University of Washington, USA
The Veiled Alliance: Law and Religion
Intimate relations between law and religion have been constituted and constantly transformed throughout history. According to natural religious law – a law driven from a faith in God or in divine forces – morality and legality are embedded in religion. Sacred law formulates a space for human choices and judicial discretion in the articulation of a celestial divine order. Such a natural religious prism of law – prominent in the writings of theological thinkers in different religions such as St Augustine, Thomas Aquinas and Maimonides – has not only been a normative indicator of a good faith and a virtuous behaviour, but also the absolute criterion for obedience and disobedience to human-made law. Thus, St Augustine has been a very inﬂuential religious thinker over Western thought. His religious concept of De Civitate Dei has generated a religious normative model for the perfection of human society and expectations that political power in the ‘City of God’ should be legitimated through a religious faith. His model has inﬂuenced a diversity of philosophers and scholars, including Enlightenment andcontemporary philosophers.
Spurred by post-medieval science and the rationalization of law as science, natural law, as distinct from what has remained as religious natural law, has been secularized, particularly since the fourteenth century ad. In a gradual process, which was imprinted, inter alia, by the sixteenth-century Copernican revolution, followed by such rationalizations of faith as in seventeenth-century Descartes and Kant’s philosophies of the eighteenth century, religious ethics and religious law were reproduced based on human consciousness and rationality. While the importance of religious faith was regenerated as part of human experience, questions revolving around the existence of God were marked as unique and separated from the routinely rational endeavours of humanity. Hence, human law and religion were distinguished from one another. Whichever human legal categories we construct, they are signifcantly a matter of our own morality and consciousness. The partial divorce of law from religious dicta and its construction as an ‘autonomous’ professional feld have framed law as a ruling setting. Accordingly, a concept of divine sovereignty, an earthly sacred religious ruling authority, was replaced by a concept of the secular state’s sovereignty. Especially during the seventeenth century and onwards, the latter was imagined as an aggregation of individual wills embedded in contractual metaphorical relations. Although religious institutions could have been separated from the state through various institutional arrangements, which may signifcantly vary from one country to another, religious identities and virtues of religious faith have remained cemented in state law and its legal ideology. Hence, an additional reasoning underlying this volume is that any understanding of modern law should deconstruct an imagined separation between religion and modern state law.
These genealogical facets of religion in law and law in religion that have been expounded above are not progressively ordered in a linear historicity of teleological modernity. Rather, they are complementary in any historical period, despite some signifcant variance in the intimacies of law, religion and power in various historical periods. Yet, clearly religion has been a certain noteworthy source of human rights.