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Published online by Cambridge University Press: 03 February 2016
In addressing this subject I shall be concerning myself with certain aspects of the vocation of the lawyer and of the theologian. I say certain aspects advisedly. Undoubtedly, a thorough study of the various relationships and comparisons between religion and law could not be satisfactorily dealt with in anything short of a multi-volume treatise. What follows is a hodge-podge of some law-and-religion features and issues which I have selected primarily for what I hope to be their interest to members of the clergy. I shall be dealing with: (1) some general aspects of the relationship between law and religion; (2) the law's definition of religion; (3) fundamental law and the Canadian Charter of Rights and Freedoms; and (4) legal and scriptural interpretation.
Before embarking on this course, I should mention that the resort to scripture in the various vicissitudes of life is, of course, commonplace and that the resourceful mind is capable of finding useful precedents in the most unlikely parts of the Bible. Sometimes precedents drawn from the Bible may have cogent negative effect. It appears that the famous 18th century English judge, Lord Mansfield, paid little attention to religious holidays. During one sittings of his court at the end of Lent he proposed that the court would sit on Good Friday. An account of what happened is as follows: “Sergeant Davy [one of the counsel in the case] … bowed in acceptance of the proposition. ‘If your lordship pleases; but your lordship will be the first judge that has done so since Pontius Pilate.’ The court adjourned until Saturday.”
1. Parry, , The Seven Lamps of Advocacy 52 (1923)Google Scholar.
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3. See Berman, , The Interaction of Law and Religion 24 (1974)Google Scholar.
4. Devlin, , The Enforcement of Morals (Maccabean Lecture in Jurisprudence of the British Academy, 1959)Google Scholar. It has been noted that the current debate between utilitarianists and moralists is “a carbon copy of that earlier dialogue, a century ago, between Mill, John Stuart [On Liberty (1859)]Google Scholar and Mr.Stephen, Justice James Fitzjames [Liberty, Equality, Fraternity (1873)].” Law and Morality—A Reader 1 (1976)Google Scholar.
5. Report of the Committee on Homosexual Offences and Prostitution, Cmnd. 247 (1975)Google Scholar.
6. Id. at 9-10, 24.
7. Devlin, supra note 4, at 14.
8. See Hart, , Law, Liberty and Morality (1963)Google Scholar.
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10. Id. at 9.
11. Id. at 16.
12. Id. at 23.
13. Mitchell, , Law, Morality, and Religion in a Secular Society 108 (1967)Google Scholar.
14. Henkin, , Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391, 408 (1963)CrossRefGoogle Scholar.
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16. Id. at 114.
17. Law and Learning 139 (Report prepared for Soc. Sci. and Humanities Res. Council of Canada, 1983)Google Scholar.
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21. Professor Berman lays great emphasis on the four elements which law and religion have in common: ritual, tradition, authority and universality. “They provide the context in which in every society (though in some, of course, to a lesser extent than in others) legal rules are enunciated and from which they derive their legitimacy.” Tradition, “that is, language and practices handed down from the past… symbolize[s] the ongoingness of law.” Berman, supra note 3, at 31. “By thinking of law solely in terms of efficiency, we rob it of that very efficiency.” Id. at 25.
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27. MacMillan, supra note 25, at 65.
28. Id. at 68.
29. Hayes, , Eldership in Today's Church 7–8, 11 (1975)Google Scholar.
30. MacMillan, supra note 25, at 70.
31. Bowman v. Secular Society, [1917] A.C. 406, 464.
32. Schacht v. The Queen et al., [1973] 1 Ont. R. 221, 231.
33. Donoghue v. Stevenson, [1932] A.C. 562, 580.
34. Weinrib, , The Case for a Duty to Rescue, 90 Yale L.J. 247 (1980)CrossRefGoogle Scholar.
35. Berman, supra note 3, at 82.
36. Id. at 90.
37. Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1066, 1083–86 (1978)Google Scholar.
38. Donald et al. v. Hamilton Board of Education, [1945] O.R. 518 at 525, 528-29 and 531.
39. 380 U.S. 163 (1965).
40. Id. at 166.
41. Id. at 180.
42. Id. at 187 (emphasis in original).
43. Id. at 165-66.
44. Id. at 173-74.
45. Constitution Art, § 52(1) (Canada 1982).
46. Constitution Act, § 33 (Canada 1982).
47. Dicey, , Introduction to the Study of the Law of the Constitution 145 (10th ed. 1959)Google Scholar. For a neat summary of criticisms of Dicey's position see Tarnopolsky, , The Canadian Bill of Rights 92–112 (2d ed., revised 1975)Google Scholar.
