Hostname: page-component-78c5997874-8bhkd Total loading time: 0 Render date: 2024-11-10T16:40:54.378Z Has data issue: false hasContentIssue false
  • English
  • Français

The Metalegal God

Published online by Cambridge University Press:  15 April 2014

Rafael Domingo
Rafael Domingo*
Affiliation:
Professor of Law and ICS Research Professor, University of Navarra School of Law, Pamplona Francisco de Vitoria Senior Fellow, Center for the Study of Law and Religion, Emory University
Get access Rights & Permissions [Opens in a new window]

Abstract

This article deals with the relation between God and the secular legal systems of Western liberal democracies. It provides a normative argument for the compatibility of God and secular legal reasoning. In our age, in which believing in God is no longer socially axiomatic and the right to religious freedom protects all kinds of theistic and non-theistic religious beliefs, creeds and first philosophies, it seems contrary to religious neutrality for secular legal systems to single out God. This article instead argues that, although God and religion are inextricably intertwined, they affect the legal system in different ways because they are ontologically different. God cannot be reduced to a mere component of theistic religion. A proper understanding of secularisation might call for keeping God outside the legal system but not for driving God out of the public sphere of democratic societies. Secular legal systems are not atheist legal systems; they are legal systems ‘without religion’ but not ‘without God’. Secularisation implies some degree of minimal recognition of God as a metalegal concept. The specific degree of recognition of God appropriate for any given political community depends on its cultural and communitarian identity and should be subject to the rules of democratic procedures and majorities. This is the metalegal God.

Keywords

freedom of religionGodlegal systemmetalegal conceptneutralitytoleration
Type
Articles
Information
Ecclesiastical Law Journal , Volume 16 , Issue 2 , May 2014 , pp. 147 - 167
Copyright
Copyright © Ecclesiastical Law Society 2014 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Against this idea, see Greenawalt, K, Religion and the Constitution II: establishment and fairness (Princeton, NJ and Oxford, 2008)CrossRefGoogle Scholar, p 540. He does not conclude, however, that ‘the choice is wrong’.

2 See Micklethwait, J and Wooldridge, A, God is Back: how the global revival of faith is changing the world (New York, 2009), pp 12–19.Google Scholar

3 See Berman, H, Law and Revolution, I: the formation of the Western legal tradition (Cambridge, MA and London, 1983), pp 165–198Google Scholar; and Witte, J Jr, God's Joust, God's Justice: law and religion in the Western tradition (Grand Rapids, MI and Cambridge, 2006), pp 143–292.Google Scholar

4 For the concept of ‘constitutional theocracy’, see Hirsckl, R, Constitutional Theocracy (Cambridge, MA and London, 2012).Google Scholar

5 For an overview, see Witte, J Jr and Nichols, J, Religion and the American Constitutional Experiment (3rd edn, Boulder, CO, 2011)Google Scholar. For a European approach to the topic, see Schmidt, J, Religion, Gott, Verfassung: der Religions- und Gottesbezug in der Verfassung pluralistischer Gesellschaften (Frankfurt, 2010), esp pp 72–94CrossRefGoogle Scholar. See also Zucca, L, A Secular Europe: law and religion in the European constitutional landscape (Oxford and New York, 2013).Google Scholar

6 In the same vein see Micklethwait and Wooldridge, God is Back, p 25: ‘The American model of religion – one that is based on choice rather than state fiat – is winning. America has succeeded in putting God back into modernity partly because it put modernity, or at least choice and competition, back into God.’

7 On the concept of ceremonial deism, see Epstein, S, ‘Rethinking the constitutionality of ceremonial deism’, (1996) 96 Columbia Law Review 2083–2174CrossRefGoogle Scholar at 2094–2096, and, more recently, Nussbaum, M, Liberty of Conscience: in defense of America's tradition of religious equality (New York, 2008) pp 265–272Google Scholar. For the Continental Congress's practice of invoking the name of God, see Davis, D, ‘The Continental Congress and emerging ideas of Church–state separation’, in Gunn, T and Witte, J Jr, No Establishment of Religion: America's original contribution to religious libertyi(Oxford and New York, 2012), pp 183–186.Google Scholar

8 Zorach v Clauson, 343 US 36 at 313 (1952). In the same vein, see School District of Abington Township, PA v Schempp, 374 US 203 at 213 (1963): ‘The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.’

9 A Scalia, Dissenting McCreary County, Kentucky v American Civil Liberties Union of Kentucky, 545 US 844 (2005). Against this view, see Colby, T, ‘A constitutional hierarchy of religions? Justice Scalia, the Ten Commandments, and the future of the establishment clause’, (2006) 100 Northwestern University Law Review 1097–1140Google Scholar. To single out God does not imply to constitutionalise a hierarchy of religions.

10 See Dworkin, R, Religion Without God (Cambridge, MA and London, 2013).Google Scholar

11 In this vein, see Williams, R, ‘The bloody tenant of persecution for cause of conscience’ (1644), in Davis, J (ed), On Religious Liberty: selections from the works of Roger Williams (Cambridge, MA and London, 2008)CrossRefGoogle Scholar, p 87.

