The question: is secular law possible? is a provocative question in twenty-first century Britain, a country where most people still identify themselves as Christians but are ambivalent at best about the interventions of the churches into politics.  However, in order to address this question it is important to understand the different meanings which might be given to “secular”.  Whilst a total separation of religion and politics is not only impossible but dangerous, Christian doctrine has been a key contributor to the idea of secular law itself.

I.       Secular Law is Impossible

Today most people would think of the secular and the religious as a binary pair.  If something is religious it is not secular, and if it is secular it is not religious.  In this sense, Islamic law, ecclesiastical law and canon law would all be examples of religious legal systems whereas common law and civil law would be examples of secular legal systems.

However, beyond the unproblematic distinction between secular legal systems and religious legal systems (a distinction which, as will be seen later, is rooted in the Christian understanding of the secular), there is also a confusion between two further meanings which are commonly given to the word ‘secular’. 

For secularists, something is secular if it is not merely not religious but if it is free from religious influence.  Secular law is therefore law which is free from any religious influence whatsoever.  According to the other definition, which was the dominant interpretation of the idea of secular law in the second half of the twentieth century, law is secular not if it is free from any religious influence but rather if it is arrived at through the application of the public reason derived from secular liberalism, i.e. liberalism which aims to be neutral between different world-views.

Although our culture often misses this point, it should be immediately apparent that those two views of what is meant by secular law are contradictory.  Law which is free from any religious influence is not law which is neutral between different world-views.  If law is free from any religious influence it is because religious world-views have been systematically and deliberately excluded from contributing to that law.  Law free from any religious influence is not secular law; it is secularist law. 

In Britain today, an important part of our collective understanding of justice would be that people who have strong religious convictions, people who have weak religious convictions, people who have no religious convictions and people who have anti-religious convictions should all feel ‘at home’ in our society and reasonably content with its laws.  We would therefore have a clear preference for laws which are neutral between different world-views over laws which are systemically free from any religious influence.  We prefer neutral secular law over secularist law.

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.

What Rawls seeks to offer is a secular account of justice,[2] an account of justice which relies on reason alone, and which, as he reformulates it in his later work, Political Liberalism, is potentially acceptable both to those who believe in God and those who do not.[3]  Rawls seeks to be the philosopher giving voice to neutral secular liberalism.  And yet, there are at least two problems with Rawls’s secular liberalism.

The first is identified by the critical legal philosopher, Costa Douzinas.  Commenting on John Rawls’ liberalism, Douzinas has written:

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.  The law becomes the main substitute for absent ethics and the emptied normative realm. … Morality – as much as politics – must be kept at a distance; indeed, the main requirement of the rule of law in its contemporary version of legality is that all subjective and relative value should be excluded from the operation of the legal system.[4]

Douzinas has put his finger on something important about secular liberalism.  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 nor can it avoid making moral judgments.

Michael Sandel has argued that the ideal of “liberal neutrality”, which has dominated modern law and jurisprudence for decades, – namely that we should never “bring moral or religious convictions to bear in public discourse about justice and rights”[5] – is actually an impossibility.  The reason is that “justice is inescapably judgmental.  Whether we’re arguing about financial bailouts … surrogate motherhood or same-sex marriage, affirmative action or … CEO pay … questions of justice are bound up with competing notions of honour and virtue, pride and recognition.  Justice is not only about the right way to distribute things.  It is also about the right way to value things.”[6]

What is significant is that Sandel’s examples are not just about private choices; they are about questions of what the law should and should not permit.  They are about how the law reflects our public morality.  As Joseph Raz has written, “legal reasoning is an instance of moral reasoning.  Legal doctrines are justified only if they are morally justified, and they should be followed only if it is morally right to follow them.”[7]

The idea that judges can act as a neutral umpire, applying the law a-morally when confronted with litigants who hold to opposing moralities, was exposed as unrealistic in America over 100 years ago.  In the United States of America at the turn of twentieth century, judges claimed that the interpretation of statutes and legal precedents was purely a formal exercise, a theory of interpretation known as ‘formalism’.  A judge deciding a case was not making a moral decision but was merely applying a rule, in the same way that one would apply a rule of grammar.

