Christianity and Global Law (Law and Religion) [1 ed.] 9780367858162, 9781003015208, 0367858169

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Christianity and Global Law

This book explores both historical and contemporary Christian sources and dimensions of global law and includes critical perspectives from various religious and philosophical traditions. Two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historicalbiographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges. The volume will be an essential resource for academics and researchers working in the areas of law and religion, transnational law, legal philosophy, and legal history. Rafael Domingo is the Spruill Family Professor of Law and Religion at Emory University, USA, and Alvaro d’Ors Professor of Law at the University of Navarra, Spain. John Witte, Jr. is Robert W. Woodruff University Professor, McDonald Distinguished Professor of Religion, and Director of the Center for the Study of Law and Religion at Emory University, USA.

Law and Religion Series Editor: Professor Norman Doe

Director of the Centre for Law and Religion, Cardiff University, UK

Series Board: Carmen Asiaín

Professor, University of Montevideo

Paul Babie

Professor and Associate Dean (International), Adelaide Law School

Pieter Coertzen

Chairperson, Unit for the Study of Law and Religion, University of Stellenbosch

Alison Mawhinney

Reader, Bangor University

Michael John Perry

Senior Fellow, Center for the Study of Law and Religion, Emory University The practice of religion by individuals and groups, the rise of religious diversity, and the fear of religious extremism, raise profound questions for the interaction between law and religion in society. The regulatory systems involved, the religion laws of secular government (national and international) and the religious laws of faith communities, are valuable tools for our understanding of the dynamics of mutual accommodation and the analysis and resolution of issues in such areas as: religious freedom; discrimination; the autonomy of religious organisations; doctrine, worship and religious symbols; the property and finances of religion; religion, education and public institutions; and religion, marriage and children. In this series, scholars at the forefront of law and religion contribute to the debates in this area. The books in the series are analytical with a key target audience of scholars and practitioners, including lawyers, religious leaders, and others with an interest in this rapidly developing discipline. Titles in this series include: State and Religion The Australian Story Renae Barker Ecclesiastical Law, Clergy and Laity A History of Legal Discipline and the Anglican Church Revd Neil Patterson Christianity and Global Law Edited by Rafael Domingo and John Witte, Jr. For more information about this series, please visit: www.routledge.com/Lawand-Religion/book-series/LAWRELIG

Christianity and Global Law Edited by Rafael Domingo and John Witte, Jr.

Produced by the Center for the Study of Law and Religion, Emory University

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 The Center for the Study of Law and Religion at Emory University The right of Rafael Domingo and John Witte, Jr. to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Domingo, Rafael, 1963– editor. | Witte, John, Jr., 1959– editor. | Emory University. Center for the Study of Law and Religion, sponsoring body Title: Christianity and global law / edited by Rafael Domingo and John Witte, Jr. Description: Abingdon, Oxon ; New York : Routledge, 2020. | Series: Law and religion | “Produced by the Center for the Study of Law and Religion, Emory University” | Includes bibliographical references and index. Identifiers: LCCN 2019050513 (print) | LCCN 2019050514 (ebook) | ISBN 9780367858162 (hardback) | ISBN 9781003015208 (ebook) Subjects: LCSH: Law—Christian influences. | Christianity and law. Classification: LCC KB300 .C47 2020 (print) | LCC KB300 (ebook) | DDC 341—dc23 LC record available at https://lccn.loc.gov/2019050513 LC ebook record available at https://lccn.loc.gov/2019050514 ISBN: 978-0-367-85816-2 (hbk) ISBN: 978-1-003-01520-8 (ebk) Typeset in Galliard by Apex CoVantage, LLC

To the Memory of Alonzo L. McDonald (1928–2019) Global Leader of Church, State, Society, and Economics

Contents

List of contributorsx Preface and acknowledgmentsxii Introduction

1

RAFAEL DOMINGO AND JOHN WITTE, JR.

PART I

Historical-biographical approach15   1 St. Paul and the moral law

17

C. KAVIN ROWE

  2 Augustine and the common good

31

JOSEF LÖSSL

  3 Thomas Aquinas: definitions and vocabulary in his Treatise on Law

51

CHARLES J. REID, JR.

  4 Francisco de Vitoria and the global commonwealth

72

ANDREAS WAGNER

  5 Francisco Suárez on the law of nations and just war

84

HENRIK LAGERLUND

  6 Alberico Gentili and the secularization of the law of nations

98

RAFAEL DOMINGO AND GIOVANNI MINNUCCI

  7 Johannes Althusius and the universal rule of natural laws and rights JOHN WITTE, JR.

112

viii  Contents   8 Hugo Grotius and the makings of modern natural law

127

JON MILLER

 9 Kant’s Religion and Perpetual Peace

143

LAWRENCE PASTERNACK

10 Jacques Maritain and the Universal Declaration of Human Rights

158

WILLIAM SWEET

11 Robert Schuman and the process of European integration

178

RAFAEL DOMINGO

PART II

Structural principles of global governance195 12 Christianity and the global rule of law

197

NEIL WALKER

13 Christianity and the principle of dignity

214

MARTIN SCHLAG

14 Christianity and the principle of equality in global law

231

JULIAN RIVERS

15 The principle of the common good

251

GEORGE DUKE

16 Christianity, sovereignty, and global law

267

NICHOLAS ARONEY

17 Christianity and the principle of solidarity

287

ANA MARTA GONZÁLEZ

18 Christianity and the principle of subsidiarity

303

THOMAS C. KOHLER

PART III

Global issues and global public goods321 19 Christianity and human rights SAMUEL MOYN

323

Contents ix 20 Christianity and the international economic order

337

DANIEL A. CRANE

21 Christianity and a global law for migration

351

SILAS W. ALLARD

22 Christianity, global environmental protection, and animal law

365

MARK SOMOS AND ANNE PETERS

23 Christianity and the use of force: Lex and Pax Christi

384

MARY ELLEN O’CONNELL

24 Christianity and international criminal law

402

JOHAN D. VAN DER VYVER

Index416

Contributors

Silas W. Allard, Harold J. Berman Senior Fellow in Law and Religion, Center for the Study of Law and Religion, Emory University, Atlanta, Georgia, USA. Nicholas Aroney, Professor of Constitutional Law, University of Queensland, Brisbane, Queensland, Australia. Daniel A. Crane, Frederick Paul Furth Sr. Professor of Law, University of Michigan, Ann Arbor, Michigan, USA. Rafael Domingo, Spruill Family Professor of Law and Religion, Emory University, Atlanta, Georgia, USA; Alvaro d’Ors Professor of Law, University of Navarra, Pamplona, Spain. George Duke, Associate Professor of Philosophy, Deakin University, Melbourne, Australia. Ana Marta González, Professor of Moral Philosophy, University of Navarra, Pamplona, Spain. Thomas C. Kohler, Concurrent Professor of Law and Philosophy, Boston College, Chestnut Hill, Massachusetts, USA. Henrik Lagerlund, Professor of Philosophy, University of Stockholm, Sweden. Josef Lössl, Professor of Historical Theology and Intellectual History, Cardiff University, Wales, UK. Jon Miller, Professor of Philosophy, Queen’s University, Kingston, Ontario, Canada. Giovanni Minnucci, Professor of Legal History, University of Siena, Italy. Samuel Moyn, Henry R. Luce Professor of Jurisprudence and Professor of History, Yale University, New Haven, Connecticut, USA. Mary Ellen O’Connell, Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution, University of Notre Dame, Notre Dame, Indiana, USA.

Contributors xi Lawrence Pasternack, Professor of Philosophy and Director of Religious Studies, Oklahoma State University, Stillwater, Oklahoma, USA. Anne Peters, Director at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany; Professor of Law, University of Heidelberg, Free University of Berlin, and University of Basel; William W. Cook Global Law Professor, University of Michigan, Ann Arbor, USA. Charles J. Reid, Jr., Professor of Law, University of Saint Thomas, St. Paul, Minnesota, USA. Julian Rivers, Professor of Jurisprudence, University of Bristol, UK. C. Kavin Rowe, Professor of New Testament, Duke University, Durham, North Carolina, USA. Martin Schlag, Professor of Catholic Studies and Ethics and Business Law, and Director of the John A. Ryan Institute, University of Saint Thomas, St. Paul, Minnesota, USA; Professor of Moral Theology, Pontifical University of the Holy Cross, Rome, Italy. Mark Somos, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany. William Sweet, Professor of Philosophy and Director of the Centre for Philosophy, Theology, and Cultural Traditions, St. Francis Xavier University, Nova Scotia, Canada. Johan D. van der Vyver, I.T. Cohen Professor of International Law and Human Rights, Senior Fellow, Center for the Study of Law and Religion, Emory University, Atlanta, Georgia, USA. Andreas Wagner, Research Fellow, Goethe University, Frankfurt am Main; Associate Researcher, Max Planck Institute for European Legal History, Frankfurt am Main, Germany. Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations, University of Edinburgh, Scotland, UK. John Witte, Jr., Robert W. Woodruff University Professor, McDonald Distinguished Professor of Religion, and Director of the Center for the Study of Law and Religion, Emory University, Atlanta, Georgia, USA.

Preface and acknowledgments

This volume on Christianity and Global Law is one of several new introductions to Christianity and law commissioned by the Center for the Study of Law and Religion at Emory University. Each volume is an anthology of some two dozen chapters written by leading scholars. Each volume has historical, doctrinal, and comparative materials designed to uncover Christian sources and dimensions of familiar legal topics. Each volume is authoritative but accessible, calibrated to reach students, scholars, and instructors in law, divinity, graduate, and advanced college courses as well as educated readers from various fields interested in what Christianity has, can, and perhaps should offer to the world of law. Earlier titles in this series include Christianity and Law (2008); Christianity and Human Rights (2010); Christianity and Family Law (2017); and Christianity and Natural Law (2017). Other titles are forthcoming on Christianity and church law, conscience, constitutionalism, criminal law, economic law, international law, migration law, and private law. We aim to commission similar volumes on Christianity and bankruptcy law, education law, elder law, environmental law, health law, labor law, procedural law, remedies, and other familiar legal topics. This volume on Christianity and Global Law—together with the parallel volumes in press on criminal law and private law—was made possible by a generous grant from Fieldstead and Company, a private California foundation. We give thanks to the Fieldstead board and directors for their generous support and to the program officers, Dr. Stephen Erikson and Dr. Joe Gorra, for their wise counsel as we planned these volumes. We are deeply grateful to Dr. Gary S. Hauk, Emory University historian and senior editor in the Center for the Study of Law and Religion, for sharing his superb editorial talents so generously in copyediting this manuscript. We also express our warm thanks to our Center colleagues, Ms. Anita Mann and Ms. Amy Wheeler, for their skillful administration of this and other scholarly projects. Both of us are privileged to have the generous support of Emory University as well as of individual benefactors. We are most grateful for the perennial support, counsel, and encouragement of Gonzalo Rodríguez-Fraile for Rafael Domingo’s work on fundamental questions of law and spirituality viewed in rich interdisciplinary legal perspective. We are equally grateful for our friends at the McDonald Agape Foundation, notably Ambassador Alonzo McDonald, Ms.

Preface and acknowledgments xiii Suzie McDonald, and Mr. Peter McDonald, for their decades-long support of John Witte’s ongoing work in law and Christianity and their collaboration on several earlier projects and volumes, including other titles in this series. Ambassador Alonzo McDonald passed away on November 21, 2019, just as this volume was going to press. Al was very much a global leader of church, state, society, and economy. He was a Marine Corps veteran, a distinguished businessman, and a generous philanthropist. His career included service as CEO of McKinsey & Company; president and vice-chairman of the Bendix Corporation; White House Staff Director under President Jimmy Carter; and U.S. ambassador for trade who led the world in negotiating the General Agreement on Tariffs and Trade (GATT), a fundamental early expression of global law. He was a leading member of the Council on Foreign Relations, the International Chamber of Commerce, the Center for Inter-American Relations, and the French-American Foundation. He was also co-founder of the Trinity Forum and trustee of Emory University. With gratitude for his remarkable life of faith and work, we dedicate this book to the memory of Alonzo McDonald. It was a joy for us to work with such a range of leading scholars from North America, Europe, Australia, and South Africa who contributed fresh chapters to this volume. We are delighted to publish this volume and several others in the distinguished Law and Religion series edited by one of the world’s preeminent scholars of law and religion, Professor Norman Doe. Professor Doe and his many colleagues in the Cardiff Centre for Law and Religion have been vital transAtlantic allies with our Emory Center for the Study of Law and Religion. We give thanks for their leadership in this expanding global field of interdisciplinary legal study, and for their partnership with us in publishing this and parallel volumes on law and Christianity. Finally, we express our warm thanks to Alison Kirk and her colleagues at Routledge in taking on these volumes and applying their usual standards of excellence in their editing, production, and marketing of this volume. Rafael Domingo and John Witte, Jr. Center for the Study of Law and Religion Emory University

Introduction Rafael Domingo and John Witte, Jr.

This volume explores the interaction between Christianity and the challenges and principles of global law. By “global law,” we mean the emerging common law of humanity that transcends both the law of individual states and the international law between and among nations and regions. The challenges pressing for global law solutions today include massive human rights violations, international terrorism, genocide, war, arms trafficking, refugees and migrants, sex trafficking, global disease, hunger, famine, poverty, global political and economic corruption, global climate and environmental challenges, and major (bio)technological issues—all of which are beyond the capacity or power of any nation or even of international law to address fully. Discussions of global law today build on ancient and foundational principles such as dignity, equality, solidarity, sovereignty, subsidiarity, pluralism, the common good, and the rule of law. They also build on the efforts of earlier great legal minds from classical times until today who have sought to translate these legal principles into effective and enduring precepts and practices to address the major challenges of their day, sometimes using such sweeping concepts as ius naturale, ius gentium, ius commune, and comparable appeals to “universals.” The new field of global law study remains a work in progress, and it will require some time and experimentation before it is settled—particularly given the recent resurgence of nationalism and balkanization along religious, ethnic, linguistic, and racial lines. What Goethe said about the development of science also applies to the evolution of law: “With the expansion of knowledge, from time to time a rearrangement becomes necessary; it usually happens according to newer maxims, but always remains provisional.”1 The growing interdependence of the world’s economies, cultures, and populations, and the rapid emergence of massive new global challenges to human civilization, now calls for this radical “rearrangement” of law and the creation of new legal “maxims,” however “provisional,” to guide the development of law in subsequent generations. This volume is part and product of the rapidly emerging scholarship on global law.2 It presents freshly commissioned chapters by two dozen leading jurists, theologians, philosophers, political scientists, historians, and social scientists from North America, Europe, South Africa, and Australia. The chapters reflect the provisional, experimental, and sometimes controversial discourse about global

2  Rafael Domingo and John Witte, Jr. law today. Some contributors equate global law with international law; others see it as any law beyond the international law between and among sovereign states. For some, global law is only a worldwide growing legal consciousness to resolve planetary problems together; for others, it is a set of legal institutions organized on a global level to deal with public goods that affect humanity as a whole. For some, global law is the result of a process of constitutionalization of international law; for others, global law is a common law of humanity, a true world law. Our view as editors is that global law must remain complementary to national legal systems and focused only on specific global challenges facing global humanity. We do not envision a comprehensive and universal global legal system encompassing and preempting the national and international legal systems in the world. But we do believe that global law’s primary focus on the fundamental dignity of the global person rather than on the community of sovereign nation-states will eventually bring profound changes to the foundations of international law. While the chapters in this volume do not settle on a common definition or concept of global law, they do focus on the past, present, and potential contributions of global Christianity to global law. This topic is rather new to contemporary global law scholarship, even though Christianity with its 2.3 billion members3 is the largest faith in the world. The relationship of Christianity and global law is worthy of close examination, and this volume outlines some of the emerging resources, questions, and methods. We make no claim that Christianity has been the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today or in the future. Our hypothesis is more modest but nonetheless insistent: that Christianity has deep norms and practices, ideas and institutions, prophets and procedures that can be of great benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges. This volume is deliberately ecumenical in character and reflects a range of historical and contemporary Christian perspectives on global law, with contributors offering descriptive, normative, and critical insights. The book is also decidedly interreligious in orientation, seeking to present Christian teachings on global law in a way that we hope will resonate with readers of all religions, first philosophies, and legal traditions. And the book is interdisciplinary in perspective, designed to show that secular legal systems, including the budding global law systems, are based in part on fundamental religious beliefs, values, and ideas. In the history of the Western legal tradition, Christian teachings and practices provided many of the founding beliefs and values of public, private, penal, and procedural law and legal theory. We editors believe that these same Christian teachings and practices are valuable for the emerging systems of global law as well, alongside sundry other religious and philosophical systems.

Part I: historical-biographical approach The first part of our volume is biographical in nature. Behind many legal achievements, including the development of global law, one finds Christian values and

Introduction 3 ideals as they were interpreted at a given time. And behind those ideals, one often finds particular Christian legal thinkers who left an indelible mark on our legal culture. From among the hundreds of possible figures to study, we have selected eleven principal figures from the first century to the twentieth century who contributed key ideas and insights to the later development of global law or some aspects of it. We have included major jurists like Alberico Gentili (1552– 1608), Johannes Althusius (1563–1638), and Hugo Grotius (1583–1645). We have also included the Apostle Paul (c. 5–c. 64–67 ce); theologians like Augustine of Hippo (354–430), Thomas Aquinas (1225–1274), Francisco de Vitoria (1483–1546), and Francisco Suárez (1548–1617); philosophers like Immanuel Kant (1724–1804) and Jacques Maritain (1882–1973); and the politician Robert Schuman (1886–1963)—all of whom influenced the law more profoundly than many jurists.4 To be sure, without globalization there is no properly global law, and talking about global law prior to the Second World War is thus somewhat anachronistic. But it is also true that the idea of the existence of some legal principles of universal validity based on a common human nature and comparable experience is at the heart of Western civilization, as is the idea that law is the result of a long process of legal evolution, political maturation, and social development. Each chapter zeroes in on the specific key insight or legal contribution of that historical writer who later proved critical to the formation of global law. In Chapter 1, C. Kavin Rowe argues that it is far from obvious that St. Paul was a defender of a universal moral law, or even a natural law. According to Rowe, in St. Paul’s writings law most frequently means the Torah, that is, the law of God revealed to Moses and recorded in the Pentateuch; Torah was not equivalent to a universal moral law. Instead, Rowe defends the idea that Christian freedom and Christian wisdom are the real tools offered for St. Paul for living in the world in accordance with the will of God. This first chapter poses a perennial dialectic that will occupy several other chapters in this volume, namely, that some theologians have a complex and critical view about natural law, even while most Christians take it for granted. The critical view can be seen in natural law skeptics such as Karl Barth or, currently, Michael Welker. On the other hand, according to a natural law doctrine very much supported by Thomas Aquinas and the Catholic Church, and by Althusius and the Calvinist tradition, the Torah itself contains many truths accessible to natural reason, which are immutable and permanent throughout human history. Whether such a traditional doctrine actually comports with St. Paul’s reasoning is the central question posed by Rowe’s exegesis in the first chapter. In Chapter 2, on Augustine, Josef Lössl argues that classical (Greco-Roman) political thought knew the concept of the common good as an ideal in civic life which was as unquestioned as it was unattainable. In his monumental volume on The City of God, St. Augustine of Hippo mercilessly deconstructed the myth of ancient civic virtue and, taking Rome as example, laid bare the crisis and failure of the ancient civic project. He replaced it with a broader and, at the same time, deeper vision. His scope was the whole of humanity, the law of nature, and the

4  Rafael Domingo and John Witte, Jr. law of nations. He explored in principle the human condition and analyzed basic concepts such as the private vs. the public, the common vs. the particular, institutions such as marriage and family, and socioeconomic phenomena such as labor and leisure, poverty and wealth. This chapter discusses these and other aspects of Augustine’s teaching on the common good and outlines briefly its continuing relevance. This is an adventuresome but convincing reading of Augustine’s wide-ranging thought and of how his worldview and imperial context provide interesting insights even for global law discussions in our day. Augustine’s understanding of the city and its conceptual connections to the city of Rome and the Roman Empire, and to the kingdom of God and the new city of Jerusalem coming down in the Book of Revelation, is crucial to capturing Augustine’s political thought. The reader will probably enjoy the parallel attention to the common good as both an intellectual and a spiritual reality, and the particular expressions of and challenges to these goods in Augustine’s discussions of legal cases, private property disputes, work in monastic communities, and love within nuclear families of ancient Rome. The chapter also analyzes the Augustinian understanding of natural law, which, grounded in creation, is more authoritative and capable of delivering justice than the traditional law of nations based on human consensus. In Chapter 3, Charles J. Reid, Jr. analyzes some of Thomas Aquinas’s central juridical and legal ideas that shaped Western legal culture for many centuries in Catholic, Protestant, and Enlightenment liberal thought alike. Key to understanding Aquinas’s realistic approach to law is the thought that law is both divine and human reason (ratio), with no conflicts between them. Divine reason is perfect, and it provides coherence to the whole law. Divine reason fixes the plan for the universe and is the ultimate archetype for rationally based human law. Human reason aspires to pursue the good by discovering the divine plan for communal creatures. Although there are immutable principles, the law is not static but flexible, since if human needs change, so must the law. A major point of the chapter is that straightforward translations of Aquinas’s Latin writings often do a disservice to his thought. That happens especially with the Latin words lex and ius, which do not have an easy translation into English as they have into French, Italian, Spanish, and even German. In Chapter 4, examining the foundations of a “global commonwealth,” Andreas Wagner explores the understanding of the law of nations by Francisco de Vitoria, the founder of the so-called School of Salamanca. A pioneer in the development of the idea of public international law and the global human community, Francisco de Vitoria inaugurated the discourse and debate on global law in expounding his general conception of a global political commonwealth, organized according to republican motives. According to Vitoria, while this global commonwealth comprises both nations and individual persons, it is constituted primarily by the latter. All human beings are citizens both of their home nations and of the global commonwealth. In their capacity as global citizens, individuals can claim their legal rights against other foreign persons and communities and even against the otherwise sovereign particular political community of which

Introduction 5 they are a member. The chapter points out some ambivalences resulting from the political use that imperial colonists made of Vitoria’s arguments and from the formal way in which he presented them. However, critics targeting these ambivalences seem to disagree about whether global law should then be more or less interventionist than Vitoria had suggested. Interestingly, both types of criticism can be discerned in today’s reception of Vitoria as well as in some of his contemporaries’ reactions. In Chapter 5, Henrik Lagerlund introduces Francisco Suárez’s thinking on the law of nations and just war. Suárez was also a member of the School of Salamanca and was strongly inspired by the medieval Thomistic tradition. He made essential contributions to natural theology, the philosophy of mind and action, metaphysics, ethics, political philosophy, and law. Suárez developed a modern account of the law of nations as a form of positive human law, not a mere extension of natural reason as it was seen by his predecessors. Included within the law of nations was the law of war, whose rules were drawn from custom but then cast in written positive law forms. Suárez argued that war as such is not intrinsically evil, and, therefore, that a just war is possible under some conditions. According to Suárez, defensive war is not only allowed but sometimes even commanded. His thinking influenced the jurisprudence of Grotius, Pufendorf, Leibniz, and Descartes, opening the doors to new modern legal developments. In Chapter 6, Rafael Domingo and Giovanni Minnucci analyze the secularization of the law of nations led by Alberico Gentili. An early modern Italian legal theorist and legal practitioner, Alberico Gentili was a transitional figure, able to combine the standards of the old Italian school of civilians (the Bartolists) and the new categories of the legal humanists. He designed an autonomous and practical framework for the law of nations based on three pillars: the Greco-Roman natural law, the Justinian compilation of Roman law texts, and the Bodinian notion of sovereignty as supreme, perpetual, and indivisible power. By doing this, Gentili freed the law of nations from excessive scholastic influences and theological importations, and he contributed to the establishment of the theoretical pillars of the European modern state and to the building up of a society of sovereign nations. In Chapter 7 on Johannes Althusius, John Wiite, Jr. analyzes the life and thought of this early seventeenth-century Calvinist German jurist and political philosopher, especially his account of the ultimate rule of natural laws and rights. This account would appeal not only to Christians but to all individuals seriously concerned about faith, justice, order, equality, and liberty. Althusius opposed the Bodinian vision of the unitary state-monarchy as the best guarantor of order and peace. He laid the foundations of the law in human nature, natural rights, symbiotic association (such as family and kinship, guilds and estates, cities and provinces), social contract, divine covenant, written constitutionalism, and political federalism, among others. Many of Althusius’s legal foundations, especially his early developments of the theories of federation and subsidiarity, are now considered by scholars as true pillars of the emerging idea of global law. In Chapter 8, Jon Miller examines Hugo Grotius’s argument for the making of modern natural law theory. An uncommon thinker living an uncommon life

6  Rafael Domingo and John Witte, Jr. under uncommon social circumstances, Grotius is considered to be the father of modern international law and a pivotal figure in his time. While his originality is still under question, his work certainly had a massive influence on international legal theory and politics, including the laws of war and peace, the law of the sea and trade, and the development of natural rights. Miller offers a theistic explanation about the meaning of Grotius’s (in)famous phrase etiam si Deus non daretur—that is, that the natural law would exist “even if God did not exist”— which is often misunderstood by scholars. According to Miller, the argument that natural law is self-evident to rational human nature presupposes the existence of God and the creation of rational humans made in the image of God. At the end of his chapter, Miller offers a suggestive comparison between German Protestant Reformer Martin Luther and Dutch Protestant Hugo Grotius. After Chapter 8, we move from the Reformation era to the Enlightenment, to the post-Westphalian modern international system. The series of treaties that came together in the so-called Peace of Westphalia (1648) ended a century of European wars of religions that killed more than eight million people, even with the primitive weaponry of the day. In Chapter 9, Lawrence Pasternack delves into Immanuel Kant’s ideas set out in his 1795 master work on Religion and Perpetual [or “Everlasting”—ewig] Peace, one of the best expressions of rational Enlightenment thought on war and peace. Pasternack shows how some of Kant’s affirmative religious positions influenced his approach to international relations, and specifically how his 1795 work was shaped by some of the key topics of a previous writing that had deeper theological insights. Arguing that the German adjective ewig in Kant’s famous work is better translated as everlasting or eternal rather than perpetual, Pasternack argues that Kant advocated not merely the interruption of all hostilities in the international realm but the true conversion of international relations into a scenario of everlasting peace. The last two chapters of the first historical-biographical part explore the lives and thinking of two twentieth-century French titans, Jacques Maritain and Robert Schuman. In Chapter 10, William Sweet examines the decisive influence of Jacques Maritain, the great Catholic philosopher, theologian, and diplomat, on the justification, proposal, and development of the Universal Declaration of Human Rights (1948). The author demonstrates powerfully Maritain’s contributions to natural, positive, and international rights discussions before, during, and after the UN Declaration. Readers will be surprised by how much Maritain had already developed his thinking before the Second World War and how he shifted his logic and argumentation as he watched and listened in the formulation of the international documents. In Chapter 11, Rafael Domingo introduces Robert Schuman, one of the architects of European reconciliation and integration. Having been raised in the controversial border state of Alsace-Lorraine, he strongly desired a free and unified Europe and joined in cooperation and friendship across state lines. Although Schuman never talked specifically about global law, some of his decisive ideas, principles, and values that inspired European integration are critical for the development of global law and human community, Domingo argues. These include

Introduction 7 the idea of the centrality of the person, the need to eliminate wars through peaceful legal tools, the importance of limiting state sovereignty without dissolving sovereign nations, and the principles of solidarity and subsidiarity.

