Dignity and Belonging
in Family, Church, and State
This essay is adapted from Prof. Rafael Domingo’s address at the ICLARS (International Consortium for Law and Religion Studies) conference in Cordoba, Spain, on Sept. 19 2022.
Joseph E. David and John Witte, Jr. have both written books that deserve particular attention because of these two scholars’ massive contribution to the field of law and religion, as well as the books’ relevance to the central theme of the conference: dignity. Witte’s volume, Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties, was published in the Law and Christianity Series at Cambridge University Press in 2019. David’s book, Kinship, Law, and Politics: An Anatomy of Belonging, was published in the Law in Context series, also at Cambridge, in 2020. The difference of a few months in their publication means that neither author mentions the other’s book in their volume.
Although very different in content and length, the two books have many similarities. Both were written by legal historians who are themselves profound legal thinkers. Both books capture, with remarkable insight, the special connection between the family, the political, and the religious orders, which together form a unity in diversity. Both books draw upon primary historical, religious, and secular sources. In both books, interdisciplinary references to philosophy, politics, theology, sociology, and psychology abound, showing a distinctly multidisciplinary approach. Both books also have a markedly interreligious approach. David favors Jewish sources in his analysis, as he knows them well, but there is no lack of significant elements of Islam and premodern secular law. Witte focuses more on Christianity, specifically the Protestant tradition in which he was educated, but he frequently refers to other churches, religions, and belief systems. Both books consider religion a basic good that illuminates the law from a higher, metalegal dimension. Both books are strongly influenced by the context in which the authors live. In Witte’s book, what happens in the United States and, by extension, in the Anglo-American world weighs heavily. In David’s book, what happens in Israel matters.
Finally, among the similarities, it is worth mentioning that both books have had a high academic impact. I refer to two book review symposiums organized and published in the Journal of Law and Religion. Participants in the symposium on Witte’s book included influential authors such as Mark Jordan, Robin Fretwell Wilson, Michael J. Broyde, and Brian Bix. Participants in the colloquium on David’s book included Ari Mermelstein, Lenn Goodman, Nina Caputo, and Paul Mendes-Flohr. The audience will understand that there is very little I can add in this short time to a review of both books in light of reviews by such experienced commentators as those just mentioned.
2. Church, State, and Family by John Witte Jr.
Following the chronological order of publication, I begin my exposition with Witte’s book. Church, State, and Family is a conclusive, final major work, the fruit of almost forty years of academic dedication to questions related to the family. In this book, Witte synthesizes his thoughts in defense of the three pillars that, according to him, should be the foundation of any well-constituted society: the family, the state, and the church. In particular, Witte focuses on the family, the most basic and the weakest of the three institutions.
Witte draws arguments from his profound knowledge of history and law in defense of the institution of the family and against those scholars who advocate for the suppression of the marriage-based family, and who would grant the sovereign state exclusive power in protecting the most vulnerable human beings. He aims to reconcile the traditional doctrine of the monogamous matrimonial family with the modern rights and freedoms of today’s liberal democratic societies, which he mostly accepts. He calls for greater openness to the more conservative classical positions and less radicalism in the more extreme liberal discourse.
Witte’s book leaves no one indifferent. The volume may please many defenders of traditional doctrines, on one hand, since it defends with solid arguments the monogamous marital family. On the other hand, defenders of sexual freedoms and reproductive rights recently recognized by many legal systems may be cheered by Witte’s applauding of many of those freedoms. But I do not rule out that Witte will also be subject to intense criticism. Some conservative readers, with good reason, will reject Witte’s approach to same-sex marriage as a social conquest and will argue that he does not sufficiently notice the strong rupture that this assimilation has meant for the history of marriage and family. On the other hand, some liberal readers will not accept Witte’s defense of traditional values or his criticism of polygamy. It is also possible that some will see in Witte’s conciliatory book a sort of academic version of the movie Mission: Impossible, in which Witte himself would play the role of Tom Cruise.
