The courts are secular, says top family judge

Topics: Family and children,Courts business

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  • Sir James Munby

The law has a neutral view of religious belief, the president of the Family Division said today, stressing the secular nature of the judges’ job.

In a keynote address to the first annual conference of the Law Society’s family law section, on the theme ‘the sacred and the secular’, Sir James Munby (pictured) said that the courts and society as a whole face ‘enormous challenges’ in today’s largely secular and religiously pluralistic society.

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‘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’.

Religious belief is not the business of government or of the secular courts, although the courts will pay great respect to peoples’ religious principles, he said. The starting point of the common law, said Munby, is respect for the individual’s religious principles coupled with ‘an essentially neutral’ view of religious beliefs and a ‘malevolent tolerance’ of cultural and religious diversity.

He warned: ‘A secular judge must be wary of straying across the well-recognised divide between church and state.’ It is, he said, not for a judge to weigh one religion against another, stressing the court recognises no religious distinctions and generally speaking, passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society.

‘All are entitled to equal respect, so long as they are “legally and socially acceptable” and not “immoral or socially obnoxious” or “pernicious”,’ he said.

Strasbourg jurisprudence, he stressed, is to the same effect, forbidding the state to determine the validity of religious beliefs and imposing a duty of neutrality and impartiality.

Within the limits of the law, said Munby, our system will tolerate things which society as a whole may find undesirable.

For example, he said: ‘A child’s best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children.’

That said, reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law.

 However, Munby accepted that where precisely the limits are drawn is often a matter of controversy.

‘There is no “bright-line” test that the law can set. The infinite variety of the human condition precludes arbitrary definition.’ Some things, he stressed, are ‘beyond the pale’, including forced marriage, female genital mutilation and ‘so-called, if grotesquely misnamed honour-based domestic violence’.

He said there are some aspects of ‘mainstream religious belief’ that may fall foul of public policy. Munby cited a recent Court of Appeal case which held, on public policy grounds, that a marriage valid under both sharia law and the lex loci celebrationis , despite the manifest incapacity of one of the parties, was not entitled to recognition in English law.


In addition, he said, in cases regarding the religious upbringing of children, while the courts will have regard to the views of parents, they will be given effect by the court only if they are in accordance with the child’s best interests.

Munby said there are many examples of the working out of these principles in the family courts, for example in cases regarding blood transfusions for the children of Jehovah’s Witnesses and breakdown of parental relationships in situations where the parents have different religious beliefs or follow different religious observances.

Readers' comments (15)

  • The courts insist that witnesses giving evidence either affirm that they will tell the truth, or swear an oath upon a religious book, eg the Bible. Point 1. It is contrary to Christian law to swear an oath upon the Bible. Point 2. The courts may like to think they have us hoodwinked into believing they are secular, but religion plays a major part in the play within a court, especially when there is an almost 100% chance that the judge and either the lawyers on both sides or at least one is a Freemason. I hear cries of "Not this old chestnut about masons?" It is a fact supported by copious evidence that Freemasonry is a religion and masons are assiduous in their discrimination against non-masons. Perhaps we should have a trial by jury on the guilt of Freemasonry to discriminate against non-masons on the grounds of religion.

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  • to Anon at 05:49
    If you are going to be technical, there is no such thing as 'Christian law' (see eg: Romans 6:14, 1 Corinthians 9:20, Galatians 2:21) and the only 'rules' that apply to all Christians are those set out in Acts 15:28-29. I know that James 5:12 suggests that it is contrary to Christian principles to take an oath, but IMHO that is a misreading of the text by divorcing it from its context - see http://www.biblegateway.com/resources/ivp-nt/Do-Not-Swear

    The freemasonry issue is altogether different, and from my experience I simply do not believe that any judge who is a freemason would give a decision in favour of a fellow freemason simply because of the freemasonry connection. It is all very well to surmise otherwise, but without evidence it is simply surmise based on having pre-judged the issue (which, if you prefer straight talking, is prejudice). What does the judge do if, as you suggest is frequently the case, the lawyers on both sides are freemasons?
    I do not doubt that freemasonry is a religion (and one that IMHO is incompatible with being a Christian other than in a purely nominal sense), but why do you suppose that judges who are freemasons do not set that aside when judging and make their decisions on the evidence and the law, just like Christian, Muslim, Hindu etc judges?

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  • It is sad reflection that a senior member of the Judiciary thinks that his words will carry one speck of worth in the Community to whom, only, they were spoken. I have never encountered a member of our Judiciary who was in the least influenced by a religious interest nor in the professed religion of those appearing before them. I might have some difficulty in accepting a Legally-unqualified Sharia-dispensing Imam whom the MoJ has appointed in the interests of diversity and placating minorities.
    In fact, Lord Munby's words are not just sad but absurd or perhaps he is privy to complaints that may have a basis of fact, given the MoJ's central role in the appointment of minor Judicial appointments and it's prejudice against white, middle class ex-public school boys.

