Law, morality and religion in the courts in England and Wales in the twenty-first century (original) (raw)

The relationship between law and society is inherently influenced by the nature of the society in which the law operates – it is a product of that society, whether we perceive law from a natural law, legal positivism or realist perspective. It is important to consider the attitude of the legal system to the dominant or prevailing cultural environment. In this context, any changes in this environmental background, such as changing demographics, can cause tensions between law and society. One example, of the many possible, is the changing attitude of the courts in England and Wales to religion. The law has a neutral view of religious belief, the President of the Family Division of the High Court of England and Wales, has said, in a keynote address to the first annual conference of the Law Society’s family law section, in 2014. On the theme “the sacred and the secular”, the Right Honourable Sir James Munby said that the courts and society as a whole face “enormous challenges” in today’s largely secular and religiously pluralistic society. In this context, Lord Justice Munby stressed the secular nature of the judges’ job. “We live in a society, which on many of the medical, social and religious topics that the courts recently have to grapple with, no longer speaks with one voice,” he said. “These are topics on which men and women of different faiths or no faith at all hold starkly different views. All of these views are entitled to the greatest respect, but it is not for a judge to choose between them,” he said. Although historically the country has an established Christian church, Munby insisted judges sit as “secular judges serving a multicultural community of many faiths sworn to do justice to all manner of people”. “We live in this country in a democratic and pluralist society in a secular state, not a theocracy,” he said, in which judges have long since “abandoned their pretensions to be the guardians of public morality”. This view of the relationship of law and religion is one which is open to challenge, at least in part. Indeed, it comes close to conflating the linked but distinct concepts of individual freedom of religion, separation of church and state, and the underlying Christian basis of much of the law in the United Kingdom and many other counties. This grows out of the undoubted rise of secularism, in a society which has now only nominally a Christian majority. This chapter will consider the role of religion in law. It commences with a brief comment on the rise of secularism and the absence of an underlining Grundnorm.