Michael Clancy, O.B.E. – 'Give to Caesar what Really Belongs to Caesar'

Michael Clancy is a Solicitor
Seminar held in Glasgow
Thursday 4 October 2007                                                                  

This talk will aim to raise some questions about the relationship between the concept of the Rule of Law, its importance as a constitutional principle and natural law theory.

After examining the relationship between these concepts, it will consider recent trends in Government and Parliament which touch on issues of conscience, and discuss what room there is for politics, law and faith to co-exist peacefully.

The Rule of Law

Lord Goldsmith QC, the former UK Attorney-General in the LSE Law Department and Clifford Chance Lecture series on the Rule of Law organised in conjunction with ‘Justice’, given in February 2006, discussed the Rule of Law in terms of a juristic construct which seeks to provide a framework for the actions of Government, the statement of a Society’s values and is assumed to be of universal application. It is concerned with the creation and continuation of the system of Government in a state which regulates the rights and obligations and fundamental freedoms of the citizen and the capacity and method of the sovereign to rule. The idea of the Rule of Law as a fundamental constitutional principle is that it is of universal application and that citizens, politicians, judges, associations, organs of the state and even international bodies are bound to adhere to the Rule of Law.   Lord Denning in Gouriet v the Union of Post Office Workers [1977] 1 All ER 696 stated ‘be you never so high the law is above you’.   This is as good a summary of the universal application of the Rule of Law as one can find.

Early in this century, the Constitutional Reform Act 2004 is careful to provide that its provisions do not adversely affect the principle or the role of the Lord Chancellor in relation to the principle.

It is clear that the Rule of Law is closely linked to certain principles or values which Society respects and which eighteenth and nineteenth century philosophers spent a great deal of time trying to set out.  

The doctrine is bound up with democratic systems and a philosophy of limited Government and Parliamentary sovereignty. The Rule of Law can be found in absolutist systems of government but respect for it is most usually found in democratic states. Indeed, as events have shown in Burma over the last couple of weeks, there is perhaps a clearer need for the Rule of Law to be applied where democratic engagement is limited or suppressed. Another recent example of its application was the restoration to the judiciary of the Pakistan Chief Justice, Iftihar Chaudry, following his dismissal by President Musharraf.  

The Rule of Law is a characteristically positivistic doctrine which was only one of the routes to combat absolutist rule the other was that of the Rights of Man.

The movement to express the rights of man deriving from Thomas Paine, the American Revolution and the French Revolution finds some of its modern expression in instruments of international law, such as the European Convention on Human Rights and the UN Charter of Human Rights.

These documents created in the aftermath of the Second World War have resonating effects now.  In tandem with that other major post-war creation, the European Union, the enumeration of human rights sets out those major rights which the law seeks to protect. Inevitably, there must be some balancing of these rights that leads to fine judgements, some might say relativistic judgements. The concept of absolute rights is difficult for commentators, politicians, lawyers and citizens to articulate. These rights are essentially positive law statements, although they may have their origin in trying to express a sense of ‘morality’.

But in today’s positivistic world, law is understood in essentially political terms as Joseph Ratzinger noted in his book Values in a Time of Upheaval – ‘law is whatever the competent orders of the state posit as law’. Democracy according to Ratzinger, therefore, is not defined in terms of its contents, but in a purely functional manner, as a complex of rules that enable the construction of a majority, transfer of power, and change of government.  Democracy consists essentially in the mechanisms of election and voting.

The United Kingdom presents itself as a constitutional monarchy based on the sovereignty of the Queen in Parliament.

A.V. Dicey in his Law of the Constitution first published in 1888 and still referred to with reverence by constitutional lawyers, makes it clear that the doctrine of Parliamentary sovereignty imports that Parliament can make whatever law it likes or unmake whatever law it likes and that the courts are bound to follow that law.

One corollary of this positivistic attitude is that the courts cannot overturn the duly promulgated laws of the UK Parliament except in specific circumstances, for example when a law is in contravention of European Union Law.

