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Droit et religion en Europe

 | 
Philippe Auvergnon
, 
Françoise Curtit
, 
René de Quenaudon
, 
et al.

Troisième partie. Relations églises-états

The Christian Roots of the Secular State

Silvio Ferrari

Texte intégral

1. Introduction

1In this paper I would like to test the following thesis: that the different fortunes of the secular State in the predominantly Jewish, Christian and Muslim countries depends significantly (although not exclusively) on their different religious background and, in particular, on the conception of God’s law that developed in the theological and legal traditions of these three religions. I am not denying the importance of historical events and cultural processes in the formation of the secular State. But, on the one hand, history alone cannot explain the whole picture, as historical facts take place within a reference framework provided, in our case, by the sacred texts and the interpretive tradition of each religion. Historical processes do not develop in a vacuum and believing that they are completely disconnected from the religious and cultural context in which they take shape is as naïve as believing that they are totally dependent on it. On the other hand, it is true that the secular State constitutes a model of organizing the relations between citizens and public institutions that does not concern exclusively religion nor is it produced only by religion: it presupposes a certain way to conceive politics, law, economics and so on, in other words it is the outcome of a complex process of which religion is just one component. But the analysis of a single element – if performed keeping in mind the context in which it is included – is a way to better understand the whole picture.

  • 1 By Christian and Muslim countries I indicate the countries where the majority of the population pro (...)

2After a short description of what God’s law means in the Jewish, Christian and Islamic legal systems (n. 2), I shall focus on the different interpretations of the nature and scope of God’s law in these religious traditions (n. 3). The impact that these differences have on the acceptance (or rejection) of the secular State in Israel and in the Christian and Muslim countries1 will be examined in the last part of this chapter (n. 4).

3Before starting this examination, two preliminary remarks are required. First, my analysis will focus primarily on Sunni Islam, Orthodox Judaism and Roman Catholic Christianity: the legal traditions of other currents of Islam, Judaism and Christianity will not be considered in this paper. Second, my intent is purely descriptive. I want to explain why the Christian legal tradition (and particularly the Roman Catholic one), based on divine natural law, paved the way to the secular State and why the Islamic and Jewish traditions did not provide a congenial habitat for the development of a similar type of State. But I am in no way implying that one tradition is better than the other, nor that the secular State is preferable to other political models.

2. God’s law in the legal systems of Judaism, Christianity, and Islam

  • 2 Divine in the sense that it is promulgated by God. Greek philosophers had a different notion of the (...)
  • 3 On the distinction between religious and non-religious (or secular) legal systems see Silvio Ferrar (...)
  • 4 History shows that also the religious-based legal systems are subject to change: interpretation and (...)

4The legal systems of the Jewish, Christian and Muslim religions have in common the fact of deriving their legitimacy from divine will: they are systems of law based on rules that were laid down by God himself. God’s law occupies a very central place in these legal systems. The validity of all the provisions contained in each of them depends on their conformity (or at least non-opposition) to the rules of divine law2 that constitute their foundation: that is, it depends on the will of God and not on the will of men, as is normal in all legal systems with a non-religious foundation3. The ability to dictate new rules and to change the legal system in adherence to the transformation and the needs of the religious community meets a limit in the impossibility for divine rules to undergo any change that is not attributable to the will of God himself4. The superiority that each of these three religious legal systems claims over the secular ones hinges on the concept of divine law which, as it is dictated by a higher authority than any human one, demands absolute obedience and respect even when it conflicts with the rules set out by human powers: magis oportet oboedire Deo quam hominibus.

5These brief remarks are sufficient to understand the importance that divine law has in the three legal systems which are the subject of this paper. To understand their relationship with the secular legal systems it is therefore necessary to examine the concept of divine law that prevailed in each of them in more detail.

6The main element of affinity between the legal systems of Judaism, Christianity and Islam is that God’s law is known by man through revelation. It is (in whole or in part) a “revealed” law: not in the sense that it “reveals” itself as man gains the ability to discover and to know it (as may happen in other religious experiences) but because it is made known through the initiative of God, without whose intervention man would not have been able to learn the content of divine law. This element that is common to all three legal systems must not however lead to neglecting the importance of the difference implicit in the parenthesis “in whole or in part” that has been employed to qualify the source of divine law: while for the legal systems of the Christian Churches divine law is not all revealed law, for the Islamic and (though in different form) the Jewish legal systems divine law and revealed law coincide. The importance of this difference, which at first glance could seem minor, is great and so it is appropriate to address this issue more in detail.

3. Divine law and natural law in the legal traditions of Orthodox Judaism, Roman Catholic Christianity and Sunni Islam

  • 5 On the notion of tradition and, in particular, of legal tradition see H. Patrick Glenn, Legal Tradi (...)

7Every cultural tradition5 – defined as the set of principles and values that are shared by a stable community of people and that grant it social cohesion – must face the problem of the “other”, that is the person who does not identify himself with the fundamental assumptions on which community life is based. Defining the legal status of the “other” is a problem shared by all communities, be they political, religious, ethnic, linguistic, etc. Today, more than ever, no community can realistically think of living in perfect isolation: therefore there is no doubt about the need to establish an appropriate catalogue of rights and obligations that apply to the “other”.

  • 6 See Julius Stone, Human Law and Human Justice, Stanford, Stanford Univ. Press, 1968. The scriptural (...)
  • 7 See David J. Klassen, “Le droit naturel dans le pensée de Thomas d’Aquin”, in Louis-Léon Christians (...)
  • 8 Although, according to the Catholic doctrine, this knowledge is imperfect due to the natural sin th (...)
  • 9 On the problem, much discussed among the canonists, of the subjection of infidels to the precepts o (...)

8The manner in which the problem of the “other” is addressed depends on the different religious and cultural traditions. In the Roman Catholic legal tradition, the main instrument for tackling this problem has been the notion of divine natural law6. The clearest explanation of the divine natural law theory dates back to Thomas Aquinas, who has the merit of having drawn with great lucidity the distinction between divine revealed law and divine natural law7. The first is given by God through revelation and cannot be known outside of it (i. e. it cannot be learned by men only through reason). The second is also given by God, but through the creation: it is inscribed in the conscience of every man, as a he is a person created in the image and likeness of God, and it is knowable through the proper use of the rational faculties which every human being has8. Both laws are immutable, binding and superior to human law, but the divine revealed law rules over the lives of the faithful (that is, those who received the baptism), while the divine natural law governs the lives of all men9.

