The BLOG: Faith and Law

Faith and Law: Friends, acquaintances, or enemies?

(Adobe stock photo)

(Adobe stock photo)

What do faith and law have to do with each other? Do they have any relation? Should they?

Three views of the relation between faith and law can be found in public discourse today. One goal of this blog is to explore the implications of those views for the norms, institutions, and professionals of American law.

View One: Enemies

The first view, which is ascendant at the moment in academic and elite political circles, is that faith and law are enemies. Law is for equality or tolerance or liberty or some similar democratic virtue, the sentiment goes, and theistic faith is unequal, intolerant, and illiberal. Theistic faith is therefore the enemy of democratic liberty. Whether for reasons of Rawlsian public reason or because tolerance requires that we not tolerate religion in the public square, law must extrude expressions of theistic faith, and under no circumstances must faith be permitted to influence law.

Anyone who is a member of a faith community, or who has faithful friends, or even knows anything about the West’s great theistic faiths — Judaism and Christianity — is struck by how counter-factual this view is. It ignores the sources of toleration, equality, and liberty, which are rooted in the Christian insight that, as each human being is created in the image of God, each human being is worthy of respect in his or her own right, each radically equal because not fungible for or commensurable with anyone else, and never to be treated as a means but always as an end in himself or herself.

The insight of the Judeo-Christian tradition is that law is for human beings. It follows that law should: require equal treatment when equality is justified and different treatment when distinction is justified, tolerate imperfections in human reasoning, and preserve liberty for human beings to flourish as practically reasonable beings, i.e., the kind of beings that humans uniquely possess the capacity to be.

Faith is not the enemy of law. Faith is a source of law’s attention to its purpose.

View Two: Acquaintances

A second view is that law and faith are acquaintances, but at a distance. Proponents of this view often quote Jefferson’s dictum that there is a “wall of separation between church and state.” There remains to this day controversy whether there is such a wall, and if there is, whether Jefferson intended for it to protect the state from the church or rather the church from the state. In either event, the Supreme Court of the United States constitutionalized the wall in the 20th century. And it is conventional wisdom today in many elite circles that, just as good fences make good neighbors, what the Court has since stretched into a “high wall of separation” accrues to the benefit of all.

Forgotten is that the imagery of the wall was not original to Jefferson. In 1644, answering accusations against him for his dissent from the religious orthodoxy of the Massachusetts Bay Colony, Roger Williams wrote of “the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world.” The garden is inside the wall, protected from the ravages of the wilderness. And the garden is where the church is.

Throughout Anglo-American history, many faithful people have ventured, and continue to venture, outside the garden walls to toil in the wilderness. And the wilderness is better off for it. Faithful people fought to abolish the slave trade and slavery, and faithful people are still fighting human trafficking today. Faithful people fought to end racial segregation and to vindicate civil rights.

If communities of faith do not look much like gardens today that is perhaps because they have not been tended as well as they ought to have been. But it might also be because faithful people have tended the wilderness so well that it is now flowers and flourishes and — the wilderness having come so closely to resemble the garden — it has become difficult to discern where the garden ends and the wilderness begins.

We should hope that faith and law will remain more than mere acquaintances, not primarily for the well-being of faith but rather for the well-being of law.

The Best View: Friends

A third view says that faith and law are friends, particularly when faith is placed in a powerful and benevolent Creator and law promotes ordered liberty. In the best scenario, theistic faith and the rule of law are in fact close friends, mutually supporting each other and depending on each other.

One reason for this mutual dependence is that both faith and law require the cultivation of obligation. A society in which everyone insists on his or her rights at the expense of others, or acts or refrains from acting only out of fear of bad consequences, is not a lawful society in a full sense. To get a full sense of lawfulness one must have a full sense of obligation.

Writing shortly after the relativism and realism of the early 20th century had led to the horrors of eugenics and the Second World War, the great English jurisprudent H. L. A. Hart proposed in his monumental book, “The Concept of Law,” to make a “fresh start.” The idea of law could be rebuilt, Hart suggested, on the idea of obligation. Obligation is not to be found in coercion and violence. Obligation is found in the interior reasoning of the law-abiding citizen, who takes law as a reason for her to act in obedience.

People of theistic faiths understand obligation very well. Indeed, people of faith might understand obligation better than our cultural and political elites today. Obligation to obey a higher authority is precisely the lesson that our elites should be learning from the Little Sisters of the Poor. Instead, the nuns are being forced to disobey their conscience. Whatever that coercion is, it is not law in a full sense.

Obedience to moral obligation is good not just in its own right but also instrumentally for bringing other good states of affairs into being in the world. Obligation is one motivation for all those faithful people who give to, and labor with, charitable organizations around the world, visiting those in prison, rescuing the enslaved and oppressed, educating the poor and marginalized in schools that enable true diversity and civic engagement, helping children around the world to live flourishing lives, and doing much else that is beautiful, worthy, and admirable.

Obligation motivates those who act uprightly in their professional and vocational lives, serving others with honesty and fairness. It stands as a silent guardian of the integrity of our public institutions, as where judges obey their oath to decide cases according to law rather than their own personal preferences, and to show partiality to no one.

Faith and Law: A Beautiful Friendship

Theistic faith offers tremendous insights into law in part because much that is good in our laws owes its existence to what is good in the Jewish and Christian traditions. The legal foundation of American constitutionalism, upon which the Declaration of Independence and Constitution built our political institutions, is the common law; a rich, organic, and ancient woodland of norms and institutions that has nurtured ordered liberty for many centuries. The roots of the common law are planted deep in a recognition, made express by the most influential common law jurist, William Blackstone, of our dependence upon a powerful, wise, and good Creator. That Creator has given us revelation and reason to enable us to see that obedience to law leads to our true and substantial happiness.

So law need not be unjust and arbitrary. And obligation need not be a burden. That is the promise that faith holds out to law. In return, faith asks that law secure the garden, in which are cultivated the riches that make the wilderness flourish.

Adam J. MacLeod

Adam J. MacLeod

Adam J. MacLeod is a member of the Maine and Massachusetts (inactive) bars and an Associate Professor at Faulkner University, Jones School of Law. He is the author of “Property and Practical Reason” (Cambridge University Press) and dozens of articles in journals in the United States, United Kingdom, and Australia, many of which can be accessed at his website.