The President of the Family Division on family law, morality and religion

On 29 October the President of the Family Division, Sir James Munby, gave the keynote address, entitled “The sacred and the secular: religion, culture and the family courts“, at the Law Society’s annual Family Law Conference. I do not propose to summarise it here because it is not very long and it very much merits reading in full. However his conclusion, in a nutshell, is that secular judges “must be wary of straying across the well-recognised divide between church and state” and that

“… reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition”.

Reactions have been predictable. Sir James’s speech raised howls of protest from what might be termed the Religious Right. The alternative (pseudonymous) Cranmer, in a piece entitled “Sir James Munby – High Priest of Secularism“, asks “What are the foundations of British notions of virtue and morality if they are not Christian? What is the basis of English law if not Christian?” and goes on (with a sideswipe at Laws LJ) to rail against judges who “empowered by EU Enlightenment … are becoming judicial activists in their aggressive secularism”. Melanie Phillips complains that “today’s judges see it as very much their business to enforce secular beliefs”. She claims that “traditional moral codes have merely been replaced by the modern religion of human rights, of which the English judiciary is its high priesthood” and that, “far from secularism being value-neutral, it promotes hyper-individualism”.

Equally predictably, Sir James’s lecture was welcomed with open arms by the President of the National Secular Society, who said that “The days of judges using their benches to preach Christianity and claim that the Book of Common Prayer is the basis of British law are gone, and not a moment too soon”.

In short, all good, clean(-ish) fun  but the question it raises in my own mind is this: if people really want “Christian” law, then precisely what kind of Christian law do they want? A virtually total ban on abortion, as in Ireland as, for example, in A, B and C v Ireland [2010] ECHR 2032 and the tragic case of Savita Halappanavar? The restoration of the right of parents on religious grounds to allow teachers to beat their children on the principle “spare the rod and spoil the child” as in Williamson & Ors, R (o t a) v Secretary of State for Education and Employment & Ors [2005] UKHL 15? The return of the laws against Sunday trading? (In England and Wales, that is: to the best of my knowledge there has been no law in modern times in Scotland against shops opening on Sundays.) The repeal of the Sexual Offences Act 1967 and the subsequent legislation on male homosexual relations? Some Christians would no doubt sign up to some or all of these; equally, other Christians would be appalled at the prospect.

And if what people are arguing for is law based on some kind of “Christian principles”, precisely to what principles are they appealing? The principles of truth, equality, justice and care for the weak and powerless  which almost all mainstream Christians in the UK would sign up to  derive as much from the Old Testament as the New and would have equal support among Muslims, Sikhs, Hindus, Buddhist, Baha’i and the rest as among Christians and Jews. When one starts applying them to specific cases, however, broad principles tend to come under strain.

Across the mainstream Christian Churches easily the two most difficult and divisive issues of the last fifty years have been the place of women and issues of sexuality. So is it or is it not “Christian” to have a society in which homosexual relations are not only legal but are given recognition in statute law? Or, for those (and there are many) who hold to the principle of “male headship”, how far should the law reflect that principle  and are the Equality Act 2010 and its predecessor legislation “Christian”?

I guess it depends on whom you ask. If there can be no bright-line test for limiting the reach of the secular law into matters religious, there can, equally, be no bright-line test (at least in my submission) for what is “Christian” and what is not. Human sacrifice, definitely a “no”. Likewise slavery (pace St Paul and the Nederduits Gereformede Kerk under apartheid). But how about participation in armed conflict? Abortion? Capital punishment? Divorce (which was unavailable in Ireland until the Family Law (Divorce) Act 1996 and in Malta until 2011)? Further restrictions on immigration? Regressive taxation? Loans from Wonga and the like at a representative 5853% APR?? Many devout Christians would have diametrically-opposed views on most of these.

Laws LJ dealt with the issue in a very similar way in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 (in which Mr McFarlane claimed religious discrimination after he had been dismissed after refusing to give psycho-sexual counselling to same-sex couples)  and had not the former Archbishop of Canterbury, Lord Carey of Clifton, entered a witness statement in Mr McFarlane’s support it is highly unlikely that he would have felt obliged to engage with the matter at all:

“23. … The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty … But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.

24. The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself” [emphasis added].

In short, what Sir James said in his keynote address is very much in line with what Sir John said in the Court of Appeal – and it is difficult to see how, in a liberal, democratic state under the rule of law, it could be otherwise.

For another view, see the latest post on Cum Lazaro.

20 thoughts on “The President of the Family Division on family law, morality and religion

  1. Good sense as always, Frank – but you really should have included the humanists and all our non-religious predecessors to your long list of endorsers of “the principles of truth, equality, justice and care for the weak and powerless”.

