Making Sense of Exceptions

Contemporary Australian jurisprudence tacitly enshrines “one nation under the Constitution” rather than “under God”. That Constitution does not provide a comprehensive freedom of religion or other faith; instead it is a fin de siecle artifact that sought to address cultural and religious anxieties by forbidding an established church.

That compromise — arguably a key aspect of the “Australian Settlement” espoused by figures such as Alfred Deakin^[665] — has fostered the emergence of a heterogeneous post secular^[666] society in which the “artificial” religion of Scientology enjoys some official recognition,^[667] a large number of Australians irreverently identify their religion as Jedi,^[668] and the common law offence of blasphemy has passed into desuetude.^[669]

Legislatures and courts are however continuing to grapple with challenges posed by religious claims to exclusive authority in vilification of other faiths or street preaching,^[670] religious speech in public places,^[671] State funding of private schools,^[672] the duties of people where there is a conflict between secular law and religious authority,^[673] for example Shari’a and Indigenous customary law.^[674] Those challenges are complicated because faith potentially melds with national origin or ethnic identity, reflected for example in the wording of section 9 of the Racial Discrimination Act 1975 (Cth), which refers to “race, colour, descent or national or ethnic origin”.^[675]

Markus Davidsen, in discussing “Jediism” referred to “salad bar spirituality”: identity as entertainment.^[676] Despite growing secularism, faith, or a broader ethno-religious identity, still matter.

Australian law recognises exceptions to legal norms regarding bodies, ie formally or tacitly provides dispensations for members of particular groups on the basis of faith or ethnicity. We characterise that dispensation as cultural exceptionalism. It is not comprehensive and does not, for example, involve parallel legal systems, systematic imposition of disabilities or freedom from civil responsibilities on the basis of religious affinity or ethnic identity.

An examination of cultural exceptions is useful because they potentially tell us something about the nature of Australian law, in much the same way that the civil disability experienced by people through prohibition of same-sex marriage offers insights about legal values and power relationships. As indicated above, our snapshots come from the boundaries of law, where values may be quite visceral and contestation a marker of belonging in a pluralist society. The snapshots reflect the chapter’s origins as a paper in a symposium on justice, where the authors aspired to encourage discussion rather than simply articulate settled law and undisputed principles.

How have we made sense of the exceptions?

In considering Australian and overseas law we have eschewed grand theory^[678] and instead relied on legal pragmatism, in practice an inquiring state of mind rather than a coherent but innately reductive heuristic.^[679] Reductiveness is to be avoided because grand simplifications are inconsistent with the reality of legal practice, elide diversity in lived experience and disregard human dignity by conceptualising the subjects of law as manifestations of stereotypes rather than individuals.

The enquiring state of mind — what Posner characterises as “practical, instrumental, forward-looking, activist, empirical, skeptical, antidogmatic, experimental”^[680] — is marked by an interest in what actually happens in law. It emphasises outcomes rather than what are claimed to be foundational principles.

It is also marked by willingness to ask questions that do not result in clear, definitive answers. That openness to different qualities and values is captured in the early comment by phenomenologist William James that pragmatism

has, in fact, no prejudices whatever, no obstructive dogmas, no rigid canons of what shall count as proof. She is completely genial. She will entertain any hypothesis, she will consider any evidence.^[681]

Legal pragmatist Oliver Wendell Holmes Jr is described by Brian Tamanaha as having irreverently pierced the

prevailing mode of analysing common law concepts as if they were essentialist notions of timeless provenance with a necessary internal structure and set of external relations. His favorite debunking technique was to employ historical analysis to demonstrate that these abstract concepts have a terrestrial origin in a specific context, derived from particular and contingent needs, and not infrequently based upon mistake. Holmes argued that legal rules should serve human purposes and must therefore be shaped to meet these purposes.^[682]

Martha Minow and Elizabeth Spelman echo Posner in noting the importance of looking at realities rather than reductively at abstractions. They comment that

the demand to look at the context often means a demand to look at the structures of power, gender, race, or class relationships, or the effects of age and physical vulnerability on people’s abilities to protect themselves.^[683]

The following examination of exceptionalism is grounded in a recognition that people are not the means to an end^[684] and that at the borders of law there are tensions regarding autonomy and social goods that in a liberal democratic State are not easily resolved.