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Transcript - Civil Society, Religion and the Rule of Law

The Right Reverend the Honourable Dr Peter Hollingworth AC OBE

When the Honourable Nicola Roxon, Adjunct Professor and Chair of the Sir Zelman Cowen Centre asked me for a title to this, the first in a lecture series with former Governors General, three themes instantly came to mind; these days their meaning and relevance is sometimes contested and even challenged. Whenever we discuss concepts like – ‘civil society, religion and the rule of law’, particularly the first two, we are usually confronted by argument, counter argument and a range of different interpretations. The result is no clear agreement as to a single definition.

Yet without doubt they are fundamental to understanding the nature, foundation and operation of western democratic societies. Sir Zelman himself often referred to them as fundamental institutional concepts upholding all our moral, social and political values and beliefs. In many ways they are the natural starting points for this address and possibly for the series.

I want to begin by paying tribute to Sir Zelman, his intellectual contribution to society through his public life and work in countless different fields of influence. In a personal sense Nicola Roxon’s invitation has challenged me to consider these three themes from the perspective of my various roles as a governor general, bishop, priest, social worker and welfare director. Personally speaking, I have valued the challenge and the opportunity of trying to draw them together through further study, reflection and experience. I must add however that this is still ‘a work in progress’.

Having thought more about the scope of this lecture I have to say at the outset, that I have bitten off more than can be digested in the time available tonight, especially in light of the fact we want to have some dialogue at the end of the evening. It seems that the best I can do is to offer some basic thoughts, connect them, and see where they take us.

I want to begin with ‘the rule of law’ and its corollary ‘justice under the law’. Though some philosophers and theologians have tended to discard it, I am still drawn to the foundational concept of natural law as a starting point. In its theological context this refers to the law inherent in the nature of rational creatures, whereby they duly order their conduct in relation to God, their neighbour and themselves’ (Oxford Dictionary of the Christian Church). The primary New Testament text is to be found in Paul’s letter to the Romans when the Apostle, having been trained as a pharisaic lawyer and describing himself as ‘a Hebrew of the Hebrews’, had this to say. ‘When gentiles who do not possess the law (as laid down in the Hebrew Scriptures), do instinctively what the law requires, these, though not having the law, are a law to themselves. They show that what the law requires is written on their hearts, to which their conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them on the day……..when the secret thoughts of all will be revealed.’ (Reference: Romans 2.14.)

This law being perceived by the light of reason is a matter for every human being who enjoys the use of their rational faculties as these have been developed over time. Most peoples of the world have evolved, knowing in their hearts and discovering by experience that they need both to acknowledge and submit to a higher power than themselves and to treat their neighbour as they would treat themselves. Over time, moral and later civil codes have thus been developed, sharing certain basic axioms or self-evident truths, declaring that good is to be done and evil or wrong avoided. The Hebrew Commandments, known as the Decalogue, with exceptions such as the law related to Sabbath observance, all belong in the realm of Natural Law. Most subsequent debate has mainly been over whether the law can be truly known and obeyed by human reason alone, without dependence on God or some ‘higher power’ to which in the end all are finally accountable.

I will now move forward to Anglo Saxon-Norman times, to 1215 AD when the Barons and Bishops of England forced King John to sign the Magna Carta with its 63 clauses at Runnymede. As everyone should know, this formed the foundation for English law, the principles of freedom, and ultimately the Westminster Parliamentary system. This was followed by the 1689 Glorious Revolution when it was determined by Parliamentary statute that the Sovereign was to rule, no longer by Divine Right as declared by the Stuarts, but by law, and with the consent of the Parliament. Thus the concept of the Rule of Law has gradually evolved in democracies around the world and as constitutions were written and passed into law, where legal precedents were established in the common law and in some countries more recently, human rights have been codified and legislated.

This reminds me that we first met the Cowens in 1965, in church as it happens, when Sir Zelman came to speak about the Magna Carta in celebration of the 750th anniversary of its signing. He mounted the pulpit and gave a most elegant exposition of its significance, as the source of the constitutional liberties of English speaking peoples and the common bond of peace between them. He quoted Lord Denning, an earlier Master of the Rolls, who in that year described the Magna Carta as ‘the greatest constitutional document of all times - the foundation of the freedom of the individual against the arbitrary authority of the despot’. As a young curate at the time, it almost sounded like an admirable sermon! He was then Professor Zelman Cowen, the well-known Dean of the Faculty of Law at the University of Melbourne, who much later became an advisor and mentor to the Victoria University in the early days of its foundation.