This unreality of this claim was exposed in the infamous decision of the U.S. Supreme Court in the case of Lochner v. New York 198 US 45 (1905).  In Lochner, the US Supreme Court struck down legislation from the state of New York which imposed a limit on the working hours of bakers of 10 hours a day and 60 hours a week.  The judges held that the legislators were violating the employees’ freedom of contract.  Such a decision caused outrage.[8] The judges in the US Supreme Court were not making a morally neutral adjudication but instead giving priority to the nineteenth century ideology of freedom of contract, an ideology which ignored the realities of the disparities of power in the baking industry.

Let’s move from 1905 to 2012 and from baking to banking: What about the debate about the levels of pay in the banking industry?  On the one side there are those who say, ‘the market should decide pay levels for top bankers’, and on the other side, those who argue that ‘the rewards should be proportionate to the social value of the activity and not be designed in ways which promote excess risk-taking’.  Before you get to the technical and the political questions about whether executive pay can be regulated effectively there is a prior moral question about whether it should be regulated at all.

Even an approach which says that the law should be as liberal as possible, that we should try to outdo the Dutch and the Danish in our social legislation, is based on the affirmation of certain moral values, in this case the moral values of personal autonomy.

Neutral secular law is impossible because it is impossible for the law to refuse to take sides on the big moral questions of our day.  The law cannot, when faced with child abuse or slavery, intellectual property or cyber-stalking, hold all moral judgments in suspense.  As Neil MacCormick reminded even those who might call themselves legal positivists, law is laden with moral values.[9]

Those moral values come from somewhere.  Our last three prime ministers have been well aware where they have come from.  Tony Blair, who since his resignation as prime minister has been making up for not ‘Doing God’ whilst he was in office, is clear about the importance of his Christian faith in his life.  Gordon Brown, whose father was a Church of Scotland minister, credited his parents with giving him his moral compass.  David Cameron, whatever qualifications one might wish to put on his designation of Britain as a ‘Christian country’, was right to acknowledge the profound way in which Christian values have become British values,[10] and have become accepted as common sense even by those whose adherence to the Christian God is either weak or non-existent.

It is almost impossible for us to think ourselves outside of the Judaeo-Christian understandings of who human beings are and how they should relate to one another that we have inherited.  We 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.[11]  We are horrified when we understand how caste prejudice affects the Dalits, the Untouchables, whose common humanity is denied.  We couch our debates about euthanasia in terms of the suffering of the old, chronically ill and dying, because it is unthinkable for us that they should be exterminated simply because they are now no longer contributing to society or able to fend for themselves.

We react in these ways because our public morality, our universal, reasonable, liberal morality tells us that no reasonable or sane person could think in those terms.  And yet, what we believe to be reasonable turns out to have been profoundly influenced by Christianity’s teachings.  The architects of our universal, reasonable, liberal morality are John Locke, great Enlightenment philosopher but also a lifelong member of the Anglican church and author of The Reasonableness of Christianity; Immanuel Kant, a child of Pietist parents who attempted to defend religion in the aftermath of David Hume’s scepticism by writing Religion within the Bounds of Reason Alone; and most recently John Rawls, who seriously considered being ordained in the Episcopal Church before turning to a life of writing as a political philosopher.

The issue is not about the strength of the religious convictions of each of these three men.  It is that the assumptions these men made – about the equality of all human beings (in the case of Locke),[12] the need to adopt maxims of action which you would accept others applying also (in the case of Kant), and the need for society to be justified by reference to its treatment of its weakest members (in the case of Rawls) – are all assumptions which we accept as reasonable, even as ‘natural’, because they and we are the products of a civilization in which Christianity has had a significant influence.[13]

What this means is that neutral secular law, law as doing nothing more than providing a neutral playing field, is an impossibility.  There is no neutral playing field.  A public square from which religious influences are excluded is not a neutral public square. It is a public square in which all influences bar the secularist ones have been censored.  That is not a public square in which everyone’s voice is heard and everyone’s views are respected, it is a public square in which religious voices are silenced and anti-religious views are imposed.  This is not a tolerant society, it is a tyrannous society.

