ROGER SMITH CONTRIBUTES THE THIRD OF OUR SERIES “RECONSTRUCTING CHRISTIAN FAITH
NOT A DISCUSSION of Romans chapters six and seven as you may have thought, but a discussion as to how much in the past, and how much in the future, Christian thinking shapes our legal system.
In the U.K., we have two sources of law making:– firstly, in the form of Statute Law issued by Parliament, and secondly, Common Law which is derived from earlier decisions of the Courts of Law. This tradition has come to be known as the “Common Law tradition” whereas other countries have had their legal systems shaped by the “Roman” or “Civil Law traditions”. Debate has run for many years between students and practitioners of the Law as to whether our Courts either interpret or actually make Law. Fortunately, for the purposes of this article, we do not need to trouble ourselves by entering that debate.
However, we must tackle the issue as to whether, as Christians, we can, or indeed should, shape the legal system of our country. Very briefly, we could describe our legal system as divided between civil and criminal law which, when taken together, can be described as a system of rules which prescribe the ordering of human behaviour. More particularly, criminal law is the way in which the community or the State, prosecutes and penalises those who offend against the community or the State.
Civil Law is described as the law which governs relationships of persons to each other and gives remedies by enforcement of promises or restraint of conduct in breach of the law to govern those relationships. This can include disputes between individuals and the Government and disputes of a matrimonial or domestic kind. A question which has been troubling Christians for many centuries, and which now concerns us even more as members of a minority group within a pluralistic society, is how much we can argue that our own Christian moral values should be enshrined within, and enforced by, the civil or criminal law.
Before the latter half of the 20th Century, it could be argued that Biblical values underscored much of our English legal tradition and that there was a general agreement in shared moral values which were foundational to the structure of society. However. we are now told that we live in a “post-Christian society” and again and again there are challenges to the previously accepted, broadly Christian consensus. Modern examples of these challenges have been in the areas of Sunday Trading, obscenity, witchcraft, blasphemy, abortion and also in the area of homosexuality.
Much of the earlier consensus has been challenged on the basis of being “paternalistic” and the argument has been advanced (in its most celebrated form by J.S. Mill) that restrictions to behaviour and in particular penalties on behaviour, can only be justified in order to prevent harm to others.
The rights of the individual to do as he or she pleases (most certainly in the privacy of one’s own home) are being advanced increasingly as a justification for removing legal restraint.
The question for the Christian today is, how do we convince the non-Christian majority that Christian rules and values are for their good? Is it not right for the Christian to champion the use of the Law in its educative and protective role, in matters of personal morality, together with pointing out the importance of providing support for family which will, by their very nature, give cohesion to society?
In the midst of this dilemma, the Christian will know that there are limitations upon the law as a means of keeping people to a moral code or, indeed, having any benefit in making people better. It is possible for the law to restrain a particular ill or evil, but it only retains its power to so do when it (that is, the law) has wide support from members of our society.
Dr. Martin Luther King used to say that the law could not make people love their neighbours but it could stop them lynching them! Law and public policy, therefore, may create a consensus but it may not always be the product of a consensus.
My conclusion is that it is vital for us to continue our argument for Judaeo-Christian values to be enshrined within our Criminal and Civil legal system on the basis that they have been tried and tested for many generations and have not been found to be wanting, and that they provide the very best framework for a right-thinking and decent society. This is not being overly paternalistic, this is merely looking to create an environment for every individual to thrive and flourish whilst curbing various excesses of personal behaviour that will cause harm if left unrestrained.
Our privilege is to live within a democratic society where each person’s voice can be heard and can be allowed to shape the type of society in which we live. For the Christian, knowledge of his or her Member of Parliament’s particular moral and/or religious position is vital together with an understanding of the moral or spiritual basis of any particular political party. In addition to a need for Christian Members of Parliament, there is also a need for Christian lawyers to argue the case for the Christian moral tradition within our existing legal system and, if possible, to progress through the judicial system in order to become law shapers as well as practitioners.
Roger Smith is a former Crown Prosecution Solicitor and is now Senior Pastor of New Covenant Church, Bournemouth.