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Christian Foundations of the Common Law, Volume 3: Australia By Ian Wilson LL.B

     This is a brief review of a tremendous new book by Professor Augusto Zimmerman, Christian Foundations of the Common Law: Australia, (Connor Court Publishing, 2018), which is the third volume in the series on the Christian foundations of the common law, and no doubt, the one volume potentially of most interest to readers, for obvious reasons. Professor Moens in his introduction to this book says that  Australian society has become secularised,  and that there is a danger of legal students, and the public, losing the historical sense of the close connection between Christianity and the evolution of the common law in Australia. This volume serves to remind us all of the glory of the past, and the potentials (and threats) for the future, if only we can “maintain the faith.” Perhaps the allusion here is to Paul’s great saying: 

“I have fought the good fight, I have finished the race, I have kept the faith.  Now there is in store for me the crown of righteousness, which the Lord, the righteous Judge, will award to me on that day—and not only to me, but also to all who have longed for his appearing”: 2 Timothy 4:7-8.

     Sir Henry Parkes, August 26, 1885, one of the founding Fathers said: “We are pre-eminently a Christian people – as our laws, our whole system of jurisprudence, our Constitution are based upon and interwoven with our Christian belief.” The first settlers, and consequently the very first jurists were Christians, and compared to today, took their faith seriously believing in its literal truth, that mankind would be judged. Hence the values of truth, courage, love and treating your neighbour as yourself, often called the law of love:   came to dominate Australian cultural life, and probably became entrench in the egalitarian philosophy of mateship and a fair go. It was Christian ethics which led to the Aboriginal people being made part of the new society, whereas Genghis Khan may have had a different point of view. Governor Phillip encouraged Christianity in every way he could, as did governors to follow.

     It was the Christian intellectuals who arose to oppose the Darwinian idea, popular at the time, that there were profound racial differences among people, “racism.” As well, Christians opposed slavery. “More importantly, without the influence of Christianity, including its values, culture, and legal-political institutions, it is quite possible that the Australian Aborigines would have been completely wiped out.” (p. 39) However, there is little thanks to Christianity today for this. The early jurists followed Sir William Blackstone, in regarding uninhabited countries as terra nullius, and the country settled rather than conquered. At that time, it would be inconceivable that in 1994, this doctrine would be rejected by the High Court of Australia, and the disaster of native title established. Humans cannot see too far ahead, just as most of us are blind to the coming apocalypse that is set to wipe out Western civilisation, and if we let it, all of the good things talked about in the present book under review. Nevertheless, they were following Christian principles. At the time, Aboriginal customary law was seen as based upon animalistic religion, deemed to be incompatible with Christian “divine law.”

     Almost all of the drafters of the constitution believed that Christianity was of great importance to the existence and life of the Commonwealth, such as Edmund Barton, Alfred Deakin and others. The Preamble to the Constitution, reflects this: “humbly relying on the blessing of Almighty god.” This was also supported by numerous petitions asking for a recognition of the Christian nature of the nation to be embodied in the constitution. “Judeo-Christian values were so embedded in Australia in those days so as to necessitate the recognition of God in the nation’s founding document.” (p.55)

    Christian practices came to be embedded in the Australian legal system, often in subtle ways. Thus, the Governor General constitutionally exercises executive powers as the Queen’s representative, and under section 42 of the Constitution, is bound to those principles found in the Queen’s oaths of office. In turn, these oaths, based in the coronation ceremony, which first was conducted in 973, are conducted entirely within a Christian framework, in a Christian church, presided by a Christian minister, and the monarch promises, to “maintain the laws of God and the true profession of the Gospel.” The monarch is then presented with a copy of the Bible. A communion service is conducted. Then, at the coronation, the Archbishop of Canterbury says: “God Crown you with a crown of glory and righteousness…” That being said, today it would be unheard of for the Queen to dismiss the Governor General for failing to uphold Christian principles in the law. (p. 62) The cynic would see this as the mere survival of relic, because an equally lengthy book could be now written about how law has come to produce exactly the opposite of Christian doctrine. But, that is not the subject of the present book, being concerned more with history.

     Section 116 of the Constitution prohibits the establishment of a state religion, so that the state remains secular, unlike under Islam.  There was thus an anti-monopolistic attitude, that the state merely existed to facilitate the operation of the so-called free market and laissaz-faire economy. The Australian states were thus given the power to make laws regarding religion. It granted religious freedom, but this right was to be balanced with other liberal values such as the right to life and liberty.

     Clearly then Professor Zimmerman has established his thesis that Christianity has provided a foundation to Australian common law. I think that if one went and examined the basis of common law in more detail we could also support this. Thus, the foundation of the law of negligence was laid in the English case of Donoghue and Stevenson [1932] UKHL 100, the “snail in the bottle” case. Mrs Donoghue had drank a bottle of ginger beer in a café, but the drink had a snail in it. She became ill and sued. The House of Lords held that the manufacturer owned Mrs Donoghue a duty of care which was breached, because it was reasonably foreseeable that failure to ensure the drink’s  safety would lead to harm to her. Lord Atkin gave a statement of the principle that would be incorporated in tort law, which was founded upon Christian philosophy:

“I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

     The irony of this case is that it is possible that there was never a snail in the bottle! The case went back to trial, but Stevenson died, so the factual claims were never tested. In my opinion, it is most unlikely, as the snail would probably have dissolved in the liquid, and if not, would have been visible. But, don’t let facts and  science get in the way of common law-making. The case, for good or for bad, set off our culture of litigation:

     Overall, this is yet another excellent book discussing our Christian legal heritage. As well, Professor Zimmermann is well aware that this heritage is under attack by an array of secular forces. He does not go too far into controversy here, dealing with the matter in general terms, but as stated in the foreword:

“Increasingly, religious discourse is no longer seen as able to make constructive contributions to the discussion of the topical issues of our times. Hence, issues such as same-sex marriage, euthanasia, gender choice, biological experiments, even the effect of the implementation of section 18 C of the Racial Discrimination Act (Cth) on free speech, among others, exclude religious viewpoints because they are viewed as discriminatory, unenlightened, uninformed, biased and arcane.” (p.15)

     That is where the cultural war battle of today lies, one which we, out on the postmodern battlefield, are fighting.



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