In the past fifteen years, religious freedom has had powerful wins in the United States—its Supreme Court has defended the right to private prayer in public spaces, used the ministerial exception to shield religious entities from state intrusion, abandoned the constraints of Lemon v. Kurtzman (1971), and so on. Simply put, religion has gained new space.
Rafael Domingo’s Law and Religion in a Secular Age envisions what religion, given the space to flourish, can do. In fourteen chapters, Domingo paints religion not as a right to be seized—though he defends the right to religion vigorously—but as union with the transcendent overflowing with good to be given, including given to law. He reveals “the value of religion, spirituality, and natural law in secular societies” and the “fruitful interactions and lasting synergies between Christianity and law” (xi–xii, emphases added).
Domingo begins with two chapters that “speak of law from the spiritual dimension” (xiv)—that is, explore how theological concepts and metaphors might help us better understand, and even change, the law. In chapter 1, he discusses why spirituality matters for law. To “deal with spirituality” in the Christian tradition “means to speak of the Holy Spirit,” Domingo explains, and the “Spirit of God is love, communion, and gift”—the love between, and the communion and gift of, the Father and Son (12–13). These three pillars of love, communion, and gift, in turn, connect to three pillars of law—justice, agreement, and rights. For instance, “love presupposes justice” (16) and ennobles it: one cannot love another if one treats the other unjustly, but love may also propel forgiveness that while justly recognizing another’s debt, renounces it. Domingo then uses historical examples to discuss the “spiritualization” (21) of a legal system—a process that entails, among other things, encouraging limits on domination and inspiring the reduction of coercion. Creatively, he constructs a five-level chart modeling how law can evolve from barbarism, to “egoic law,” to “equality law,” to “solidarity law,” and finally to spirituality that is “postlegal” (30–31)—for against the Spirit’s fruit “there is no law,” one might recall from Galatians 5:23.
After analyzing law’s spiritual dimensions in chapter 1, Domingo takes up its human dimensions in chapter 2. “Legal systems are a necessary human creation, and by extension, they reflect the intrinsic unity of the human being’s body, soul, and spirit,” Domingo writes (55). Seeing the law as a body-soul-spirit totality, he argues, avoids reducing laws to simply state-created positive rules (a “body”) and instead illumines laws as products of a nation’s character (or “soul”) and as norms tethered to natural law (or “spirit”) (53–55). Domingo even uses the body-soul-spirit metaphor to challenge originalism that reads the US Constitution as exclusively its public meaning as understood by its framers: the “soul” of the Constitution, he says, is a country’s people who have experienced and presently experience the Constitution—so, he contends, only a “living originalism” that is “free of contradictions between the text’s original meaning and its meaning for the people today” makes sense (47). The body-soul-spirit metaphor ties to chapter 6, where Domingo surveys debates between legal positivists (who focus on body) and natural law theorists (who focus on spirit), over what makes law legitimate, and what makes law, law. As one might predict, Domingo favors the natural law theorists over positivists who, in his view, fragment the “unity … of the very person” whom the law must protect, by severing law from morality (137).
In the intervening three chapters, Domingo then “speak[s] of God and religion” from “the legal dimension” (xiv). In chapter 3, he argues that even without believing God’s existence, a legal system should still recognize God as a “metalegal concept”—that is, presuppose, as laws already do with “legal fictions,” that a “creator of the universe and source of morality” preexists the system (56, 61, 63). Doing so, he argues, strengthens a legal system’s protection of the human person and human rights: if a supreme being outside a legal system has already defined or justified such rights, for instance, that system cannot destroy or alter them as it pleases.
After discussing God as a metalegal concept in chapter 3, Domingo discusses religion in chapters 4 and 5—specifically, why a secular legal system should protect religion and religious freedom. One reason Domingo advances is that such protection is needed to protect “suprarationality”—subjectively, the capacity of each person to find and follow the “most profound truths,” and objectively, the “unseen order of everything” beyond mere rationality and that once conformed to, bears love, justice, and other fruit (74–75). Legal coercion is incompatible with suprarationality: the sword cannot compel an act of faith, which is by nature “free” (76). So, Domingo extrapolates, legal coercion should neither regulate strictly suprarational acts (such as professions of faith), nor be justified by exclusively suprarational arguments (such as appeals to scripture). He argues in chapter 5 that religious freedom demands special protection—that is, it cannot be collapsed into freedom of conscience or ethical independence—because religion is not just an individual’s internalized commands or decisions about ultimate questions: religion involves the good of accessing the transcendent and living a life of faith in community.
Moving outward in chapters 7 and 8, Domingo envisions international law and global canon law centered on the human person. In chapter 7, he describes a global “community of image-of-God bearers” (154)—a community whose protections shaped by dignity, subsidiarity, and solidarity, necessarily attach to each human person because each person bears God’s image. In chapter 8, he observes that public international law has already made strides in treating the individual and not only the nation-state as the “full subject of rights and duties” (172). By analogy, Domingo argues that global canon law should make each human person—not just the baptized one—its unit of legal personality.
Together, the first eight chapters powerfully incarnate the academic truism that law should be viewed from a “multidimensional perspective”—legal, political, moral, and spiritual. The remaining chapters offer biographical portraits of Christians who have shaped Western law and legal theory “along the healthy multidimensional lines” Domingo describes (xvii). And indeed, these portraits form a hall of faith and intellect: Alberico Gentili, with his integration of natural law, Roman law, and Bodinian sovereignty; Robert Schuman, with his forgiveness and love shaping the founding of the European Union; Oscar Romero, with his preferential option for the poor leading to his martyrdom; John Paul II, with his tireless defense of human dignity and human rights; Alvaro d’Ors, with his clarity on authority versus power, legitimacy over legality; and John Witte, Jr., with his towering, still-unfolding scholarship on family, faith, and freedom.