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  • Despite the alleged prejudice of the MoJ against white, middle class ex-public school boys, I don't see even the minor Judicial appointments crawling with women appointees of whatever colour, class or schooling.

    One of the possible benefits of having more women in influential positions in the law (and one that I have to say that I had not considered before) is that since women cannot become Freemasons, presumably they would not be biased for or against freemasons because they would not know who was and who was not a mason.

    Not that many women would, I think, even if it were open to them, wish to become masons anyway because to the uninitiated it carries the tang of immature exclusive cliquiness that most women would prefer to avoid.

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  • Anonymous at 5.49 pm it is hard to give credulity to you saying 'I hear cries of" etc when we don't know who 'I' is. If a view is worth expressing it is surely worth owning.

    I would add my own comment - not, I hope at odds with those of Chris Baker who, if I am correct speaks with some authority on matters religious - which is that, however much Munby thinks the courts are not religious they do owe a lot to Christianity, particularly the law of equity which was itself based in the notion of conscience as understood by Christians in the early middle ages.

    We may now see things differently but there's no escaping our heritage. Rather than trying to ignore it we ought to be adapting it to the world in which we live. A man I respect deeply once told me that, although he had no belief in any kind of God or afterlife he believed that, as a template for leading a good and decent life the teachings of Jesus Christ were as good as any and better than most. Having now arrived at the same place as him I entirely agree.

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  • In both the Old and New Testaments, oaths were regarded as an acceptable part of life. The taking of oaths was common in New Testament times. Cynics and cheats would seek to circumvent their oath by framing a non-binding oath as for Jews, God only became an active party in an oath if his name was used. The essence of New Testament teaching is not to outlaw the use of oaths, but to deplore human weakness which inclines not to tell the truth. Two New Testament deal with oaths:
    Again, you have heard that it was said to those of ancient times, ‘You shall not swear falsely, but carry out the vows you have made to the Lord.’ But I say to you, Do not swear at all, either by heaven, for it is the throne of God, or by the earth, for it is his footstool, or by Jerusalem, for it is the city of the great King. And do not swear by your head, for you cannot make one hair white or black. Let your word be ‘Yes, Yes’ or ‘No, No’; anything more than this comes from the evil one. Matthew 5.33-37
    Above all, my beloved, do not swear, either by heaven or by earth or by any other oath, but let your “Yes” be yes and your “No” be no, so that you may not fall under condemnation. The Letter of James 5.12
    When James says, “Do not swear” he is not dealing with the use of bad language! He is saying that when you give your word it ought to be a matter of integrity of character rather than a form of words which binds you to keep your word. The extract from Matthew is from Jesus’ teaching in the Sermon on the Mount. Most scholars agree that neither Matthew nor James knows the other and that the version of James is probably more original.
    Article 39 of the Articles of Religion of the Church of England confirms that oaths are permitted, although rash swearing is forbidden.

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  • "the MoJ's central role in the appointment of minor Judicial appointments and it's prejudice against white, middle class ex-public school boys" ? I think the word 'prejudice' is being stretched about as far as it can go before it changes its identity and becomes 'entrenched privilege', instead.

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  • The squabbling on here about Christianity's position on oaths is a perfect example of why the courts must be secular. If Christians can't agree on their own dogma, how can the courts be expected to accommodate their beliefs, let alone those of Muslims, Hindus, Pagans, Jews, Jains, Zoroastrians, Animists, etc? Yes, our judicial system started out being heavily based on Christian thinking. Happily, that has changed, which is why women can voice their opinions in public, we no longer have slavery and, slowly, we are dismantling discrimination against homosexuals. I call that a good thing and one that could only happen by the courts adopting a secular, some may say sensible, approach.

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  • This series of commentary seems to have encouraged a whole number of conspiracy theorists and religious pharisees who enjoy dancing in the head of a pin. I thought the speech a good description of where the law is and in my view should be. Give the poor man a break!

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  • "A man I respect deeply once told me that, although he had no belief in any kind of God or afterlife he believed that, as a template for leading a good and decent life the teachings of Jesus Christ were as good as any and better than most."

    Yes, but I expect your friend, and you, are talking about the aspects of Christ's teachings which liberal Christians concentrate on and not the ones which now look anachronistic. Granted, turning the other cheek would save a lot of court time in dealing with PI claims, but it's no rock on which to construct the the law. If you'll forgive the clumsy metaphor. Loving thine neighbour as thyself is a lovely concept, but what if your neighbour knocks down the party wall and plays loud music through the hole?

    People must be free to live their lives according to whatever code works for them, provided that doesn't interfere with anyone else's life. The law, however, must find a path which respects everyone's code, wherever possible and appropriate, and which facilitates the smooth running of society. Basing the law on religious principles, many of which make absolutely no sense at all to people who do not adhere to that faith, cannot work and inevitably favours one section of society over the rest.

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