Ever since the Enlightenment, scholars in a variety of disciplines have depicted the Western world as growing inexorably more secular. Modern, secular, and scientific modes of thought, they insist, have steadily driven religion out of the public square. Many have portrayed the secularization of the public sphere as not only inevitable but desirable—a Good Thing. In this article, a case study of the New Zealand wars of the 1860s, I question these assumptions. In Victorian New Zealand during this period, settlers and politicians ejected Christianity from the public square for dark and murky reasons. The Enlightenment grand narrative of secular light banishing religious darkness must be seen for what it is: a powerful modern myth whose historical inadequacies ought carefully to be exposed.

Some context for this case study is essential. Up until the 1860s race relations in New Zealand, Britain's southernmost colony, had been mostly peaceful. The indigenous Maori people had generally welcomed Westerners—explorers, whalers, traders, missionaries, and settlers—into New Zealand. These incoming Pakeha (that is, whites in Maori) lived in a Maori world largely on Maori terms. The Treaty of Waitangi, signed in 1840 between many Maori chiefs and the British Crown, guaranteed the tribes full, exclusive, and undisturbed possession of their lands, forests, and fisheries, and all the rights and priveleges of British subjects. In return Maori ceded sovereignty of New Zealand to the Crown. The Treaty required Maori to sell land to the Crown, not private parties.

This article explores the unity of law and theology in the 1983 Code of Canon Law [hereinafter CIC-1983]. The unity has remained critical since canon law emerged in the ancient Church. From the origins of the primitive Christian communities through the patristic era, the Church manifested a tension between charism and office, spirit and law. The medieval canonists achieved a great synthesis of the reason of law and faith of theology. The unified theory helped to form the basis of the Western legal tradition. The Reformation focus on sola fide (faith alone) tended to sever the unity. With the Enlightenment, reason was declared independent from the unproven dogma of faith. Modern Western legal theory developed in accord with Enlightenment thought. As a result of canon law's function in the life of the Church, the continuing issue of the unity has produced two interrelated principles. Theology without law leaves the ecclesiastical community bereft of an ordered life. Law without theological meaning surrenders its moral persuasiveness and deteriorates into rigid legalism.

Vatican II required a new universal law for the Church that avoided the pitfalls of both antinomianism and legalism. The Preparatory Commission for the CIC-1983 described canon law as a “sacred symbol.” When he promulgated the new Code, His Holiness John Paul II termed the legislation “the final document of Vatican II.” Affirming the unity of law and theology, the Supreme Legislator has drawn attention to the concept of “theological anthropology.” The phrase signifies the endeavor to uncover the fundamental elements of what it means to be human. In exploring the unity of law and theology, this article focuses on the relationship between canon law and theological anthropology. While obviously not intended as a repudiation of mainstream legal theory, the article also suggests that the unity may offer comparative insight to the secularity of the modern project.

“In … recent times, … constitutional jurisprudence has tended, in the view of many, to move toward the de facto semi-establishment of a wholly secular understanding of the origin, nature and destiny of humankind and of the American nation. During this period, the exclusion of teaching about the role of religion in society, based partly upon a misunderstanding of First Amendment decisions, has ironically resulted in giving a dominant status to such wholly secular understandings in many national institutions.”

— The Williamsburg Charter

The Williamsburg Charter rightly focuses attention on the American contribution to religious liberty, which is a part of our Constitutional heritage. It has the virtue of trying to achieve consensus around issues of deep disagreement in various religious, education and political communities. For this reason, it makes a significant beginning in our thinking about religious pluralism.

It is not, of course, a perfect document and therefore needs critical evaluation. The original Constitution itself, although hailed in the opening paragraphs of the Charter as “the most wonderful work,” is not without its flaws. For example, the original Constitution tolerated human slavery and indentured service, and it limited the franchise to white, property-owning males.

Editor's Note: On September 19, 1998 Professor Emeritus at Hebrew University, Ze'ev Falk died during the preparation of this manuscript. His place as a major contemporary scholar in the field of law and religion led the editors to publish here that portion of the manuscript Professor Falk had completed, plus references he intended to explore in later sections of the manuscript.

At present, the question arises, with respect to terminal patients, whether certain life can be considered worthwhile and reconcilable with human dignity. As a result of Kantian philosophy, modern people tend to assume that human beings are able, and should aspire, to make judgments regarding their life and bodies as well as their souls. In this view, a patient should be given full information about his or her situation and about the alternatives. Using this information, he or she should have the capacity to decide by him/herself what course of action is to be taken. In the modern view, even a patient in a coma should be treated according to the expression of his or her will, for example as formulated in a “Living Will.”

