Address by Hon Keith Mason AC

RETURNING HOME: A lawyers reflections on the parable of the prodigal son

Keith Mason, address at the Service for the Opening of the Legal Year, St David’s Cathedral, Hobart, 29 January 2010.

In my early days at the Bar I acted in many wills disputes, especially family provision claims. Nowadays I encounter them frequently as a mediator. As you know, courts in Australia can vary a will in order to make adequate provision for family members if the testator has failed to do so.

I once represented an executor who was seeking to fend off a family provision claim by an adult son. The testator had given the son a good education and set him up in business.  He bequeathed him comparatively little and, as best I recall, gave most of the estate to daughters who had not been provided with a similar kick-start. He took the view that the son had squandered what he had been given.

The will seemed eminently fair and I gave firm advice that the executor would win, only to be proved wrong.  My researches had overlooked a reported 1964 decision of Re Frewin.[1]  In Re Frewin, the plaintiff son worked for his father for a time, then married a woman of whom the father disapproved. The marriage failed. The son remarried and moved interstate. The father left the bulk of his estate to a friend, apparently unaware that the son was in poor health due to war service. When giving instructions about his will, Mr Frewin told his solicitor:

Dont  let Laurie upset this will. I have tried to help him be a man who will do something with his life but he has always let me down….I have waited so long for him to do something worthwhile with his life and become a son to be proud of. I have just given up hope he will ever realize there is more to be had from his life than just drifting along looking for a soft life but doing nothing to achieve it.

The Chief Judge in Equity, Mr Justice Charles McLelland, ordered a substantial legacy to be paid to the son out of Mr Frewins estate. He concluded that:

… the truth of [the] situation [lay] in the fact that the testator had a certain future planned for his son, and certain aspirations for his son, and envisaged his son turning out to be somebody something like himself, a successful businessman, and interested in the things that the testator was interested in…. [T]he sons capabilities were in a different sphere altogether from the fathers. I think the father could never understand this or accept it as a fact.

The parable in todays reading is found only in the Gospel of Luke. It points up the gulf between human and divine notions of justice. It offers hope to those who, like the prodigal son, may think they have ruptured their relationship with God or a close family member. And it challenges all of us to think and act as if the remotest stranger were one of our brothers and sisters.

Together with the stories of the lost sheep[2] and the lost coin,[3] the parable was Jesus response to a group of religious insiders who were offended by his practice of welcoming and dining with outcasts described in the gospel as tax collectors and sinners.[4]

Most of us know the story as The Parable of the Prodigal Son. This label recognises a threefold set of lost sheep, lost coin and lost son. The recovery of each comes about through the initiative of someone who cared about what was lost even where it seemed to have minor value compared to the ninety-nine sheep, the nine coins and the apparently dutiful son that remained behind. We are obviously invited to see God as that ceaselessly caring being and to do so in the context of Jesus startling claim, here and elsewhere in the New Testament, to be part of that very process.

Unlike the stories of the sheep and the coin, The Parable of the Prodigal Son deals with a subject who freely chose to leave and to return. But we are not called upon to judge him for these decisions. Rather, we are invited to stand joyfully beside him at the point of his return.

When the younger son prematurely wheedled his inheritance out of his father, this was as good as treating the father as if he were dead. The son then took off with what he regarded as his by right and he moved to a distant country, abandoning all connection with his father and the community of his family. There he got by, for a time, living off his own resources.

Each of us have chosen our own distant countries and taken off to them with similar self-assurance.

Cut adrift, the sons prodigal or profligate lifestyle fails to sustain him. Instead, he drops as far as it is possible to go. Dissolute living squanders his material inheritance. He even becomes a pig farmer, which would have been an ultimate indignity for a Jew. Starving and despondent, he turns back towards home, intent on cutting a deal that will provide him a roof over his head as an employee of the household.  But before he can complete his prepared speech of self-abasement he is embraced by the father who had already rushed out to greet him. He is escorted back home and welcomed with great rejoicing. He is not asked to affirm any doctrinal statement or recite any family creed. The parable teaches that he had never ceased to be the beloved son of his father. It was always open to the son to acknowledge this and, in doing so, return home.