Fifty years later, in June of this year The Rt. Honourable Lord Dyson, Master of the Rolls and Chair of the Magna Carta Trust in Britain closed a conference on the topic of ‘Religion and the Rule of Law’, in preparation for the 800th Anniversary Celebrations to mark its signing. Many of you will be interested to hear that Lord Dyson will be speaking in Melbourne later this month. In June he asked ‘Why has the Magna Carta generated such excitement? Many of its 63 clauses are rather technical and have no relevance to us today and have had little, if any, impact on succeeding generations…But a few of the clauses are gems whose influence has been incalculable…..it has enshrined the rule of law in English society. It has limited the power of authoritarian rule. The king was to be subject to the law. It defined the limits of taxation. For centuries it has influenced constitutional thinking worldwide. The United States included many of its ideas in the 1791 Bill of Rights.’

(Reference: Speech at the Temple, London, ‘Religion and the Rule of Law’ –The Rt Hon. Lord Dyson)

The role of religion was very clear in 1215CE when King John sealed the Magna Carta with these words ‘from reverence for God and for the salvation of our soul and those of our ancestors and heirs, for the honour of God and the exultation of Holy Church and the reform of our realm.’ Lord Dyson also noted here that ‘His advisors included the two archbishops and seven bishops and the Master of the Temple.’

Stephen Langton the Archbishop of Canterbury had returned to England after eight years in exile in Paris. While there, he worked out the principles for the constitution of a nation governed justly under God. Within weeks of his return he made John swear at Winchester to abolish evil laws, establish good laws and judge all his subjects by the just sentences of his courts. Days later, he warned the king that to judge anyone without judgement of his court would violate what he called ‘the Winchester oath’.

There was another significant outcome of Langton’s persistence which is stated in clause 1 of the Magna Carta. ‘In the first place we have conceded to God, and by this our present charter confirmed for us and our heirs forever that the English church shall be free and have her rights entire and her liberties inviolate; and we wish that it be thus observed………this freedom we will observe, and our will is that it is to be observed in good faith by our heirs forever’. One wonders how his famous heir and successor Henry V111 interpreted these words, when, by act of state, he procured the English Reformation, with himself as Supreme Head of the Church of England, and the clergy and people later forced to conform to his laws on pain of deprivation and sometimes death?

In general terms though, the Magna Carta provided a general framework which laid down the beginnings of the Rule of Law. Freedom of religion of a limited kind was granted, though as Dyson points out, Clauses 10 and 11 might indeed be read as evidence of medieval anti-Semitism. However, the precedent of religious freedom was established, though it took many centuries to reach the point where freedom of religion, thought and conscience would be equally available to those peoples living under the Rule of Law in all western democracies.

In the 21st century there are still many countries whose people continue to live in a markedly pre-modern world, where such rights still do not exist, where there is considerable resistance on the part of authoritarian regimes, where the rule of law is unknown and there has been little or no recognition of the great traditions of justice, philosophical enlightenment and the application of graceful reason.

Lest we take such conditions for granted, The Rule of Law Institute of Australia has helpfully defined 10 guiding practice principles, while recognizing that there is no one single definition of the Rule of Law. Emeritus Professor Geoffrey de Q Walker summed up his work on the Rule of Law in Australia by stating ‘most of the content of the rule of law can be summed up in two points. (1) That the people [including, one should add, the government] should be ruled by the law and obey it and (2) that the law should be such that people will be able [and, one should add, willing] to be guided by it.'

(Reference: ‘The Rule of Law: Foundation of Constitutional Democracy’ 1st Edition 1988 -Geoffrey de Q Walker)

Turning then to Australia today we also need to clarify the relation of church to state. Dr Michael Hogan, then a Research Associate in Governmental and International Relations at the University of Sydney, writing in 2001, soon after I became Governor General, had this to say, ‘Let’s get one point clear at the beginning: Australia does not have a legally entrenched principle, or even a vague set of conventions, of the separation of church and state……………Australia has had a very consistent tradition of co-operation between church and state. ‘Separation of church and state’ along with ‘separation of powers’, or ‘pleading the fifth’[amendment], are phrases that we have learned from the U.S., and which merely serve to confuse once they are taken out of the context of the Australian Constitution.’ He added ‘What Australia does have is a principle of state neutrality or equal treatment, when dealing with churches……This principle of neutrality is not in either the State or Federal Constitutions, and has no legal standing………the strength of the principle comes from conventions hammered out in colonial Australia and no major political party could seriously contemplate abandoning it.

