The Hon Justice Adams, Supreme Court Of New South Wales, Chairperson, NSW Law Reform Commission, Former Member, Uniting Church (NSW Synod) Board For Social Responsibility.

[This paper is an adaptation of an article Some Reflections on Christianity and Law Reform published as a Zadok paper (S105, autumn 2000). I have shortened it to some extent and refined some of the discussion. My Zadok paper dealt rather too dismissively with Old Testament criminal law, which I have endeavoured to correct.

The crime of petty treason was committed by uttering forged coins and whenever a subordinate killed or attempted to kill or conspired to kill his or her superior. For this purpose, an employer or a husband or a priest was regarded as superior. The mandatory punishment for women was being burnt at the stake.

In 1786, William Wilberforce attempted to get Parliament to discontinue the burning of these women. Lord Loughborough, the Lord Chancellor, who was for some time a Ruling Elder of the General Assembly of the Church of Scotland, opposed this reform. He did so for the reason that the spectacle was likely to make a stronger impression as a deterrent on those who saw it than mere hanging, and no more pain was inflicted because the women were always strangled before the fire got near them. In fact, "always" overstated the case. The punishment was abolished in 1790. The crime remained until 1826. This was a little more than 200 years ago but fourteen centuries after Christianity became part of the power structure of the State, for most of which time it was also its dominant element.

The state of the prisons was also appalling. Disease was rampant, the sexes were not separated until relatively recent times, few survived their sentences: gaol fever epidemics were rife, killing scores in a few days. Gaolers were brazenly corrupt and violent, not a few being prosecuted from time to time for murder. Dr Johnson (who may justly be described, I think - for reasons that are worth another paper - as a Christian humanist, despite his thoroughgoing ‘conservatism) described them thus in the Idler of January 1759 -

The misery of the gaols is not half their evil: they are filled with every corruption which poverty and wickedness can generate between them; with all the shameless and profligate enormities by the impudence of ignominy, the rage of want and the malignancy of despair.. .Thus some sink amidst their misery, and others survive only to propagate villainy.

It was notorious that revision of the criminal laws was essential, if for no other reason than the maintenance of order. As early as 1750 a Committee of the House of Commons recommended not only reform of prisons and so-called houses of correction but also of the capital laws. The Committee accepted that this was impossible without simultaneous reform of the administration of criminal justice and certain other branches of social policy, especially of the Poor Law. Many of the recommendations were not implemented until fifty or even a hundred years later. The House of Lords, including a majority of the Bishops, rejected the reform proposals of 1752.

Down to 1826, the mandatory sentence for every felony was death and there were hundreds of such crimes, many of which were created or at least made felonies in the l7th and early 18th centuries. Grand larceny, for example, was to steal anything of the value of more than 12 pence. It was a felony and thus punishable by death. Privately stealing in a shop to the value of five shillings also carried the death penalty. Whilst setting fire to a house might well in modern times be seen as extremely serious, the death penalty applied whether it was occupied or not. However, it is difficult to understand the reason for executing persons for setting fire to a stack of straw or wood, even though there was no intention to injure any person and it was impossible to do so. Destruction of a tree belonging to another, if with malice against the owner was also a capital offence. It may easily be guessed what the punishment was for killing, maiming or wounding any cattle, whether or not (in the latter two cases) the injury was permanent.

The age of the offender was irrelevant. In 1800 a ten year old was sentenced to death for secreting notes at a post office (a form of larceny). The judge thought it necessary to pacify the feelings of horror in the crowded court by stating "the necessity of the prosecution and the infinite danger of its going abroad into the world that a child might commit such a crime with impunity, when it was clear that he knew what he was doing" and hinting "slightly" at the possibility of the exercise of the prerogative of mercy. The sentence was commuted and the boy was sent to Grenada for fourteen years under a private arrangement with a member of the grand jury who had estates there. Such arrangements were often ‘flagrantly corrupt' and little more than slavery, with the prisoners being bought and sold. Very few survived for long.

