The Theos think-tank have posted an article “Is Secular Law possible?” that follows hard on the heels of the Chief Rabbi’s denunciation of Europe’s progress towards secularism (see replies by Jerry Coyne, the Heresy Corner and myself). At root the Theos article is making the same claim, that Judeo-Christianity is needed for the health of society.
In discussing whether secular law is desirable, the writer — lawyer, university lecturer and Christian David McIlroy — produces three definitions of secular law.
The first he calls “secularist” law and says it means law that is “free from any religious influence whatsoever”, law that is indeed opposed to religion and seeks to root it out, in which “religious voices are silenced and anti-religious views are imposed”. Clearly that is a strawman, and not something that any secularists actually advocate (past communists may have liked totalitarianism, Western secular atheists don’t).
McIlroy’s second attempt is even more bizarre, he suggests that the “dominant interpretation” of secular law is law that “seeks to take no moral stances whatsoever, to rely on no contentious claims about the nature of human beings, about morality, or about values”.
Sigh. How does one respond to this? It is of course another strawman, and, worse, it’s the standard religious claim that doing without religion equates to doing without morality. McIlroy spends a lot of time arguing that a society and a law without morals and having no values is unworkable. Really? Who’d’a’ thunk it? I never would have guessed!
McIlroy is fully explicit: “Those moral values come from somewhere”, he says, and according to McIlroy they come from God. Indeed McIlroy tries to claim Christianity as the source of all sweetness and light.
It is almost impossible for us to think ourselves outside of the Judeo-Christian understandings of who human beings are and how they should relate to one another that we have inherited. We react with shock when we discover that Aristotle, the Philosopher, believed that slavery was natural, that some people were fit to be no more than living tools for others.
But, Mr McIlroy, most Christians over most of Christendom would have agreed with Aristotle! Remind me, how long after Christianity became the dominant religion in Europe was it before slavery was finally abolished? The first date is around 330 CE. The second is over 1500 years later (Portugal abolished slavery in all Portuguese territories in 1869). And what religion were the Europeans who, for 300 years, operated the transatlantic slave trade, perhaps the most brutal and uncompromising form of slavery in history? Nearly all of them were God-fearing, Church-attending Christians who for moral guidance looked to the Bible (a work that nowhere condemns slavery).
No, Mr McIlroy, these values you call “Judeo-Christian” do not come from religion, they come from people, people who, after thought and reflection, and through human qualities such as empathy, now know better than people did in the Christian-dominated era.
McIlroy’s third definition of “secular law” is just as self-serving and just as weird. He argues that “secular” law is law steeped in Christian values, it is:
Law which is influenced by Christianity’s teachings, its teachings about the dignity of human beings, the inevitability of the Last Judgment, and the limited nature of government”.
He argues that the idea of limited government derives from the Christian notion that we are ultimately accountable to God, not to the state, and insists that “secular law” must be law in which our rulers regard themselves as accountable to God. From there — he claims — arise the concepts of individual conscience, individual rights, and the idea of equality among all human beings.
This seems to me not only a complete non sequitur but a re-writing of history, given that for most of Christendom many Church-dominated nations were close to totalitarian, allowing little religious freedom, and regularly featured Catholics killing Protestants for not agreeing with Catholicism or Protestants killing Catholics for not agreeing with Protestantism.
The ideas of limited government and freedom of the individual conscience arose mostly as reactions to manifestations of Christian religion, and it is pure special pleading to claim them as deriving from Christianity.
So, enough of David McIlroy’s apologetics, what does “secular law” actually mean? Of course it involve morals and values! And of course in a secular society the religious count equally, and their voices and opinions matter in the democratic process. But in secular law the statement: “In my opinion this is moral for the following religious reasons” carries no more weight than the statement “In my opinion this is moral”. That is secular law in a nutshell.
The religious may, if they wish, appeal to theological claims in an attempt to persuade, but this should carry no privilege above other attempts to persuade, and certainly no privilege over other conceptions of morality. I’m amazed that David McIlroy should write 5000 words on “secular law” without even mentioning, let alone discussing, interpretations along these lines! The American concept of church–state separation, in which the state should neither prefer and advance religion nor disfavour and hinder religion, is a clear example.
In a secular society all would be equal. You wouldn’t get exemptions from laws (e.g. on how to treat animals) just because you are religious, and you wouldn’t have greater freedom to wear a crucifix than, say, a Manchester United badge, and nor would you get the right to impose your particular prayers on state business. We are still far from a fully equal society, but yes, Theos, secular law is possible, and easy, and just, and desirable.