(Reference: ‘Australian Review Digest 2001’ - Dr Michael Hogan)

Section 116 of the Australian Constitution, certainly made it clear that there was to be no established religion and that freedom of the practice of religion was secured under the law. Despite borrowing some phrases from the U.S Bill of Rights like, ‘the Commonwealth shall not make any law for establishing any religion…’, its framers made no attempt to draw a sharp line of demarcation, or seek to build a wall between church and state. That doctrine found its origins in revolutionary France and later in the United States as first expressed in President Jefferson’s historic letter to the Danby Baptist Church in 1802 and subsequently enshrined in the US Constitution. This may or may not come as a surprise as the phrase is often loosely used by those wishing to assert it as a means of confining religion to the private sphere of life, which of course is impossible. Private acts always have public consequences.

Any reference to ‘separation’ in the Australian Constitution is to do with the separation of powers between the executive functions of government, the legislature and the judiciary. They represent the best means of securing good constitutional and democratic practice through the dispersal of institutional power in accordance with the Westminster tradition as it has evolved over time.

Those who operate out of a secular framework might be interested to know that the idea of the secular actually comes from Christian roots. The secular or saeculum refers to the affairs and governance of this world and cannot be understood fully without referring to those roots. The secular cannot be set apart from the sacred; indeed this is not the correct juxtaposition despite its popular usage. A better means of differentiation is between ‘the world as it is’ and ‘the world as it will become’ in the end-time.

Put in this way it allows for civil partnership and an appropriate differentiation of roles between ‘church’ [read religion] and ‘state’, without creating a potentially divisive separation between the two. On the other hand a democratic state needs to ensure that menacing public or private behaviour, ranging from terrorism to excessive religious zealotry, to the abuse of vulnerable people can be contained and where necessary brought under the rule of law, especially when human life is threatened or comes under threat. All citizens living in a modern pluralist society need to know and accept that they live under the rule of law and have many democratic privileges and responsibilities including the freedom to practice their religion under the law of the land. In return it is incumbent up the leadership of the various faith traditions, to teach, to admonish and to separate themselves from those who carry out acts of violence for political purposes, purportedly in the name of religion. Events over the past 30 years in various parts of the world, serve to illustrate how religion can be used as a potent force and as a means of rationalizing bad acts against fellow human beings. Seen in that light, the open secular society and its laws can be an important means of dealing with evil and illegal acts especially when they are carried out under the cloak of religion.

Turning now to the broader concept of ‘civil society’, this is one of the natural outgrowths both of secularity and democracy. Here I am indebted to a piece written for ‘the Australian Collaboration’ about democracy and public advocacy by David Yencken, Professor Emeritus of University of Melbourne. David Yencken makes the point that there are several terms used to describe the many community organisations and their roles in established democracies. At times they are referred to as belonging to ‘civil society’, or the third sector, or as non-government organisations or not for profits or as community organisations. These descriptions recognise they are ‘not for profit’ and operate for the public good, recognising that a ‘civil society’ sector is separate from Government and business sectors.

Within ‘civil society’ there are many different types of organisations promoting particular good causes, large and small, including everything from incorporated church and welfare institutions, to multitudes of clubs and associations helping and supporting their members. David Yencken points out that many are also’ involved with public advocacy for environmental and social causes aimed at building up voluntary endeavour and good citizenship’. He further suggests that ‘there are many roles played by civil society organisations seeking to make contributions to public policy, democratic practice and more effective governance. They help to disseminate information and educate citizens. They help to broaden political agendas. They improve dialogue and strengthen communication. They help to keep a constant focus on best and relevant practice. They are essential intermediaries between citizens and their governments. NGO’s are also the harbingers of change, preparing the ground for future public policy. Although others such as university researchers, scientists and public thinkers may generate new ideas and theories and provide scientific or other evidence in support, it is largely civil society organisations that give these ideas and theories publicity and currency and by those means help to get them incorporated into public policy’.

The Australian Government commissioned a Productivity Commission study examining the relationship between the Civil Society Sector and the Government in 2006. That report states that the Government recognises ‘….. the critical role the not for profit sector plays in delivering services and developing social policy, and advocating on behalf of marginalised groups a strong relationship between the government and the sector will be crucial to the success of the agenda and the related reforms’.