Part II: structural principles of global governance The second part of the book deals with several structural principles of global law: dignity, equality, solidarity, sovereignty, subsidiarity, pluralism, the common good, and the rule of law. Although the chapters in this part are more normative and theoretical, the authors continue to draw on historical examples and exemplars. The structural principles selected for analysis are not exclusive to global law, but they have proved critical to its development and are even at the heart of it. If there is a universal common good for all humanity, that good itself creates a global community, whose existence and protection should be subject to a global rule of law. This global human community is not a mere federation of sovereign nation-states but a universal community of all human persons without exclusion. All persons are by their nature compulsory members of this global humanity, and no one can freely abandon it. Such a unique community of individuals should be based on the imago Dei principle of dignity, which provides equal legal status to all persons without exception. Moreover, if humanity is indivisible, the governance of this global human community must be inspired by the further principle of solidarity. Membership in a global community, however, sits alongside voluntary and involuntary membership in other communities as well: families, neighborhoods, local states, and various social, economic, recreational, and other voluntary associations. The principles of limited sovereignty and subsidiarity thus allow the integration and coordination of different instrumental communities with the global human community.5 In Chapter 12, Neil Walker offers a general introduction to the second part of the volume by focusing on the contested concept of a global rule of law. He explains the pros and cons of the two prevalent narratives on the topic: the secular narrative and the religious narrative. The former tries to regularize globalization detached from religion; the latter sees in the Christian tradition a foundation for a globally expansive rule of law. Walker defends an integrative third way, supported in part by the work of German philosopher Jürgen Habermas, and argues that religiously inspired actors and institutions can themselves be active agents of a process of “secularization” in which the religious sources are harmoniously mixed with other secular sources. In Chapter 13, Martin Schlag delves into the Christian origins of human dignity in the Roman Catholic tradition. Although human dignity is not properly a biblical term, the Bible paves the path for Christian theology to frame a dignity-based legal anthropology. According to Schlag, while it is true that other religious traditions and philosophical schools developed concepts similar to dignity, the Christian tradition has played a decisive role in the consolidation of the idea worldwide. Schlag appreciates all attempts to establish a universal and secular concept of human dignity in order to promote good pillars in democratic

8  Rafael Domingo and John Witte, Jr. societies, but he argues that Christian values, and specifically dignity, without following Christ are ultimately rootless. In Chapter 14, Julian Rivers focuses on some key elements for a challenging conversation about equality in modern law as he deeply engages with biblical and historical sources and arguments together with the latest national and international documents. He puts together and compares the words of the fourth-century Christian apologist Lactantius and suggests that Christianity has something relevant to say about equality and the Universal Declaration of Human Rights (1948). According to Rivers, what Christianity offers to the idea of equality is a solid metaphysical foundation; a long tradition of narratives and images that overcome legal abstractions and technicalities; a serious commitment to individual equality under law and the subsequent support for a set of antidiscriminatory laws; and a good balance between individual and collective identities and political structures. In Chapter 15, on the principle of the common good, George Duke contrasts the teachings of Augustine and Aquinas with contemporary theories of Jürgen Habermas, John Rawls, and Adrian Vermeule, and especially with the natural law theorists John Finnis and Mark Murphy. The main difference between medieval and contemporary theories of the common good, Duke argues, is the medieval interpretation of virtue as constitutive for the common good of any political community. According to Duke, all political communities necessarily aim at the common good. However, their understanding of the concrete ethical meaning and normative relevance of that idea is intrinsically related to the interpretation of citizen virtue. The reason is that the common good is finally dependent upon a conception of the ultimate purpose of a good human life. The chapter ends with some reflections on the status of the common good as a normative principle. In Chapter 16, Nicholas Aroney distills an immense body of jurisprudence on the modern meaning of political sovereignty, particularly as attached to the nation-state and its territory. In order to avoid any possibility of a world imperium, Aroney is cautious about the proposal of a global law that succeeds or supplants international law. On a global scale, the author defends a principle of limited sovereignty—based not on Jean Bodin’s idea of absolute and indivisible sovereignty but rather on Johannes Althusius’s federal principle. Instrumental and intermediary communities between the global human community and the individual—such as nations, regions, and various nonstate associations—help to satisfy most of the needs of human beings on an intermediate scale, Aroney argues, and they are crucial for developing human freedom and a healthy political, social, and economic life. In Chapter 17, Ana Marta González analyzes the Christian roots of the principle of solidarity. She shows how the principle of solidarity emerged in response to the social question that pressed for answers in the aftermath of the French Revolution and the industrial revolution. While both socialism and solidarism came to frame solidarity mostly in political and sociological terms, Christianity has mainly approached it from a theological and practical perspective. Many scholars opposed solidarity to Christian charity and argued that solidarity is just

Introduction 9 an aspirational principle or a natural fact for assuring social cohesion. González argues, however, that solidarity is not merely the result of structural decisions in political communities but also an ethical response to ethical social issues. Solidarity has an ontological dimension, prior to any social interaction and social form. In Chapter 18, Thomas C. Kohler analyzes the political, economic, ethical, and social dimensions of the principle of subsidiarity. The subsidiarity principle promotes the centrality of the human person in the decision-making process of any political community and urges that immediate and local associations are often best positioned to develop the personal capacities and individual responsibilities of each person, even while that person remains an involuntary member of national, international, and global legal communities. Kohler explains why the principle of subsidiarity, so relevant in Europe, has gained little attention in the United States. The Consolidated Version of the Treaty on European Union enshrines the solidarity principle in its Article 5, providing in part that “the use of Union competencies is governed by the principle of subsidiarity” and that “national parliaments ensure compliance with the principle of subsidiarity.”

Part III: global issues and public global goods The third part of the volume deals with illustrative global issues, deeply influenced by Christianity, that come under the domain of global law. Our starting assumption is that global law is not the only legal system of the global legal community, but it complements the work of existing local, national, and international laws in dealing with pressing global legal issues that transcend the capacity of any nation or region to deal with them comprehensively. Global law, several contributors in this part emphasize, is not a monopolistic world law, and the existence of a global legal community does not presuppose the need for a global state that subsumes and preempts all other lesser sovereigns. Such a move would mark the end of social freedom and political life. Humanity as such is universal and total, but the legal-political structures and institutions that govern it should not be. Global law should satisfy only certain specific human needs, namely, those that affect humanity as such and can be resolved adequately only on the global scale. Some contributors to this section object to this perspective, but it sounds through the structure of the book itself. This third part begins with a provocative Chapter 19 by leading historian Samuel Moyn. Moyn argues that most accounts of Christianity and human rights have proved apologetic and fictitious. While other historians, including several authors in this volume, have argued that human rights are the product of millennia-long cultural and religious traditions and are based on deep theological, philosophical, political, and legal reflections, Moyn emphasizes how contingently and recently Christianity engaged human rights, and how tenuous the human rights revolution has been in concretely addressing real-world problems. Moyn inspects critically the claim that American Protestants placed religious freedom at the foundation of the US Constitution and Bill of Rights, arguing that this is revisionist history. He also debunks claims of a long Catholic tradition of human rights, arguing that

10  Rafael Domingo and John Witte, Jr. it was only after the Second World War that the church came to embrace human rights, reversing its aversion to liberalism, democracy, and human rights after the French Revolution. In Chapter 20, on the global economic order, Daniel A. Crane suggests that, although it is difficult for Christians to agree about the principles and content of an economic worldview, there is a specific economic message in the Bible. In his parables, Jesus talked about financial and management concerns, about money and its distribution, and about taxes and economic activity. According to Crane, the Christian tradition in economics arises not only from Christians’ desire to interact with their cultures but also out of the great abundance of biblical sources and the need to reflect the faith in economic decisions. In our day, however, the engagement between formal Christian institutions and global economic and political institutions such as the World Trade Organization, the International Monetary Fund, and the World Bank is almost nonexistent, and most large corporations prefer not to be involved in religious issues to avoid inadvertent offense. According to Crane, the specific role of Christian institutions in the global economic sphere remains a difficult challenge for the twenty-first century. In Chapter 21, Silas W. Allard describes the emerging global law of migration and the tension between person-centric and state-centric approaches, the latter of which come at massive costs to the fundamentals of human dignity. The chapter provides a good balance of crisp description and normative advocacy. Allard argues for the need to place the particular political community in service of those who move in search of opportunities to live and flourish. The boundary-crossing responsibility to protect the inherent dignity of any person calls for a prioritizing of individual and family interests and rights over the exclusive interests of nationstates through global practices of solidarity and cooperation. In Chapter 22, on environmental protection and animal law, Mark Somos and Anne Peters validate the centrality of this topic of true and urgent global import in a volume on Christianity and global law. They take the Christian side of the story seriously, albeit critically and comparatively with other faiths and classical teachings. They introduce adroitly the range of interesting literature on point in a range of fields, not least law and legal history on both sides of the Atlantic. They frame issues of environmental care, stewardship, and, more particularly, animal law and rights, for Christians and other people of faith. In Chapter 23, Mary Ellen O’Connell offers a brief history of the Christian contribution to the tradition of pacifism, the doctrine of just war, the doctrine’s limits on war, and the tensions between natural law and positive law theories in relation to the use of force. According to O’Connell, the more relevant Christian contribution to the law governing the use of force is its rejection of violence, as well as the conception that the resort to war is immoral. O’Connell argues for the revival of the idea of natural law to liberate jurisprudence from the consequences of positivistic consensualism. However, she notes that any revitalization of natural law doctrines should take into consideration the diversity of the global community.

Introduction 11 Finally, in Chapter 24 on international criminal law, Johan D. van der Vyver focuses on the contributions of Christianity to criminal law on a global scale and, particularly, the role of the Holy See in drafting the statute for a permanent international criminal court. The Catholic Church’s contribution rested upon the moral commitment to help the international community, not upon any political, economic, or diplomatic interest, as was common in many government delegations. Van der Vyver explains how the Holy See tried to assure that a deliberately ambiguous terminology could serve to contradict moral doctrines. For instance, the refined nuances in distinguishing between forced and enforced action was one of the Holy See’s contributions to the statute.

Conclusion The Christian tradition has, for centuries, offered theological, philosophical, moral, and legal ideas and tools that have contributed to the development of law, legal systems, and legal procedures. These Christian teachings and doctrines have inspired the laws of local communities, of nation-states, and of the modern international law system. They hold power and potential for the process of globalization of law as well. To be sure, the emerging idea of global law is not a Christian creation, just as the ideas of the common good, human dignity, natural law, and human rights are not Christian creations. But many Christian principles and prophets have helped shape these emerging ideas, building on and alongside other religious and philosophical traditions. The modern process of secularization of law is a help, not a hindrance, to the ongoing collaboration between Christianity and law, because secularization itself is an idea that is also inspired and illuminated by Christian teachings. “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.”6 These were revolutionary words pronounced by Jesus in addressing the global imperial Roman law of his day, and these words have enduring insight for our day. Just because the realm of Caesar involves principles, rules, and propositions derived from legal sources does not mean that metalegal sources (moral, religious, and spiritual) cannot provide legal inspiration, too. Otherwise, it would be easy to fall into a legal reductionism which damages the essential unity of the human person. Christianity teaches that human persons, while subjects of the realm of Caesar, are also subjects within the realm of God, and they of necessity bring the values of this transcendent realm into the temporal realm. Jesus did so in his day, often formulating his message in maxims, parables, and hypotheticals that Jews and Greeks, Romans and Samaritans could understand, appreciate, and apply. Christians can and should do so in our day, using the best methods of public reasoning to offer instructions to a pluralistic legal world. As a universal religion, Christianity is concerned about humanity as such and not only about a particular ethnicity, culture, or group. According to Christianity, humanity is the family of the children of God and comprises creatures made in the image of God. This Christian truth enlightens from a spiritual dimension not

12  Rafael Domingo and John Witte, Jr. only all global human affairs but also the whole process of globalization as such. This metalegal truth grants legitimacy to the global human community. That is one of the reasons why early ecumenical Christian bodies like the World Council of Churches weighed in decisively on global questions. It also explains why the modern Roman Catholic Church, starting with Pope John XIII,7 began to advocate global governance or world authority to deal with global questions. As Pope Benedict XVI summarized: Such an authority would need to be regulated by law, to observe consistently the principles of subsidiarity and solidarity, to seek to establish the common good, and to make a commitment to securing authentic integral human development inspired by the values of charity in truth.8 We started with a Goethe aphorism, and we end with another one: “When two masters of the same art differ from one another in their way of expounding things, probably the insoluble problem lies in the middle between the two of them.”9 This volume was not a matter of two experts but of twenty-five international scholars, and all of them differ from one another. Probably the reader will find the solution of global law in the middle of all the explanations.

Notes Goethe, 424, 426. The translation is ours. 1 2 See, among others, Twining; Madunic and Kirton; Teitel; Walker; Capaldo; Dybowski and García Pérez; and Kingsbury et al. 3 See www.pewresearch.org/fact-tank/2017/04/05/christians-remain-worlds-lar gest-religious-group-but-they-are-declining-in-europe/ (accessed September 23, 2019). 4 On the idea of Christian jurists, see the introduction in Domingo and MartínezTorrón, eds., 1–29, esp. at 1–3. 5 See Domingo, “The New Global Human Community,” 563–87; Domingo, “A Global Law for a Global Community,” 1–22. 6 Matthew 22:21. 7 Pope John XXIII, Encyclical Letter Pacem in Terris (April 11, 1963), § 140 and § 141. 8 See Benedict XVI (Joseph Ratzinger), Encyclical Letter Caritas in veritate (June 29, 2009), § 67. See also the echo in Pope Francis, Encyclical Letter Laudato si’ (May 24, 2015), § 175. 9 Goethe, vol. 12, 422, no. 418.

Recommended reading Aroney, Nicholas, ed. Christianity and Constitutionalism. Oxford and New York: Oxford University Press, forthcoming. Berman, Harold. Faith and Order: The Reconciliation of Law and Religion. Grand Rapids, MI and Cambridge: Wm. B. Eerdmans Publishing Co., 1993. Crane, Daniel A., and Samuel Gregg, eds. Christianity and Market Regulation. Cambridge and New York: Cambridge University Press, forthcoming.

Introduction 13 Domingo, Rafael. “A Global Law for a Global Community.” In Dybowski and García Pérez, Globalization of Law, 1–22. Domingo, Rafael. “The New Global Human Community.” Chicago Journal of International Law 13/1 (2012): 563–87. Domingo, Rafael. The New Global Law. New York and Cambridge: Cambridge University Press, 2010. Domingo, Rafael, and Javier Martínez-Torrón, eds. Great Christian Jurists in Spanish History. Cambridge and New York: Cambridge University Press, 2018. Duke, George, and Robert P. George. The Cambridge Companion to Natural Law Jurisprudence. Cambridge and New York: Cambridge University Press, 2017. Dybowski, Maciej, and Rafael García Pérez, eds. Globalization of Law: The Role of Human Dignity. Cizur Menor: Thomson, Reuters Aranzadi, 2018. Fassbender, Bardo, and Anne Peters, eds. The Oxford Handbook of the History of International Law. Oxford and New York: Oxford University Press, 2014. Goethe, Johann Wolfgang. “Maximen und Reflexionen.” In Goethes Werke, vol. 12, 3rd ed., 424, 426. Hamburg: Christian Wegner Verlag, 1958. González, Ana Marta, ed. Contemporary Perspectives on Natural Law: Natural Law as a Limiting Concept. London and New York: Routledge, 2016. Kingsbury, Benedict, et al. Megaregulation Contested: Global Economic Ordering After TPP. Oxford and New York: Oxford University Press, 2019. Klabbers, Jan, Anne Peters, and Geir Ulfstein. The Constitutionalization of International Law. Oxford and New York: Oxford University Press, 2009. Koskenniemi, Martti, Mónica García-Salmones Rovira, and Paolo Amorosa. International Law and Religion: Historical and Contemporary Perspectives. Oxford and New York: Oxford University Press, 2017. Lagerlund, Henrik, and Benjamin Hill. The Routledge Companion to Sixteenth Century Philosophy. London and New York: Routledge, 2017. Lössl, Josef. The Early Church: History and Memory. New York and London: T&T Clark International, 2010. Madunic, Jelena, and John J. Kirton, eds. Global Law. New York and London: Routledge, 2009. Minnucci, Giovanni. “Silete theologi in munere alieno.” Alberico Gentili tra diritto, teologia e religione. Milan: Monduzzi editoriale, 2016. Moyn, Samuel. Christian Human Rights. Philadelphia: University of Pennsylvania Press, 2015. O’Connell, Mary Ellen. The Power and Purpose of International Law. Oxford and New York: Oxford University Press, 2008. Pasternack, Lawrence. Kant’s Religion within the Boundaries of Mere Reason: An Interpretation and Defense. London and New York: Routledge, 2014. Peters, Anne. Beyond Human Rights: The Legal Status of the Individual in International Law. Cambridge and New York: Cambridge University Press, 2016. Ratzinger, Joseph (Benedict XVI). Encyclical Letter Caritas in veritate. The Vatican City: Libreria Editrice Vaticana, June 29, 2009. Rivers, Julian. The Law of Organized Religions: Between Establishment and Secularism. Oxford: Oxford University Press, 2010. Rowe, C. Kavin. One True Life: The Stoics and Early Christians as Rival Traditions. New Haven and London: Yale University Press, 2016. Schlag, Martin. La dignità dell’uomo come principio sociale. Il contributo della fede cristiana allo Stato secolare. Rome: EDUSC, 2013.

14  Rafael Domingo and John Witte, Jr. Sweet, William, ed. Philosophical Theory and the Universal Declaration of Human Rights. Ottawa: University of Ottawa Press, 2003. Teitel, Ruti. Humanity’s Law. Oxford and New York: Oxford University Press, 2011. Twining, William. Globalization and Legal Theory. Cambridge and New York: Cambridge University Press, 2000. Van der Vyver, Johan D. The International Criminal Court: American Responses to the Rome Conference and the Role of the European Union. Trier: Institut für Rechtspolitik an der Universität Trier, 2003. Walker, Neil. Intimations of Global Law. Cambridge and New York: Cambridge University Press, 2015. Witte, John, Jr., and Frank Alexander, eds. Christianity and Human Rights: An Introduction. Cambridge and New York: Cambridge University Press, 2011. Witte, John, Jr., and M. Christian Green, eds. Religion and Human Rights: An Introduction. Oxford and New York: Oxford University Press, 2011. Ziccardi Capaldo, Giuliana. The Pillars of Global Law. 2nd ed. London and New York: Routledge, 2016.

Part I

Historical-biographical approach

1 St. Paul and the moral law C. Kavin Rowe

Introduction Although St. Paul’s thought has often been examined in discussions of natural law, on first glance it is not obvious that he would actually have had much to say about a universal moral law.1 When Paul speaks of “law,” he most frequently means the Torah, the Law given to the Jews by the God of Israel. The Jews were God’s elect people, and Law was the pattern of life that expressed and maintained their covenant with God and publicly distinguished them from all non-Jews.2 In Paul’s thought, Torah is not equivalent to a universal moral law. In fact, the most likely ancient progenitors of much current natural law discussion were the Stoics.3 On further reflection, however, we can see in Paul several critical points about the way that human beings are, and are supposed to be, in the world that constructively intersect today’s questions about a universal moral law. In this chapter, I discuss the principal Pauline passages that should figure in any treatment of Paul and natural law, and then reflect briefly on the theological consequences of the exegesis for the shape of Christian thought about global law.

Texts Because Paul wrote so much of what is in the New Testament, it can be difficult to know where to focus. Yet there clearly are places in his letters and in New Testament traditions about him that are most relevant to our question. Those places are in his letter to the Romans and in the Acts of the Apostles. We must say clearly, however, that the following passages are treated in relation to Paul’s overall theology and its reception in Acts rather than simply lifted out of context and made to speak on a contemporary question. All too often in the history of exegesis, readers of scripture have practiced hermeneutical “snatch-a-verse” and reflected on a wider question in light of passages that are distorted by leaving their original grammatical home behind. Insofar as we seek Paul’s wisdom on the question of natural law, we will have to read him—and his reception—in the context that gives his words their specifically Pauline meaning.4

18  C. Kavin Rowe

Romans On any account, Romans is Paul’s most theologically elaborate missive. It is also the letter in which he deals most explicitly with the question of the Gentile knowledge of God. Precisely because Romans is an account of God’s dealings with the Jews in past history and now in Christ Jesus, Paul finds that he must also write about the Gentiles’ relation to God. To think about Israel’s election in light of Christ is, for Paul, simultaneously to think about how the Gentiles fit into that history.

