God and Caesar: Selected Essays on Religion, Politics, & Society

1. Law and Morality

 1. Law and Morality Whether and to what extent the principles of morality, and in particular religious morality, should be incorporated in the civil law is a difficult question, although for some it finds an apparently easy answer. Those who argue that religion and morality are private matters hold that they should not be incorporated into law at all. The usual justification for this position is that because each person comes by his own lights to his own estimation of the good, not only is general agreement on the principles of morality practically impossible, but the impossibility of general agreement powerfully suggests that there can be no general moral theory applicable to all. It is certainly true that because the law must apply to everyone , it cannot be seen to “privilege” unjustly one moral system over another, and this applies especially to religious morality in an age when the number of practicing believers is declining in many Western countries. Given this, it seems merely a matter of common sense that religion and morality on the one hand, and law on the other, must be rigidly demarcated. One problem with this is that common sense is never as simple as it appears to be, and often obscures beliefs and premises that are taken for granted. The assumption at work in the proposition that law and morality must always be separated has a comparatively short intellectual history. When this proposition first made its appearance it was highly controversial, and despite its assimilation into the academic and popular wisdom of our age it remains controversial still. The massive public scrutiny that is brought to bear on nominees for senior judicial appointment in the United This chapter is an expanded version of a talk given to the Eggleston Society in Melbourne, Australia, 28 May 1997. Subsequently published in slightly modified form in the Pontifical Council for the Family’s journal, Familia etVita 10:3 (2005). 10 catholicism & democracy States and the growing criticism of “judicial activism” in other English-speaking countries such as the United Kingdom and Australia are indications of how controversial the “separation” of law and morality continues to be, especially in the area of jurisprudence. The morality that proponents of separation are particularly keen to exclude from the law is generally of course Christian morality . This term is understood very broadly to include not only expressly religious moral principles, such as those that trace the sanctity of life to its origins in a gift from God, but also moral principles drawn from traditions such as the natural law that uphold the sanctity of life and other key values on strictly philosophical grounds. Opponents of the natural law tradition view it, together with natural law principles still at work in civil law such as those supporting the marriage laws, as a disguised form of religious morality that has no place in modern secular law.1 Underlying this opposition are certain assumptions about religion and reason being in exclusively antithetical relationship to each other and about religion upholding only strictly “religious” principles. The sundering of religion and reason emerged clearly in the middle of the eighteenth century. Before that religion and reason were most often seen as compatible, even mutually necessary, not only in the Catholic tradition of thinking and theologizing but also in, for example, English thinking after Henry VIII.2 Reason served man by deepening his understanding of God and the mysteries of 1. A classic and influential example of this view is John Rawls, ATheory of Justice (Cambridge, MA: Belknap Press, 1971). Martha Nussbaum is a leading contemporary exponent of this position: see for example Randall Baldwin Clark, “Platonic Love in a Colorado Court Room: Martha Nussbaum, John Finnis, and Plato’s Laws in Evans v. Romer,” Yale Journal of Law and Humanities 12 (2000): 1–38. For an analysis of this school of thought, see Robert P. George, “The Legal Enforcement of Morals,” in Making Men Moral: Civil Liberties and Public Morality (Oxford: Clarendon Press, 1993). 2. For example, Richard Hooker (1554?–1600), one of the fathers of a distinctive Anglican theology, argues in Laws of Ecclesiastical Polity (1593) not only for the natural law but for a threefold approach to authority in religious matters, relying on reason, Scripture, and tradition—later known as “the three-legged stool.” John Locke (1632–1704) in An Essay Concerning Human Understanding (1690), ed. Peter H. Nidditch (Oxford: Clarendon Press, 1975), writes: [18.119.107.96] Project MUSE (2024-04-24 11:22...