We seem to face, therefore, a choice between a secularist legal system on the one hand and a Christian legal system on the other.  A secularist legal system clearly is a possibility.  Indeed, it is an experiment which has been tried in the twentieth century, most obviously in the Soviet Union, but the results were not a good advertisement for ‘secularist law’.

II.    Secular Law is Possible

Although neutral secular law is impossible, the apparent choice between a secularist legal system and a Christian legal system is a false one. A legal system influenced by Christianity need not be a legal system dominated by the institutional Church. Indeed, as Wales is beginning to show as it experiments with a measure of self-government, it need not even involve an established Church at all.

Although secular law in the sense of law that is neutral on questions affecting religion and on matters of religious concern, is impossible, secular law is possible, if by ‘secular’ we mean not dominated by the institutional church. This idea of the ‘secular’, which we characteristically think of as the fruit of the Enlightenment, in fact has its roots far back into Christianity and beyond that into the Hebrew Scriptures. 

It is, as Jane Austen would have said, “a truth universally acknowledged” in Britain and across the Western world today, that law is not identical to morality. That which can be and should be subject to public regulation and resolution is not coextensive with that which is morally wrong. This distinction, once described as the distinction between crime and sin, goes all the way back to one of the earliest foundational texts for Judaeo-Christian morality: the Ten Commandments. The Ten Commandments, alongside the well-known prohibitions on adultery, theft, murder, and perjury, conclude with a commandment (or two, depending on how you count them) against coveting, against that jealous desire for another person’s wife or possessions. The commandment against coveting is not, and could not be, a secular law. Built into the very structure of Judaeo-Christian morality, therefore, is a distinction between, on the one hand, those things which are immoral and subject to God’s judgment and, on the other hand, those things which are unlawful and subject to human judgment.

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. The greatest thinker of the mediaeval Church, Thomas Aquinas, drew a clear distinction between the mission of the institutional Church and the role of secular government.[14]  For him, it was not the role of human law to save souls but rather to maintain peace, ‘the temporal tranquillity of the state’, by controlling and directing people’s external actions and addressing ‘those evils which might disturb the peaceful condition of the state’.

Christianity, even before the Reformation,[15] has a long tradition of teaching that secular law is possible, that there is a space for the exercise of human free will which is not coerced by the threat of legal sanctions.  The distinction is intrinsic to Christianity.  Christianity reads the Hebrew Bible as its Old Testament.  As Aquinas, Calvin, Kuyper, and others read those Scriptures they tell a story.  It is a story of how God chose a people, the Israelites, and blessed them above all other peoples by giving them the Law of Moses, the Torah, as a guide for their communal life.  It is a story of how God kept faith with that people despite their repeated violations of that Law and rejection of God’s love.  One of the key conclusions which Christianity draws from that history is that law, even the best law in the world, even law coming from God, is inadequate to secure justice or to save the world.[16]

Turning to the New Testament, Christianity understands God to have acted decisively in the world in ways which did not involve the use of political power.  Christmas was a political event, but Christmas was not the birth of a king who would claim royal power.[17]  Jesus was no Justinian codifying the authoritative set of God’s laws, He was no Henry II, organising a nation’s judicial system, He was no Stair or Blackstone, cataloguing a country’s legal system.  Jesus’ mission was not to issue a definitive set of divine laws but rather to address the consequences of human rebellion and disobedience through His death on the cross.

