This book is a much-welcomed addition to the pioneering Cambridge series on ‘Law and Christianity’. Its distinguished author, Rafael Domingo, is a professor of law at the University of Navarra in Spain who has written more than ten books on legal history, comparative law and legal theory. In the book, Domingo seeks to contribute to the emerging international debate on religion in an era of secularisation, in which belief in God has changed from a social assumption or norm to a respected option. He addresses three large topics – God, religion and conscience – from a normative, legal perspective. The study offers a legal paradigm to reset the relationship between these transcultural aspects of human experience and the secular legal systems of democratic societies. The argument is not tied to any particular legal system of Western culture (though several legal systems are discussed) but aims to provide the best justification for principles that inform and justify secular legal systems. The core argument is that secular legal systems should treat God, religion and conscience with respect – namely, not only through positive feelings or deference towards them, but also specific actions to express that appreciation. In the case of God, respect requires recognition; in the case of religion, toleration; and in the case of conscience, accommodation.

In this grand enterprise, Domingo also evaluates critically both traditional religious and current liberal approaches to religion. For Domingo, the religious approach legalises God as the ultimate source of religion, morality and legality – without God, the secular legal system is not well founded – and nonbeliever citizens should assume this religious premise as a fact. The liberal approach focuses exclusively on morality: it sees religion as a product, even a positive one, of individual morality. For this approach the existence of God has no legal relevance – and to take God into legal account discriminates against nontheistic religions. Domingo argues that the religious approach fails because it requires God to justify the secular legal system in a globalised and plural society in which God is no longer axiomatic. And the liberal approach fails because it closes the door to Abrahamic religions, and specifically to God, by reducing God and religion to a matter of private conscience/morality. He sees the religious approach as inevitably exclusivist and the liberal approach as inevitably reductionist. To offset the imbalance, Domingo offers a third way: a theistically oriented conception of the secular legal system able to embrace nontheistic approaches. His argument is secular, but his approach religious: his theistic secular approach begins with the recognition that God, religion and morality affect legal systems in different ways and so should be treated differently by law.

Throughout, Domingo takes great care over his definitions. For example, the ‘secular’ is neither ideological nor exclusionary, neither a provocation to religion nor a means to escape from it; it is simply a realm different from the religious – that is, nonreligious. ‘Secularisation’ is the process of differentiating the secular from the religious. A ‘secular legal system’ is one not based on religion, but with a structural-substantive separation of religion from law. Its aim is to enable citizens to live together in a single framework, despite disagreeing over fundamentals; common human reason is its foundation, not religious legitimation. It includes systems of Church–State co-operation provided that they are justified by legal and not religious arguments, but they do not require strict neutrality on religious issues when this is based on respect. The book is amply footnoted, draws on various disciplines (including history, jurisprudence, political theory and comparative law) and critically assesses the work of scholars such as Ronald Dworkin, John Rawls, Jürgen Habermas, Joseph Raz and Charles Taylor. Domingo also uses material he has published over the years (including in this Journal Footnote ¹), and discusses key legislative – and, more particularly, judicial-decision – landmarks in the USA and Europe. The book consists of three chapters.

Chapter 1 deals with God as a metalegal concept. For Domingo, secular legal systems may recognise God without violating proper religious neutrality, namely through undue favouritism or prejudice against religion in general or a particular religion. Such recognition requires no act of faith in God or scientific evidence for God's existence but, rather, a cultural experience of God beyond the legal system: God should be neither taken away nor legalised; God should simply be recognised by legal systems. Therefore, a proper understanding of secularisation might keep God outside the legal system but not out of the public sphere. Banishing or being silent about God does violence to the true nature of secularity. A secular legal system is not atheistic – it is one without religion, but not without God (who is not the starting point of the system but can be a source of light for it). The degree of recognition of God suitable for any political community depends on its cultural and communitarian identity and should be subject to democratic procedures and majorities. Since there is no good reason for law not to recognise God, once God is legally distinguished from religion – so that religious freedom is not diminished – it is neither necessary nor valuable for secular legal systems to reject God.

