United Kingdom Journals

Howell, Book Review Christian Perspectives on Law Reform, Ed. Paul R. Beaumont, Paternoster Press 1998 ISBN 0-85364-852-2

Reviewed by Dr. Jean Howell

Lecturer
Faculty of Law
University of Manchester

<Jean.Howell@man.ac.uk>

Copyright © 1999 Jean Howell.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

There are two immediate difficulties which a book attempting to give a Christian perspective on a topic has to overcome: the first of showing that there is in fact a distinct, Christian point of view, and the second of taking into account different perspectives within the Christian tradition. Whether the first difficulty has been overcome is difficult to judge from "the inside": indeed a book of essays on Christian Perspectives on Law Reform is perhaps best reviewed by a non-Christian, or by a person holding no theistic beliefs. In his introduction to the essays, Professor Beaumont explains that the aim of the book is to help develop a Christian mind rather than to prescribe solutions to complex problems. He cites (at p 3) John Stott's telling comment that " the Christian mind is not a mind which is thinking about specifically Christian or even religious topics but is a mind which is thinking about everything, however apparently secular and doing so `Christianly'". (Stott 1982, p 170.)

Since a book purely for the "practising" Christian would largely be preaching to the converted, it is also designed to challenge the non-Christian lawyer or layman to consider, or, indeed, become aware of the value and relevance of Christian principles. It hardly needs to be said, and the editor does not say that Christian and non-Christian religions share many of the same values. This is though a professedly Christian Perspective; there is of course ample scope for comparison and disagreement for the religious non-Christian reader.

It may be argued that it is difficult to isolate a particularly "Christian" response on a topic. Despite a strong and continuing move to the secularisation of society, our law makers, whilst not necessarily professing a Christian or any faith, have been brought up in a country whose guiding moral principles have been, and largely still are, Christian. The Christian ethic thus permeates intellectual thought. The authors are aware that something more than a vaguely moral standpoint is necessary: Teresa Sutton in "Christians as Law Reformers in the Nineteenth and Twentieth Centuries" specifically uses examples of reformers who acknowledged their Christian belief as the driving force behind their work. The authors nevertheless acknowledge that Christian and secular values are often still identical. For that reason it is unfortunate that two of the conference papers on which the book was based could not be included in the series. "The Decision to Withdraw Treatment-a Christian Perspective" by Jean McHale and Claire Archbold's "What God has joined together? Christian responses to 'the new family'", are both topics which have a distinctive Christian voice. This is not to undervalue the published contributions, all of which acknowledge the difficulty of identifying a Christian approach, an identification which is easier in some cases than others.

All too acknowledge the fact that there is often no single "right" Christian answer: within the Christian Community, the Christian voice is often divided. Again the omission of the articles on the withdrawal of treatment and on marriage is unfortunate, since there is here a considerable diversity of opinion.

Even on matters which to modern minds seem to permit no opposing Christian view, history shows a division of opinion. Teresa Sutton in her review of Christian reformers gives as examples of legitimate targets for Christian intervention, the abolition of slavery, the reform of working conditions, prison reform and abolition of the death penalty. Yet, as she points out, other equally committed Christians were able to reach different conclusions. She cites the opposing views of Shaftesbury, a strong advocate for factory reform, and Bright, equally professing Christian ethics but who opposed reform. This difference Miss Sutton highlights but rightly does not attempt to explain away. Equally, on the question of the death penalty, there is a decided difference of Christian opinion, even those in favour of abolition often basing their opinion on the evidence of the number of cases where the wrong person has been hanged, rather than on a religious objection to the death penalty as such.

It is always unfair to criticise a work for what is not there but it would have been interesting to have included some modern day reformers who profess a Christian basis for their work, for example Lord Longford and Lord Alton in their different fields. It would also be interesting to contrast the success of Christian reformers with that of those who were either agnostic or atheistic. Teresa Sutton comments that often reforms have been achieved in God's time rather than in that of the reformers and that He worked through unexpected agents, whose purposes are not inspired by religious beliefs. David Harte in "A Christian Approach to Environmental Law?" cites Edwin Chadwick's important work for reform of public health which was not informed by any Christian belief. In our own time, Ludovic Kennedy has done much to highlight injustices in the criminal justice system but would probably deny any but a humanist inspiration.