48. This is based on the summary of St. Thomas Aquinas's writings in Friedmann, , Legal Theory 108–109 (5th ed. 1967)Google Scholar.
49. Bracton De Legibus et Consuetudinibus Angliae at 56.
50. Locke, , The Second Treatise of Government 77 (1690) (Bobbs-Merrill 1980)Google Scholar.
51. Blackstone, , I Commentaries on the Laws of England 41 (1765)Google Scholar.
52. Pollock, , The Expansion of Common Law 122 (1904)Google Scholar.
53. Chabot v. School Commissioners of Lamorandiere et al. (1957), 12 D.L.R. (2d) 796.
54. Id. at 802.
55. Re Meades (1871), I.R. 5 Eq. 98 at 103.
56. Chabot, , 12 D.L.R. (2d) 796 at 807Google Scholar.
57. Morden, , Natural Law and the Courts, 17 Faculty of Law Review 54, 56 (1959)Google Scholar.
58. A Canadian Charter of Human Rights 9 (1968)Google Scholar.
59. Final Report of the Special Joint Committee Of The Senate And Of The House Of Commons On The Constitution Of Canada 19 (1972)Google Scholar. On the subject generally, see Corwin, , The “Higher Law” Background of American Constitutional Law, 42 Harv. L. Rev. 149 (1928)CrossRefGoogle Scholar; and Corwin, , The Debt of American Constitutional Law to Natural Law Concepts, 25 Notre Dame Lawyer 258 (1949)Google Scholar.
60. Dworkin, , Taking Rights Seriously 110 (1977)Google Scholar.
61. Smart, , The Past, Present, and Future of Biblical Theology 105 (1979)Google Scholar. This point and its implications for formulating verbal communications (in law, legislative drafting) is well illustrated in the following passage from Lieber, , Legal and Political Hermeneutics 28–30 (1839)Google Scholar:
Suppose a housekeeper says to a domestic: ‘fetch some soupmeat,’ accompanying the act with giving some money to the latter, he will be unable to execute the order without interpretation, however easy, and, consequently, rapid the performance of the process may be. Common sense and good faith tell the domestic, that the housekeeper's meaning was this: 1. He should go immediately, or as soon as his other occupations are finished; or, if he be directed to do so in the evening, that he should go the next day at the usual hour; 2. that the money handed him by the housekeeper is intended to pay for the meat thus ordered, and not as a present to him; 3. that he should buy such meat and of such parts of the animal, as, to his knowledge, has commonly been used in the house he stays at, for making soups; 4. that he buy the best meat he can obtain, for a fair price; 5. that he go to that butcher who usually provides the family, with whom the domestic resides, with meat, or to some convenient stall, and not to any unnecessarily distant place; 6. that he return the rest of the money; 7. that he bring home the meat in good faith, neither adding any thing disagreeable or injurious; 8. that he fetch the meat for the use of the family and not for himself. Suppose, on the other hand, the housekeeper, afraid of being misunderstood, had mentioned these eight specifications, she would not have obtained her object, if it were to exclude all possibility of misunderstanding. For, the various specifications would have required new ones. Where would be the end? We are constrained, then, always, to leave a considerable part of our meaning to be found out by interpretation, which, in many cases must necessarily cause greater or less obscurity with regard to the exact meaning, which our words were intended to convey.
62. Hall, , Religion, Law and Ethics—A Call for Dialogue, 29 The Hastings L.J. 1266, 1266 (1978)Google Scholar.
63. Dias, , Law at the End of Its Tether, Cambridge L.J. 312–314 (1972B)Google Scholar.
64. For recent articles on the nature of the interpretive process which shed light on our understanding of both literary criticism and theory and statutory interpretation see Abraham, , Statutory Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair, 32 Rutgers L. Rev. 676 (1979)Google Scholar (“The defining issue … is the same for both disciplines: to what extent does the text have a determinate meaning, and to what extent is the reader free to interpret it as he chooses?’ Id. at 680); Levinson, , Law as Literature, 60 Tex. L. Rev. 373 (1982)Google Scholar; Graff, , ‘Keep Off the Grass,’ ‘Drop Dead,’ and Other Indeterminancies: A Response to Sanford Levinson, 60 Tex. L. Rev. 405 (1982)Google Scholar; Dworkin, , Law as Interpretation, 60 Tex. L. Rev. 527 (1982)Google Scholar; and Fish, , Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551 (1982)Google Scholar.
65. 277 H.L. Deb. Ser. 5, Col. 1294 (November 16, 1966).