Collectively, all fourteen chapters invite us to use our human freedom, the capacity to act neither necessarily nor randomly—“a marvelous expression of the divine image”—to love; when that happens, our rights can transform from “enforceable protected interests” into “enforceable protected services” (147–48).
To be sure, Domingo sometimes makes inferential leaps that seem a few leaps too many. For example, he asserts in chapter 2 that “by extension” of the fact that humans create legal systems, these systems “reflect the intrinsic unity of the human being’s body, soul, and spirit” (55). He uses the body-soul-spirit metaphor to challenge original-intentions or original-public-meaning originalism, arguing that they focus too narrowly on the text (“body”) at the expense of understanding the text’s “soul” and “spirit” (47–48). It is hard to take this argument seriously at face value: we create inanimate things all the time that do not reflect all our attributes; nothing suggests that as a normative matter the laws we create should reflect our body, soul, and spirit; and even if they should, that is separate from the inquiry of whether jurists should interpret the law according to the law’s body, soul, and spirit, whatever those things might ultimately mean.
Still, the body-soul-spirit analogy has value as a metaphor. Reflecting on a law’s soul—roughly, a nation’s character—may spark thoughts on whether a law’s post-ratification tradition should inform its meaning, or on why practice may liquidate the meaning of an ambiguous constitutional text. Though the concepts of soul and spirit may shroud legal interpretation with a level of mystery—boding ill for notice and due process—these concepts, if developed carefully, might speak to questions of how to interpret a law when its text runs out—that is, when its bare words do not reveal what the text means in relation to a particular set of facts.
More broadly, the body-soul-spirit totality—like the law-and-morality debates Domingo addresses in chapter 6—invite reflection over the basic Christian command to “be subject to the governing authorities” (Romans 13:1). In authoritarian regimes, laws may well have the proper shape (for instance, the clarity and consistency to be bodies of law capable of being obeyed), but be directed toward wholly wrongful ends—think of laws in Nazi Germany or Stalinist Russia. In these settings, the Christian seeking to obey the law might wonder what the law to be obeyed even is. If a statute’s text manifestly conflicts with a nation’s traditions and natural law’s demands—that is, if it betrays the soul and spirit of the law—one might wonder if that text is even law at all: true law, one might think, is by definition an integrated totality of text, Volksgeist, and morality.
Other parts of the book could benefit from a fuller Christian account of sin. Domingo’s impressive “levels of legal spiritualization” map out the “typical track” that he envisions “all political communities as evolving along” (29–30). It is not clear if he means that this evolution has been occurring as a descriptive matter, or should occur as an aspirational matter, or both. If descriptive—that is, if his claim is that human history has been progressing from “barbarism” to “egoic law” to “equality law” (30–31) and so on—sin makes that claim doubtful both empirically and conceptually. Certainly, societies have materially and technologically improved the past few centuries, but World War I and II, if not anything else, seem to refute the idea that human history has morally progressed across time. And a Christian account for the cyclical character of human history points to original sin: though humans have natural law written on their hearts, sin inevitably infects human striving, including by the visible church, generation after generation.
Relatedly, recognizing sin can safeguard against the temptation to gloat over one society’s level of spiritualization vis-à-vis another’s. A polity whose institutions align with “equality law” (30) but who understands its own sin—that is, truly knows that but for the Spirit its laws would not be what they are—cannot look at a less-spiritualized “egoic law” (30) society and boast. Both societies, by virtue of sin, fall short of the glory of God and need the grace of God—one who is radically other from a fallen human race. The recognition of universal sin—like the recognition of a “metalegal” God who stands outside all law and relativizes it (63)—humbles man and catalyzes solidarity.
Sin also ties into the normative argument that believers should work out the spiritualization of law that Domingo’s five-level chart describes. Sin will hinder societies from making linear or permanent gains on Domingo’s spiritualization scale. One human generation sanctified by the Spirit may limit “domination” (23) and reduce unnecessary “coercion” (25) by implementing country-wide human rights reforms (or reforms in international law, as discussed in chapters 7 and 8), only to be followed by a sinful generation that swiftly undoes those reforms and constructs a regime even worse than the one in place before. History abounds with examples of this—think of the Weimar Republic, the Arab Spring, the French Revolution, or the Israelite kings in Samuel, Kings, and Chronicles. Recognizing sin clarifies that our motivation to work out earthly legal reforms cannot turn on the premise that those changes will endure and cause society to evolve from barbaric to egoic to equality to solidarity law. Instead, the reason why believers should work out the spiritualization of law (again, Domingo’s normative argument) is, more simply, love. Loving one’s neighbor—which entails sacrificially seeking his good, both individually and structurally—is inherently meaningful, even if all of love’s fruits falter.
That love, like other suprarational realities, cannot be coerced but should be given the space to flourish (as Domingo discusses in chapters 4 and 5), which leads to my final point: by illustrating the richness of suprarationality, Domingo attests to the importance of the “first-class right” of religious freedom (115). Indeed, chapters 1, 2, and 7 through 14 abound with ideas and stories that speak to the spiritual, moral, political, and legal goodness that flows from accessing the transcendent. And in so doing, these chapters give all the more reason to protect that immeasurable access—to protect the right to religious freedom and to religion—and to see religion as so much more than a set of cheap comforts or commands. For the Christian, Law and Religion in a Secular Age attests to the “surpassing worth of knowing Christ” (Philippians 3:8, ESV)—noncoercive union with Goodness that cannot but animate all areas, including legal areas, of this life.
Acknowledgments and Citation Guide
I have no competing interests to declare. Citations follow the Chicago Manual of Style, 18th edition, and citations to the reviewed book are in parentheses. Quotations from the Bible are from the English Standard Version.
