Australian Jurists and Christianity
Geoff Lindsay and Wayne Hudson
An Overview by Geoff Lindsay and Wayne Hudson
This volume is part of a fifty-volume series on “Great Christian Jurists in World History”, presenting the interaction of law and Christianity through the biographies of 1000 legal figures of the past two millennia. Commissioned by the Center for the Study of Law and Religion at Emory University, each volume in this series focuses on a specific country, region, or era, and it samples the life and work of a score or more of its greatest legal minds over the centuries. These legal minds include not only civil and canon lawyers and judges but also theologians, philosophers, and church leaders who contributed decisively to legal ideas and institutions, or who helped create landmark statutes, canons, or cases. Thus, familiar Christian jurists like Gratian, Grotius, Blackstone, Kuttner, and Scalia appear in this series, but so do Augustine, Isidore, Aquinas, Calvin, Barth, and Romero. This biographical approach is not intended to deprecate institutional, doctrinal, social, or intellectual histories of law and religion, nor will it devolve into a new form of hagiography or hero worship of dead white males. It is instead designed to offer a simple method and common heuristic to study the interaction of law and Christianity around the world over the past two millennia.
Australian Jurists and Christianity (2021, The Federation Press) provides new perspectives on the relationship between law and religion in Australia. It claims that the relationship between law and religion was more significant in Australia than has been suggested. Specifically, it suggests that Christianity was a significant influence on Australian jurists, both as public figures and as makers of Australian law.
This volume forms part of the international series Great Christian Jurists produced under the auspices of the Center for the Study of Law and Religion at Emory University and includes a foreword by Australia’s renowned legal historian, Bruce Kercher. It is introduced by a substantive guide to the nature of Australian legal practice which brings out distinctive features of the Australian experience. The volume concludes by offering suggestions for how the role of religion in Australian legal history might be rethought in the future.
Had this volume been named for the international series of which it is a part, it would have been entitled “Great Christian Jurists in (Australian) History.” A departure from the norm is made in deference to Australian sensibilities. The object of the volume is to illustrate, by a series of 24 biographical essays, the influence of Christianity on the development of Australian law and society. We aim to open up discussion of the influence of Christianity on Australian law, not to conclude it. No attempt has been made to provide an exhaustive definition (or, indeed, any formal definition at all) of what it is to be “Christian.”
In the selection of subjects for essays, an endeavour has been made to have representatives of a variety of interests and traditions, by reference to geography, denominational affiliation, gender, and race. A measure of balance has been sought. Inglis Clark (of Tasmania), Edith Cowan (of Western Australia), and Dame Roma Mitchell (of South Australia) take their place with representatives of the larger Australian States. In the realm of politics, both Sir Robert Menzies (a Liberal Party Prime Minister) and Gough Whitlam (a Labor Party Prime Minister) are included.
With the social dimension of law in mind, a broad view is taken of what it is to be a “jurist,” and an equally broad view is taken of what it is to be an “Australian jurist.” Our essayists present persons of interest who have made a contribution, throughout Australia’s colonial period and coming of age, to the development of the nation. With a focus on “law and society,” our essays do not consider the development of legal doctrine.
Although it can hardly be a disqualification for the subject of an essay to have identified as a “Christian,” the fact that a subject may not have done so, or may have had doubts about a Christian heritage, a crisis of belief, or an alienating experience leading to a rejection of this or that view of Christianity, is not inconsistent with the object of the book. Nor is any individual’s falling short of a Christian ideal, as all humanity is prone to do. Each of the selected subjects has made an important contribution to the development of Australian law and society. Their lives and connection with the law provide an opportunity for the existence, nature, and extent of Christianity’s influence to be exposed to view.
Nevertheless, passing notice can be taken of the contribution of Christianity to the development of Anglo-Australian law on topics at the intersection of spiritual and temporal concern. At core, those topics focus on birth, death, marriage, charity, education, and the dignity and welfare of the individual. Traces of the Christian Church’s contribution to Anglo-Australian jurisprudence on these topics can be found, for example, in the ongoing work of Australian State and Territory Supreme Courts exercising equity jurisdiction (formerly exercised by England’s Lord Chancellor) and probate jurisdiction (formerly exercised by England’s Ecclesiastical Courts). Those jurisdictions uncontroversially owe historical debts to the Christian clergy who once administered them.
Without structured references to legal doctrine, each essay in this book occupies a space that forces reflection about what it is to be a “Christian jurist” in Australian history. The focus is upon the individual, not directly upon the Australian legal system, discussion of which here provides context for an assessment of individual contributions. James Stephen, of the British Colonial Office, never visited Australia. Born in Queensland, Lord Atkin thought of himself as Welsh. Professor Weeramantry was born, and died, in Sri Lanka. Not everybody was formally trained as a lawyer or pretended to be such. In this category, for example, Lachlan Macquarie, Richard Bourke, and Eddie Mabo nevertheless profoundly affected Australian law and society. Not everybody was a card-carrying “Christian,” let alone a “conventional” one; Gough Whitlam, for example, claimed to be no more than a fellow traveller. Alfred Deakin held some views which to some might seem eccentric. Not every lawyer’s contribution to the development of Australian law and society coincided with a legal career. Ron Wilson’s primary contribution might be thought not to have happened until he retired from the High Court of Australia to pursue an overtly Christian calling. This volume considers “jurists” who contributed to Australia’s constitutional development, those who privileged “black letter” law, those who fought for social justice for Indigenous peoples, and those who were concerned with social reform more generally.
