Justice Service for the High Sheriff
Preacher: The Revd Robin Griffith-Jones
11 October 2015, 15:15 (The Nineteenth Sunday after Trinity)High Sheriff, Acting Dean, many thanks indeed for your invitation here this afternoon. What a fitting, uplifting celebration this is: in this beautiful place, with the choir and brass, the sun streaming in through the windows and the ancient castle just outside. Many thanks too to the choir and to the brass players for so gloriously enhancing the service.
In AD 597 Saint Augustine of Canterbury, sent from Rome, landed on the Isle of Thanet and made contact with King Aethelbert of Kent; the conversion of Southern England to Christianity had begun.
Within 20 years Kent had joined the community of then-civilised nations by the issue in writing of a code of laws. And Aethelbert did so, not in Latin, the language of Rome, of civilization and of grandeur, but in the Kentish vernacular, in the earliest recognizable antecedent of the English we speak today. Fourteen hundred years ago, the tradition of law which we inhabit to this day was established here in Kent. How fitting, that the manuscript of Aethelbert’s laws, the Textus Ruffensis or Rochester Text, is still the property of the Dean and chapter of this cathedral.
And how telling, that the manuscript itself was written in the early 12th century for the Bishop of Rochester, a friend of Ivo of Chartres the greatest lawyer of the age, at the start of the great star-burst of theologically based jurisprudence that illuminated 12th century Europe. It already mattered, for the lawyers of that first rebirth of humanism, to know what had been written down for King Aethelbert, all those centuries before. Precedent already mattered!
This summer all eyes turned to Runnymede, for the celebration of Magna Carta itself. Of course they did, and rightly so. But how easily we lost sight of the Charter’s setting: in the great series of charters issued all over Europe in those decades – in Sicily, Hungary, Saxony, France – and in the long course of English law’s evolution through the preceding six centuries.
(These anniversaries are a rum do. Runnymede this summer was like a giant village fete, Glastonbury for the establishment. It was lovely. And within hours it had been swept away by coverage of the next anniversary: Waterloo. That can be more tricky, of course. In 1965 there were large preparations afoot for the 150th Anniversary of Waterloo. A careful letter was sent to the French Ambassador in London, hoping that His Excellency would be able to attend at least some of the commemorations. His Excellency replied with consummate good grace. How sorry he was that he would have no time to come to anything. Sadly, he was simply too busy – preparing the celebrations, for 1966, of the Battle of Hastings.)
“The lawyer, willing to justify himself, said to Jesus, And who is my neighbour?” (Luke 10.29)
Who is my neighbour? In Glasgow in 1928 (as many of you know only too well) Mrs Donoghue went into a café for a bottle of ginger beer and a blob of ice-cream. The ginger beer had been manufactured and bottled – but not retailed – by Mr Stevenson. Mrs Donoghue poured some first mouthfuls over her ice-cream. Delicious. She poured the rest; and out plopped the decomposing remnants of a snail.
What a strange business, the bottling of ginger beer must have been: at least twice, in the preceding years, a dead mouse had been found in a bottle.
Mrs Donoghue took Mr Stevenson to court. Court after court in Scotland decided against her. She had no contract with Mr Stevenson; he could surely not be liable. In 1932, the case reached the House of Lords.
Their lordships gave their judgment in order of seniority. First Lord Buckmaster: with frankly savage sarcasm he dismissed Mrs Donoghue’s case; to find in her favour would open the gates to a flood of such claims. Then Lord Atkin. And in regard to a dead snail Lord Atkin delivered one of the most famous judgments in English law:
“The rule that you are to love your neighbour becomes in law, You are not to injure your neighbour. And the lawyer’s question” – put to Jesus himself, – “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?”
What a remarkable approach to a judgment. Lord Atkin starts with an ancient biblical command (Leviticus 19.18), with Jesus, and with the duty to love. No wonder Lord Atkin must refine his terms, and ask how a lawyer will read the commandment. For no law – however fervent its exhortations may be – can legislate for love. How many judges in our own day, I wonder, would set up their judgment in such terms.
In a famous dictum, centuries before, Sir Matthew Hale had declared, “Christianity is part [or parcel] of the laws of England.” The motto was already in retreat in the early 20th century. Lord Sumner had tried, before Donoghue v. Stevenson, to hit Hale’s maxim over the pavilion and out of the ground: “My Lords, the phrase ‘Christianity is part of the law of England’ is really not law; it is rhetoric. ‘Thou shalt not steal’ is part of our law... But ‘Thou shalt love thy neighbour as thyself’ is not part of our law at all.”
Lord Sumner, of course, was right. But was he missing a larger point?
It would be mere folly to rely on love to keep public order.
But no law will keep that order from dissolution without some such coagulant as love, decency, sympathy, neighbourly care.
To elevate all systems of social order to an airy reliance on neighbourliness would be recipe for chaos: the strongest would take all they could get and the vulnerable would go to the wall.
But to reduce all systems of social wellbeing to the law’s letter and its sanctions would be recipe for cold, grasping calculation: the strongest would take all they could get away with, and the vulnerable would still go to the wall.
