The Enduring Revolution: Law and Theology in the Secular State
Emory LJ 39 (1990): 217
37 Pages Posted: 27 Jul 2017
Date Written: 1990
Abstract
At least since the millennium, the observation that religion is pivotal in a rightly-ordered polity has been the most resilient insight in Western thought. By "pivotal," I mean that political theorizing has invariably located religion's ontological status and social dimensions at its core. So long as all political theorists were confessing Christians in profoundly Christian societies, this was inevitable. But the "pivot" was not altered by any "separation" of church and state. Instead, the pivot engendered this separation. The uniquely Western notion of two jurisdictions, including an autonomous temporal order of civil regulation, was produced entirely by Christian theological reflection. Eleventh-century ecclesiastical reformers, who inhabited an undifferentiated realm of sacralized kingship and worldly prelates, sought a more authentic Christianity by separating church from empire. Medieval history, frequently depicted as beset by theocratic regimes, was instead one long struggle by the church to free itself of royal domination.
Religion has continued its pivotal role in modern history. The origins of the modern Anglo-American state can be traced to the English Civil War and subsequent theorizing about its political resolution. According to historian William Haller, the issue, then arbitrated by force, was "how, by whom, and to what ends the spiritual life of the community . . . was henceforth to be constituted and directed." "Toleration" emerged first as a prudential means of controlling the bloody effects of ineradicable pluralism. John Locke transformed this notion of toleration into a principle of the rightly-ordered society. But Locke himself held only certain religious excesses responsible for the blood-letting, namely, the libido dominandi of clerics and the sectarians' failure to distinguish the essential from the frivolous. For Locke, pan-Protestant Christianity remained the polity's civil theology and its determinant, which is why he excluded Catholics from the ambit of toleration.
Keywords: religion and law, secularism, legal philosophy
JEL Classification: K10
Suggested Citation: Suggested Citation