By forbidding CSS from placing children in foster homes, Philadelphia quashes any vestiges of reasonable pluralism on the meaning of marriage.
There is a pressing need to reconsider one of the rights protected by the First Amendment of the US Constitution, the free exercise of religion, and manifestly so ever since the 1879 Supreme Court decision of Reynolds v. United States that upheld the prosecution of Mormons for bigamy in the then territory of Utah. That decision rested upon the spurious distinction between the beliefs and the practices of a religion, ruling that, while the federal government had no authority over religious beliefs, it did over religious practices, even though there may have been no manifest harm to the individual. The objection to that ruling is its justification for state intervention into the life—the practices required by the rules and regulations, or laws—of the self-governing religious association.
The extent to which this intervention may be a problem for some of us indicates an ambiguity in the category “liberalism.” Liberalism is not a coherent doctrine; rather, it represents a constellation of beliefs and traditions, some of the origins of which are found in biblical, Roman, Canon, and Medieval Law. Liberalism, by which I mean “classical liberalism” (the need for this clarification points to a further ambiguity), has always referred to recognition of not only the freedom of individuals but also the freedom of associations or corporate bodies; it has been concerned not only with individual rights, but also and always with the proper order of institutional relations, for example, an independent judiciary. But what is the character of those corporate bodies, and what is the bearing of the answer to this question on the relation between them and to the state? Must their existence be dependent upon the state’s recognition? Responding to these questions, Otto von Gierke and Frederic Maitland argued that understanding corporate bodies as persona ficta was most unfortunate, at least if one is concerned with securing the liberty of corporate bodies in their relation to the state. This is not the place to discuss further the idea of “corporate personality,” even though, as in the Reynolds case, it is critically important for the liberty of religious associations.
In The Possibility of Religious Freedom: Early Natural Law and the Abrahamic Faiths, Karen Taliaferro argues, at times insightfully, that natural law is necessary to avoid conflicts between human and divine law that pose challenges to religious freedom. This may very well be so. However, much will depend upon what is meant by natural law. The category is, in fact, ambiguous, as are those of reason, revelation, and, as noted, liberalism. It is necessary to be aware of those ambiguities, and especially so in a discussion of the relation between religious freedom and law. Let us follow an outline of her argument, and the ambiguities that limit its effectiveness.
The Trouble with “Liberalism”
Taliaferro frames her argument by indicting liberalism, observing that “liberalism by itself is inadequate to address the problem of religious liberty, which is the problem of competing laws.” Here, we come across the shoddy intellectual fashion of treating “liberalism” as if it were a coherent doctrine. Friction between bodies of laws is minimized whenever we have a state that, perhaps out of a concern for “fairness,” seeks to enforce one uniform law throughout its territory, thereby undermining the otherwise distinctive practices of various religions. Such a development is not unique to “late modernity,” although admittedly legal pluralism is today increasingly undermined. It is not a development that has arisen necessarily from the combination of heterogeneous beliefs that one may describe as liberalism. It has more to do with the growth of a kind of modern state that, in fact, runs counter to the idea of a limited state of classical liberalism.
According to Taliaferro, if there are only individuals and their beliefs, and the state to determine which of those beliefs can be acted upon, the outlook is grim for the protection of those beliefs. This is certainly so. In response to this grim prospect, Taliaferro observes that “the secular alternative of privatizing religion or downplaying the role of divine revelation and law need not be the only alternative.” The possibility of religious freedom rests with Taliaferro’s alternative, the natural law, as it “deals in categories of both reason and revelation, integrating what would otherwise be the strict dichotomy of human law and divine law.” Thus, “natural law helps mitigate apparent conflicts between divine and human law because it is often considered to be a resource within the public sphere to test the justice of human law.”
Before discussing this attractive alternative, a summary of the book. Between the introductory chapter, “Religion and Law in Late Modernity,” and the concluding chapter, “Natural Law, Modernity, and Aporia,” are four chapters devoted to the relation between divine, natural, and human law, respectively, Sophocles’ Antigone, Maimonides’ Guide for the Perplexed, Averroes’ Middle Commentary on Aristotle’s Rhetoric, and Tertullian’s works. Although the examination of Tertullian, because of his relation to Montanism, may be more complicated than what Taliaferro allows for, it is the most interesting of those four chapters because it is unexpected in a discussion of natural law and religious freedom.
Determining the proper relation between associations, each with their own law, and the state, with its law of the land, is difficult, and especially so when the differences between the law of a religious association and the state’s law are significant. To navigate the difficulty, it is likely that a basic law of the land is necessary, as I observed in essays written for Law & Liberty, “Why Freedom is a Legal Concept” and “The Rule of Law and its Many Tensions.” That basic law can be understood as natural law, and therein lies the potential merit of Taliaferro’s alternative.
The Ambiguity of Natural Law
Although Taliaferro has provided us with an attractive way to address the challenges to religious freedom by turning to natural law as providing criteria to arbitrate between human and divine law, there are problems lurking within her argument. They arise not primarily because she seems unaware of the ambiguities of the category liberalism, nor in her use of that fashionable term with which liberalism or “neo-liberalism” is associated, “late modernity”—a polemical term masquerading as objective description.
The problems of her analysis rest upon the distinctions between divine law, natural law, and human law, and between reason and revelation, because they are all quite ambiguous terms. She seems to be unaware of the ambiguities. While acknowledging that “natural law is a notoriously slippery concept,” she does not clarify why it is slippery. She seems unconcerned with the different ways the concept has been used in the history of law.