Although in the second half of the 18th century the actual execution rate of offenders sentenced to death ranged from 50% to 75%, equally for minor capital offences as for serious ones, by the early 19th century executions for capital property offences, such as stealing privately in shops or dwelling houses unaccompanied by aggravating circumstances occurred in perhaps less than 10 percent of cases. In 1785 in London and Middlesex, of the 97 persons executed, only one was convicted of murder, the rest were property offences not involving violence to the person. This was not an unusual year. It is generally accepted that, by this time, executions had become less frequent than earlier in the century. The number continued to fall. In England and Wales in 1810, there were 481 capital convictions for property offences and 55 executions but only one (of 67) of these was for stealing in a dwelling house to the value of 40 shillings (it should be noted that juries would frequently find that the most valuable items somehow never quite got over the forty shilling mark) ; four out of five were executed for sodomy, whilst nine of fifteen were executed for murder and only two out of thirteen for shooting, stabbing and administering poison with intent to murder.

In 1772, the Parliament rejected a proposal of its own Committee to repeal an Act that punished with the death penalty, as for murder, any woman who concealed the death of a bastard child unless she could prove that the child was born dead. It is bizarre, to say the least, that this particular crime should abrogate the presumption of innocence, even then considered to be a fundamental principle of the criminal law. Under other legislation the mother and reputed father could be required to pay for the upkeep of their child and committed to prison if they failed to do so. However, sufficiently cogent identification of the father was often not possible and the mother could therefore be committed for one year to a house of correction and, in the case of a second offence, until such time as she found securities never again to commit the offence. Other reforms were approved in the House of Commons, only to founder again in the Lords, with the support of the Bishops, as happened again in 1787.

I should mention that death sentences were frequently commuted to heavy sentences of imprisonment or transportation but the exercise of this prerogative was arbitrary and capricious, though it became more frequent and predictable as the 19th century wore on.

In 1810 a Bill to repeal the death penalty for theft in dwelling houses to the value of forty shillings was lost in the House of Commons, despite the support of William Wilberforce but the Bill amending the Act which punished stealing privately in a shop to the value of five shillings with death was passed. In the House of Lords, the Bill was opposed by both Lord Eldon, the Lord Chancellor and Lord Ellenborough, Lord Chief Justice, who claimed the support of the judges. The argument apparently most (but insufficiently) persuasive favouring reform was not that the law was unduly harsh but that it was becoming increasingly difficult to obtain convictions from juries. Lord Eldon, however, not only defended but praised the state of the law, and the House of Lords rejected the Bill by a majority that included seven bishops. A further attempt in 1816 failed, although it was disclosed in debate that a ten year old boy was then confined in Newgate prison under sentence of death for shoplifting. It was mentioned in debate that, in 1814, the Recorder of London had stated from the bench at the Old Bailey that "it was the determination of the Prince Regent, in consequence of the number of boys who had been lately detected in committing felonies, to make an example of the next offender of this description who should be convicted, in order to give an effectual check to the numerous instances of youthful depravity". The Attorney General explained, in all seriousness, that it was necessary to execute these children because a very large proportion had been instructed by their parents to steal in the hope that they would escape punishment because of their age. Reform failed again in 1818 despite compelling evidence that juries repeatedly found, contrary to the plain fact, that the stolen goods were worth less than five shillings or had not been stolen privately.

As late as 1813 a bill designed to improve the law relating to insolvent debtors by depriving a creditor of the power to keep his debtor in prison for life also contained a clause imposing capital punishment for concealment by a debtor of his or her effects. It failed because it was unnecessary, as this had been the law since 1732 and at least four debtors had been executed under it.

In 1813 and then 1823 and 1827, Sir Robert Peel managed to procure repeal of some capital penalties, including for larceny in a number of circumstances. By 1839 most of the property offences were no longer punished by sentence of death. The offences that remained were, with one exception (buggery, "either with mankind or any animal"), seriously violent or dangerous.

