Secular Law and Christian Influence: A Partial Response to David McIlroy

David McIlroy has an article, "Is Secular Law Possible", over at Theos which is both thought-provoking and frustrating. It's thought provoking in that it tackles a truly important topic--that is, to what extent, if any, must law, to work justice, be influenced by religious belief and thought--and concludes that while what he terms "secularist" law is impossible, a "secular" law, one "which is influenced by Christianity’s teachings, its teachings about the dignity of human beings, the inevitability of the Last Judgment, and the limited nature of government, is imperative."

That's a big proposition, and one which, frankly, requires a careful, nuanced defense. And while McIlroy makes some good points along the way, he ultimately rests his analysis on three unproven (and rather large themselves) assumptions: First, that secular liberal legal theory must be devoid of moral content, which he bases on John Rawls's "original position" in A Theory of Justice. Second, McIlroy deplores the failures of classical thinking on political morality while ignoring the, shall we say, highly spotty record of Christianity on the same issues. Finally, McIlroy, while quite properly asserting that either a theocratic or secularist (his term) state, if not limited would tend toward tyranny, asserts that Christianity has embedded within it a receptivity to such limitations that secular thinking lacks.

While welcoming McIlroy's raising such an important question, I don't believe these foundations of his argument bear scrutiny.

1. McIlroy on Liberal Proceduralism

As McIlroy writes:

The difficulty is that, although secularist law is a possibility, neutral secular law is an illusion, an impossibility. The most powerful philosophical vision of justice which the twentieth century produced was that of John Rawls. Rawls, in his Theory of Justice, taps into a line of Enlightenment thought running from John Locke to Immanuel Kant. He asks us to imagine an original position, in which people do not know whether they believe in God or not, whether they are rich or poor, educated or illiterate, talented or feckless, black or white, married or single. Rawls poses the question: what the principles of justice would people behind such a veil of ignorance agree on? A major part of his answer is that people would agree on a system which maximises the situation of the worst off in society.
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Secular liberalism slips from treating people with equal regard (impartiality between different persons) to purported neutrality between different moralities (which translates as indifference to moral questions). Yet law can never been blind to moral distinctions.

McIlroy quotes Costa Douzanis:"In the absence of any widely shared vision of the good life, liberalism relies on formal procedures: on positive law and general criteria of distribution. Law excludes considerations of value from its domain and limits the quest for, or the application of, any substantive criteria of justice."

Now, let me acknowledge that this critique of liberalism has long been made, and is not entirely without salience. I would cavil at applying it solely to liberalism, however; it's pretty well established that in the common law system--thus, the entirely of Anglo-American jurisprudence--for over a century, it has been a commonplace that substantive legal reform has been accomplished through procedural reform since the Middle Ages. That approach has continued into the modern era, culminating (in the US) in the 1938 adoption of the Federal Rules of Civil Procedure. Since then, in the United States the contours of legal rights have continued to have been defined through the often admittedly oxymoronic process of "substantive due process" review by the United States Supreme Court.

So in laying at "liberalism's" door a process of legal reform through procedural evolution that dates back to the reign of Henry II (1154-1189), McIlroy seems to be loading the dice. Still, it is true that some liberal thinkers think exclusively, or almost so, in terms of procedure in terms of law and its content, and that critique is worth noting.

That said, I think that applying it to Rawls this unfair; his "original position" is a thought experiment designed to give teeth to the Golden Rule, a precept deeply embedded within Christianity, but also one that antedates it by at least 700 years in Greek, Chinese, Egyptian, and Indian thought. Rawls's thought experiment does so by placing each voter of having to in fact risk being on the "losing" end of the political spectrum, rather than able to be able to assume that he or she would be at the more privileged end. In other words, rather than trust to the benevolence of the voter, Rawls tries to make the imperative of the Golden Rule truly imperative, and not dependent on the condescension of the elite to the lower classes.

As a side note, I think McIlroy needs more than a citation to Lochner v. New York (1905) to establish that secular neutrality is impossible. Just because a rule has not been applied in a given case doesn't mean it is not susceptible to being followed; that's especially salient with respect to Lochner, a case that is so accepted as being wrongly decided that the academic debate is only over whether it was "wrong the day it was decided" or simply eroded by time revealing the flaws of the underlying reasoning in modern circumstances.

