Should the Courts “do God”?

At the start of October 2013, the Mail on Sunday carried a report that the Magistrates’ Association were to debate doing away with the traditional practice of witnesses swearing on the Bible. According to the paper, it was Ian Abrahams, a Bristol magistrate and atheist – though raised a Jew – who had proposed looking at the issue. He told them, “More and more I see people shrug their shoulders or say ‘whatever’ when asked to take it.” The newspaper elicited this response from the Rt Rev Michael Nazir-Ali, former Bishop of Rochester, “This could be the slippery slope towards the increasing secularisation of society. Where will it end – with the Coronation Oath?” When the Magistrate’s Association met towards the end of October they turned down the proposal on a show of hands. However, reaction to it does raise two questions. What is the basis of this practice and is it something which Christians should seek to preserve? To put it another way, was Bishop Nazir-Ali right, wrong or both right and wrong in his comments?

Certainly he was right to say that this was another move towards the secularisation of society, but perhaps he has not noticed that this process has been steaming ahead with little restraint for many decades now. In fact the snowball of secularism has grown so large and gathered such momentum that it is now unstoppable. Christians in Britain (and other Western countries) are today witnessing the fruit ripening on a tree which should have been cut down at least half a century ago! Instead of resisting the early moves towards secularisation, most Christians rolled over in the name of tolerance and played dead. It has only been in the last few years when we realised what ‘tolerance’ actually delivers, that most have begun to object to the way the nation is going. The horse galloped out of the stable a long time ago but many, like Bishop Nazir-Ali, are mistakenly thinking that we can still return the horse and bolt the door. The successful passage of David Cameron’s Same Sex Marriage Bill provided Biblical confirmation that it is now too late to check the advance of secularism in Britain. (See my article “The Question Christians are not Asking” for more on this.)

However, a proposal like this raises another important issue for Christians. What is the Biblical view of religious oaths? In the Sermon on the Mount, Jesus Christ gave very clear instructions on the making of oaths. Matt. 5:33-37 reads:

Again you have heard that it was said to those of old, ‘You shall not swear falsely, but shall perform your oaths to the Lord.’ But I say to you, do not swear at all: neither by heaven, for it is God’s throne; nor by the earth, for it is His footstool; nor by Jerusalem, for it is the city of the great King. Nor shall you swear by your head, because you cannot make one hair white or black. But let your ‘Yes’ be ‘Yes,’ and your ‘No,’ ‘No.’ For whatever is more than these is from the evil one.

His teaching was clearly at odds with the Law and Jewish tradition, both of which sanctioned oaths. Jesus was adamant that we should not be drawn into anything more than saying ‘Yes’ or ‘No’ when we are asked to promise something. Whilst He did not refer specifically to using the Scriptures in making oaths, it is impossible to argue for an exception from His basic teaching which would allow people to do this. There is an even more serious issue though. In forbidding His followers from making oaths, Jesus gave examples of swearing by things which belong to His Father as well as by things we cannot change. The oath taken in British courts goes beyond the things listed by Jesus. In case anyone has forgotten, the Christian/Jewish oath taken in British courts begins with the words, “I swear by almighty God...” If Jesus forbid swearing by things which belonged to the Father, is it possible to imagine that He would approve swearing by the Godhead as a whole?

Where then did the practice of swearing by God and on the Bible come from? Promises to be faithful and true go back a long way. Abraham is the first person in the Bible recorded as swearing a promise. This is in Gen. 21, where Abimelech the king of Gerar, to whom Abraham had lied about Sarah being just his half-sister and not his wife, said to him, “Now therefore, swear to me by God that you will not deal falsely with me, with my offspring, or with my posterity; but that according to the kindness that I have done to you, you will do to me and to the land in which you have dwelt.” To this Abraham replied, “I will swear.” Not long afterwards he asked his servant to “swear by the LORD, the God of heaven, and the God of the earth” (Gen. 24). In Leviticus 19:12 God commanded Israel, “And you shall not swear by My name falsely, nor shall you profane the name of your God: I am the LORD.”

There is then a Biblical precedent for swearing oaths, but Jesus sought to train His disciples in a better way than the Law. His teaching points to higher standards in relationships, sexual morality, justice and dealings with enemies as well as taking oaths. In all of these instances Jesus showed that what His Father really looks for from us is something far more radical than the Law called for. We cannot therefore justify a practice simply because it was done in the Old Testament.

It is difficult to discover when this practice was adopted by the British courts. It seems to have begun as a way of frightening witnesses into telling the truth – to literally put the fear of God into them! The practice seemed to have been unchallenged until after the Reformation. When the early Quakers refused to swear the oath of allegiance to Charles II because of Christ’s teaching, they were fined. Following the ascension of Protestants William and Mary to the throne, moves began to change the law and in 1695 Quakers were for the first time permitted to affirm rather than to take an oath. These events should remind us that it was those who feared The LORD who initiated a move away from the superstitious practice of swearing on the Bible. The freedom to affirm rather than swear on the Bible is something I have been grateful for when I have been a witness in court and when I served more recently as a juror. It is interesting to note that it is still possible for Quakers (and Moravians) to take a different oath in court. According to the askthefamilylawyer website, as well as the non-religious affirmation there are also alternative oaths for Jews (who use just the Jewish Bible), Muslims (Qur’an), Hindus (Gita) and Sikhs (Adi Granth).

