Religious Rulings and Nonreligious Judges: The Importance of Legal Education

Andrea Pin is Associate Professor of Comparative Public Law, University of Padua, and Senior Fellow at the Center for the Study of Law & Religion Emory University

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

This is Lord Atkins’s starting point in one of the most famous and important rulings of the House of Lords of the 20th century. Donoghoue v. Stevenson (1932) was a landmark judgment that set the limits of liability for negligence in a highly-industrialized society. Lord Atkins found it obvious to seek guidance on the issue of liability in Jesus’s oft-repeated statement that one should love her neighbor as herself. The idea of loving your neighbor was not just a moral compass—it was also a legal compass. The only contentious part was “who” had to be considered as a “neighbour.”

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Fair Reflection of Religious Affiliation and the High Court of Australia

Jeremy Patrick is a Lecturer for the University of Southern Queensland School of Law and Justice

In recent decades, the High Court of Australia has come under a steady stream of criticism for failing to reflect the multicultural diversity within Australian society [1]. Although some progress has been made in the area of gender equality and sexual orientation [2], the High Court remains notoriously homogenous in other respects like race, education, and professional background. The situation that Eddy Neumann described in 1973 has changed, but not as much one might hope:

[The] typical High Court Justice is a male white Protestant raised in Sydney or Melbourne (or much less frequently, Brisbane) and of British ethnic origins. He is from upper middle rather than upper class background, though perhaps more than his American counterparts from lower middle class environment. He usually goes to a high status high school (usually private) and then to Sydney or Melbourne university where he has a brilliant academic record. If from a moneyed family he immediately goes to the Bar [3].

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Is Religious Devotion Consistent with Good Judging?

David G. Campbell is a Senior United States District Judge for the District of Arizona

During the confirmation hearing for Supreme Court Justice Amy Coney Barrett, Senator Diane Feinstein expressed a “very uncomfortable feeling” about the nominee’s religious devotion, observing that “the dogma lives loudly within you.” Senator Feinstein in effect asked whether a religiously devout person can serve as a truly fair and neutral judge. She seemed to fear that a judge’s devotion to religious doctrine will invariably override all other considerations—that religious dogma will prevail over the rule of law.

Many decried the Senator’s statement as religious discrimination, noting, among other things, that Article VI of the Constitution expressly forbids any religious test for public office. But the Senator’s question should not simply be dismissed as anti-religious animus. For those who believe in adherence to the rule of law, her question is relevant.  Few would argue that judges should be free to impose their religious views through their judicial decisions. To the extent this is the focus of Senator Feinstein’s concern, it deserves thoughtful responses.

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