I am on annual leave, I am reading Javier Cercas' beautiful book on his trip to Mongolia with Pope Francis, and I am obviously thinking myself about how I teach law and religion (and, by the way, if the word “religion” makes you think only of incense smoke, Gregorian chants, or the big scary abstractions in comparative theology textbooks, you’re already missing the point): it’s not just one of those optional “modules” in the human-civilisation syllabus. It’s more like the deep slow-moving tectonic plate under the entire legal landscape, the one that explains why certain laws feel natural and others feel like the bureaucratic equivalent of being forced to wear someone else’s shoes. Some colleagues tend to pretend (or think, which is rather dangerous) that law is self-propelling—sui generis—as if its origins are purely in rational deliberation among formally equal actors. (They’re not.) In fact, legal systems have been marinated for centuries in the moral imaginaries of religious traditions. Augustine’s City of God, Aquinas’s natural law theory, the Protestant Reformation’s suspicion of ecclesial authority, Islamic fiqh’s detailed jurisprudence: these aren’t just footnotes in a dusty philosophy of law course. They are the subconscious of the law itself. However, here is where the stakes get twitchy. If one takes Kant’s insistence on autonomy seriously, then the law’s authority comes from our capacity as rational beings to legislate moral law to ourselves; but that formulation didn’t spring fully formed from Königsberg like Athena from Zeus’s forehead - it was shaped in reaction to, and partly in dependence on, a Christian theological tradition about conscience, will, and divine command. Even the secular Enlightenment was playing a game on a field whose boundaries were drawn by centuries of theological lines. Ignoring this is like trying to understand Hamlet without noticing the ghost in Act I. One might get the plot beats, but they'll have missed the whole haunting.
At times I find a kind of embarrassed silence in modern law faculties about religion. The silence is partly because religion feels “messy", too freighted with personal identity, too unfashionable in the age of globalised commercial arbitration and EU directives. The irony, however, is that precisely because it’s messy, it’s the perfect philosophical training ground for legal thought. Religion forces you to confront ultimate questions - such as what is justice? What is the good? Where does authority come from? - and to do so without the comfort blanket of pretending these questions have simple, positivist answers. Hegel (never knowingly under-digressed) would say that religion is one of the modes in which Absolute Spirit comes to self-consciousness, and law is another. - which means they are, in some way, dialectically related, each shaping and being shaped by the other. The religious imagination can legitimise law (see divine right of kings) or destabilise it (see liberation theology), and law, in turn, can enshrine, marginalise, or reform religious practice.
I guess I'll begin my lectures this coming year with a sermon (see what I did here?): if one is serious about studying or practising law - serious in the sense of wanting to understand not just what the law says but why it says it - then they can’t dodge the religion question (together with a number of other humanist questions). One doesn't have to believe, but they do have to attend to how religious ideas circulate in the bloodstream of the legal system. The alternative is doing jurisprudence with half their eyes closed, and they won’t even know what they are not seeing.