a roll of the dice

The Sydney Morning Herald and Catholic News tell us that judges and other members of the legal community in New South Wales recently participated in ‘Red Mass’, a European tradition in which members of the legal profession seek divine guidance for the courts.

The image of judges - wearing the robes which represent their role in the state - seeking direct guidance from God is somewhat disconcerting. Australia has no state religion, by virtue of s 116 of the Constitution:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

(The NSW Constitution is silent on the topic).  That is not to say that the Constitution bans religion from the state in any sense - the same document refers to ‘Almighty God’ without identifying which particular variant of God is being exulted.

It would, of course, be unreasonable to criticise judges for exercising their freedom to worship in private. But it should be a topic for serious debate as to whether it is appropriate for judges to involve themselves in their capacity as judicial officers in the customs and ceremonies of a particular religious denomination.

As Keith Mason points out in this article, while there is little doubt that Christianity had much to do with the development of the common law and with Australia’s legal traditions, much of the modern law (and particularly insofar as it embodies a contemporary view of human rights) has involved sweeping outdated Biblical notions aside. For example:

The common law established that it was lawful for a husband to rape his wife and Biblical explanations were offered for this rule. This doctrine lasted until 1991 when it too was overturned through the proper exercise of the lawmaking powers of judges in Britain and Australia.

It is not uncommon for judges to refer to religious texts in their judgments.  Mason urges an approach to religion which avoids any hint of literal application of the scriptures, but not one which rejects outright any contribution to legal progress from religious sources:

Hopefully we have not reached the stage that an idea relevant to public or legal discourse is off limits if it is sourced to the Bible or because it forms part of a larger corpus of philosophy or theology.

In Cattanach v Melchior [2003] HCA 38, the High Court was asked to consider whether it was open to sue for damages resulting from the unplanned birth of a child due to another’s negligence.  As part of his judgment, Kirby J was highly critical of any suggestion that Biblical sources could guide the Court:

[i]f there is any area where the law has no business in intruding, it is in the enforcement of judicial interpretations of Scripture

His Honour’s argument is founded on a principle which should, perhaps, be more explicitly central to the judicial process: that an empirical basis must be identified for the incorporation of ‘public policy’ considerations into judicial decision-making:

In short, if the application of ordinary legal principles is to be denied on the basis of public policy, it is essential that such policy be spelt out so as to be susceptible of analysis and criticism. Desirably, it should be founded on empirical evidence, not mere judicial assertion […]

Judges seeking to literally interpret religious texts and principles as a basis for decision making fail this test, for reasons that come to the heart of many debates about the role and validity of religion: scriptural doctrines cannot be tested or criticised logically, because they represent the arbitrary ‘word of God’ and quite openly purport to be immune to rational analysis and dissection.  As such, a decision founded on an interpretation of the word of a deity takes on a character entirely foreign to the strongly evidence- and precedent-based foundations of the common law, and the (in theory) rationalist and accountable form of government adopted in Australia.

And so, we return to Red Mass and the process (whether symbolic or literal) of judges seeking “divine guidance”, apparently on behalf of the Court.  Because the religion behind the mass (Christianity, and more specifically Catholicism) is a mainstream one in Australia, there is virtually no criticism of judges participating in it. It is hard to imagine that the situation would be the same if the religion in question were Islam (imagine the public response to a superior court judge seeking ‘divine guidance for the court’ from Allah in an antiquated Muslim ceremony) or some minor religion, or indeed if it were some other form of spirituality altogether, such as paganism.  But more importantly, it must be doubted whether it is proper in the 21st century for Australian judges to actively involve the court in the rituals of any religion at all. For the good of the law, it might be best if such things were kept strictly in the private sphere of judges’ lives.