Moreover, the early Church did not spread through political conquest and warfare, but through persuasion and conversion, linked to its understanding not just of who Jesus was as the Son of God but also through its belief in the power of the third Person of the Trinity, the Holy Spirit.  What is especially arresting when you read Aquinas’s treatise on law is the way in which he refers to the Holy Spirit as ‘the New Law’.  For Aquinas, the Holy Spirit takes the place in the New Testament of the Law of Moses in the Old Testament.[18]  Built into Christianity’s very DNA is the belief that true justice must be internalised.  The Holy Spirit is the agent through which God’s justice transforms human hearts and, as a result, human actions.  Law which is expressed as rules governing external behaviour therefore has a limited role to play in the pursuit of justice.  Legal rights and obligations create a framework of expectations within which justice may be pursued.  However, for Christianity, the Holy Spirit takes the place which the Torah has in Orthodox Judaism and which sharia law has in Orthodox Islam.  Christianity is not committed to the replication of its moral teachings in external rules but rather in transformed hearts. 

Secular law, in the sense of law which is not dominated by the institutional Church, whether established or disestablished, cathedral or chapel, is possible.  It is possible for three reasons which are embedded within the Christian heritage that has been bequeathed to our culture.

1)      Because the Bible, from the Ten Commandments onwards, distinguishes between crime, which is subject to punishment by the state, and sin, which is not;

2)      Because Christianity is built upon the conviction that law is inadequate to secure justice and to save the world;

3)      Because Christianity’s primary means of expansion is not by means of law but rather through persuasion.

III. Secular Law is Imperative

So, to summarise where we have come so far: first, secular law in the sense of law that is neutral as regards matters of religious concern is impossible; and second, secular law, in the sense of law that is not dominated by the institutional Church, is possible; and, now, thirdly, secular law is imperative.

The English word ‘secular’ originally comes from the Latin word saeculum which means ‘age’.  In the Middle Ages, the saeculum was understood to be this present age, this time, here and now, in this world which God has created, and in which God has acted to redeem the world, but which is not yet fully restored and transformed into the full glory which God intends for it.

The Welsh word bydol and the Gaelic word saoghalta which translate the English word ‘secular’ mean ‘of the world’ and also carry the meanings of earthly, temporal, and mortal as well as worldly and covetous.  It is those senses of earthly, temporal, and mortal, which were the original meanings of the saeculum.  In order for there to be a free and just society, it is imperative that its law is limited to earthly matters and temporal concerns.

Christianity makes three important points about the saeculum, about the present age, which are fundamental to the rule of law and to civilization as we know it.

1)      Human beings are made in the image of God;

2)      There will be a last judgment;

3)      The role of government is limited.

1)      Human beings are made in the image of God[19]

It is not inevitable that we think of ourselves and of other people in the way that we tend to in the West today.  A case can be made that our society is obsessed with freedom, to the exclusion of all other values,[20] but this is best understood as an excessive attachment to a genuine and important human good.  Human freedom really does matter and human dignity really does matter, and these depend on the idea that individuals are each made in the image of God and are loved by God.[21]  This alone grounds adequately an understanding of what is due to people and how they should be treated.

Our sense of what is due to human beings and how they should be treated has a distinctively Christian shape.  The understanding of human dignity, which is reflected in many of the UK’s laws, comes from Christmas.  It 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.  Had Jesus been born in a palace, would it have ever occurred to us that God loves the poor just as much as God loves the rich?  Had Jesus not died on a cross, would it ever have occurred to us that God loves the criminal, the outcast, just as much as God loves the bourgeois?  As David Bentley Hart explains:

The ethical presuppositions intrinsic to modernity … are palliated fragments and haunting echoes of Christian moral theology.  Even the most ardent secularists amongst us generally cling to notions of human rights, economic and social justice, providence for the indigent, legal equality, or basic human dignity that pre-Christian Western culture would have found not so much foolish as unintelligible.[22]

Not just for the Romans, the Greeks and the Egyptians, but also for the Anglo-Saxons and the Celts, the commitments to social justice, to welcoming the refugee and to caring for the poor and the disabled which we feel strongly are ‘natural’ would have been seen as surprising, if not irrational.