  • 10 “The natural law, present in the heart of each man and established by reason, is universal in its p (...)

9The idea that, at the time of creation, God gives every human person the ability to distinguish right from wrong through the correct use of reason makes it possible to establish an element of commonality among people of different religions10. The “other” is not a “lawless” person or a person who has a law that is totally and irretrievably different from mine: on the contrary he is, like me, able to perceive what is right and wrong even if, without the aid of revelation and divine grace, he may not be able to live up to this perception. There is therefore an area of rights and duties that are common to all men and all men, through the proper use of their rational faculties, may recognize the universal value of these rights and duties.

  • 11 For a general overview of the debate on natural law see David Novak, Natural Law in Judaism, Cambri (...)
  • 12 On these commandments see David Novak, The Image of the Non-Jew in Judaism. An Historical and Const (...)

10This mode of addressing the problem of the “other” is not universal. Other religious traditions lack the concept of divine natural law or articulate it differently. In Orthodox Judaism (in the Reform and Conservative currents the approach is different), the concept of natural law is controversial11 and the issue of the legal status of the “other” is set in terms that differ from those presented above. According to the Jewish doctrine, the whole of humankind was governed – before the law of God was revealed to Moses on Mount Sinai – by the Noahide commandments, given by God to Adam and Noah: these commandments prohibit blasphemy, idolatry, murder, theft and robbery, sexual misconduct and eating a limb taken from a live animal; a seventh precept orders the establishment of courts to administer justice12. On Mount Sinai God gave Moses the law that, henceforth, would rule the Jews: non-Jews should instead continue to live in accordance with the Noahide laws, reaffirmed on the occasion of the Sinaitic revelation.

  • 13 While most scholars agree that some of Noah’s commandments can be known through reason, it is debat (...)
  • 14 “Because Judaism is basically a positivistic legal system based upon the Covenant at Sinai” (Elliot (...)
  • 15 The diversity between this approach and the one prevailing in the Christian legal tradition emerges (...)
  • 16 Can a righteous gentile, who lives according to the Noahide law, reach the eternal life? The Toseft (...)
  • 17 On human rights in the Jewish legal traditions see Milton Konvitz (ed.), Judaism and Human Rights, (...)

11So since the revelation to Moses two legal systems have coexisted, the one reserved to the chosen people and the other to all men: the analogy between this pattern and the Roman Catholic one is quite obvious. Both are based on two regulatory complexes, respectively addressed to the faithful (divine revealed law and Sinaitic revelation) and to all humankind (divine natural law and Noahide law). But there are also some significant differences: the seven Noahide commandments are revealed by God and not inscribed in the conscience of every human being at the time of his creation. Though this point is the subject of endless discussions, the majority position of Orthodox Judaism affirms that the Noahide laws rest more on the revelation than on conscience or reason. Consequently it is debated whether all the Noahide commandments could have been understood by reason only, without the help of divine revelation13, and the idea that Noahide law is a kind of natural law is far from being shared by the majority of Orthodox Jewish law scholars, among whom “natural law theories never have been popular”14. In this framework, the universal scope of human rights is founded on a special revealed law for non-Jews, rather than on a rationally knowable law common to all men: the commandments given by God to Noah allow people to recognize full legitimacy to the presence of the “other” but do not cancel the fundamental difference with God’s Chosen People (that not all people are chosen to be part of)15. This difference is not negligible and it reappears in the Jewish legal tradition more than once, for example in the debate about the eternal life of the non Jew16. But it did not have a paralyzing effect on the ability to develop a theory of the universality of human rights: the existence of the Noahide precepts, that is a (rudimentary but basically good) law that governs the behavior of the non-Jew and allows him to lead a righteous life, provides a sufficiently strong basis to assert the existence of a cluster of rights and duties that pertain to all human beings17.

  • 18 “La religion et les fondements du droit en Islam”, Archives de philosophie du droit, 18, Paris, Sir (...)
  • 19 The existence of a conception of natural law in the Islamic legal philosophy is affirmed by A. Ezza (...)
  • 20 Abdulaziz Sachedina, The Islamic Roots of Democratic Pluralism, Oxford, Oxford Univ. Press, 2001, p (...)
  • 21 See Majid Khadduri, The Islamic Conception of Justice, Baltimore, Johns Hopkins Univ. Press, 1984, (...)

12The Sunni Islamic doctrine and jurisprudence address the problem of the legal status of the other in a way that is different both from the Jewish and from the Christian ones. In its legal tradition the notion of divine natural law seems to be absorbed and exhausted in that of divine revealed law to the point that Chafik Chéhata could write that “the orthodox Islamic theology does not admit the existence of a natural law, that is a law that is born from nature and, as such, is independent of revelation and religious dogma”18. This statement is disputed by some scholars19 who refer to the notion of fitra as a form of “prerevelatory, natural guidance […] ingrained in the human personality”20 that enables men to distinguish good and evil: but this notion has had scarce development in the legal speculation. However, to avoid misunderstandings, it should be immediately made clear that the Catholic doctrine does not accept the idea of a law that is born from nature and is completely independent of religious norms either: the Thomist conception that distinguishes between divine revealed law and divine natural law emphasizes the derivation of both from God and therefore concludes that the second cannot be in contradiction with the first. But Thomas Aquinas, assuming that human rationality is a reflection of divine rationality, says that good and evil, right and wrong are objective categories that can be learned through human reason, even without the intervention of divine revelation. This same conclusion is alien to the Sunni legal tradition that is strongly imbued with the Ash’arite philosophy according to which right and wrong have their only foundation in God’s will21.

