Law and Religion: Law, Religion, and Morality

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The relation between law, morality, and religion in the West has grown progressively more complex and fragmented over the last five hundred years. Historically, two paths emerged in Western thought regarding the relation of transcendent justice and positive law secured in the secular political order. The natural-law tradition followed Platonic philosophy by locating human cognition of true justice in a rational awareness of the divinely sanctioned order of the universe. The other tradition arose from conceptions of obedience to divine command. Such movements were more skeptical of human apprehension, reserving knowledge about justice to that received by revelation of the Divine Will. The Hebraic tradition, typified by the Ten Commandments, was structured around the community's faithful response to the laws of the God who created and sustained them. The Christian apostle Paul claimed that only through fideistic awareness of God's activity can true justice be revealed, and that only absolute reliance on faith alone as the means of grace could deliver one from evil. For Augustine, the world of things below is for security onlyto restrain eviland the true focus of the believer's attention was the heavenly kingdom, known through faith alone. Human knowledge could not achieve any awareness of true justice.

There are many approaches to the study of the changing connections of these spheres of human life. Some theorists focus on philosophical accounts of the validity of legal, moral, and religious claims and concepts. Others emphasize the many structural similarities between law, morality, and religion, since each sphere claims authority and obedience over the lives of adherents, each reproduces itself through a tradition of concepts and rituals, and each claims universality and a comprehensive character. Still others hope to articulate a religious or moral worldview which unites each of the spheres in some comprehensive fashion, often subordinating legal goals and processes to religious or moral claims. Whichever method is adopted, the fact remains that the social structure of law continues to develop as an increasingly isolated sphere. Law in the West has grown more unified as an instrumental mode of social formation, purged of the supposedly extraneous elements of religious and moral culture. At the same time, religion and morality, to their adherents, continue to be comprehensive in their claims about the proximate and ultimate goods for human life. But as a mode of culture, religion has exploded into countless, disconnected ways of life. One major problem for the relation between modern law, religion, and morality is whether these social spheres relate to each other any longer, and if so, how they relate.

Modern democratic legal systems usually accommodate some form of religious plurality and refrain from establishing or privileging any particular religious entity or practice through legal sanction. But these legal systems are often unable to account fully for the idea that religion is not just a distinct set of religious rituals, a defined community, and a discrete body of doctrines. Religion is also a worldview, a set of ideas and beliefs of conscience about the nature of the world, that for many people shape all of their moral, economic, social, and personal affairs and choices. Religion and morality have become increasingly private and individual affairs, formed by interaction between the human subject, his or her culture, and his or her conscience.

Until the late Middle Ages, a predominant idea in the West was that the cosmos and all of nature contain intrinsic rational principles which human beings can apprehend in order to understand how to form their political, moral, and legal affairs. This "natural law" was an eternal order invested by the Creator in all reality. While it could be apprehended independently from religious revelation, natural law was thought to be consistent with deeper cosmological truths. The Protestant tradition broke from this structure and adopted an Augustinian anthropology in which humans live in two realms simultaneously, the empirical reality of time and space and the transcendental sphere of the numinous experienced by faith alone. The claims of religion about the transcendent Divine cannot be verified or denied by empirical or rational investigations, and the location of religious experience is the individual's conscience. Under the conditions of modernity, fueled by these Protestant ideas, it has become increasingly the case that claims can only enter legal discourse if they are universalizable and empirically testable. Law deals with discovery of facts and adjudication of testable claimswhat the law "is" has an empirically verifiable character. Therefore, modern law as it has developed does not directly relate to claims of religious revelation, private intuition, or other sources of "ought-claims."