Of course, the position of devolved parliaments is different, but curiously supportive of the positivistic concept. The Scotland Act 1998 enshrines Westminster’s sovereignty in Section 28(7) which proclaims that this Section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

The Scottish Parliament must operate within its legislative competence which Section 29 lays down. In this Section an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2) provides that a provision is outside that competence so far as any of the following paragraphs apply:-

It would form part of the law of a country or territory other than Scotland or confer or remove functions exercisable otherwise than in or as regards Scotland;

  • it relates to reserved matters;
  • it is in breach of the restrictions in Schedule 4;
  • it is incompatible with any of the convention rights or with community law; and
  • it would remove the Lord Advocate from her position as Head of the Systems of Criminal Prosecution and Investigation of Deaths in Scotland.

Acts which are within the legislative competence are lawful; acts outside the legislative competence of the Scottish Parliament can be attacked and struck down by the courts.  But legislative competence is not exactly the same as a moral standard by which positive law may be judged. That is the role of natural law.

The Natural Law

Doctrines of natural law have manifested themselves in various ways in the realms of ethics, law and politics, reaching back to Greek civilisation. The use of the phrase ‘natural law’ is frequently bandied about but rarely do its users try to define it – as I discovered when writing this piece, that is a completely understandable position. 

Medieval and modern notions of natural law, we are told by Lord Lloyd of Hampstead in his Introduction to Jurisprudence, have little in common, but what is ‘constant is the assertion that there are principles of natural law’, which are objective moral principles dependant upon the nature of the universe and which can be discovered by reason. These are the principles that constitute the natural law. This is valid of necessity because the rules governing correct human conduct are logically connected with the immanent truths concerning human nature. 

In Lord Lloyd’s opinion, natural law is a rational foundation for moral judgement and natural lawyers accept that natural law principles do not always have the effect that they would like them to have.  Natural lawyers, whether Thomist, Grotian or more modern exponents such as Fuller or Rawls would argue that the principles of natural law remain true, even if they are , in Lloyd’s words, ignored, misunderstood, abused in practice or defied in practical thinking.

Theologians argue that positive law presupposes a natural law which already exists in the hearts of men and women, discernible by reason and vindicated by guilt when it is denied or contravened. It follows, therefore, that for people of faith, respect is due to law-givers and law administrators but must be merited by the respect which those same law-givers and administrators have for truth and for the wisdom which has been handed down, secured by revelation and tempered by experience.

There have been some recent conflicts between the church and state, not only in Scotland, but also at UK level which have thrown these considerations into sharp relief.

The Family Law (Scotland) Act 2006 reformed the law of divorce and gave cohabiting persons some protected rights.

The Civil Partnership Act 2004 made provision for same-sex partners to register their civil partnerships and as a consequence enjoy a number of property rights.

The Gender Recognition Act 2004 also allowed persons to choose to be male or female irrespective of their sex.

The Adoption and Children (Scotland) Act 2007 and the Children and Adoption Act 2006 resulted in contentious argument in both the Scottish and UK Parliaments about the purpose of the institution of adoption and who may adopt, and the Sexual Orientation Regulations under the Equality Act 2006 caused bitter recrimination in Parliament and substantial harm to church/state relations.

The Role of Law-makers

Politicians and law-makers may have laudable aims as their objectives. For example, a number of the pieces of legislation to which I have referred earlier, have as their wellspring a desire to abolish discrimination in our society and extend social inclusion. The difficulty is that making law which touches on matters of faith may have an adverse impact on some, perhaps a substantial number of, citizens. Most specifically this impact manifests itself in relation to the practical denial of the right, some would say duty, of citizens to act according to their conscience in matters which go beyond opinion and ideology to touch, in the words of Archbishop Conti, ‘the very grounds of moral truth’. 

Moral truth was an issue with which St. Thomas More was well acquainted. In the Apostolic Letter issued by John Paul II on 31 October 2000, he stated that ‘the life and martyrdom of Saint Thomas More have been the source of a message which spans the centuries and which speaks to people everywhere of the inalienable dignity of the human conscience which, as the Second Vatican Council reminds us is “the most intimate centre and sanctuary of a person, in which he or she is alone with God, whose voice echoes within them” (Gaudium et Spes, 16)’.

