The concept of the separation of church and the state has been on the tongues of various jurists, sociologists, lawyers and philosophers around the globe, regardless of which jurisdiction they are in or are from. One can say that this phrasing of this controversial and peculiar subject lies in the heart of a nation. If one studies the history of the United Kingdom, it can be said that this separation of the church and the state lies in the Glorious Revolution 1688, or also known as the Political Settlement of 1688. It was only when the State broke off from God’s law – which was undeniably held in the hands of the King – did the English gained political “freedom”. Why we would call it a “freedom” is because it was only till after the Political Settlement did the UK become a Constitutional Monarchy. Pre-1688, she was under the rule of the King, the Monarch, or simply put as Absolute Monarchy. When the UK made the transition from Absolute Monarchy to Constitutional Monarchy, there were some residuary powers left in its wake. This is where we can identify and label the powers that from which arises Constitutional Conventions and Royal Prerogatives.
Pre-1688, it was believed by the masses that the “King was Law”. This extremist perception of the law, as studied throughout history, proves that the ultimate Judicial, Legislative and Executive powers of the then fused State, rested in the hands of the Monarch, especially the King, where his word was taken to be the final say in any matter. Charles de Montesquieue had warned everyone in his book, The Spirit of Laws, of such an extremist view of the law. He mentioned that there would be an abuse of power if all power were to be fused under one body. To prevent this abuse of power and to be able to adapt to the various political and national differences that were occurring at that time, Charles de Montesquieue proposed that there ought to be a ‘separation of powers’. A very good example of such a system with such fused power is evident in the Hitler regime. Ronald Dworkin, an American philosopher, referred to this Nazi regime as an “evil legal system” and if one were to read into the books of past history, however evil, was a valid and effective one; albeit short-lived. One theory presupposed that that there is no way an “evil legal system” could last for a long time, especially with one having radical beliefs like the Hitler regime. Under Hitler’s autocratic dictatorship, billions of people were mercilessly executed by a firing squad or by virtue of death in the gas chambers. What would you think about such a legal system? Here, Hitler had blatantly blindsided the masses into thinking that he was ruled in such a manner to exact revenge, on religious grounds. This is an example of a genocide, which led to the massacre of millions of people in the name of “God”. The Christians persecuted the Jews, in the case of the Hitler regime. To make matters worse, there were countless of conspiracies following the Hitler regime. Some groups started to spread rumours that Hitler’s regime was part of the secret society, the Illuminati. It was also believed that the Nazis were the “superior” race. Even more so, some even thought Hitler was carrying out experiments on the humans, trying to get into the art of practicing dark magic, by torturing the captured.
Numerous incidents around the world have made people come to the understanding that if religion were to be mixed with power, only catastrophe would ensue. We have gone past the Middle Ages, the Dark Ages, and thankfully, via the passage through the Age of Enlightenment as well. The Age of Enlightenment caused several drastic changes to the system, be it political, legal, or social. Now, then, we have people believing in the power of science. People shed their superstitions like a serpent that sheds its skin, slowly evolving into a new dimension of existence. Thomas Hobbes, the author of the Leviathan, described the life of man as “short, nasty and brutish”. He also went further to label life as a “war of all against all”. Such dark analogies and descriptions would further cause tension when religion was intertwined with the law. Any system, we must concede, would be filled with flaws, as the system would be run by man himself. Man, in his natural form is full of flaws. No one is perfect. However, if one were to look back into history, and learn from it, thereby applying their knowledge into the current situation and subsequently improving the lives of many, would have succeeded as humankind. This is the power of history and what it can bring upon in the present, thus affecting the future. Do you agree with this?
The concept of separation has since been adopted in a number of countries, depending on the applicable legal structures and prevalent views toward the proper role of religion in any given society. In the United Kingdom, up till the Succession to the Crown Act 2013, the ruler was not allowed to be married to a Roman Catholic, or simply put, the Catholic. Marrying a Roman Catholic will no longer disqualify a person from succeeding to the Crown. The provision of the Act of Settlement requiring the monarch to be a Protestant continues unrepealed. Even in Northern Ireland, there is a feud between the Catholics and the Protestants. This fusion of religion and law has undeniably caused much of a distress for the various groups of people, thereby affecting the relationship between the citizens and the State. This of course, is not desired. The law, or rather, the rule of law, specifies that all subjects are governed by the rule of law. The State should exercise its powers accordingly and only show its coercive force in extreme cases. At this point, you would think it unclear and strange that, in a highly developed society like the United Kingdom, such feuds do exist. What is the remedy, then?