Julian Rivers' "A Bill of Rights for the United Kingdom?" has to an extent been overtaken by events: the Human Rights Act 1998 has now incorporated the European Convention on Human Rights into English Law: whilst not a "Bill of Rights", it serves some of the same purposes. His central thesis is not, however, undermined: that the enactment of a Bill of Rights with its primary emphasis on individual interest and overt hostility to duty, virtue and the common good, is fundamentally in opposition to Christian values.

The language of the European Convention on Human Rights ("ECHR") is very much rights based and Rivers notes its origins in the French Declaration of the Rights of Man in 1789: the natural and imprescriptible rights of man are liberty, property, security and resistance to oppression. He can not but be aware of the deep irony in such a statement at such a time, an historical lesson which should alert all to the impossibility of securing true human dignity by words alone. Rivers considers the different philosophical approaches to rights, and questions the validity in Christian terms of the placing of human rights, not as the outcome of a moral calculation, but as the foundation of morality. He instances the difficulty of upholding the House of Lords' decision that consensual sado-masochistic acts, which harm no-one but the individuals, are illegal, (R v Brown [1994] 1 AC 212) unless it is accepted that some matters are intrinsically immoral. Legislation not built on such a premise can only be concerned with securing individual rights, no matter how morally valueless or reprehensible they may be from a Christian viewpoint.

He concedes, however, that an emphasis on rights is acceptable if it focuses on the intrinsic dignity of human being made in the image of God. Rivers' concern is that well-meaning attempts to enshrine rights in legislation could lead to a perception that these rights are inalienable and divorced from a consideration of absolute Christian values and the general good of the community.

Whilst such a perception can lead to a distortion, there are many, themselves Christians, who see the incorporation of the ECHR as a minimum standard to protect individuals against the power of the state. It cannot be denied that the state both in the imposition of rules themselves and in the carrying out of those rules by its officers, can cause grave injustice, whether one judges that against a religious or humanist standard.

Rivers accepts that the tensions are not easily resolved but suggests that the role of the Christian is to struggle for resolution in his own time: to the struggling Christian this may not seem helpful. He is, however, being intellectually honest: there are no easy answers. Ultimately, perhaps talk of rights and duties is sterile and meaningless if not accepted and given in a Christian spirit which acknowledges both God's insistence on a striving for absolute perfection and an infinite willingness to forgive.
In Jonathan Montgomery's "Whose Life Anyway?: A Re-examination of Suicide and Assisted Suicide," one is again faced with the difficulties inherent in a morality based solely on compassion rather than absolute standards tempered with compassion. The background is the pressure from Compassion in Dying, an organisation which desires to legalise euthanasia. Montgomery traces the common law attitude which has always held suicide to be a crime. He cites (at p 87) Blackstone, who described suicide as a double offence: no man has the power to destroy life but by commission from God, the author of it. Suicide takes the "spiritual prerogative" and "rushes into His immediate presence uncalled for" (which rather gives the impression of God as a host caught unprepared for dinner guests), and, secondly, it is a temporal offence against the king, who has an interest in the preservation of his subjects. (Blackstone, xiv, 3.)

Of course suicide is no longer a crime, but to help someone to commit suicide is, a distinction based in part on a continuing perception that suicide is immoral. Montgomery accepts that there have been and are different religious attitudes to suicide and human life generally, but says that the Christian attitude, which is not that a life has an absolute value, but that its disposal is in God's not man's hands, has underpinned the entire western culture. He agrees there are moral ambiguities (he instances martyrdom), but says that suicide is still an evil. To ignore the Christian attitude is folly: society needs all the help it can get in resolving difficult questions.

The Christian view on euthanasia is grounded in an "acidly realistic" view of human nature since the Fall: euthanasia is a "gilt edged invitation to fallibility laziness and perversity" (p 94/95). Montgomery instances as specific problems, mistakes of diagnosis which result in a patient (and his doctor and family) believing that a disease is incurable; a patient simply becoming tired of life, or (perhaps the more compelling) his carers tiring of caring, or relatives being motivated by greed. The "wedge" argument in its popular meaning that any concession in one area inevitably leads to others, he illustrates by the obvious, but no less compelling, parallels with abortion. Of course the "wedge argument" only has force if one accepts the validity of the underlying principle, that suicide or assisted suicide (or abortion) is morally wrong.

