14 October 2004
Truth and Conscience in Politics and the Law
By: Lord Brennan— 2004-2005
Lord Brennan, QC was Chairman of the Bar, England and Wales, 1999 Seminar on 14 October 2004
Pilate said to Jesus, “So you are a king?’ Jesus answered, “You say that I am a king. For this I was born, and for this I have come into the world, to bear witness to the truth. Everyone who is of the truth hears my voice.’ Pilate said to him, “What is truth?
Just as fashion creates taste, so too does it create justice
Pascal, “Thoughts’, no. 309.
There is a strong modern connection between these two themes of truth and justice represented by the law. Pilate and Pascal anticipate that truth and law are vague principles, hard to define, and loosely to be applied. The autonomy of the individual operating in a utilitarian and “morally homeless’ society represent the order of the present day. Everyone proclaims their rights, but barely mention their responsibilities. Only 20% have trust in politicians. The law is expected to reflect the life of the individual rather than the society in which he or she lives. Need it be so? Are truth and conscience not the key stones of a moral and ethical framework within which we should conduct ourselves both in politics and the law? Post war modern relativism ought not to survive. The profound message is that of Augustine – the whole of humanity is “a community of truth’.
Let us treat truth as that which represents known fact, and/or is sustained by reasoned analysis, and which in politics ought to be known. In Centesimus Annus John Paul II said that “No authentic progress is possible without respect for the natural and fundamental right to know the truth and live according to that truth’ (CO29). Thus to my simple definition there is to be added a moral and ethical dimension. We have a right to the truth. It is wrong to lie.
The regulating principle of virtue is conscience. In the Dissertations, which Joseph Butler attached to The Analogy of Religion (1736), he emphasised the centrality of conscience in the moral life. It involves the faculty of moral approval or disapproval of conduct and character based on reason, experience, and values. In this context morality must be more than just utility and should employ concepts of justice and honesty.
In modern terms the idea of a social contract as the basis of social justice has been revived and refined by Rawls in The Theory of Justice (1972). This approach, with a strong under-current of utilitarianism from Mills and Bentham, are the backdrop to the way in which most modern politicians would describe their approach – if they were to ever consider the question!
For present purposes law is to be treated as a system of ethical jurisprudence harking back to theories of natural law contrasted with positivism. The law in practice is not an end in itself but a means to facilitate the functioning of society. But underlying objectives need to be considered – the enforcement of morality; the nature of rights and responsibilities, and acceptance of the law by the people.
It is notable that little of More’s writings actually refer to law and government as such. Rather he was concerned with the foundations for them described by one of his commentators as “The nature and requirements of sharp-sighted reason and deep-rooted virtue’.
He was a strong proponent of the rule of law. In his speech to parliament in 1523 he became the original source for the concept of free debate in parliament. Yet he was convinced that truth in representing justice was founded on reason informed by tradition. This tradition involved religious principles of morality and ultimately faith. But for him politics should be essentially separated from morality in the sense that it should not be governed by concepts which found on generalities which do not provide reasoned bases for economic and social law.
More’s call for virtue and reason – truth and conscience – represents the strongest protection of good government and liberty.
In describing politics as “A noble profession’ Pope John Paul II later in 2000 proclaimed More the patron of statesmen and politicians.
How fare virtue and reason these days?
Truth and politics: Mark Twain’s words are antithetical to modern politics when he wrote “When in doubt, tell the truth. It will confound your enemies and disturb your friends’.
Party loyalties, the whipping system, and the relentless attention of the media have produced extreme political diffidence about “telling the truth’. People stomach, but not with much pleasure, the standard political attempt to say the least while promising the most with the minimum of precision. What they will not accept is lying or deliberate concealment giving a false impression. Thus historically it fell to an errant minister to resign if he or she misled parliament, or was guilty of serious departmental misconduct. This was posited on the idea that there was a level of political conduct so low as to be entirely unacceptable.
With the impact of modern communications and a powerful media, politicians have reached a nadir in terms of public trust. It was significant that Baroness O’Neill devoted her recent Reith lectures to the issue of trust in modern society. Transparency, accountability and our right to know are the modern calls. But can there be calls for absolutes. When we legislated the Freedom of Information Act recently, government was allowed several years before bringing it into effect. That will happen in January 2005. It may produce a change of sentiment as between government and the people. Newspaper reports that before the introduction in January 2005 documents are being shredded in government departments before the obligation to disclose them arises may well be apocryphal. It may be that after that date government will talk much, write little, and publish only that which is absolutely necessary.
This Act is complicated but it is a fundamental change to our society when we now speak of freedom of information. It is to be distinguished from the accursed device of “spin’. That is not so much directed at the truth or lying, rather, at the appearances with which truth or a measure of truth is decorated. Representing, as it does, the form of packaging and advertising it had and in fact has had, a limited life.
We might just be entering a period of, if not the full truth, then more carefully produced and moderately worded pronouncements from all political parties.
Why should matters be as bad as they have been?
The reasons are several:
- Politics are seen to be serving the individual, choice, at minimum cost in terms of tax and government expenditure, in all of which the concept of the common good or a just society is secondary.
- The superficiality and speed of modern communications and media commentary deprives politicians, if they have the capacity in any event, to consider the moral and ethical framework in which their actions and proposals should be judged.
- In the move away from party politics to issue politics the resolution of an issue can take place speedily and with only shallow investigation and in circumstances divorced from wider aspects of political policy and social justice.
