Law & Religion in a Secular Age
Rafael Domingo
The following is an excerpt from Rafael Domingo’s work titled, Law & Religion in a Secular Age. Reprinted here with permission from Catholic University of America Press (2024). Editorial Note: Page numbers in the text refer to the prior publication linked in the text.
The Spiritual Triad
In the Christian tradition, to deal with spirituality means to speak of the Holy Spirit, and to speak of love, communion, and gift. The Holy Spirit is the eternal mutual love between the Father and the Son. For this reason, although God is love and the source of all love, the Holy Spirit is especially called love in some texts of the Holy Scripture. The singularity of the Holy Spirit is precisely that of being in communion, being in unity. The Holy Spirit is an “unutterable communion of Father and Son,” says Augustine of Hippo, because it is neither of the Father alone, nor of the Son alone, but of both.
Gift is also a fundamental designation of the Holy Spirit. If the characteristic of the Son is being born (natus), the characteristic of the Holy Spirit is being given (datus). The Holy Spirit is a gift of both the Father and the Son. This being given, however, at no point suggests a relation of subordination among the divine persons but establishes one of harmony (concordia). As Augustine explains, the Holy Spirit “is given as a gift of God in such way that He himself also gives himself as being God.” The second feature of the divine gift is that it is free. The Holy Spirit is freely given, and “whoever is united to the Lord becomes one spirit with him.” Using the words of Yves Congar (88), we can say that “the Spirit is the principle of our return to God,” and spirituality the path to do it.
If the Spirit of God is love, communion, and gift, becoming spiritual for a Christian means essentiality living in love, in communion, and as a gift, or in other words, living in communion of love with God and others by considering ourselves as a gift from God to others. As a result, love of neighbor will become no longer a commandment imposed, so to speak, from without but rather a consequence deriving from spirituality that becomes active through communion, love, and gift.
Love, communion, and self-giving are also the Eucharist, as Christ’s loving presence in the community of the faithful: “the world which came forth from the hands of God the Creator,” said John Paul II, “now returns to him redeemed by Christ.” Christian revelation of the mysteries of the Trinity and the Eucharist transcends all human explanations and is not accessible to natural reason. It demands faith. However, the general idea of becoming spiritual by living in a communion of love for the divine, for humanity, and for the universe in an attitude of self-giving is not only a Christian idea but a metarational intuition that can be accepted by any spiritual individual without having to believe in the mystery of the Trinity or even the existence of God. In this sense, the rational dimension is built upon a meta- rational intuitive ground and not inversely.
Communion represents an essential element of universal spirituality because it overcomes the apparent opposition between multiplicity and unity. To be in communion is to communicate with one another and to become part of each other. In full communion, nobody is any longer alone or separate from others (69–84). Love is the transformative power that leads human beings to communion with God and others by an act of self-giving. Love of God and love of neighbor are interwoven, even inseparable, because ultimately love is divine. It comes from God, and it unites us to God and makes us one, overcoming all divisions. Because love is divine, it is free. There is no spurious individual interest behind pure love, and it cannot serve as a way of achieving other goals. The genuine act of love, which is always an act of self-giving, has to be a free act. The world of spirituality is the world of full inner freedom. Freedom is not only a political and secular idea but also, first and foremost, a spiritual reality.
The Legal Triad: Justice, Agreement, and Right
While love, communion, and gift are the pillars of spirituality, justice, agree- ment, and right are the three pillars of law. Justice is often identified with law because achieving justice is the primary goal of the law and legal systems. It is both an aspiration and an intrinsic aspect of all legal systems. As Augustine once said, a political community that is not governed according to justice would be just a bunch of thieves. To legitimize any legal system, the law must be just; it must be created and applied under justice. Traditionally understood as giving to each his or her own, the fundamental idea of justice is a matter of great disagreement. It depends on the values accepted by a political community as fundamental and on the community’s own historical experience. For this reason, as John Rawls (31) pointed out, “a well-ordered society is a society effectively regulated by a public conception of justice.” This public conception of justice is a culturally evolving phenomenon and constitutes the engine of any concrete social order.
Law in democratic societies is built up through general and particular agreements. In fact, legal systems and law consist of a multitude of contracts, pacts, treaties, transactions, protocols, compromises, deals, settlements, and many other agreements, both national and supranational. The legal system itself is a product and a development of a fundamental agreement (constitution) within the political community that establishes a system for elaborating enforceable general agreements (legislation), enforcing agreements (executive power), and resolving conflicts about those agreements (judiciary). Relevant doctrines, such as that of majority rule, social contract, or overlapping consensus, among many others, serve to integrate and consolidate political communities based on the idea of agreement. Agreements lead to social integration and coordinated action through the recognition and protection of individual and collective rights. This explains why Hans Kelsen considered the principle pacta sunt servanda (agreements must be kept) as the starting point or basic rule of international law (316).
