The Christian Common Law Foundation of Australia

Tuesday, October 9th, 2018

‘Christianity is infused in Australia’s legal system’ Dr Augusto Zimmermann.

“These laws were against blasphemy, polygamy, fornication, and things very much based on the idea of enforcing Christian morality in this country.”

“Judges should have the conviction to uphold the law rather than create the law.”

For those following Dr Augusto Zimmermann’s progress on the Christian Foundations of Common Law, this is the second discussion on the topic.

Other articles by Dr Zimmermann are available on the Vision Radio website include ‘Australians, Why Abandon Our Freedoms?’

The latest discussion revolved around the Ruddock Review of Religious Freedom and what the government’s response might be to the Review’s long-awaited decisions.

Scott Morrison and religious freedom

Another factor will be the change, if there are any changes, from what will be a Morrison Government response following the demise of the prime-ministership of Malcom Turnbull.

Christians may even be encouraged now that Scott Morrison, as a Christian, wants to take personal control over the government’s position on religious freedom.

Whether that guarantees the continuation of the sorts of freedoms we’ve come to enjoy as Australian citizens remains to be seen.

Legal philosopher Dr Augusto Zimmermann is a recognised expert on the subject of Australia’s Common Law. And it’s those Christian influenced Common Law freedoms that originally impregnated English and American law, Christianity was also embedded in Australia’s laws.

It should be noted Augusto has now completed the third volume of the Common Law trilogy that underpins his earlier discussions, and straight up Dr Zimmermann stated that Christianity is infused in Australia’s legal system.

“Not only that but our governmental institutions and customs in this country have a very strong Christian foundation.”

Australia’s Common Law vol. 3

This is what Dr Zimmermann explains in volume 3 ‘The Christian Foundations of the Common Law’, flowing on from volumes 1 and 2 that dealt with the foundations of the laws of England and those of the United States.

First though an explanation of the differences between Common Law to the legislation governments federal and state might pass in their respective parliaments.

Originally the Australian version of Common Law had a very strong Christian foundation.

“When you refer to the Common Law you have to refer to Biblical principles,” Augusto said.

“Christianity was naturally manifested in the Common Law system and was applicable to different situations.”

“That’s why judges should have the conviction to uphold the law rather than create the law.”

Augusto’s point is that the Common Law already exists and needs to be revealed by the judges when dealing with certain cases and their decision-making for those particular matters.

A poor knowledge of history

“All legal systems in the West were grounded on these assumptions.”

“They were Biblically based, everyone had free will and morality and ultimately the law is God given,” Augusto informed.

The chaplains in Australia’s early settlement days were not just churchmen but were also responsible for law and order. In fact, they were akin to magistrates when it came to sentencing wrong-doers.

But today Australians generally have a poor knowledge of history and this has not escaped Dr Zimmermann’s attention.

Our history curriculum is failing to address Australia’s Christian roots for legal and political institutions in this country.

“It’s failing to acknowledge how Christianity has had such a great impact on our social mores as well.”

Captain Arthur Phillip

Dr Zimmermann referred to Captain Arthur Phillip, the first person to enforce the English laws in Australia in 1787 after the first British fleet arrived in Australia.

Captain Phillip had been instructed to apply the laws, laws that were entirely based on Christian principles.

“These laws were against blasphemy, polygamy, fornication, and things very much based on the idea of enforcing Christian morality in this country.”

Alongside Captain Arthur Phillip was the first reverend or chaplain to Australia, Richard Johnson, who had brought with him around 100 Bibles and 400 New Testaments.

Augusto said Richard Johnson had been instructed to convert convicts and turn their lives around.

“Upside down I would say because they thought it would be important the convicts have a new life in Australia and ultimately be law-abiding citizens,” Augusto said, but there’d be no new life until the convicts had finished their penalties here in Australia.

Church and state

The initial connection between church and state was important compared to today’s idea of separation of church and state.

“This means people of faith should not have an input into the political discussions, when the original idea was that they not be ostracised and made less of a citizen than others.”

This is one of Dr Augusto Zimmermann’s main concerns with the Common Law inclusion of the nation’s Christian foundations and its historical aspects.

An example was Governor Macquarie. Major General Lachlan Macquarie was a British Army officer and colonial administrator from Scotland. He served as the fifth and last autocratic Governor of New South Wales from 1810 to 1821, and had a leading role in the social, economic and architectural development of the colony.

“He played a crucial role in forming this country into a model British colony,” informed Augusto.

“He not only had a respect for Christianity but tried to encourage it because he thought it would lend itself to a land of redemption.”

A limited understanding of history

“Governor Macquarie actually told the convicts they should attend Sunday church services and he launched many Christian initiatives.”

These included the Sunday School movement. He also opened branches of the Bible Society and others created for the purpose of spreading the Gospel.

“He was aware of the fact that Christianity has a law and that law is a law of liberty.”

Dr Zimmermann’s scholarship in the realm of Common Law has made him aware that Australians in general have a limited understanding of history, including its political class.

“Our politicians have a very, very poor knowledge of history and basically no knowledge at all of natural law and jurisprudence.”

“So I think it’s a very important thing for us to re-educate certain peoples in this country including the political class.”

Dr Zimmermann emphasised the need and importance to understand religious freedom and the steps that led to Australia’s federation.

If you would like to listen to the full audio interview click play below

Footnote

The University of Notre Dame Australia School of Law, Sydney invites you to attend
the book launch of: Christian Foundations of The Common Law – Volume 3:
Australia written by the School’s Adjunct Professor Augusto Zimmermann. This
is the third and final of a 3-volume collection on the ‘Christian Foundations of the
Common Law’. This final volume traces the historical and inextricable nexus between
the Australian law and Christianity. While the Australian legal tradition cannot lay
claim to the historical depth it has in America and England, it was still built on a
similar solid Christian foundation. Indeed, Christian ideology is infused in both the
legal and governmental institutions and customs of Australia.
Augusto Zimmermann: LLB (Hons), LLM cum laude, PhD
(Mon), The University of Notre Dame Australia, School of Law,
Sydney, Professor of Law, Sheridan College, former Law Reform
Commissioner, Law Reform Commission of Western Australia
(2012-2018).
The book launch will be preceded at 6 PM by the opening of the
Schools 11th mentoring program.

Date: 23 October 2018
Time: 6pm for a 6.30pm start
Venue: Hon T.E.F Hughes Moot Court, School of Law 29 Shepherd St Chippendale 2008
Please RSVP for catering purposes by Tuesday 16 October 2018 at:
https://www.notredame.edu.au/events-items/book-launch-christian-foundations-of-thecommon-law-vol-3

 

Dr Augusto Zimmermann
LLB (Hon.), LLM (cum laude), PhD (Mon)

Director of Postgraduate Research

http://profiles.murdoch.edu.au/myprofile/augusto-zimmermann/

Dr Augusto Zimmermann (LLB (PUC-Rio), LLM cum laude (PUC-Rio), PhD (Monash University)) is Senior Lecturer and former Associate Dean (Research) and Director of Postgraduate Studies at the School of Law at Murdoch University. He is the unit coordinator for two core units taught in the Law School: Constitutional Law and Legal Theory

Dr Zimmermann is also a Commissioner with the Law Reform Commission of Western Australia; President of the Western Australian Legal Theory Association (WALTA); and Editor of the Western Australian Jurist law journal. He is also a Former Vice-President of the Australian Society of Legal Philosophy (ASLP).

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