  • 22 See Richard C. Martin, Mark R. Woodward and Dwi S. Atmaja, Defenders of Reason in Islam: Mu‘tazilis (...)
  • 23 Robert Caspar, Traité de théologie musulmane, Roma, Pont. Ist. di Studi Arabi e d’Islamistica, 1996 (...)
  • 24 Ibid., p. 181.
  • 25 Tahafut al-falasifah [Incoherence of the philosophers], Lahore, Pakistan Philosophical Congress, 19 (...)
  • 26 See for example Thérèse-Anne Druart, Al-Fârâbi (870-950): une éthique universelle fondée sur les in (...)
  • 27 See Julius Stone, Human Law, 1968, p. 55-60; George Makdisi, “Ethics in Islamic traditionalist doct (...)
  • 28 For example Occam writes that, if God had so willed, stealing, lying and committing adultery would (...)

13To better understand the differences between these two conceptions of law and justice it is helpful to recall briefly the story of the Mu’tazilite theological school, which flourished between the eighth and ninth centuries in connection with the establishment of the Abbasid dynasty and the shift of the political center of gravity of Islam from Damascus to Baghdad22. It was a time of religious pluralism. Islam, following its rapid expansion, ruled over areas where the majority of the population followed other religions: the problem of the “other”, the non-Muslim, and his legal status within a community politically and militarily dominated by Islam, was more pressing than ever. It was also the time when Islam entered more deeply in touch with Greek thought, through the Arabic translations of the works of Aristotle and Plato, encouraged by the new caliphs: “a wind of rationalism blows in the Muslim world” and encourages the “use [of] the Greek reason for the defense and explanation of the revelation” contained in the Quran23. In this context of rapid change Mu’tazilites affirmed two very important principles: the ability to rationally prove the existence of God and the ontological character of good and evil. Believing that an act is good or bad in itself (and not because God has commanded or forbidden it) opens the way to the idea that there can be universal moral principles, knowable through the proper use of reason. These theories, which have some similarity with those of Thomas Aquinas, laid the foundation for the development of the notion of natural law but, after an ephemeral success, they were crushed by the reaction of the Hanbali traditionalists and by the success of the voluntaristic doctrines of al-Ash’ari. A former follower of the Mu’tazilite doctrines, al-Ashari detaches himself from them and adopts a middle course between these and the traditionalist views of the Hanbali school. Al-Ashari does not oppose a moderate use of reason in interpreting the sacred scriptures but, to combat Mu’tazilite rationalism, he affirms the absolute freedom of divine will: “good and evil” – Al-Ashari writes – “are so because God has declared that a certain act was good and another bad, but [God] could have stated the opposite, for example, that killing and stealing were well and then these acts would have been good”24. Al-Ashari’s ideas prevailed, bringing about the decline (in Sunni Islam) of the Mu’tazilite doctrines and inspiring the work of a great jurist of the eleventh century, al-Ghazali. In a work significantly entitled in the Latin translation “Destructio philosophorum”, al-Ghazali discusses the causal link between two events (such as the rising of the sun and light, decapitation and death) and writes that “if one follows the other, it is because He [God] has created them in that fashion, not because the connection in itself is necessary and indissoluble. He has the power to create the satisfaction of hunger without eating, or death without the severance of the head, or even the survival of life when the head has been cut off”25. These statements leave little room for natural law: if it all comes down to divine will, it is pointless to seek in this world a rationality that is intelligible to humans. So it is better to rely fully on revealed law and try to build a relationship with the “other” through paths that do not require a (nonexistent) law of nature. Obviously the whole picture is much more complex, both because al-Ashari and al-Ghazali doctrine cannot be reduced to these statements alone and because, even after the Mutazilites’defeat, there are Muslim philosophers and lawyers who rejected a voluntaristic approach to the definition of the relation between divine revelation and human reason26. Apart from these remarks, however, it is important to underline that the al-Ashari and al-Ghazali voluntaristic theories are not foreign to Western and Christian thought. In the fourteenth century Duns Scotus and William of Occam argued that, if God really is omnipotent, he cannot be bound by anything, including his own creation. God’s transcendence overcomes all human categories and investigating nature to know God is a pointless exercise, because human reason is unable to understand God who can be known only through revelation27. The similarity between these ideas and those supported a few centuries earlier by al-Ashari and al-Ghazali is striking28, but in Christian thought they never acquired a role comparable to that which the theories of al-Ash’ari have gained in Muslim thought: the “rationalist” Thomas Aquinas won the day in the West, while the “rationalist” Mu’tazilites were the losers in the East.

  • 29 The irrationality of Islamic law (albeit “within circumscribed limits”) is affirmed by Joseph Schac (...)
  • 30 It affected to a lesser extent the Shiite Islamic law and, within Sunni Islam, the Hanafi school, w (...)
  • 31 See Yadh Ben Achour, “Nature, raison et révélation dans la philosophie du droit des auteurs sunnite (...)

14From these events it is wise not to draw hasty conclusions about the irrationality of Islamic law29: the defeat of the Mu’tazilites – which until very recently marked the character of Sunni Islamic law30 - does not mean the exclusion of the rational analysis of law nor the use of reason as a tool of interpretation of the rules. But this defeat led to excluding that human reason can be the foundation of the legal order and therefore constitutes a barrier to the development of an organic conception of natural law31.

  • 32 See Kamran Hashemi, Religious Legal Tradition, International Human Rights Law and Muslim States, Le (...)
  • 33 See Giovanni Matteo Quer, “Pluralismo e diritti delle minoranze. Il sistema del ‘millet’”, Quaderni (...)
  • 34 See § 4.
  • 35 This does not mean that the practical application of this model has been satisfactory. Jews were pe (...)