    • Sorry, David: I was intentionally restricting myself to religions other than Christianity and Judaism in order to make my point. That humanists, rationalists and thinking human beings generally would endorse those principles goes without saying and no slight was intended.

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  3. ‘…since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence.’

    And there’s the rub. If you think (as Sirs John and James appear to) that the moral codes of religion are based on subjective faith, whilst secular moral codes are based on objective reason, it makes absolute sense to exclude religious positions. If on the other hand, you believe that ethics is a notoriously tricky area, and the idea of a tradition free rationality even more so, you might be less ready to exclude a religious position ‘however long its tradition, however rich its culture’. (Would it better, for example, to have a secular moral code, culturally impoverished and dreamed up last year? Cynics might suggest that is precisely the direction in which we’re going.)

    • I certainly agree that ethics is a notoriously tricky area. The problem is that religion is a notoriously tricky area also. If there were a universally-agreed religious moral code applicable to, and accepted by, all religions there wouldn’t be a problem.

      But there isn’t any such thing. An obvious example is abortion: some religious groups oppose it in all circumstances as a matter of principle while others take the view that there are situations in which it will be morally justified. Where you draw the line between those views is surely a matter for the secular law, not for a particular religion itself except in relation to the conduct of its own followers. And would a secular moral code have to be “culturally impoverished” anyway? Surely it would derive its cultural context from the influences of the society from which it came – and for UK society, some of those influences would, of course, be religious.

      In short, I don’t think that either Sir James Munby or Sir John Laws is trying to banish religion from public discourse: what they are saying is that, in the final analysis, the secular legal system must hold the ring between competing interests.

      • There is far too much here to take up fully in a combox and I suspect I’ll blog on the issue. But a key flaw here is the move from the claim that the (positive) law must have the final word (which is at least in broad terms true) to the claim that the secular (positive) law must have the final claim. That it to assume what must be proved: that the law should be secular (in the sense of having undergone some sort of purification from the historic influence of (Protestant) Christianity) rather than self-consciously rooted in that Christian tradition. The only argument for that move appears to be that religious morality is based on faith whilst secular morality is based on objective reason -an argument that is, to say the least, highly problematic.

        • I’ve added the link to your own post at the end of my original post. I don’t, on the whole, agree with your conclusion but I don’t disagree with what I take to be your general stance: that the relationship between the secular law and its historical roots (part of which, obviously, is grounded in Christianity) is a complex one.

          Where I go along with Munby P and Laws LJ is in their implicit assertion that the secular law has to hold the ring between competing religious claims. What happens to the medical treatment of their children, for example, when a devout Jehovah’s Witness and a devout Anglican divorce? It actually happened not so long ago in Re N (A Child: Religion: Jehovah’s Witness) [2011] EWHC B26 (Fam); and the court decided that though the mother (JW) should be given custody their four-year-old, that in the event of any medical professional recommending that the child should be given a transfusion the mother should immediately inform the medical authorities of the father’s (CofE) contact details so that he could give his consent to the treatment.

          • Thank you for the link!

            I’d like to dig away at this notion of a ‘secular’ law. Of course, the legal system (and courts within that system) has to adjudicate disputes -and those will include disputes between religious bodies and between religious individuals. The question is on what basis it will adjudicate such disputes. I struggle to see why such a basis has to be a ‘secular’ one, certainly in the normal sense these days of a belief system which rejects any religious influence. A self identified Christian basis, for example, wouldn’t immediately assume that (in the above case) an Anglican parent’s rights immediately trump those of a Jehovah’s Witness. You rightly ask what sort of ‘Christianity’ is being advocated in the attacks on Munby; I think a good answer can be given to that (which would involve referring to the historical forms of Christianity in England/Scotland, and the acknowledgment that what we are talking about is an influence rather than an algorithm). But the main point I’d make is that an identical question can be asked of ‘secular’ moralities: which one are we supposed to be adopting and why? I worry that whilst these judges seem acutely aware of the genuine difficulties existing in adopting a Christian basis for legal judgments, they seem completely blind to the comparable (if not greater) difficulties in adopting a secular basis.

            I think ultimately I’d agree with Craig’s point below: judges are rather less important here than parliament. The key changes in the abandonment of traditional Christian standards of behaviour (eg divorce etc) have been as the result of legislation rather than judicial interpretation. But I’m increasingly mystified why so many legal figures seem to want to construct a grand narrative about the abandonment of Christianity, rather than simply pointing out they are working within a radically different legislative environment.

            On a minor point of detail -but one that I think is quite revealing about Munby’s rather problematic approach- is his claim that Bowman v Secular Society (case here: ‘decisively rejected the proposition that “Christianity is part of the law of England” ‘ (p8 of his speech). That ‘decisive rejection’ is quite specifically restricted (by Lord Finlay) to the claim that ‘Christianity is not part of the law of England in the sense that a denial of the truth of christianity constitutes a legal offence.’ That’s very different from the sense that Munby is giving it, and quite at odds with the dicta in the case on the other senses in which Christianity might truly be said to be part of the law of England.