This diversity aimed at accommodating non-Christians did not begin with the increase in immigration over the last century or so. It was the growth of colonialism which first raised questions about whether non-Christians could or could not be considered as competent witnesses in court. In 1839 the Legislative Council of New South Wales in Australia passed a statute allowing Aboriginal natives of the territory to be allowed to make an affirmation. However, the Crown refused to approve the statute on the advice of the British Law Officers. The then Attorney-General and Solicitor-General advised that “to admit in a criminal case the evidence of a witness acknowledged to be ignorant of the existence of a God or a future state would be contrary to the principles of British jurisprudence.” It was a further four years before the British Parliament authorised the legislatures of British colonies to enable unsworn evidence to be given. The Colonies Evidence Act 1843 declared “Whereas there are resident within the Limits of or in Countries adjacent to divers of the British Colonies and Plantations abroad various Tribes of barbarous and uncivilized People, who, being destitute of the Knowledge of God and of any religious Belief, are incapable of giving Evidence on Oath in any Court of Justice within such Colonies or Plantations: And whereas doubts have arisen whether any laws which have been or which might be made by the Legislatures of such Colonies respectively to provide for the Admissibility in such Courts of the Evidence of such Persons are not or would not be repugnant to the Law of England, and therefore null and void; and it is expedient that such doubts should be removed:” [source]. The change to allow non-Christians to testify in colonial courts was surely a necessary one, as the earlier attitude of the British Empire to its non-Christian subjects was anything but Christian.

It is important to recognise that the religion practised for many centuries by the British state has never been a true reflection of the discipleship of faith to which Jesus Christ taught His followers to commit themselves. Commonly it has been little more than a tool in the hands of political power-brokers used to maintain their control over the masses. Many of the European Christian martyrs of the Reformation and afterwards lost their lives seeking freedom for themselves and others from such abuse of the gospel of Christ. They simply sought to be able to live and teach in accordance with their understanding of the Scriptures rather than the dictates of the civil and Church authorities. It was a just change to the law which allowed those who had a conscientious objection to swearing a specifically religious oath because of the teaching of Jesus to affirm in court. It was unjust to deny any human being the ability to testify in court simply because they were not nominally Christian, for The LORD has made all men and women in His image. That such changes were necessary in order to respect other people reminds us that the traditions of men are rarely the ways of God. Jesus warned His followers that in His kingdom leaders should be servants rather than lords (Mk. 10:42-45), but this is a teaching which goes against fallen human nature so it has rarely been practised by the ‘Christian’ kings and bishops of history.

Whilst society will do well to rid itself of traditions like swearing on the Bible which have a form of godliness but deny its real power, Christians in Britain should also recognise that today we are living in a society which God has given up to its own desires (Rom. 1). We will therefore continue to witness increasing efforts to erase from society anything which pays lip-service to the God of the Bible. The embracing of homosexuality as a valid lifestyle in law is actually nothing more than one of many attempts to remove The LORD’s landmarks from society. When faced with such attempts Christians need the wisdom which comes from above so we know how best to respond. First, like the men of the tribe of Issachar (1 Chron. 12:32) we need to be those who understand what The LORD is doing today, so that we know what He would have us do. Secondly, we need to discern between those things which are truly Christian and therefore for the good of all, and those which, because they are only superficially Christian, actually work against the gospel. It is probable that rather than being simply a slippery slope towards secularisation, some of these changes are a work which The LORD is doing in order to remove the pretence of Christianity from our society. Without question He has no pleasure in seeing His name taken in vain on a daily basis by the many who swear on the Bible in court and then knowingly fail to tell the truth, the whole truth and nothing but the truth! If they are His work, then our prayers and protests will not stop these changes. It is possible that the Same Sex Marriage bill went through as easily as it did because The LORD wanted to make clear to His people that He really has given the people of Britain up to their desires.

However, this charge into secularism will prove a serious challenge to Christians. Whilst issues will crop up for them in many different areas of life, another report in the Daily Mail published on 30 October concerning the courts provides a useful example. The article (here) reflects a report published the previous day on The Law Society Gazette’s website under the title, “The courts are secular, says top family judge”. Both reports cited the keynote address to the inaugural annual conference of the Law Society’s family law section by Sir James Munby, president of the Family Division. His speech had the theme ‘the sacred and the secular’, and in it he acknowledged that the courts and society as a whole face ‘enormous challenges’ in today’s largely secular and religiously pluralistic society. His conclusion was that ‘happily’ judges no longer had a role in enforcing morality, unlike they once did. He added, “Once upon a time, the perceived function of the judges was to promote virtue and discourage vice and immorality, I doubt one would now hear that from the judicial bench. Today, surely, the judicial task is to assess matters by the standards of reasonable men and women in 2013 – not by the standards of their parents in 1970.” Now there is much one could debate about the foundation of truth, righteousness and justice in those few sentences from his speech alone, but that is not my purpose here. However I would encourage you to read both reports in full.