Romans 1:1–3:31 As most New Testament scholars now recognize, Romans 1:1–3:31 is the first major section of the letter. On the way to his main point, Paul deals extensively with Gentile knowledge of and obedience to the God of Israel. For the purposes of this chapter, four key points emerge from Paul’s opening argument. First, Paul clearly affirms that God’s creative power is written into creation in an obvious enough way that it makes sense to say God “has revealed” to everyone aspects of what it is to be God, namely, his eternal “God-ness” and “power” (1:19–20). This revelation is quite specific at this point: there is no mention of a divine law, moral or otherwise; Paul speaks of what later came to be called God’s attributes. Second, Paul characterizes the Gentile response to God’s self-revelation in creation as rejection. Though they can “know God” in the sense of some divine attributes, the Gentiles have refused this knowledge: “Claiming to be wise, they became fools” (1:22). Their “reasonings” are not knowledge in any significant sense; they are, rather, senselessness, darkness, confusion, a covering over of the heart.5 Third, Paul’s adduced evidence for this description of Gentile reasoning is not that Gentiles make poor analytic arguments, have no intellectual sophistication, or draw the wrong conclusions from what would otherwise be laudable insights. The evidence is practice. The Gentiles live in ways that disclose the worship of creation rather than God. The “truth” is that only God should be worshipped, but precisely by the way they live, the Gentiles show that their knowledge of God is a lie—idolatry (1:25). Fourth, in 2:14–16 Paul states that whenever Gentiles who do not have the Law by nature do the things of the Law, even though they do not have the Law, they are a Law to themselves. These [Gentiles] manifest the work of the Law, written on their hearts, while at the same time their conscience also witnesses and among them their thoughts accuse or perhaps excuse them on that day when God will judge the secrets of men according to my Gospel through Christ Jesus.6 Throughout the history of discussion of non-Christian knowledge of God’s law, these verses have been used repeatedly to argue that Paul believes in natural law. But in the context of the epistle, they actually say something quite different.

St. Paul and the moral law 19 Paul’s point is not that some Gentiles happen to know the universal moral law and behave accordingly while others do not. Nor is it that God has decided to write the moral precepts of the created order on some hearts and not others. Paul’s point in the context of Romans is rather that God’s promises in Jeremiah are now fulfilled in the life of Gentile Christians. The “new covenant” declaration from Jeremiah 31:31–34 (LXX 38:31–34) is brought to life in the ability of Gentile Christians to walk in the way of Torah. Torah, of course, is not a universal moral law but the covenant of the God of Israel with his people. Speaking of the Gentile Christians who do not have the Torah by birth but who, because of their reception of God’s Spirit, exhibit the purpose of Torah in their lives makes an excellent transition to an argument against negligent Jewish Christians who do have the Torah by birth but whose lives testify against it (2:17–29). The counterpoint is rhetorically striking and effective.7 The question at this point in Romans is about the place of the Gentiles vis-à-vis the election of Israel, not what morally praiseworthy behavior the Gentiles might have been up to in the world at large.8 On that matter, Paul has already decisively spoken only a few verses before (Romans 1:18–32). Romans 1:1–3:31 contain the loci classici of Paul’s alleged endorsement of a natural law. Paul’s actual argument, however, complicates the attempt to find a universal moral law in his thought. In this section of Romans, Paul does not extol the “natural” knowledge of God or talk about a universal moral law. What he says instead is that the way that Gentile reason interacts with what God has revealed of himself in creation is idolatrously to distort that revelation. Quite in the face of the way God made the world, reason goes its own way, and that own way leads not to a discovery of God’s attributes or to a law that reflects God’s will for human behavior but to the absolutizing of creation. Reason here, for Paul, is not an abstract capacity native to all human beings but reason at work; and reason at work moves not toward God’s revelation in creation but toward cloudiness, darkness, and brokenness. Gentile patterns of life are constitutive of the knowledge they possess, and such knowledge is, for Paul, tantamount to ignorance. The Gentiles have forsaken the truth and live a lie.

Romans 6–8 After treating the figures of Abraham and Adam (chapters 4 and 5), Paul turns toward the character of Christian existence within a creation that still longs for eschatological redemption (chapters 6–8). Two major points from this section of the letter bear on our current question. First is Paul’s theological anthropology. In stark contrast to certain modern notions of human freedom, in which we will to choose what we choose and cannot be forced to choose anything that we do not will for ourselves, Paul’s view of humanity is that we exist in slavery. Baptism into the reality of Christ’s death and resurrection marks the transition from one slavery to another. Paradoxically, perhaps, this second slavery is for Paul what true freedom is (6:15–23). We do not move freely from one kind of unfettered self to another. Prior to baptism we are dominated by powers that are in principle beyond the power of our will: sin and death. We are slaves to sin and move in

20  C. Kavin Rowe patterns of death. Upon transition to the true Lord, we become slaves to him— which is to say, we are freed from sin and death—and discover the patterns that lead to life eternal (6:23; chapter 7). Second is Paul’s understanding of creation. Like his fellow Jews, Paul believed both that the God of Israel created the world and declared it good, and that the present world was in need of healing due to Adam’s fall and paled in comparison to the world to come. In Romans 8, however, Paul teaches the Roman church that their understanding of the world cannot be separated from their understanding of Jesus Christ and the active work of the Holy Spirit. The healing has already begun (8:22–30). It is here now. But precisely because this healing is also and inextricably linked to hope, Paul describes the creation as still existing “in bondage to decay” (8:21). The healing of creation is not yet complete. The creation still waits “with eager longing” for the consummation of God’s work in Christ. What Paul’s argument in Romans 6–8 means for an attempt to find a universal moral law is of course varied and complex. But two points stand out. The first relates to anthropology: an account of a universal moral law that presupposes a human knower whose mind can work unfettered by sin and darkness runs directly counter to Paul’s view of human possibilities. At the very least, the quality of human knowledge, according to Paul, would always be bound up with the question of the will; there is no mind that can serve the Lord’s truth apart from the will that is enslaved to one master or another. A thinking mind whose thoughts are free from the will’s dominus is as un-Pauline an abstraction as is conceivable.9 The second point relates to the context in which one could (or not) discern a/the natural law, namely, creation. For Paul, creation is not an inert data set about which a debate could be had over whether a moral law can be discerned. The idea that one could read “universal law” off the face of creation is severely problematized by Paul’s insistence that creation itself is in need of healing—that is, that it “presents” as broken. It may well be that those who are “in Christ” can see the healing that has begun, but apart from that discernment, the testimony of creation to the God who made it remains one not of natural law but of groaning. Taken together, Paul’s theological anthropology and understanding of creation mean that human beings emerge in a world in which we are already caught. We long for freedom, redemption, and therapy, but we lack the fundamental power to bring them about. Without fail, we hinder ourselves time and again, and we are further ruined by active powers that seek to harm us. However Paul’s theology might bear on the question of law, it will always impart a sobering sense that, in relation to the moral life, laws do not run deep enough to create the flourishing that human beings long for, the justice we strive for, and the healing we hope for.

Acts of the Apostles The Acts of the Apostles presents the bulk of the “canonical Paul,” the Paul as he was interpretatively received and remembered. Acts narrates the earliest extended interpretation of Pauline missionary theology and, as such, offers ample

St. Paul and the moral law 21 opportunity for reflection on what this Paul makes of the wider Roman world. From all the rich material in Acts, two passages and their themes are most relevant for this chapter.10

Paul and Athens When it comes to the question of the New Testament and pagan philosophy, no text is quite so beloved as Paul’s Areopagus speech in Acts 17. There, it is often assumed, we see the quintessential endorsement of the wisdom of the Greeks and a translation of Christian truth into insights the Greeks share. This standard interpretation, however, fares poorly with a closer reading of the speech in the context of Acts itself. Removed from that context, Paul’s speech could mean anything we make of it, but within its narrative home, the speech works to transform the meaning of pagan words rather than to endorse them on their own. Ancient readers were given their first clues to the hermeneutical direction of Paul’s speech by the introductory remarks. Athens is described not as a place of exalted university knowledge but of idolatry: “while Paul was waiting for them in Athens, he became vexed because he saw that the city was full of idols” (17:16). Paul’s preaching is received not as the truth of all things but as advocacy for the polytheistic worship of Jesus and another deity named “Resurrection” (17:18). Paul’s vocabulary is heard not as evidence of real philosophical refinement but as the pretentious pretending of a poser (spermalogos, v. 18). And Paul is not welcomed by the leading authorities but seized, arrested, and put on trial before the Areopagus Court. In short, Athens is a place where, immediately on its arrival, Christianity is misinterpreted, maligned, and manhandled. Readers of Paul’s speech take this knowledge with them as they listen to Paul’s defense before the Areopagus. Typical defense speeches by the rhetorically trained opened with a captatio benevolentiae—an attempt to win the goodwill of the judge/audience—and prima facie Paul’s is no different. “Men of Athens! I perceive that in every way you are deisidaimonesteros!” (17:22). The word deisidaimonesteros, however, is ambiguous. It can mean either “very religious” (a compliment) or “highly superstitious” (an insult). This skillfully placed ambiguity directs the reader to look for multilevel meaning in Paul’s words as the speech unfolds. Three brief examples will suffice to show the importance of the ambiguity for interpreting the speech.11 First, in 17:23 Paul mentions an inscription he saw on his way through Athens that read “to an unknown god” and comments: “What, therefore, you worship unknowingly (ignorantly), I announce to you.” Paul’s immediate purpose is to ward off the charges of “bringing in strange and new teaching” by situating his preaching within Athenian history and culture. Paul knew that a conviction on these charges—the charges Socrates himself faced— was lethal. I’m not bringing in anything new, Paul suggests, because what I proclaim to you is the God who made heaven and earth (v. 24)—that God precedes even Athens! On the surface, it looks as though Paul says that the Athenians have been worshipping the true God all along, only they did not know it. As Paul

22  C. Kavin Rowe moves on, however, the surface interpretation becomes more complicated, and the sense emerges that the theological stress of the phrase lies on their ignorance: what you worship ignorantly—that is, without theological knowledge. Second, in 17:27, after extolling the creative power of “the God who made the world and everything in it,” Paul speaks of this God’s creative purpose for human beings: God made them so that “they should seek God in the hope that they might grope after him and find him. And yet, God is not far from each one of us.” The language echoes what many philosophers would have eagerly affirmed. Paul’s contemporary Seneca, for example, knew that “God was near you, with you, in you” (Epistle 41.1), which of course is to say that God was not far from each of us. There was no real need, Seneca knew, to go to the temples, offer sacrifices, and so on. But again Paul’s words reveal another layer. “You shall seek the Lord your God and you will find him, if you search after him with all your heart and with all your soul” (Deuteronomy 4:29; Isaiah 55:6, et passim). The biblical text is in fact Paul’s theological reservoir, the deep well from which his statement to the Areopagus is drawn. The ambiguity of the words discloses Paul’s point: the God of Israel is the God whom humans are to seek. And yet, they have not found God. That is, Paul does not say here that the Gentiles have groped and found the God of Israel but that—even though God is close to each one of us—they have not found him. “These times of ignorance God has overlooked,” Paul later continues, characterizing Gentile theological knowledge as “unknowing.” On closer inspection, Paul’s nearness language thus turns out to say something quite different from the pagan philosophers: even though God is so close, he has not been found; he is unknown. The image is of people groping around in the dark after something they cannot find but which stands ever so near to them. Third, in 17:28 Paul finishes his statements about the relation between God and humanity by quoting from the opening lines of the hymn to Zeus in the Stoic Aratus’s Phaenomena, an astrological book that was exceptionally popular in the ancient world: “we are his offspring.” Read in its linguistic home, “we are his offspring” means quite simply that by nature human beings participate with their reason in the reason that is the structure of the eternally cycling cosmos. This structuring reason is often called “God” or “gods” or “Providence” and the like. Aratus’s line expresses the coordination of same nature—human mind and the reason of the cosmic cycle. Paul, however, means something quite different. His reference is to Israel’s scriptures, specifically to Genesis 1 and 2, the God of Israel, and that God’s image of himself in the creature he made and named Adam (Heb./Grk. anthropos; human being). Unlike his near Jewish contemporary Aristobulus, Paul does not posit a metaphysical identity between the god mentioned in the Phaenomena and the God of Israel, or between the reason of humanity and that of Zeus; his point is, instead, that human beings find their lives enclosed within the scriptural story of the Jews. When Paul then mentions that we all come from one human being (anthropos), he invokes typical Stoic doctrine only to subvert it by means of the allusion to Adam. And by the end of the speech, the man whom God has appointed to bring justice to the world is, as all readers of Acts know, Jesus of Nazareth. “We are his offspring” is transformed

St. Paul and the moral law 23 to mean that the totality of human life is determined by our existence between Adam and Jesus. While many readers of Paul’s defense speech before the Areopagus have seen him to be making an attempt to validate Greek philosophical insights and/or religious impulses, paying close attention to the way the language works in context reveals a different purpose. By the end of the speech, the terms of philosophical/ religious discourse have been reset inside the biblical tradition and transfigured in light of the Gospel. Their meaning is different from what they would mean in their host systems and texts, and they now testify on Paul’s terms to the claim that Gentile knowledge of the God of Israel is best named as ignorance. As New Testament scholar C.K. Barrett once put it: “from nature the Greeks have evolved not natural theology but idolatry.”12

Paul’s Roman citizenship and trial in Acts From at least Theodor Mommsen on, scholars of Roman jurisprudence have regularly noted the remarkable historical value in Acts’ record of Paul’s Roman citizenship and trial. The trial also raises fundamental questions about early Christianity’s views of Roman law and what these views mean for a consideration of a universal moral law. Several points are in order. First, as Acts presents it, Paul quite obviously knows and makes use of Roman legal traditions as he moves through his initial arrest, trial, and defense (apologia) in Acts. In the face of the lawyer Tertullus’s accusation that Paul is the ringleader of the sect of the Nazarenes, for example, Paul cleverly redescribes his movement as taking one side of a much larger and inner-Jewish debate. He thereby makes use of the typical Roman legal posture toward such debates—that is, they have nothing to do with Roman law and should be settled by the Jews themselves (see the comment by Gallio, the governor of Achaea, in Acts 18:14–15). Contra the charge that he is guilty of riot-inducing sedition (stasis), Paul says instead that he came simply and piously to bring his people alms and offerings (24:16–17). And in defense of the accusation that he corrupted the Jerusalem Temple, Paul flatly denies it and draws attention to the significant fact that his accusers are absent. Roman law technically required that a defendant’s accusers be present; their absence constituted destitutio and could lead to the dismissal of the charges or even countercharges.13 And, finally, when the chips are down and it appears that Paul should and will be released—a verdict that accords with the evidence but that will also get him ambushed and killed—Paul sets in motion an appeals process that will take him all the way to the imperial court in Rome. “I appeal to Caesar” (Acts 25:11) is a legal maneuver par excellence. Even the Roman governor Festus is now bound, as King Agrippa II makes clear to him: “This man could have been freed if he had not appealed to Caesar” (26:32). Someone who was unaware of Roman jurisprudence could never have pulled this trick out at just the right time and in front of just the right people, as Paul so skillfully did. Paul also knew how to use his Roman citizenship for the advantage of Christians and to maneuver his way through tight spots for the sake of the Gospel.

24  C. Kavin Rowe In the Roman colony of Philippi, for example, Paul waits until the day after the magistrates have imprisoned him to let them know that he is a Roman citizen. When the magistrates send their soldiers secretly to let Paul out, he says to them, “[The magistrates] have beaten us publicly, uncondemned, men who are Roman citizens, and have thrown us into prison; and do they now cast us out secretly? No! Let them come themselves and take us out.” This ace up the sleeve achieves the desired effect: Paul receives a public apology, the guard’s life is saved, and the Christian community in Philippi gains a measure of protection. Paul of course could have simply informed the colony’s officials on the previous day that he was a citizen and as such had legal privileges that should be respected. But he does not. He waits until the opportune time and then presses his advantage. So, too, he knows that it is “illegal” to scourge a Roman citizen before trial (though of course in reality it was done). But Paul allows himself to be chained and stretched out for the flogging before he says, “Is it lawful for you to scourge a man who is a Roman citizen and uncondemned?” (24:25). He thereby gains a significant measure of tactical control vis-à-vis the Roman tribune Claudius Lysias. According to the logic of the narrative, Paul’s motive here is not to save his hide. He is quite willing to suffer for the Gospel, as he has made clear and put into practice time and again. His intent, rather, is to create the political wiggle room necessary for him to work between a rock and a hard place (the Jewish leadership who wish him dead and the Roman tribune who will punish capitally the one responsible for riotous commotion). Absent this room, Paul’s life is forfeit and the chance to get to Rome eliminated. By taking advantage of the law of the saeculum, however, Paul secures time and space to move forward in his mission. In Acts as a whole, then, Paul is nowhere depicted as knowing about or endorsing a universal moral law, but he is shown to be legally savvy in a manner that makes sense only with the supposition that some important aspects of Roman law have been well learned and that the Roman legal matrix is a medium within which Christians can maneuver for their benefit. The canonical Paul clearly puts Roman law to use in ways that, practically speaking, claim it as a relative or occasional good. Theologically put, Roman law can be said to serve God’s purposes. Yet such service is clearly only ad hoc, and even in Acts it does not rise to the level of a universal good or norm. Roman law, for example, cannot save Jesus; nor can it save Paul. They are both declared innocent, and yet they are both arrested, tried, and eventually executed.14

The Pauline contribution to the question of a/the universal moral law There are other New Testament texts one could consider, but reading the main lines of Paul’s thought in Romans and the reception of Paul in Acts brings us quickly to several central judgments about the Pauline contribution to the question of a universal moral law. First, and perhaps most surprisingly for Christian advocates of natural law, Pauline theology cannot be used to testify to the epistemic availability of a universal moral law. The most that can be said is that

St. Paul and the moral law 25 creation testifies to some of God’s attributes, but human beings as such cannot see them; the attributes are hidden by the patterns of life that make the creation into the object of worship. The people named Israel/Church can receive knowledge about God and the law he wills, but this knowledge is the Torah and the life given by God’s Spirit written on the hearts of those who believe. Absent the knowledge of God given from his side of things, God remains unknown, even though we are all his offspring. Second, laws of the saeculum are not universal moral laws, even if they can on this or that occasion deliver justice (dikē). But they can be learned and productively used by Pauline Christians. Roman law, for example, can serve the Christian community’s larger purpose by enabling Paul to escape Jerusalem and reach Rome. And a knowledge of Athenian legal history and traditions can enable Paul deftly to avoid what is in his view an untimely execution. Yet such laws are only ad hoc instances of good and cannot be relied upon to produce behavior that is consistently in accordance with the norms of the Gospel or even with a relative justice. The Corinthian Christians lamentably use secular law to take each other to court, and pagan governors order imprisonment and/or execution.15 As philosopher Hans-Georg Gadamer saw, in a deeply significant sense there is no real understanding of law without its human application: the application of the law is law. Theologically considered, the discernment needed to make good use of a secular law is bound up with the will of the discerner, which is to say that being enslaved to the masters of sin and death matters for one’s perception of the good in law. Third, Pauline anthropology leads directly to a question raised pointedly in the title of Luther’s classic The Bondage of the Will. Put succinctly: the is, the ought, and the can or cannot all go together in a complex cluster of intertwined judgments. Taking a position on the existence of a universal moral law entails concomitant positions not only on human knowledge but also on our practical capacity and what we should expect to see in the exceedingly vast scope of human behavior. The matter of a universal moral law, that is, is not just noetic; it is a matter of possibilities of and actual being in the world. If human beings can know God’s moral law but cannot do it, then we should not expect to track God’s law in the life patterns of unregenerate humanity.16 What we should expect instead, at least on Pauline terms, is something like evidence of its contradiction—the world testifies to God’s law precisely through its inability to do it.17 Between the view that our wills exist in bondage and cannot get to the good no matter how diligently we try and the view that they need only some divinely enlightened educational direction to do the good—pedagogically provided, say, by teachers who know the good toward which we should aim—there exists a substantive distance not only with respect to the problem of the will but also and simultaneously with respect to what we make of the natural law’s impact, or promise for human community, and how we see it showing up in the world. For the Apostle Paul, the inability to do what God requires is the heart of the matter. The moral grain of humanity is no grain at all; it is, quite simply, the consequence of the broken will’s wayward ways. Insofar as God’s self-revelation can be seen “naturally” in

26  C. Kavin Rowe the world, it shows up as rejection. Of course, to read human behavior of whatever kind as a rejection of the way God intends us to be, rather than as just one more variation on the way humans go about being human; or to see signs of a created order, rather than just a collection of variously and momentarily arranged phenomena, is already to reason Christianly about the whole ball of wax—which, after all, is what Paul is trying to do. Fourth, taking Paul seriously for reflection on a universal moral law illustrates the truth of the crucial point made by Hittinger and others that the difference between Christian and modern secular discourse about a “natural law” is grammatically—and thus substantively—vast. It may, on first glance, look as if all current discussants of a moral or natural law are talking about more or less the same thing. They use the same term, after all. But as we have learned from Wittgenstein, the “language game” in which a word is played, as it were, provides the context for word meaning. And the use of the word in that game provides the concept, or a related cluster of them, that one has. Use a word differently or in a different game and the concepts are different. Different language games, different use, different meaning, different concepts. When, therefore, the term “natural law” is used on the one hand to talk about the way the God of Jesus Christ intends human beings to be in the world and, on the other, is used to talk about the way human beings construct and live out their sense of self and its obligations in a world in which the Christian God does not exist, “natural law” means radically different things, and the conceptual arrangements that go with the respective uses are thus also seriously different. No amount of overlapping speech about “rights” or “dignity” or anything of that sort makes the understanding of “nature” or “law” or “natural law” turn out to exhibit the same, shared sense of what the world is or requires of its human citizens. There are, indisputably, momentary convergences of judgment on this or that question of action and/or behavior. But these should be seen as historically contingent—some of them of course already influenced by the long history and deep penetration of Christianity in jurisprudential theorizing about the human being in virtually all forms in the North Atlantic West. Such ad hoc historically contingent convergences should be wisely celebrated, wisely taken advantage of, wisely made much of in legal practice, and so on, but they should not be mistaken for agreements based in a shared understanding of a universal moral law.18 As time rolls on and cultural mores shift, these contingent agreements always can, and in many instances will, gradually disappear and become evident in retrospect not as the truths of natural law but as consequences or coincidences of history.19 It is the way things have gone, not the way things must and always will go. Christians should not, therefore, be tempted into thinking that God can be sidelined for what we make of human behavior. Any Christian speech about a “universal moral law” that is informed by St. Paul means the way the God of Jesus Christ intends us to be in the world. If others speak of a moral or natural law but reject the Christian account of reality, then they use the same term but speak of something else.

St. Paul and the moral law 27

Concluding reflections Whether or not Christians should make or endorse particular claims about a universal moral law depends, of course, on vastly more than a few New Testament texts. Whatever could be said about such a law, however, could not be said in direct contradiction to these texts without forfeiting—on this point at least—the practice that is Christian reasoning. On the basis of the foregoing exegesis, then, there are two final points worth making about the intersection of the biblical texts with the question of natural law. The first point concerns Christian freedom. The lack of a universal moral law highlights the great freedom Christians have to work with or against—or ignore—any given law or set of laws. Our vision for the habits of our being is given in our theological understanding of reality, and that includes what we make of law(s). We do not, that is, start off discerning the precepts of a universal moral law and note how these precepts fit with Christian convictions about norms for various human behaviors or are supplemented by them. Instead, we begin reasoning Christianly and discern the fit between what we know to be true and what shows up in the world at any given moment as law—whether that law is of the “state” sort, or transnational, or simply the currently prevailing claims of particular cultures and societies about the way human beings are or ought to be in the world (“rights” for example). This means that Christian life is essentially ad hoc when it comes to law; ad hoc is the visionary posture, that is, of the freedom to be in the world as Christians. Christians are not bound by an allegedly universal moral code that turns out, on closer inspection or simply by the revelatory power of the march of time, to be yet one more instance of a particular culture’s convictions, habits, or ideals about human behavior. We are free to reason about law in all its forms.20 The second point concerns the need for wisdom. If under scrutiny many of our dilemmas in the modern world disclose competing accounts of freedom(s), and if Christians claim that we are free vis-à-vis laws that are supposedly related to various understandings of freedom(s), it cannot be overemphasized that what we need to develop is wisdom. To be free without wisdom is to be waywardly and recklessly foolish, in which case freedom is tragically reversed and ad hoc judgments amount to wreckage. If we learn from St. Paul and his reception in the New Testament how to think constructively about law, what we will learn is that to reason well about Christianity and law requires immersion in practices that produce and ingrain the wisdom that is the stuff of Christian prudential judgment and maturity. We should not expect to find a universal moral law that could compel universal acknowledgement or create behavioral norms that could establish the just society for which humans long, somehow overriding the propensity of the human condition to go our own way and worship that which is not God. In the absence of a moral law that could command global assent and obedience, that is, what human societies need most is genuine wisdom. When it comes to law, it is through wise judgments that Christians can contribute to the hopes we share with others for the broadest possible human flourishing.