2)   There will be a Last Judgment

The idea of the Last Judgment is important in two ways.  First, it means that today’s rulers are understood, and understand themselves, to be answerable to a higher authority for their actions.  They know that they will be judged for the way in which they have exercised their power.  Accountability to God is the foundation for accountability to the people.

Second, because it means that their subjects know that their ultimate judge will not be the government but God.  This opens the space for “a sphere of individual responsibility before God in which the public good is not immediately at stake.”[23]  There is a sphere of freedom of action in which I may act morally or immorally without acting illegally.

The Christian understanding of the Last Judgment has a further implication for secular law which is important and which contributes to human freedom.  The Last Judgment has not yet happened.  The New Testament writers stress that God is waiting, withholding God’s final judgment (Romans 2:4; 2 Peter 3:9).  Secularism arises when the notion of the saeculum, a time when God waits for us, is lost.  Christianity understands the saeculum not as an autonomous reality but as a time within which God’s loving purposes unfold.[24]  The ambiguities between good and evil which characterise the present age are the product of the fact that God has allotted each one of us time on this earth.  This time is an opportunity for repentance, for faith and for obedience.  It is a time in which the Holy Spirit is at work in people’s lives, when God’s primary appeal to people is through love and persuasion not law and coercion.  This means that the burden rests on proving that legislation is necessary or condemnation is required here-and-now, and that matters cannot wait until the Last Judgment.  As Oliver O’Donovan has put it:

God has provided us with a saeculum, a time to live, to believe and to hope under a regime of provisional judgment; here, too, it is possible to practise reconciliation, since God’s patience waits, and preserves the world against its own self-destruction.  The practical content of this interim common grace is the political act, … government-as-judgment.[25]

3)   Limited Government

Those two insights – that human beings are made in the image of God and that there will be a Last Judgment – have led to one of our civilization’s greatest discoveries, the idea of limited government.

Because human beings are understood to be made in the image of God they are not owned or controlled by the government.  The government does not have the ultimate claim on our obedience.  The people do not exist to serve the government; the government exists to serve the people. Ultimately, after the Reformation, it led to the understanding that government is not called upon to resolve religious questions by force or to repress dissent.

As Michael W. McConnell explains, “long before liberalism was conceived in theory or in practice, the distinction between temporal and spiritual authority in Christian thought gave rise to what would become the most fundamental features of liberal democratic order: the idea of limited government, the idea of individual conscience and hence of individual rights, and the idea of equality among all human beings.  These ideas came about … in defense of religion against the encroachments of the state.”[26]  The idea that government is limited came about in defence of the church(es) against government interference and in defence of the rights of individual believers and groups of believers.[27]  Realising that political authority is not the agent of salvation or sanctification, it is not the deliverer from all evil, is crucial in order to resist tyranny.

Moreover, Oliver O’Donovan has argued that it is the prospect of the Last Judgment which creates the necessary context for understanding the role of government to be limited in the saeculum.  In his works he poses this provocative question: if liberal democracy which has grown in the soil of a Christian culture, loses sight of the horizon of eternity, will it not cease to be liberal because it is unable to sustain the notion of limited government any more?[28]

Law which is not ‘secular’ will become inhumane

Christian thinkers understood, long before Margaret Atwood’s The Handmaid’s Tale, that the result of any attempt to bring about the Kingdom of Heaven on earth would be tyranny.[29]  This is also true if the Kingdom of Heaven is a secularist utopia from which religion has been extinguished.  Law free from religious influence will not be a human, or even a humanist’s paradise.  Political control over what you can say and write; bureaucratic decisions about who is or is not human; repressive policing of those sub-humans who are regarded as ‘scum’; public executions as entertainment; wealth for the few and starvation for the masses; these are far more likely outcomes if the teachings of Christianity about human dignity and about the limits of law are ignored.

