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Religious Liberty, Natural Law, and Liberalism

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.”[1]

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.

[1] 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.

Reader Discussion

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on May 15, 2020 at 07:48:14 am

There will always be a tension between freedom of practice and classical liberalism as there will always be conflicts of rights. I presume, for example, that even a classical liberal would ban human sacrifice. What about animal sacrifice? SCOTUS (Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)) struck down a local ordinance but only because it targeted a particular religious group and was not generally applicable? What about laws against circumcision of minors, which have been proposed in Europe? What about closing houses of worship during a pandemic?

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on May 15, 2020 at 16:14:11 pm

Was looking forward to reading this article until I read the first paragraph. I could see right away that the writer does not have a clue what the Natural Law tradition that helped inspire the American Revolution actually is. That would be the Judeo-Christian Natural Law Tradition which is based on Mosaic Law, specifically the Ten Commandments and Golden Rule, as revealed and explained in Exodus 20, Deuteronomy 5 and Matthew 5, 6 & 7. And you should know that by the time of Jesus Christ polygamy was out of style among Jews and Gentiles--probably because Roman society had become much more sophisticated by then, and keeping more than one wife does cost money. Islam did not influence the Western World in regard to marriage, so monogamy remained the order of the day. And we should understand that among the works the Founders read, besides the Bible, Cicero, Newton, Bacon and Locke, you will find Philo of Alexandria, Thomas Aquinas, John Wycliffe, Sir Edward Coke, John Trenchard and Thomas Gordon, etc. All of whom were familiar with the subject of the Laws of God and Nature--the basis for the Rule of Law principle. To understand America's founding generation, you have to understand the moral principles that they held sacred, and to do that you have to read on both sides of the line that divides Christian Humanism from Secular Humanism. They were familiar with both streams of thought, but they did not believe is a Deistic God however much the revisionists would like to think so.
In the 17th and 18th Centuries, Scottish, English & American Enlightenment thinkers based their ideas of God, Liberty, Law, Rights, Government, and Happiness on the Laws of God and Nature, not on Secular Humanism.
If you analyze the cause & effect relationship of obedience & disobedience to God's commandments you will see that the Decalogue is not an arbitrary set of religious rules issued by a capricious deity, but a carefully constructed framework for individual and social well-being, prosperity, freedom and independence. That Mosaic Law is founded in principle on the faith of Abraham, as Christianity is founded in principle on the summary of the Ten Commandments, which is to love God and love our neighbor. Jesus did not overturn those commandments--he told people repeatedly to follow them. In fact, His Sermon on the Mount is brilliant commentary on Mosaic Law, particularly the Decalogue. This is why I call the Natural Law tradition, as understood by America's founders, "Judeo-Christian". It is to separate it from the secular-humanist natural law tradition which leads us away from the freedom and independence we are seeking.
Our generation cannot understand the First Amendment's clause regarding religious freedom if we ignore the history and religious philosophy that went into it. You have to study Western Tradition and the Protestant Reformation first. The American Revolution is actually the culmination of the Reformation, as it resolved the seemingly unsolvable puzzle of how to have a stable and free society if there was no State Church or religion. And you have to read the creeds of the Christian Church--starting with Moses' call to the Jews to "love the Lord your God with all your heart, and all your soul, and all your strength" and "love your neighbor as yourself", for the Christian faith is founded on God, and Jesus Christ His Son is God's Word made flesh. And as you read the creeds down through the centuries and millenia you will see the development of the Protestant creeds go from simple to complex, one incremental advancement in liberty to another. Add the catechisms and you'll learn even more. You'll learn why people were willing to die for their faith and why the Founding Generation was so certain that self-government, equality before the law, individual rights, and the rule of law were impossible unless the people believed in God and the wisdom of His laws.
It was the Founders' conviction that the Liberty they fought for was tied to a particular world view--that Liberty comes from God and it is up to us to secure by acknowledging Him, obeying His commandments, and teaching our children to do the same. Their morals, manners and customs were all based on the Ten Commandments and Golden Rule. It was this foundation that demanded an end to slavery, segregation, cruelty to women, children and animals. Equal Rights for women should have been based on these commandments because if you study them properly they do not teach oppression of women and cruelty to children. But the church had been torn apart by controversies over the age of the Universe and Darwin's Theory of Evolution American society.
Philosophically, one of the main origins of the idea of equal rights for women comes from Jesus' teachings. Unlike most Jews and Gentiles, He taught that women have souls and are equal in the sight of God. His mission was to announce the impending establishment of God's Kingdom on Earth, not to overturn Jewish or Roman government and society. His teachings revolutionized society nevertheless, as the Christian Church grew and absorbed many excellent Roman customs for organizing and administering many services to the people. In spite of the unfortunate twists and turns taken by church authorities, the Christian Church had a civilizing effect on the barbarous tribes that made life on the edge of the old Roman Empire dangerous.
Leaving all the drama aside, if one wishes to understand the Judeo-Christian Natural Law Tradition, you'll have to put aside what you think you know and strike out into probably unfamiliar territory.
So, here is an incomplete list of documents that brought these powerful principles down to us:
The Decree of Amagi (Sumer)
The Code of Lipit-Ishtar (Sumer)
The Ten Commandments of God
The Code of Hammurabi
Code of Law (Greece)
The Twelve Tables (Rome)
Sermon on the Mount (Judea)
The Holy Bible (Latin Vulgate, et al)
Digest of Roman Law
Code of English Common Law
Magna Carta
Wycliffe New Testament
Luther's German Bible
Geneva Bible
King James Bible
Douay-Rheims Bible
Mayflower Compact
Petition of Right
An Agreement of the Free People of England
English Bill of Rights
Declaration of Rights
Declaration of Independence
Constitution of the United States of America
Bill of Rights
13th, 14th, 19th & 24th Amendments

There is, incidentally, a wonderful history published by Liberty Fund, Inc. and written by Heinrich Rommen called "The Natural Law". It is enlightening, and excellent up to the 17th, 18th & 18th centuries where, except for Franklin and Jefferson, his account bypasses the contributions of America's brilliant Judeo-Christian natural law thinkers like Roger Williams (an ordained minister and Coke's protégé on English Common Law), William Penn, Cotton Mather, Samuel Sewall, Jonathan Mayhew, James Otis, George Washington, John Adams, John Witherspoon, Patrick Henry, George Mason, John Jay, and many others. No one told Americans they could not write about such things without a degree from a college or university, so they wrote enough to fill whole libraries. Liberty Fund publishes some of their original works.
I would like also to recommend John Barry's outstanding biography, "Roger Williams and the Creation of the American Soul" (Penguin). He discusses the connection between the Reformation and America's unique ideas of religious liberty, and their sources. Williams was the man who brought them to America as a religious exile, and planted them here for our benefit.
But why did we get so far off track? I wasn't sure exactly how it happened until I read Myron Magnet's "The Founders at Home" in the section on George Washington. Apparently Edmund Genet's Democratic-Republican societies were instrumental in spreading his notion of freedom as the absence of any kind of control. It gets worse. Anyway, he was no champion of Liberty or the cause of American independence.

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