28  C. Kavin Rowe

Notes 1 Paul nevertheless figures frequently in religious discussions of natural law. See, e.g., Adolphe, Fastiggi, and Vacca. It is important to note that the meaning of the expression “natural law” has also undergone profound change in the modern world. See, inter alia, Hittinger, 1–30. For the purposes of this chapter, I use the terms universal moral law, moral law, and natural law in as rudimentary a sense as possible: they means the basic, normative way we are supposed to be in the world that can be discerned simply by thinking/observing/arguing with others, etc. Legitimate debate could be had about whether natural law and universal moral law mean or refer to the same thing. In my view, if one speaks of a/the moral law, one invokes norms that trade on metaphysical affirmations and commitments; if one speaks of natural law, one also invokes norms that trade on metaphysical affirmations and commitments. Whether the two sets of metaphysical affirmations and commitments are identical or not would vary depending on what exactly was intended by “moral” and “natural.” In short, the words will mean what we use them to mean. 2 On the complicated question of the “Noachide” commandments and whether Jews thought Gentiles were expected to keep certain pre-Mosaic laws, see, inter alia, Bockmuehl, Jewish Law in Gentile Churches, 145–73. 3 The Stoics are actually more complex and would not mean by “nature” what it is frequently taken to mean today. I have written about the meaning of Stoic words elsewhere; see in relation to the topic of this chapter, for example, the section on the words “God and World” in Rowe, One True Life, 226–28. Some scholars, of course, trace natural law back to Plato, but one would need to demonstrate that Plato’s use of “nature” or of “law” or of “reason,” and so on, mean what is meant in any given modern natural law discussion to know that the continuity between the posited point of origin and current debate was real. See the discussion in Crowe, 1–27. 4 There are other passages one could read, of course, but sooner or later these must figure prominently. One could also think automatically of 1 Corinthians 6:1–11 in relation to Gentile courts of law, or Romans 13:1–7 in relation to various forms of government, but there are many others. Richard Cassidy, e.g., focuses on 2 Timothy in “St. Paul: Between the Law of Caesar and the Justice of Christ in Second Timothy,” and Mary Healy on Ephesians 5 in “St. Paul, Ephesians 5, and Same-Sex Marriage”; both essays are in Adolphe, Fastiggi, and Vacca, 1–20, 147–59, respectively. For the commitment to reception history as a hermeneutically illuminating way to understand an earlier writer’s positions or the range of a text’s plausible field of meaning, see Bockmuehl, Seeing the Word. 5 Reading this passage to affirm that the Gentiles do in fact “have some knowledge of what is right and good through the law of creation and through conscience” is such a common mistake that one can pick an example almost at random. I cite Carl Braaten because of his indisputably excellent contributions to theology. It is therefore all the more striking that such a common mistake finds its way into his arguments about natural law. See Braaten, 36. 6 By nature (physei) is meant here “by birth,” i.e., they are not Jewish and thus are not born into the way of life that is Torah. Physei, that is, should not be read with poiein to require the translation “do by nature.” 7 Moreover, it would make little sense to point to the observance of a/the natural law as the move to set up the discussion of Jewish Christian behavior that follows. 8 On the current interpretation and history of discussion of this passage, see especially Gathercole. 9 Moreover, the coordination of sin and will means that even if there were a law to be discovered, we could not unproblematically obey it, as Paul forcefully argues in Romans 7:14–25, for example. The point of discovering a universal law we cannot

St. Paul and the moral law 29 obey makes sense in certain tendencies of Luther’s law/gospel theology, but it is hard to account for otherwise. 10 It is customary in the modern period for New Testament scholars to argue that the Paul of Acts and the Paul of the Epistles should be kept apart. For certain tasks this makes some sense. But I take Bockmuehl’s larger methodological point in Seeing the Word about “reception” to be correct, and apply it here in this way: in an attempt to assess the range of the New Testament’s Paul for the question of a universal moral law, we would do well to examine his immediate reception within the New Testament text that most directly and elaborately speaks to this question. 11 For fuller discussion, see Rowe, World Upside Down, 27–41. 12 Barrett, 850–51. 13 Rowe, World Upside Down, 77. 14 Of course Acts does not portray Paul’s death as the Gospel does that of Jesus. But the reader of Acts knows about Paul’s death and can see the foreshadowing again and again in the way Acts tells about Paul’s mission (in his speech to the Ephesian elders, for example, in Acts 20:17–38). On this point, see especially Talbert, 231. 15 Interestingly, Tertullian, ever the lawyer he was trained to be, argues that the Roman practice here contradicts Roman law (i.e., there is no identifiable crime that goes with the name Christian—as stealing goes with thief, for example—and yet the Christians are treated as criminals and punished as such). This argument is an instance of ad hoc reasoning with the law to criticize its unjust application. See Tertullian’s Apology. 16 On this point, see Schreiner; Westberg, both in Cromartie, 51–76, 103–17, respectively. 17 Such evidence could, of course, be quite complicated in any of its particular instantiations. For example, we might observe that some peoples have the explicitly articulated prohibition against killing and think that this reflects knowledge of God’s law. Paul’s reply would likely move from this theoretical or noetic judgment (epistemology) to the practice (practical reason): but they kill anyway. The critical Pauline test for God’s law is what we could call the regula vitae, that is, whether it shows up in life as the law that is lived. 18 For an example of how “convergences” or ad hoc agreements can be put constructively to work without large-scale moral theories or background notions of universally binding norms, see Engelhardt. 19 Even as others might appear. The point is not that everything common will disappear but that things in common are ad hoc and will shift. Christians should be wisely alert to things in common and make of them practically what we are able to make of them. But we should not be fooled into thinking—to put it in Wittgensteinian terms—that secular grammar and Christian grammar are the rules of the same language. 20 A slightly different way to put the point about freedom is to speak of critical distance. Freedom vis-à-vis human laws always implies a critical distance from any given law. It is this critical distance that is presupposed in the Romans’ early worries about Christian “obstinacy.” The Romans did not of course speak of “critical distance” as the Christian political posture. But it is the fact of that distance—the willingness to insert Christian theological understanding between Roman law and Christian obedience to it—that renders intelligible the Roman mystification at the Christian refusal to worship/sacrifice to the gods/emperor.

Bibliography Adolphe, Jane, Robert L. Fastiggi, and Michael Vacca, eds. St. Paul, the Natural Law, and Contemporary Legal Theory. Lanham, MD: Lexington Books, 2012. Barrett, C.K. Acts. Vol. 2. International Critical Commentary. London: T. & T. Clark, 1998.

30  C. Kavin Rowe Bockmuehl, Markus. Jewish Law in Gentile Churches: Halakhah and the Beginning of Christian Public Ethics. Edinburgh: T & T Clark, 2000. Bockmuehl, Markus. Seeing the Word: Refocusing New Testament Study. Studies in Theological Interpretation. Grand Rapids, MI: Baker Academic, 2006. Braaten, Carl E. “Response to Russell Hittinger.” In Cromartie, A Preserving Grace. Cassidy, Richard. “St. Paul: Between the Law of Caesar and the Justice of Christ in Second Timothy.” In St. Paul, the Natural Law, and Contemporary Legal Theory, edited by Jane Adolphe, Robert L. Fastiggi, and Michael Vacca, 1–20. Lanham, MD: Lexington Books, 2012. Cromartie, Michael, ed. A Preserving Grace: Protestants, Catholics, and Natural Law. Grand Rapids, MI: Eerdmans, 1997. Crowe, Michael Bertram. The Changing Profile of the Natural Law. The Hague: Martinus Nijhoff, 1977. Engelhardt, H. Tristram, Jr. The Foundations of Bioethics. 2nd ed. New York: Oxford University Press, 1996. Gathercole, Simon J. “A Law unto Themselves: The Gentiles in Romans 2.14–15 Revisited.” Journal for the Study of the New Testament 24/3 (2002): 27–49. Hittinger, Russell. “Natural Law and Catholic Moral Theology.” In A Preserving Grace: Protestants, Catholics, and Natural Law, edited by Michael Cromartie, 1–30. Grand Rapids, MI: Eerdmans, 1997. Rowe, C. Kavin. One True Life: The Stoics and Early Christians as Rival Traditions. New Haven, CT: Yale University Press, 2016. Rowe, C. Kavin. World Upside Down: Reading Acts in the Graeco-Roman Age. New York: Oxford University Press, 2009. Schreiner, Susan E. “Calvin’s Use of Natural Law.” In A Preserving Grace: Protestants, Catholics, and Natural Law, edited by Michael Cromartie, 51–76. Grand Rapids, MI: Eerdmans, 1997. Talbert, Charles H. Reading Acts: A Literary and Theological Commentary on the Acts of the Apostles. Reading the New Testament. Macon, GA: Smyth & Helwys Publishing, Inc., 2005. Westberg, Daniel. “The Reformed Tradition and Natural Law.” In A Preserving Grace: Protestants, Catholics, and Natural Law, edited by Michael Cromartie, 103–17. Grand Rapids, MI: Eerdmans, 1997.

2 Augustine and the common good Josef Lössl

Introduction: the state of humanity and the call to transcendence Augustine of Hippo (354–430 ce) lived his entire life within the confines of the Roman Empire,1 which was popularly perceived in his day as extending towards the ends of the earth. Despite this, today’s notion of “globality” would probably have been alien to him, as he was vaguely aware that radically different “worlds” existed beyond these confines. Nevertheless, his experience of a crumbling political and economic system comprising a considerable part of the known world may to some extent be compared to the experience of the West today. He certainly could not have imagined himself to live outside this system. It was his world. Accordingly, as far as jurisprudence was concerned, he could think only in terms of Roman law. He knew that cultures beyond the Roman empire (Persians, Indians, etc.) had other legal traditions, and there were also the concepts of divine and natural law.2 But “real” life was governed by the practice of Roman law. Although its workings were frequently brutal and corrupt,3 it guaranteed order and peace. The alternative was mob justice.4 Augustine’s thinking was conservative in this regard. He was not a political or social reformer who systematically and consistently campaigned for or worked towards structural improvements to government or the legal system.5 As a bishop he was able to offer assistance through church aid—locally but also, as we might say today, nationally and internationally, in communities far away.6 In that sense, he stood for what we might think of today as non-governmental organization (NGO) intervention and civil society (transcending the boundaries of nationalist state interests), but he did not think of these things in modern legal terms. To be sure, he did not expect much of government. For him, the “common good” was not, as it is widely perceived to be today, a set of benefits which society, or individuals in it, could legally claim from the state or from anyone in a position of power such as heads of extended families, magistrates, provincial governors, landlords, military commanders, and similar agents of power.7 Far too many people were inescapably trapped in inhuman conditions, whether they were slaves, women, refugees, immigrants, peasants, or tenant farmers. They had no redress. They could only hope for the good will of those in power to allow them

32  Josef Lössl to live a dignified life. This hope was always at risk, as higher powers could intervene at any time, and one’s benefactor could fall from grace. Even those at the very highest social levels were not exempt. To a large extent the thrill of studying the history of the later Roman Empire lies precisely in exploring the many and varied instances in which functionaries of the state used the political and legal instruments of government to compete with each other, to challenge authorities, to ascend and achieve dominance, sometimes reaching the very top, only to end their careers by being executed, assassinated, or exiled. On the other hand, with regard to those who still had choices and could opt for a life in pursuit of the common good, Augustine had very specific individual advice about how he thought such a life could be realized, within limits, under earthly conditions, not only individually but also in community. To understand the strengths and limitations of Augustine’s thoughts on the common good, of the kind that could inform an emerging Christian concept of global law today, one has to consider his historical context, the extent to which Augustine (with his thoughts) remains trapped in that context, and the extent to which he was nevertheless able to liberate himself from it and transcend it with some theoretical thinking that could still resonate in the present, many centuries later. To be sure, Augustine found the state of affairs in his world an outrage.8 He made a massive theoretical effort—he referred to it as “arduous work”9—at analyzing the root causes of the problem and pointing to solutions. This is his work known to us as The City of God.10 But Augustine was also someone who held a privileged position in that society and culture. He owed much of his stature as a thinker and religious leader to that culture, and if that culture were ever to disappear from the face of the earth, his literary and religious legacy would be lost too. There is therefore a dialectic between Augustine’s distancing himself from this ancient Greco-Roman culture and his transcending it towards a universal Christian vision while at the same time preserving that culture as the only earthly vehicle available to communicate his vision and translate it into a viable theory. This dialectic dominated his life. Born in 354 ce to a Christian mother and a pagan father in a small town of Roman North Africa, he was dedicated to the church as a child (though not baptized). Yet as a boy he received a classical education from a pagan tutor. He became a classical orator and professor of rhetoric, first in Carthage, then in Rome, and finally in the service of the emperor himself in the imperial capital of Milan. Yet again, already as a young adult, he was not satisfied with the intellectual chill of pagan literature but yearned for some spirituality that would also satisfy his heart. He initially found it in the teachings of Manichaeism,11 which offered a gnostic path to purification and salvation without the discipline required by the church. From about 374 to 384 he remained an adherent of Manichaeism before he slowly edged, under the influence of Neoplatonism, towards a conversion to orthodox Christianity. In 387 he was baptized by bishop Ambrose of Milan. After that, Augustine went back to Africa, assumed an ascetic life style, and became a monk, a priest and, in 396, a bishop. As bishop in the Christianized Roman Empire, he had to fulfill certain public duties, for

Augustine and the common good 33 example sitting as judge in court. This work brought him in daily contact with Roman law in action.12 The tension between his spiritual duties as a bishop and monk and his obligations to earthly institutions such as state and the institutional apparatus of the church thus remained to the end of his life. The main themes of his thought on the common good can be seen arising from the various stages of his biography. His classical education enabled him to engage with the main philosophical and political theories, above all those of Cicero, Plotinus, and Porphyry. His life in a monastic community, which he founded and for which he wrote a set of rules, stands for his attempt to put into practice, in however limited a way, the theories that emerge from his analysis of human nature and society. His work as a bishop, finally, transcended his scope as an individual and member of a monastic community towards what one might call civic society, and to humanity as a whole.

Major themes in Augustine’s thought Crisis and failure of the ancient civic project: the example of Rome Eugene TeSelle once observed that Augustine, rather unbiblically, spoke of the “city” (rather than the “kingdom” or “reign”) of God.13 Consequently, the inhabitants of that city would be “citizens,” not “God’s people” (in the sense in which, for example, the book of Exodus uses the term).14 Interestingly, TeSelle adds, Augustine thought of the city not primarily in physical but in constitutional terms. He spoke of civitas, not urbs. He meant the community, not the built-up area. His concept of citizen therefore was civic, not urban, and focused on duties, not amenities. Unlike the book of Revelation, Augustine offers no description of the build of the city. The concept of Christians as citizens reveals an indebtedness to classical political theory, an indebtedness that is shared by St. Paul’s reflections on individual and collective interests,15 though not by the Synoptic Gospels. Warren Carter argued many years ago that the apocalyptic political ideas expressed, for example, in Matthew (chapters 24 and 25) were ironically self-contradictory: the Gospel depicted a future in which Roman power would be crushed, and an “empire of God” would impose itself, violently and by force (24:27–31).16 Augustine offers a subtler, more sophisticated reflection on the relationship between the classical and Hellenistic civic traditions, on one hand, and the social and political hopes of the Christians on the other, although his conclusion is no less radical and rests on the same foundations: ultimately, for Augustine, no earthly city, of whatever culture, can fulfill its promise of delivering “true justice” (and thereby the common good), for the simple reason that the rule of God is absent from it.17 We will find out in the next section what Augustine means by this. To drive home his point, Augustine uses an element of classical Roman discourse, the idea that the city had long been in crisis. The populism triggered by the socialist reforms proposed by the Gracchi had led to riots and mob justice.18 But the fact that reforms had been deemed necessary at all showed that the “cause

34  Josef Lössl of the people,” the res populi or res publica, the public or common good, was not served in the city. Rather, particular interests prevailed. Justice was not served. Thus, according to Augustine the republic or common good was already de facto nonexistent even at that early stage in the demise of the Roman Republic, a century before Caesar.19 At the same time, however, Augustine continues, the suppression of traditional values (free association, equality, etc.) is not necessarily a denial of justice: if domination (of Rome over its provinces, master over slave, soul over body, God over the universe) brings about order and peace, it (rather than the old and spent values of freedom and equality) will deliver the common good.20 The common good had been defined by earlier thinkers, particularly Aristotle, as the benefits or interests of all members of the community, common and individual: it could be attained only through a common effort by all, while it then would benefit each individual.21 In antiquity, unlike in modern discourse, where the pursuit of private interest is seen at least as contributing to the common good, this principle of common effort was never called in doubt. The question was not whether the common good should be pursued, but what the common good was and how it should be pursued.22 Whether a particular constitution worked or not could be measured by the extent to which it delivered the common good. When the Roman constitution failed, as was acknowledged by writers such as Cicero or Sallust,23 imperial domination offered a solution. Yet domination, as it was adopted in the empire, was not meant to be an atrocious dictatorship that did away with all the old institutions. Rather, it was intended as an adjustment to the constitution, an introduction of a new office or constitutional element, the princeps, or “first among equals” in the Senate, who would “help” the Senate make decisions, wield its power more effectively, and thus dispense justice and bring about the common good more “economically.”24 Augustine, of course, did not think that the Roman Empire (as a manifestation of the earthly city) was really governed by true justice or ruled by God, even under Christian emperors.25 He uses the concept of imperial rule, as he finds it in Cicero’s Republic, as an analogy for divine rule in his reflections on good and evil, truth, justice, power, and ultimate fulfillment, all topics developed in The City of God, book 19. “Analogy” here also means that for Augustine, although earthly power is a reflection of divine power and therefore has to be respected by Christians, it is also far more unlike divine power than like it and must therefore not be mistaken for the latter. Earthly power is not “the real thing.” One always has to take into account that when reflecting on the earthly state, Augustine is not engaging in political philosophy. His interest is ultimately not in the Roman constitution, or how the Roman or indeed any political system on earth could be improved for the benefit of its people, let alone humanity. Rather, his reflections aim beyond any political notion of the common good (as something that could be realized in a this-worldly social entity) and explore instead the anthropological, theological, and in particular the eschatological dimensions of the concept. However, by doing this, as we shall hopefully see in the next two sections, he will indirectly say a lot about which kind of politics can be favorable to the common good and which kind is in all likelihood detrimental.

Augustine and the common good 35

Natural law and ius gentium: new meanings for existing concepts Let us first look at aspects of Augustine’s thought that suggest that he might stand for a kind of politics that is more favorable to the common good, especially suggestions for better ways of legal living, or kinds of living that accord with divine, natural, and biblical law. To be sure, Augustine does not artificially distinguish between such different types of law.26 For him, the natural law can be each of these kinds of law or all of them taken together. It can be the eternal law of God as manifest in the order of nature—that is, the actual workings of the natural world and the natural universe—or God’s will transcending that order—that is, the law by which “God rules all creation.”27 It can also be the law corresponding to human reason, by means of which human beings can gain insight into the natural order.28 Natural law is, as such, implanted in the conscience (“inscribed in the hearts of the godly,” Romans 2:15)29 and therefore eternal and unchangeable, unlike human-made law, which is temporal and changeable;30 but the authority of natural law is grounded not in human reason but in its being inserted into creation from the beginning.31 For Augustine, therefore, unlike for the Enlightenment, human beings have no absolute lordship over creation just because they possess rationality. Rather, their rationality is something that holds them responsible for living according to a higher, divinely instituted order, a natural law32 that works to the good of all creation, from the level of inanimate objects and the simplest forms of organic life to that of the highest life forms, where creation becomes conscious of itself, such as human beings. Furthermore, since natural law is grounded in creation, it is not, in effect, dependent on any particular religious tradition but applies universally to all human beings. The “law inscribed in the hearts of the godly” is explicitly a law given (by God/nature) to all those who have not been given the law of Moses. They are called upon by that law “to do ‘by nature’ what is required by the law [of Moses]” (Romans 2:14). On the other hand, this particular formulation (Romans 2:14–16) derives from a particular tradition and its authority from the authority of that tradition. Romans 2:14–16 is not a Stoic principle as far as Augustine is concerned; it is biblical, and it implies a specific Christian (Pauline) message, namely that neither those who have been given the law of Moses nor those who have had God’s law inscribed in their hearts are able to fulfill the demands of that law without divine assistance (grace). From Augustine’s perspective, therefore, this principle is incomparably more authoritative and capable of delivering true justice than the traditional Roman consensus iuris.33 It is also more universal and offers a new perspective to the traditional concept of ius gentium or law of the nations, which in traditional Roman jurisprudence had in certain areas been found contradicting natural law, for example in the case of slavery: although it was accepted that all human beings were born free according to natural law, slavery was seen as a legally justifiable institution on grounds of its existence in practically all jurisdictions of the time. It was a matter of ius gentium.34 The change in perspective which Augustine offered was not, in the first instance, one of political or social improvement. He did not campaign

36  Josef Lössl to free all slaves or to outlaw slavery, which would have been an impossible goal. Rather, he took a step back and asked what the prevailing conditions said about the state of humanity—that is, of human nature, or what is common to all human beings, slaves and non-slaves alike—before thinking about possible changes for the better.35 As noted earlier, as a political thinker and campaigner Augustine does not think much outside of his immediate political context, the later Roman Empire. He campaigns for individual improvements, small steps, not for fundamental reform, let alone revolution. Where his thought does offer new perspectives, however (and this does have implications for political thought, although it is not primarily “politological”), is in the radical analysis of the principal “human condition in this saeculum.”36

Common vs. particular/public vs. private: wider (and deeper) implications Augustine deals with the notion of “the common” long before he enters the realm of political thought.37 He thinks of the concept in philosophical terms, resorting also to synonyms such as “universal,” “social,” and “public” as opposed to “partial,” “private,” “proper” (proprium). He also deals with the opposition of the ideal (immaterial) and the material (physical). For Augustine the Platonist, “the common” or “universal” was real only in the noetic world.38 The common good, therefore—the republic (res publica) in the true sense, the perfect Christian fellowship as depicted in Acts 4:32–35, the perfect charity (caritas) as described in 1 Corinthians 13:5—was an ideal; that is, it was real in the world of ideas. The difference between a common good in this sense and a material good (such as nutrition, wealth, the air we breathe, etc.) is that the common goods (in Augustine’s sense) are inexhaustible. Material goods are finite. When material goods are appropriated (privatized), they are converted into goods serving particular interests.39 Some people accumulate them and then possess them in abundance, while other people lack them. This uneven distribution of material goods leads to inequality, injustice, insecurity, tensions, and conflict. Spiritual goods, in contrast, are freely available to all and can be enjoyed without limits, by way of the spiritual senses.40 There need not be any competition for them, and there is no danger that they might get lost. Augustine argues that truth, also known as wisdom, is a common good in this sense. In On Free Will, book 2, he elaborates: No one is secure in enjoying goods that can be lost against one’s will. But no one can lose truth and wisdom against one’s will. . . . What we called separation from truth and wisdom is really just a perverse will. . . . No one tears off a piece [from truth] as his own food; you drink nothing from it that I cannot also drink. For what you gain from having it does not become your private property. . . . It is always wholly available to everyone.41 Augustine’s point here is not to advocate that human beings should live off plain air without concern for material goods, but to set the right priorities. In order for

Augustine and the common good 37 material goods to be distributed more justly and equitably, higher goods (sense of truth, wisdom, justice, etc.) would need to be held in higher esteem, according to their nature as higher goods. However, human beings miserably fail in this regard. A certain perversion of the will, an excessive sense of their own pre-eminence (amor excellentiae propriae), makes them anxious always to protect what they perceive to be their own, individual, particular interest, whatever the cost, and persuades them to abandon the perspective of truth and wisdom and to scramble for the finite resources of the inferior, worldly goods.42 People consider their own individual selves to be of such paramount importance that they would rather put the common good in the widest sense of the word—the integrity of the entire world, of creation itself—at risk of descending into strife, war, injustice, inequality, destruction. Augustine identifies this primeval sin as pride (superbia). The sinful act consists in a perversion of the will, away from holding on to an immutable and universal (commonly held) good towards an inferior, limited, external, and private resource.43 This primeval act of privatization, so to speak, leads to the ruin of humankind. It is entirely willful. No external condition compels human beings to act like this: “No will wills unwillingly,” Augustine says in On Free Will 2.37. The pursuit of the particularist advantage, according to Augustine elsewhere, is a completely false economy.44 The perverse and harebrained logic behind this pursuit seems to be the idea that the common good has a surplus value which can be exploited for private ends when it is appropriated and converted into a private property. Harebrained indeed, says Augustine, for how could something that is already universal increase in value by being made into something particular? Rather, what happens is that it will decrease in value.45 Thus, avarice results not in an increase of wealth but in poverty: what is desired always exceeds what can satisfy the desire.46 What is growing is merely the desire, whose fulfillment becomes ever more elusive. The result is despair. These findings point back to the basic idea behind the concept of The City of God. In this work, Augustine sets out two fundamental ways of looking at reality, one leading to salvation, the other to perdition. The one leading to perdition has at its root love of self, pride, avarice, the desire to make what is not private (but common, universal) into private property and thereby diminish it. The way leading to salvation does not seek its own private advantage; it does not desire what it does not own; it takes delight in the common good.47 While the earthly city adheres to the love of self, of having one’s own will, and pursues the private interest, it is inescapably caught up in strife and war. By contrast, the heavenly city, devoted to love for the common good, which is eternal and immutable, gradually moves from being many individuals towards becoming one heart and soul.48 Now Augustine concedes that there was indeed much public-mindedness among the ancient Romans,49 even sacrificial love for their fatherland, heroic acts committed in the service of the people. However, he concludes, all these acts were ultimately committed out of love for a particular interest, namely the domination of Rome over all the other nations on earth. This is why the virtues of the Roman heroes are ultimately dazzling vices. What the early Christians tried to

38  Josef Lössl achieve when they had everything in common and shared according to individual need (Acts 2:44; 4:32) was something different: “They,” he concludes, “did this to attain the fellowship of the angels.”50 It is this model of early Christian “communism” as depicted in Acts which Augustine sees as a practical Christian way of living the pursuit of the common good. This is also suggested by the way in which he elaborates on some of the details in his treatise The Work of Monks. We will look at some of these details in the next section.

