequently, the lawyer needs to come to grips with the value system inherent in his society and to wrestle with the many problems which arise in developing the legal system as machinery for achieving justice within the framework of the value system (p. 115).

To Lloyd, aims and value systems and the means of discerning them are extraordinarily vague. In a system such as the common law the principles expressing the inherent values of English society are not contained in a specific legal document but are to be distilled out of a long historical tradition manifested in certain institutions, constitutional principles and conventions, and decisions of the courts, which have been treated as embodying in a special degree the spirit or values of the English way of life.

He goes on: ’Educated in this tradition, those whose function it is to develop and apply the law can generally be assumed to be cognizant of the spirit of the community expressed in these various forms. In this way the built-in values of the system are generally adhered to and developed. ‘

Such an approach may serve for a country with a long tradition of ordered government and with a fairly homogeneous population which is broadly in accord as to the essential values which embody the spirit of the community. Less integrated or more recently established states may require something more explicit than the rather haphazard repertory of law and tradition which has served England reasonably well up till now.

Just thirty-five years on, and with a more disparate, less integrated population than has ever inhabited these islands, this all looks pitifully thin. The ‘something more explicit’ it requires is, apparently, anybody’s - urgent - guess.