The Rule of Law and the Place of Religion: Lessons from the Pandemic

Andrea Pin is Associate Professor of Comparative Public Law, University of Padua, and Senior Fellow at the Center for the Study of Law & Religion Emory University.

This post is part of an ongoing Conversation about Religion and the Rule of Law.

The 2020 pandemic has been a challenge for the rule of law as well as for religions. Perhaps even more importantly and sadly, it has made them clash with each other.

During the pandemic, many states have seen religion as a threat. These states have behaved accordingly, limiting or even preventing many religious practices in ways that go beyond just affecting human rights to even, some might say, overstepping the boundaries between church and state. For example, the Italian Government temporarily permitted temple visits but prohibited religious celebrations, including liturgies such as the Eucharist for Catholics. In other words, it did not simply recommend that religions respect social distancing—it told them and their believers what they could or could not do. This comes at a price—for religions and states alike.

The Rule of Law

Though many have traced the concept of the rule of law to the great philosophers of ancient Greece or to Magna Carta, an inevitable starting point for those in the endless debate on what the rule of law really means is still A.V. Dicey’s Introduction to the Study of the Law of the Constitution (1885). Dicey famously singled out three core aspects of the rule of law—first, individuals can be deprived of their freedoms and goods only for a breach of the law and after a fair trial; second, no one is above the law and everyone must be treated equally; and third, adjudication can either take place on the basis of judicial precedent (in common law systems) or legal principles (in civil law systems).

Twentieth-century developments in constitutional theory added layers of complexity to Dicey’s depiction of the rule of law. Among the most recent expositions is Tom Bingham’s short monograph The Rule of Law (2010), which stands out as a lucid, up-to-date analysis on what a human being of the early twenty-first century should expect from the rule of law. Bingham’s succinct exploration of the concept includes aspects of the rule of law that are easily taken for granted—such as that law must be easily accessible—as well as legal fields that have dramatically developed in recent decades, such as human rights in international law.

Making the Rule of Law Work: The Institutions

While the ideal of the rule of law is well and lively, perfecting the institutional components supporting the rule of law has drawn less attention. Jeremy Waldron, however, has dealt with the issue at length. His book Political Political Theory (2016) analyzes how the political institutions of the constitutional state operationalize the many values and principles we associate with the rule of law.

But are political institutions the only institutions that are capable—if not needed—to keep a legal system sound and committed to the respect of the rule of law? After all, the so-called dilemma of Böckenförde (see his volume State, Society, Liberty, Eng. ed. 1991)—according to which liberal constitutionalism is sustained by a set of values and principles that it cannot enforce without betraying itself—suggests that liberal regimes need more than mere political institutions in order to survive and flourish.

The last chapter of Nick Barber’s The Principles of Constitutionalism (2018) and Victor Muñiz-Fraticelli’s The Structure of Pluralism (2014) tell us an interesting story. Of course, they’re still speaking of how constitutions work or could do it better. But Barber’s book includes in-deep reflections on the principle of “subsidiarity”—an idea that the Catholic social thought has cherished since the Encyclical Letter Rerum Novarum (1891). In a nutshell, this powerful ideal, which slowly found its way into European constitutional law, states that when private institutions contribute to society at large by providing services such as education or healthcare, these should be favored, not replaced by the state. In more theoretical terms, the idea behind subsidiarity is that non-state institutions can be as beneficial for a polity as state institutions. Fraticelli is more skeptical about the applicability of such principle, but agrees that something powerful lies within it.

All in all, both authors seem to acknowledge the constitutional and political necessity of carving out a place for the civil society—they are aware that non-political institutions are relevant for the wellbeing of a society. By promoting the idea of subsidiarity, the Catholic Church has obviously showcased first and foremost itself as a whole and its many organizations. But you can think of many more groups—of many more religions.

The Rule of Law and Religions

Acknowledging that religions serve to support societal wellbeing does not necessarily make them political tools at the state’s disposal. While many would say that being Christian, or Muslim, or Jew, or Buddhist—or whatever comes to mind—makes them better citizens, I am convinced that most would not say that they embraced some faith in order to become good citizens. But religious groups teach their members values that they are supposed to keep and act on throughout their lives, not just within their own circles, buildings, or ceremonies. Living a good life means living well all around—it entails respecting ourselves and those around us.

It is unfortunate that the COVID-19 pandemic has to some extent pitted religious institutions against political institutions. Religious groups’ resistance to abide by prudential rules to avoid contagion seem to have embraced a narrow understanding of human flourishing. Maintaining traditional ways of conducting and attending religious services “whatever the cost” clashes with a rounder concept of basic human needs and of human life.

On the other hand, suspending religious ceremonies altogether for entire weeks or months has forced not just religions, but also citizens into a straightjacket. Yes, most religions can do a lot remotely. But for many believers of several religious groups, gathering together is an essential component of their faith. For instance, for many Christian groups, attending the consecration of the Body of Christ and taking the Communion is of paramount importance.

From the state’s point of view, given the political salience of religious associations, emptying religious temples means undercutting an important pillar for the rule of law. From a religious standpoint, ignoring the pandemic’s threat means narrowing the understanding of human wellbeing and salvation. Although, at least in the West, religion and state may have different foundations and purposes, mismanaging the pandemic—from a religious or a secular standpoint—poses severe consequences for both.