For a variety of reasons, these essays might be confronting for an Australian audience, whether possessed of a religious belief or not. The ideas on display might not be altogether familiar or congenial. To those who hold to what they perceive to be a strong secularist tradition, the very concept of a “Christian jurist” might be an affront. Australians tend not to speak of “jurists.” We speak more often of lawyers, judges, barristers, solicitors, legal academics. Unlike Europeans (with a strong Roman law tradition), we tend not to think of our lawyers as “jurists.” And if we do acknowledge them as “jurists,” we do not think of them as “Christian jurists.” If we advert at all to their religious beliefs, we think of them in denominational terms as “Catholic”, “Anglican”, “Protestant” or “Orthodox” Christians. Although religious affiliations might not escape notice, discussion of “religion” is often not favoured in polite company.
With two exceptions, the subjects of these essays are historical figures. The first exception is that there are essays on a selection of retired judges of the High Court of Australia (Gerard Brennan, Bill Deane, Murray Gleeson, and Michael Kirby) whose tenure coincided with an historically unique period following the commencement of the “Australia Acts” of 1986, when Australian law had to be reconsidered afresh. Those Acts broke the nexus between Australia and Imperial Britain. In technical terms, Australia became legally independent of the Imperial Government in the UK on 3 March 1986 (a date wholly unnoticed in the Australian psyche), when the UK and Australian Parliaments passed complementary legislation to declare that it be so. Most Australians are oblivious to this development, believing themselves to have been an independent nation since federation of the self-governing Australian Colonies in 1901. The second exception is the essay on John Hatzistergos, a serving judge of the District Court of NSW, whose career as a Member of Parliament and Attorney General provides an opportunity to examine tensions between Christian faith and public policy.
The essays are presented in a chronological order. Each is to be read as an independent assessment of its subject. The essayists represent a cross-section of Australian society, with a balance between “lawyers” and “historians.”
Australian Religious Thought in a Legal Context
Consistent with Australia’s gradualist history, the temper of Australian legal arrangements and practice tended to avoid both exaltation of a written Constitution (originally granted by Imperial legislation) and the elaboration of fundamental political and legal principles. The Australian temper was pragmatic, and often remote from engagement with either jurisprudence or philosophy. There was no equivalent in Australia to the reception of French political ideas in the United States, although there was considerable respect for education and the natural sciences even in colonial Australia. Benthamite utilitarianism played a role in colonial New South Wales and Tasmania, and receptions of Scottish Personal Idealism and Scottish Hegelianism were important in the later nineteenth and early twentieth centuries. The great advances in Australian legal history (Federation, the Harvester decision, the Australia Acts, the Mabo case) all occurred without substantive changes of political ideas. In each case, however, the changes can be seen to be shaped by forms of conscience influenced by Christianity. This has been concealed to some extent by the pragmatic character of Australian government. For much of our history Australian lawmakers have been challenged to address three issues of consequence. First, how to achieve national independence, without losing the support and protection of the relevant metropolitan power, initially Britain, and then the United States. Second, how to provide a framework for a fair and just society, without aggravating class conflict and in a form that later generations would support. Third, how to achieve reconciliation with Australia’s Indigenous peoples, especially in a way that respects the plurality and spiritual depth of their cultures.
The last has proven especially difficult, and Australians have been slow to recognise the extent of the violence perpetuated upon Indigenous peoples since European settlement, just as they have been less than successful in their efforts to remedy poverty and discrimination in education, employment, and health, affecting both the cultural and the physical survival of Indigenous peoples. Here, as elsewhere, good intentions have not been enough to overcome a widespread incapacity to understand and deal with cultural and social patterns vastly different from those that the settlers imported from Europe. Nonetheless, there has been some progress, and Australian lawyers, many of them Christians, have played a part in it. Just as Australia eventually emancipated itself from “White Australia” and became a successful multicultural society, so Australia is now belatedly facing up to its racist history, including extensive massacres of Indigenous people. It is now adopting elements of Aboriginal culture and spirituality as emblematic of the nation and beginning to recognise the existence of First Nations. This is, as yet, not reflected in its Constitution.
As all this suggests, Australian lawyers have been reserved and cautious, and little inclined to high theoretical principles in public discourse. Political philosophy has played only a limited role in their legal reasoning and training. The same understatement, even avoidance, of theoretical issues also characterizes their references to Christianity in public contexts.
Neither fully fledged Puritanism nor eighteenth century deism was ever of crucial importance in Australia, in marked contrast to the United States. There was also often limited interaction between religionists and a very marked lack of understanding of each other’s views until at least 1960. On the other hand, a reception of Christianity as ethics, including to some extent political and social ethics, was part of the background and sometimes important. Christianity in Australia was influential as a source of ideas about what mattered and how things should be done.