The reforms of these dreadful laws, which took so long, did not come about as the result of any campaign by any recognizable section of the Church, let alone the whole Church, although many of those who sought reform would have regarded themselves as Christians, as also did many of those who fought them tooth and nail.

The Church in the ecclesiastical courts and, by extension, the Court of High Commission under the Tudors and the Stuarts exercised powers to punish immorality, heresy, witchcraft and the like and freely (and illegally) used torture to procure obviously worthless confessions which provided the basis for imprisonment and execution. Stephen states (op cit, Vol II, ch 25) that, "the practice of burning heretics was ... introduced into the law of England by forgery, a usurpation countenanced and procured by the clergy". This was a stern but entirely just observation. The enemies of reform were not confined to the Anglican bishops in the House of Lords. The great non-conformists were, by and large, similarly opposed to what they saw as softening the necessary brutality of the law. Oliver Cromwell was a notable exception.

Of course, much has changed since those days. Nevertheless it is still true that, as a whole, Christians are not active in law reform and those in active political life as Christians usually represent the most conservative and often primitive view of the role of the law as an element of the social order. A question which must be asked is how it came to be that this culture of superstition, gross injustice and cruelty was so actively participated in by Christians and the Christian Church as one of the most significant elements of the social order.

That ethics must govern both personal and community life seems axiomatic. It appears to have been central to Old Testament Judaism. The Old Testament mandated death, the community being the executioner, for a wide variety of offences (but not for theft, for which restitution at double or more value or slavery was provided: see Exodus 22 which seems, compared to l7th and 18th Century England, extraordinarily moderate). The idea that killing an offender was mandatory in a range of cases was, therefore, one which not only had the sanction of longstanding convention in many societies but, in modern Europe, of Divine sanction, even command. The laws of Alfred the Great (849-99), as Stephen observes, (op cit, Vol I, Ch 3) "begin with the Ten Commandments, an adaptation of considerable parts of Exodus, extracts from the Acts, and a historical statement as to the diffusion of Christianity".

These are just three examples - and there are many more - that demonstrate the rather obvious but puzzling truth that, if there is a Christian social ideal or a number of such ideals, the Church has never, or almost never, either discovered or proclaimed one. There have, of course, been prophets (I mean social rather than religious) from time to time. Perhaps William Wilberforce and the 7th Earl of Shaftesbury, who, in the face of widespread opposition and after a long campaign, managed to get the Mines Act of 1842 passed, forbidding women and children under the age of ten (!) working underground) and, in modern days, Dietrich Bonhoeffer, Martin Luther King and Archbishop Tutu might be so described. But they all failed, as most of the Old Testament prophets did with the Jews, to bring about a united, or significantly united Christian social action. I will return to this theme shortly.

So far as the measure of punishment is concerned, two important texts, in particular, seem to me to provide, on analysis, important insights into a Biblical principle of punishment for crimes. I have already mentioned Exodus 22 in connection with property offences. The previous Chapter deals with crimes of violence, including the well known instruction (in verses 23 and 24), to "give eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe". This can only be regarded as an insistence on proportionate punishment.

The vital distinction between the regulation of society on the one hand and the requirements of righteousness on the other is easier to state than it is to apply. It is not informed, at least directly, by any Biblical or widely accepted theological teaching.

The lack of a theoretical, as distinct from a metaphorical, Biblical social philosophy may be an important reason why humanism has had such a significantly greater and more beneficial influence on theories of law and government than Christianity, though no doubt it has been influenced by Christian thought in its turn. Cognately, the philosophical ideas underlying humanism have been open to the influence of scientific reasoning and discovery in a way that the post-medieval Church found almost impossible (see Jean Gimpel, The Medieval Machine: The Industrial Revolution of the Middle Ages, Penguin 1977). It is surely no accident that the process of secularisation and the pro tanto recession of the power and influence of the Church and Christians as such, stimulated by the Renaissance and the Reformation, flowering in the 18th and early 19th centuries and gathering pace into the present time, has led to humane reforms across the entire social and political order.

