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Thomson, Colin J H --- "Thinking and Writing about Law, Religion and Medicine" [2006] MqLawSymp 4; (2006) 1(1) Macquarie Law Symposium 45

THINKING AND WRITING ABOUT LAW, RELIGION AND MEDICINE

COLIN J H THOMSON[*]

I INTRODUCTION

Professor Smith states that the purpose of his essay is ‘to explore the conjunctive and disjunctive influences that religion has in one specific field of current socio-political debate: namely, bio-medical technology and ethical decision making’. The essay contains a rich collection of ideas and observations on the influences religion has had on the formation of the United States constitution, in contemporary constitutional litigation and the implications of these for bio-medicine and ethics.

The essay could be said to describe the context of the influences that religion has on bio-medical technology and ethical decision-making, but does not explore those influences in detail. Valuable as this can be, a response is left to

II THE NATIONAL CONTEXTS

The richness of the intersections and historical explanations that the essay reveals owes much to the overt role of religion in United States public affairs, since the formation of that nation. By contrast, religion in Australian public life has had a subdued and indistinct role, an issue that continues to be a source of on-going historical debate.[1] The explanations for this lie in an examination of the establishment of the Australian colonies and, later, the formation of the nation and are well beyond the scope of this response – and the competence of its author. One observation is, however, offered. This is that in Australian public life, religion is respected as the substance of private individual contributions but not relied on as a ground for public decisions. So, parliaments and court terms traditionally open with Christian prayers and legislators are freed from public political allegiances to exercise a personal conscience vote on certain public issues. Accordingly, Australians are perhaps more likely to see that an individual decision-making level of discussion will better trace religion’s influence.

III IS IT WORTH DOING?

Given the breadth of the issues discussed and the range of scholarship that is relevant and the complexity of their interaction, is the task set by the paper simply too hard? Are the complexities involved in thinking and writing about religion, law and medicine such that there can be no fruitful outcome?

Professor Smith says that law has not risen to the challenge of an unerring definition of religion.[2] The opening account of controversies about the physical emblems of religion in public places seems to be symbolic of something deeper. However, the value of pursuing the relationships among law, religion and medicine may not lie in whether one can be defined in the terms of another. Rather, the value may be in exploring how one affects the practice of the others.

The value may lie not in an historical or contextual account, but rather in how the three disciplines shape their human practice and what they share in their sources and commitments. How does religion motivate conduct? How does the formulation of religious argument and persuasion take hold in public discourse and justification? Do the motivations of lawyers and medical practitioners include religion? If so, is this with the accepted and acceptable traditions of those disciplines or are such professionals denying the coherence of their professions?

Indeed, reflecting the earlier observation that the roles of religion in Australian public life are private and individual rather than public and institutional, similar relationships may be found between professional and personal values. Professional responsibilities permit a conscience vote in the form of conscientious objection. What will be the effect of advances in bio-medical technology on the scope of the rights of health and law professionals not to work in areas of health or health law to which they conscientiously object? As bio-medical technology reveals more and more about the scientific origins of human life and opens wider possibilities to intervene at formative levels, it relentlessly confronts the religious foundations of health and legal professionals’ conscientious objection. As bio-medical technology widens its applications, will the scope for these personal freedoms expand or contract?

To this (Australian) author, these seem to be more fruitful starting points. They confront the question of what is the appropriate level of attention or focus.

IV LEVELS OF ATTENTION

Professor Smith’s level of discussion uses, with one notable exception, what he describes as a macro level. The one exception seems to be a result of the gravitational pull that litigation and case law have for academic lawyers. The discussion of judicial contests between opponents and supporters of the teaching of creation or of Darwin’s theories is a characteristic academic lawyer’s treatment of decisions and justifying principles.

What is interesting about this contrast of levels is that writing at the macro level has been chosen to discuss the stated purpose of the paper when, as indicated above, a micro level might well fulfil the purpose of the paper more clearly. Professor Smith accepts, in the fourth section of the paper, that religion as a source of ethical values can find purchase in judicial decision making because legal rules are indeterminate, leaving scope for reliance on moral considerations that can be informed by religion. If so, would not judicial decision making be an appropriate level at which to explore whether the influences of religion exist or not? A recurrent focus of legal and religious attention in the field of bio-medical technology and ethical decision-making has been on specific decisions: those that direct health practitioners in deciding about the commencement or cessation of the lives of human beings, about relationships with patients and their families and deliberate the role and limits of the role of the state in the private lives of its citizens. In these ‘clear in the crucible of conflict’.[3]

One reason for addressing these matters at a macro level may be that, because of the national context, the concepts used are familiar and it has been widely accepted that law, religion and science are related. Examples include the statement that ‘religion is the bed rock of moral order and a moral order works to stabilize law and medical science’, and that the three disciplines are forces that, in synergy, ‘combine in a dynamic partnership to form a communitarian alliance dedicated to providing a framework in which man can pursue the peace of ordered harmony which allows for a balanced happiness in his social, spiritual, and physical relationships’. Australians may be less familiar in this level of attention and tend to approach such matters more pragmatically and see this discourse as an invitation for further scholarship that would demonstrate the truth or falsity of their central assertions.

