In his Monday evening address to the Law Society, the Chief Justice quoted from that most sacred script of satirical scripture, Monty Python and the Holy Grail.
King Arthur is admonished that “strange women lyin' in ponds distributin' swords is no basis for a system of government.” The quotation continues, “Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.”
What is a mandate from the masses?
In 1651 Hobbes described the state of man in nature as “solitary, poor, nasty, brutish and short”. For Hobbes there was a mandate from the masses or a social contract which established the sovereign authority which would protect man from his natural proclivities and enable his protection and growth under the rule of law. Hobbes did well to recognise that potential abuse of power was the price for stability and peace. Many of his own works remained censored and unpublished because his own religious views were denounced by officials as heretical.
Forty years later, Locke’s social contract saw civil authority as under natural law and inalienable rights to life, liberty and property. He assumed an underpinning moral code which could be derived by reasoned propositions and consequences “as incontestable as those in mathematics.”
For Rousseau, it was natural law which vested authority in the people. Rousseau rejected Hobbes’ premise that ungoverned man was naturally immoral. In his Social contract, he defined liberty as obedience to the community’s general will. Better that than obedience to a tyrannical few. Rousseau required that minorities be compelled to adhere to the will of the majority. They were to “be forced to be free.” No wonder he wrote of man being born free and yet everywhere in chains!
Tomorrow morning in every synagogue around the world we will be reading the portion of the Torah which tells of the revelation at Sinai. We read in Exodus chapters 19 and 20 of awesome thunder and spectacular lightning. A horn filled the air and smoke billowed from the top of the mountain.
What is it that distinguishes the authority of two tablets of stone given on top of old smoky-Sinai from King Arthur’s strange women lying in ponds distributing swords?
In the first instance, Maimonides emphasises the public nature of theophany. What happened at Sinai was not a private summit exchange between a hidden God and a distant Moses. The whole people heard the voice of God. We shall do, they said, and we shall listen.
Maimonides highlights this revelation as a distinguishing badge of Judaism. An entire nation, not a select prophet or the pious few received God’s defining instruction. Several times they proclaimed. “We shall do and we shall listen.” Therein is acceptance by the masses.
The Talmud’s lawyers raise an objection. The generation of the wilderness had just seen the miracles of the ten plagues, the parting of the waters, the drowning of the Egyptians and were entirely dependent on manna from heaven. One might argue that they were so overwhelmed by God’s influence that the Children of Israel would have agreed to anything. The Talmud addresses this question and determines that what the generation of the wilderness accepted under duress, was later accepted freely and with love by the generation of Mordechai and Esther in their spiritual renaissance after the exile to Babylon.
The Talmud wants to identify its mandate from the masses.
The social contract as a basis of government is also explicit when the people want a king and Samuel warns them that a king will seize their land, conscript their sons and take their daughters. Despite his substantial caveat, they choose to have a king to be like the other nations. In so doing, the Talmud establishes that they assent to royal authority, their diminished freedom and the potential abuse of their rights over their property – for the king will surely do his own thing and cannot be expected to always do the right thing by God’s law.
While prophets and priests will rail at the king when he defies the Almighty, his authority has been established by social contract and good civil order demands that the king’s laws are followed. From the fact that civil imperative is followed, de facto the Talmud determines the principle known as “Dina de-malchuta dina”. The rule of civil law in society prevails.
Our celebration of Law Term in the Great Synagogue highlights the Jewish world’s flexibility and compatibility. We honour our Torah for its virtues and its values which include the respect of our Australian government and its offices of state as well as its distinguished officers. We honour its laws as our laws. We ask that God both protect and guide our judiciary.
The centrality of rule of law to society is emphasised in God’s first covenant with humanity.
Our commentaries observe that after the Flood, God recognised that human nature was motivated by self-advantage rather than spiritual perfection. Nonetheless, in determining that there would be no further flood to destroy humanity, we are told that God gave human beings a license to live imperfect lives subject to seven moral precepts.