In a context of deep disagreement, which is a proper characteristic of a pluralistic society, it is crucial that the law respect and recognize every person as such (188). The basic expression of respect for and recognition of others consists in respecting and recognizing their rights, the third element of the legal triad. Rights are individual or collective interests legally enforceable through coercive institutions (79–80). To protect rights (and public order), physical coercion becomes an intrinsic aspect of law, though absent from other dimensions of reality. By practicing their civil and political legal rights, individuals develop themselves as human persons, participating in the law-creating process, and ultimately collaborating to consolidate the political community. A legal system without rights is like an oasis without water.
Deep Connectivity between the Legal Triad and the Spiritual Triad
The essential metadimensional aspect of spirituality supports the idea that although law is indeed a matter of justice (313–18), agreement, and rights, it is also, at least aspirationally, a matter of love, communion, and self-giving. Let me explain.
In addition to justice, human beings need love. And justice is not the opposite of love. There is no real tension or conflict between true justice and true love. In fact, love presupposes justice. There is no love without justice, nor is it possible to achieve the plenitude of justice without love. “Love that perpetrates injustice is malformed love,” affirms Nicholas Wolterstorff (xvii). Law provides the necessary platform for justice to flourish, and justice provides the unique platform for love to flourish. On the other hand, love ennobles justice and strengthens legal systems. Justice is indeed “the first virtue of social institutions, as truth is of systems of thought,” but only if it is referred to as loving justice. Love will always be necessary to not reduce the human person to merely a “legal person” or even a “legal object.” “Whoever wants to eliminate love is preparing to eliminate humanity as such,” Pope Benedict XVI points out. The rule of law demands a rule of love. Any legal system that ignores love is preparing to remove the true law.
Many legal systems accept the idea of forgiveness as an expression of love that is compatible with justice. It implies renouncing the right to administer justice oneself and reestablishes the order as a whole by acquitting the offender and thereby placing him or her in a spiritually higher dimension of justice (351). In the area of private law, this is the case, for instance, of condonation or remission of debt, which implies that the creditor pardons a debt by treating the debtor as if the debt never existed.
The second elements of the triads, communion and agreement, are also related. Making an agreement always requires some degree of communion: the meeting or communion of the minds of contracting parties. People who are spiritually developed can reach an agreement more easily than nonspiritual contracting parties. There are at least two reasons for this. First, people with spiritual skills (that is, looking for a union) understand the interest of other parties more readily than nonspiritual contracting parties. Second, people with spiritual skills are more able than nonspiritual others to effortlessly renounce self-interest to protect a common interest. On the other hand, agreements reached by spiritual people are more stable and deeper than agreements reached by nonspiritual self-interest-based people. A marriage rooted in a deeply spiritual mutual union between spouses has more possibilities of durability than a marriage based on strictly selfish interests (e.g., pleasure, companionship, and entertainment).
The connection between the third elements of the triads, right and self- giving, can be explained by analogy with the relation between self-love and love for others. Self-interest and the rights of the self can conflict with the interests and rights of others. Love, however—even self-love—is never in conflict with the other’s interest and rights, because love is not conflict ve by definition. Since self-giving is an act of love, self-giving cannot conflict with self-love, self-interest, or another’s interest, personal rights, and rights. Spirituality shows that protected interest or rights should be used not only for one’s own good but also for the good of others, that is, in accordance with the common good and as an expression of solidarity.
Rights are common to all human beings, irrespective of individualistic interests. For this reason, human beings are able to understand interests as common and to practice rights in solidarity. Conflict of protected interests or rights are inevitable in any society, but they are easy to resolve when human beings live in a self-giving attitude, looking for the common good more than for the strictly individual good. Self-giving is the greatest expres- sion of spiritual love, and it involves the “surrender of one’s I” ( 96–100) without diminishing personal dignity and individual freedom. Self-giving emerges from the fact that human beings can share human nature and spirituality, enabling a human being to experience his or her life as completely united with the lives of others. When one exercises his or her rights in a self-giving attitude, rights become transformed from enforceable protected interests into “enforceable (§62) protected services (356),” and society strengthens its ties of union.
Intentions and Values: Two Channels of Interaction between Law and Spirituality
The two main bridges of practical interaction between the spiritual and the legal realms are intentions (individual or collective) and values (cultural intentions). There are other channels of interaction, such as customs, traditions, procedures, and ceremonies, but in the end, intentions and values are the most important ones.