12 For a legal concept of religion, see Greenawalt, K, Religion and the Constitution, I: free exercise and fairness (Princeton, NJ, 2006), pp 124–156.Google Scholar

13 Durkheim, E, The Elementary Forms of Religious Life (New York and Oxford, 2001)Google Scholar, p 46.

14 For further explanation of this argument, see Domingo, R, ‘A new global paradigm for religious freedom’, (2014) 56:2Journal of Church and StateCrossRefGoogle Scholar (forthcoming).

15 McCreary County, Kentucky v American Civil Liberties Union of Kentucky 545 US 844 (2005).

16 In the same vein, see Ratzinger, J, Christianity and the Crisis of Cultures (San Francisco, 2006)Google Scholar, p 85.

17 For an overview of the original framework of the right to religious freedom, see Tierney, B, ‘Religious rights: an historical perspective’, in Reynolds, N and Durham, W Jr (eds), Religious Liberty in Western Thought (Atlanta, GA, 1996), pp 29–57.Google Scholar

18 See J Madison, ‘Memorial and remonstrance against religious assessments’ (1785) no. 1, available at <http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html>, accessed 31 January 2014. See also the Constitution of Massachusetts (1780), pt I, Article II, drafted chiefly by J Adams, available at <http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss6.html>, accessed 31 January 2014: ‘It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the Supreme Being, the great creator and preserver of the universe.’

19 Locke, J, ‘A letter concerning toleration’, in The Selected Political Writings of John Locke (New York and London, 2005)Google Scholar, p 134.

20 Williams, ‘The bloody tenant’, p 87.

21 Locke, ‘Letter concerning toleration’, p 155.

22 See Koppelman, A, Defending American Religious Neutrality (Cambridge, MA and London, 2013), pp 15–45.Google Scholar

23 For more on this argument, see Domingo, R, ‘A right to religious and moral freedom? A response to Michael Perry’, (2014) 12:1International Journal of Constitutional Law (forthcoming)CrossRefGoogle Scholar.

24 For a defence of the American specification of religious neutrality, see Koppelman, Defending American Religious Neutrality, pp 15–44.

25 See Greenawalt, Religion and the Constitution II, p 65 n 27.

26 Fuller, L, The Morality of Law (New Haven, CT and London, 1969)Google Scholar, p 33; also, in a similar way, Simmonds, N, Law as a Moral Idea (Oxford and New York, 2007).Google Scholar

27 On this see Sandel, M, Liberalism and the Limits of Justice (2nd edition, Cambridge and New York, 1998).CrossRefGoogle Scholar

28 See Matthew 19:17; Mark 10:18 and Qur'an 30.37 (‘An-Nāfi’') and 52.28 (‘Al-Barr’). In the Jewish liturgy, God is referred to as ha-tov, ‘the good one, whose mercies never end and whose loyalty never stops’, in the second-to-last blessing of the Amidah prayer that is recited three times a day. In the same vein, but reinforcing the preponderance of the holy over the good, see Heschel, A, God in Search of Man: a philosophy of Judaism (New York, 1955)Google Scholar, p 17: ‘Things created in six days He considered good, the seventh day He made holy.’

29 See Benedict XVI, ‘Faith, reason, and the university: memories and reflections’, Lecture at the Great Hall of the University of Regensburg, 12 September 2006, available at <http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/september/documents/hf_ben-xvi_spe_20060912_university-regensburg_en.html>, accessed 31 January 2014: ‘Not to act “with logos” is contrary to God's nature.’

30 Cicero, De natura deorum, 1.14.37: ‘nihil ratione … divinius’.

31 Dworkin, Religion Without God.

32 The argument is extensively developed by Finnis, J, Natural Law and Natural Rights (2nd edition, Oxford and New York, 2011)Google Scholar, p 49, and pt 3, pp 371–410.

33 In this vein, see Swinburne, R, The Existence of God (Oxford and New York, 2004)CrossRefGoogle Scholar p 215: ‘I cannot see any force in an argument to the existence of God from the existence of morality’.

34 In the same vein, see Finnis, Natural Law and Natural Rights, p 49.

35 For a deeper explanation see Witte, J Jr, From Sacrament to Contract: marriage, religion, and law in the Western tradition (2nd edition, Louisville, KY, 2012), pp 1–15Google Scholar; Girgis, S, Anderson, R and George, R, What is Marriage? Man and woman: a defense (New York, 2012), pp 48–52.Google Scholar

36 In the case of the US, this is very clearly so, as demonstrated by the famous statement attributed to many politicians (Bismarck and de Gaulle, among others) and quoted by Justice Scalia in his dissenting opinion in McCreary County v American Civil Liberties Union 545 US 844 (2005), at para I B: ‘God watches over little children, drunkards, and the United States of America.’

37 See Waldron, J, ‘The Image of God: rights, reason, and order’, in Witte, J Jr and Alexander, F (eds), Christianity and Human Rights: an introduction (New York and Cambridge, 2010)Google Scholar, p 234.

38 McConnell, M, ‘Free exercise revisionism and the Smith decision’, (1990) 57 Chicago Law Review 1109–1153CrossRefGoogle Scholar at 1152.