Montgomery's observation that the problems are magnified in secular society by a perception of an absolute right to health success, happiness and absolute autonomy, echoes Rivers' concern over the insistence on "rights" and a denial of any notion of interdependence or the value of dependence. The argument put forward that suicide, and, by extension, assisted suicide, hurt no one supposes an action operating in a social vacuum. The report of Lord Hailsham's moving account of the effect of his brother's suicide will be familiar to anyone who has been affected even distantly by suicide and knows its long lasting effects.

Even a secular perspective acknowledges the dangers of assisted suicide: evidence from the Netherlands where euthanasia is legal, suggests that it is in practice uncontrolled. Montgomery suggests that there is evidence that the emerging nations are very much against the easy giving up of life since they have only just won the right to live. Montgomery concludes that "facilitating death in one way facilitates it in every way", (p 101). This must be true - once the notion that disposal of life is in man's hands is accepted, it becomes impossible to make any reasoned moral case for not exercising that power in other ways and in other circumstances. For the Christian, the impossibility of making any such distinction requires that none be made.

David Harte, in posing the question "A Christian approach to Environmental Law?" has no such fundamental problems to deal with but admits that his is an uphill task. He asks if there is a distinctly Christian approach to the subject and if there is, how it is to be fitted into a conceptual framework. He points out that there is on one view a Christian perspective on everything. This must be so - the thesis of the book that one's aim should be to live "Christianly" and this must include all aspects of one's life. On the other hand, there is also the legitimate view that some areas of life are best left to secular judgement. There is however an increasing body of jurisprudence on environmental law in which the Christian voice should be heard-what that voice should be is difficult to determine.

The starting point for guidance must be the Bible, but as Harte says the biblical message is at best confused. The traditional view has been that in Genesis: that Man should take dominion over all the earth and subdue it, a view often taken as a licence to be exploitative: the idea of saving the environment either for its own sake or as honouring God's creation, was not at the forefront of judicial thinking in the nineteenth century. Harte suggests that the judges showed disconcertingly little concern for environment, which, while true, has the danger of imposing modern concerns into a completely different social climate: even in our environmentally-aware society, the stance a Christian should take is unclear. Harte suggests that the Bible can provide the conceptual framework, the "spiritual lead-in", but warns against taking a biblical text as prescriptive. (Interestingly, he suggests that even laws apparently for their own time, for example dietary rules, may in fact have a continuing validity and draws the parallel with the government's wholesale ban on beef.)

Echoing Rivers' concern over "rights for their own sake", Harte notes that, for some, concern for the environment is an end in itself, a pantheistic concern in opposition to the Christian ideal, which sees nature as only a part, albeit an important part of God's design. He warns of the danger of seeing all life as equal, with humans having no greater value than animals, an approach which can lead to a disregard for human life.

The difficulty of assessing exactly what a Christian response to the environment should be can be seen in Harte's evaluation of the role of the aesthetic. He suggests that the pursuit of a beautiful environment may be seen as an eminently Christian task, yet some may feel that it is inappropriate to spend large sums on purely aesthetic matters, even for the glory of God. But what is beautiful is very subjective and can ignore reality: 18th century cottages now seem very picturesque but in reality were slums. For the owners of listed buildings which, by definition, have sufficient 'aesthetic' qualities to merit their conservation, obtaining consent to make the property habitable or financially viable can be a nightmare.

A straw poll of Christians would no doubt show as many in favour of say, wind turbines, as against them, both on aesthetic and on conservation grounds. Perhaps Hart's most telling point is that even if, generally, there is no tension between Christian and secular view points, there needs to be a Christian input at all levels: if a Christian point of view is put forward only on contentious matters, it will seem as if Christians are always against everything. He concludes that, although there is not a Christian environmental law, there is a distinctive Christian perspective. I am not sure that he has stated it, unless it is that Man's role is one of responsible stewardship, the practical implications of which will take different forms. Although perhaps uncertain in particulars, Harte is persuasive in his general thesis.

Stephen Copp's " A Christian Vision for Corporate Governance" is the longest essay and the most difficult. In trying to look at the problem from every angle, there is sometimes a confusing repetition of ideas. Nevertheless, Copp has a valuable contribution to make. He adopts a definition of Corporate Governance as a relationship among various participants in determining the direction and performance of corporations. He asks what shortcomings are revealed by the debate on corporate governance, if there is a response based on Christian teaching and, if so, what that response should be. He warns against the conflating of Christian with merely ethical principles: they may coincide but a Christian perspective will start from a different premise.