The most worrying trend he expresses, and he is doing nothing more than reflecting what most establishment figures think, is the recognition that there is no longer an absolute standard for right and wrong and therefore for justice. Instead, the standard is now that of the majority in society at any given time, “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.” [emphasis mine] This alternative basis for law, welfare and morality is far more of a concern than any suggestion of dropping religious oaths from the witness box. It has already begun to move western societies to the place where they are emulating the words of Isaiah 5:20 “Woe to those who call evil good, and good evil; Who put darkness for light, and light for darkness; Who put bitter for sweet, and sweet for bitter!” I mentioned above that society is seeking to erase from its conscience anything which acknowledges the God of the Bible. Because of this Christians are now finding themselves at odds with the legal system. Following the loss of the old Christian veneer from society we are experiencing new laws, and new interpretation of old ones, saying that which was legal (good) a few decades ago is now illegal (evil) and vice versa.

Lord Justice Mumby’s speech was not the first sign he had given of this process. Organisations like the Christian Institute and Christian Concern have been highlighting for some time now that legal decisions are increasingly going against Christians, with the courts ruling that their convictions are no longer relevant to the law. One example of this was the case of Owen and Eunice Johns who appealed to the High Court over the decision of Derby City Council not to allow them to become foster parents because of their traditional views. Specifically, they were unwilling to tell a child that a homosexual lifestyle was acceptable. (BBC report) The judges who heard the case were Lord Justice Munby and Mr Justice Beatson, and on 28 Feb. 2011 they ruled against the Johns, stating that laws protecting people from discrimination because of their sexual orientation should take precedence over the right not to be discriminated against on religious grounds. That ruling established an important precedent in case law which many Christians have overlooked. In para. 35 they stated, “As far as the court is concerned, the content of any religious faith or belief is a matter of fact to be proved by evidence.” They then contrasted Sharia Law being understood as “making homosexuality a capital offence” with the Church of England permitting “its clergy, so long as they remain celibate, to enter into civil partnerships.” Thus they underlined the fact that in a Church which as a whole has a mixture of liberal and traditional views alongside Biblical ones, Christians will no longer be protected by the courts for adherence to the teaching of Scripture.

In comments which are echoed in Lord Justice Mumby’s recent speech, para. 38 & 39 contain the following assertions, “Although historically this country is part of the Christian west, and although it has an established church which is Christian, there have been enormous changes in the social and religious life of our country over the last century. Our society is now pluralistic and largely secular.” “We sit as secular judges serving a multi-cultural community of many faiths. We are sworn (we quote the judicial oath) to ‘do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.’ But the laws and usages of the realm do not include Christianity, in whatever form. The aphorism that ‘Christianity is part of the common law of England’ is mere rhetoric; at least since the decision of the House of Lords in Bowman v Secular Society Limited [1917] AC 406 it has been impossible to contend that it is law.” [emphasis mine] The 1917 decision referred to was in a case where the family of Charles Bowman contested the aspect of his will which left a portion of his estate to the Secular Society Ltd. They argued that that the objects of the Society were unlawful insofar as they constituted a blasphemous libel and therefore the gift was contrary to public policy and invalid, but they lost the case. It is described by Jeremy Patrick, a Lecturer in the University of Southern Queensland School of Law, on his blog as “one of the most important law and religion cases in the history of England.” Whether or not Justices Mumby and Beaston were correct in stating that it excluded Christianity from any part of English common law is debatable from Patrick’s summary, but their opinion unquestionably reflects the prevailing wind in British society.

A significant percentage of evangelicals still cling to the notion that Britain is a Christian country, whilst the majority of politicians, academics, journalists and other commentators now consistently describe it as a secular society. They do this despite the fact that there is still an established Church with the monarch as its head. Many Christians, like Bishop Nazir-Ali quoted at the start of this essay, still see the Coronation Oath as a defining fact of national life. My question is, should we be looking backwards with the hope of returning to times which were built on false concepts of the Gospel (as in swearing on the Bible), or should we be those who face up to the reality of what is happening around us and prepare ourselves to be loyal to Christ in a thoroughly secular society, which is determined to wipe out His name and any remembrance of it from its collective life? Throughout the Scriptures the Holy Spirit makes clear that godlessness is the direction of travel for human nature. Jesus summarised this with these words, “men loved darkness rather than light, because their deeds were evil.” (John 3:19). He also warned all His followers that we will be hated by the societies in which we live. We should therefore ask if it is really His wisdom which makes us seek to return to a rose-tinted memory of the past? The Preacher who penned Ecclesiastes is not always the easiest to follow as he struggles to understand life, yet I close with one of his statements. In 7:10 we read, “Do not say, ‘Why were the former days better than these?’ For you do not inquire wisely concerning this.”

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