What does the Lord require of Christian lawmakers?

Kevin Andrews MP,Federal Member for Menzies, Chairman, House of Representatives Committee on Legal and Constitutional Affairs

When I first read the title of this session. "What does the Lord require of Christian lawmakers." my immediate response was, "I wish I knew."

This may sound a flippant response. From time to time I have heard people speak about how Christ touched their heart, or Jesus spoke to them in a special way. I have to confess that this has not been my experience. Hence my answer to the question is more reflective, more tentative, and perhaps more intellectual than some others would advance.

It may also come as a surprise to some who read from time to time in the newspapers that I am "a leading Christian in the Parliament" or even a "devout Catholic." As I replied on one occasion, my Parish Priest would probably respond differently!

My approach is, I suspect, a consequence of my family background. more than any other influence, whether the result of legal training, or any theological reflection. I am the product of what was once quaintly called a "mixed marriage." My mother was of Irish Catholic stock, the grandchild of Irish immigrants of last century. For her family, Catholicism was tribal: the faith that produced the great religious orders which are fast disappearing, and the centrality of the Parish church and school.

Sheila Rosina O*Connor was one of eight children, raised by her mother after her father was killed by a stampeding horse and buggy before she had finished Primary School. Her faith has always impressed me, that simple, accepting faith that seems to have been a buttress through the tragedies of life: the premature death of her own father, the loss of her firstborn, and the early death of her husband — my father —25 years ago. She often reminds me of Martha. always busy and bustling and doing the things that need to be done for others.

Both my parents* families objected to their marrying. My father. Roy Gebhardt Andrews, an Anglican of Scottish and German ancestry, and 38 at the time, had been described as a "headstrong young man" by the local bishop when he and my mother insisted on marrying. His own parents never forgave him for marrying a Catholic. Although he regularly attended three Sunday services as a child, my father only occasionally went to church as an adult. Apart from Christmas, and sometimes Easter, his attendances were limited to the round of weddings and funerals of a small country town.

Although my mother insisted on we children attending Mass each Sunday morning in the little church of St Rose of Lima in Rosedale, I came to regard the practise of religion as a choice from a fairly early age. Although my father did not attend church often, he was totally supportive of my mother*s decision. My wife, also of Irish Catholic descent, and I joke that whereas her Catholicism is "tribal", mine is "intellectual". By this I mean that my adherence to Christianity and the choice of denomination is a rational decision.

My father would initiate debates over dinner about a wide range of topics, many from the news and current affairs of the day. We could argue as we liked, but all according to a rule that only one person could speak at once, and others had to listen before responding. It is a rule that I sometimes wish I could enforce with my own children. I am sure, upon reflection, that my father often argued cases that he didn*t believe in order to stimulate discussion. Indeed my study of law and subsequent interest in politics is partly the result of these nightly exercises in advocacy.

These and other experiences of childhood and adolescence helped to shape many of my choices in life*s journey. I hope that they indicate something about my relationship with the Lord, which in turn informs my insight into how I should respond as a lawmaker.

The Christian obligation

The role of the Christian law maker necessarily embodies the role of the Christian. Perhaps the most well-known story from the Gospels, the Parable of the Good Samaritan, proceeds from a question from a lawyer to Jesus. To quote from Luke:

There was a lawyer who, to disconcert him, stood up and said to him, "Master, what must I do to inherit eternal life?* He said to him, ‘What is written in the Law? What do you read there?* He replied, ‘You must love the Lord your God with all your heart, with all your soul, with all your strength, and with all your mind, and your neighbour as yourself. ‘You have answered right,* said Jesus ‘do this and life is yours.*

You may recall that the questioner was not satisfied. In what may be one of the earliest recorded instances of a request for further and better particulars, and predating Lord Atkin*s famous question in Donohue v Stevenson by 1900 years, the lawyer responded to Jesus: ‘And who is my neighbour?* - to which Jesus replied with the Parable of the Good Samaritan. He concluded by telling the lawyer to ‘go, and do the same yourself'.

For a Christian therefore, our primary duty is to love God and to love our neighbour. This necessary implies duties and obligations.

How then is this commandment fulfilled by the lawmaker?

