Christianity and Global Law
edited by Rafael Domingo and John Witte Jr.
This volume is one of several new introductions to Christianity and Law commissioned by the Center for the Study of Law and Religion at Emory University. Each volume is an anthology of some two dozen chapters written by leading scholars. The volumes contain historical, doctrinal, and comparative materials designed to uncover Christian sources and dimensions of familiar legal topics. Each is authoritative but accessible, calibrated to reach students, scholars, and instructors in law, divinity, graduate, and advanced college courses as well as educated readers from various fields interested in what Christianity has, can, and perhaps should offer to the world of law. Earlier titles in this series include: Christianity and Law (2008); Christianity and Human Rights (2011); Christianity and Family Law (2017); and Christianity and Natural Law (2017). Other titles are in press on Christianity and Conscience, Constitutionalism, Criminal Law, Economic Law, International Law, Migration Law, and Private Law. We aim to commission other such volumes on Christianity and bankruptcy law, education law, elder law, environmental law, health law, labor law, procedural law, remedies, and other familiar legal topics.
An Introduction and Overview by the editors
Rafael Domingo and John Witte Jr.
Over the past two years, the Emory Center for the Study of Law and Religion has led a major research project that explores the interaction between Christianity and the emerging global law. By “global law,” we mean the common law of humanity that transcends both the law of individual states and the international law between and among nations and regions. This topic has become tragically propitious with the current coronavirus crisis, which has revealed starkly the massive level of mutual vulnerability and interdependence of all humanity, and the urgent need for global legal solutions to global health challenges.
The challenges pressing for global law solutions today include not only global health and health care issues, but also massive human rights violations, international terrorism, genocide, war, arms trafficking, refugees and migrants, sex trafficking, hunger, famine, and poverty, global political and economic corruption, global climate and environmental challenges, and major nuclear and (bio)technological issues — all of which are beyond the capacity or power of any nation or even of international law to address fully. Global law discussions today build on ancient and foundational principles such as dignity, equality, solidarity, sovereignty, subsidiarity, pluralism, the common good, and rule of law. They also build on the efforts of earlier great legal minds from classical times who have sought to translate these legal principles into effective and enduring precepts and practices to address the major challenges of their day, sometimes using such sweeping concepts as natural law, law of nations, law of peoples, and comparable appeals to “universals.”
The new field of global law study remains a work-in-progress, however, and it will take some time and experimentation before it is settled – particularly given the recent resurgence of nationalism and balkanization along religious, ethnic, linguistic, political, and racial lines. But the growing interdependence of the world’s economies, cultures, and populations, and the rapid emergence of massive new global challenges to human civilization now calls for radical new thinking, from various quarters, to guide the development of law in subsequent generations.
Our new anthology on the recently published Christianity and Global Law is part and product of the rapidly emerging scholarship on global law. It presents freshly commissioned chapters by two dozen leading jurists, theologians, philosophers, political scientists, historians, and social scientists from North America, Europe, South Africa, and Australia. Included in the volume are major scholars like Anne Peters, Director of the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, who frames global legal and spiritual issues of environmental care and animal rights; Samuel Moyn, Henry Luce Professor of Jurisprudence at Yale, who problematizes the easy alliance of Christianity and human rights historically and today; Julian Rivers, Professor of Jurisprudence at Bristol, who critiques modern principles of equality using biblical and historical sources and arguments; and Mary Ellen O’Connell, Robert and Marion Short Professor of Law at Notre Dame, who probes Christian contributions to the legal traditions of pacifism, just war, and just peace. Included as well are our distinguished Center colleagues, Johan D. van der Vyver and Silas W. Allard, who weigh in expertly on Christianity, international criminal law, and the international laws of migration.
The 24 chapters in this volume reflect the provisional, experimental, and sometimes controversial discourse about global law today. Some contributors equate global law with international law; others see it as any law beyond the international law between and among sovereign states. For some, global law is only a worldwide growing legal consciousness to resolve planetary problems together; for others, it is a set of legal institutions organized on a global level to deal with public goods that affect humanity as a whole. For some, global law is the result of a process of constitutionalization of international law; for others, global law is a common law of humanity, a true world law. Our view as editors is that global law must remain complementary to national legal systems and focused only on specific global challenges facing global humanity. We do not envision a comprehensive and universal global legal system encompassing and preempting the national and international legal systems in the world. But we do believe that global law’s primary focus on the fundamental dignity and vulnerability of the global person rather than on the community of sovereign nation-states will eventually bring profound changes to the foundations of international law.