However, a micro level, that of Llewellyn’s trouble-case, is not without risks and weaknesses. One is that it privileges law over all other disciplines as sources of decisions and justifications. Professor Smith’s discussion of the United States cases about religious education show this clearly. Those cases are determinative: they settle the question legally. For science, they are merely contingent conclusions that are inevitably subject to revision as science progresses. For religion, they are at least revealed instances of wisdom or, more often, a dismissal of the religious source of knowledge in favour of the hard reason of the words of the Constitution. In recognition of this capacity in legal analysis, Llewellyn advocated that the task was to search below the presenting justifications of principle for the realism of the true sources and grounds of decision.

V THE CONCEPTUALISATION OF LAW, RELIGION AND MEDICINE

In his paper, Professor Smith describes law, religion and medicine as disciplines, as cultures and as forces. At the macro level at which he writes, this variety is plausible. However, when examined at any more applied level, the variety of terms used conceal an underlying uncertainty and the prominence of one form of conceptualisation.

In the first section of the paper, Professor Smith suggests that religion, in responding to bio-technology and molecular biology, is faced with the task of adapting to applying to those issues or reshaping itself or, in his words, ‘to modernize foundational texts into a constructive dialogue with science: one which escapes the confines of abstract applications and offers specific guidance and modern ethical norms of resolving concrete biomedical conflicts’.

His conceptualisation thus appears to force religion on to the Procrustean bed of reason. This may deny the one characteristic that makes religion unique: the way in which knowledge is accepted as being the product of revelation. Religion uses reason in the development of its precepts, principles and guidance but these are derived from a truth that has its foundation in a position that is not discovered but revealed. Professor Smith, in the fifth section of the paper, seems to accept this when he says that it is a misconception that religion needs only faith in order to sustain itself, whereas the truth is that religion requires belief and belief is built on knowledge. He also suggests that scientific investigation is very similar to religious experience. This he says emerges from the fact that in science the defining event is when that which was unknown becomes visible and even clear and in spirituality, ‘experiences with meaning, purpose and teleology are foundational’. So, he says, ‘semantic differences remain small between scientific insight and religious revelation’.

Scientific insight and discovery or revolution, as Thomas Kuhn revealed,[4] may appear deceptively similar. For instance, was Darwin’s identification of the principle of natural selection a rationally derived explanation of recurring patterns that he observed in many species, or was it an insight? Even if it was an insight, and it is Kuhn’s theory that science progresses by revolutionary insights, it was a humanistic and not a theistic discovery. Religious revelation is of the truth revealed to humans not discovered by them: it depends on the existence of the divine being. An exploration of the contribution of religion to law and medicine cannot justly deny religion this ground of its knowledge.

However, to reduce these differences to a matter of semantics equates humanistic insight with theistic revelation – and overcomes differences between science and religion by denying religion’s central tenet. This, it seems, fails to recognize the fundamental distinction made by Aquinas between divine law (lex divina) and revealed or natural law: a distinction that rested on a central tenet that the church, with access to the Divine, was the authoritative interpreter. The Protestant reformation may have eroded the church’s exclusive claim to interpretation, but it did not deny the role of divine revelation as a source of knowledge.

VI THE WESTERNISATION OF RELIGION, LAW AND MEDICINE

The concerns discussed in Professor Smith’s paper are familiar debates of the last century or so of Western culture and liberal democratic politics. For that culture, the distinctions among law, religion and medicine are obviously matters of deep moment because Professor Smith’s vectors of force are understood to be separated. His paper reflects our characteristic Western preoccupation to find concepts that show and explain this separation.

As that culture has been carried into contact with other older, more unified cultures, at first by the greed of colonialism and most recently, ironically, by medicine, it has been confronted with unified cultural traditions for whom the separateness that the West worries over is often unnecessary and the effort devoted to support the separation wasteful. For many of these older cultures, it does not matter that religion, law and medicine are parts of a whole way of life. Living that life teaches how to grasp that unity.

In recent intersections, examples recur of the West’s desire to assert itself – and post-colonial societies continue to reap the often bitter harvest. Professor Smith’s reference to the dreamtime is a small, yet revealing, example. He refers to a ‘dreamtime’ of tomorrow and in this appears to misconceive that idea. Dreamtime, as superficially understood by non-indigenous Australians, was and is and will be. Dreamtime not only explains but also constitutes the past, the present and the future reality in which men women and children have lived and now live their lives. To refer to a future dreamtime, as if different from a past or present one is to contradict this concept.

VII CLOSING REMARKS

The observations in this short response have been stimulated by Professor Smith’s thought and scholarship. This reader, like others, is indebted to him for bringing attention to these issues and to the extent of recent scholarship that shares his interest in their examination. That some readers, as this author, respond with a desire for a more applied level of treatment need not detract from the value of being confronted with some significant current moral, cultural, political and professional challenges.

[*] Adjunct Professor, Division of Law, Macquarie University.

[1] Fr Frank Brennan, ‘5Rs for the Enlargers: Race, Religion, Respect, Rights and the Republic’, the Seventh Manning Clark Lecture, presented at the National Library of Australia, 2 March 2006, http:///www.manningclark.org.au/papers/MCLecture-2006 (11.4.06)

[2] However, as Professor Smith himself notes, the Australian High Court has done so – out of statutory necessity.

[3] Both expressions are used in K Llewellyn and E A Hoebel, The Cheyenne Way (1941) 29.

[4] See, T Kuhn, The Structure of Scientific Revolutions (1962).