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 inpandemic 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

WAYNE HUDSON

Australian history is a relatively young subject. Much of the older historiography was British Imperialist, Eurocentric and/or white nationalist. Recently, more attention has been paid to Indigenous history, Asian Australian history, the role of women and environmental history. A more inclusive multicultural bias has replaced conventions derived from British constitutional history. Australian historians have also changed. Younger Australian historians are more sensitive to the negative parts of the national story.

Australian lawyers have changed as well. As an articled clerk in Sydney I was trained by Sir Alastair Stephen of Stephen, Jaques and Stephen, who was a leading Sydney solicitor as well as an Austral Briton. He came from a famous Australian legal family, wore a monocle, and was the cousin of Virginia Woolf. Today Australian lawyers are less imperial. They also tend to know less about British history than they once did. Given these social changes, it can be a challenge to integrate larger trends in Australian history more generally with Australian legal history. Many Australian historians know only a limited amount about the law, whether common law or civil, while those practising law might not, for obvious reasons, be across the latest historical research. Bringing the historians and the lawyers together around contemporary agendas is one of the many merits of our book.

Australian Jurists and Christianity opens up a discussion about Christianity and law in this changed context and climate.  As such it is a considerable success. However, it does not demonstrate that religious thought was decisive for Australian lawyers, partly because the religious thought of our jurists was often withdrawn from public view. No doubt we might ask  who thought what about Schleiermacher or Newman or Karl Barth? With two partial exceptions (Brennan and Wilson), we do not know. It is also often far from clear that their religious thought was central to their work as jurists. On the other hand, the evidence for the importance of “quiet Christianity” is strong and pervasive. However, our book leaves many questions to be pursued in the future. For example, it does not investigate the importance of Catholic or Anglican canon law or the influence of Protestant ideas about law and grace, both of which were probably significant in Australia.

Australian Jurists and Christianity does, however, provide support for the concept of sacral secularity as a way of reframing parts of Australian history, as well as for the rejection of any absolute dualism between the religious and the secular. In this respect the book is arguably at the global front. Sacral secularity is a sub-theme of “the postsecular turn” in contemporary political thought. This turn problematises the idea that the Western secular is non-religious and also proposes that sacral features may characterise future political regimes, whatever their political and social rhetoric. This turn is a major development in political thought, although one not prominent in Australian policy discussion. Nonetheless, the idea that spiritual conceptions and performances play a major part in political and social life is of outstanding importance for the understanding of contemporary America, the Islamic world including Indonesia and Afghanistan, and now contemporary China and the state theology of President Xi. Similarly, rejecting any absolute dualism between the religious and the secular, while defending modest secularity, opens the way for a better understanding of a future world in which both eighteenth century secularism aimed at excluding religion from public life and nineteenth century European religion may be less important than many currently suppose.

Australian Jurists and Christianity is a significant contribution to a better understanding of the distinctiveness of the Australian experience. The Introduction to the book, mainly written by Justice Geoff Lindsay, is outstanding and full of significant clarifications. It should be reprinted elsewhere in another format. Geoff was a superb co-editor, and his excellent judgement and vast knowledge of Australian legal history were invaluable. The book would also not have been possible without the generosity of many. Jason Monaghan  and our copy editor, Kathryn Fitzhenry at The Federation Press were gracious and supportive and managed the usual range of lapses exceptionally well. Thanks, are also due to our contributors, whose essays add greatly to our knowledge of their subjects. It is perhaps appropriate to note that neither enthusiasm for Christianity, nor disdain for it, distorts any of our essays. This itself signals a crucial Australian difference and would not, I suspect, obtain in the United States.

Understanding the influence of Christianity on our legal history is part of the Australian story. It was not, however, given its due in the older historiography. It is also not much noted in more recent Australian historical writing, although a case could be made that Christianity shaped the secular in Australia. Rectifying the record in this respect goes to the merits of current attempts to reinvent Australia as a multicultural nation. This is a strategy with clear advantages in the context of tourism, but also one that does not take account of the return of the civilisational state in Russia, India, China and Turkey. In my view a deeper understanding of the role of Christianity and law in our history suggests a more nuanced and complex distinctiveness. Australian Jurists and Christianity is not a political work, but the truthfulness and objectivity to which it aspires has political implications of the first importance. I am very proud to be associated with the book.