The pursuit of the common good in Christian practice: The Work of Monks Augustine did not see a global earthly institution which in his view could have claimed to represent the City of God or the Heavenly Jerusalem. In his view, the City of God was so unlike anything on earth that it was futile to draw comparisons. For example, in the City of God there would be no more civic concerns. God would be all in all.51 Earthly institutions beyond the humblest of dimensions, however, are inevitably preoccupied with their self-aggrandizement—not just the Roman Empire but also, one may assume, ecclesiastical institutions.52 Notwithstanding this problem, Augustine developed ideas about how the common good could be served in the individual and communal Christian life. But in doing so, he was thinking very much on a local rather than a global level. Around the year 400 ce, five years after he had been appointed bishop of Hippo, he wrote a series of treatises which were triggered by controversies but contain a series of thoughts that are also universally relevant. Among these are The Good of Marriage and The Work of Monks. Although the work on marriage was written later, I will briefly examine it first, because for Augustine, while marriage has potential for realizing the common good on earth, its potential is more limited than that of the monastic life.53 Augustine begins by emphasizing the benefits of marriage on social grounds: it was created by God as a social institution (sociale quiddam).54 Through conjugal, parental, and filial love, marriage has the potential of maximizing social goods. It is a societas amicalis, an association based on loving friendship55 between the sexes and different generations and families. It spreads a veil of dignity (dignitas) over an otherwise problematic aspect of human life (sexuality)56 and supports social virtues such as loyalty and trust (fides).57 It appears, therefore, that for Augustine the “good (bonum) of marriage” played a very important part in the realization of the common good,58 although the term as such does not occur in The Good of Marriage. However, Augustine refrains from recommending marriage as a preferred option for the pursuit of the common good, and he cites for this a theological reason. He argues that in the Old Testament (among the ancient Israelites), marriage (which includes the wish to have children) was spiritually motivated: the aim there was building up the people of God, not carnal desire.59 After Christ, however, this purpose no longer applies. In the new dispensation, Augustine concludes, “spiritual perfection is to be sought in celibacy, not in marriage.”60

Augustine and the common good 39 This difference between the Old and the New Testaments is not merely a formal one for Augustine. Elsewhere he recalls (also from personal experience) how marriage can hinder intellectual pursuits, which, as we have seen earlier, he rates more highly in terms of the common good than the goods of marriage.61 On the other hand, while in many of his works Augustine seems to single out sexual activity as the aspect of marriage that poses the main obstacle to higher (spiritual and intellectual) goods,62 celibacy (that is, sexual abstinence) alone is not sufficient for fruitfully pursuing the monastic life, which in The Work of Monks he recommends as the life most conducive to the common good. As noted in the previous section, the key vice that causes the primeval sin is not sexual desire but pride. Consequently, the key virtue that helps to overcome sin and to realize the common good (fully in the City of God, and partially here on earth) has to be humility. All other virtues follow from that. With this idea in mind, Augustine wrote The Work of Monks.63 Again, as in the case of The Good of Marriage, the treatise was an intervention in a recent controversy. In and around Carthage, many monks had taken to a particular ascetic lifestyle, originating from Syria,64 which made them reject monastic discipline. In particular, they refused to engage in manual labor, which was partially meant as an exercise to practice humility (in antiquity, manual labor was associated with low social status) but also had the practical purpose of earning the monks their keep. Instead, they neglected their outward appearance, refused to live in regimented communities, and begged for food and money in public places. They justified their behavior with biblical references—for instance, the passage in the Gospel of Matthew (6:25–34) that says one must not worry about the next day but should learn from the birds in the sky and the flowers in the field.65 Augustine refutes these arguments by referring to what he calls “apostolic discipline” (apostolica disciplina),66 that is, the injunction formulated by Paul in 2 Thessalonians 3:10: “If anyone will not work, let him not eat!” But he goes further: following the example and the rules (praecepta) set up by the Apostle, he argues that the monks ought to have compassion for the weak, abandon the love of private wealth, labor with their hands in a common effort, and obey their superiors without murmur.67 Consistent with the evidence cited earlier, this exhortation highlights the major virtues necessary for the pursuit of the higher common goods: charity (the highest form of love), rejection of greed and embrace of poverty, humility (voluntary acceptance of the shame of physical labor), and obedience to one’s superiors (that is, acceptance of existing social-political power structures). The argument Augustine makes in advocating this way of life, especially in The Work of Monks 25.32, is intriguing. Considering that the monastic life does not seem very attractive at all at first glance, one might expect him to invoke a Kantian-style categorical imperative (all duty and no reward); or he might have held out the prospect of a deferred reward in the afterlife for those who embark on the monastic way. But he does neither. Rather, what he tries to do is to convey to his audience that a regular monastic life, despite its physical and mental hardships, is an attractive option, a life with substantial rewards already on earth. His

40  Josef Lössl rhetoric in The Work of Monks is more like that of a political campaigner than an eschatological preacher. To explain precisely what he means by the benefits he holds out to his audience, he cites not only biblical (New Testament) sources but also sources related to classical Roman political thought,68 which invoke the concept of the common good (res communis) and the communal spirit (sensus communis) that manifested itself in the heroes of the republic. In the following passage from The Work of Monks he compares a particularly striking example of this ancient Roman public-mindedness with his own ideal of the City of God, which he believes can be at least partially realized on earth in the monastic way of life: For if, as their own writers regularly proclaim in most splendid eloquence, even the ancient princes of this earthly republic (huius terrenae rei publicae) put the common good of the general public of their city (rem commune universi populi suae civitatis) to such a degree before their private interests (privatis suis rebus . . . anteponebant) that a certain one of them, who was honored with a triumph after he had defeated Africa, would not have been able to provide his daughter with a dowry, had he not, by decree of the Senate, received financial support from the public purse (ex senatus consulto de publico dotaretur), how much more passion (animus) for his republic (in re publica sua) ought one to have who is a citizen of that eternal city (civis aeternae illius civitatis), the heavenly Jerusalem? Ought not he to have that which he earns from the labor of his own hands in common with his brother, and should not that which he lacks be supplied from the common store?69 The reason why Augustine has to cite classical references is that his audience is classically educated and still subscribes to a code of classical social ethics according to which physical labor is shameful. At least some of his addressees therefore must have come from the more respectable (honestiores) parts of society. They complain that it is no use for anyone if someone who “converts” to the spiritual life and struggle ([qui] ad hanc spiritalem vitam militiamque convertitur) and becomes an (officially recognized) ascetic, a “servant of God” (servus Dei), is reduced to shameful physical labor like an ordinary laborer (opifex). Before Augustine retorts with the previously cited classical example, he references two New Testament passages: (a) the parable of the rich young man whom Jesus tells that if he wants to be perfect he ought to sell all he possesses, give the proceeds to the poor, and then follow him (Matthew 19:21); and (b) St. Paul’s exhortation to his audience in Philippians 2:16 that they should hold on to his teaching that he had not “run” and “labored” in vain (non in vacuum cucurri nec in vacuum laboravi). The keyword in the second passage is laboravi, which Augustine understands to be physical labor, although Paul was here probably referring to his preaching. But Augustine needs this second reference because passage (a) refers not to work but only to selling one’s possessions and distributing the proceeds among the poor.

Augustine and the common good 41 Augustine continues that these highly authoritative (tanta auctoritas) teachings ought to motivate his audience to relinquish their original sources of income and resort instead to working with their own hands (relinquendi pristinas facultates et manibus operandi). With regard to those original sources of income, his audience is divided into two groups: (a) rich people (divites), who could previously live off the proceeds of their wealth and enjoy a life of leisure (otium); and (b) people who converted to the monastic life from a state of poverty (ex paupertate), in which they had already relied on physical labor to “augment their meager private possessions in pursuit of their own interest” (augendae quantulaecumque rei privatae . . . quaerens quae sua sunt).70 Both, Augustine argues, should now embrace physical work, each with the benefit of their own background. The rich, if not impeded by infirmity (nulla infirmitate corporis inpeditur), may taste the savor of Christ (sapor Christi) and how they are healed of the swelling of the old pride (prioris superbiae tumor sanetur), having gotten rid of the excess baggage of their old lives, which had poisoned their minds, and may instead procure the little (modica) that is naturally necessary for their present life with the work of a humble laborer (opificis humilitas).71 The poor, in turn, should learn to use physical labor not in pursuit of their own private interest but for that which belongs to Christ; that is, they should hand themselves over to charity (caritas) and lead a common life (communis vita) with those (in societate eorum) who have one soul and one heart in God, so that no one calls anything his or her private property, but “all have everything in common” (Acts 4:32). The references to caritas and the being of one soul and one heart in God indicate that Augustine is here thinking of his concept of the City of God, nearly two decades before he wrote the work of that title.72 He does not believe that this state of being can ever be fully realized in this life. However, if any way of life can come close to it, it is the monastic life. The reference to the mythical communism of the earliest Christian community in Jerusalem in Acts underlines this. Augustine never would have advocated the abolition of private property in wider society, but he thought he could realistically propose it for those who voluntarily retreated from that world to “live in fellowship with the angels.”73 Similarly, the equal treatment of honestiores and humiliores, those who were rich (divites) and of higher social status who did not have to work manually but engaged in otium, and those who were poor (pauperes) and reliant on the negotium of having to earn their living as opifices, through manual labor, could happen only—if at all—in the monastic life. Yet the fact that Augustine had to invoke ancient (pagan!) Roman ethics in order to counter the argument that those from higher social backgrounds should not work manually, or even that those who had become “holy monks” or servi Dei had thereby been elevated to such higher social status and were therefore exempt from manual labor, shows how limited the possibilities were in Augustine’s lifetime to implement his theories, even in relatively contained and churchcontrolled contexts. At the same time, it also illustrates how original and radical Augustine’s teaching on the common good potentially—and actually—was.

42  Josef Lössl

Conclusion: towards an Augustinian civic ethics for the twenty-first century These last points relativize the view that in his ethical teaching, Augustine was merely a “spokesperson for the social and political establishment.”74 It is true that he was not a social and political reformer. He had a conservative view of the established order and accepted worldly authority in principle as established by God. However, he also knew that the present state of affairs was the result of a long transition from a civic order that offered greater individual liberties and was established to serve the common good, to a more autocratic order under the empire, which took over when the old order failed to meet its purpose. With reference to this failure, he questioned the idealized view of a more libertarian and common-minded Roman past, but he also subscribed to this view himself, drawing analogies between the high standards of social ethics held by ancient Romans and the values of Christians who were drawn to a life of perfection.75 To understand Augustine, one also has to consider that his thought is grounded in a metaphysics in which the common good is essentially a spiritual and intellectual reality. The earthly life falls short of this reality because of the Fall, the attempt (on the part of the first angel and the first man) to render the common good (a gift from God shared by all) into a private property withheld from others. The result of that primeval evil act was corruption, leading (in the social sphere) to poverty, inequality, injustice, strife between the different strata of society, and social and political decline generally. Augustine sees this at work in the “secular” world around him. Despite his social conservatism, he has no faith in earthly institutions. He considers them corrupt and ultimately bound to fail. This is why his call to a more equal society, even to a form of spiritually grounded “communism,”76 has to be taken seriously. It is not just a form of pious rhetoric but a call to action with a political dimension. Although his idea of the monastic life that would breach class boundaries, provide social security, and come close to realizing the ideal of the common good on earth would be implemented only in limited contexts, and even then not without occasional resistance, it inspired future generations.77 At a more fundamental level, its guiding concepts may still prove useful for civic ethics in the global twenty-first century as well.78 For more than a century now, the question of the extent to which this last sentence can hold true has been discussed against the background of two different perspectives in reading Augustine, one represented by Adolph von Harnack, the other by Ernst Troeltsch. While Harnack tended to see in Augustine an early medieval thinker, a mystic, and a theocentrist, Troeltsch tended to emphasize his late ancient identity and the fact that his thought was strongly influenced by ancient philosophical traditions and therefore tendentially more secular and humanist than it is often given credit for.79 Some of the arguments that we have seen in this chapter certainly point toward Troeltsch’s view. Engaging in theological analysis regarding the human condition for Augustine did not exclude social criticism and concrete demands for improvements in specific cases. How reasonable would it be to have expected more from one individual? Augustine lived in a world in which slavery and human trafficking thrived and

Augustine and the common good 43 dynastic politics led to strings of civil wars, internal strife, oppression and religious persecution, immiseration of large swaths of the population, hunger, poverty, and starvation. There was no less reason to despair of human rationality in the sphere of politics and the economy in Augustine’s time than there is today. Yes, “civic virtue,” when displayed by the super-rich, could be (and was in many cases) a sham, but the genuine article also existed and could (and ought to) be practiced, as Augustine points out. The fact that slavery and terrible abuse were justified by some on grounds of the ius gentium could be taken as a lesson that no earthly society could claim for itself moral superiority over any other. True justice was to be found only in the heavenly city, the City of God.80 And yet, for Augustine the heavenly city is not suspended in an inaccessible vacuum, but the path leading to it starts here and now. An Augustinian “ethics of citizenship” (Gregory) may be able to provide a roadmap towards achieving it by (a) anchoring reflection on human affairs in some foundational theological thinking; (b) viewing the human being as a communal animal rather than an isolated, particularist, and self-interested individual; (c) aiming at the common good as the good that is in the most appropriate sense “human”; (d) discovering asceticism as a socioeconomic technique most appropriate for dealing with the limited material resources on earth and thereby maximizing the common good; and (e) converting material into spiritual and intellectual expectations or desires and discovering that the common good, in the true sense, can be only an immaterial good.81 All of these points have attracted fundamental criticism in modern discourse. Many find the proposal of a theological grounding of the theory of the common good unacceptable, even more so since Augustine’s theological anthropology depicts humanity within a framework of divine love vs. human sin. Even worse, Augustine’s concept of divine love has in this context sometimes been dismissed as outright monstrous, a “logic of terror,” since it seems to leave no room for meaningful human action and literally disposes of human beings by divine whim, by saving some and eternally damning others.82 These aspects of Augustine’s thought are undeniable and resist attempts at making them compatible with his thought as a whole—for example, by qualifying love as “risky,” “tough,” “radical,” or “transcending.” Still, being fixated on flaws to the detriment of the rest of his thought is counterproductive and neglects Augustine’s Troeltschian, lateancient, unsentimental, realistic, and rationalist side. Whenever Augustine uses the Latin equivalents of the English word “love” (caritas, amor, dilectio, etc.), he thinks in terms of ontology and psychology, the construction of the human being as communal, with emotions and directed intentions (affectiones et intentiones). For Augustine, each human being is designed to live for something concrete, to fulfill her very own destiny. Framing this anthropology (under the influence of Plato) in a metaphysical context—that is, placing human love (of one’s fellow human being(s)) within a framework of God’s love for humanity—need not mean disenfranchising or diminishing humanity or exposing humanity to God’s whims. Rather, it could also be understood as a safeguard against the danger of idolizing humanity, a “safety feature” of Augustinian humanism that ensures that by being loved for

44  Josef Lössl God’s sake, the loved one is loved for her own sake rather than for the pursuit of self on the part of the one who loves.83 By remaining philosophical and theological in its development of both spiritual and sociopolitical ideas, Augustinian humanism remains grounded in reality, as the theory of labor in The Work of Monks and also the thoughts on marriage amply illustrate. Askesis (disciplina), the way of life of monks and nuns, is a sociocultural practice that enables human beings to keep on pursuing the common good both in affluent conditions and in situations where resources are scarce. The sharing of resources in families, too, is conducive to the common good. Practicing such ways of life does not amount to tokenism in a seemingly hopelessly corrupt world.84 The (earthly) goods which such ways undoubtedly produce are real goods, not “fake” goods. If such life forms radiate into a wider society, real improvements can and will happen on a larger scale too. Of course, no everlasting success will ever be achieved on an earthly level. What is happening in the earthly city is limited in time and space. Lasting goodness can be enjoyed only in the civitas Dei. Still, a recognition that earthly goods are underpinned by higher goods—for instance, that working for the common good may result not only in more and better food and clothing but also in the accumulation of what today is often called social capital (including friendship and love)—creates the living conditions of the City of God already on earth, admittedly to a limited degree, but no less real for that.

Notes 1 The classic modern biography of Augustine is still Brown, Augustine of Hippo; among the more recent biographies see Fox. 2 See Ducot; Marafioti and Ducot, 931–54; see also below in the next section. 3 As Augustine himself had to experience bitterly, when a high-ranking friend, the comes Marcellinus, to whom he had dedicated The City of God, was arbitrarily executed as a consequence of court intrigues in 412; see Drecoll, 1160–65. For wider evidence of state brutality (coercion, persecution, etc.) see Shaw, passim. 4 Thus O’Daly, 3.24. 5 However, I would not go as far as Ralph Mathisen, who concludes that Augustine “was a most effective spokesperson for the social and political establishment;” see Mathisen, 806. Some aspects of Augustine’s political thought, as we shall hopefully see below, were potentially deeply subversive to the dominant strands of society in his day. 6 For a broad understanding of church aid in Augustine’s time, see Brown, Through the Eye of a Needle, passim and especially 322–38. 7 For a recent example of such an understanding of the common good, see Reich. For previous studies of Augustine’s understanding of the concept, see Canning, 219–22. 8 See, e.g., City of God 1 praef. his reference to the earthly state (civitas terrena, by which he means not only but also the Roman Empire), which he has no choice but to inhabit, as constantly seeking to enslave people, while it is itself enslaved by lust for domination (quae cum dominari adpetit, etsi populi serviant, ipsa ei dominandi libido dominatur). 9 Ibid., magnum opus et arduum. 10 For a good introduction to this work, see still O’Daly.

Augustine and the common good 45 1 See for this BeDuhn. 1 12 For a recent study of this aspect of his life, see Doyle. 13 TeSelle, “The Civic Vision in Augustine’s City of God.” To be sure, Augustine did speak of the “reign of God,” namely within the “City of God” (City of God 19.24). 14 See for this Assmann, 223–34. 15 See for this Chang; TeSelle, “The Civic Vision in Augustine’s City of God,” 276, too, assumes Pauline influence on Augustine in this regard. 16 Carter, 176. 17 City of God, 19.24. 18 City of God, 3.24. Even today, the period of the Gracchi is still seen as marking the beginning of the end of the Roman republic; see, e.g., Watts, 45–118. 19 City of God, 2.21; 3.21–23. A sense among people that justice (economic, social, juridical) is no longer served by the public system is still seen as one of the root causes for the total breakdown of social order, as happened, for example, on the occasion of the riots engulfing several cities in the United Kingdom around August 9, 2011; see Newburn. 20 City of God, 2.21 with reference to Cicero, Republic, 2.42ff., 3.5. 21 Cf. Aristotle, Politics, 3.6–7.12. 22 See Jehne, 24–25. 23 See for this Knopf. 24 Meaning more “distributively” and “equitably,” in tune with and for the benefit of the general public. Considering the actual amount of power held by the princeps (who was called imperator for a good reason) and the damage to the common good caused by the abuse of this power, the arrangement under the Principate may have been a cruel pretense; thus famously Syme. But it was (admittedly) nevertheless remarkably successful and enduring despite being in a state of permanent crisis and transformation. 25 For Augustine, the Christian emperors had not made a fundamental structural difference to the empire (City of God, 5.24–26). Some of them seem to have been blessed by God as individuals, which also had a positive effect on their reign and resulted in benefits for the people. But that was all. A persecutor such as Julian the Apostate could reemerge at any time and reverse the situation (18.52). 26 See for what follows Dougherty. 27 Ibid., 583; Against Faustus, 22.27; 30.33; Sermon, 81.2; Diverse questions, 53.2; Quantity of the Soul, 36.80. Typically, for Augustine, God, by virtue of divine will, is not bound by the law which God created, but can, and indeed does, override it; this is not unnatural but supernatural; see City of God, 21.8. 28 Letter, 157.3.15; City of God, 11.27. 29 Confessions, 2.4.9; On the Trinity, 12.15.24–25; see also Lössl, “How ‘Bad’ Is Augustine’s ‘Bad Conscience?’ ” 30 Confessions, 3.7.13; On the Trinity, 14.15.21; Letter, 138.1.4, 8; Diverse Questions, 31.1. 31 On Christian Doctrine, 1.26.27; On the Literal Interpretation of Genesis, 9.17.32. 32 See Dougherty, 583 for the expression summa ratio with reference to On Free Will, 1.6.14–15 and On True Religion, 31.58. 33 See Dodaro, 14. 34 Harper, 213: “Slavery belonged to the ius gentium.” 35 Note in this context Retractions, 1.8.2: “It is one thing to inquire into the source of evil and another to inquire how one can return to his original good or reach one that is greater.” To be sure, in the case of slavery as well as in other cases (capital punishment, social care, economic injustice) Augustine did offer very concrete and compelling ideas for improvement; see Gregory, 54; against Harper, 213,

46  Josef Lössl who seems to suggest that church leaders were resigned to the prevailing state of affairs. 36 Harper, 213. 37 See for this also Madec, “Commune-proprium.” 38 Cf. Plotinus, Ennead, 6.4–5; Porphyry, Sentence, 40, as reflected, for example, in The Immortality of the Soul, 6, or Soliloquies, 2.22 (something is “in the mind” even before I think of it). 39 On Free Will, 2.19. 40 Confessions, 10.8. 41 On Free Will, 2.37. 42 On the Literal Interpretation of Genesis, 11.14.18. 43 On Free Will, 2.53. 44 On the Trinity, 12.14. 45 Ibid. A similar idea is expressed by Plotinus, Ennead, 6.5.12: Attempts to increase the “all” by adding a particular (“something”) will lead to diminution; for what the particular adds to the all is negativity. The problematic nature of privatizing public goods and concerns (adding a private interest to the common interest) has also been recognized in economics including for the sphere of social media, e.g., Facebook, where “public networks” are in reality devices that generate profit for private companies, sometimes with devastating consequences for their users; see Mazzucato, 249–59; Zuboff, 446–54, especially 449. Zuboff’s analysis of surveillance capitalism has generally a very Augustinian ring; see, e.g., pp. 26–27 on the weakness of human nature. 46 Again, On the Trinity, 12.14 referring to 1 Timothy 6:10. One could almost replace the term “avarice” with “addiction.” 47 On the Literal Interpretation of Genesis, 11.15.19–20; City of God, 14.28. 48 City of God, 15.3; 15.14. 49 See City of God, 5.18 with a multitude of examples. 50 City of God, 5.18. 51 Enarration in Psalm, 105.34. 52 This is not to say that the institutional ecclesia could not claim for itself truth and demand allegiance in Augustine’s view (similar to the way any earthly authority could), but one could not expect from it visible and palpable perfection here on earth. For Augustine, the church’s perfection was “mystical.” It was only real insofar as the church represented aspects of the City of God. This put Augustine at odds with groups such as the Donatists, who claimed that their members were perfect by definition, that is, by virtue of having been baptized into their church, which was by definition perfect; or the Pelagians, for whom the church’s perfection was visible in the ascetic perfection of at least some of its members. Todd Breyfogle writes on this: “Augustine’s theological and ecclesiological contestations with the Donatists and Pelagians are also political in that both sects represented, for Augustine, an impatience with the Christian’s pilgrim status and with the mystical character of the Church.” Breyfogle, 522. 53 Augustine wrote The Good of Marriage in a context of controversy. A Roman monk, Jovinian, had put forward the argument that marriage and celibacy were equally meritorious forms of the Christian life. To this Jerome responded with a series of polemical letters (48–50) which seemed to disparage married life in favor of monastic celibacy. By focusing on the social benefits (as well as limitations) of marriage rather than on sexual ethics (abstinence vs. concupiscence) Augustine (in The Good of Marriage) put forward a moderate position; for a comprehensive account see Hunter, Marriage, Celibacy and Heresy in Ancient Christianity; see also Hunter, “Bono coniugali, De,” 110–11. 54 The Good of Marriage, 1.1. 55 Ibid., 9.9.

