Law: True or not?

Those of you who live in Australia and haven't had your head buried in the sand will know that a lot of people are talking about Aboriginal customary law just now.

Tony Abott and Mal Bruft think that we should be rid of Aboriginal customary law; it should have no place in our system of law. Many disagree. But not me, 'cause I'm a rabid right-winger, remember?

What's at stake?

Currently, a number of jurisdictions in Australia recognize some aspect of customary law. The area where it is most commonly used, and where the most heat is being generated now, is in sentencing criminals. If someone from an Aboriginal community is found guilty of a crime, a judge may (or may be compelled to) take customary law into consideration. This often involves elders from the convicted's tribe taking part in proceedings and "helping" the judge to decide an appropriate sentence.

This all started about a decade ago when it was noticed that there were an inordinate number of Aboriginal persons in prison, and that quite a lot of them tended to kill themselves while there. A better way of dealing with criminals of Aboriginal descent was needed. The suggestion made, and one which seems to have had some success, was introducing customary law into sentencing.

And now we want to do away with it. Why?

There have been a couple of high-profile cases where the result of customary law has been "obviously wrong". Most sensationally, a man who slept with a 14-year-old girl was given a very light sentence because, under customary law, she was promised as his wife, and customary law gave him the right, or at least the expectation, that he could sleep with her.

But to my mind this is probably an aberration. The vast majority of cases seem to benefit from the application of customary law. My objections go deeper.

One of the basic principles of the law is that it must be the same for everyone. This is not really codified anywhere (that I know of) but it is still a powerful force in our law. Courts will very readily appeal to this principle to decide a question. The NSW supreme court, for instance, rejected the application of Aboriginal customary law for this very reason, requiring that parliament legislate before it could bE used. In other jurisdictions it is explicitly codified; the US constitution has several provisions ensuring that the law is the same for all.

On first glance, it appears that application of customary law to cases involving Aboriginals breaches this fundamental principle of law. It is an area of law that is available only to a few; I will be treated with a different body of law to an Aboriginal person. But I heard a very curious quote in a news report last night. I didn't catch who said it, and I don't remember it word for word, but it amounted to this:

In order to ensure that everyone is the same before the law, it is necessary to apply different sets of law to persons from different cultures.

It seems bizarre at first, but when you understand where he is coming from, it makes a lot of sense. It all depends on your idea of truth.

For most of history, most people have accepted as absolutely obvious that a proposition is either true or it is false. "The sky is yellow" is a proposition that is either true or false, and all other propositions can equally be sorted into those that are true and those that are false. Furthermore, this "trueness" of a proposition does not depend on who does the sorting (so long as the proposition does not concern the sorting process itself). The sky is not yellow, no matter who assesses whether it is or not. In fact, the trueness of a proposition exists and is defined even if no-one assesses it. The sky is not yellow, even if no-one ever looks at it or questions what its colour is.

If you accept this version of truth, then the law you come up with will decide that some things are wrong, and some things are right. They may be right or wrong only in certain situations, but it will not matter who does them; they are either right or wrong. Murder is wrong; wrong for you, wrong for me. Rape is wrong; wrong for you, wrong for me. Sleeping with a 14-year-old girl is wrong; wrong for you, wrong for me.

Of course, there is another idea about truth out there. That idea is that truth depends on who you are. Something is not true simply because it is, but because I assess it to be true. The sky is not blue just because it is blue, but because I go and look at it and see that it is blue. Someone else might see that the sky is yellow; for them it is yellow. The fact that so far no-one has decided the sky is yellow (except in Mexico City some days) does not matter; the blueness of the sky is just my assessment of the truth.

If you accept this version of truth, then you will come up with a very different type of law, and this is where my unknown quote source is coming from, I expect. Since nothing is absolutely true then nothing is absolutely wrong, either. Therefore when our law forbids something, it does so only because our society has agreed that we won't do that. Murder is not intrinsically wrong, but we have agreed not to kill each other, and to discourage people from doing it. Sleeping with a 14-year-old is not intrinsically wrong, we have just agreed that it won't happen in our society.

Then you come across someone from a distinctly different cultural background. How can we impose our law on them? It is only true for us, not necessarily for them. So, for them, sleeping with a 14-year-old in these circumstances is not really wrong. How can we impose a harsh punishment on them if it's not really wrong in the first place?

Under this system of law, to treat all people the same means to treat them as their own cultural group would treat them.

This is wrong. Wrong wrong wrong wrong wrong. A few reasons why:

1. While people say they believe this in theory, I don't think many people believe it in practise. Many people might be persuaded that different cultural groups should have their own standards of behaviour and that we should respect them, but I don't think many people would be ready to accept and respect the views of a tribe of cannibal head-hunters. If a group of such people fetched up on Australian shores as refugees, would we be prepared to respect their way of life? I doubt it, not after the first few skeletons were found. It is no good to scoff and say this is an extreme example; such groups of people have existed and do exist in the world. How will we deal with them, if we can't tell them that head-hunting and cannibalism are wrong?

2. There is no obvious place to draw the line. What defines a community with a culture that should be respected? One of the problems of applying Aboriginal customary law is that each tribe had its own, slightly different, version of that law. So we are not accepting a single body of law into our system, we are accepting a different body of law in each different place. Why stop there? Each family has its own traditions and rules; why not take them into account? Each person has his own views on what is right and wrong; why not take them into account? It sounds stupid, but if you are going to accept that right and wrong is a relative thing then you are inexorably lead to it. It is entirely artificial to divide society into certain groups and say that everyone within that group is the same; they are not. They will all have slightly different views on what is right and wrong, so how do you determine at what level views are allowed into law? Some headhunters might only like to collect heads, while others like to rape their victims and eat them afterwards. Do you now have a different division of law?

3. (This is where we suddenly swing waaay out into the right wing.) In the end, what is right or wrong does not depend on what people think is right or wrong, but on what God thinks is right or wrong. If you don't believe in a sovereign God then you will not believe this, but it is true nonetheless. Your assessment of its truth does not affect its truth. If a transcendent, sovereign God exists, then his existence is independent of whether you accept it to be true. If he says something is right, then its rightness is independent of whether you think it is right or want it to be right. Each culture and government does not have liberty to artitrarily decide what is right or wrong; they are placed by God to restrain evil. Laws are made and enforced to prevent evil from spreading; this leads naturally to the good order of society.