The idea that people have rights as distinct from duties does not appear to be a Biblical idea at all. Moreover, the source of duty (say, towards, widows, orphans and strangers) is not the inherent worth of the other but the command of God who cares for that other. Yet the idea of human rights, both individual and communal, appears to be the most powerful theme running through virtually every positive social change over the last 200 years. The genesis of the notion of such rights seems rather to lie in Hellene and Roman antiquity than in Christian thought.

In England, as distinct from Europe and even Scotland, the common law developed a self-consciously distinct jurisprudence that separated itself from ecclesiastical and natural law, though it was influenced by the civil law of the Continent. Magna Carta (1215) was itself understood to express the common law. It was to the ancient common law and not Christian principles to which Edward Coke appealed to declare both the immorality and the illegality of torture (Third Institute, 1628); which Holdsworth regards as one of its most important and influential principles. With all its flaws, the common law kept alive the notion of the rights and liberties of the citizen, despite the inevitable corruption of its administration in the interests of the powerful, and its occasional subservience to violent superstition.

The death penalty for felonies except murder, high treason, piracy with violence and destruction of public arsenals and dockyards was eventually abolished in the mid-19th century. The impetus for this reform did not arise as an expression of Christian morality, although it provided some of the vocabulary.

So far as England was concerned, the tools had been forged to some extent by the common law and needed to be wielded in a new way. But reform of the criminal law from within, by the courts, was impossible and it was forced on them by the legislature. I do not suggest for a moment that Christians were not significant in this move but it was-because essentially secular cultural and social changes brought new insight into the possible implications of their faith, new opportunities to express that insight and new empowerment to bring about change.

It seems, then, that the Church, as such, has generally reflected the dominant notions of the society in which it operated from time to time, whether they were brutal, cruel, acquisitive, irrational, unjust or (latterly) liberal. Papal statements, for example, about aspects of social and political life (with the possible exceptions of abortion and birth control) seeking to apply Christian values to the secular world may fairly be seen as demonstrating rather than refuting this conclusion. Statements of abhorrence of anti-Semitism mainly post date the Holocaust.

The mere fact that some persons in leadership roles in the Church assert standards at odds with some conventional opinions, for example on economic rationalism, reconciliation, indigenous land rights or the environment is no indicator of what most members of their churches think, let alone their Christian members. Are they prophets or simply a statistical representation of the range of political and social opinions you might find in any large group? After all, the Church has had sixteen hundred years (dating from its rise to power in the State) to discover, without success, an independent moral source, that is, one independent of the surrounding culture.

A number of contemporary legal issues illustrate this point. Let me take three examples from our own recent legal history to illustrate this point.

The first is the reform of the criminal law concerning homosexual behaviour. The law provided prison sentences of up to 14 years for homosexual men who, to use general language, had sexual relations, though they were adult and though it occurred in private. Homosexual women were not subject to any such charges but, if a man by her consent had anal intercourse with her, both were liable to conviction and imprisonment. The law has now changed so that if consenting males have anal intercourse (for example) and both are over the age of 18, no crime is committed. However, if one is under that age, then a crime is committed of increasing severity as the age lessens. (The irrationality of the law, however, is demonstrated by the strange provision that, if an act of anal or oral intercourse is by consent committed with a female of the age of 16 or above, there is no crime although these identical acts are punishable by up to ten years imprisonment if committed with a male of that age. There are other baffling and irrational legal distinctions between the sexual behaviour of men and that of women which do not need to be mentioned in the present context.) When it was proposed to amend the legislation to decriminalise consensual sexual acts in private between men 18 years and older the churches protested. It was never seriously suggested that sexual acts between consenting adults in private warranted, because of their inherent wickedness, a prison term. It could not, really, because there was never any suggestion that, for example, adultery or mere unmarried fornication, should become crimes.