          • Frank – it seems to me that Munby’s entire argument hangs on whether a convincing definition can be given of the term ‘secular law’. He doesn’t pause to do so. Can you elaborate on what you mean by it (or what you think he should mean by it)? Some candidates:
            1. law which lacks reference to God/theology/sacred texts, etc
            2. law that does not appeal to religion/sacred texts to justify it
            3. law that is neutral/impartial as between different religions
            4. law that is neutral/impartial with respect to all worldviews (ie including ‘secularist’ ones)
            5. law that does not serve the interests of just one religion/worldview
            6. law that makes or implies no substantive moral judgements
            7. law that makes or implies no controversial moral judgements
            8. law that expresses a secularist worldview
            9. law that expresses the prevailing opinions of society today
            10 others?

  4. UK law as set by Parliament has – as has been pointed out – changed mightily over the years from a narrow endorsement of a rather restrictive moral code (one may here object but when debating issues relating to homosexuality the religionists are always pointing out they are against being bad to gays – I don’t notice many people openly advocating the return to the criminalisation and open discrimination against LGBT people, though they may of course secretly harbour that view and in many cases no doubt do) to today’s more inclusive and dare I say inclusive state of affairs.

    A useful parallel is to set side by side the Bowers v Hardwick case in the US with the more recent Romer, Lawrence and Windsor rulings. One can see the same kind of development. Again, if current religious advocates are not in favour of criminalising homosexual conduct and leaving same sex couples with no protections whatever (and removal of their children as used to happen) then they too approve of this development. Read Scalia’s dissents for a flavour of what we’re saying good bye to.

    In the case of the UK most of these developments have come through our Parliament. Of course the ECHR has made some rulings against the UK incriminating our laws in this domain (as with other countries in the CoE) but this has surely been to accompany already existing developments. If the gays in the military, unequal age of consent and discriminatory laws relating to sexual relations and the NI law against homosexuality were decided in Strasbourg then the removal of Section 28, laws on civil partnership and marriage equality, adoption and discrimination law are home grown and come from our Parliament, not to mention the groundbreaking if imperfect 1967 Act. And of course Parliament adopted the Human Rights Act.

    Surely, ultimately, judges are taking their cue from Parliament. Surely judges can’t implement a sense of morality of their own back without the licence of Parliament. I think JS Mill has conclusively won this particular set piece with a bit of Hegel thrown in for good measure.

  5. Of course some might like to believe that the basis of English law is Christianity but the reality is that English law has moved along behind the prevailing moral zeitgeist. Christian morality has done this also. A problem arises because Christianity drags its feet in this respect to a greater degree than the law.

  6. The problem with all these appeals to “reason” over the various opinions of the different religious traditions is that, as has been demonstratively been proved over the last two hundred years or so, the “reasonable” position is almost impossible to ascertain.

    Take, as you do, the example of abortion.

    Some people would, rationally, point out that is we think that killing an innocent human being is always wrong (as seems reasonable) then objective science makes abortion impermissible. Science shows that independent (though not inter-reliant) human life starts at conception.

    Others would, rationally, point out that clearly a zygote only a few cells in size cannot possibly be compared to a fully grown human person with all his or her faculties in tact. The difference is so great that to make the two morally equivalent is absurd. While the zygote may be “human” genetically speaking, it is not a person.

    Both of these positions have a rational basis, yet both are mutually exclusive.

    What so-called “secular law” is, is a group of people irrationally claiming that their idea of what “reason” is is better than everyone else’s.

    Is that so much more reasonable than a group of people who admit themselves to be ignorant of philosophy and science who say that they attach themselves to a tradition including people who do know about these things? That is what most religions basically are (in ethics at least). Frankly, this is what Humanism is too for most of its partisans: blind faith-based support for the conclusions of people they respect because they are philosophers or scientists or what have you.

  7. The system seems to have run out of nested reply-boxes, so here’s my attempt at a reply to the various comments of Cum Lazaro, Jonathan Chaplin and Felix Romanus – for which many thanks.

    I assume that what Munby P means by “secular law” is simply “That body of law current in England and Wales as set out in statute and common law”. In its application I imagine he would argue for a combination of items 4 and 5 on Jonathan’s list: law that is neutral/impartial with respect to all worldviews (ie including ‘secularist’ ones) and which does not serve the interests of just one of them. I don’t see how law can avoid making moral judgments (whether substantive or controversial); after all, if you have a law against theft it would suggest that theft is regarded as morally wrong – whether in the strict, Ten Commandments sense or merely on the basis that it is disruptive of society. Moreover, legal norms tend to change through time in response to changing moral attitudes in wider society: the example I always offer is insider dealing, which was (presumably) regarded as prudent business practice – until it was made a criminal offence by the Company Securities (Insider Dealing) Act 1985 in response to a series of major financial scandals.