Western law has often, especially in recent centuries, focused on the concept of sanction, that element of the law's origin in a legitimate process of legislation which gives any law its authority as a command that must be obeyed. With the decline of natural law as a persuasive model, the human process by which law is created took on greater importance. If law can no longer be discovered in the nature of things, for modern people its authority comes from the legitimacy of the institutional procedures of the legal system, accorded by its subjects who have authorized it to have power on their behalf. Positive lawthat law which is posited or willed through the legislative processhas nearly become the exclusive focus of obedience and legitimacy. Positive law so conceived bears only historical relations to moral and religious culture, and any direct links are historically contingent once adopted into legal code. In modernity, the human ruler or community sanctions human law, using criteria of efficiency and utility to achieve social, economic, and political goals desired for any number of practical reasons. Conceptions of political goals and legal rights are increasingly identified with individual preferences and prevention of harm, rather than transcendental or religious goods.

The problem for law and politics under these new conditions is a crisis of legitimacy: how, under conditions of such radical social upheaval, can political will-formation and legal obedience be achieved and successfully reproduced? From the new American society, where writers worry about increasing individualism and decreasing religious checks on such unbridled drives, to the old Europe, where the church has lost most of its grip over the hearts and minds of the citizenry, many have seen a profound crisis develop in how society can remain cohesive and functional under law when, from a moral and/or religious standpoint, there exist a vast plurality of uncoordinated societies.

Law, Morality, and Religion in Classic Modern Theory

Niccolò Machiavelli (14691527), in The Prince (1517), dismissed the concept of the common good as the primary telos of the sovereign's legislative activity, replacing it with the hallmark of political realism, the raison d'état. Machiavelli's prince only needed to concern himself with the balance and preservation of power while exercising statecraft. Thomas Hobbes (15881679), in his Leviathan (1651), carried this vision forward by claiming that the goal of self-preservation was the primary function of individuals who organized themselves into a legal state to achieve greater and lasting security. The right of nature, according to Hobbes, is the simple liberty each human has to use his or her own power, as desired, for the preservation of his or her life and to do anything which, according to his or her own judgment and reason, he or she conceives to be the most appropriate means to reach that goal. Hobbes's break with the medieval worldview can be seen here since the greatest good for each individual is his or her own natural preservation, not flourishing as defined by a transcendental moral or religious good.

Hobbes argued that since the natural condition of humankind was a war of each against all, self-interested agents must recognize by reason that their surest possibility of achieving self-preservation can only come through transfer of their natural liberty to a common and ultimate authority who can adjudicate disputes, provide an established law, and create conditions of security for each individual. In Hobbes's view, humans are not naturally social as Aristotle had held; rather they enter society by convention, for the promotion of their own interest. The social contract is the mechanism whereby individuals mutually and equally lay down their rights to every other citizen, forming a society which transfers their collective, natural liberty over to the coercive power of the sovereign. Thus the will of the sovereign alone, authorized by the contract between citizens, creates the force of law. The legislating sovereign is not bound by nor aims toward transcendental moral or religious goods, nor does the civil law aim for anything other than external compliance. The sovereign must, however, institute order in the earthly kingdom. And, as Hobbes knew well, skirmishes over religious doctrines had caused many of the bloodiest conflicts in human history. To alleviate these conditions, he argued that the political sovereign must judge doctrinal disputes and shape a coherent and unified set of religious beliefs and practices for the political community, lest their squabbles cause civil unrest.

John Locke's (16321704) Second Treatise on Government (1690) shaped a legal philosophy to support the English Revolution of 1688 and espoused perhaps the most influential theory of modern liberal democracy. He argued, against Hobbes, that the sovereign was bound by a criteria of transcendental justice known by natural reason. Locke demonstrated the creation of civil society in a manner similar to Hobbes, basing its legitimacy in the state's role of protecting property rights and serving as a fair, common arbitrator of disputes. However, Locke decreed that God appointed the government to restrain the partiality and violence of humans and to remedy the inconveniences of the state of nature. According to Locke, each individual recognizes by natural reason the fundamental law of nature: each human, being equal and independent, should not harm any other in his or her life, liberty, health, or property. Under the social contract, the sovereign must legislate toward the common good of the collective members. The only legitimate end of state action is the peace, safety, and public welfare of the people. If the legislator acts against the ends of security and preservation of the people, Locke contended that the people, using natural law as their guide, have the right to rebel and to establish the government anew, since an unjust or arbitrary sovereign would be in a state of war against them.

