AUSTRALIAN JURISTS AND CHRISTIANITY: A DISCUSSION

In 2021, Federation Press released its Australian Jurists and Christianity, edited by Justice Geoffrey Lindsay and Professor Wayne Hudson – the Australian edition of an international series on Christianity and the law entitled Great Christian Jurists in [National] History. To launch the volume, under lockdown in pandemic times, The Sydney Institute conducted a Zoom meeting led by Chris Merritt, Legal Affairs contributor for The Australian, on Monday 13 September 2021. Subjects in the volume range widely from a chapter by former NSW governor Marie Bashir on Governor Lachlan Macquarie to chapters on Australian prime ministers Alfred Deakin (a spiritualist), Robert Menzies (a Presbyterian) and Gough Whitlam (an enigma) along with studies of Lord Atkin, Edith Cowan, Roma Mitchell, Ronald Wilson, Michael Kirby and Eddie Mabo among distinguished others.

AUSTRALIAN JURISTS AND CHRISTIANITY: A DISCUSSION

GEOFF LINDSAY

Sharing a platform with a leading Australian journalist (Chris Merritt), my distinguished co-editor (Professor Wayne Hudson) and one of our equally distinguished essayists (Anne Henderson AM, author of our essay on Sir Robert Menzies), I focus my attention on how Australian Jurists and Christianity (Federation Press, Sydney 2021) came about.

Australian Jurists and Christianity is the product of a collaborative effort by essayists drawn from the ranks of lawyers and historians, academics and legal practitioners. No religious test was applied in the selection of essayists. Any personal views they may have of Christianity, or religion in general, remain theirs to express, or not, as they see fit. In the selection of subjects for essays for the book, an endeavour was made to have representatives of a variety of interests, and traditions, by reference to geography, denominational affiliation, gender and race.

The object of the book is to illustrate, by a series of biographical essays, the influence of Christianity on the development of Australian law and society.  The book is intended to open up discussion of the influence of Christianity on Australian law, not to conclude it.

In 24 essays, topped and tailed by editorial commentary, the book follows the course of Australian history from early colonial times. In a roughly chronological order, the essays begin with Dame Marie Bashir’s essay on Lachlan Macquarie (an Anglican), traverse the rich diversity of the 19^th and 20^th centuries, and end with an essay on the experience of an Attorney General of Orthodox Christian faith.  Prime Ministers Alfred Deakin (a spiritualist), Sir Robert Menzies (a Presbyterian) and Gough Whitlam (an enigma) offer contrasting stories.  The Catholic tradition is well represented, particularly amongst judges of the High Court of Australia in recent history.  Sir Ronald Wilson (a representative of the Uniting Church of Australia) is perhaps as unique in his saintly disposition as Lord Atkin is famous for his judgment in Donoghue v Stevenson [1932] AC 352.  The life of Eddie Mabo (1936-1992) reaches beyondcolonial times in the service of today’s Australia.  His influence on Australian law and society has been as profound as any other.

For those with an interest in Australian legal history, the book’s “Introduction” explains the course of development of the Australian legal system, distinguishes Australian experience from those of England and the USA, and offers insights into “the managerial society” we have become.  The editors’ “Introduction” and “Conclusion” offer commentary upon the relationship between law and religion in an Australian context, with suggestions for further research. The book is an Australian volume in an international series entitled Great Christian  Jurists in [National] History. As a result of an introduction by Garth Blake AM, SC (an Australian Anglican on the editorial board of the Ecclesiastical Law Journal), I was invited by the Series Editor, Professor John Witte Jnr of Emory University in the US, to edit a volume of essays for Australia and New Zealand.

That invitation came my way because of my longstanding interest in Australian legal history as a foundation member of the Council of the Francis Forbes Society for Australian Legal History, named after the first Chief Justice of NSW.  As a fellow member of the 8^th Floor, Wentworth Chambers for many years, during my career at the Bar, Garth knew of my connection with the Forbes Society.

There are three legal history societies active in Australia.  The Selden Society (based in England) has an Australian Branch, administered by the Library of the Supreme Court of Queensland.  The Australian and New Zealand Law and History Society is most active amongst academics on either side of the Tasman.  The Forbes Society (inspired, in its foundation, by the Selden Society and the Osgoode Society for Canadian Legal History) is based in NSW but embraces a national outlook.  Chief Justice James Allsop is its President.

At the time I was approached by John Witte, the first volume in the international series, Great Christian Jurists in English History (Cambridge University Press, 2017), edited by Mark Hill QC and Professor RH Helmholz, was about to be published.  I was given a manuscript copy. One of the essayists in that volume was Professor Wilfrid Prest of the University of Adelaide, a biographer of Sir William Blackstone (1723-1780) whose Commentaries  on the Laws of England (1^st ed, 1765-1769; 9^th “received” edition, 1783) attained fame throughout the common law world.  Wilf regularly engages with the Selden Society (in England and Australia), the ANZ Law and History Society and the Forbes Society. In my preliminary planning for what became Australian Jurists and Christianity I consulted the elder statesman.

