Blog: Religion is not the answer for legal needs
Michael Sheridan discusses the use of the Bible as a source of law in our system.
The horrific and random consequences of the tragic bin lorry accident in Glasgow might challenge the existence of a loving and just Deity. Further, the massacre in Paris carried out in the name of religion might incline some to regard religion as a force for evil as much as for good. Certainly, the French satirical magazine, Charlie Hebdo, is reported to have had little good to say about organised religion.
It might be of interest therefore to consider the relationship between religious belief and Scots law today and the extent to which the Bible or other books of religion may be regarded as a source of law.
In some cases the Bible has been adopted directly into Scots law. For example, the crime of incest was long governed in Scotland by the Incest Act 1567 which defined the crime with reference to its proscription in the Book of Leviticus at chapter 18.
In a 2008 case a court held that particular conduct which had been carried out prior to 1986 did not constitute the crime of incest notwithstanding that it fell within the definition in Leviticus. On appeal, the court was directed to apply that definition. In 1986, Parliament saw fit to supersede with a modern definition the words of Leviticus which, however, remain the authority for conduct carried out before that date.
We find also that Scots law and legal practice are littered with biblical authority. The giving of evidence in legal proceedings is routinely subject to the swearing of an oath before Almighty God. Among the many biblical authorities for doing so there is Deuteronomy 6:13: “Fear the Lord your God, serve him only and take your oaths in his name.” Of course, nowadays we have the alternative to the oath of making a formal affirmation which has the same legal effect of exposing untruthful testimony to prosecution as perjury. The independence of the judiciary, Deuteronomy 1:16 and the rights of the disabled, Leviticus 19:14, are supported by biblical authority.
The recent and ongoing debate about the requirement for corroboration in criminal prosecution may be enlightened by Deuteronomy 17:6: “At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.”
One of the most famous judicial cases of all time, Donoghue v Stevenson1932 appears to have been decided with reference to biblical ordinance. Lord Atkin, in the leading judgment, found that the defender was obliged to “love thy neighbour”, Mathew 22:25-40 and therefore owed him the duty of care which went on to form the basis of the law of negligence in many western jurisdictions.
I have recently had issue with professional colleagues as to whether witnesses should be excluded from hearing other evidence in a case before they give their own evidence.
I found the Book of Susanna 48–64 to be instructive. Two elders lusted after Susanna, but in vain. Out of spite, they jointly accused her of adultery committed with a young man in her husband’s garden. She was about to be convicted when Daniel asked: “Have you condemned a daughter of Israel without learning the facts? Separate them (the witnesses) far from each other and I will examine them.” Daniel then asked the first witness: “Under which tree did you see them being intimate with each other? The witness answered: “Under a mastic tree….” Daniel then examined the second witness who answered the same question: “Under an evergreen oak…..” Susanna was freed and the witnesses were convicted of bearing false witness. Of course, inconsistency between witnesses is not proof of perjury. It is for the judge or jury to determine the significance and consequence of the inconsistency.
While there may well other precepts of the Bible or of other religious works which await realisation in our law, there would appear to be some danger in their formal recognition as repositories of law.
• Michael Sheridan is secretary of the Scottish Law Agents Society. This article first appeared in The Scotsman.