Augustine and the common good 47 6 Ibid., 3.3. 5 57 Ibid., 5.5, 6.6, 11.12. 58 To that extent he agrees with Jovinian (see above n. 53). 59 The Good of Marriage, 13.15, 19.22. 60 Hunter, “Bono coniugali,” 110; cf. Augustine, The Good of Marriage, 17.19. 61 See for this, e.g., the episode in Confessions, 6.14.24, according to which marriages prevented a group of young men from following their intellectual pursuits; more references like this in Hunter, “Marriage,” 535. 62 See, e.g., Soliloquies, 1.10.17. 63 For what follows, see Lawless, “Opere Monachorum,” 596. 64 See Brown, Treasure in Heaven, especially 89–108, where Egyptian monasticism is credited with a work ethic that tended not to be shared by Syrian monasticism, and 65 and 70 on Augustine’s The Work of Monks. 65 Augustine discusses these arguments in The Work of Monks, 1–30. 66 Ibid., 28.36. 67 Ibid., 16.19: compatiantur infirmis, et amore privatae rei non inligati manibus suis in commune laborare, praepositis suis sine murmure obtemperare. 68 Compare for these above n. 22–23. 69 The Work of Monks, 25.32. “He who was honored with a triumph after subduing Africa” (Augustine, pandering to his addressees’ regard for classical education, even uses the technical term, Africa edomita) was of course Scipio Africanus, who was perhaps the most highly regarded Roman in Antiquity. By the writers celebrating him, Augustine may in the first instance have thought of Valerius Maximus, Facts 4.4 and Seneca, Consolation to Helvia 12.6. Both authors relate the anecdote of Scipio’s inability to pay his daughter’s dowry. 70 This passage suggests that those who “converted [to the monastic life] from the state of poverty” may not all have been poor in the economic sense. If they were healthy and skilled, they may well have earned a good living from manual labor and even become prosperous. But their reliance on manual labor kept them socially at a low level. For more details on Roman society in the time of Augustine see Mathisen, 804. 71 With the expression sapor Christi (“savor of Christ”) Augustine invokes the concept of the “spiritual senses.” It is significant that he does so when addressing the “better off,” those better educated and used to a more refined and sophisticated lifestyle. They need to learn to “savor” Christ’s values (humility and deprivation of food and other sensual pleasures) instead of physical pleasures. The message would have been less appropriate for those joining the monastic life from poorer backgrounds, who were better used to sensual deprivation but also less sophisticated in the use of their senses; for Augustine’s teaching on the spiritual senses, see Harrison, 767–68. 72 See for this above n. 48, with references to City of God, 15.3 and 15.14. 73 Cf. above n. 50 and in The Work of Monks, 25.32 the expression societas eorum quibus est anima una et cor unum in deo. See also Madec, “Le communisme spirituel.” 74 See above n. 5. 75 See for this also Dodaro, who draws lines between Cicero and Augustine. 76 See above n. 73. 77 Following Ernst Troeltsch, this is not to say that Augustine’s thought provided a blueprint for the Middle Ages. However, it did offer some principal thinking on which later thinkers, above all Thomas Aquinas, could also build. 78 Or, as Gregory, 57, prefers to call it, “ethics of citizenship.” 79 Troeltsch’s position is best developed in Troeltsch, Augustin; Harnack’s can be traced in Harnack, Augustin; see also the summaries by Starr. 80 Compare Gregory, 32.

48  Josef Lössl 1 For further discussion of these points see Gregory, 36. 8 82 For an extensive discussion of this problem (including the term “logic of terror,” coined by the German philosopher Kurt Flasch), see Lössl, “Augustine, ‘Pelagianism,’ Julian of Aeclanum and Modern Scholarship.” 83 Compare Gregory, 43–44. 84 Compare Gregory, 49–54 at 52: Not all societies are equally (hopelessly) corrupt.

Bibliography Assmann, Jan. Exodus: Die Revolution der Alten Welt. Munich: Beck, 2015. BeDuhn, Jason. Augustine’s Manichaean Dilemma 1: Conversion and Apostasy, 373– 388 C.E. Philadelphia: University of Pennsylvania Press, 2010. Breyfogle, Todd. “Citizenship and Signs: Rethinking Augustine’s On the Two Cities.” In A Companion to Greek and Roman Political Thought, edited by Ryan K. Balot, 501–26. Hoboken, NJ: Wiley Blackwell, 2009. Brown, Peter. Augustine of Hippo: A Biography. Berkeley: University of California Press, 2000. Brown, Peter. Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West, 350–550 AD. Princeton, NJ: Princeton University Press, 2012. Brown, Peter. Treasure in Heaven: The Holy Poor in Early Christianity. Charlottesville: University of Virginia Press, 2016. Canning, Raymond. “Common Good.” In Augustine Through the Ages: An Encyclopedia, edited by Allan D. Fitzgerald O.S.A., 219–22. Grand Rapids, MI: Eerdmans, 1999. Carter, Warren. Matthew and Empire: Initial Explorations. Harrisburg, PA: Trinity Press International, 2001. Chang, Kei Eun. The Community, the Individual and the Common Good: To Idion and To Sympheron in the Greco-Roman World and Paul. London: Bloomsbury, 2013. Dodaro, Robert. Christ and the Just Society in the Thought of Augustine. Cambridge: Cambridge University Press, 2004. Dougherty, Richard J. “Natural Law.” In Fitzgerald, Augustine Through the Ages, 582–84. Doyle, Daniel Edward. “Augustin als Bischof: Visitator und Richter.” In Augustin Handbuch, edited by Volker Henning Drecoll, 218–24. Tübingen: Mohr Siebeck, 2007. Drecoll, Volker. “Marcellinus.” Augustinus-Lexikon 3 (2010): 1160–65. Ducot, Michèle. “Ius.” Augustinus-Lexikon 3 (2010): 854–59. Fitzgerald O.S.A., Allan D. Augustine Through the Ages. Grand Rapids, MI: Eerdmans, 1999. Fox, Robin Lane. Augustine: Conversion to Confessions. London: Allen Lane, 2015. Gregory, Eric. Politics and the Order of Love: An Augustinian Ethic of Democratic Citizenship. Chicago and London: University of Chicago Press, 2008. Harnack, Adolph von. Augustin: Reflexionen und Maximen. Tübingen: Mohr Siebeck, 1922. Harper, Kyle. Slavery in the Late Roman World AD 275–425. Cambridge: Cambridge University Press, 2016.

Augustine and the common good 49 Harrison, Carol. “Senses, Spiritual.” In Fitzgerald, Augustine Through the Ages, 767–68. Hunter, David G. “Bono coniugali, De.” In Fitzgerald, Augustine Through the Ages. Hunter, David G. “Marriage.” In Fitzgerald, Augustine Through the Ages, 535–37. Hunter, David G. Marriage, Celibacy and Heresy in Ancient Christianity: The Jovinianist Controversy. Oxford: Oxford University Press, 2007. Jehne, Martin. “Der römische Senat als Hüter des Gemeinsinns.” In Jehne and Lundgreen, Gemeinsinn und Gemeinwohl in der römischen Antike, 23–50. Jehne, Martin, and Christoph Lundgreen, eds. Gemeinsinn und Gemeinwohl in der römischen Antike. Stuttgart: Steiner, 2013. Knopf, Fabian. “Gemeinsinn und Gemeinwohl in der politischen Rhetorik Ciceros und in den Geschichtswerken Sallusts.” In Jehne and Lundgreen, Gemeinsinn und Gemeinwohl, 51–74. Lavere, George J. “The Problem of the Common Good in Augustine’s Civitas Terrena.” Augustinian Studies 14 (1983): 1–10. Lawless, George. Augustine of Hippo and His Monastic Rule. Oxford: Clarendon Press, 1988. Lawless, George. “Opere Monachorum, De.” In Fitzgerald, Augustine Through the Ages. Lössl, Josef. “Augustine, ‘Pelagianism,’ Julian of Aeclanum and Modern Scholarship.” Journal of Ancient Christianity 11 (2007): 129–50. Lössl, Josef. “How ‘Bad’ Is Augustine’s ‘Bad Conscience?’ ” Studia Patristica 86 (2017): 89–96. Madec, Goulven. “Commune-proprium.” Augustinus-Lexikon 1/7–8 (1994): 1079–81. Madec, Goulven. “Le communisme spirituel.” In Homo Spiritalis. Festgabe für Luc Verheijen OSA, edited by Cornelius Mayer and Karl Heinz Chelius, 225–39. Würzburg: Augustinus-Verlag, 1987. Marafioti, Domenico, and Michèle Ducot. “Lex.” Augustinus-Lexikon 3 (2010): 931–54. Markus, Robert A. “De Civitate Dei: Pride and the Common Good.” In Augustine: “Second Founder of the Faith,” edited by Joseph C. Schnaubelt and Frederick van Fleteren, 245–59. New York: Peter Lang, 1990. Markus, Robert A. Saeculum: History and Society in the Theology of Saint Augustine. Cambridge: Cambridge University Press, 1988. Mathisen, Ralph. “Society, Social Thought.” In Fitzgerald, Augustine Through the Ages, 803–6. Mazzucato, Mariana. The Value of Everything: Making and Taking in the Global Economy. London: Allen Lane, 2018. Newburn, Tim, and Others, “David Cameron, the Queen and the Rioters’ Sense of Injustice.” The Guardian, December 5, 2011. www.theguardian.com/uk/2011/ dec/05/cameron-queen-injustice-english-rioters O’Daly, G.J.P. Augustine’s City of God: An Introduction. Oxford: Oxford University Press, 1999. Reich, Robert. The Common Good. New York: Knopf, 2018. Shaw, Brent D. Sacred Violence: African Christians and Sectarian Hatred in the Age of Augustine. Cambridge: Cambridge University Press, 2011.

50  Josef Lössl Starr, Bradley E. “Harnack, Adolph von” and “Troeltsch, Ernst.” In Fitzgerald, Augustine Through the Ages, 414–16, 851–52. Syme, Ronald. The Roman Revolution. Oxford: Clarendon Press, 1939. TeSelle, Eugene. “The Civic Vision in Augustine’s City of God.” Thought 62 (1987): 268–80. TeSelle, Eugene. “Towards an Augustinian Politics.” Journal of Religious Ethics 16 (1988): 87–108. Troeltsch, Ernst. Augustin, die christliche Antike und das Mittelalter im Anschluss an die Schrift De Civitate Dei. Munich: Oldenbourg, 1915. Watts, Edward. Mortal Republic: How Rome Fell into Tyranny. New York: Basic Books, 2018. Zuboff, Shoshanna. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: Public Affairs, 2018.

3 Thomas Aquinas Definitions and vocabulary in his Treatise on Law Charles J. Reid, Jr.

Introduction This chapter is concerned with exploring some of Thomas Aquinas’s principal jurisprudential ideas. It goes without saying that his corpus is vast, and that any examination of his jurisprudence must necessarily be brief and selective. So I should explain my own method of proceeding. Following this introduction, the second section provides a brief biographical sketch, while the third and fourth sections offer a focused analysis of two features of Thomas Aquinas’s so-called Treatise on Law, which is found in his Summa Theologiae, Ia, IIae, quaestiones 90 to 97. The first of these features, explored in the third section, comprises the numerous apodictic statements Thomas made about the nature and function of law. It is of course true that Thomas defined law in the early part of Quaestio 90. But he did not stop there. He continued to make additional conclusory statements about the nature and function of law throughout all eight quaestiones. The fourth section then investigates in closer detail several of Aquinas’s key terms. Why did he choose one word or group of words to describe some feature of the law and not some other vocabulary? What did he mean to accomplish? The general method of proceeding, in other words, resembles a close commentary on selected texts. Such a focus, however, seems appropriate. Thomas was certainly careful in his use of language, and one therefore hopes that this method will shed significant light on his jurisprudence. The final section provides a brief conclusion, summarizing what can be learned from this careful study of definitions and vocabulary. I have chosen this method, I should add, because I mean to elucidate both the complexity of Thomas’s jurisprudence and its situatedness in place and time. Granted, whole schools of philosophers have appropriated Thomas Aquinas and used his teachings as justification for their positions, and they should not be criticized for having done so. That is what philosophers do. But my own hope is to open the door to evaluating Thomas as he might have perceived and understood the law. While Thomas might indeed belong to the ages, still he was a thirteenthcentury Italian academic who spent most of his active career at the University of Paris. That is the world I am concerned with.

52  Charles J. Reid, Jr.

Biographical sketch Thomas Aquinas was born probably in 1225. His father, Landulf Aquino, was a member of nobility. Indeed, Thomas was distantly related, through his father, to Emperor Frederick Barbarossa (Landulf’s mother—Thomas’s paternal grandmother—was the Emperor Frederick’s sister).1 Landulf delivered Thomas at the age of five to the Benedictine Abbey of Monte Cassino as an oblate, but because of papal-imperial politics, Thomas received the greater part of his youthful education at Naples, where he trained in the liberal arts.2 As an adolescent, Thomas became a professed member of the Dominican Order. The news of this profession was not received well by Thomas’s family. Bernardo Gui (c. 1261–1331)—Thomas’s principal hagiographer and the author of quite possibly the most notorious inquisitors’ manual of the high Middle Ages3— told the story of what happened next. While in Tuscany, on a journey north in the company of some Dominican friars, Thomas was kidnapped by his brothers and imprisoned. When Thomas remained steadfast in his decision to become a Dominican, his brothers tempted him by locking a woman in his cell with him. Thomas, showing “more strength than Samson, more justice than Lot, more piety than David,” resisted the temptation.4 Far-fetched? On the contrary, the story sounds all too lamentably plausible. The brothers finally admitted defeat, and Thomas was permitted to pursue his vocation. Thomas traveled north, trained at the University of Paris, relocated to Cologne with his master Albertus Magnus, and subsequently returned to Paris to teach. He spent much of his career at Paris but also enjoyed sojourns in Rome, Naples, and other locations. His life was not long by contemporary standards—he died in 1274—but his scholarly output was nearly unmatched in the disciplines of philosophy and theology.

Apodictic statements about the law Ia, IIae q. 90, art. 1, resp. One of Aquinas’s most famous definitions of law appears in Ia, IIae, quaestio 1, article 1, responsio, where Thomas writes: Dicendum quod lex quaedam regula est et mensura actuum secundum quam inducitur aliquis ad agendum vel ab agendo retrahitur. Dicitur enim lex a ligando, quia obligat ad agendum (“It must be said that law is a certain rule and measure of acting according to which one is led to act or restrained from acting. For it is said that law [comes from] ‘binding’ because it obliges one to action”).5 Many scholars have used this passage to claim that a central feature of Thomas’s legal theory must be its obligatory force. If lex is derived from ligando (or more commonly, ligare), then the law must be seen in its essence as an instrument by which lawgivers bind those who are subject to the law to its force. William Brewbaker has made this claim.6 Joseph Cascarelli views this passage, and the etymology it features, as connecting law inescapably with “Authority” (Cascarelli

Thomas Aquinas 53 capitalizes the term).7 Michael Zuckert draws from this text the insight that Aquinas’s theory of law confronts readers with the “persistent and compelling insight” that law “faces us as a command.”8 But let us focus closely on Thomas’s word choice. Consider the dicendum . . . dicitur construction. The dicendum that opens the definition reads like a gerundive of obligation: “It must be said.” But what must be said? “That law is a certain rule and measure of acts, according to which one is led to act or restrained from acting.” Dicitur opens the next sentence: “for it is said that law [comes from] ligando/ligare because it obliges one to action.” Has Thomas adopted this definition as his own, or has he used the dicendum . . . dicitur construction to put some distance—maybe slight, maybe a little more than slight—between his own views and “what is said” by others? To translate this passage and omit dicendum . . . dicitur, as Alfred Freddoso does, is to lose sight of Thomas’s careful crafting.9 Law, for Aquinas, is also a regula et mensura, a “rule and a measure.” We might make two observations here. First, let us consider why Thomas might have chosen the word regula. He could have used a noun like norma, which carried perhaps even more forcefully the idea of obligation.10 In choosing a word like regula, it is entirely possible that Thomas had in mind the rules governing the great religious orders of the day, which were commonly called regulae, after the famous Rule of St. Benedict. These rules governed the whole of religious life, from dietary habits, to work routines, to the celebration of solemn liturgies. If this was Thomas’s intent (and that certainly seems reasonable, given his own commitment to life as a member of the Dominican Order), then when he employs the word regula he means a rule, of course, but he also hints at something more than a rule, and that is a way of life, an unbreakable pledge to lead an ordered life in the company of others. But now let us focus on another sentence, the one that follows immediately the sentence which contains ligando. In Latin, that sentence reads: Regula autem et mensura humanorum actuum est ratio. The Blackfriars edition of the Summa Theologiae, translated under the supervision of Thomas Gilby, renders this passage as: “Now direction and measure come to human acts from reason.”11 Thomas, however, does not quite say that “rule and measure” are derived from reason. All three nouns—regula, mensura, and ratio—are put in the nominative case. Freddoso comes closer to the meaning when he translates the sentence: “Now the rule and measure of human acts is reason.” One could render it even more emphatically: “Reason is the rule and measure of human acts.” Entirely omitted here is any reference to law-as-command or uppercase “Authority.” The word voluntas, furthermore, does not appear in this passage. As Gaines Post demonstrated almost five decades ago, a lively jurisprudential debate had sprung up in the thirteenth century over a borrowed phrase from Juvenal, pro ratione voluntas, “let will stand for reason.”12 In jurisprudential terms, this meant to rule as out of bounds challenges to a particular executive or legislative decision as unreasonable and hence invalid. All that counted was the ruler’s will, since the will stood for—that is, substituted for—reason.

54  Charles J. Reid, Jr. Thomas’s choice of reason as rule and measure must be seen as an implicit taking of sides in this debate, a point he made explicit a little later on when he analyzed the maxim of law, voluntas principis habet vigorem legis (“The will of the prince has the force of law.”).13 Thomas insisted that the maxim had to be read with the presumption that the prince’s will was reasonable, because otherwise the prince becomes the source of injustice and not law. And if this is so, what are the implications for reading into Thomas Aquinas a strong command theory of law, as Cascarelli and Zuckert do? Let us keep this question in mind as we move forward.