By way of an aside, it is difficult to escape the suspicion that this was simply because of cowardice and opportunism, St Paul being at least as condemnatory of these sins as of homosexual intercourse and the Old Testament law requiring the lot to be stoned to death. Of course, many otherwise apparently respectable persons, representing the majority, might have been offended by it being proposed not only that they should go to hell but that they should first be put in prison. Rather, the choice was made to focus on the sexual behaviour of a minority, hatred or at least contempt for whom was already part of the agenda of prejudice in the community of which most Christians thereby demonstrated that they considered themselves a part.

The argument that was usually heard was that it was necessary to send these men to prison, or at least threaten to do so, to deter others from committing the same acts, without reference to the extent of punishment which the behaviour itself actually deserved. Again, this was not surprising, having regard to the fact that the vast majority of people would not for a moment have stomached a law which criminalised consensual illicit heterosexual activity by adults.

Thus these laws breached the principle of equality of responsibility for what are, in point of conventional Christian morality, the same acts. The requirement of general deterrence is one of the fundamental elements of the law of sentencing. However, it cannot, according to modern sentencing jurisprudence, justify a sentence which is greater than that which the wrongful act actually deserves. In substance, its effect is to qualify the extent of mitigation that might otherwise be applied because of the personal circumstances of the offender. The fact is, of course, that men were not merely threatened but actually convicted and imprisoned for consensual homosexual intercourse. Since it is obvious that such behaviour could not justify this punishment, they were punished for the potential acts of others. The law also had the entirely predictable effect of providing fertile ground for blackmail, extortion and violence, sometimes by police. It is, I hope, unnecessary to further argue the gross injustice of this proceeding.

The position adopted by those opposing the provision of safe injecting rooms seems to be justified by two arguments: the first is that it is wrong to provide the means to break the law; and the second is that this encourages addicts to use drugs and "does not send an appropriate message to young people". The first argument is, at best, only distantly related to Christian ethics and is not a Christian argument in any important sense. The second argument is a restatement of the instrumentalist philosophy which is essentially anti-Christian; with callous indifference it justifies, indeed, exploits the sickness and death which would otherwise be avoided, whatever cant might be used to disguise it. I have my own views about drug law reform and it is not appropriate for me in my present position to announce, let alone advocate, them. But what I do say, as a Christian, is that there is no room for doubt about how Jesus would deal with that attitude. If the present laws are to remain in place, they must be justified by Christians on completely different grounds.

It is obvious, from what I have already said, that mandatory sentencing laws, such as exist in Western Australia and the Northern Territory, as well as in some States of the USA cannot be justified by any Christian ethical view. To take the Northern Territory legislation as my third example of the relevance of this critique to current issues of justice, the Sentencing Act 1999 of the Northern Territory provides that an offender must be sentenced on first conviction for a property offence to a term of not less than 14 days, unless he or she proves certain specified exceptional circumstances, on conviction on a second occasion, the offender must be sentenced to a term of not less than 90 days and for a third occasion, to no less than twelve months. This is so regardless of age, circumstances, background, education, intelligence, handicaps, amount, or seriousness. For the first offence, however, if the offender establishes that it is trivial, the offender has made, or has made reasonable efforts to make, full restitution, the offender is otherwise of good character, there are mitigating circumstances, the offence was an aberration and the offender co-operated with law enforcement in the investigation of the offence, the 14 days sentence is not mandatory. Property offences include stealing of goods (but not, eg, shoplifting) robbery, receiving, unlawful entry of a building with intent to commit a crime, unlawful use of a motor vehicle, caravan or trailer or criminal damage to property. Many other crimes of dishonesty, such as obtaining property by deception, frauds by trustees, false accounting or forgery are not caught by this provision; nor are crimes of violence.