Biblical and rabbinical thought seem to have reflected an understanding for suicide. However, suicide belies a key issue unique to Judaism: why, in the course of Jewish suffering and Judaism's struggle to survive, suicide became unacceptable.

My assignment is to respond, from the perspective of the discipline of Christian ethics, to my broad and vague picture of the oeuvre of my old friend and cross-campus colleague Tom Shaffer. It is not easy to focus a pointed critique within a larger context of considerable agreement.

My assignment calls for me to pass by other important dimensions of Tom's work. I begin with a quite representative characterization, which happens to be in the words of Robert Coles.

There are two very different sets of questions that thoughtful intellectuals ask. On the one hand, we ask those questions like whether there is a God, how many gods there are, who or what God is, and where God exists. On the other hand, we ask those questions like whether women are essentially subordinate to men, whether blacks are by nature inferior to whites, and whether the poor are necessarily secondary to the rich. Despite some strong protests from religious fundamentalists, slowly but constantly, as a society, we are becoming more and more used to thinking that universally agreed answers to the first set of questions are unlikely, unnecessary, and perhaps undesirable. For different people may, and indeed should be allowed and even encouraged to, have their own opinions about, and ways of living with their understanding of God. By contrast, despite some persistent dissents by cultural and moral relativists, gradually but steadily, we are becoming more and more convinced that consensus must be sought on the second set of questions. For we cannot imagine a well ordered society that allows people who have conflicting political convictions (those who believe in human equality and those who don't, for example) to freely exercise their respective ideals. In short, despite some resistance that cannot be ignored, with difficulty, we are eventually coming to realize that religious plurality and political solidarity must co-exist. The question is how.

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports … let it simply be asked where is the security for prosperity, for reputation, for life— if the sense of religious obligation desert … and let us with caution indulge the proposition that morality can be maintained without religion. George Washington—Farewell Address

There is often a message in a title. The title chosen for the Symposium, “The Religious Foundations of Civil Rights Law,” is no exception. Though the initial impression of its meaning will vary in accordance with the interests of the individual reader, the basic message of the Symposium is a simple one: law and religion are fundamentally related.

In his dramatic, if not mystical, account of the birth, growth, senescence, and death of American contract law, and of its ultimate dissolution into the law of tort, Grant Gilmore certainly did not intend to join forces with those who would later seize on his story as evidence that both contract and tort, and, indeed, law all together, are merely artificial devices to support a hierarchical and hegemonic political structure and to facilitate economic exploitation of the weak by the strong. Yet Gilmore's exposé of the logical circularities and fallacies of contract doctrine (especially as it is taught in first-year courses in American law schools) does add fuel to the already raging fires of skepticism—skepticism not only about the coherence of individual branches of the legal tree (contracts, torts, property, etc.) but also about the validity of doctrinal legal analysis and ultimately of law itself.

Arthur Corbin—Gilmore's mentor and the hero of his book—did not share that skepticism, although he strongly opposed the rigidities of the then prevailing contract doctrine, especially as represented in the teachings of his friend and rival, Samuel Williston. Unlike Williston, Corbin was prepared to give a contractual remedy for losses caused by reliance on a promise, and thus to bring contract and tort into a common focus. He was also more willing than Williston to expand concepts of fairness at the expense of strict liability for breach. Nevertheless, Corbin did not doubt, and surely did not seek to undermine, the coherence of contract law.

The perspectives of Jewish law and Anglo-American law are compared with regard to good Samaritan responses to difficulty in three areas: a) return of lost property, b) rendering aid, and c) coming to the rescue of someone in danger. With regard to good Samaritan expectations for return of lost property, the two systems seem similar. However, a comparison of Jewish and American law with respect to rendering aid and coming to the rescue of someone in danger demonstrates that Jewish law encourages a duty to help in a manner unusual under Anglo-American common law. Exceptions in case law and statutory developments are discussed.

In law, as elsewhere, the role of symbolism is of more than symbolic importance. Religious symbols of women help to reinforce prevailing gender ideologies about the proper place of men and women and women's appropriate roles and status in society. In American society, religious symbols of women and the feminine have functioned to shape legal views of women. These views essentialize women's role and status to that of reproductive vessels, or what I will here refer to as “fetal containers.” This view of women as fetal containers has hindered the ability of women to secure either equal rights or equitable treatment under law.

Despite the general secularization of the law over the last century, the religiously-grounded image of woman as fetal container has persisted in legal doctrine, especially in laws concerning employment discrimination, abortion, and, most recently, fetal protection policies and surrogate motherhood contracts. Because such imagery of women has become a “naturalized” part of our secular cultural symbolism, its religious derivations are not always evident. Yet, law reform efforts need to address not only the more obvious forms of sex and gender discrimination, but also the pervasive influence of such religious symbols and their influence on the status of women.