39 Benedict XVI, ‘Address to the Bundestag’, Berlin, 22 September 2011, available at <http://www.vatican.va/holy_father/benedict_xvi/speeches/2011/september/documents/hf_ben-xvi_spe_20110922_reichstag-berlin_en.html>, accessed 31 January 2014.

40 See Locke, ‘Letter concerning toleration’, p 158: ‘The taking away of God, even in thoughts, dissolves all.’

41 See Rawls, J, Justice as Fairness: a restatement (Cambridge, MA and London, 2001), pp 153–157Google Scholar; Rawls, J, Political Liberalism (2nd edition, New York, reprint 2005), pp 58–66.Google Scholar

42 See Hermogenian, Digests, 1.5.2 (ed Mommsen, T and Krüger, P, Digesta: corpus iuris civilis (Berlin, 1954)Google Scholar, vol. 1, 16ª): ‘cum igitur hominum causa omne ius constitutum sit …’ (‘all law is constituted for the sake of men’). See also Institutiones Iustinianus 1.12.12; Finnis, J, ‘The Priority of Persons’, in Intention and Identity: collected essays II (Oxford and New York, 2011), pp 19–35.CrossRefGoogle Scholar

43 For further explanation about the idea of dignity as status, see Waldron, J, Dignity, Rank, and Rights (Oxford and New York, 2012)CrossRefGoogle Scholar; Waldron, J, ‘How law protects dignity’, (2012) 71:1Cambridge Law Journal 200–222CrossRefGoogle Scholar at 201.

44 See J Madison, ‘Property’, in National Gazette, 29 March 1792, availale at <http://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html>, accessed 31 January 2014. See also George, R, Conscience and its Enemies (Wilmington, DE, 2013), pp 106–114.Google Scholar

45 See Ratzinger, J, Introduction to Christianity (San Francisco, 2000)Google Scholar, p 161.

46 In the same vein, see McConnell, M, ‘The origins and historical understanding of free exercise of religion’, (1990) 103 Harvard Law Review 1409–1517CrossRefGoogle Scholar at 1516: ‘If government admits that God (whomever that may be) is sovereign, then it also admits that its claims on the loyalty and obedience of the citizens is partial and instrumental. Even the mighty democratic will of the people is, in principle, subordinate to the commands of God, as heard and understood in the individual conscience. In such a nation with such a commitment, totalitarian tyranny is a philosophical impossibility.’

47 Waldron, J, Torture, Terror, and Trade-off: philosophy for the White House (Oxford and New York, 2010), pp 261–274.Google Scholar

48 Dred Scott v Sanford, 60 US (19 How) 393 (1956) at 550.

49 See J S Mill, Utilitarianism (1863) ch 5, in On Liberty and Other Essays, ed Gray, J (Oxford and New York, 2008)Google Scholar, p 195.

50 See Article 1 of the UDHR: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ For the important of this expression as fundament of human rights, see Perry, M, Human Rights in the Constitutional Law of the United States (New York and Cambridge, 2013).CrossRefGoogle Scholar

51 See Pope Francis, encyclical letter Lumen Fidei, 29 June 2013, no 54, available at <http://www.vatican.va/holy_father/francesco/encyclicals/documents/papa-francesco_20130629_enciclica-lumen-fidei_en.html>, accessed 31 January 2014: ‘Modernity sought to build a universal brotherhood based on equality, yet we gradually came to realise that this brotherhood, lacking a reference to a common Father as its ultimate foundation, cannot endure. We need to return to the true basis of brotherhood.’

52 See Witte, God's Joust, God's Justice, pp 31–48.

53 See Jackson, T, The Priority of Love: Christian charity and social justice (Princeton, NJ and Oxford, 2003), pp 70–169.Google Scholar

54 J Witte Jr, ‘Introduction’, in Witte and Alexander, Christianity and Human Rights, p 14. See, similarly, Berman, H, Faith and Order: the reconciliation of law and religion (Grand Rapids, MI and Cambridge 1993)Google Scholar, p xi.

55 For an expanded historical overview of the concept, see Forst, R, Toleration in Conflict: past and present (Cambridge and New York, 2013), pp 1–446.Google Scholar

56 Goethe, Maximen und Reflexionen, in Werke, VI: Vermischte Schriften (Frankfurt, 1981), p 507: ‘Toleranz sollte nur eine vorübergehende Gesinnung sein: sie muß zur Anerkennung führen. Dulden heißt beleidigen’ (‘Tolerance should only be a temporary attitude: it must lead to recognition. To tolerate means offending’).

57 For a new approach on religious toleration, see Leiter, B, Why Tolerate Religion? (Princeton, NJ and Oxford, 2013).Google Scholar

58 Against the toleration of atheism, see Locke, ‘Letter concerning toleration’, p 158.

59 Forst, Toleration in Conflict, pp 18 ff.

60 Against this argument, see M Nussbaum, Liberty of Conscience, p 12: ‘First of all, we should remember that even an apparently nonsectarian reference to God is in fact sectarian and excludes many people.’