Without expressly saying so, Witte applies to family law the same paradigm that he, among others, has used on multiple occasions to explain the expansion of the right to religious freedom. As is well known, the right to religious freedom was consolidated in the heart of Protestant Christianity. Still, it soon spread to protect theistic religions and gradually nontheistic religions, and eventually to all types of beliefs, including atheism. Nowadays, the right to religious freedom even protects citizens from religion (freedom from religion). But the fact that religious freedom protects the citizen from religion does not mean that this expansion should become the ultimate reason to justify the right to religious freedom. Hence the need to continue to protect the essential core of religious freedom, which provides meaning and purpose to this right: respect and freedom for divine worship, freedom of conscience, religious equality, the separation between church and state, etc. Religion is a good in itself that requires special legal protection and concern.
Something similar happens with the protection of the family law paradigm. Witte argues that expanding the legal protection of the family to other nonmarital realities cannot lead to underestimating the advantages and potential of the traditional monogamous marital family, since it has brought and continues to bring much to humanity. Undervaluing the traditional monogamous marital family, however, would have fatal consequences for liberal societies. Therefore, it is urgent to defend it at a time when the supremacy of the state over the family is evident. Like religion, the traditional family is a good in itself that demands protection.
In my opinion, when a right is capriciously expanded, that expansion erodes the right. The correct expansion of a right under the ideals of justice happens only through a spiritualization process of society that strengthens the solidarity of the political community. Expansion then brings about social cohesion and strengthens the expanded right itself. Solidary expansions of rights through spiritualization are, among others, the abolition of the death penalty, the equalization of marital and nonmarital children, and, in general, everything that is done to protect, help, and support the most vulnerable: children, the unborn, pregnant women, the elderly, the sick, immigrants, and all who suffer discrimination for reasons of race, religion, sex, or sexual orientation.
Distinct from these solidary expansions of rights are others, which I will call individualistic expansions. These expansions only seek to exalt the individual power of choice in foundational matters such as life (for example, abortion and euthanasia), marriage, and sex, without considering other ethical reasons based on the common good, the natural moral law, or any source of religious law. This type of individualistic expansion of rights, based on what Ronald Dworkin called ethical independence, is usually accompanied by manipulated narratives and bitter partisan ideological struggles, which generate a robust social fracture and end up imposing oppressive and coercive political correctness.
The absolutization of the individual power of choice and individualistic rights expansions are opposed to healthy family development. These expansions destroy the family institution because family, by definition, limits the possibilities of choice: one does not choose a father, mother, children, or siblings. The family is not only a matter of choice. The family also demands the free acceptance of belonging.
3. Joseph David’s Kinship, Law, and Politics: An Anatomy of Belonging
In this regard, Joseph David’s book, Kinship, Law, and Politics: An Anatomy of Belonging, is very inspiring. David analyzes the idea of belonging as a concept that touches the most intimate part of human life. And he does so in premodern and non-Western contexts. David focuses on three spheres of belonging derived from kinship — law in its broadest sense, then religious law more particularly, and the political community. The triad proposed by David is perfectly assimilable to Witte’s: one belongs — that is, one shares identity — by being part of the same family, living under the guidance and protection of the same (religious) law, and serving as a citizen of the same political community. This shared identity, even if it is not chosen but only freely accepted as belonging, demands the protection of the law.
The study of why Karaite law rejected the so-called catenary doctrine was the ultimate reason that led David to write this great little book. The Jewish catenary doctrine significantly expanded the restrictions on incest by considering the husband-and-wife relation as a kind of kinship and by equating affinity and consanguinity, something Roman law, for example, never did. So, if Benjamin is married to Hanna, the siblings of Benjamin are not allowed to marry the siblings of Hanna. This catenary doctrine was based on the idea that if spouses formed one flesh, both shared full joint selfhood and kinship. The doctrine was refuted and rejected by some eleventh-century Jewish scholars, especially Jeshua ben Judah, who theorized about kinship using the botanical image of a growing tree. These scholars argued that marriages between close relatives destroy the cohesion and structure of the family, much as a tree that produces no branches or in which all the branches are tangled fails in its natural development.