15To sum up, one does not have the impression of being in the presence of elements that are completely absent in the philosophical and legal tradition of Islam and present only in the Christian one (or vice versa): it is instead a matter of potentialities which have been more fully developed in one system and less in another. The terms of the legal and philosophical debate are similar, what is different is the result. The philosophy of Thomas Aquinas is still part of the official teaching of the Roman Catholic Church and it is no coincidence that Thomas (and not Duns Scotus or William of Occam) was made a saint and proclaimed a Doctor of the Church. In the Muslim world an equally important role was instead played by the philosophy of al-Ashari. This helps to explain the weakness of the concept of natural law that makes it difficult for Islamic legal thought to address the problem of the “other” in the same way it is dealt with in the “Christian” West. It is not accidental that in the Islamic tradition the legal treatment of the “other” still remains largely grounded not on the notion of equality but on that of diversity and separateness. The “other” – the Jew and the Christian, for example – is different and is entitled to maintain this diversity through a legal framework that gives him the right to enjoy the Christian or Jewish rules concerning personal status law, family law, inheritance and so on. This is the best sense of the notion of dhimma32 and of its Ottoman institutional projection, the millet33. In the Western countries, where the influence of Christianity has been stronger, the concept of natural law (once it had been thoroughly secularized34) paved the way for the affirmation of the equality of citizens regardless of their religion, which has become irrelevant with reference to the enjoyment of civil and political rights. In this perspective the “other” (the Jew and the Muslim, for example) could be included in the national community in terms of substantive equality exactly because his religious membership had become irrelevant35. On this point the Jewish legal tradition is closer to the Islamic than to the Christian one. A couple of examples may be useful here. For instance, it is significant that Israel has maintained the millet system – albeit much reduced in scope – that it inherited (through the British Mandate) from the Ottoman Empire. And in Israeli law there is no civil marriage, another element that brings Israel closer to the countries with an Islamic legal background and distances it from the European countries with a legal tradition influenced by Christianity. Paradoxically, a growing number of Europeans deem that the Islamic and Jewish approach is more modern (and above all more suitable to dealing with the cultural and religious transformations of the Old Continent) than the Christian one: but that is another matter.

4. God’s law and the secular State

  • 36 Secular State is an expression that can have many different meanings. I make use of it to indicate (...)

16As we have seen, Judaism, Christianity, and Islam share the notion of God’s law but conceive it in different terms. The impact of this difference emerges clearly when examining the different fortunes of the notion of secular State in the countries with a predominant Jewish, Christian or Muslim population36. My argument is that, all historical conditions being equal, a secular State is more likely to take shape in countries with a Christian religious background because their legal tradition has been deeply influenced by the concept of natural law.

  • 37 This part is based on Silvio Ferrari, “Religion et constitution”, in Michel Troper and Dominique Ch (...)

17A good starting point for testing this argument is provided by the State conconstitutions: each constitution contains a few provisions devoted to defining the principles and values on which the State is based and the presence or absence of religion among them can provide some helpful indications37.

  • 38 See the constitutional preambles of Germany, Liechtenstein, Poland, Sweden, Switzerland.
  • 39 It is the case of the constitutions of Armenia (art. 8,1), Denmark (art. 4), Greece (art. 3), Icela (...)

18European countries have a population that, at least nominally, is largely Christian: therefore one would expect to find some references to Christianity in their constitutions. On the contrary, they are largely silent. A few constitutions contain some general references to God or religion in their preambles38 but none of them defines the State as a Christian State. There are some constitutions (again a minority) that recognize a Church of State or a dominant religion39: but these provisions regard the relations between Church and State more than the nature of the State. England has an established Church but this does not mean that England can be defined an Anglican State.

  • 40 Ten countries have a constitution that defines the State as Islamic: Afghanistan (art. 1), Bahrein (...)
  • 41 Seventeen constitutions of Muslim States list shari’a among the sources of State law: Afghanistan ( (...)

19The constitutions of the States where Muslims are the majority of the citizens are much more explicit. One third of them defines the State as an Islamic State40 and more than half includes shariʽa among the sources of State law41 (another thing that is completely extraneous to the constitutions of the European countries which make no reference to religious laws when they list the sources of the State law).

  • 42 See the basic laws on Human Dignity and Liberty (1992, art. 1) and on Freedom of Occupation (1994, (...)
  • 43 See art. 1.
  • 44 See Asher Maoz, “Constitutional Law”, p. 35. See also Itzhak Zamir and Allen Zysblat, Public Law in (...)

20Israel has no constitution but two fundamental laws define the State as “Jewish and democratic”42 and the law on the foundations of law affirms that when a court finds no answer to a legal question in statute law or case-law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace of Israel’s heritage43. According to some lawyers this statement contains an implicit reference to Jewish law44.

21These different ways of defining the relation between State and religion in the constitutions are linked to the conceptions of divine law that have been described in the previous paragraph.

22To understand the connection between the notion of secular State prevailing in Europe and the doctrine of divine natural law it is necessary to take into consideration what happened in the Old Continent in the sixteenth and seventeenth centuries. After the Lutheran Reformation, large regions of Europe were plagued by wars of religion that set Catholics and Protestants against each other for over a century. Wars of religion were a novelty in Europe and they could not find a suitable place in the theoretical framework into which war had been considered up to then. The Protestant Reformation had shattered the common religious horizon of the Medieval period, when most Western Europeans believed in the same God and recognized the same religious authority, the Pope. Wars of religion were fought by each opponent in the name of a different God and the Pope was no longer a super partes referee but had become the head of one of the conflicting parties. Therefore these wars could not be ended by appealing to the judgment of the Pope, which had been possible (at least in principle) during the Middle Ages. A new way out had to be found to put an end to wars that seemed endless. Two solutions were found for this problem: one short-term and political in nature, the other long-term and philosophically oriented. The first consisted of the application of the principle “cuius regio, eius et religio” which, through the forced emigration of religious minorities, led to the creation of religiously homogeneous confessional States: although it cost considerable “religious cleansing”, it had the merit of putting an end to civil wars. The second solution was found by Grotius and expressed with the famous saying “etsi Deus non daretur”. It took almost two centuries to transfer Grotius’ intuition from the world of philosophical speculation to that of political action, but in the end this principle inspired the (never completed) secularization of the public institutions that took place in much of Europe during the nineteenth century. Grotius’ proposal therefore requires more detailed examination.

  • 45 On the relations between Grotius and Gentili see Kenneth R. Simmonds, “Hugo Grotius and Alberico Ge (...)