Rethinking “Religion” and “Law” in Australia
“Religion” and “law” are terms commonly misunderstood in Australian discourse. There is scope for reflection on what they might mean. “Religion” has commonly been understood in Eurocentric terms as having to do with the sacred or worship or some kind of “faith.” Many Christians seem not to have noticed that Jews often deny that Judaism is a religion. Nor is there widespread appreciation that the term was not used in its modern European sense until the fifteenth century, although some Australians have probably heard that the early Christians had no religion in the Roman sense, and were dubbed “atheists” on that account.
The fact that “religion” may now be understood to be a problematic term connected with European imperialism, and that (in a welfare state) “law” can be understood in much wider ways than formerly, as about the management of practical life, opens the way for new understandings of how “religion” and “law” can relate to each other in Australia. More contemporary understandings of both “religion” and “law” allow us to recognise that we need to rethink the Australian experience without overreliance on dualisms between “the sacred” and “the secular” or between belief and unbelief. They also point to the importance of a quiet Christianity in Australia, not least among the Indigenous, and to a common commitment to a modest form of sacred secularity in practical life.
The essays in this volume demonstrate that Christianity has informed the work of a number of prominent “jurists,” but they do not suggest jurists overtly driven by theological concerns and conflicts in their legal work. This is consistent with how Christianity was received in Australia in practical life. The essays suggest some underlying assumptions about law and religion in Australia. First, Australians generally accept the idea that “law” is a separate domain, worthy and demanding of respect as such in service of a community which may, or may not, share particular religious beliefs. Secondly, although an affirmation, or denial, of religious belief by a public figure may be tolerated, if not respected, if genuinely made, public declarations of religiosity are most comfortably entertained when made by clergy or the like, not public officials in discharge of ostensibly “secular” functions; humility in expressions of religious belief is valued. Thirdly, although “law” and “religion” are generally perceived to be separate disciplines, each is accepted as potentially informing the other. The law is not value-free, nor is religion above the law or without legal forms. Fourthly, the integrity of legal institutions, the legal profession, and legal processes depends upon acceptance within the community at large that they are dedicated to the service of law, not collateral disciplines such as theology or politics. Fifthly, the perspective of Australian law, in formation and in operation, is generally (if not always) that of the individual living, and dying, in community. Sixthly, there is general acceptance that both law and religion are part of a conversation that involves renewal and evolutionary development in line with evolving community attitudes.
The influence of Christianity on Australian lawyers needs to be understood in terms of the particularities of the Australian context. The term “Christianity” in Australia has had multiple and various meanings. For some jurists it has probably implied a morally decent approach to life and the administration of temporal affairs. For others, it has had an institutional meaning linked to the traditions and teachings of “the Church” understood as a hierarchical organisation, be it Catholic, Anglican, Presbyterian, Uniting Church, or Orthodox. For others, Christianity has represented the belief system of a self-governing, gathered community with a commitment to individualism and voluntarism in spiritual and sometimes temporal matters.
It is clear from our essays that Christianity has provided a formative context for all of our jurists: that Christian conceptions of personhood, integrity, and value have impacted upon them all. This has not been emphasised enough in the existing scholarship, partly because the religious dimension of the Australian settlement has often been overlooked, and partly because scholars have interpreted “Christianity” and “secular” in Australia in anachronistic ways.
These considerations mean that the influence of Christianity on Australian law is often to be sought in what law has been taken to be, and how it has been administered, rather than cases in which the religious belief of some or another denomination has allegedly influenced a particular legal decision or statute.
Our essays also suggest the need for further research in a range of areas. First, there is an ongoing need for historians to study the history of Australia, and Australian law, in a contemporary and critical manner. Large parts of the historical record remain unexplored, and much older historiography is open to review. More critical attention needs to be given to what was once seen as “colonial history.” A mature reflection on the underside of that history is required, including confronting examples of genocide, slavery, and systemic exploitation. On the other hand, the intellectual and cultural history of the country is arguably much richer, and also more original, than historians have until recently believed.
In sum, the distinctive features of both religion and law in Australia deserve more attention than they have received, and their interaction in Australia is rich terrain for further research. Without such research, important features of the originality of the Australian experience may be missed. ♦
Geoff Lindsay is a Justice of the Supreme Court of NSW, a Fellow of the Australian Academy of Law, the Foundation Secretary (and currently the Senior Vice President) of the Francis Forbes Society for Australian Legal History and the Editor of the Australian Bar Review.
Wayne Hudson is an adjunct professor at Charles Sturt University and the University of Tasmania, and a Visiting Fellow at the Australian National University. He has written or edited twenty-five books, including the monograph Australian Religious Thought (2016).
Lindsay, Geoff and Hudson, Wayne. “Australian Jurists and Christianity.” Canopy Forum, May 3, 2021. https://canopyforum.org/2021/05/03/australian-jurists-and-christianity/