David Bentley Hart makes the point with ascerbic brilliance in his book, Atheist Delusions:

What I find most mystifying … is the strange presupposition that a truly secular society would of its nature be more tolerant and less prone to violence than any society shaped by any form of faith.  Given that the modern age of secular governance has been the most savagely and sublimely violent period in human history, by a factor (or body count) of incalculable magnitude, it is hard to identify the grounds for their confidence. … It is not even especially clear why these authors imagine that a world entirely purged of faith would choose to be guided by moral prejudices remotely similar to their own; and the obscurity becomes especially impenetrable to me in the case of those who seem to believe that a thoroughgoing materialism informed by Darwinian biology might actually aid us in forsaking our “tribalism” and “irrationality” and in choosing instead to live in tolerant concord with one another.  After all, the only ideological or political factions that have made any attempt at an ethics consistent with Darwinian science … have been the socialist eugenics movement of the early twentieth century and the Nazi movement that sprang from it.[30]

John Gray makes a similar point, by reference to Nietzsche’s critique of Christianity:

He did not assume any connection between atheism and liberal values – on the contrary, he viewed liberal values as an offspring of Christianity and condemned them partly for that reason.  In contrast, evangelical atheists [such as Richard Dawkins] have positioned themselves as defenders of liberal freedoms – rarely inquiring where these freedoms have come from, and never allowing that religion may have had a part in creating them.[31]

From a Christian perspective, the ideas of human dignity and limited government are seen as truths of right reason which have been historically revealed by Christianity.  To contend that they make no sense at all outside of a Christian worldview would be to deny the existence of natural law, general revelation and common grace.  Nonetheless, there is an important warning to be given to liberal secularists.  Not only are they guilty of bad history if they excise Christianity’s key contribution of these humane ideals from the record books, but they also gravely weaken both the intellectual resources and the motivation needed to defend them.  As the example of Aristotle himself, the Philosopher, shows, reason is neither infallible nor a-historically located.  Even the wisest may make grave errors in their reasoning about fundamental matters and all of us reason within a cultural context which has informed our thinking.  Moreover, our world contains not just those of good will who make mistakes in their understanding but also those, like the ancient Athenians, who would happily ignore the claims of the weak when it is not in their interests to do so.[32]  Those who seek to defend the dignity of the weak and the legitimate claims of those who seek to resist overweening government need all the allies and arguments that they can find.

Conclusion

Whether secular law is to be regarded as impossible, possible or imperative depends what you mean by secular.  Secularist law is possible.  Laws which express a virulent hatred of religion certainly are possible.  They have been enacted at various times and in various places, during the twentieth century most dramatically in some communist countries.  However, law which is secular in the sense that it seeks to take no moral stances whatsoever, to rely on no contentious claims about the nature of human beings, about morality, or about values, is impossible.  There may be ways of seeking to level the playing field but there is no neutral ground. 

Second, secular law is possible if by secular you mean law which is not dominated by the institutional Church.  Moreover, there are good grounds, whatever type of Christian you are, for regarding the Church’s entanglement with government as excessive both during the Middle Ages and in some countries after the Reformation and Counter-Reformation.  A separation between the institutions of church and state is not only possible but highly desirable.

Finally, secular law is imperative.  Law 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.  If we want good laws we need laws which do not demonize people or deny their humanity but which respect their worth and treat them with dignity.  If we want honest government, we need a culture of accountability through the means of law, politics and civil society but also through the sense our rulers have of their accountability to their own consciences and to God, who will be the ultimate judge of their actions.  If we want limited government, we need rulers who understand that lawful political authority only goes so far, and that people’s souls lie beyond their reach.  Historically Christianity has been the inspiration for many of these ideas which have become universally accepted parts of our common values.  It remains their most coherent home and their most effective transmitter.

David McIlroy is a practising barrister and Visiting Senior Lecturer in Law at SOAS, University of London.  He is author of A Biblical View of Law and Justice and A Trinitarian Theology of Law and has contributed chapters to God and Government and Religion and Law as well as numerous articles on the relationship between law and Christianity.

This essay was first printed in the journal Law and Justice: The Christian Law Review No. 169, Trinity/ Michaelmas 2012