Over the summer I have re-read two wonderful books by the American author Marilynne Robinson. She won the Pulitzer Prize for the first book, Gilead, in 2005. The second, a companion piece called Home is even better, in my opinion. Each book covers roughly the same events from different perspectives in the style of Rashomon and The Alexandria Quartet. Robinson sensitively explores relationships within families, especially between fathers and sons. The central character is Jack Ames Boughton who returns home after a long, unexplained absence. Jack presents as the vexing prodigal son of both his natural father and his fathers closest friend (John Ames), who at his natural fathers request, had baptised Jack with his own names. Each father is an aging clergyman who is steeped in the theories and practices of good living. The men have other children whom they believe they understand and with whom they relate comfortably. But neither is able to give Jack the acceptance he craves and to which he is entitled even as a wayward son. The reasons are sad and complex and they include Jacks own inability to tell the two men why he stayed away as he did. But the reader is left in little doubt that the differing limitations of the two fathers are more significant than the continuing shortcomings of the prodigal.

Like the father in the parable, we earthly parents are frequently called on to meet the disparate needs of our children and to address issues of conflict between them or between us and them. Yet the pressures of life and work sap the time and energy we need for going out to meet loved ones when they may be returning home or when they need to be encouraged to do so. As with the two clergymen in Marilynne Robinsons novels, our professional mindset may erect its own barriers. Lawyers are always analysing and drawing lines and making judgments. It is easy to overlook our loved ones need for our acceptance more than  reproof or even understanding.[5]

The father of James Boswell, Samuel Johnsons biographer, was a busy barrister who was appointed a judge in Scotland in 1754 when Boswell was fourteen. Throughout his life Boswell had a particularly fond memory of a day spent fishing together when he had been a small boy. We would now refer to this as quality time in a parent-child relationship. After the fathers death, Boswell came upon his diary and was able to turn up the relevant entry. Sadly the fathers note read: Gone fishing today with my son; no fish, a day wasted.

The parable might have ended with the return of the prodigal, encouraging all of us to return home from whatever distant countries we may be inhabiting. But we are immediately introduced to the second brother and in him we encounter a character closer to ourselves than we may prefer to admit.

Some commentators prefer to call this The Parable of the Two Sons.

Notice that, at the beginning of the story, the older brother also took his share of the inheritance. Like his sibling, he pocketed what he considered his by right simply because he was a son.

Many family members that I encounter during mediations view things in the same way. They see their bequests as overdue entitlements and they regard the family provision applicant as someone attempting to grab their own property. Mediators are schooled never to give advice or show their own thoughts. But I have recently taken to manufacturing a controlled outburst if the mediation seems to be stalling for these reasons. I remind these folk that they are donees of the testators generosity, and that they are also at risk that the court may displace the will. A spirit of generosity and a note of reality will hopefully re-enter the discussions.

But back to the older son. He also encounters the father away from his home. But, unlike the situation of the penitent prodigal, it is the father who is begging him to return. But the son confronts him in the rudest of terms. He upbraids him for his naive generosity and he refuses to come back for the party.

Probably he, like many churchgoing insiders, regarded his brothers sinfulness in matters of the flesh to be in a different category to his own unacknowledged shortcomings of resentment, envy and condemnation.  But in the parable his anger was really focussed on the fathers eagerness to forgive, welcome and restore an undeserving younger brother whom the older brother had written off. The older brother presumably feared that such parental liberality would in some way diminish the value of the reward due for his own constancy.[6] He was certainly in the game of comparing his own perceived merits with that of the prodigal, as if they were relevant to the fathers acceptance of either son.

In these very human responses, the older son stood with those whose jibing had provoked the three parables of the lost. His unwillingness to accept the fathers entreaty to join in the welcome home party really falsified any claim on his part to be an obedient son. Some commentators have concluded that it was the older son who was truly lost. But the end of the story leaves the invitation for him to return home hanging in the air. That invitation stands for all of us who may see reflections of the older brother in ourselves.

In his short play called The Return of the Prodigal Son,Andre Gide describes the older brother as one who prize[d] order more than love. Of course that is right. But was this an individual failing? Or is there something of timeless value in the questions he asked, and the answer he was given?

And is there something of special interest to us lawyers, given that the questions were all about matters of justice?

Where was the justice of the fathers treatment of his two sons?

One way of testing it might be to ask what would we as lawyers do if the father died on his way out to greet the prodigal and the prodigal had the temerity to lodge a family provision claim?