For example, so-called natural law, if not, as law, promulgated and enforceable, refers to conceptions of justice or equity. In this case, natural law is not law, but signifies a form of morality, referring to substantive ends, which, as Taliaferro insists, are teleological as they putatively follow from nature. But there are problems here; for there are, in fact, divergent conceptions of what is just or equitable that could all count as “natural.” For example, should a testator be free to leave his or her estate to whomever the testator wishes, or should that freedom be restricted by requiring members of the family to be heirs, and, if so, which members and by what amount? What guidance does “natural law” provide to this perennial, important legal problem?
There is further ambiguity beyond the confusion between law and a substantive morality; for natural law may refer to procedures and the relation between institutions, for example, in the idea of due process, that is, law must be promulgated, clear, general, as stable as possible, and so on. It hardly needs to be stressed that due process conveys fairness or a kind of morality, as Lon Fuller emphasized in The Morality of the Law. The distinction between a morality of substantive ends and a morality of procedure and institutional relations is crucial for liberty, certainly for the freedom of religious associations. It is a distinction ignored by Taliaferro.
Taliaferro’s use of the concept of “reason” is also ambiguous. As historians of English law know, so-called reason was confined to what the law should be concerned with, namely, what Edward Coke described, in his Commentary on Littleton, as the “artificial perfection of reason” or elsewhere as “artificial reason.” In formulating a law, what matters is to be “reasonable”, where, in reaching a judicial decision, past decisions and particular circumstances are taken into account. Matthew Hale, Chief Justice of the King’s Bench and author of The History of Common Law in England (1713), defended Coke’s artificial reason, contrasting it to “the certainty, evidence, and demonstration expected in (the reason of) the mathematical sciences,” for the law provides the certainty “arising out of long custom, usage, and consent.” Hale’s defense was in response to Thomas Hobbes’ criticisms of the artificial reason of the common law in A dialogue between a philosopher and a student, of the common laws of England. To be sure, Coke’s and Hale’s defense of what they understood legal reasoning to entail rests upon a skepticism of what “reason” can achieve, but that skepticism appears warranted. As John Selden wrote in Book I of On Natural Law and the Law of Nations according to the Teaching of the Jews (1640), “the uncertainty and inconsistency that appears in the unrestrained use of pure and simple reason is so intrinsically inconsistent and dissimilar among men that it would be better for nothing to be derived from it.”
Considering Revelation as Reason
In her treatment of human and divine law, Taliaferro accepts, seemingly uncritically, another ambiguity: the distinction between reason and revelation, between Athens and Jerusalem. It would be better if the distinction were not entertained at all. Why will be obvious to anyone familiar with the “religious” texts of the Mishnah and Talmud. In the Mishnah’s Sanhedrin 1.5-6 and Eduyoth 1.4-6, the procedure of reaching a legal decision is by the court’s majority. We find the same procedure recognized in the Talmud, in the famous dispute over the “oven of Aknai” at Baba Metzia 59 a-b. What does the dichotomy between reason and revelation or between human and divine law amount to when a (religious) court, based on the decision of the majority, has authority over the High Priest (Sanhedrin 1.5) or even “the voice of heaven” (Baba Metzia 59 b)? And there was, early in the history of Islam, a wide diversity of Qur’anic commentaries, each of which clearly stated reasons for the necessary interpretations of Allah’s pronouncements, for example, Tabari’s distinction between clear and ambiguous Qur’anic verses and the place of both philological analysis and the chain of transmission in interpreting the latter, or al-Suyuti’s insistence on knowing the historical setting of a revelation in order to understand it, or al-Qurtubi’s acknowledgment of metaphors in the Qur’an and the need for ijtihad (reasoning) to clarify what remains abstruse. What some consider to be reason is an integral part of what they consider to be revelation.
Admittedly, it appears that we cannot avoid using the categories of divine, natural, and human law, as they appear previously in seminal works, for example, in the Corpus and the Digest. Nonetheless, one must, to the extent possible, resist becoming distracted by these categories by asking oneself, what is at stake in each of them? What purpose do they serve? How are they dealt with in the law of a religious association? As Fuller noted in The Morality of the Law, it is more productive to understand law in terms of the activity that sustains it, rather than the descriptive sources of its authority. Perhaps the merit of Fuller’s advice would have become clear to Taliaferro had she attended to works dealing with the history of legal pluralism, for example, by Gierke, Maitland, Harold Berman, and Richard Helmholz, or earlier works dealing with natural law, specifically, the so-called Noahide laws, by Richard Hooker, Hugo Grotius, and Selden.
Nevertheless, Taliaferro is right to draw attention to natural law. But we must proceed with care in determining what natural law means and how it is to be used in the relations between associations, of which the state is one. As much as is possible, natural law should be confined to legal procedure, to what Fuller called the internal morality of the law; for otherwise it risks, in the name of morality or justice, undermining religious freedom. I acknowledge that it will likely require a broader scope, for example, prohibition against physical harm, and, positively, a right of exit (no compulsion). These latter requirements are found in the tradition of natural law. They are also legally the bedrock of classical liberalism.
 The translation is by Peter Wyetzner in the forthcoming Herzl Institute’s publication of De Jure Naturali, edited by Ofir Haivry and Ethan Alexander-Davey.