Civil authority is here limited to the preservation of material property and earthly security, not to the creation of a pietistic or moralistic state. Locke thereby rules out the ecclesiastical authority from having anything to do with the governance of common affairs. Further, he contends that, being free and equal, each individual should have freedom of conscience over his or her own thoughts and affairs. In his Letter Concerning Toleration, Locke argues, also against Hobbes, that the care of souls, the management of estates or health, the choice of religious rituals, and private judgments about doctrine or political matters all belong to the individual, and toleration must therefore be accorded by the sovereign and fellow citizens for various patterns of life.

Locke does merge religious claims and law together, however. All human actions ought to be conformable to the law of nature, which he equivocates with both natural reason and the will of God. The fundamental law of nature is a declaration of the basic good of the preservation of life, written into the very fabric of human life. No human law can be good or valid that cuts against this law. However, the criteria by which a law is judged remain exclusively rational. This is not a contradiction, since Locke assumes that the proper operation of natural reasonthe gift of Godwould yield a result that correlates with the intention of the Divine. Locke also articulated two instances where the sovereign could interfere with an individual's personal beliefs. Locke argued that those who claim allegiance to a foreign prince should not be tolerated (such as Catholic allegiance to the papacy), since they would hold higher allegiance to someone other than the political sovereign of the territory. Thus moral conscience can be intruded upon when obedience to the authority of the legislator is compromised. Secondly, Locke argued that atheists must not be tolerated. Locke holds that if belief in God is taken away, then the ability to hold promises, covenants, and oathsthe bonds of society itselfis made impossible. But a more subtle and profound point is at stake, one that shows the extent of the relation of law and religious claims in Locke. Natural reason teaches that all humans, being equal, are not to be harmed in the pursuit of life, liberty, health, or property. Locke does not argue that reason teaches that humans are equal. Rather, this conclusion derives from a religious claim that humans are the created property of God, sent to earth about God's business, and thus there can exist no subordination between humans that authorizes another's destruction or use. Humans are equal since they are created equal. At the very heart of Locke's arguments for the establishment of civil law is a fundamental religious claim about the human being.

In the German tradition, Immanuel Kant (17241804) argued that the civil law is created by rational, autonomous agents, who aim to institute a self-imposed structure to protect and guide their lives. Kant argued that the civil law achieves moral ends for all persons, yet the state must extract legal claims and institutions from particular religious and moral claims. For Kant, the civil condition institutes justice, which he defined as the universal moral end of making possible each individual's self-determination in a way that is consistent with the freedom of every other individual. The civil law is posited by the common sovereign who acts in a manner consistent with universal reason, promulgating law that all rational subjects could have agreed to for themselves. The only direct goal of the civil state is the achievement of this coexistence of external free actions. The civil law does not have as its goal the moral betterment of the social agents nor religious community-building, but simply to provide the conditions upon which free agents could pursue these or other ends. Kant held that religion can provide important motivation for pursuing a moral life under the civil law, but this meant that religion must be elevated to its rational meaning, and its subjective and impassioned elements must be tamed by reason.

Law, Religion, and Morality in Modern Jurisprudence

William Blackstone (17231780) strongly espoused natural-law theory in his Commentaries on the Laws of England (17651769). Human positive law must be subsumed under the natural order, and "no human laws are of any validity, if contrary to this." Alexis de Tocqueville (18051859), in the first volume of his Democracy in America (1835), described how such a practical fusion of religion, law, and morality was present throughout the early American colonies. The penal laws of early America were above all concerned with reproducing moral order in society. Thus, laws often addressed the domain of conscience and were pietistic in scopesuch as forbidding unmarried persons from keeping company, prohibiting kissing, laziness, or drunkenness; insistence on attending religious services; or disallowing blasphemybesides more obvious crimes such as rape and incest. Tocqueville was most fascinated by the fact that these laws often were not arbitrarily imposed but freely adopted by the citizenry who wanted laws reflecting their religious mores.