    As to which “secular” morality we are supposed to be adopting and why, surely that, in principle at least, is ultimately a matter for Parliament through legislation. I say “in principle” because, of course, overlaying Parliamentary sovereignty is EU law (binding on the UK courts) and the ECHR and Strasbourg jurisprudence (of which the UK courts must take account). But, absent a written and entrenched Constitution, I cannot see any realistic alternative to the sovereignty of Parliament as the final arbiter. And even a written and entrenched Constitution isn’t a panacea: witness the endless stream of First Amendment cases in the US court system.

    As to the point about not understanding “why so many legal figures seem to want to construct a grand narrative about the abandonment of Christianity, rather than simply pointing out they are working within a radically different legislative environment” I agree: nor do I. My response would be, “just get on with applying the law in accordance with the judicial oath: ‘without fear or favour, affection or ill-will’ and stop worrying about grand theory”. But I’m afraid that I’m a legal realist: it’s quite difficult enough to work out what the law is: it’s quite beyond me to work out what it ought to be.

    (As to Bowman v National Secular Society, I suspect that Cum Lazaro has Munby P bang to rights.)

  8. All of the arguments about excluding religion from the courts – with which I agree – must logically apply to the rest of the state as well. This means disestablishment, though frankly that can come down the list as the CofE (both as an institution and as a theology) is so weak as to be meaningless, and its impact on law and the state corresponds.

    More importantly, it rules out the Government’s post-9/11 obsession of trying to buy off radical groups. Example 1: much funding for community groups went the way of overtly religious organisations. This has served to create a sense of religious-based entitlement on the part of the recipients, and a sense of resentment in all the other groups or individuals who missed out, precisely because they didn’t behave badly enough to attract state appeasement.

    Example 2: the ludicrous religious hate speech laws, which are bad enough in themselves even if not as bad as Mr Blair wanted. Why abuse or assault is any better or worse for being based on someone’s religion as opposed to football team or hair colour or political opinions or musical taste is beyond me.

    • “All of the arguments about excluding religion from the courts – with which I agree – must logically apply to the rest of the state as well.”

      Why, logically, must they? It’s perfectly possible to have an Established Church (Finland has two) and a secular legal system operating side by side. If you are arguing from what might be termed “constitutional tidiness” then I take your point – but I don’t see that there’s any necessary logical connexion between the two in the sense of “if A, then B must follow”.

      As to hate speech, though, I’ve often wondered the same as you. As I’ve said to my LLM students on more than one occasion, if a guy hacks my arm off with a machete it hardly matters that he yells “and I hate Quakers” as he does it: what matters is my severed arm on the floor.

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  11. The reality is that whilst people of faith and faith bodies can, under certain limited circumstances, opt out of secular laws they believe to be immoral (such as employing homosexual persons sharing their faith, performing abortions or performing military service where conscription is mandated in Parliament) which the courts enforce, people who hold equally strong moral beliefs of a non-religious character, such as Humanists, are precluded from opting out of Christian laws they find morally objectionable. In much of continental Europe religious schools etc are paid for out of a Church tax, whereas in Britain taxpayers must finance the promotion of a specific form of Christianity in state schools. Moreover current restrictions on allowing people without faith to exercise self autonomy over their person are consistently denied by the courts & Parliament, where a religious ideology on issues like active voluntary euthanasia imposes its morals on those who believe they should be allowed to have their life terminated. I am writing this as one of many lifelong disabled people who do not share the opinion attrubuted to us by some charities, that we are opposed to voluntary mercy killing.

    The reality is that the courts do enforce Christian ideology, though not to the degree that Lord Carey et al seem to advocate (see Templeman in R v Brown 1992). We see that in judgments which resist custodial sentences for people of faith, on questionable jurisprudential grounds. We also see it in the frequent court proceedings seeking to allow Christians to opt out of human rights law whilst being protected by it themselves. As a former Christian, one of the main reasons I lost my faith, was un-Christian nominal Christians – hypocrisy being a major factor in my loss of faith. The fundamental problem we have is that the law (abetted by Parliament) does impose Christian norms upon those who do not share those norms. My residual intellectual attachment to Jesus’s teachings do not square with religious privilege. Just as it is wrong for my former fellow Christians to impose their topoi of marriage upon people who can never satisfy that ideal (I am infertile, so cannot legally marry), so it is wrong for the courts to adjudicate in a faith-biased manner.

    Ironically I am a better and more practicing “Christian” as a Humanist than I ever was, to my shame, when I called myself a Christian.

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