Promotion of the separation of Church and State
“In Europe, France and Turkey are examples of the strictest formal separation of church and state, although religion still plays an important role in public life. In the United Kingdom, the British monarch is the Supreme Governor of the Church of England, and 26 bishops sit in the upper house of government, the House of Lords, but it may be argued that in practice Britain is a far more secular society than either France or Turkey. The concept of separation parallels various other international social and political ideas, including secularism, disestablishment, religious liberty, and religious pluralism. Whitman (2009) observes that in many European countries, the state has, over the centuries, taken over the social roles of the church, leading to a generally secularised public sphere.” (http://churchandstate.org.uk/)
Here, in order to understand this point of view, one must approach the law cautiously. The law should be broken down into two parts : (a) the law as It is, and (b) the law as it ought to be. If one understands this distinction between descriptive jurisprudence and normative jurisprudence, then, good, we are on the same page. There can be a normative argument for the compatibility of God and secular legal seasoning. Secular, is of course, defined to be : ”not connected with religious or spiritual matters”. Can a Western liberal democracy be able to stand on its own feet, rather than having some element of God’s law engrained in the legal system? This is plausible theoretically, but perhaps not so feasible realistically. This is where we should attempt to come up with normative theories as to how there can be a successful separation of church and the State.
Secular legal systems – The Metalegal God
Secular legal systems are not atheist legal systems; they are legal systems without religion, but not without “God”. Secularisation implies that some degree of minimal recognition of God as a metalegal concept. The specific degree of recognition of God appropriate for any given political community depends on its cultural and communitarian identity and should be subject to the rules of democratic procedures and majorities. This is the metalegal God.
The secular system aims to achieve a system where there is no religion, but not without a God. Is this highly civilised State even a distant possibility, having understood man’s real nature? God and religion are very close in practice, but they are ontologically different. Thus a political community may recognise God without having or imposing uniformity of religion. Legal systems should take into account this essential difference. God is the subject; religion, is the object. God is a person; religion is a thing. God is the supreme being and creator. Religion, however, is a path to God or to resolving ultimate questions and concerns about human existence.
God embraces the whole reality of the human person, in his social and transcendent dimensions; religion, however, does not. If God exists, all dimensions of human life should be ordered according to God: the legal, the social, the political and the religious. However, not all dimensions of human life should be ordered according to religion. Religion is just on expression of human dignity. It is a very comprehensive and demanding human expression, but it does not necessarily have an impact on everything in life, as God does. Politics is not religion. Legal reason is not religious reason. However, politics and legality do not escape God. This might seem like a paradox, but it is not: on the one hand, secular legal systems should be by definition be totally separate from religion, but not from God. On the other hand, secular legal systems, although separated from religion, should regulate religious issues (though they cannot, of course, ‘regulate’ God).
Metalegal concepts are concepts and ideas beyond legal systems that yet have some legal implications. Two features, one negative and one positive, characterise metalegal concepts. The negative is that such concepts are not legal concepts: that is, they are not legal creations in the strictest sense. The positive is that metalegal concepts have some connections with and implications for legal system.
An example of a metalegal concept is marriage. Indeed, the concept of marriage is not a legal creation. It is a social, anthropological, religious and cultural concept that affects human beings as a whole, not just as legal subjects. The existence of marriage prior to the existence of legal systems. However, the legal implications of marriage are obvious: not just in family law but also in tax law, labour law and even constitutional law. Freedoms, dignity, religion and the human person are other examples of metalegal concepts.
The recognition of God is alos useful in concreting the basics of Western legal systems. With God, it is easier to justify, understand and interpret metalegal concepts such as dignity, freedom, solidarity and human rights, as well as the connections between legality, morality, religion and politics. The metalegal ‘God’ is a ‘practical’ concept. It is not just a hypothetical concept and solidifies the moral boundaries of legal systems and helps to protect the integrity of the person as such.
Therefore, it is submitted that there ought to be a separation of church and state. Of course, we have analysed the difference between substituting the word ‘Church’ with religion and God, and the word ‘State’ with government. Again, the normative jurisprudence of this concept is preferred. Can you truly say that there ought to be a God in the legal workings of the Western world? One would not think so. We have gone through the Age of Enlightenment. There is no need to look back at history, only to digress from our current states of life.
Conclusion
Secular systems should be open to God since they are not technically atheist legal systems, neither are they “evil legal systems’ as put forth by Ronald Dworkin. God and religion are ontologically different. They can be, therefore, be treated by secular legal systems in different ways. Since all political communities are moral communites, God can be on both sides of the wall of separation: with politics and with religion. Otherwise, he will not be God, but a god.
A secular society such as the United Kingdom, should be tolerant of both theistic and non-theistic beliefs. The metalegal concept of God preserves religious neutrality. Here, now, we can all move towards civilisation, with the better understanding, and the clarity of how the idea of a ‘God’ could shape society. IN the United States, it is stated that the ‘Law is King’, whereas in the United Kingdom, it used to be that the ‘King is Law’.
It is humbly submitted therefore, that the metalegal concept of God allows us to create in peace a political community comprising of both believers and non-believers in God, thereby protecting and defending the rights of all citizens. The law ought to have a ‘heart’ as well. IN sun, secular legal systems can also have a place for God outside the legal system, and illuminating it, and this is possible via legal recognition.
Written by:
Tristesse
Bibliography
Lexis Nexis
J Waldron, ‘The Image of God: rights, reason, and order’
J Rawls, Justice as Fairness: a restatement
J Waldron, Dignity, Rank and Rights
J Waldron, ‘How law protects dignity’