23The problem Grotius had to solve was a religiously motivated conflict: if a peaceful society had to be rebuilt, the starting point could no longer be religion, which had to be confined to one’s private life. A new starting point was required and it was found in a natural law integrally founded on God’s rationality and therefore fully accessible to man’s reason. In other words, to make peaceful coexistence possible between Catholics and Protestants, politics, the law, the economy and the other areas of public life had to be secularized, placing them under the exclusive control of reason and philosophy and freeing them from the control of religion and theology: that is, they had to be conceived and regulated “etsi Deus non daretur”. The centre of gravity of religion is shifted from the public to the private life and at the same time the centre of gravity of public law moved from divine law to natural law based on reason. Alberico Gentili’s “silete theologi in munere alieno” – the admonition addressed to theologians to keep silent in matters which concern others – finds in Grotius’“etsi Deus non daretur” its most convincing justification45.

  • 46 The Law of War and Peace, I, I, 10, 5, Lonang Institute 2005 (available at https://lonang.com/libra (...)
  • 47 Catherine Larrière, “Grotius: droit naturel et sociabilité”, in Louis-Léon Christians et al. (eds.) (...)
  • 48 Thus confirming the exactness of Carl Schmitt’s intuition that “all significant concepts of the mod (...)

24This development was possible only because of the central place the doctrine of divine natural law had gained in Europe during the Middle Ages. As underlined by Catherine Larrière, Grotius’ “etsi Deus non daretur” does not imply the negation of God, it presupposes only God’s rationality: in perfect opposition to al-Ashari’s voluntarism, Grotius writes that “just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil”46. In this way Grotius does not need to deny the divine origin of natural law: it is enough to affirm its accessibility “to all humankind, Christian or not”47. It is obvious that Grotius’ theory constitutes a major departure from the traditional Roman Catholic doctrine that affirms the human inability to grasp with certainty and in fullness the content of natural law (because of original sin) and in this way justifies the need for the Church’s guidance in interpreting divine natural law. But Grotius does not alter the structure of the Roman Catholic philosophical and legal discourse on natural law: the philosopher takes the place of the theologian, but this is more a substitution than a revolution48.

25In the countries with a Jewish or Muslim religious background the weakness of the concept of divine natural law helps to explain why the search for an appropriate legal status of the other followed routes different from the creation of a secular State.

26Differently from divine natural law in Christian thought, in the Orthodox Jewish legal tradition the Noahide law is part of the revealed law and it is debated whether all its principles can be discovered through rational investigation. Although Selden and Spinoza tried to follow a path similar to Grotius’, this background made the rationalization of the Noahide law and its reduction to natural law difficult and after 1948 it prevented the creation of a secular State in Israel. The double Revelation theory – one universal (to the whole of humankind, the Noahide Revelation) and one particular (to a specific people, the Sinaitic Revelation) – provided the intellectual background for a different solution to the problem of the “other”: a State with a double root, one universal (the will of the citizens) and one particular (the cultural and religious heritage of the Jewish people). Of course the definition of the State of Israel as a democratic and Jewish State is primarily the outcome of a political compromise between the secular and religious currents of Zionism: but this compromise was possible because its content was coherent with the theological and legal background made available by the Jewish tradition to the founding Fathers of the State of Israel.

  • 49 Islam recognizes a number of revelations to specific people – the Jews and the Christians, for exam (...)
  • 50 Not to all, however. Twelve Muslim countries have constitutions that affirm the secular character o (...)

27The Islamic approach to the secular State is even more problematic. Due to the weakness of the notion of divine natural law in this tradition, the Christian route is blocked; the Jewish route is impassable too, as it requires a universal revelation that is unknown to Islam49. That leaves a very narrow passage based on the interpretation of the sacred texts: secularization of the State has to find its legitimacy directly in the Koran and the Sunna. This attempt was made in the twentieth century by a group of modernist Muslim thinkers, largely under the influence of the Western thought that had spread in their countries under the colonial powers: but their conclusions have been accepted only by a fraction of Muslim public opinion and religious authorities. As a consequence the notion of secular State remains extraneous to many Islamic countries50, where the State is clearly founded on Islamic principles and non Muslims (in particular Christians and Jews) have the right to live according to their personal law, provided they accept the supremacy of the Muslim ruler.

Conclusions

  • 51 See Ino Augsberg, “Religious Freedom as ‘ Reflexive Law’” and Suzanne Last Stone, “Conflicting Visi (...)

28What are the consequences which can be deduced from the analysis carried out in the preceding pages? The first and most important of them is that it is futile to attempt to export the model of the secular State to religious and legal traditions that do not meet the conditions for accepting it. This model is not culturally neutral: it is connected to Christian theological concepts51. So it is not universal and it is pointless to think that, born in the Christian West, it can easily take root in the Muslim East. A second conclusion follows on naturally from the first: rather than trying risky legal transplants, it is preferable for each civilization to look within its own religious and cultural tradition for the suitable tools to address the problem of the “other” in terms that are appropriate to contemporary society. All the models considered in the preceding pages – including the Western and “Christian” secular State – show evident limits in governing the tensions induced by the process of religious pluralization that is developing in many parts of the world, but each of them has in itself the potential to meet this challenge. In the West the solution is not to jettison the concept of secular State: rather, it is to initiate a reflection that allows its application in a way that is not hostile to religion. In the Muslim countries the problem is not to give up the Islamic State but within it to guarantee freedom and equality to non-Muslim people and communities. They are different roads, but all are acceptable if they converge on the common goal of ensuring religious freedom, which is a fundamental right of every human person.

29Scholars of law and religion can contribute to this strategy by indicating the connection between the legal and the theological categories and showing the importance of knowing different religious legal traditions in order to understand contemporary political transformations. A sound knowledge of the theological background of political categories helps in deciphering not only their roots but also their potentialities, as shown by the examination of the notion of secular State. Paying due attention to the dangers of essentialism and determinism, a better understanding of the connections between religion and politics is the precondition to providing convincing answers to questions posed by the growing presence of religion in the public space.

Notes

1 By Christian and Muslim countries I indicate the countries where the majority of the population professes that faith: even though it is just a numerical datum, incapable of revealing the effective vitality of a religion, the fact that over half of the population of a country follows the same religion normally indicates that some cultural categories which may be traced to the religion of the majority have had (and can have) a significant importance in establishing the legal tradition of that country. The data on the religious membership of the population have been taken from ARDA (Association of Religion Data Archives, http://www.thearda.com/).