St. Thomas More became Speaker of the House of Commons in 1523 and was appointed the first non-clerical Lord Chancellor in 1529. This was an extremely difficult political period as England was experiencing the so-called ‘Reformation Parliament’ which abolished papal authority, established royal supremacy and created the King Supreme Governor of the Church of England. Thomas kept to his principles and concentrated on promoting justice and restraining the more harmful influences of the more radical reformers. In 1532, not supporting Henry VIII’s intention to control the Church, he resigned. He refused to attend Anne Boleyn’s Coronation and resigning himself to a private life of poverty with his family.

Given his resolution to reject any compromise with his own conscience, in 1534 Henry VIII had him lodged in the Tower of London. Thomas More did not allow himself to waver and he refused to take the oath requested of him, since that would have involved accepting a political and ecclesiastical arrangement that prepared the way for uncontrolled despotism. At his trial, he defended strongly his belief in the indissolubility of marriage, and the freedom of the Church in her relations with the state. Condemned by the court, he was beheaded on 6 July 1535.

St. Thomas was no stranger to the problems which the distinction between positive law and natural law illuminate. In his Utopia (1516), the people of that land,

    Have but few laws and such is their constitution that they need not many.  They very much condemn other nations whose laws, together with the commentaries on them swell up to so many volumes; for they think it an unreasonable thing to oblige men to obey a body of laws that are both of such bulk and so dark as not to be read and understood by every one of the subjects. They have no lawyers among them for they consider them as a sort of people whose profession it is to disguise matters and to wrest the laws and therefore they think it much better that every man should plead his own cause and trust it to the judge as in other places the client trusts it to a councillor... and they argue thus: all laws are promulgated for this end that every man may know his duty; and therefore the plainest and most obvious sense of the words is that which ought to be put upon them since a more refined exposition cannot be easily comprehended and would only serve to make the laws become useless to the greater part of mankind, and especially to those who need most the direction of them... and it is certain that when public judicatories are swayed, either by avarice or partial affections, there must follow a dissolution of justice, the chief sinew of society.

St. Thomas was well aware of what he was doing because he had identified what it was necessary to render to Caesar and what it was necessary to render to God. 

The Christian Interest

Look at that passage in Matthew 22, 17-22 where there is an exchange between the Pharisees, the Herodians and Christ: ‘Tell us therefore what do you think. Is it lawful to give tribute to Caesar or not?   But Jesus perceived their wickedness and said “Why do you tempt me, you hypocrites?”.

“Show me the tribute money” and they brought to him a denarius. And he said to them “Whose is this image and superscription” and they replied “Caesar’s”. Then he said to them “Render therefore to Caesar the things which are Caesar’s and to God the things that are God’s”.’

In Christ’s day, government was occupied with only a relatively few things. In Judea, the Roman administration dealt with peacekeeping, compliance with imperial laws and certain forms of taxation whereas the Jewish authorities operating through the local kings and the temple authorities dealt with Jewish law and religious practice.  

The difference between state administration then and now could not be more marked. The Welfare State has brought Caesar into education, health and social policy. Caesar is not limited to defence or the administration of justice but is involved in every facet of our lives. The question is: How do we identify precisely what is Caesar’s so that Caesar can get his due?  

Are there areas which are ‘off-limits’ to Caesar?

That truly is an issue for public discourse.

Archbishop Rowan Williams put it succinctly in his Wilberforce Lecture ‘Freedom and Slavery’ in April this year (2007). He said:

    But if the state enacts or perpetuates in the corporate life of the nation what is directly contrary to the Christian understanding of God’s purpose for humanity – if it endorses slavery for example the Christian is bound to protest and to argue in the public sphere for change, through whatever channels are available. This is something that implicates every citizen, irrespective of their personal choices. There is a difference between matters of personal choice and matters which, because they help to determine the economy of the whole society, involve everyone who benefits from that economy. So Christian activism in respect of changing the law is justified primarily when the state is responsible for – so to speak – compromising the morality of all its citizens. In such a situation, the state is in effect limiting the freedom of its own citizens by involving them in the consequence of morally questionable actions.

