The fundamental changes that have taken place in our legal institutions during the past two generations are part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built. For over eight hundred years, from the late eleventh to the early twentieth century, law in the West was supported by, and in many respects based on, religious beliefs, both Roman Catholic and Protestant. In the twentieth century the intimate connection between the Western legal tradition and the Western religious tradition has been substantially broken.

Sixty to seventy years ago, the connection between law and religion in the West was so intimate that it was usually taken for granted. Even in the United States, where religious diversity was far greater than in most other Western countries, and where agnosticism and atheism were more tolerated, it was generally accepted that the legal system was rooted in Judaic and Christian religious and ethical beliefs. “We are a religious people,” wrote Justice William O. Douglas as recently as 1951, speaking for a majority of the United States Supreme Court, “whose institutions presuppose a Supreme Being.” Not only law and legality in general, but many specific legal standards, principles and rules were widely thought to be derived ultimately from the Bible, from the history of the church, and from what the Declaration of Independence called “the laws of Nature and Nature's God.”

We take for granted in our Western tradition a certain convergence between morals and law. Morality, in so far as it applies to our public lives, is assumed to follow legality. We believe that in normal social circumstances we can recognize the moral values of a nation in its law. We therefore reject any suggestion that there can be such things as amoral politics or unpolitical morality. We assert that the fundamental moral principle in politics ought to be the observance of our country's legal processes, since legal process ought to coincide with moral conviction. When this is not the case, we insist, when there is no assimilation into the political arena of the moral convictions behind our laws, then the laws themselves will lose respect and we shall have more Watergates and worse.

In this article I propose to look more closely at this conviction that the legal standard is the moral standard for politics and government. I make three affirmations about law as a standard for public morality: first, it is a minimum standard; second, minimum though it is, law is nonetheless a necessary standard; third, because it is both minimum and necessary, law as a standard is incomplete.

In January of 1897 Oliver Wendell Holmes, Justice of the Supreme Judicial Court of Massachusetts, invited an audience at Boston University's School of Law to reconsider the relationship between morality and the common law. Hoping to persuade his listeners that law ought to be kept quite distinct from morality, he explored several areas of the law in which the confusion of law and morality was particularly troublesome. “Nowhere is the confusion between legal and moral ideals more manifest than in the law of contract. …” According to Holmes, “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else. …” Furthermore, and as if to anticipate the objections of those who might tend to see moral obligations entailed in contracts, he added: “But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can.”

Law and religion have been dealt with by legal scholars, theologians and those working in the social sciences and humanities for years. Traditionally, studies of law and religion in the legal literature have been devoted primarily to consideration of church and state issues raised by claims based on the First Amendment to the United States Constitution. These issues find their way into the law school curriculum in courses on Constitutional law where the perspective taken is distinctly legal. In such courses the focus is on religious freedom and the proper relation of the state to organized religion as a matter of Constitutional law. These concerns have provided the major focus for studies of law and religion.

In the past ten years a new interest in the study of law and religion has emerged. Notable evidence of this is the formation and subsequent activities of the Section on Law and Religion of the Association of American Law Schools (AALS), the creation of the Council on Religion and Law, the development of a special Task Force on Ethics and Law within the Society of Christian Ethics along with an increase in scholarly writing and the creation of new journals.

In 1980, campaigns for political office from town councils to the White House were enlivened, if not always enlightened, by the vocal and sometimes strident participation of members of the clergy. The Rev. Jerry Falwell, pastor of the Thomas Road Baptist Church in Lynchburg, Virginia, emerged as a significant figure in the 1980 campaign, not only as the spokesman of the Moral Majority, but as the symbolic leader of the conservative forces dubbed by Martin E. Marty as the “Religious New Right.” Falwell took more credit than was perhaps his due for the election of Ronald Reagan. He also took credit for the defeat of several United States Senators, such as Birch Bayh, Frank Church, John Culver, and George McGovern, who seemed to Falwell unworthy of continued public service because their voting record was not sufficiently “pro-family.”

John C. Pollack, summarizing a study conducted by the Connecticut Mutual Life Insurance Company, declared that “moral issues through religion have vaulted to the forefront of political dialogue.” and he concluded, “Something unusual is happening.”

Indeed, Pollack seems right that “Something unusual is happening.” The sharpness with which moral issues have entered into political dialogue is perhaps unprecedented since the slavery issue. Not an insignificant amount of the dialogue and surely an aspect of its unusualness is the entrance of evangelicals into the political arena—a presence again that looks for precedents as far back as the anti-slavery crusades.

If Mr. Buzzard had offered his paper “The Evangelical Rediscovery of Law and Politics” as a sermon instead of a lecture, and had ended it with the traditional evangelical “altar call” which invites converts and those who want to reaffirm their faith to come forward, I would have arisen from my seat and gone halfway down the aisle. There is much in what he says which any Christian can, indeed, must affirm. The paper convinces me, or rather confirms my suspicion, that the neo-evangelical and the ecumenical believer have much in common and that they share more than both often think.

But note, I would only have gone halfway down the aisle. Ecumenical thinking would force me to pause and to invite the evangelical to enter into further discussion before full assent is given. And note also, that it is from an ecumenical perspective that I, at least, would want to join the discussion. That is, I would want to raise questions from the standpoint of the long tradition of transnational, catholic, reformed and orthodox thinking which has given rise to both Vatican II ecumenicity in Roman Catholicism and to the new conciliationism of the World Council of Churches.

The American people are relative newcomers to the question: What is the proper role of religion in the political process? For we have been wrestling with this issue for only a little over two hundred years. On the other hand, the Jewish community has had some 2500 years to balance our Jewish identity with our citizenship in the Diaspora. The insights we have gained in this process provide some understanding of the confusion which buffets America today. I wish to begin with the basic question: According to Jewish law (Halakhah), how should Jews interact with the legal and political process of a non-Jewish country?

Halakhah is the legal system of Judaism, by which the traditional Jew regulates public and private life. Since it arose in a culture which recognized no distinction between “religious” and “secular” law, it was, throughout most of Jewish history, the ultimate, binding source of order in Jewish society. The Halakhah includes rules regarding civil and criminal jurisprudence, ceremonial observances, and day-to-day activities.

May a conscientious citizen reasonably seek to have the law reflect his or her moral convictions? My answer is that there are circumstances under which such efforts are reasonable, and cannot be meaningfully challenged except by substantive moral criticism of the moral views in question. However, there are many areas of life in which a morally earnest citizen must not seek to impose his or her morality, but must, instead, respect the fact that a morally defensible legal system should leave room for wide discretion on the part of the individual exercising moral judgment.

To establish these conclusions it is necessary to clarify some aspects of the general relationship between morality and law. In particular, it is necessary to establish the primacy of the moral point of view, for the question about what is reasonable in these areas is fundamentally a moral question.