2 Divine in the sense that it is promulgated by God. Greek philosophers had a different notion of the divinity of law: for them law had a divine character that was, however, independent from its promulgation by God. See Remi Brague, The law of God, Chicago, The Univ. of Chicago Press, 2007, p. 28 ff.

3 On the distinction between religious and non-religious (or secular) legal systems see Silvio Ferrari, “Canon Law as a Religious Legal System”, in A. Huxley (ed.), Religion, Law and Tradi tion. Comparative Studies in Religious Law, London, RoutledgeCurzon, 2002, p. 101-103.

4 History shows that also the religious-based legal systems are subject to change: interpretation and second level provisions are the most common instruments to change a law that is assumed to be unchangeable. See Silvio Ferrari, “Adapting Divine Law to Change: The Experience of the Roman Catholic Church (With Some Reference to Jewish and Islamic Law)”, Cardozo Law Review, v. 28, October 2006, n. 1, p. 53-66.

5 On the notion of tradition and, in particular, of legal tradition see H. Patrick Glenn, Legal Traditions of the World. Sustainable Diversity in Law, Oxford, Oxford Univ. Press, 2010.

6 See Julius Stone, Human Law and Human Justice, Stanford, Stanford Univ. Press, 1968. The scriptural foundation of divine natural law theory is to be found in Paul’s Letter to the Romans (2, 14-16): “For when Gentiles who don’t have the law do by nature the things of the law, these, not having the law, are a law to themselves, in that they show the work of the law written in their hearts, their conscience testifying with them.”

7 See David J. Klassen, “Le droit naturel dans le pensée de Thomas d’Aquin”, in Louis-Léon Christians, François Coppens, Xavier Dijon, Paul Favraux, Gaëlle Fiasse, Jean-Michel Longneaux, Muriel Ruol (eds.), Droit naturel: relancer l’histoire?, Bruxelles, Bruylant, 2008, p. 257-292.

8 Although, according to the Catholic doctrine, this knowledge is imperfect due to the natural sin that clouded the human ability to recognize inerrably the principles of natural law (see Catechism of the Catholic Church, Città del Vaticano, Libreria Editrice Vaticana, 1993, n. 1960): as a consequence their definition by the Church authority has become a necessity (and this is the most questionable profile of the whole theory, as the declarations of the Church in this field are valid erga omnes). However this definition, although formulated in the light of divine revelation, must be based on human reason.

9 On the problem, much discussed among the canonists, of the subjection of infidels to the precepts of divine revealed law see Philippo Maroto, Institutiones iuris canonici ad normam novi codicis, Romae 1921, p. 21-22; R. Naz, “Infidèles”, in Dictionnaire de droit canonique, v. V, Paris, Letouzey et Ané, 1953, c. 1360; Giuseppe Dalla Torre, “Infedeli”, in Enciclopedia del diritto, Milano, Giuffrè, 1971, v. XXI, p. 418.

10 “The natural law, present in the heart of each man and established by reason, is universal in its precepts and its authority extends to all men. It expresses the dignity of the person and determines the basis for his fundamental rights and duties […]. It also provides the indispensable moral foundation for building the human community. Finally, it provides the necessary basis for the civil law”: Catechism of the Catholic Church, n. 1956 and 1959.

11 For a general overview of the debate on natural law see David Novak, Natural Law in Judaism, Cambridge, Cambridge Univ. Press, 1998 (according to whom “Noahide law is the Jewish way of thinking natural law”: p. 191) and the review to this book published by Bernard Jackson in Journal of Jewish Studies, Spring 2001, p. 136-45; Jacob I. Dienstag, “Natural Law in Maimonidean Thought and Scholarship”, The Jewish Law Annual, v. VI (1987), p. 64-77. Novak’s opinion is shared by Norman Lamm and Aaron Kirschenbaum, “Freedom and Constraint in the Jewish Judicial Process”, Cardozo Law Review, 1 (1979), p. 105-20; Aaron Lichtenstein, “Does Jewish Tradition Recognize an Ethic Independent of Halakha?”, in Marvin Fox (ed.), Modern Jewish Ethics: Theory and Practice, Columbus, Ohio State Univ. Press, 1975, p. 62-65; contra Marvin Fox, “Maimonides and Aquinas on Natural Law”, Diné Israel, v. V (1972), p. V-XXXVI; José Faur, “Understanding the Covenant”, Tradition, Spring 1968, p. 41; Suzanne Last Stone, “Sinaitic and Noahide Law: Legal Pluralism in Jewish Law”, Cardozo Law Review, 12 (1991), p. 1157-1214. J. David Bleich (“Judaism and Natural Law”, The Jewish Law Annual, v. VII (1988), p. 5 ff.) advocates a very limited notion of natural law.

12 On these commandments see David Novak, The Image of the Non-Jew in Judaism. An Historical and Constructive Study of the Noahide Laws, New York – Toronto, Edwin Mellen Press, 1983; Nahum Rakover, Law and the Noahides. Law as a Universal Value, Jerusalem, The Library of Jewish Law, 1998.

13 While most scholars agree that some of Noah’s commandments can be known through reason, it is debated whether all of them could have been known without God’s revelation. See Nahum Rakover, “Jewish Law and the Noahide Obligation to Preserve the Social Order”, Cardozo Law Review, 12 (1991), p. 1076-1086.

14 “Because Judaism is basically a positivistic legal system based upon the Covenant at Sinai” (Elliott Dorff, “Judaism as a Religious Legal System”, The Hastings Law Journal, 29, 1977-1978, p. 1352).