    This is not to sanction any manipulation or sidelining of agreed political process. In this context, to protest and argue for change is to recognise that the state’s processes are open to persuasion, one way or another as the political argument develops. But it is also implicitly to accept that, for the sake of common public order, the legality of what the state decides is normally (if not invariably) to be accepted, even if its morality is still challenged.

Archbishop Williams then went on to examine the twenty-first century environment. He said:

    There are circumstances where the state creates or recognises a right to certain personal choices, which may be regarded as wrong by some or virtually all Christians. This was once the case with divorce, though the majority of British Christians now have little problem with this. It applies strongly in the case of the abortion laws for many; and is the subject of some very tangled argument in the context of the Sexual Orientation Regulations, where we not only have the difficulty of working out the precise level of legal restriction that may bear upon dissenting individuals but are also faced with sharp disagreement within Christian communities as to the proper response to the needs and requests of sexual minorities. But all of these have in common a focus on the personal choices of individuals. Some Christians may deeply deplore the effect upon society in general of the granting of these rights to choose, but you could not easily claim that the Christian who objects is morally compromised by the choices of others, particularly when the law allows for conscientious exceptions.

Archbishop Williams believes that William Wilberforce was campaigning for a moral state. In other words, a state that does not compromise its citizens and that recognises its own accountability to considerations wider than those of immediate profit and security.   Fundamentally, in a democracy, it is the making of the law that is the crucial point and that is why the address by John Paul II at the Jubilee of Government Leaders, Members of Parliament and Politicians, on 4 November 2000 is an important document of which all politicians, irrespective of political persuasion or religious or non-religious conviction, should be aware .

John Paul II spoke in a particular way to those who have the ‘very delicate task of formulating and approving laws’. He identified that the eternal law provides a validity and obligatory force of every other law. This is precisely the meaning of the statement that ‘positive law cannot contradict the natural law’, the latter being nothing other than ‘the expression of the primary and essential norms regulating the moral life and consequently the characteristics, the most profound requirements and the loftiest values of the human person’. 

As he said in the Encyclical Letter Evangelium Vitae, the basis of these values cannot be provisional and changeable ‘majority’ opinions but only the acknowledgement of an objective moral law which, as the ‘natural law’ to which all humans have access ‘is the obligatory point of reference for civil law itself’. In identifying the types of laws which are not in harmony with the divine plan, the late Pope clearly told Christian legislators that they may neither contribute to the formulation of such a law nor approve it in the Parliamentary assembly though it is permissible for them to ‘propose amendments which would diminish its adverse affects’.

In today’s pluralistic society, Christian law-makers are confronted by ways of life, proposals for law and legal change which frequently may be contrary to their own conscience. Christian prudence, the virtue proper to Christian politicians, will make it clear to them how they should act so as not to fall short on the one hand of the demands of the correctly formed conscience and not to fail in their duty as legislators.  

The question is, how best can the faithful and their elective representatives bear witness to their faith, and be faithful to their principles in the difficult and every changing situations which mark the world of politics.

Firstly, by recognising that concepts such as natural law have vigour and can be employed in argument.

Secondly, by recognising that the political process is a continuous and evolving one.

Thirdly, by developing lines of thought which clearly define the area which is the proper province of Government upon which to legislate and clearly define the area which is not the province of Government. 

This is essentially an issue of personal freedom – sovereignty if you will; the sovereignty of the individual and how that interacts with the competence of government and legislation. In theological terms, this freedom or sovereignty might be the same as ‘conscience’.

That being so, the range of challenges which the twenty-first century presents will focus on the interface between government and conscience.  

Issues of the environment affect everyone and their solutions come down to individual life choices.

Moral questions about euthanasia, abortion, fertility and the reading and manipulation of the genome also affect everyone and come down to reactions of individuals to these issues.

The individuals concerned, i.e., the Earth’s population, will only make the necessary decisions if they are given accurate, unbiased information upon which to inform their consciences and with which to apply their reason to the natural law which we have discussed this evening. Then the process of influencing Government can begin.

In that way, we will all be able to give to Caesar what really belongs to him. 

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