Law and morals

At the recent Christmas Service for Lawyers at St James Church. Sydney, the Chief Justice of the High Court of Australia, the Hon. Murray Gleeson, referred, approvingly, it would seem, to Lord Devlin*s s well-known work The Enforcement of Morals. Chief Justice Gleeson said:

Lord Devlin pointed out that the criminal law functions best when the rules it enforces reflect moral principles generally accepted in the community. No one believes that the law should prohibit all conduct which is immoral. At the same time, it is usually difficult to justify imposing serious criminal sanctions upon conduct which is not generally regarded as morally wrong.

The Chief Justice then quoted the following passage from Lord Devlin:

To my mind the law of tort is the least satisfactory branch of English law. It may not be accidental that it is also the one which of its nature has least do to with morals. The criminal law is shaped by the moral law; the quasi-criminal is based on it; the law of contract is the legal expression of the moral idea of good faith; the law of divorce formulates the permissible relaxations from the moral ideal of the sacramental marriage. The judges of England have rarely been original thinkers or great jurists. They have been craftsmen rather than creators. They have needed the stuff of morals to be supplied to them so that out of it they could fashion law; when they had to make their own stuff their work is inferior.

Although he did not say so, one may infer that the Chief Justice has a similar view of Australian judges. He went on to develop a case for the continuing public importance of religion,* particularly the teaching role of the great religions.

Given the essential role of Parliamentarians to fashion the law, where do they to quote Lord Devlin, find ‘the stuff of morals?*

This question necessarily involves some consideration of the role of law itself.

The role of law

For the past two centuries, the popular conception of law has been legal positivism. According to John Austin, the truth or otherwise of legal propositions consists solely in their imposition by definable and observable criteria, whether legislation or decided cases. Law therefore, could be defined in terms of commands.

For Jeremy Bentham, the sole purpose for which law and its institutions should serve is the general welfare. As a consequence, the principle interest of positivist thinkers has been the identification of the necessary and sufficient conditions for a proposition about law to be true. This interest is illustrated in the famous debate between Professor HLA Hart and Lord Devlin.

In 1957, the Wolfenden Committee observed in its Report on Homosexual Offences and Prostitution in England: "Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law*s business."

In 1959, Lord Devlin delivered the Maccabaean Lecture in Jurisprudence in which he expressed the view that society has a right to pass judgment on matters of morals as public morality is part of the invisible bonds without which society would disintegrate. Accordingly, society may use coercion to punish conduct which arouses widespread indignation and disgust. Lord Devlin proposed that society*s moral judgments could be ascertained by the standard of the hypothetical reasonable man: "He might also be called the right-minded man. For my purpose I should like to call him the man in the jury box, for the moral judgment of society must be something about which any twelve men and women drawn at random might after discussion be expected to be unanimous."

In his response, Professor Hart adopted John Stuart Mill*s dictum that the only purpose for which power can be rightly exercised over a member of civilised society against his or her will is to prevent harm to others, although he qualified Mill*s position by a reference to paternalism which would justify laws against their own self or against external injury.

I wonder whether we have been seduced by the debate between Devlin and Hart into a limited characterisation of law. I would like to return to a much older conceptualisation. My starting point is the discussion with the Athenian Stranger in Plato*s Laws.

You may recall that a discussion occurs between the Athenian and two elderly travellers, a Cretan and a Spartan, whom he has encountered on the road from Knossos to the temple of Zeus on Crete. The ensuing discussion concerns the purpose of law.

Throughout this discussion, no matter what legal subject is raised, it is education which comes to the fore. The Harvard scholar, Mary Ann Glendon. writes:

The ultimate concern here... is not so much with the right laws for the State, but with the right education for citizenship. The Athenian stranger continually brings the discussion around to the classical idea that the aim of law is to lead citizens towards virtue, to make them noble and wise.

Towards the end of the final book of Laws, the Philosopher observes:

that laws generally should look to one thing only; and this, as we admitted, was rightly said to be virtue.

This notion of virtue is missing from our modern discussion of law. As Lord Hailsham has said:

Virtue must be an intrinsic interest of secular society and a society which does not seek to identify what types of conduct are intrinsically virtuous and to support and encourage them as a matter of policy and to discourage their opposites would itself be neither rational nor capable of enjoining that cohesion without which stable and civilised society cannot exist.

The discussion is not without relevance for modern legislators. Let me illustrate.