It is hardly a fluke and certainly a blessing that in “tone” English law and English Christianity have been so well matched: incremental, gradualist, self-reflective, little given to grand abstract formulae. We have much in common, on our two sides of this pulpit, serving in the law and in the Church.
Have you ever read Textus Roffensis? The passages read out by the High Sheriff really are typical of the whole document. It is surreally dull. It is an interminable list of cash penalties for varieties of crime. For straightforward murder of a free man, payment to the victim’s family: 100 shillings. Of a top-rank tenant, 80 shillings; second-rank, 60 shillings. For a broken thigh, 12 shillings. For the loss of a big toe, 10 shillings. Is this the best Rochester has to offer? Ah well, just one moment. Underlying this list, with no grandstanding or general statement, is a fundamental attempt to prevent bloodshed. If Smith killed Jones, all of Jones’s family to the second cousins were mobilised to take revenge on any of Smith’s family to his second cousins. And when Cousin Jones kills Cousin Smith, yes, all of Cousin Smith’s family to his second cousins we mobilised to take revenge on Cousin Jones and his family. Result: relentless blood-feuds, forever expanding and simmering and liable to break out again and again. The Textus established payment instead of bloodshed: in one case, payment at the open grave of the murdered man. This strange, dry list of crimes and payments, without an abstraction or generality in sight, is early English law in action. Neighbours could remain neighbours. Peace could be sustained.
We still need in all of us who are called to obey the law and above all in all you who serve it – the love of our neighbour. The lawyer asked Jesus, “Who” – out there – “is my neighbour?” Jesus answered a more pointed question: “To whom was the lawyer called to be – himself, in his own life and work – a neighbour?” The answer can still be unsettling. Some people are readily loved, they call out for our care and service; others – as you see all too often in your daily work and as we sometimes see in ours – test tolerance and sympathy to the limit.
A couple of questions, as we pass. Is it only Christianity that can animate the body politic with neighbourly care and service? Far from it. Judaism, steeped in law and its observance, was already famous 2,000 years ago for the care the Jews took of their communities. “Love thy neighbour” is a Jewish law. And eventually, beyond the horrors of the present day, the humane, warm strands of Islam will, we can only hope, emerge and shine in the sunlight.
But again: must it be religion at all, that fuels our care for others and makes us a genuine, community? No. But it is striking how hard it still is to provide, without religion – without a God whose children we all are – a compelling ground for universal human worth and human rights. We can stipulate such rights; and philosophers have for 200 years established the rights of potentially, possibly or actually rational and mature moral agents. But this does leave, exposed to terrible chill winds, those who will never – or never again – be such agents; and it is just those for whom the law and the neighbour alike take special care.
Magna Carta itself was, as you may know, in the first instance a failure. The Pope annulled it within weeks. Civil war loomed once more, the French were waiting and longing to invade. Rochester Castle would be a vital obstruction to any French advance towards London. The King demanded of Archbishop Langton that he hand over the castle to the King’s forces. Langton refused, and fled the country. On 11 October 1215, 800 years ago today, royal forces seized the town and laid siege to the castle. On 13 October the king himself arrived at Rochester to direct the siege. For seven weeks the garrison held out – weeks in which the fate of the King and of England itself was seen to hang in the balance.
How long ago it seems. And yet: the Charter was in 1216 and 1217 reissued, its great clauses on trials and justice were saved and are on the statue book to this day; they have been written almost word for word into every Common Law constitution in the world and so directly protect 2 billion people alive today. They have been incorporated into the Universal Declaration of Human Rights and so extend their reach to every corner of the globe.
Almost all of us here this morning serve the law. Some of you may see yourselves as serving the supreme Judge, God of all justice; others, as serving justice itself; others, as simply doing, case by case, what is just. Some will invoke God as the source and inspiration of all love; others acknowledge the love of neighbour as simply proper to humankind. All of you in your work acknowledge a cause higher than yourselves, your own interests or any human partiality.
Gathered here, we can together acknowledge our shared service of a justice greater and more enduring than we are, the depth of a principle at once ancient and for ever new. And here and now, if ever or anywhere, we can sense the presence of the judge of all, before whose sure, all-seeing and merciful tribunal we ourselves will one day as defendants stand.
Here, if anywhere, the decades fall away. We can hear Lord Atkin again, and the victory his judgment secured for Mrs Donoghue. The story does not quite end there. When the case then returned to Scotland, the courts were not sure there had ever been a snail in the bottle at all.
In this place and this service, if ever, the centuries fall away: we can hear once more the words of the Great Charter and, hundreds of years older even than these, the words of King Aethelbert’s laws and can recognise them as our own.
Indeed, here and now, the millennia fall away. “Who,” asked the lawyer, “is my neighbour?” The answering story of Jesus still inspires and animates us, in the warmth and generosity and care of its Samaritan hero. In this place and this service above all others, Jesus’ consequent command can still inspire and animate us too. We can hear it still, as if it had been issued yesterday: the command issued to the lawyer, heard by Lord Atkin and still addressed to all of us in the Church and to all of you who, in your high calling, serve the law: “Go, and do likewise.”
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