David has seen in this legal change of interpretation on the limitations of incest a change as deep as silent, which was possible thanks to a revision of the idea of belonging. In fact, the reinterpretation of belonging always causes important changes in the law. As a Roman law scholar, I can say that a reconceptualization of the idea of belonging led to defining, among other things, the concepts of the majesty of Roman people (maiestas Populi Romani), dignity, aristocracy, the law of nations (ius gentium), and natural law. It also led to differentiating property (dominium) from possession (possessio), the limitation of the so-called right to abuse (ius abutendi), and so many other concepts. Moreover, the term family, in the most ancient Roman law, was not only a group of persons but the set of permanent belongings of the pater familias, including slaves. Since the law is essentially relational, like the person and the political community, law is basically a matter of protecting belongings, interpreting belongings, and resolving conflicts over belongings. The classical idea of justice as giving to each his or her own demands a prior belonging (“his or her own,” ius suum). In this sense, we can affirm that belonging precedes the very idea of justice, and we can consider rights to be belongings recognized by the law.
The meticulous study of the idea of belonging leads David to glimpse at the intrinsic relationship between law and religion, as well as between theology and jurisprudence. But above all, Joseph David succeeds in his analysis of the person-territory contrast — that is, the difference between territorial jurisdiction and personal jurisdiction — reaching conclusions that are certainly illuminating for both religious and secular law. The absolutization of territoriality, especially from Jean Bodin’s modern idea of sovereignty and its subsequent absolutization by the modern state, has detracted from the idea of belonging to a family group.
In contrast to Witte’s more conciliatory attitude, David presents a theory of family and religious and political belonging as an alternative to what he calls “iconoclastic liberalism,” because liberalism destroys the sources of authority and stability of preliberal institutions, including the family. David considers traditional principles, values, and institutions irreconcilable with today’s widely recognized liberal values (such as impartiality, universalism, and duty). According to David, the principle of state neutrality closes the doors to the idea of belonging, creating artificial walls contrary to any idea of inclusion and cohesion. The principle of strict separation of church and state, on the other hand, also hinders the idea of belonging to any law-based religion, such as Judaism. Rather than generating harmony, this strict separation creates a kind of schizophrenia resulting in the social fracture between what belongs to the state sphere and what belongs to the religious sphere. Instead, religious law should illuminate everything, including political reality.
Many readers of David’s book will applaud his courage and powerful analytical reasoning. Others will consider this volume an iconoclast’s reflection on iconoclastic liberalism. Still others will think that, like Witte, David also stars in a Tom Cruise-like academic Mission: Impossible. Whatever their perspective, probably all serious readers will find in this volume an outstanding contribution to legal thought and a deep critique of modern liberalism.
It is time to end this first intervention. We find ourselves before two brilliant and profound books, full of suggestions and fresh arguments, with which one may or may not agree (I do not agree with many aspects of both books). Both authors argue for the relevance of the family, the religious community, and the political community as a necessary tripod for personal development in society and for social growth. Without protecting these three spheres of belonging, society itself breaks down, and the human being becomes dehumanized.
Modernity has emphasized the idea of political community and has ultimately granted the nation-state a social monopoly through secularizing political life and the privatization of the family. Modernity has developed an individualistic view of rights based on a false ideal of ethical independence and individual choice as the best expression of dignity.
Witte offers solid arguments drawn from the Christian and secular tradition of the West to protect and restore traditional family values. The tone of his discourse is conciliatory and moderate. David offers a historical-legal argument based on Jewish sources that strengthen and prioritize family. Although moderate in form, David’s analytical discourse clearly shows the differences between what he calls iconoclastic liberalism and a tradition protective of belonging. David does not bet on the reconciliation to which Witte points but puts his money on the overcoming of individualistic liberalism.
Human beings’ identities are constitutively relational; a shared belonging. Belonging is a value but above all a fact. Without belonging, there is no identity, no family, no political community, and no religious community; without belonging, there is no justice and no dignity. The noblest human realities, such as family, religion, and political community, can be explained only by the idea of belonging. Human existence is a belonging existence. All humans share the same and unique imago Dei. This divine image is the human being’s eternal belonging par excellence and, therefore, the deepest fundament of human dignity.♦
Rafael Domingo is Spruill family Professor of Law and religion at Emory University and Alvaro d’Ors Professor of Law at the University of Navarra.
Domingo, Rafael. “Dignity and Belonging in Family, Church, and State.” Canopy Forum, October 24, 2022. https://canopyforum.org/2022/10/19/dignity-and-belonging-in-family-church-and-state/