The spiritual intention of any human action or attitude is its more profound and ultimate purpose. Spiritual intention arises from the deepest part of the human being, the heart, and it affects and embraces all dimensions. It is metarational and, therefore, not mental, although it is connected with the mind (170). Spiritual intention determines the purity or simplicity of the heart, that is, the intensity of love, the level of communion with others, and the degree of self-giving in any human action. It can be present in all human actions, not only in strictly spiritual ones, due to its metadimensional nature, and it can be shared with other secondary mental intentions, aims, purposes or interests. For example, one can be united to God while teaching, painting, cooking, or driving a school bus. Teaching, painting, cooking, and driving are not strictly spiritual actions, but the spiritual element can inspire and be present in all these activities. The more purified the spiritual intention, the more harmonically united to God, the divine, and others. Spiritual intention is a source of freedom, joy, and peace for human beings. It grants freedom to choose always in union with God, the divine, and others, and therefore to share others’ freedom, and when that happens, freedom is expanded, since it is not limited by one’s own will and circumstances. Spiritual intention also grants the joy of experiencing communion and love. Finally, it grants peace, that is, full harmony between one’s action, another’s action, and divine plans.
Human beings can do things with more than one rational intention in mind. Mary can buy a new car because she needs to travel more often or wants to lend it to her daughter occasionally. But she may also want to spend the money she deposited in a savings account of a bank involved in corruption because she no longer wants to patronize it as a customer. Usually, legal systems are interested only in some particular intentions—those that have some legal relevance in the application of norms: for example, whether Peter intentionally pulled the trigger or not; whether Albert really intended to kill Marc when he stuck his dagger in Marc’s leg; whether Anne intended (168–75) to revoke or merely to supplement her will when she ordered new instructions; and so on. However, what is critical for this argument is that the mental or rational intention recognized by law can be inspired, supported, or illuminated by the spiritual intention. For instance, the law can recognize the intention of making a gift for charity, humanitarian aid, or benefit For the law, it is important to know that the donor does not impose some contractual requirements and that the funds are awarded irrevocably in order to qualify the legal act as a private gift and not as a grant. Behind an uninterested private gift for a good cause, however, there is generosity, which is an expression of communion with others as a result of a purified spiritual intention. It is true that a private gift could be motivated as well by vanity or self-aggran- dizement, but that does not invalidate the argument: spirituality, wherever it exists, touches the law.
Values are the second channel of interaction between law and spirituality. They are cultural distillations of individual and collective intentions. The whole idea of value implies selectivity and evaluation of “intersubjective- shared preferences and goods,” if I may use Habermas’s (255) definition. Like intentions, values are teleological, and they are able to lead and illuminate the development of political communities in accordance with their destiny. Unlike norms and rules, values allow a greater or lesser intensity code. They operate gradually and not under the dynamic of dualism and binary validity. Values enable human beings to make judgments in different dimensions. Political values allow human beings to make political decisions, moral values moral decisions, and legal values legal decisions. However, political, moral, legal, and other values depend on one another and support each other coherently. This so-called unity of value is an old-established philosophical idea, a consequence of reality being one, and that all dimensions are ultimately related.
The unity of value is more strongly manifested in the holistic spiritual realm than in any holonic dimension, because communion is more profound in the spiritual metadimension than in any fragmented dimension of reality. That is why there is no conflict of values in the spiritual metadimension, as there very often is in the political and legal dimensions. Justice, love, peace, wisdom, freedom, joy, and mercy do not conflict in spirituality as, for instance, pluralism, solidarity, compassion, inclusion, diversity, trust, tolerance, responsibility, justice, freedom, equality, and participation, among other values, contrast and collide in the legal dimension.
Spirituality interacts with the law through values in two different ways: directly and indirectly. It can operate directly because spiritual values (for example, love and communion) can openly act in every dimension of reality due to the holistic character of the spiritual. It can operate indirectly by spiritualizing specific values of other dimensions. Pluralism, for instance, is not a spiritual value strictly speaking, because it demands a political community to operate. However, it can be spiritualized when love and communion illumi- nate it, and when it is used to develop unity in society and not fragmentation. Something similar occurs with other political and legal values, such as tolerance and diversity. Spiritual values (again, for instance, love and communion) are hierarchically superior to other values, not because they are “unequivocally prescribed by ecclesiastical dogmas,” to quote Max Weber, but because they provide unity to all the values by illuminating all of them in the various dimensions of reality. In this sense, unity prevails over the good and the right and acts as a link between morality and law. ♦
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).
Recommended Citation
Domingo, Rafael. “Law & Religion in a Secular Age.” Canopy Forum, June 11, 2024. https://canopyforum.org/2024/06/11/law-and-religion-in-a-secular-age/.
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