Ia, IIae, q. 90, art. 4, resp. In the final article of quaestio 90, after reviewing different aspects of the meaning of law, Thomas offers a second definition: potest colligi definitio legis, quae nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata (“It can be gathered that the definition of law is nothing other than an ordinance of reason promulgated for the common good by one entrusted with care for the community”).14 This definition can be contrasted with the one we have just discussed. Notice here that there is no dicendum . . . dicitur. Thomas is unambiguously making this definition his own. So let us examine it in greater detail, again scrutinizing Thomas’s word choice. Let us begin with rationis ordinatio. Both words have deep richness of meaning, but we shall defer our discussion of ratio until later. For the moment, let us focus on ordinatio. In classical Latin, the term carried a narrow and technical meaning. Vitruvius, for instance, employed the term to signify an architect’s concept for a building.15 The term gradually gained in significance. Alcuin spoke of oratio—“public speaking”—as ordinatio dictionum, a perfect consistency of sentence structure and logical reasoning.16 Bernard of Clairvaux proposed an “ordinatio caritatis as a means of detailing a program of virtuous living which finds its unity and energy in love.”17 Less affectively, more intellectually, the word ordinatio came to characterize scholastic philosophical method, particularly the organization and “hierarchical arrangement of information.”18 William of Ockham composed an ordinatio on the first book of Peter Lombard’s Sentences, while Duns Scotus’s great work of philosophical speculation also came to be known by the same title. It is this background that informs Thomas’s choice of ordinatio. Although Thomas was usually careful and thorough in defining his terms, he said little about what he meant by ordinatio or its verbal equivalent, ordinare. Still, he made the point that ordinatio is governed by reason. And since this was so, then we can conclude that, for Thomas, law was a rational plan, an ordered, systematic, rule-based structuring of society, organized with the common good in mind. So let us next examine bonum commune, the “common good.” This is one of the richest, most important terms of art in all of Thomas’s social thought. Let us focus particularly on the word “common” (commune). “Common” implies that the good to which the law was ordered had to be conceived of in aggregate

Thomas Aquinas 55 terms, as concerning a group of persons or a community. But how large was the community? The answer to this question is complicated because Thomas did not conceive of society as a collection of isolated, competing groups. His world was not that of today’s sovereigntists and nationalists, who see nothing larger than their own political communities and so feel the need to defend their inviolability. Even less can Thomas be made to fit an individualist paradigm. Rather, his mind saturated in the political thought of the age, Thomas perceived the whole of humanity as subsisting within a hierarchical ordering of groups. Thomas’s mind was capacious. He conceived of the largest group as nothing less than the universe of all things, the tota communitas universi, the totality of God’s creation.19 God is the final apex of the created order, the origin of all things (conditor . . . universarum rerum), and the governor (gubernator) of all that is.20 God’s rule, however, was not blind or inscrutable, but rather took the form of law—the eternal law, lex aeterna, the final expression of the divine wisdom that directed the motions and actions of all things.21 The community for which the divine law was ordained, furthermore, was that of “human beings in relation to God, in their present and future lives.”22 And while the entirety of the eternal law remained unknowable by human beings, yet God revealed portions of it respectively in the divine and natural laws.23 Within this created order, human beings were unique because of their physical natures and their highly developed reason.24 These qualities permitted persons to perceive and to pursue their proper ends. And their ends preeminently were felicitas and beatitudo. Elsewhere in his works, in his Commentary on Aristotle’s Nichomachean Ethics and other writings, Thomas explained that these goals, conventionally translated as “happiness” and “blessedness,” could be at least imperfectly achieved in this world through a well-lived life.25 Law and a well-ordered polity were means through which such blessedness could be achieved. It was the lawgiver’s obligation, moreover, to ensure that the law promoted these ends. And who was the lawgiver? Thomas chose an interesting expression to describe the lawgiver’s office: he or she was the “one entrusted with care of the community.” The lawgiver was not one with power—potestas— but one who enjoyed cura, translated variously as “care,” or “solicitude,” or “concern.” Cura was a term of art derived from canon law. The Fourth Lateran Council addressed in part those who exercised cura animarum—“care for souls.”26 Pastors had such power. Those entrusted with building up the spiritual well-being of the flock possessed cura. In using cura as he did, Thomas was not speaking of canon law. Rather, he borrowed the term because it signaled the heightened level of responsibility conferred on the lawgiver. While one who had cura certainly exercised power, it was power specifically directed at the good of the persons subject to its use. These insights now bring us back to the related ideas of the person, the community, and the common good. For Thomas, as for Aristotle, it was impossible to conceive of the human person as leading a well-ordered life in isolation. Persons were inherently incomplete, and so required community both to survive and to

56  Charles J. Reid, Jr. thrive.27 Every person, Thomas asserted, was part of a larger grouping, which he called a “perfect community” (communitatis perfectae).28 And by perfect community, Thomas explained, he meant a civitas, a term often translated as “state.”29 A word of caution, however, is in order. Unless they know better, when modern readers see the word “state,” they think of the modern state—with its monopoly of force, its claims to unitary sovereignty, and its two centuries of justification by legal positivist writers, from John Austin to H.L.A. Hart and beyond. Thomas Aquinas did not know this world, so let us consider the world he would have known. Since he spent a significant portion of his career at the University of Paris, let us look specifically at thirteenth-century France. There was certainly a kingdom of France, ruled for much of Thomas’s time there by the sainted King Louis IX. But even Louis experienced chronic problems in territories like Aquitaine and Toulouse, where his “influence was seriously compromised” by the loose political structure.30 Indeed, even the University of Paris that Thomas would have known enjoyed significant exemptions from civic authority.31 Bearing in mind that the medieval civitas was not the modern state, what was important about the civitas, for Thomas, was its capacity to enact law. It is through such community-centered law that persons achieve not their private happiness but their felicitatem communem, the happiness common to a well-ordered polity. And, Thomas insisted, when he used the term “common good,” he meant to capture this association of person, polity, and the peace and satisfaction that arises from enlightened rule. Felicitatem communem does not quite translate into common good, but the common good was meant to serve that final end. The common good looked to the community and its interests, not to that of any particular faction. The ruler who subverted the common good to cater to private advantage was correspondingly condemned.32 Still, the common good must not frustrate or destroy the diversity of interests or talents within the community. The community whose common good the ruler must preserve is made of many persons, Thomas wrote, of different ages and negotia—an infinitely complex word clearly meant to capture everything from economic and business concerns to one’s station in life.33 These included the priests who pray for the common welfare, princes who govern wisely, soldiers who fight and die on the community’s behalf, and many others besides.34 Thomas, however, recognized that a too-narrow focus on the common good to the neglect of individual human differences might result in injustice. Lawgivers and judges, he declared, should be strict in upholding the law, but they simultaneously should make generous use of dispensations to relax the law’s requirements wherever injustice might otherwise result.35 In origin a Roman-law concept, dispensations had come to play a prominent role in medieval canon law. To give just one example: although canon law forbade the election of one born out of wedlock to ecclesiastical office, Pope Innocent III wrote that church officials should be generous in dispensing qualified candidates.36 A legal order of seemingly strict rules that might be relaxed in individual cases might be seen, especially by lawyers in the Anglo-American tradition where no

Thomas Aquinas 57 modern analogue to the dispensing power exists, as a system ripe for abuse and— to use Thomistic language—the consequent destruction of the common good. Thomas must have worried about this also, because he wrote that the ruler in exercising the dispensing power must act like a good householder who “weighs and measures and distributes the duties and necessities of life” to the members of the family.37 It is interesting, finally, that Thomas described the law’s finis, its goal or purpose, not as the doing of justice but the satisfaction of the common good. Thomas certainly knew and appreciated the importance of justice. Justice was giving to each person his or her due.38 Justice demanded a proportionate price in the marketplace39 and adequate provision for the poor.40 Thomas perceived justice as fairness, as a just division of the community’s resources, and as the impartial resolution of disputes. He even described the role of the judge as iustitia animata, “living justice.”41 But Thomas thought of law as something else. Law was not rule centered, or litigation centered, but plan centered. Law was a well-drafted, forward-looking program of good governance. Indeed, Thomas analogized the lawgiver, and the relationship of the lawgiver and the officials of the civitas, to that of the architect and the builders who execute the architectural plan.42 If there was a historical model Thomas had in mind, it might have been the well-drawn and increasingly comprehensive city ordinances—known as statuti—of the Italian city-states, which have been described by one historian as “astounding [in quantity] and unmanageable.”43 Unmanageable they might be to the modern historian, but they sought through the minute regulations of the details of everyday life to control and direct municipal life to the achievement of the greater communal good.44 Finally, there is the matter of law’s promulgation. If law is a rule or a measure, then for its very effectiveness it must be made known to those who are subject to the law. Notitia—knowledge of the law—is a necessary feature of the law, Thomas asserted, and so therefore promulgatio—the law’s public proclamation— is also required.45 A secret law, Thomas might have added, is no law at all. In the case of human law, duly enacted statute law of a self-governing civitas, promulgation is easily enough understood. Publication in some prominent place, periodic announcement of rights and obligations, a town crier walking the street and proclaiming the enactment of some new law, these and other similar public pronouncements would have satisfied Thomas’s insistence on promulgation. But human law was merely one of four types of law, and the least important. How might human beings be expected to know and understand the obligations of eternal, or divine, or natural law? The eternal law is the means God uses to govern the entire universe. It is an expression and reflection of divine reason.46 This law, or at least that part which human beings can grasp in their imperfection, is publicly proclaimed, Thomas continued, in the Verbum Dei (the Word of God, that is, the scriptures), and in the Liber Vitae, the “Book of Life”47 (an expression Thomas conceded was meant to be metaphorical).48 Is the eternal law known (nota) by all? Thomas asked.49 Yes, Thomas replied. While it is not possible to know the eternal law in the way

58  Charles J. Reid, Jr. God does, it is within the capability of every person to know its effects, just as we can see the dawning daylight even before the sun breaks over the horizon.50 Closely related to the eternal law is the divine law, divisible into old and new laws, corresponding to the Hebrew scriptures and the New Testament. Then there is also the natural law, which is “something constituted by reason, just as a [philosophical] proposition is a kind of rational work” (lex naturalis est aliquid per rationem constitutum, sicut etiam propositio est quoddam opus rationis).51 Natural law is a “consequence of human nature” (lex naturalis consequitur hominis naturae).52 Not everyone, Thomas admitted, will know the detailed precepts of the natural law. But all human beings, he went on, possess some awareness of its existence, since all persons have an “inborn tendency” (naturalem inclinationem) to want to know the truth about God and how to live in human society.53 This belief in the universality of the natural law can be—and has been—the source of much mischief. If certain ideas about good order are “natural,” then they are incontestable, and if they are incontestable, then those who resist are obstinate, wicked, or both. On the other hand, the natural law has been used to criticize and condemn acts of state terror. Thus the “laws of humanity” that the Nazi war criminals were charged with breaking following World War II were derived from long-standing civilizational standards with roots extending back to the natural-law writers of the early modern period. As such, it could be fairly imputed that the defendants were aware of their existence and so might justly be punished for their violation.54

Ia, IIae, q. 91, art. 1, resp. Opening the quaestio titled de legum diversitate, “On the Variety of Laws,” Thomas proposed yet another apodictic statement about the nature and function of law: Dicendum quod, sicut supra dictum est, nihil est aliud lex quam dictamen practicae rationis in principe qui gubernat aliquam communitatem perfectam (“It must be said, what has been said above, that law is nothing other than an expression of practical reason of a prince who governs some perfect community”).55 Thomas’s dicendum . . . supra dictum est phrase is meant to signal that the definition now offered was a recapitulation of previous arguments about the nature of law. First, he noted, law is a dictamen. The word can be translated as “expression” or “utterance” or “pronouncement.” It is closely related to the idea of promulgation and need not detain us further. Of much greater interest is the term practicae rationis, “practical reason.” For Thomas, there were two types of reason. One was theoretical, which concerned itself entirely with the world of abstractions—mathematical proofs, philosophical assertions, theological speculation. Law, however, fell into a different category of thought—practical reasoning, which concerned matters like moral choice and social organization. Thus, Thomas stated that practical reason consisted of reasoned choice (electio) as to some particular objective or the means to obtain that objective.56

Thomas Aquinas 59 There are, of course, many types of choices. Law, however, involved a particular type of choice—the decision by the lawgiver to promulgate a particular legislative decree that compelled those subject to the law to act or refrain from acting in certain ways. Thus Thomas wrote, in yet another apodictic statement about the law: Dicendum quod, sicut enuntiatio est rationis dictamen per modum enuntiandi, ita etiam lex per modum praecipiendi (“Thus it is said that just as a [philosophical] proposition is an utterance in the indicative voice, so law is an utterance in the form of a command”57).58 Thomas, however, did not stop his analysis here. He offered further guidance on the question of how a lawgiver should choose. In other words, he probed in some detail the practical realities confronting rulers and administrators. Unsurprisingly, Thomas insisted that lawgivers legislate in conformity with the natural law. Yet natural law provides only the first principles. Lawmakers, however, must deal with problems particular to the communities placed under their care. Their concern therefore is with singularia et contingentia—“the singular and contingent.” They must choose a course of action for their community, and they must choose wisely, but they must at the same time always realize that the choices they make are not perfect, cannot be perfect, but are merely appropriate to time and place and circumstance. (Nec oportet quod omnis mensura sit omnino infallibilis et certa, sed secundum quod est possibile in genere suo—“It is not necessary that every measure be entirely and certainly infallible, but only that it [conform] to what is possible in the situation”.59) If, however, every law is fallible and contingent, then the legislator must always be alert to the possibility that the law has fallen out of date or could be improved upon. Thus, Thomas discussed the possibility of legal change at length. There were, Thomas asserted, two reasons why law might properly be changed (lex humana iuste mutetur). Either the reasons supporting the law have changed, or the condition of the people governed by the law has been altered.60 Thomas continued by expressing a firm commitment to the idea of legal evolution in an incrementally more enlightened, progressive direction. It is natural, he stressed, that law, like other artifacts of human reason, can be made better. Consider the way the human reason operates. Gradually, the human mind moves from the imperfect to the more complete (gradatim ab imperfecto ad perfectum perveniat).61 This is the case in the speculative sciences, and it is true also for human arrangements. Indeed, Thomas noted, we have advanced substantially from those early days when rulers first attempted to do something useful for their communities (nam primi qui intenderunt invenire aliquid utile communitati hominum).62 Still, Thomas urged caution. Every alteration in the law unsettled established practice. The lawgiver should therefore not alter the law merely to introduce some slight or trivial improvement, for repeated change can be destabilizing. Rather, change in the law should be introduced only where it serves the “greatest and most evident utility” (utilitas).63 And if law, seen now from the vantage point of the lawgiver, is a matter of choosing the correct course of conduct while balancing different interests and

60  Charles J. Reid, Jr. needs, Thomas offered one further piece of guidance. The lawgiver should always keep in mind the “common utility” (communis utilitas) when charting such a course.64 Thus we have yet another apodictic statement: Finis autem humanae legis est utilitas hominum (“The goal of human law is the utility of the person”).65 The noun utilitas had acquired a specialized significance in thirteenth-century canon law. Indeed, the phrase utilitas ecclesiae was used recurrently by the popes of this era to override long-standing customs or beliefs in the name of some broader, more encompassing vision of the church. Thus, it had long been held that bishops were married to their dioceses and that such a bond should not be broken. Innocent III, however, abruptly altered this tradition by transferring bishops from one diocese to another and by justifying his decision in the name of utilitas ecclesiae.66 The popes of the era were building a consolidated, powerful, expansionary monarchy, and the utilitas ecclesiae became a means of validating their widening ambitions. Thomas did not use the word utilitas in this sense. But neither did he mean communis utilitas to serve as nothing more than a synonym for bonum commune. Rather, in using communis utilitas, Thomas seemed to have in mind a cluster of associated ideas. Opportunity—is there some advantage that can be obtained for the community by legislating a certain way? Anticipation—what might go wrong, what might go right, when choosing a particular course? Timing—when is it appropriate to introduce improvements to the law? And when is it better to retain the status quo? All of this, finally, fits beneath the rubric of practical reason as Thomas understood it.

Ia, IIae, q. 97, art. 3, resp. As should now be evident, Thomas’s Treatise on Law is filled with apodictic statements about the law. Many more examples might be chosen, but the following captures neatly the tension that exists between the lawgiver’s will and reason and that of the community. It appears in an article bearing the caption, “Whether custom can obtain the force of law”:67 Dicendum quod omnis lex proficiscitur a ratione et voluntate legislatoris: lex quidem divina et naturalis a rationabili Dei voluntate; lex autem humana a voluntate hominis ratione regulata. Sicut autem ratio et voluntas hominis manifestantur verbo in rebus agendis, ita etiam manifestantur facto (“It is said that every law proceeds from the reason and will of the legislator; divine and natural law from the rational will of God; human law, moreover, from a moderated human will and reason. Human reason and will, moreover, is manifested orally, in things to be done, but also in things that have been done [ facto]”).68 Although it is not at first glance apparent, this passage is meant to address the question whether customary law should count as a legitimate form of law. Accordingly, one must begin with the historical observation that customary law was a routine fact of life in the thirteenth century. Customary law played a large role in English society,69 in medieval France,70 and elsewhere throughout

Thomas Aquinas 61 Europe.71 It seems, however, that if one takes the first sentence at its face value, Thomas has repudiated this whole aspect of medieval legal life. “It is said”—Thomas again used the dicendum quod construction—“that every law proceeds from the reason and will of the legislator.” The statement reads like a straightforward endorsement of legislative supremacy. It looks, in other words, like a deeply positivistic assertion about law. John Austin might quarrel with the invocation of reason, but otherwise would likely find little to disagree with in this statement. Thomas, however, had no intention of questioning the legitimacy of customary law’s role and function in medieval life. Thomas proposed several instances where custom might attain the force of law or even effectively repeal duly promulgated statutory law. The first case involved those polities where the power to make law was retained by the people. Custom, which was the direct will of the people, manifestly had greater authority in such a community than the prince who governed in the people’s name.72 On the other hand, where the people lacked the “free power of making their own law,” custom can only gain legal standing where it has been approved by the rulers.73 Of greater interest, however, is the third case. What if the law is deficient or defective in some particular instance (leges humanae in aliquibus casibus deficiunt)?74 In such circumstances, it will not be wicked (non erit malus) to step around or to go around the law (praeter legem agere).75 And where, because of changes in the needs and circumstances of the political community, such actions become frequent, then custom assumes the force of law because the older statute law has ceased to be useful (lex ulterius non est utilis).76 But how can this be reconciled with Thomas’s seeming endorsement of the supremacy of legislative will? Consider again the language of the quotation at the beginning of this subsection. The first sentence spoke of the law-making capacity of the legislator’s—and of God’s—will. But the following sentence subtly shifted the focus. Human law arises from the will of the human person duly controlled by reason (lex autem humana a voluntate hominis ratione regulata). And this will might be manifested both in words and in acts (verbo [aut] in rebus agendis).77 Nothing in these two sentences spoke of legislative will, the power of the prince, or the place and purpose of government. On the contrary, what is emphasized is human reason, human judgment, human need unmediated by political authority. Notice, in other words, how Thomas has very subtly juxtaposed the will of the legislator with human reason and has used that juxtaposition to place primacy in the hands of the people of a political community to know their needs and to rely on well-informed reason to attain satisfaction.

Words and phrases As with much else, it is necessary, when considering Thomas’s jurisprudential vocabulary, to be highly selective. While a whole host of expressions might be the subject of investigation, I have limited myself to three terms of art: praeceptum, ratio, and lex positiva. Their importance will become obvious as we proceed.

62  Charles J. Reid, Jr.

Praeceptum Lex, of course, is the word Thomas routinely used for “law.” But at quaestio 92, article 2, he paraphrased the Roman jurist Papinian to assert: lex enim praeceptum commune est (“Law is commonly a precept”).78 The word commune complicates a direct translation, though the sense of the passage is easily enough discerned, and that is that every law has in common the quality of being a “precept.” In paraphrasing Papinian, however, Thomas substantially simplified and even distorted the old jurist’s words. For Papinian had written: Lex est commune praeceptum, virorum prudentium consultum, delictorum quae sponte vel ignorantia contrahuntur coercitio, communis rei publicae sponsio (“Law is a common precept, the opinion of the jurists, the suppression of crime committed either freely or through ignorance, [or official] undertakings by the state”).79 In thus adapting Papinian, was Thomas merely taking it easy on his readers, reducing a complicated text to a digestible serving? Or did he mean to selectively highlight and emphasize one aspect of what it means to be a law, at the expense of Papinian’s more expansive definition? And if the latter is the case, then what was the aspect he meant to emphasize? To answer this question, we may consider the way Thomas used the term praeceptum. A famous usage occurs in quaestio 94, where Thomas states that “the first precept of the law is to do good and pursue it, and to avoid evil.”80 The Blackfriars edition of the Summae Theologiae translates praeceptum as “command” not only here81 but elsewhere in the Treatise on Law. Freddoso, on the other hand, more often rendered the expression as “precept.”82 Praeceptum, in fact, was capable of both broad and narrow meanings. At points in his treatise, Thomas spoke of praeceptum expansively as an applicatio to those matters governed by law.83 Applicatio, in this context, must be understood as any attempt to make concrete or specific some general principle of law.84 Yet there were still other times when Thomas placed a narrow meaning on praeceptum, seeing it as a virtual synonym for command.85 What is important, however, is the range of connotations that the word praeceptum carried. We should begin with a contrast. Compare the noun praeceptum with the word mandatum. Derived from mandare, mandatum plainly and bluntly spoke of authority, hierarchy, and command. Praeceptum, on the other hand, brought the reader into a very different world of extended meaning. It was a noun preeminently concerned with teaching. Masters spoke in praecepta to their apt and eager pupils. And in scholastic writing, praeceptum (and the verb praecipere) were commonly used to signify an appeal to reason and to conscience that was overpowering in its persuasive force. Consider a passage from Peter Damian: Praecipit enim Dominus, quanto maior es, humilia te in omnibus (“For this is the teaching of the Lord, if you wish to be greater, humble yourself in all things”).86 In distorting Papinian, did Thomas mean to develop at least an implicit association among the concepts of lawgiving, teaching, reason, and command? Even if that was not his intention, the association emerges clearly in the many ways

Thomas Aquinas 63 he deployed the noun praeceptum. Mark Jordan calls attention to this association when he writes that “the notion of instruction conditions the meaning of another word Thomas repeats when explaining law: praeceptum, the ancestor of the English precept.”87

Ratio There is little doubt that Thomas held an exalted view of reason and associated it closely with law. In describing God’s eternal law, Thomas wrote that it was “nothing other than divine wisdom reduced to reason” (ratio).88 And while human reason was imperfect, Thomas held it in similarly high regard. Thus, he wrote in the Summa Contra Gentiles that the “vision of the divine substance is the final object of every intellectual being.”89 Human beings, in other words, not only possess reason, but their reason is driven by an aspiration—to draw ever closer to the beatific vision. This intense optimism about the nature and purpose of reason goes far to explain the role Thomas assigned to reason in his Treatise on Law. We have already taken note of numerous aspects of the centrality of ratio to Thomas’s jurisprudence. Much more that could be said must regrettably be left unnoted. With those qualifications in mind, three further observations are in order. First, human beings possess reason “by nature” (secundum naturam). In other words, to be reasonable, at least in the sense of enjoying the capacity for abstract, reflective thought, is an inescapable feature of the human condition.90 It is because of this quality that human beings can grasp the natural law. But Thomas did not stop his analysis there. It is because of rationality, he added, that human beings, alone among earth’s creatures, enjoy real freedom, can exercise meaningful choice, and so are capable of governing their affairs by law.91 “Law,” Thomas wrote, “is something rational” (lex est aliquid rationis).92 Since irrational creatures—by which Thomas meant all other animals—lack the ability to distinguish right from wrong, they cannot organize their affairs by law.93 Those who speak of the “natural law” governing animal and plant life, Thomas added, do so only as a figure of speech, and by way of an imperfect analogy.94 Second, because law is essentially rational discourse—a rational lawgiver addressing rational subjects—it is possible to see law as a teaching device. If the lawgiver is wise, if the lawgiver knows how to distinguish between good and bad and inculcates within the law an appreciation of the good, then “it follows that through law human beings can become good.”95 To be sure, Thomas qualified this assertion. Law, he stressed, should never demand too much from the people. Set the aspirations too high, and the law will collapse upon itself.96 Still where the lawgiver has legislated wisely, the lawgiver’s subjects can be made into better persons. Indeed, even a bad person might learn virtuous conduct from a well-crafted law simply by repeated, habitual compliance.97 Finally, there is the relationship of reason to the so-called unjust or tyrannous law. I have used the expression “so-called” deliberately because for Thomas, the idea of an unjust law was a contradiction in terms. Furthermore, an unjust law

64  Charles J. Reid, Jr. failed on its own terms, according to Thomas, because it violated reason itself (cum non sit secundum rationem). “It is simply not law,” Thomas went on, “but rather a kind of perversion of law.”98

Lex positiva The term of art lex positiva (“positive law”) entered the scholastic vocabulary at an early date. Hugh of St. Victor spoke of iustitia positiva (“positive justice”), and early canonistic summae mentioned the lex positiva or the ius positivum.99 Stephan Kuttner’s study of the subject is particularly compelling.100 For Thomas, lex positiva was preeminently statute law, laid down by a legislator in view of circumstances that were always subject to change. Thus, Thomas distinguished between two basic types of lex positiva—divine and human. Thomas argued that the ceremonial precepts of the Hebrew scriptures—he gave the examples of animal sacrifice and the commemoration of holy days and seasons—were divine law, since they were handed down by God, but also positive law, in that they represented God’s judgment as to the best means of ensuring obedience and worship of God at that particular stage of human development. As positive law, however, they could—and were—replaced by the new law found in the Gospels and New Testament epistles.101 Let us focus, however, on human lex positiva. I have already taken note of a number of its features, but I should like to focus on one more, and that is one of the chief limitations Thomas places upon it. Human positive law, he asserted, can reach only those external acts which are apparent to third parties (de exterioribus motibus qui apparent).102 Indeed, in the very first definition of law Thomas offered, the definition which he prefaced with the dicendum . . . dicitur construction that we have already discussed, he proposed that law consisted of obligation both because it governed human conduct (quia obligat ad agendum) and because it was the rule and measure and reason for human action (regula . . . et mensura humanorum actuum est ratio).103 No surprise, then, that we find other apodictic statements scattered throughout the Treatise on Law making much the same point, such as: Sed lex dicitur directiva actuum in ordine ad bonum commune, ut supra dictum est (“But it is said, as it has been said above, law is a directive ordered to the common good”).104 Of course, the dividing line Thomas proposed between external acts and internal dispositions is not so easily accomplished. Consider, for example, criminal law. Modern ideas of criminal responsibility are predicated on a doctrine known as mens rea, literally “the guilty mind,” but commonly rendered by modern-day Anglo-American lawyers as “criminal intent.” To gain a conviction, the modern prosecutor needs to establish proof that the defendant acted voluntarily. If the defendant lacked voluntariness, if he or she was impeded by some mental illness, perhaps, or by trauma, or by some other form of impairment, then the defendant might either be acquitted or be found guilty of some diminished capacity offense. Had Thomas looked at parallel developments in canon law, furthermore, he would have noticed that these ideas had already taken hold within the church’s

Thomas Aquinas 65 criminal law. “Canonical teachers and writers of the late twelfth and thirteenth centuries . . . based their ideas about criminal law upon the church’s penitential tradition, in which the degree of guilt was primarily a function of the mental and moral intent of the sinner.”105 Still, the restriction Thomas placed on the content of human positive law served his larger argument well in two different respects. First, it allowed Thomas to distinguish between law and morality. Morality may manifest itself in action. We choose between good and evil, and our choices may be labeled either moral or immoral. But the final judgment as to moral culpability rests with God, who alone has the complete picture of the actor’s interior freedom and mental state.106 Second, Thomas’s restrictive understanding of the reach of human law allowed him to reserve a special place of precedence and priority to the eternal law. We human beings see and judge on the basis of our perceptual faculties, which can only apprehend externals. God, on the other hand, overlooks no evil and leaves no bad act or wicked thought unpunished.107 In a sense, Thomas was making the point that the human project is incomplete without divine assistance; that humankind is dependent for its understanding of right and wrong on a measure external and larger than itself; and so, Thomas’s last point—that the existence of human law is itself a sign of the necessity of God.