But Blackstone's contemporary, David Hume (17111776), articulated skepticism about natural law that has held lasting influence over jurisprudence; his analyses of human nature and philosophy rendered all ideas of justice dependent upon invention, social custom, and habit. Jeremy Bentham (17481832) defined political society in a way that followed directly from Hume. Political society is formed when a number of subjects are in the habit of paying obedience to a person, or an assemblage of persons, the sovereign. The command of the sovereign is law. In A Comment on the Commentaries, he directly refuted Blackstone's notion of natural law as a criterion by which positive law is to be judged. For Bentham, although a duly legislated law might be bad according to moral or religious criteria, it is still law. He argued that law should be based on the calculative capacity of the human mind to apprehend how the outcome of actions will maximize pleasure, and thereby chart a course of action that will end in relative happiness. Bentham, like John Stuart Mill (18061873), believed that legislation should aim to maximize social utility rather than institute transcendent moral principles in society. Legal codes evolve as particular societies develop. The law of any particular polity is not transcendent and static, but dynamic and fluid, incorporating social customs, practices, and moral preferences into the civil law. Further, the only legitimate constraint over individual behavior is to prevent that action which inflicts harm upon others (the "harm principle").

It was John Austin (17901859), a disciple of Bentham, who explicitly distinguished positive laws from other cultural elements in his Province of Jurisprudence Determined (1832). Such "extraneous materials" include the divine law, natural law, and particular moral claims. Austin does hold that there are moral criteria that may be applied to the law, tests that can determine if a positive law is what it ought to be. But positive laws are sufficient in their own power, not being fashioned on the law of God but posited by utility. Austin famously declared, contrary to Blackstone, what has become known as the "separability thesis," which holds that "the existence of law is one thing; its merit or demerit another." What law is by social agreement, and what it ought to be according to moral or religious ideals, are distinct and not necessarily related.

Law, Morality, and Religion in Later Theory

According to Max Weber (18641920), modern Western societies developed on the basis of "functional differentiation" between social spheres. This process of social division has changed the basis of societal solidarity and disrupted social integration by rationalizing and minimizing the impact of traditional forms of cultural cohesion, a process often termed "secularization." Where the medieval worldview had created a homogenous social structure, modern life is marked by a vast plurality of social modes of existence and underlying worldviews, which splinter individuals into increasingly diverse modes of life. With traditional forms of religious and moral community no longer capable of producing social cohesion, complex forms of bureaucratic structures have emerged with a monopoly of power to regulate activity, social functions, and interaction. Social power has become increasingly centralized in the state bureaucracy, resulting in the monopolization of power into the state. The state, as the legitimate political authority through law, has colonized other aspects of society, increasing its domination through steering mechanisms of policy and planning. For Weber, the existence of a society's rules and laws is not dependent on their satisfaction of moral purposes or goals; rather the laws are legitimate solely by reference to their origin in the procedures of the social system. Since laws are made to regulate social reality, an analysis of the law is primarily a description of how effective law is at meeting its goals. Such goals are arbitrary from the standpoint of the descriptive analysis of law, as well as from the standpoint of jurisprudence; the question is not what law ought to accomplish but whether law achieves the desired goals of utility. This idea is basic to the "Legal Realism" and "Law and Economics" movements.

H. L. A. Hart (19071992) argued that a legal proposition which ran counter to a moral proposition was still a valid law. Yet, for Hart, there was nothing to prevent societies from holding that a rule is a valid law and that it should be overturned, modified, or resisted. The processes by which law exists allowed the conversion and transformation of the law, and these processes were driven by ideals that came from a variety of sourcesmoral, legal, economic, and utilitarian. While there is often a coincidence between legal and moral rules, a law is valid as a rule of law on the simple condition that it is enacted according to and consistent with the procedures given in the society. The mere fact that the rule might conflict with a moral criterion is insufficient to invalidate the rule as a law.

But where the utilitarians argued that the validity of law was sufficient in the capacity of the state to coerce those subject to it, Hart argued that the laws resonate more deeply in citizens than is accounted for by the concepts and motives of mere obedience or the avoidance of coercion. As he articulated in "Positivism and the Separation of Law and Morals" (1958), the proper distinction between law and morality should be between "what is" (the law) and what from many different points of view "could be" or "ought to be."