66. Smart, J., The Interpretation of Scripture 10 (1961)Google Scholar.
67. Dickerson, , The Interpretation and Application of Statutes 219 (1975)Google Scholar.
68. Frankfurter, , Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 529 (1947)CrossRefGoogle Scholar.
69. Smart, supra note 61, at 98.
70. Id. at 100.
71. Dickerson, supra note 67, at 103.
72. Dellevene v. Percer (1841), 9 Dowl 245.
73. Hart, & Sacks, , The Legal Process 1157 (Tentative ed., 1958)Google Scholar.
74. Farmer, , The Bible: Its Significance and Authority, I The Interpreter's Bible 3, 5 (1952)Google Scholar. The issue is more complex than I have indicated with this quotation. The interpretation of a text to determine what it meant, not what it means, has been said not to require any particular belief. “This descriptive task [of biblical theology] can be carried out by believer and agnostic alike.” Stendahl, , Contemporary Biblical Theology, I The Interpreter's Dictionary of the Bible 418, 422 (1972)Google Scholar. See also the texts relating to footnotes 91 and 104 which are concerned with layers of meaning.
75. See Barker, J., The Superhistorians—Makers of Our Past 123–124 (1982)Google Scholar.
76. The New Dictionary of Thoughts 48 (1959)Google Scholar.
77. Cardozo, B., Law and Literature 1 (1931)Google Scholar.
78. Patterson, E., Jurisprudence 49 (1953)Google Scholar.
79. Coode, , Legislative Expression (2nd ed. 1982)Google Scholar. Also, words are generally used in scriptures for different purposes than they are in law. Consider this brief passage:
When we use words, we do not commonly pause to consider the purposes that underlie this piece of human Behavior, any more than we are conscious of the grammar of our native tongue. These purposes are many and complex, but they may all be classified under five heads. We use words: (1) to talk about people, things and ideas (Informative); (2) to think (Cognitive); (3) to do things and to get things done (Performative and Causative); (4) to display or elicit attitudes and feelings (Expressive and Evocative); and (5) to provide a means of communal solidarity (Cohesive).
Caird, G. B., The Language and Imagery of the Bible 1 (1980)Google Scholar. Words are used in law almost exclusively for the third purpose, to get things done. See Id. at 20-25. I would, however, not exclude the cohesive purposes of some laws, such as constitutional charters of rights. In scripture, words are used for all of the five purposes described by Caird.
80. In re Castioni, [1891] 1 Q.B. 149, 167-68. Quintillian expressed the same idea more succinctly: “One should not aim at being possible to understand, but at being impossible to misunderstand.” Quoted in Lucas, F. L., Style 54 (1964)Google Scholar.
81. See, Miller, , Statutory Language andthe Purposive Use of Ambiguity, 42 Va. L. Rev. 23 (1956)CrossRefGoogle Scholar.
82. The Bible: Its Significance and Authority, I The Interpreter's Bible 24 (1952)Google Scholar.
83. Even if reality could be captured in thought, language is incapable of completely and accurately conveying our thought. “If words are a necessary simplification of actual experience, then it follows that we can hardly expect to make manifest to others what is ‘really going on’ in our minds. We cannot say what we mean, precisely, nor can we feel secure in our understanding of what someone else means.” Gibson, , Literary Minds and Judicial Style, 36 N.Y.U.L. Rev. 920 (1961)Google Scholar. “We know that language itself is a selection and abstraction from unknowable flux; the world shades into gradations too fine for speech. A Jerome Bruner study shows that human eyes can distinguish among approximately twenty thousand colors. Yet English, a language rich in color terms, names only a few score of them; some languages name only three or four. Language, like other cognitive structures, is useful for some tasks and worthless for others.” Dillard, A., Living by Fiction 70 (1982)Google Scholar.
84. Potok, C., The Book of Lights 292 (1981)Google Scholar. Contrast, in the hard cold world of the law: “And whereas in poetry the images are thrilling, in the law the lack of clarity in language can be just plain irritating and extremely expensive.” Reform 8 (Australian Law Reform Commission 1983).
85. See Rad, G. von, Biblical Interpretations in Preaching 14 (1973)Google Scholar.
86. See R. v. Welsch and Iannuzzi (No. 6) 32 C.C.C. 363 (1977), where there was an issue with respect to the authentic text of a provision in the Criminal Code. Statutes of the federal Parliament are enacted in both French and English—and both versions are authentic. This can both create and solve problems of interpretation. See Official Languages Act, R.S.C. 1970, c. 0-2, s. 8; and Honsberger, , Bi-Lingualism in Canadian Statutes 43 Can. Bar Rev. 314 (1965)Google Scholar.
87. Pelikan, , Exegesis and Hermeneutics, 8 Encyclopedia Britannica 951 (1971)Google Scholar,
88. Amernic, , The Creation Debate, Quest 25 (1982)Google Scholar. For a recent defeat of creation science in the classroom see the U.S. District Court decision McLean et al. v. The Arkansas Board of Education, 529 F. Supp. 1255 (E.D. Ark. 1982).
