Firstly, I think we should recognise the truth of Sir James Munby's observation of the morally pluralistic nature of contemporary society (cf pp.7-8 of the full text in pdf). Sir James perhaps assumes that this plurality is mostly driven by a move away from Christian belief by today's citizens, primarily towards secularism (ie lack of religious belief of any kind). Sir James does acknowledge that there is a pluralism in religious belief in society. I would not argue for a privileged position for Christian belief in our law based on the history of our country; I think that any such position is rooted in the extent and manner in which Christian faith continues to be lived in our land (though, of course, that is not to deny that there are historically Christian roots to much of our law and legal process). However, the question raised by Sir James' observation on this point is not that which he pursues, namely, the promotion of an absence of religious consideration in matters of law. On the contrary, I think it raises the much harder question of what is an appropriate consideration of religion in matters of law. If it is quite correct that (p.10 of full text in pdf)
... reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law.the real underlying question of how the formulation of law that will apply to believer and non-believer alike takes in to consideration matters of religion remains unasked. As I might choose to express it, rather than religion becoming less relevant, the question of religion and its proper place in society and law is now alive and well and of greater importance than ever.
Secondly, I think we can ask ourselves exactly what Sir James intended by his use of the term "secular" to describe the role of judges and the nature of the law that applies in our land. In France and Italy, the equivalent term is often "laicite" or "lay-ness", with its slightly different nuance. If by this term Sir James intends that any religious consideration should be over-ridden in law unless it happens to be acceptable on secular grounds - and we can be forgiven for believing that this is his intention despite the assertions of the law's having (p.9 of full text in pdf) "every respect of the individual's or family's religious principles" - then he is in effect suggesting the imposition of a secular "religion". Cranmer weighs into this point of view with gusto:
Except, of course, when it comes to enforcing the state orthodoxy of equality and the inviolable beliefs of secularity. In this new theology, there is no theos: human rights are sacred writ, and salvation is found in the veneration of secularism. Therein lies the true source of freedom and justice.What is really required of the law and of judges is that, while not promoting or imposing any one particular religious belief (or, for that matter, secular "religion"), they allow the space in society for those beliefs to flourish. This is what Pope Benedict would have termed an "appropriate secularity". The address in Westminster Hall in 2010 sets out both this and a way of understanding the part to be played by religion in political processes, and by implication in the law and law making process:
Except, of course, it is no freedom at all; indeed, it becomes a manifest oppression to Christians seeking to live their lives in spirit and in truth....
It is ironic indeed that we are winding back the clock on the 1689 Act of Toleration and 1829 Roman Catholic Relief Act, and moving toward the reintroduction of a religious bar to holding office. Christian magistrates, registrars, paediatricians, GPs, teachers, nurses and foster parents are finding it increasingly difficult to manifest their faith without risk of disciplinary action, dismissal or prosecution for offending the ascendant secular religion.
Britain has emerged as a pluralist democracy which places great value on freedom of speech, freedom of political affiliation and respect for the rule of law, with a strong sense of the individual’s rights and duties, and of the equality of all citizens before the law...But the third, and perhaps most worrying, point to be made about Sir James' lecture is its advocacy of a relativistic standard for the working of judges (p.7 of the full text in pdf):
The central question at issue, then, is this: where is the ethical foundation for political choices to be found? The Catholic tradition maintains that the objective norms governing right action are accessible to reason, prescinding from the content of revelation. According to this understanding, the role of religion in political debate is not so much to supply these norms, as if they could not be known by non-believers – still less to propose concrete political solutions, which would lie altogether outside the competence of religion – but rather to help purify and shed light upon the application of reason to the discovery of objective moral principles. This “corrective” role of religion vis-à-vis reason is not always welcomed, though, partly because distorted forms of religion, such as sectarianism and fundamentalism, can be seen to create serious social problems themselves. And in their turn, these distortions of religion arise when insufficient attention is given to the purifying and structuring role of reason within religion. It is a two-way process. Without the corrective supplied by religion, though, reason too can fall prey to distortions, as when it is manipulated by ideology, or applied in a partial way that fails to take full account of the dignity of the human person. Such misuse of reason, after all, was what gave rise to the slave trade in the first place and to many other social evils, not least the totalitarian ideologies of the twentieth century. This is why I would suggest that the world of reason and the world of faith – the world of secular rationality and the world of religious belief – need one another and should not be afraid to enter into a profound and ongoing dialogue, for the good of our civilization.
Today, surely, the judicial task is to assess matters by the standards of reasonable men and women in 2013 - not, I would add, by the standards of their parents in 1970 - and having regard to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes.
As a letter in today's Times points out:
What if in time these changes render acceptable matters which he currently views as "beyond the pale"?[cf p.10 of full text in pdf where forced marriage, female genital mutilation and honour violence are listed as being in this category of "beyond the pale"]. One can see here an almost complete refusal to engage at the level of genuine reason, despite Sir James' use of the adjective "reasonable". And its inevitable consequence, as Cranmer cited above appreciates, is the persecution of the minority who do not adhere to the prevailing majority "social attitude". Am I naïve to think that the role of judicial decisions is to uphold the rule of law?
In the specific context of family law that was Sir James Munby's subject, this does have a significant implication. Whatever the historical context of case law cited by him in the first pages of his lecture, and whatever view one might take of those judges in the past who have seen their role as being, at least to a certain extent, one of upholding morals in society, there are nevertheless strong legal grounds for giving to marriage a preferential protection in law. Article 16 of the UN Universal Declaration of Human Rights, for example, states:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.And we should be clear - as intended by the declaration we are here talking about marriage between one woman and one man, with a view to children, and it is this that is intended by the term family. At the time of its writing, no other meaning would have been intended and it would be quite misleading to interpret the Declaration in any other way. If the law, and the work of judges, does provide this preferential protection for marriage and (authentic) family, it is not a question of judges being guardians of public morality in any sense. It is instead their acting in the interests of a common good that is for the welfare of all in society.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
And a final aside. Sir James suggests (pp.7-8 of the full text in pdf) that earlier jurisprudence assumed a society marked by a very high degree of homogeneity in moral outlook, and that the content of this outlook could be easily ascertained. Now, on many of the topics coming before the courts, society no longer has a single, discernible voice. Does not this raise a very significant question with regard to what is nowadays referred to as social cohesion? How much commonality of moral outlook is necessary in order to assure social cohesion, and at what point does a lack of such commonality lead to social disintegration?