Hart's concern in Law, Liberty, and Morality (1963) was to investigate the legal status of a class of actions that are considered immoral by communal standards but result in no harm to others. This work was written in response to Lord Patrick Devlin's attack on the Wolfenden Report of 1957, which had argued that because no public harm issued from homosexual relations between private, consenting adults, it ought to not be illegal in England any longer. Hart agreed with the report that without an external harm committed, the law's legitimate scope could not enforce some conception of communal moral standards against the private affairs of consenting adults. Yet he did allow that the harm principle was too narrow: the state could have a compelling interest to intervene in protecting a citizen from him or herself or when the citizen's actions contend with standards of public decency. Fundamentally, however, Hart argued that moral facts and values change, that the proposition that any deviation from a society's shared morality threatens its continued existence is unsustainable when faced with the simple fact of the continuous evolution of social norms.

The natural law tradition has continued to garner interest despite the realism and positivism that characterizes modern law. Hart's primary interlocutor and critic, Lon Fuller, in The Morality of Law (1969), argued for a vision of the moral characteristics of any valid legal system, the so-called internal morality of law. By looking at certain formal characteristics or procedures that Fuller maintained must be obtained in any legal system, he contended that these characteristicssuch as comprehensibility and promulgationdisplay a moral purpose and structure inherent to the law. In order to garner widespread compliance, the laws need these characteristics to render them tasteful to the citizenry. Further, any legal structure must ensure respect for human dignity and treat humans as subjects of their own actions, all moral goals. Since the purposiveness of law is directed to societal balance, Fuller contends this goal is inherently moral.

For John Finnis, a contemporary theorist working in the tradition of Thomas Aquinas (12251274) and Blackstone, the natural-law tradition still has validity as a theory of the obligatory force of positive law. In a nonsectarian fashion, Finnis set out to describe those "basic forms of human good" that organize the goals of positive law, goods to which all humans naturally subscribe. Civil laws aim to solve coordination problems in the common pursuit of these basic, natural goods. For Finnis, a law which is unjust according to moral criteria may still have the force of law, but the law in question has not fully achieved the character of law.

Jürgen Habermas (1929), a neo-Kantian, recognizes the splintering of social groups described by Weber and the destructive effects this can have on social cohesion and formation of political will, but refuses to return to religious-based or natural-law conceptions. As a remedy to social disintegration, he argues for a conception of legal procedure that allows a society to protect the rights of subjects and to achieve common interests while maintaining the diversity of basic social structures. This is the only way out of the modern deconstruction of traditional norms of social conduct without turning social organization entirely over to the objectivizing strategic calculations of social scientists and legal theorists. Habermas aims to reconstruct the contemporary system of law around the notion of popular sovereignty in such a way that legal subjects organize for themselves the political power they possess and structure their social interactions so as to achieve certain strategic interests in a social order that is otherwise diverse, plural, and incommensurable.

Legal structures can thus be the result of both the rational reflection and the willful intention of humans who create social order through processes of interaction, using all of the capacities that human beings can creatively bring to bear on the task. While this rational intentionality can be utilitarian and calculative, many modern theorists have shown how the law is also infused with moral intentions based in rational reflection, natural desires, subjective goals, and religious belief. Indeed, it could be argued that legal systems are not simply institutions that are obeyed through threat of coercion, but depend for their smooth operation and flourishing on persons who, ennobled by their religious and moral sentiments, actively cooperate and participate in social order through law. Since legal structures safeguard individuals and communities from harmful and destructive forces, regulate interaction so that freedom is maximized, and create conditions of stability and order which allow humans to flourish, the law achieves goals important for many persons of moral and religious goodwill. Thus, the pursuit of earthly justice is sufficiently described by non-moral criteria, which, for some, can be at the same time a religious and moral task. Yet in the modern state, participation as a legislator or citizen is largely a task driven by legal criteria and goals.


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Michael Kessler (2005)

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Law and Religion: Law, Religion, and Morality