In a report about drug law reform to the government of Victoria a few years ago, an Advisory Committee observed that "respect for laws is undermined when a significant portion of the population is committed to doing something that the government makes illegal." Under the command approach of the legal positivists, it is argued that the failure by a significant minority to abide by the law brings the legal system into disrepute and that the law should be changed. But this approach leads ultimately to one of two outcomes: Either the government can more strictly enforce the law, leading towards a police-state; or it can abandon the law, of which anarchy is the ultimate result. Neither consequence is desirable, suggesting that a narrow command approach to law is inadequate.

The popular acceptance of law as a series of commands can undermine the work of legislators, the public officials elected to govern nations and states, and their standing in the eyes of the populace, when the laws they enact do not overcome problems. Missing is the sense of an aspiration for an ideal, which, even if not always achieved, nonetheless provides an inspiration for society.

If politics is about how ought we order our life together, and morality is about the distinction between right and wrong, the two are intricately linked. Accordingly, I believe that one obligation of lawmakers is to look to the educative value of laws, especially whether they promote or detract from a virtuous society. In saying this, I am not suggesting a recourse to religious text or a theocratic state. But it does seem to me, in a world in which old moral certainties are increasingly questioned, that for most of the population, the law itself has become the major arbiter of what is generally regarded as right and wrong. If the Christian is obliged to serve his or her neighbour, the Christian lawmaker should consider how every proposed law serves the common good.

This brings me to a related issue: the relationship between public officials and citizens.

Public officials and citizens

I am reminded that Winston Churchill once recalled that a speaker had said it was time leaders kept their ears to the ground. "All I can say," replied the wartime Prime Minister, "is that the British nation will find it hard to look up to leaders who are detected in that somewhat ungainly posture!"

Throughout the world today, politicians are held in low esteem. A common charge is that we are self-seeking, interested in political intrigue rather than the myriad of problems facing ordinary people, and, in some cases, are personally corrupt. Repeatedly, we hear people say: "We want politicians who will act with integrity, who will display the courage of their convictions, who will address the issues and not attack others personally, who will not treat their position as a cover for personal or financial gain or impropriety" - in other words, ‘we want you to act morally."

It is often said that we get the politicians we deserve. But the relationship between Members of Parliament and citizens is two-way. Members of a legislature are not elected merely to mouth the loudest voices they hear, but to explain, calmly and patiently, with perseverance and courage, their considered views about the consequences of policies and proposals, while respectfully listening to and engaging others in the discussion. In other words, if we act out of a profound sense of obligation about the future of the world and its people, with perseverance, courage and humility, we provide a model to the community that we are elected to lead.

Vaclav Havel addressed this notion of political responsibility in a speech to Harvard University. In his address the one-time dissident, and now President of the Czech Republic said that the "great task. . . for people in all forms of public life" is to renew our sense of responsibility. He addressed particular remarks to politicians:

The main task of the present generation of politicians is not, I think, to ingratiate themselves with the public through the decisions they take or their smiles on television. It is not to go on winning elections and ensuring themselves a place in the sun till the end of their days. Their role is something quite different: to assume their share of responsibility for the long-range prospects of our world and thus to set an example for the public in whose sight they work. Their responsibility is to think ahead boldly, not to fear the disfavour of the crowd, to imbue their actions with a spiritual dimension (which of course is not the same thing as ostentatious attendance at religious services), to explain again and again - both to the public and their colleagues - that politics must do far more than reflect the interest of particular groups or lobbies. After all, politics is a matter of serving the community, which means that it is morality in practice...

Let me conclude.

We must, I believe, continue to assert the place of obligation in public discourse and private behaviour if we wish to sustain our modern, rights-giving democracies. Unless we appreciate that a right can only exist when some person or body has a responsibility to deliver the subject-matter of the right, we run the risk of neglecting the foundation upon which our societies exist.

Conversely, a renewed focus on the spectrum of obligations and duties may improve rights. Many of the most vulnerable in the world have little opportunity to assert their human rights. Should not we remind their governments of the obligations and duties they have towards all men and women?

The coming epoch will be characterised either by a belief in nothing beyond convenience, a world in which life increasingly is "solitary, poor and nasty" - or one in which a sense of hope, personal integrity, and loyalty and obligation to the community prevail.

Obligation to our neighbour is an essential component of a free, sustaining society in which individuals can live in liberty. The virtues of courage and wisdom, and integrity and humility are born of deep personal convictions and practised behaviour. Without such values, the polity is diminished. These are things, I believe that that Lord requires of Christian lawmakers.