Much of our work as lawyers is directed at matters of good order. In both civil and criminal matters we seek to quell disputes and dispense corrective justice. However, some laws go further and seek to promote the welfare of individuals who are poor or disadvantaged or who are refugees. Family provision claims also address individual needs, although on the basis that the testator has failed to provide justly in all the circumstances.

Whether the prodigal son could have got a family provision claim over the line by citing Re Frewin, the case I overlooked early in my career, can happily remain a moot point. In the final analysis, the parable moves us right away from human notions of justice. A better title for it might be The Parable of the Prodigal Father.

It was the father who never flagged in his concern for both of his undeserving sons. It is interesting that he saw the returning prodigal from far off (v20), suggesting that he was on the roof actively searching out for him. In different ways that would have been equally startling to observers steeped in the Eastern cultures of Jesus listeners,[7] he abased himself in going out from his home to encounter each of them in the way that he did.

There is a huge gulf between the loving God portrayed in the parable and the fictional wise and just testator of family provision litigation. The father in the parable was able to tell each son that all that is mine is yours (v31). A testators estate is necessarily limited as are the judges powers under the legislation.

We may not expect to plumb the depths of this remarkable parable any more than we will understand the depths of our heavenly Fathers love. But one clue to the difference between human justice and divine justice, indeed between human and divine love, is because, in the words of John Ames, the narrator in Gilead: [8].

There is no justice in love, no proportion in it, and there need not be, because in any specific instance it is only a glimpse or parable of an embracing, incomprehensible reality. It makes no sense at all because it is the eternal breaking in on the temporal.

The parable of the prodigals also contains a warning for anyone who may think he or she can identify and demarcate who is lost and who is found. At its critical points, the parable encounters each brother away from his true home; and their situations appear diametrically opposed.  Even at the end of the story the reader may think he or she detects a significant gulf between the two brothers. Yet the fathers words to the older son are that each son is loved and accepted. Each is encouraged to return to a common home and to treat the other as a full member of a common family.

When the older son proceeded to lecture his father about the injustice of his own situation, he could not bring himself to admit any connection with the prodigal whom he referred to dismissively as this son of yours (v 30). Perhaps there was an unintended irony because the prodigal always remained the beloved son of the father. Nevertheless, the father went out of his way to rebuke the older brother on this point. In the same breath as he assured the elder son that he loved and accepted each child, he corrected him by referring to this brother of yours.[9]

The whole of Scripture affirms the worth of our earthly callings and the importance of being concerned with matters of justice and love in the here and now. For those of us involved with the law, whether as judges, lawyers, mediators, teachers or administrators, this means that we are continuously called upon to do justice, and to love mercy, and to walk humbly with our God, in the words of the prophet Micah that we have had read to us today.

The rich parable we have been contemplating also reminds us that the accused person we encounter standing in the dock, the convicted prisoner in the gaol, the annoying colleague, the desperate asylum-seeker and even the hostile extremist who is seeking to destroy all that we hold near and dear are each of them sons and daughters of the one heavenly Father. This makes them our brothers and sisters at all times and we should be prepared to embrace them as such if and when any opportunity arises.

[1] [1964-5] NSWR 1531.

[2] See Luke 15: 3-7. See also Matthew 18: 12-14.

[3] See Luke 15: 8-10.

[4] See Luke 15: 1-2.

[5] In Home, Jacks sister observes (p45) that: There is a saying that to understand is to forgive, but that is an error, so Papa used to say. You must forgive in order to understand. Until you forgive, you defend yourself against the possibility of understanding….If you forgive…you may indeed still not understand, but you will be ready to understand, and that is the posture of grace.

[6] Cf also the position of the labourers who grumbled when the landowner paid those who started late in the day the same as they would be getting for having worked all day. In the parable found in Matthew 20 the landowner rebuked them, stating Am I not allowed to do what I choose with what belongs to me? Or are you envious because I am generous? (v 15).

[7] See generally Kenneth E Bailey, The Cross and the Prodigal; The 15th chapter of Luke seen through the eyes of Middle Eastern peasants (1973) Concordia Publishing House.

[8] Gilead, p 272.

[9] See also the acount in Matthew 25: 31-46 about the sheep and the goats. The person rebuked for his failure to give food and drink to the needy or to visit them in prison is told that he failed to care for members of my family and thereby failed in his duty to God himself (v 40, 45).