There are strong arguments for a Christian perspective: Christian theology has been applied historically to business in its condemnation of avarice and usury but it has never had any problem with business as such. He suggests that Christian theology has a unique role since Christians see the world as God's creation and in consequence have a respect for the world's resources-he echoes Harte's concern that there should be "proper stewardship". He makes the point that the rationale for doing what is right is not that an enterprise will be more successful, but that in the normal course of things, doing what is "right" will be more successful as part of the natural ordering. Of course, the difficulty will be in deciding what is right in this context. Central to any scheme, Copp suggests, must be the concept of love, which requires a positive culture of kindness, trust and hope, all of which imply a need to move away from legal notions of how obligations are discharged. On the other hand, because people are inherently unethical through original sin, the Christian should adopt a "cynical" attitude to non-legal methods of regulation. It is hard to reconcile the two. Surely cynicism is the very antithesis of trust, implying as great a lack of judgement as too great a trust. Perhaps it is a matter of balance: Christians are not to be judgmental; on the other hand, they are not required to be naive.

The difficulty is in Copp's solutions: he suggests that company law should be concerned with developing long terms relationships, since it is only in such relationships that trust and love can flourish. Whilst clearly desirable aims, there are considerable practical difficulties with the idea of long term relationships. Is it realistic to consider the acquisition of a share in a company not merely as the acquisition of property but as "the commencement of a relationship" (p 149) with other shareholders and directors? Certainly there is force in the argument that, if there is such a relationship, Christians should consider whether it is proper to enter into it at all. On the other hand, very many Christians are involved in companies as shareholders, often in pension or savings schemes where investment patterns are outside their control or subjective knowledge. Copp's argument would require the Christian to acquire that knowledge. The fact that a "Christian" pattern of investment may (but not necessarily would) be less productive would be the price to be paid. Although this may be the correct approach, it is a counsel of perfection. Perhaps more readily realisable is the importance of ensuring that there is visible equity between those involved in an enterprise. Thus the large salaries earned by some directors are a cause for concern, not in themselves - the Bible is clear that it is the love of money rather than money itself which is the root of evil- but in that a large disparity in rewards can suggest that all mankind is not equally valued.

Copp suggests that reform of corporate governance needs to be seen as part of a wider move to bring Christian ethics back to a society, where self seeking materialism is endemic. Whilst it would be difficult to argue with this, once he turns to the practical applications of this, the issue becomes much more problematic. The company should be defined so that its purpose is to focus on benefit to society. Thus, company law would permit philanthropy; barriers to the creation of "relationships" should be removed, for example, by the setting up of supervisory boards; measures should be taken to discourage short term, passive "non-relational" investment, possibly by a combination of fiscal measures and imposing obligations to vote at a General Meeting. Even if such measures were desirable - and could be imposed - there are the same practical difficulties: how can beneficiaries in a pension fund, for example, have any input?

Copp suggests that in the big debates in the past, about chimney sweeps and slavery, for example, principle has eventually won over profit. But, even when an area is reformed, new problems will arise because of man's imperfect nature. The only real answer, Copp concludes, is through a return to God through a personal relationship with Christ. This surely is the most fundamental point - that no amount of regulation can ultimately control human behaviour.

No one coming to a book such as this, whether as a Christian already familiar with the arguments and in broad agreement, or approaching them with an open but secular mind, would expect dogmatic answers. It is to the credit of the contributors that none seeks to underestimate the diversity of opinion within the Christian body or to pretend that there are ready answers. The difficulty for the modern-day Christian is to resist the insidious and all pervasive attitude that everything is indeed relative: even those who acknowledge and try at least to adhere to Christian values, often find themselves unable to give convincing explanations for asserting the wrongness of actions which apparently affect no one other than those involved. It can too be difficult to defend the necessity for absolute standards against criticism that such a stance can lead to a distinctly unchristian condemnation of those who fails to achieve those standards.

A Christian will draw from these essays a reiteration of the challenge "by their fruits shall you know them"; for the non-Christian, perhaps the possibility of a Third Way.

Bibliography

Blackstone, Blackstone's Commentaries. IV.
Stott, J (1982) I Believe in Preaching (London: Hodder & Stoughton)