2. Classical Thought and Christianity

McIlroy quite properly recounts how "[w]e react with shock when we discover that Aristotle, the Philosopher, believed that slavery was natural, that some people were fit to be no more than living tools for others." (Emphasis in original.) However, McIlroy does not acknowledge the influence of this teaching in Christianity. Indeed, he cites Thomas Aquinas for other purposes in his article without noting that Aquinas accepts, albeit while softening a little, Aristotle's teaching on slavery.

Moreover, in arguing for his ideal of a Christianity-influenced law, he completely omits to mention that Christianity has a very checkered record with respect to slavery from the early church era to the mid-19th Century, especially in relation to the American Civil War:

[A]s the Episcopal Church in Virginia stated soon after the war began, Southerners were fighting “a Revolution, ecclesiastical as well as civil.” This would be a revolution that aimed to establish nothing less than, in the words of one Georgia woman, “the final and universal spread of Gospel civilization.”

This “Gospel civilization,” many believed, didn’t just permit slavery — it required it. Christians across the Confederacy were convinced that they were called not only to perpetuate slavery but also to “perfect” it. And they understood the Bible to provide clear moral guidelines on how to properly practice it. The Old Testament patriarchs owned slaves, Jewish law clearly assumed its permissibility and the Apostle Paul’s New Testament letters repeatedly compelled slaves to be obedient and loyal to their masters. Above all, as Southerners never tired of pointing out to their abolitionist foes, the Gospels fail to record any condemnation of the practice by Jesus Christ.

By not engaging with this checkered history, McIlroy is able to posit the Christian influence on law as a simple good, and proclaim that "t is the Christian understanding of what it means to be a human being, founded in the Incarnation, which has had a profoundly humane and humanised effect on Western culture." Well, yes. And no, too.

3. Christianity and the Two Perfect Sovereigns

Finally, McIlroy argues that Christianity has contributed "two insights – that human beings are made in the image of God and that there will be a Last Judgment – [that] have led to one of our civilization’s greatest discoveries, the idea of limited government." He contends that"Even during the period of Christendom, the thinkers of the Church taught that there was a distinction between secular government and religious authority, between the matters on which a person was answerable to the secular ruler, the matters on which the person was answerable to the institutional Church, and the matters on which the person was answerable to God alone." In so arguing McIlroy cites especially Aquinas, but others too.

McIlroy's claim is true, as far as it goes, but is presented in an aggressively optimistic way. The relationship between Church, State, and the individual was far more intertwined and mixed than that. Joseph Lecler's study The Two Sovereignties addresses some of the extent to which the Church in fact asserted the right to dominate secular governments, as does my own article "Command and Coercion", but to just give one classic example, two quotations from St Thomas Becket:

It is certain that kings receive their power from the Church and the Church not from them, but from Christ. . . . You have no power to give rules to bishops, nor to absolve or to excommunicate anyone to draw clerks before secular tribunals, to judge concerning breach of faith or oath, and many other things of this sort which are written among your customs which you call ancient. . . .
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God wishes that the administration of ecclesiastical affairs should belong to his priests, not to secular rulers, who, if they are of the faith, he wishes to be subject to the priests of his Church.
. . . God Almighty has willed that the clergy of the Christian religion should be governed and judged, not according to public laws and by secular authorities, but by bishops and priests.
Christian kings ought to submit their administration to ecclesiastical prelates, not impose it on them . . . Christian princes should be obedient to the dictates of the Church, rather than prefer their own authority; princes should bow their head to bishops rather than judge them . . .

And, of course, it was only in 1965 that the Roman Catholic Church abandoned "its earlier opposition to liberal democracy" as a legitimate form of government. Even today, there are Christian theocrats and, less absolutely, those who seek to bend the State to enforcement of Christian doctrine as they see it.

None of this is to deny that Christianity in the West has made great contributions to the political evolution of our political order. Rather, McIlroy presents an artificially tidy schematic to justify his thesis, which leaves out the contributions of those who have reacted to the excessive demands of the Church (Catholic and Protestant alike) for political power and influence, and omits entirely the shadow side of Christian influence in politics. It's a pity, because a profound discussion should be had on these issues.

(Edited to restore omitted link.)