The matter that has to be revisited is to do with the nature of that relationship, the philosophy behind it, and how it might be worked out in practical detail. There is certainly some unease among some non-government sector agencies who sometimes feel that they are being squeezed between government requirements on the one hand and marketization processes on the other. Pressure from Government requires services to be contracted out to NGO’s to meet the letter of statutory prescriptions. Their other problem is having to compete with well-resourced corporations in the ‘for profit’ sector, leading to unfair competition with poorly resourced ‘not for profits’. The problem confronting the sector is two-fold; on the one hand of being subsumed under government policy and regulation without much opportunity along the way to question or challenge its directives, and on the other hand, driven by market place initiatives in competing for limited funds. Either way the essential ethos of the sector could be diminished either by excessive government control, or the adoption of private sector practice in the market place, or both.

A healthy democracy requires not only that individuals are free to speak, but that voluntary organisations have those same rights and opportunities as part of what is called ‘a social inclusion agenda’ which recognises the importance of these organisations seeking to advocate on behalf of people who are marginalised and inadequately represented in the political process. In 2010 the Australian Government signed the ‘National Compact; Working Together’. This committed government departments to its principles, and allowed Not for Profits voluntarily to sign up. A year ago there were some 881 organisations who had partnered with Government under that compact with its social inclusion agenda. This is a very important beginning requiring constant vigilance lest its essential momentum is lost.

Once again we come back to that notion of partnership, so essential to the idea of a democratic society and the mutual recognition of each of the key actors that are involved. Just as it is true that an historic partnership has existed between Church and State, so it is also true that an historic partnership is required between Government and ‘civil society’, of which local churches, other religious groups and voluntary associations form a natural part. Failure to recognise those bonds of partnership serves to diminish the degree of social cohesion so essential to the health of its democratic institutions.

To summarise, the term ‘mediating structures’ was popularised in the 1970’s by Peter Berger and Richard John Neuhaus in rejuvenating an idea developed in the time of Edmund Burke in the 18th century. In his ‘Reflections on the Revolution in France in 1790’, he noted that the French revolutionaries adopted a version of modern natural law which refused to recognise the influence of any traditional social institution. Rights resided within individuals, and there was no legitimate interest beyond the particular interests of those individuals. Thus, the revolutionaries abolished all guilds, attacked the monasteries, institutionalised divorce, bound the clergy by oath to the revolution, and eliminated primogeniture and other laws protecting family property.

These sweeping reforms of course did not survive.

It was Burke who initially declared that ‘mediating structures’ of the kind mentioned provide the individual and the family with guidance through custom, tradition and habitual practice by militating against what Tocqueville called ‘individualism’ in the next century. It was he, writing in ‘Democracy in America in 1835’ who expressed concern about individualism and the centralisation of state power as two practices rising in tandem at a time when these mediating structures in local communities were beginning to decline in the wake of urbanisation. He made the point that the state secures individual rights and, without ‘mediating structures’ to buffer the individual, the individual looks to the state to secure his or her needs, including the need for community. Berger and his colleagues have done much to focus again upon the decline in community and civil society, with its ‘mediating structures’.

Turning finally to the present, what can we learn from the past?

  • Turmoil in many parts of the world today is a reminder to us all that we cannot take for granted the three fold legacy we have inherited; the rule of law, religious and social freedoms and the stable democratic system we have inherited and adapted over the past two centuries. Our nation was settled at the high point of what is often called the European Enlightenment, following much religious and political discord and turbulence in the old world. Grave mistakes were made notwithstanding courageous actions for reform and change.
  • We also need to re visit what is meant by the term secularization, noting its good, as well as its problematic elements, and above all avoiding unnecessary false dichotomies. The major task ahead of us here in Australia and in other democratic states is one of building collaborative, civil partnerships to achieve the common good within the rule of law.
  • Living in a global society as we do, our respective national destinies are becoming planetary ones. We need to join in coalitions aimed at protecting vulnerable people, dealing with evil while avoiding any sense of self-righteousness which might lead to the accusation of hypocrisy.
  • We talk much about ‘nation building’ which is an important process, but it must be about good values and just structures implemented by local peoples themselves, and in the knowledge that the building of a ‘civil society’ in the west is itself still ‘a work in progress’ requiring further refinement in our day and age.

Find out more about the Governor-General series launch.