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Whither Are We Bound? Church-State Separation and the Theological Roots of Law

Philip Hamburger v.James Q. Whitman

Tuesday, November 8, 2011
12:10-1:45 pm
Room 120, Yale Law School


Liberal democracies of the Western world emerged from a theological universe. The common law and the American constitution as well as European civil laws and public Institutions developed within or from deeply religious societies. Given this context, even ostensibly secular laws have often been the product of conscious and unconscious theological influences or religious institutions. American separation of church and state, and even French laicite, for example, appear to have been motivated as much by theological concerns to protect religion from the state as by secular interests to protect the state from religious influences.

In this debate, we ask: How should a pluralist society composed of the religious, the a-religious, and the anti-religious relate to legal systems whose roots can be traced in large part to theological influences? Do secular Western societies have anything to gain in exploring the theological pedigree of their present values? Why is the United States, formally one of the most secular of democracies, so deeply religious? Is the effort to separate church and state doomed as long as religion remains embedded in the legal and social world? In theoretical contexts, is the exclusion of religious views from the public sphere a complementary effort to excavate the law from its theological heritage? Is such an excavation possible?


Philip Hamburger, Maurice and Hilda Friedman Professor of Law at Columbia Law School and the author of Separation of Church and State (2002).

James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law at Yale Law School and the author of The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2007).