After other consultations, I satisfied myself of four things that find reflection in the final product.  First, despite their close connection culturally, the stories to be told for Australia and New Zealand are sufficiently different that an Australian volume would be better focused than an Australasian one. Secondly, my discharge of an editorial function would be best performed in collaboration with a co-editor with an academic interest in the history of ideas.  Thirdly, a broad view of what it is to be a “Christian  Jurist” in Australian history should be taken so as to acknowledge the contributions to Australian law and society of non- lawyers and international connections as well as locally-trained professional lawyers. Fourthly, within the broad parameters of the book’s subject-matter, each essayist should be free to express his or her own views unconstrained by editorial edicts.

Happily, my search for a co-editor was aided by Professor Wayne Hudson’s publication of Australian Religious Thought (Monash University Publishing, 2016).  It concludes, on page 238, with a call to action:

… religious thought might feature more prominently in studies of Australian political thought and in accounts of Australian literary and artistic achievement.  Likewise, more work could be done on the ways in which economic and legal thought were shaped by transpositions of Christian ideals. … [There is a] need for further research into what is clearly an extensive and important area of Australian intellectual history.

Wayne’s contribution to Australian Jurists and Christianity was indispensable. He brought to the publication the learning which is evident in Australian Religious  Thought, familiarity with current research and ready connections with senior academic historians.  His work challenges the distinction between religious and secular thought.

In Australian Religious Thought he coined the term “sacral secularity” to refer to a tendency (evident in Australian history) “to associate the secular with sacral characteristics, while acknowledging its relative autonomy from ecclesiastical control”.He wrote (at page xxiii):

… sacral secularity is a neglected feature of Australian religious thought, even though it arguably contributed significantly to Australian political and social arrangements.  In much of the historiography the non-religious character of Australian secularism has been taken for granted.  This is misleading in several respects.  Between 1788 and 1900 many Australians were critical of organised religion, depending on the church or denomination at issue, but they were not necessarily hostile to the sacral, and some of them relocated it in less clerical domains.  Moreover, sacral secularity also played a part in debates about educational reform in the nineteenth century and in the emergence of public theology discourse after 1920.

With Wayne’s consent, I included in our Introduction to Australian Jurists and Christianity my favourite example of Australia’s tendency to secularise everything. Every ANZAC Day is celebrated by many Australians as a secular occasion, still with all the trappings of a liturgical tradition.  Christian churches played a central role in establishment of ANZAC Day services.  The “ANZAC Tradition” and “mateship”, promoted by CEW Bean (1879-1968) as Australia’s Official War Correspondent and War Historian for the First World War have their roots in his commitment to what he called “The Arnold Tradition”. That was a nineteenth century liberal Anglo-Catholic mix of ideas (“Muscular Christianity”) associated with Thomas Arnold of Rugby School. Few Australians make the connection between “mateship” and the Arnold Tradition.

Professor Bruce Kercher (one of the most senior, and most acclaimed, of Australian legal historians) honoured Australian Jurists and Christianity with a Foreword which recognises the pioneering nature of the book.  As Bruce writes, “Australian historians have often showed an interest in religion, as have lawyers, but not many legal historians.  … [Few] Australian legal historians have considered the influence of religion” on the development of Australian law.

In its conceptual approach to the interplay between “law and religion”, the book draws on the work of the late Professor Harold J Berman, whose work includes Law and  Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983), its sequel Law and Revolution II: The Impact of the Protestant Reformation in  the Western Legal Tradition (Harvard University Press, 2006) and Faith and Order: The Reconciliation of Law and Religion (W B Eerdmans Michigan, 1993).  John Witte is a protégé of Harold Berman.

The book also acknowledges the focus of Christianity, in the development of Anglo-Australian law, on topics traditionally (and still) 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.  In the heat of public controversies, the central concerns of Christianity invite reflection.

With two exceptions, the subjects of essays in Australian Jurists and Christianity are historical figures. The first exception is a class of 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.  This followed the commencement of the Australia Acts of 1986.  Australian law had then to be reconsidered afresh as Australia became legally independent of the Imperial Government in the UK.

The second exception is an 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.

For future reference: The death of Trevor Morling QC on 2 August 2020 occurred too late to organise an essay for inclusion in the book.  The Federal Court judge who presided over the Chamberlain Royal Commission (the son of a Baptist “Saint”) would have made a worthy subject for an essay, as would have his counsel assisting, Chester Porter QC, whose death followed (on 15 March 2021) soon after publication of the book.

I acknowledge the excellent work of our essayists and our publisher, Federation Press. I express my admiration of our living subjects’ performance of their public functions in the light of their Christian faith.

My experience of reactions to Australian Jurists and Christianity is that, if readers are at all open to the topic, there is something of interest for most people in more than a few of the essays.  If I am not mistaken, readers often draw inspiration from particular essays, and are entertained, according to predisposition, but with surprising revelations about things they thought they knew.

One such revelation, for me, was my discovery that Gough Whitlam’s ashes Are interred in the crypt of St James Anglican Church in King Street, Sydney. The journey of a self-proclaimed “fellow traveller” is well captured in a nuanced essay.

There is much we don’t know, and much to be discovered, about “law and religion” in Australian history.