The first worrying aspect of this matter is that it has only recently become a public issue, though the legislation in the Northern Territory dates from 1996 and it took a death to catalyse criticism. The most worrying aspect of the debate, however, is that it seems to have proceeded, so far as the politicians are concerned who support or apologise for the laws, without any moral content whatever. All the justifications that I have read refuse to grapple with the question whether any injustice is involved to the individuals who are subjected to the sentences. Primitive social notions of crime and punishment, not essentially dissimilar from those which I have been discussing have been invoked. Those who support the laws, whilst refusing to reason, do not shrink from abuse. The Chief Minister of the Northern Territory, has tried to justify the laws by cowardly and dishonest attacks on the judiciary. For the Christian, popular opinion does not determine morality. After all, dissentients are rare at a lynching.

In so far as there has been any attempt at reason, the argument appears to be that it is necessary to send these people to prison to deter others from committing the same acts, without reference to the extent of punishment which the behaviour itself actually deserved. In dealing with personal circumstances, it is important to remember that a substantial proportion of offenders come from socially deprived circumstances and many suffer from measurable intellectual disability. Since it is obvious, and it is not sought to be argued otherwise, that many petty thefts cannot, of themselves, merit the stipulated mandatory punishments, the prisoners are punished for the potential acts of others. If disablement is the objective - the prisoner cannot steal whilst in custody -again, there is no reference to what punishment is actually deserved and the line is drawn arbitrarily, limited only by the size of the gaols, the Northern Territory community is willing, at enormous expense to all Australian taxpayers, to construct. Amongst other consequences, it is obvious that this law also provides fertile ground for blackmail and extortion, potentially by police.

Mandatory sentencing laws, such as exist in Western Australia and the Northern Territory, as well as in some States of the USA cannot be justified by any Christian ethical view. This law denies the fundamental criteria of Christian justice: it is unequal and it is dehumanising. It also contradicts fundamental elements of the rule of law in a liberal democracy, namely, the right of persons to be treated as individuals and not as merely one of a class or cast, and the independence of the judiciary. The law permits the politicians to place their thumbs on the scales of justice and requires the judges to deal out the corrupted measure.

The Churches have not, so far as I am aware, attempted to call attention to the injustices inherent in and caused by laws of the three kinds that I have mentioned, still less to enter the debate about their and even less to take the side of the people oppressed by them. This is not surprising. It is exactly what one would consider to be likely in light of history.

What then is the role of the Church in law reform? I think that it can do little else than not stand in the way. In a limited sense, some pockets may provide refuge and encouragement for the activities of some individual or groups of Christians but, as a whole, it will be either indistinguishable from the world or actively oppose change. Christians who accept the ideas of justice, equality, tolerance and rationality know that their true foundation, as with all good things, - is in Christ and are thus fortified in seeking to apply them in their lives and to have them applied in the life of the community. But we will not find many natural allies within the Church. Indeed, history shows that we are far more likely to meet with opposition or, at best, indifference from the other members of the body of Christ. Rather, our natural allies are those, whether Christian or not, who accept these principles also. As Bonhoeffer points out, referring to the personal experience of the confessing church which opposed Nazism (Ethics, Ch II), here we see the outworking of those apparently contradictory statements of Jesus, "He that is not against us is with us" (Mark 9.40) and "He that is not with me is against me" (Matt 12.30). We may be joined, indeed, by other brothers and sisters in Christ but for us the Church will be as much, if not more, of a mission field than the outside world. Indeed, since it is the social order and the institutions of the State which are, in this respect, our concern, there is not much point in addressing the Church as such.

In the end, there is no reason to suppose that the Church will try to defend that which it never helped to create, a liberal democracy governed by the rule of law, for all that individual Christians might do so. In this context, the concerted attack on secular humanism by significant elements of both Catholic and Protestant Churches, though often in ignorance, should be seen as especially sinister.

Those of us engaged in law reform who are Christians will, therefore, not be united so much by our faith but, rather, by our shared ethical understanding, for which our faith perceives an eternal and spiritual matrix. Many, perhaps most, Christians will not share that particular ethical understanding. Our natural allies will be those who do share that understanding, for all that they might reject the reality of the perception. This is just to say what has been the case for a very long time.