These Seven Laws of Noah’s children comprise six negatives and one positive. The negatives are prohibitions on idolatry, cursing God’s name, murder, sexual transgression, violation of property rights and eating the limb torn from a living animal. God does not endorse a society which can abide these six immoralities.
And what is the seventh and positive precept?
A society must establish courts.
A judiciary is essential. Rule of law underpins morality and good order in society. Aside from the Ten Commandments and the Torah’s six hundred and thirteen mitzvot; aside from God’s covenant with the Jewish world, we are taught that humanity depends on each nation establishing courts and applying its laws justly.
Though the Noachide code defines society’s lowest common denominator around the six negatives, avoiding base conduct, in the Torah, God exhorts a life of affirmative values. We are told to love our neighbour and to love the stranger. We are told to protect the widow and the orphan. We are required to have fair weights and measures, to protect the vulnerable from deceit and misrepresentation. We are required to instruct our families in ethical living; to judge with justice, to act with compassion and engender peace.
Dawkins vilifies the Old Testament God as “the most unpleasant character in all fiction: a petty, unjust, unforgiving control freak.” I acknowledge that the Bible’s narrative is gritty and complex, often calling for sophisticated understanding – much like the nuances of life itself. But it is the God of these scriptures who mandates fair wages and fair treatment, respect for the elders, impartiality in judgment. It is the God of these scriptures who seeks repentance, restitution and redemption and who stamps His Name on each of these tenets.
You shall not swear falsely, I am God…
You shall not curse the deaf nor put a stumbling block before the blind… I am God.
You shall honour the presence of a sage. I am God.
You shall love your neighbour as yourself. I am the Lord your God.
The text teaches that when we offend against any of our fellows, we disrespect his or her inherent spiritual worth as a child of God and a citizen of His world. The administration of society is a holy enterprise. Why? Not only because God has inspired us with His laws but because each citizen, each plaintiff, defendant, each litigant is one of His children.
In the meaning of Life the Monty Python crew ask “Is life just a game where we make up the rules while we're searching for something to say, or are we just simply spiraling coils of self-replicating DNA?” Are our brains, which are the product of millions of years of random fertilisations, trillions of cell fusions and divisions and billions of random genetic mutations evolving us from microbe to Michelangelo any better as a foundation for authority than strange women in ponds distributing swords? Or tablets of stone from the mountain?
Philo described natural law as “impressed by immortal nature on the immortal mind.” Justinian as “established by divine providence.” Hobbes said that to offend against it was “to live by another rule than that of reason and common equity.” One says instinctive, another divine and the third, derived.
Rabbinic literature engages in a similar debate. Are the great virtues of value because God has mandated them – “established by divine providence” as it were? Or can we depend on our mortal capacity to reason and our sense of decency, of common equity?
Writing almost a century ago, Rabbi Abraham Isaac Kook opined, “The fear of Heaven must not suppress man’s natural morality, for then the fear of Heaven is no longer pure. Pristine fear of Heaven is evident when the natural morality, rooted in man’s upright nature, is enhanced to a greater degree than it would be without such fear.”
For Rav Kook, we have an inherent capacity for good. There are clearly principles of natural justice and morality which are drawn from within. The suppression of these in slavish adherence to a God-given text debases the quality of any ensuing determination. Even the judge’s pristine fear of heaven becomes compromised when he turns off his humanity before the court!
To that end, we are enjoined to look beyond the letter of the law and to regard its purpose. We are trusted to bring our experience and our understanding of life to our decisions. The administration of justice is a partnership with God precisely because we bring the best of our human qualities into a divine enterprise.
Of this partnership, we are told in the Talmud that every judge who judges with truth brings God’s Presence into the world. We can say that he turns “solitary, poor, nasty, brutish and short” into community, enriched, compassionate, sacred and eternal.
Chief Justice, it is always our pleasure to welcome you and your judiciary into The Great Synagogue. May God bless you and your holy work. May He endow you all with wisdom and with insight. May the 2010 Law Term be a good one for the profession and for the community it serves; enriched, compassionate and blessed.