89. Gray, J., The Nature and Sources of Law 102, 125 and 172 (2nd ed. rev'd 1972)Google Scholar (emphasis in original).
90. Dickerson, supra note 67, at 18. See, id. at 13-33 and 217-261. For a criticism of the division between cognition and creation see Abraham, , Three Fallacies of Interpretation: A Comment on Precedent and Judicial Decision, 23 Ariz. L. Rev. 775–779 (1981)Google Scholar. “Meaning is not the cause of agreement, but the product of it.” Id. at 777.
91. Barth, , The Epistle to the Romans IX (6th ed. 1928)Google Scholar.
92. Christensen, , C. S. Lewis on Scripture 16 (1979)Google Scholar.
93. Ellerman Lines v. Murray, [1931] A.C. 126. See Willis, , Statute Interpretation in a Nutshell, 16 Can. Bar. Rev. 2 (1938)Google Scholar.
94. Re Sigsworth, [1935] Ch. 89. The American counterpart to this case is the earlier and well-known case of Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 118 (1889) where the court held that a beneficiary under a will who had murdered the testator was not entitled to receive his inheritance. The decision has been commented on in the realm of general theories of interpretation. See Fish, , Is There a Text in This Class? 277–281 (1980)Google Scholar.
95. Sedgwick, , A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law 228 (2nd ed. 1874)Google Scholar.
96. Thayer, , A Preliminary Treatise on Evidence at the Common Law 314 (1898)Google Scholar.
97. Llewellyn, , Deciding Appeals—The Common Law Tradition 520–28 (1960)Google Scholar.
98. Shaw, G.B., Man and Superman 251 (1977)Google Scholar.
99. Brown v. Allen, 344 U.S. 443, 540 (1953).
100. Burnet v. Guggenheim, 288 U.S. 279, 280, 288 (1933).
101. Dworkin, , Taking Rights Seriously (1977)Google Scholar.
102. Cardozo, B., The Nature of the Judicial Process 83 (1921)Google Scholar.
103. A. G. of Quebec v. Blaikie et al. (1979), 101 D.L.R. (3d) 394.
104. Barth, K., The Epistle to the Romans 1 (6th ed. 1928)Google Scholar.
105. Smart, supra note 61, at 96. The issue as to whether the meaning of a text can change has been much discussed. Before any discussion can be useful great care has to be taken in understanding the sense of the words used in the discussion, such as “meaning,” and of the different kinds of issues that may be subsumed under the general question whether meaning can change. Can a piece of writing have a “life of its own”? It may be that G. B. Caird sums up a sensible general approach on this issue not only for scripture but also law: “My own choice, therefore, is to speak of the legitimate use of Scripture and not of finding new meanings in it.” Caird, supra note 79, at 59. In addition to Caird, see Lewis, C. S., Reflections of Psalms 84–115 (1981)Google Scholar, which is concerned with second meanings. “Apparently it is impossible for the wit of man to devise a narrative in which the wit of some other man cannot, and with some plausibility, find a hidden sense.” Id. at 84. See also Gibson, , Literary Minds and Judicial Style, 36 N.Y.U.L. Rev. 920–921 (1961)Google Scholar; Munzer, and Nickel, , Does the Constitution Mean What it Always Meant?Col. L.R. 1028 (1977)Google Scholar; Tarnopolsky, , The Historical and Constitutional Context of the Proposed Canadian Charter of Rights and Freedoms, 44 Law and Contemporary Problems 182–192 (1981)CrossRefGoogle Scholar (concerned with the “frozen concepts” principle); Fuller, , Anatomy of Law 59 (1968)Google Scholar; and Chaffee, , The Disorderly Conduct of Words, 41 Col. L. Rev. 398–404 (1941)Google Scholar. Chaffee concludes his article with a story about Robert Browning. “Toward the close of his life he received a letter from Professor Hiram Corson of Cornell, asking whether one of his early obscure poems meant what Corson supposed it did. Browning replied. ”I didn't mean that when I wrote it, but I mean it now.” Several important issues relating to meaning are discussed in the articles listed in note 63a, supra.
106. See, e.g., 10 The Interpreter's Bible 306. In a judgment concerned with the interpretation of the Canadian Charter of Rights and Freedoms, MacKinnon A.C.J.0. quoted from the passage in Corinthians in support of “a large and liberal construction” and prefaced the quotation with: “Although said in a very different connection, it is opposite here: …” Re Southam Inc. and The Queen (No. 1) (1983), 3 C.C.C. (3d) 515 at 524.
107. Legate, , Stephen Leacock 259 (1970)Google Scholar.