15 The diversity between this approach and the one prevailing in the Christian legal tradition emerges, for example, when examining the question of the prohibition of usury. This prohibition is based on a passage from Deuteronomy that says: “do not charge a fellow Israelite interest, whether on money or food or anything else that may earn interest. You may charge a foreigner interest, but not a fellow Israelite, so that the Lord your God may bless you in everything you put your hand to in the land you are entering to possess” (Deut., 23: 19-20; see also Deut., 15: 2-3). This passage clearly shows the existence of two laws: one that governs the relations among Jews, based on brotherhood, and another that governs the relations between Jews and non-Jews, based on justice. The two laws are not inconsistent or contradictory, but they are different: those closest to me (in this case those who share my religion) are entitled to something more than all other people. Christianity inherited from Judaism the prohibition of usury, but from the beginning understood it as a principle of divine natural law: therefore this prohibition was extended to all people, applying the principle that – outside the divine revealed law – there is just one law (the divine natural law) that is common to Christians and non Christians. On the different way to conceive the prohibition of usury in Judaism and Christianity see Benjamin Nelson, The Idea of Usury. From Tribal Brotherhood to Universal Otherhood, Princeton, Princeton Univ. Press, 1969, p. 3-28; see also Auguste Dumas, “Intérêt et usure”, in Dictionnaire de droit canonique, t. V, Paris, Letouzey & Anè, 1953, c. 1476.

16 Can a righteous gentile, who lives according to the Noahide law, reach the eternal life? The Tosefta answers in the affirmative (Sanhedrin, 13:2) and this is the position of most contemporary Jewish law scholars (see for example Nahum Rakover, Jewish law, p. 1073-1136). But Maimonides writes it is not enough to respect the Noahide precepts because they are rational, it is necessary to respect them as the revealed law of God, that is by faith: only in this case will a gentile have a share in the world to come (see Joseph E. David, “Maïmonide, la nature et le droit: un vieux problem revisité”, in Louis-Léon Christians, et al. (eds.), Droit naturel, op. cit., p. 237-241). Interestingly the Catholic answer to the same question is different: human beings who live according to divine natural law can reach eternal salvation even if they do not know the Christian revelation or reject it “bona fide”. The grounds on the basis of which the law is observed (because it is rational or because it has been revealed) is not decisive. For an overview of the Roman Catholic doctrine see Mikka Ruokkannen, The Catholic Doctrine of Non-Christian Religions According to the Second Vatican Council, Leiden-New York-Köln, Brill, 1992.

17 On human rights in the Jewish legal traditions see Milton Konvitz (ed.), Judaism and Human Rights, London, Rutgers, 2001; Asher Maoz, “Can Judaism serve as a source of human rights?”, Zeitschrift für Ausländisches öffentliches Recht und Völkerrecht, 64 (2004), n. 3, p. 677 ss.

18 “La religion et les fondements du droit en Islam”, Archives de philosophie du droit, 18, Paris, Sirey, 1973, p. 17. See also C. G. Weeramantry, Islamic Jurisprudence. An International Perspective, London, MacMillan, 1988, p. 65; Majid Khadduri, “Nature and Sources of Islamic Law”, in Ian Edge (ed.), Islamic Law and Legal Theory, Aldershot, Dartmouth, 1996, p. 90-92.

19 The existence of a conception of natural law in the Islamic legal philosophy is affirmed by A. Ezzati, Islam and Natural Law, London, Icas Press, 2002, p. 60-92, while Anver E. Emon (Islamic Natural Law Theories, Oxford, Oxford Univ. Press, 2010) makes a distinction between hard and soft conceptions of natural law; for a more nuanced position see Yadh Ben Achour, “L’idea di giustizia naturale nel pensiero giuridico sunnita”, Daimon. Annuario di diritto comparato delle religioni, 4/2004, p. 225-42. On the peculiar approach of Islamist theology to natural law see Frank Griffel, “The Harmony of Natural Law and Shari’a in Islamist Theology”, in Abbas Amanat and Frank Griffel (eds.), Shari’a. Islamic Law in the Contemporary Context, Stanford, Stanford Univ. Press, 2007, p. 38-61.

20 Abdulaziz Sachedina, The Islamic Roots of Democratic Pluralism, Oxford, Oxford Univ. Press, 2001, p. 85. See also Yasien Mohamed, Fitra. The Islamic conception of human nature, London, Ta-Ha Publ, 1996; A. Ezzati, Islam, p. 93-109.

21 See Majid Khadduri, The Islamic Conception of Justice, Baltimore, Johns Hopkins Univ. Press, 1984, p. 94-95; Mohammed Hashim Kamali, “Methodological Issues in Islamic Jurisprudence”, Arab Law Quarterly, 11, 1996, p. 15; Wael B. Hallaq, A History of Islamic Legal Theories, Cambridge, Cambridge Univ. Press, 1997, p. 135.

22 See Richard C. Martin, Mark R. Woodward and Dwi S. Atmaja, Defenders of Reason in Islam: Mu‘tazilism from Medieval School to Modern Symbol, Oxford, Oneworld Publ., 1997; A. Kevin Reinhart, Before Revelation. The Boundaries of Muslim Moral Thought, Albany, State Univ. of New York Press, 1995; Albert W. Nader, Le système philosophique des Mu‘tazila: premiers penseurs de l’Islam, Beyrouth, Les Lettres Orientales, 1956; Tilman Nagel, The History of Islamic Theology. From Muhammad to the Present, Princeton, Wiener, 2000, p. 93-170.

23 Robert Caspar, Traité de théologie musulmane, Roma, Pont. Ist. di Studi Arabi e d’Islamistica, 1996, p. 148.

24 Ibid., p. 181.

25 Tahafut al-falasifah [Incoherence of the philosophers], Lahore, Pakistan Philosophical Congress, 1963, p. 185.

26 See for example Thérèse-Anne Druart, Al-Fârâbi (870-950): une éthique universelle fondée sur les intelligibles premiers, in Louis-Léon Christians et al. (eds.), Droit naturel, op. cit., p. 215-232.

27 See Julius Stone, Human Law, 1968, p. 55-60; George Makdisi, “Ethics in Islamic traditionalist doctrine”, in Id., Religion, Law and Learning in Classical Islam, Hampshire, Variorum, 1991, p. 50-51.