- A dramatic reduction in the impact of parliament as a means of determining the truth and social justice of legislation and policies is coupled with the emergence of the presidential/executive based form of government – Lord Hailsham’s “elected dictatorship’.
All this amounts to a negation of the concept of virtue and reason. The first is regarded as irrelevant in pursuing utilitarian political purposes. The second does not figure to the extent it should for the reasons I have set out. Is it coincidental that politicians who most seem to reassure are the oldest and most experienced and usually afflicted by a concept of political “virtue’ from another age, albeit of a higher standard than that presently prevailing?
Truth and conscience in politics
Conscience is reflected only marginally in political life. Some votes are free votes. These usually concern issues of moral sensitivity upon which political parties could incur embarrassment if they were seen to be taking too firm or too clear a line. In the Commons the extent of dissent, certainly on the government benches, must relate to the size of their majority. The dissent would be far less if the majority were smaller.
In the House of Lords the extent of dissent is generally more frequent and more “virtuously’ expressed. Very occasionally, e.g. in the circumstance of the Iraq war, there will be dissent leading to resignations by senior ministers.
Truth and conscience in law
It is a frequently misunderstood view of the law that it involves, or should involve, a search for the truth in the course of legal process. This is not the reality. The investigation of fact and opinion in a criminal or civil trial is directed at testing the evidence presented to the court. To the extent that that is objectively analysed and conclusions reached the process involves establishing the truth but only in relation to the evidence presented. This is the product of the adversarial process. In the continental civil law the investigative process is more likely to come nearer to the truth provided the enquiry is sufficiently determined and wide-ranging.
The more profound questions of truth and conscience, arise in relation to what I called ethical jurisprudence in my original definition of the law.
The enforcement of morals:
Lord Devlin, a famous Catholic Law Lord, wrote a monograph on the very subject of the law enforcing morals. The topic presents both tensions and dilemmas. Devlin wrote his work at the time of the debate on whether homosexual acts between consenting adults should continue to be criminal. In modern times we have had much debate on section 28 and the role of local authorities in sex education. Gay partnerships are to be legislated under the Civil Registration Bill presently before parliament. Although the government denies that the Bill will legalise “marriages’ in this context its very purpose is to ensure that there is no legal distinction between the rights of a civilly registered couple of the same sex and a heterosexual married couple. The Doctrinal Notes from the Vatican in 2003 and 2004 deal with the morality of issues such as this and the role of Catholic politicians in dealing with them. How is the political conscience here to be exercised? Is a politician entirely bound by his religious beliefs as a Catholic in relation to abortion laws? Or is the exercise required that of reason exercised in the pursuit of virtue and taking into account religious beliefs but remembering that society may not in the main share such beliefs? These are profound questions. They are presently occupying voters and politicians and churchmen in the United States in the presidential and congressional elections. My own view is that there are certain basic moral issues such as abortion and euthanasia on which the Catholic conscience must accord with religious belief because that belief accords with reason and virtue.
The era of human rights and responsibilities
In the encyclicals Pacem in Terris of John XXIII and in Centesimus Annus from John Paul II it is clear that the church teaching endorses rights and responsibilities of every human being. In modern times, Leo XIII in 1891 with Rerum Novarum said, “Rights by whomsoever possessed must be protected’. And then came one of the great encyclicals of the Catholic Church, Pacem in Terris by John XXIII. Firstly, it was an encyclical that was unique because it was written to all the world not just the Catholic Church. Secondly, it endorsed the Universal Declaration of Human Rights. But rights carry responsibilities.I have rights. But what do I owe to you? John XXIII gives powerful examples.
The right to live involves the duty to preserve life. The right to a decent standard of living involves the duty to live in a becoming way. The right to be free and seek the truth involves accepting and upholding the same right for everyone else. Each right has its corresponding duty and unless both are observed neither will have real value. In a brilliant passage he put it this way: “To claim one’s rights and ignore one’s duties or only half fulfil them, is like building a house with one hand and tearing it down with the other.’
These rights and duties, he said, are “universal, inalienable and inviolable’. I add that the consequent duties are of equal importance.
The acceptance of the law:
How does conscience operate in fulfilling, or in certain circumstances rejecting the force of law?
In the personal circumstances of doctors and nurses the so-called “conscience clause’ of the Abortion Act has been generally regarded as a disaster. Those practitioners who relied on their religious objection to participate in abortion were criticised, ostracised, and their right to exercise their conscience not respected. Great cause for concern must be entertained about any similar “conscience clause’ in the Assisted Dying Bill presently before the House of Lords.
Political circumstances and conscientious objection have been frequent in modern times. Greenham Common, the Iraq war, and animal rights are well known examples. Is there a basis for refusing to obey the law of the land in all conscience? If so , how can it be rationalised? What is the moral conclusion to be drawn about deliberate disobedience to a ban on hunting foxes with hounds? In what circumstances may a minority dispute the right of a majority to legislate against activities by the minority which the minority consider to be part of their way of life or indeed religion?
There is no ready answer. These are vexed questions. Each issue should be regarded on its own merits. The merits involve detailed examination and reasoned analysis. I consider that only in extreme circumstances where a law is an affront to democracy or represents totalitarian action by government could a refusal to obey the law be justified.
In the words of Father Timothy Radcliffe “True words build community and lies dissolve it’. The virtues of truth and conscience must be nurtured in modern society. With them standards will be achieved in public life that will benefit the common good. More gave us the right example. We should follow it. Truth and conscience have their place in politics and the law. The first is a fundamental virtue of the human community, and the second exemplifies moral behaviour based on right reason.