Chapter 2 is about religion as a constitutional limit on the secular legal system. Having located God outside the system (without abandoning God altogether), Domingo focuses on religions and secular law. He sees ‘suprarationality’ – going beyond what reason alone can show – as the fundamental distinguishing feature of religion which justifies its legal protection. In turn, he calls on secular legal systems to operate more refined distinctions. Law is rational. Religion is suprarational and thus trans-legal. Morality is rational and pre-legal. Religion is not morality, and religious freedom is not moral freedom. Religion addresses transcendence and ultimate beliefs; morality is about what is good/bad and actions. But they are connected. As both are non-legal, religion and morality seem similar or even identical from a legal perspective. However, a well-founded secular legal system should recognise morality without religion and religion without morality. Suprarational morality should be treated as religion. Importantly, for Domingo, a secular legal system should protect not only ‘a right to freedom of religion’ but also ‘a right to religion’. This he develops by analogy to the right to marriage, to education or to work, but as distinct from the right to freedom of marriage, education or work. The right to religion establishes a limit on governments by protecting the religious capacity of persons. It also prevents a government from becoming a religious authority; under it, only religious organisations are suited to deal with religion.

Chapter 3 moves from religion to conscience and argues that the right to religion is not simply a consequence of respect for freedom of conscience. Placing God and suprarationality outside the legal system allows conscience to be approached by law. Freedom of conscience is a pre-condition for the protection of religious freedom. However, the traditional religious freedom paradigm fails to recognise a realm of moral conscience beyond that of religious conscience: it reduces morality entirely to religious freedom. Meanwhile, the liberal approach fails to recognise a realm of religious conscience beyond that of moral conscience: it reduces religion to morality. Conscience, therefore, is a key means to protect the moral autonomy of humans from the coercive power of the legal system. So, freedom of conscience requires a better-defined space in secular legal systems because it has been displaced by both freedom of religion and freedom of thought to such an extent that they have become interchangeable. As a result, Domingo offers a new approach to legal accommodation and explores how a secular legal system should differentiate toleration and accommodation: toleration is about rights; accommodation is beyond rights and relates to the moral dimension of the system.

The many distinctions that Domingo makes, his critiques of traditional religious approaches to religion and secular law, and the deficiencies of liberalism he identifies may doubtless be open to debate and criticism. However, his treatment of religious law deserves critical comment. Three short points may be made. First, he considers that the Roman Catholic Church has reached the highest degree of legal institutionalisation with the 1983 Code of Canon Law and the 1990 Code of Canons of the Eastern Churches, which regulate the external organisation and government of the Church and order and direct Catholics towards its mission (pp 80–81). This clearly fails to recognise how Christians across the ecclesial traditions are prolific legislators with equally high levels of legal institutionalisation.

Second, for Domingo, one of the most important suprarational acts is free obedience to suprarational law: that is, law operating in the transcendent dimension of the human person without properly being a part of the legal system, ontologically different from it, but nevertheless genuine law which seeks to achieve justice by applying a system of binding rules. He argues that suprarational law is close conceptually to ‘religious law’, but they are not synonymous: religious law refers in general to the moral or ethical code and norms of the major religious traditions (for example, halakha, sharia and canon law) but has no human rational origin or source. He rightly identifies, with examples both suprarational and human, aspects of Roman Catholic canon law, and he proposes that the concepts of divine law in Jewish law and Islamic law are expressions of suprarational law (pp 86–87). However, this does not fully take into account differences between the various traditions within Judaism and Islam, and Christian traditions beyond the Catholic Church, about the binding effect of its norms.

Third, Domingo argues that states need not formally recognise suprarational law or religious law (which are beyond the legal system) but should abstain from interfering in the faithful submitting to them. For example,

In the United Kingdom at least, this does not fully capture the civil legal evidence on other Christian churches, or Jewish and Muslim religious organisations: civil law does recognise the suprarational and classical religious laws of Jews, Christians and Muslims, and the modern regulatory instruments of their religious organisations in which these categories are deployed, as well as the right of the faithful to submit to them unless civil law legitimately provides otherwise.

All in all, this imaginative, succinct and profound book is a major contribution to scholarship and debate about fundamental questions relating to law and religion. It is indispensable reading for anyone with an interest in a range of key issues: how to scrutinise critically from a secular perspective religious and liberal legal approaches to God, religion, morality and conscience; how a theistic approach to secular legal systems demonstrates that they can be neither agnostic nor atheist; how respect for God may indeed require a state to recognise an antecedent or transcendent source of law that lies beyond the positive laws of the State; how the State should not dictate, define or favour any particular religion; and how the civil law should more fully refine its distinctions between religion and law, religion and morality, conscience and belief, secularity and secularism, the spiritual and the temporal.