The chapters in this volume focus on the past, present, and potential contributions of global Christianity — among many other spiritual and philosophical traditions — to the global law discussion. This topic is rather new to contemporary global law scholarship, even though Christianity with its 2.3 billion members is the largest faith in the world. We think the topic to be worthy of close examination, and this volume outlines some of the emerging resources, questions, and methods. We make no claim that Christianity was the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today or in the future; indeed several contributors raise caveats about Christianity’s record and global law’s provenance and promise. Our hypothesis is more modest but nonetheless insistent: that Christianity has deep norms and practices, ideas and institutions, prophets and procedures that can be of great benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges.
The first part of our volume is biographical in nature. Behind many legal achievements, including the development of global law, one finds Christian values and ideals as they were interpreted at a given time. And behind those ideals, one often finds particular Christian legal thinkers who left an indelible mark on our legal culture. From among the hundreds of possible figures to study, we have selected eleven principal figures from the first century to the twentieth century who contributed key ideas and insights to the later development of global law or some aspects of it. We have included major jurists like Alberico Gentili (1552-1608), Johannes Althusius (1563-1638), and Hugo Grotius (1583-1645). We have also included the Apostle Paul (c. 5 CE- c. 64-67), theologians like Augustine of Hippo (354-430), Thomas Aquinas (1225-1274), Francisco de Vitoria (1483-1546) and Francisco Suárez (1548-1617), philosophers like Immanuel Kant (1724-1804) and Jacques Maritain (1882-1973), and the politician Robert Schuman (1886-1963) all of whom influenced the law profoundly.
The second part of the book deals with several structural principles of global law — dignity, equality, solidarity, sovereignty, subsidiarity, pluralism, the common good, and rule of law. Although the chapters in this part are more normative and theoretical, the authors continue to draw on historical examples and exemplars as well. The structural principles selected for analysis are not exclusive to global law, but they have proved critical to its development, and are even at the heart of it. If there is a universal common good for all humanity, that itself creates a global community, whose existence and protection should be subject to a global rule of law. This global human community is not a mere federation of sovereign nation-states, several authors in this section argue, but a universal community of all human persons without exclusion. All persons are by their nature compulsory members of this global humanity, and no one can freely abandon it. Such a unique community of individuals should be based on the imago Dei principle of dignity, which provides equal legal status to all persons without exception. If humanity is indivisible, the governance of this global human community must further be inspired by the principle of solidarity. Membership in a global community, however, sits alongside voluntary and involuntary membership in other communities as well – families, neighborhoods, local states, various social, economic, recreational, and other voluntary associations. The principles of limited sovereignty and subsidiarity allow the integration and coordination of different instrumental communities within the global human community.
The third part of the volume deals with illustrative global legal issues deeply influenced by Christianity for better or worse – human rights, international economic order, immigration, environmental protection, war and peace, and international criminal law. These chapters make clear that global law is not the only legal system of the global legal community, but it complements the work of existing local, national, and international laws in dealing with pressing global legal issues that transcend the capacity of any nation or region to deal with comprehensively. Global law is not monopolistic, and the existence of a global legal community does not presuppose the need for a global state that subsumes and preempts all other lesser sovereigns. Such a move would mark the end of social freedom and political life. Humanity as such is universal and total, but the legal-political structures and institutions that govern it should not be. Global law should satisfy only certain specific human needs that affects humanity as such and can be only adequately resolved on the global scale.
The Christian tradition has, for centuries, offered theological, philosophical, moral and legal ideas and tools that have contributed to the development of law, legal systems, and legal procedures. These Christian teachings and doctrines have inspired the laws of local communities, of nation-states, and of the modern international law system. They hold power and potential for the process of globalization of law as well. To be sure, the emerging idea of “global law” is not a Christian creation, just as the ideas of the common good, human dignity, natural law, human rights, and the like are not Christian creations. But many Christian principles and prophets have helped shape these emerging ideas, building on and alongside other religious and philosophical traditions. This volume provides a lively and learned introduction to and illustration of this new discourse. ♦
Rafael Domingo is the Spruill Family Professor of Law and Religion at Emory University and Alvaro d’Ors Professor of Law at the University of Navarra. He is the author of the book God and the Secular Legal System (Cambridge University Press, 2016).
John Witte Jr., JD (Harvard); Dr. Theol. h.c. (Heidelberg), is Robert W. Woodruff Professor of Law, McDonald Distinguished Professor of Religion, and director of the Center for the Study of Law and Religion at Emory University. A specialist in Legal History, Human Rights, Religious Freedom, Marriage and Family Law, Law and Religion, he has published 260 articles, 17 journal symposia, and 32 books.