28 For example Occam writes that, if God had so willed, stealing, lying and committing adultery would have been virtuous (see Opera Theologica, New York, Franciscan Institute Press, 1967-1986, v. V, p. 352): al-Ashari used the same examples to support his thesis. Correctly Brian Terney underlines that according to Occam (and again we are not far from Al-Ashari), although God could have created a different universe, “in the existing world that God had actually chosen to make, human reason could provide a guide to human moral conduct” (“Natural law and natural rights”, in John Witte, Jr. and Frank S. Alexander (eds.), Christianity and Law, Cambridge, Cambridge Univ. Press., 2008, p. 96): but the possibility of a different universe, where stealing is good and giving to the poor is bad, undermines the ontological nature of good and bad.

29 The irrationality of Islamic law (albeit “within circumscribed limits”) is affirmed by Joseph Schacht, An Introduction to Islamic Law, Oxford, Clarendon Press, 1982, p. 202.

30 It affected to a lesser extent the Shiite Islamic law and, within Sunni Islam, the Hanafi school, where the voluntaristic trend of al-Ash’ari had less influence: see Bernard G. Weiss, The Spirit of Islamic Law, Athens-London, The University of Georgia Press, 1998, p. 35-38.

31 See Yadh Ben Achour, “Nature, raison et révélation dans la philosophie du droit des auteurs sunnites”, in Eugene E. Dais, Roberta Kevelson, Jan M. Van Dunne (eds.), Consequences of Modernity in Contemporary Legal Theory, Berlin, Duncker & Humblot, 1998, p. 3-20.

32 See Kamran Hashemi, Religious Legal Tradition, International Human Rights Law and Muslim States, Leiden-Boston, Nijhoff, 2008, p. 135-212.

33 See Giovanni Matteo Quer, “Pluralismo e diritti delle minoranze. Il sistema del ‘millet’”, Quaderni di diritto e politica ecclesiastica, 2010/1, p. 257-308.

34 See § 4.

35 This does not mean that the practical application of this model has been satisfactory. Jews were persecuted in the secular and Christian Europe much more heavily than in Muslim countries where, at least until 1948, the millet system ensured them a safe habitat.

36 Secular State is an expression that can have many different meanings. I make use of it to indicate a State where the same civil and political rights are enjoyed by citizens independently from the religion they profess (or do not profess).

37 This part is based on Silvio Ferrari, “Religion et constitution”, in Michel Troper and Dominique Chagnollaud (eds.), Traité international de droit constitutionnel, directed by, v. III, Paris, Dalloz, 2013, p. 37-78.

38 See the constitutional preambles of Germany, Liechtenstein, Poland, Sweden, Switzerland.

39 It is the case of the constitutions of Armenia (art. 8,1), Denmark (art. 4), Greece (art. 3), Iceland (art. 62), Liechtenstein (art. 37), Malta (art. 2), Monaco (art. 9), Norway (art. 16); in England, where there is no written constitution, the Church of England is the established Church. This provision is much more frequent in the constitutions of Muslim States: 23 of them (that is more than half of the 44 States where Muslims are the majority) declare Islam to be the religion of the State.

40 Ten countries have a constitution that defines the State as Islamic: Afghanistan (art. 1), Bahrein (art. 1), Iran (art. 1), Maldives (art. 1), Mauritania (art. 1), Morocco (preamble), Oman (art. 1), Pakistan (art. 1), Saudi Arabia (art. 1), Yemen (art. 1).

41 Seventeen constitutions of Muslim States list shari’a among the sources of State law: Afghanistan (art. 130), Bahrain (art. 2), Egypt (art. 2), Iran (art. 4), Iraq (art. 2), Kuwait (art. 2), Libya (art. 1 of the Constitutional Declaration 2011), Maldives (art. 43), Mauritania (preamble), Oman (art. 2), Pakistan (art. 227-230), Qatar (art. 1), Saudi Arabia (art. 1), Sudan (art. 5), Syria (art. 3), United Arab Emirates (art. 7), Yemen (art. 3).

42 See the basic laws on Human Dignity and Liberty (1992, art. 1) and on Freedom of Occupation (1994, art. 2). Moreover the fundamental law on the Knesset (1958, art. 7A) defines Israel as the State of the Jewish people. The debates on the meaning of the word “Jewish” in the basic laws are endless but this word, along with a reference to the Jewish nation, includes also a reference to the Jewish religion. See Asher Maoz, “Constitutional Law”, in Itzhak Zamir, Sylviane Colombo, I. Zamir (eds.), The Law of Israel. General Survey, Jerusalem, Hebrew Univ. of Jerusalem, 1995, p. 33-36.

43 See art. 1.

44 See Asher Maoz, “Constitutional Law”, p. 35. See also Itzhak Zamir and Allen Zysblat, Public Law in Israel, Oxford, Clarendon Press, 1996, p. 152.

45 On the relations between Grotius and Gentili see Kenneth R. Simmonds, “Hugo Grotius and Alberico Gentili”, Jahrbuch für Internationales Recht, Band 8, 1959, p. 85-100.

46 The Law of War and Peace, I, I, 10, 5, Lonang Institute 2005 (available at https://lonang.com/library/reference/grotius-law-war-and-peace/gro-001/)

47 Catherine Larrière, “Grotius: droit naturel et sociabilité”, in Louis-Léon Christians et al. (eds.), Droit naturel, op. cit., p. 314.

48 Thus confirming the exactness of Carl Schmitt’s intuition that “all significant concepts of the modern theory of the state are secularized theological concepts” (Political Theology. Four Chapters on the Concept of Sovereignty, Chicago, Univ. of Chicago Press, 2005, p. 36).

49 Islam recognizes a number of revelations to specific people – the Jews and the Christians, for example – but the only revelation that is addressed to all humankind is the Koranic one.

50 Not to all, however. Twelve Muslim countries have constitutions that affirm the secular character of the State. All of them (with one exception: Lebanon) are non Arab States. Keeping in mind that the majority of the States that define themselves as Islamic are Arab States, these data seem to bring to light a significant difference between Arab and non-Arab Islam. See Silvio Ferrari, Religion and constitution, quoted at note…

51 See Ino Augsberg, “Religious Freedom as ‘ Reflexive Law’” and Suzanne Last Stone, “Conflicting Visions of Political Space”, in René Provost, Shai Lavi, Religious Revival in a post-Multicultural Age (forthcoming).

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