Christianity and the Common Law

Reflections Mon 12th Aug 2019

The aphorism “Christianity is part of the higher Law of Nature or Divine

common law of England is mere rhetoric'' Appointment proceeding upon a general
according to Lord Justice Munby and Mr principle and universally acknowledged in
Justice Beaton when they ruled in England.
February 2011 that a couple could not be
foster parents because of their religious Authorities
The Gladstone Club
views on homosexuality. It really is a question of authorities. Does 1 Whitehall Place London SW1A 2HD
scripture stand alone as authority? Does it
This dispute the judges said ‘is merely one continue to do so if the opinions and of citizens. Such issues should be resolved
of a number of recent cases where the usages of the people drift from it? through the political process but the notion
tension has been between an individual's The common law had no provisions on of human rights takes that away from the
Christian beliefs and discrimination law as discrimination and would not likely have populace at large.
enacted by Parliament'. Their conclusion come to them. It was European law that
was that 'Equality provisions regarding plugged the gap and many would say it There is a danger in the belief that one’s
sexual orientation of treatment should take was needed. Very likely. But one might own values are so self evidently right that
precedence' over the sense of duty felt by ask with Jefferson: on what authority? the means by which they are realised do
Christians to express their moral values. If the will of the people, how is the not matter. One could believe that one’s
'We sit as secular judges serving a multi- people's pulse to be taken? The answer fellow citizens ought to choose liberal
cultural community of many faiths. The must be through parliament. values without a priestly caste of judges
laws and usages of the realm do not having to impose them but if they do not,
include Christianity in whatever form.’ Human Rights Act should they be imposed by judges? It is a
But ‘enacted by Parliament’ is not quite as method of making decisions that consigns
Much weight was put on the testimony of it seems. Since the Human Rights Act to irrelevance the view of the mass of the
Thomas Jefferson in 1824. 'A wall of 1998 judges have been empowered to population.
separation' he said should exist between declare incompatible decisions of
church and state and Christianity playing a parliament that do not align. It does not go So much for the will of the people.
part in the law was a 'judicial forgery' that as far as in the States where judges can But even if it was properly debated in
judges had 'stole this law upon us'. declare an Act of the Executive parliament what if it is changeable or gives
'unconstitutional'. But since it came into unconscionable answers? After the 7/7
Most notably it was William Blackstone force there have been 26 such declarations attacks 'the people' were notoriously for
who said 'Christianity is part of the Laws on: mental health detentions (2), attempted 'lock 'em up and throw away the key' and
of England'. According to Jefferson he was buggery in NI, recognition of gender with it the tradition of habeas corpus. If
quoting Sir Matthew Hale erroneously, reassignment in divorce, immigration asked might they be similarly hawkish on
following Finch 1613 himself detention (4), discrimination against discrimination matters? If that is the law's
mistranslating Prisot Chief Justice 1458 on widowers, assisted suicide, denial of the authority it loses its ability to lead, to
the question of whether Ecclesiastical Law vote to serving prisoners, stop and search elevate and to educate.
should be respected in a common law powers and others unreported.
court. Jefferson held that Prisot’s reference There needs to be a return to a higher and
to 'ancien scripture' referred to the ancient In his 2019 Reith Lectures Jonathan less mutable authority. Christianity here is
legal provisions of ecclesiastical law not to Sumption looked at the European succumbing to European style
'scripture' per se. Convention on Human Rights and warned secularization. Between 2001 and 2011
of the extent of its intrusion into the life of censuses the number of Christians born in
He also dismissed Lord Mansfield 1767 the nation principally through Britain fell by 5.3 million. The Gospel that
declaring 'the essential principles of interpretations of Article 8 ‘Respect for Augustine and his 30 monks brought in ad
revealed religion are part of the common Private and Family Life. This has been 597 is in retreat among Britons with
law' as he did so quoting no authority. transformed by the Court in Strasbourg Anglo–Saxon and Celtic ancestors who
'In the earlier ages of the law .. we do not from a vehicle of universally shared values make up 90% of British Christians. Far
expect much recurrence to authorities by to “a template in which to assess most from the law reflecting the decline may it
the judges because in those days there aspects of the domestic legal order – not be leading it?
were few or none such made public. But in mostly highly contentious”. It has been
latter times we take no judge's word for used to legislate on: legal status of Story made the case in 1824 and his view
what the law is, further than the authorities illegitimate children, recording of crime gains endorsement from Lord Atkin's
he appeals to.' Jefferson continued 'we find artificial insemination, abortion, medically famous 1932 judgement reaching for
them endeavouring to make law where assisted suicide, employment and social scriptural authority in Donoghue v
they found none and to submit us at one rights, environmental law and even Stevenson. It did, as Jefferson warned,
stroke to a whole system, no particle of eviction for non-payment of rent. None of import a whole new system but one which
which has its foundation in the common these issues were legislated per se by is still seen as a crowning achievement in
law' which being of Saxon origin settled parliament. None are in the text of the the English common law.
around mid C5th predates Christianity that original article and in Sumption’s view all
was not introduced in England until the are unsuitable for inclusion in a human
C7th so 'we may safely affirm that rights instrument. It is necessary he says to
Christianity neither is nor ever was part of distinguish a fundamental human right that
the common law' would be privileged above other interests
The claim was rebutted by Justice Joseph from something that is ‘just a good idea’.
Story of the US Supreme Court also in
1824 (pub 1833) studying the whole case Many are not issues between the state and
and concluding that Prisot referred to a the individual but between different groups
President: Roger Pincham CBE. Chairman: Peter Fennell. Secretary: Anne Fennell. Treasurer: Edward Saunders.
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