Recent events concerning Cardinal Pell and the former justice, Heydon, provide an opportunity to reflect on the role of two institutions – the church and the law – in contemporary society
Traditionally a role of each has been to enforce a morality, although the authority of the Church has been greatly weakened. The great majority of people have a sense of 'Right and Wrong' but an opposing force is self-interest, and whether one gives in to this depends on the circumstances. I could avoid declaring certain income on my tax return, but what would stop me would be the embarrassment of being found out. The abhorrent child abuse behind the pornography on the 'Dark Web" reveals how depraved some people can be if they believe they will not be found out.
The legal system has the capacity to act when some individual transgresses what 'society', or those members of it able to exert influence, take to be morally right. Some cases are clear – murder – but others – opposing gay sex – were for a long time a case of the majority opposing the rights of a minority.
However, the authoritarian structure of churches and courts can also act as a cover for what would be considered by most to be immoral behaviour. They are both human institutions, subject to human failings. In both, in order to give weight to their deliberations, a ritual or sense of theatre was created by using hierarchy, setting, costume and rituals. The danger was always that by acting 'in the place of God' they could come to see themselves as gods.
On October 17, 2017 the former Justice Heydon gave the inaugural P M Glyn Lecture on 'Religion, Law and Public Life' at the Australian Catholic University. This was reported in The Australian on November 4 under the heading "Attacks on Christianity strike at the protections enjoyed by today's society". According to Heydon, Patrick McMahon Glynn was the author of the words "humbly relying on the blessing of Almighty God" in the preamble to the Australian Constitution.
In his address Heydon attacked 'Modern elites [who] do not desire tolerance' and went on to say that since the turn away from Christianity:
In almost every way the past five or six decades have seen a massive decline in courtesy, civility and mutual respect. Seats are not given up to the pregnant, the elderly and the infirm on public transport, travellers are exposed to the private affairs of other travellers.
The attack by the older on a younger generation has been continuous since ancient times, and having a mobile phone conversation in public is hardly comparable to sexual harassment. Since the Justice referred to Christianity, it is worthwhile to quote the words of Jesus in Matthew 5: "You hypocrite! First take the plank out of your own eye, and then you will see clearly to take the speck out of your brothers."
Although at the time of writing, a case has not gone to court, an independent inquiry by Dr Vivienne Thom concluded that former Justice Dyson Heydon had sexually harassed six associates during his decade on the bench. In response, through his lawyers he made a statement that 'If any conduct of his has caused offence that result was inadvertent and unintended.' To be fair, we could take into consideration that such behaviour was common and the assumption was that it did women little harm. However the evidence from the women subjected to this was that it was a clear abuse of a position of power and damaging to their careers.
The judgement of a court is just that – a judgement based on the quality of evidence presented, the fairness of the process and eventually a judgement of the probability of an offence having actually been committed. A 'guilty" verdict is a judgement on whether a person has committed an offence and not proof that an offence has taken place, although it is often treated as such proof, especially by the media.
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