Conclusion As this chapter should make clear, Thomas’s jurisprudence is complicated, subtle, even supple in the way it explores the twisting caverns of the law. It does not, in other words, lend itself to easy summary. That said, however, a few conclusions are possible. First, a word about reason. Thomas’s legal theory depends upon reason—both divine reason and human reason. These two expressions of reason are not hostile or opposed. Thomas does not introduce some qualifying adjective when he speaks of either one or the other. Ratio is ratio. While divine reason is perfect, human reason, though flawed, aspires to knowledge of God’s plan. The nature of the intelligent mind, Thomas points out, is to seek the divine substance. Our reason, furthermore, and our will, are instinctively adapted to pursue the good, not the wicked. Reason thus makes us apt receptacles of the law and equips us to judge between a good law, a tyrannous “law,” and laws that, through long desuetude or disregard, no longer suit our needs. Second, there is the divine. Thomas is, fundamentally, a religious thinker. There is no real compartmentalization in Thomas’s mind between things that belong to the secular world and those that belong to God. Everything, finally, has its origin and its destination in the divine intellect and will. It is his vision of God that provides coherence to his legal theory. The eternal law really does stand supreme over what proves to be a systematic story of law all the way down. And it is human reason’s attraction to the divine that allows us to govern our affairs through law.

66  Charles J. Reid, Jr. Third, Thomas viewed law principally as a plan. Again, the first plan was the divine plan for the universe, only a small portion of which is knowable to the human reason. God’s plan—God’s law—for the universe is the ultimate archetype for human law. More mundane archetypes, as already noted in the article, surrounded Thomas. The Italian city-states, university charters, the regulae of religious orders, were all law, but they were law that aimed at the fulfillment of certain master insights. Fourth, Thomas’s theory of law, in other words, was also top down. His vantage point was that of the ruling authority, or the lawgiver, or the administrator, not so much a judge. He looked at law as a bishop might, or the master-general of the Dominican Order, or the rulers and governing councils of north-Italian city-states. To be sure, Thomas was keenly aware that the application of rules of a general nature could lead to injustice in particular cases. As a remedy, he proposed robust reliance on the dispensing power of the legal authorities. He placed enormous confidence in their ability to use this power wisely. We know that historically the dispensing power was frequently abused, but Thomas’s optimism was predicated on his devout commitment to reason and the fundamental inclination all persons have to do what is right in the Lord. Fifth, there is the common good. Thomas’s theory was predicated on the assumption that human beings were communal creatures. He took seriously Aristotle’s admonition that those who live in isolation were either gods or monsters, and he firmly believed that human beings were neither one nor the other. We can become fully human only when leading our lives in community with others. To accomplish this task peacefully, to flourish harmoniously, we are dependent on a strong conception of the common good. And it belonged uniquely to the lawgiver to nurture and nourish the common good through law. Sixth, Thomas also appreciated that law was not—and could not be—static. Fundamental principles might remain fixed and secure. But among those sure and certain first principles one can also discern a dynamic element, and that was the recognition that as human needs changed, so must the law. At the level of the divine law, one even perceives God altering the law when human beings were ready to receive the new law of the Gospel. Earthly lawmakers, therefore, should be equally attuned to the shifting needs of the communities entrusted to their care. Because Thomas really was an optimist, he believed that legal change generally led to an improved state of affairs. Finally, Thomas’s conception of the law was realistic. On those occasions when he used hypothetical questions to illustrate a point, he drew from a supply of scenarios that must have been vividly real to a thirteenth-century observer. His analysis of particular legal doctrines, furthermore, had a realistic content. Thus, as examined earlier, he ensured that customary law—which seemed like an anomaly within his theory—was appropriately accommodated. He could not, after all, have done otherwise. A realist, an optimist, a faith-driven thinker of the first magnitude—these seem to be appropriate words for summing up the thinking of this leading philosopher and jurist of the Middle Ages.

Thomas Aquinas 67

Notes 1 Drury, 3. 2 Küng, 101–2. 3 Given, 46. 4 Foster, 30. 5 Aquinas, Summa Theologiae, Ia, IIae, q. 90, art. 1, responsio. 6 Brewbaker, 585. 7 Cascarelli, 235, n. 5. 8 Zuckert, 705. 9 Aquinas, Treatise on Law, 2. 10 Kletzer, 63. 11 Aquinas, Summa Theologiae, vol. 28, p. 7. 12 Post. 13 Aquinas, Summa Theologiae, Ia, IIae, q. 90, art. 1, resp., ad 3. The maxim is a paraphrase of Ulpian, quod principi placuit, legis habet vigorem. Digest 1.4.1. Cf., Wilks, 213–14 and n. 1. 14 Aquinas, Summa Theologiae, Ia, IIae, q. 90, art. 4, resp. 15 Jones, 40. 16 Alcuin, Grammatica, Patrologia Latina 101, 849, 858. 17 Casey, 99. 18 Copeland, 206. 19 Ia, IIae, q. 91, art. 1, resp. 20 Ia, IIae, q. 93, art. 1, resp. 21 Ibid. 22 Ia, IIae, q. 100, art. 2, resp. 23 Ia, IIae, q. 91, art. 4, resp. (divine law); Ia, IIae, q. 91, art. 2., resp. (natural law). 24 Ia, IIae, q. 94, art. 2, resp.; and Ia, IIae, q. 94. art. 3, resp. 25 Celano. 26 Peters, 269–70. 27 Ia IIae, q. 90, art. 2, resp. 28 Ibid. 29 Ibid. 30 Jordan, 40. 31 Colish, 267. 32 Ia, IIae, q. 92, art. 1, resp. 33 Ia, IIae, q. 96, art. 1, resp. 34 Ia, IIae, q. 95, art. 4, resp. 35 Ia, IIae, q. 97, art. 4, resp; Ia, IIae, q. 96, art. 6, resp. 36 X. 1.6.20. 37 Ia, IIae, q. 97, art. 4, resp. 38 Ia, IIae, q. 58, art. 1, obj. 1, and resp. 39 Hamouda and Price, 193–94. 40 Pope, 265–72. 41 Ia, IIae, q. 95, art. 1, resp. ad 2. 42 Ia, IIae, q. 93, art. 3, resp. 43 Dean, 84. 44 See, for example, de Gandino; and Schioppa, 152. 45 Ia, IIae, q. 90, art. 4, resp. 46 Ia, IIae, q. 91, art. 1, resp. 47 Ibid., ad 1. 48 Ia, q. 24, art. 1, resp. 49 Ia, IIae, q. 93, art. 2. 50 Ibid., resp.

68  Charles J. Reid, Jr. 1 Ia, IIae, q. 94, art. 2, resp. 5 52 Ia, IIae, q. 94, art. 3, resp. 53 Ibid. 54 Charles J. Reid, Jr., Treatise on Jurisprudence, draft of chapter 10 (under contract with West Academic Publishing). 55 Ia, Iiae, q. 91, art. 1, resp. 56 Ia, IIae, q. 13, art. 3, resp. 57 There are problems with translating praecipiendi straightforwardly as “command,” which I address in the section “Words and Phrases,” below, and I have used the word “command” here largely as a matter of convenience. 58 Ia, IIae, q. 92, art. 2., resp. 59 Ia, IIae, q. 91, art. 3, resp., ad 3. 60 Ia, IIae, q. 97, art. 1, resp. 61 Ia, IIae, q. 97, art. 2, resp. 62 Ibid. 63 Ibid. 64 Ibid., ad 3. 65 Ia, IIae, q. 95, art. 3, resp. Thomas is here closely following a text of Modestinus, preserved in the Digest, 1.3.25. 66 Pennington, Pope and Bishops, 15–17; “Bishops and Their Dioceses.” Cf. X.2.24.18 (Innocent III’s decree Quanto Personam). 67 Ia, IIae, q. 97, art. 3 (utrum consuetudo possit obtinere vim legis). 68 Ia, IIae, q. 97, art. 3, resp. 69 See Bonfield for example. 70 See Akehurst for example. 71 See Hierbaut for example. 72 Ia, IIae, q. 97, art. 3, resp. ad 3. 73 Ibid. 74 Ia, IIae, q. 97, art. 3, resp. ad 2. 75 Ibid. 76 Ibid. 77 Ia, IIae, q. 97, art. 3, resp. 78 Ia, IIae, q. 92, art. 2. 79 Digest 1,3,1. 80 Ia, IIae, q. 84, art. 2, resp. (Hoc est ergo primum praeceptum legis, quod bonum est faciendum et prosequendum, et malum vitandum). 81 Aquinas, Summa Theologiae, supra, vol. 28, p. 81. 82 Aquinas, Treatise on Law, Freddoso, tr., supra. 83 Ia, IIae, q. 90. art. 2, resp., ad 1. 84 Speer, 670. 85 Ia, IIae, q. 92, art. 2 (Sed idem imperare quod praecipere). 86 Peter Damian, Sermo, 46. 87 Jordan, Teaching Bodies, 122. 88 Ia, IIae, q. 93, art. 1, resp. 89 Summa Contra Gentiles, Bk. III, c. 59 (visio divinae substantiae est ultimus finis cuiuslibet intellectualis substantiae). 90 Ia, I Iae, q. 91, art. 3, resp., ad 2. 91 Tierney. 92 Ia, IIae, q. 91, art. 2, resp. ad 3. 93 Ia, IIae, q. 91, art. 3, resp. ad 2. 94 Ia, IIae, q. 91, art. 2, resp. ad 3. 95 Ia, IIae, q. 92, art. 1, resp. 96 Ia, IIae, q. 96, art. 2, resp. 97 Ia, IIae, q. 92, art. 2, resp., ad 4.

Thomas Aquinas 69 98 Ia, IIae, q. 92, art. 1, resp. ad 4. 99 Van den Eynde. 100 Kuttner. 101 Ia, IIae, q. 99, art. 3, resp. 102 Ia, IIae, q. 91, art. 4, resp. 103 Ia, IIae, q. 90, art. 1, resp. 104 Ia, IIae, q. 93, art. 1, resp. 105 Brundage, 171. 106 See, for example, Murphy, 54–55; McInerny, “Aquinas’ Moral Theory”; and Hannon. 107 Ia, IIae, q. 91, art. 4, resp.

Bibliography Akehurst, F.R.P., trans. The Etablissements de Saint Louis: Thirteenth-Century Law Texts from Tours, Orléans, and Paris. Philadelphia: University of Pennsylvania Press, 1996. Aquinas, Thomas. Summa Theologiae. London: Blackfriars, 1964. Aquinas, Thomas. Treatise on Law: The Complete Text. Translated by Alfred J. Freddoso. South Bend, IN: St. Augustine’s Press, 2009. Bonfield, Lloyd. “The Nature of Customary Law in the Manor Courts of Medieval England.” Comparative Studies in Society and History 31 (1989): 514–34. Brewbaker III, William S. “Thomas Aquinas and the Metaphysics of Law.” Alabama Law Review 58 (2007): 575–614. Brundage, James A. Medieval Canon Law. London: Routledge, 1995. Cascarelli, Joseph C. “Presumptions of Innocence and Natural Law: Machiavelli and Aquinas.” American Journal of Jurisprudence 41 (1996): 229ff. Casey, Michael. “Reading Saint Bernard: The Man, the Medium, and the Message.” In A Companion to Bernard of Clairvaux, edited by Brian Patrick Maguire, 62ff. Leiden: Brill, 2011. Celano, Anthony J. “The Concept of Worldly Beatitude in the Writings of Thomas Aquinas.” Journal of the History of Philosophy 25 (1987): 215–26. Colish, Marcia L. Medieval Foundations of the Western Intellectual Tradition: 400– 1400. New Haven: Yale University Press, 1997. Copeland, Rita. Rhetoric, Hermeneutics, and Translation in the Middle Ages: Academic Tradition and Vernacular Texts. Cambridge: Cambridge University Press, 1991. De Gandino, Alberto. Quaestiones Statutorum. Bologna, 1901. Dean, Trevor. Crime and Justice in Late Medieval Italy. Cambridge: Cambridge University Press, 2009. Drury, Shadia B. Aquinas and Modernity: The Lost Promise of Natural Law. Lanham, MD: Rowman & Littlefield, 2008. Finnis, John. Aquinas: Moral, Political, and Legal Theory. Oxford: Oxford University Press, 1998. Foster, Kenelm, ed. and trans. The Life of St. Thomas Aquinas: Biographical Documents. London: Longmans, Green, 1959. Gilson, Étienne. The Spirit of Thomism. New York: Harper & Row, 1964. Given, James Buchanan. Inquisition and Medieval Society: Power, Discipline, and Resistance in Languedoc. Ithaca, NY: Cornell University Press, 1997.

70  Charles J. Reid, Jr. Goyette, John, et al., eds. St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives. Washington, DC: Catholic University of America Press, 2004. Gregory, David L. “St. Thomas Aquinas, Jacques Maritain, and Law.” Catholic Lawyer 40 (2000): 381–400. Hamouda, O.F., and B.B. Price. “The Justice of the Just Price.” European Journal of the History of Economic Thought 4 (1997): 191ff. Hannon, Patrick. “Aquinas, Morality, and Law.” Irish Theological Quarterly 56 (1990): 278–86. Hierbaut, Dirk. “Who Were the Makers of Customary Law in Medieval Europe? Some Answers Based on Sources About the Spokesmen of Flemish Feudal Courts.” Legal History Review 75 (2007): 257–74. Jones, Mark Wilson. Principles of Roman Architecture. New Haven: Yale University Press, 2000. Jordan, Mark D. Teaching Bodies: Moral Formation in the Summa of Thomas Aquinas. New York: Fordham University Press, 2017. Jordan, William Chester. Louis IX and the Challenge of the Crusade: A Study in Rulership. Princeton, NJ: Princeton University Press, 1979. Kletzer, Christoph. The Idea of a Pure Theory of Law: An Interpretation and Defense. Oxford: Hart Publishing, 2018. Küng, Hans. Great Christian Thinkers: Paul, Origen, Aquinas, Luther, Schleiermacher, Barth. New York: Continuum, 1994. Kuttner, Stephan. “Sur les origines du term droit positif.” Revue historique du droit français et étranger 15 (1936): 728–40. Maritain, Jacques. The Angelic Doctor: The Life and Thought of Thomas Aquinas. Translated By J.F. Scanlan. New York: Dial Press, 1931. McInerny, Ralph. “Aquinas’ Moral Theory.” Journal of Medical Ethics 13 (1987): 31–33. McInerny, Ralph. St. Thomas Aquinas. Boston: Twayne, 1977. Murphy, James Bernard. The Philosophy of Positive Law: Foundations of Jurisprudence. New Haven, CT: Yale University Press, 2005. Pennington, Kenneth. “Bishops and Their Dioceses.” Folia Canonica 5 (2002): 7–17. Pennington, Kenneth. Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries. Philadelphia: University of Pennsylvania Press, 1984. Peters, Greg. “Religious Orders and Pastoral Care in the Late Middle Ages.” In A Companion to Pastoral Care in the Late Middle Ages (1200–1500), edited by Robert Stansbury, 263ff. Leiden: Brill, 2010. Pope, Stephen J. “Poverty and Natural Law.” In Poverty and Morality: Religious and Secular Perspectives, edited by William A. Galston and Peter H. Hoffenberg, 265ff. Cambridge: Cambridge University Press, 2010. Post, Gaines. “Vincentius Hispanus, ‘Pro Ratione Voluntas,’ and Medieval and Early Modern Theories of Sovereignty.” Traditio 28 (1972): 159–84. Schioppa, Antonio Padoa. A History of Law in Europe: From the Early Middle Ages to the Twentieth Century. Cambridge: Cambridge University Press, 2017. Speer, Andreas. “Aesthetics.” In The Oxford Handbook of Medieval Philosophy, edited by John Marenbon, 66ff. Oxford: Oxford University Press, 2012. Tierney, Brian. Liberty and Law: The Idea of Permissive Natural Law, 1100–1800. Washington, DC: Catholic University of America Press, 2014.

Thomas Aquinas 71 Van den Eynde, Damien. “The Terms Ius Positivum and Signum Positivum in TwelfthCentury Scholasticism.” Franciscan Studies 9 (1949): 41–49. Wilks, Michael. The Problem of Sovereignty in the Later Middle Ages: The Papal Monarchy with Augustinus Triumphus and the Publicists. Cambridge: Cambridge University Press, 1963. Zuckert, Michael P. “Do Natural Rights Derive from Natural Law?” Harvard Journal of Law and Public Policy 20 (1997): 695ff.

4 Francisco de Vitoria and the global commonwealth Andreas Wagner

Introduction To the extent that a global law is indeed emerging, it is bound to continue, extend, or complement institutions that have been complicit in establishing and maintaining inequalities of the most severe kind and of truly global scale. But at the same time, global law can, with some reason, claim to be the medium that is still the most likely to be capable of changing these persistent inequalities somewhat to the better, and of instilling at least some orientation towards justice in the manifold globalized interactions. Probably both aspects of this potential for global law are intertwined with the role that Christianity has played in our global history. Thus, the ambivalence between complicity with and critique of unjust power relations can be discerned in the thought of, among others, Francisco de Vitoria, founder of the School of Salamanca (a veritable school of theologian-jurists) and one of the seminal figures in the emergence of modern international law. Born by the name Francisco de Arcaya y Compludo around either 1481–86 or 1492 in Burgos, Francisco received a thorough humanist education, joined the Dominican order in 1505, and around 1507–09 went to study theology in Paris, then a center of nominalist thought. He certainly attended lectures of John Mair, one of the most famous theologians of his time, who frequently lectured about moral and legal questions. Vitoria collaborated closely with Pieter Crockaert, a Flemish pupil of John Mair who had turned from nominalism to Thomism, and who had begun to lecture on Thomas Aquinas’s Summa Theologiae instead of Lombard’s Sentences.1 Taking this Thomist method with him to the primary chair of theology in Salamanca, Vitoria occupied this most important theological chair in Spain from 1526 until his death in 1546. Above all, Vitoria’s teaching activities—regular seminar readings on one hand and, on the other, public relectiones where problems dealt with in the regular lectures would be put in a more general context—secured him a large following and widespread reception, especially insofar as he would focus on practical matters of high relevance for the political and legal developments of the time.2 Examples include his most famous relectiones, De indis, on the question of the legitimacy of the Spanish conquest of the Americas and on the law of war, while others dealt with the divorce of

Vitoria and the global commonwealth 73 Henry VIII of England from Catherine of Aragon, or with the context of imminent ecclesiastical reform. This chapter discusses some major topics of Vitoria’s that are relevant to the subject of global law: his general conception of a political commonwealth, organized according to republican motives; his ideas of positive law and public authority; the transfer of these motives to the global scale; his postulation of globally valid individual rights based on natural and on positive international law; and finally, the ambivalences resulting both from the political use that colonists made of Vitoria’s suggestions and from the formal way in which he had presented them, allowing their exploitation in the first place.

Major topics Republican theory of political community and power In his relectio on the nature of political power (De potestate civilii) from 1528, Vitoria clearly described a secular political commonwealth as the facilitator of the development of a human being’s natural capabilities. Quoting Aristotle and Cicero, and using exclusively secular terminology, Vitoria explained that both human intellect and will can unfold to wisdom, justice, and friendship only in socially integrated practices. This understanding provides a very positive perspective on political integration and on the common organization of affairs that comes to complement a second, more “Hobbesian” argument. For it is also true that human beings are extremely vulnerable unless they join forces, help each other, and collectively avert violence and injustice. Insofar as a political community is defined by its capability of satisfying these twin needs of security and of the good life, Vitoria concluded that the necessity of living in political communities is inscribed in human nature. While this means that the community is still instrumental in a certain sense, it is nonetheless endowed with considerable moral weight. It is itself “natural” insofar as it is not really at the disposal of human beings to decide whether or not they should live in a community. The same holds for political power: the very capability of a political community to provide for security and for the good life depends not just on the amount of resources available in the community, for instance, but also on its agency, that is, on the activity of some governing power allocating resources and coordinating practices for the benefit of the common good. If human assemblies and associations are necessary to the safety of humankind, it is equally true that such partnerships cannot exist without some overseeing power or governing force. . . . If all members of society were equal and subject to no higher power, each person would pull in his own direction as opinion or whim directed, and the commonwealth would necessarily be torn apart. The civil community (civitas) would be sundered unless there were some overseeing providence to guard public property and look after the common good.3

74  Andreas Wagner On one hand, this means that, for Vitoria, the authority to govern is not something that the society can choose to install or not. It is as natural and necessary as the political community itself; in fact, the latter is political only to the extent that it is capable of common-good-oriented agency, something that Vitoria held to be essentially linked to the presence of a governing power. On the other hand, Vitoria frequently emphasized that the authority of the governing power is not an authority “over” the community, but that it is rather identical with that of the community; whoever happens to govern the community in a concrete situation has no other source of his or her authority than the community as a whole. In the relectio on political power, Vitoria used the Aristotelian doctrine of the four causes to explain it: security and the good life are the final cause of political power, nature (and in the end God, as nature’s author) is its efficient cause, and the community itself is the material cause of political power.4 Thus, although a community cannot arbitrarily remove the power by which it is governed, this does not mean that this power could be legitimized and constituted independently of it, and in a certain sense there can be no foreign rulers. In practical terms, the self-sufficiency that is the Aristotelian definiens of a political community maps to institutionalized self-government and self-determination. Facilitating or respecting this self-determination is a normative demand, an “ought,” that logically results from the concept of a political community; thus, it is one of the precepts of natural law. Even in cases of occupations following a just war, permanent control over the conquered community beyond recovery of damages must be derived from the interest and will of that community and no other.5 The exclusive constitution of political power by the community implies a political self-determination, the rationality of which may be quite opaque to outsiders. Unless they contravene the basic functions of the community (by, for example, systematically denying basic security to groups of its members), the governing power and principles of a society may even be highly ineffective or openly irrational. But once the commonwealth assumes the right to administer itself, and once the principle of majority rule is established, the community may adopt whatever constitution it prefers, even if this is not the best constitution.6

Excursus: Orbus Christianus and papal authority There is one important argument that relativizes the preceding scenario in a specific context: for Vitoria, it was also a fact of human existence that the supernatural dimension transcends the natural one. And while the political sphere autonomously organizing itself usually provides the best foundation for an optimal unfolding of spiritual life, ultimately the spiritual power responsible for organizing the supernatural ends of the members of a community may direct the political power that is responsible for organizing the natural needs and ends. More concretely, according to Vitoria, the pope has an “indirect power” over political authorities in cases where the latter severely jeopardize the salvation of their subjects.7

Vitoria and the global commonwealth 75 However—and this is the “specific context” alluded to earlier—even the pope’s power extends only over those who are members of the (Catholic) respublica Christiana, and not over infidels. Thus, he may direct one Christian prince to refrain from, and another one to reinforce, certain missionary activities. But this directive would result in obligations and permissions only within the Christian commonwealth, not beyond it.8 The Christian commonwealth may be defined by the pursuit of salvation rather than security and the good life, and its governing power may have been ordained by Christ rather than constituted by the community itself, but with regard to its autonomy and to its lack of authority over other communities, it adheres to the conceptual logic of the community described earlier. And for conceptualizing a global legal order, Vitoria suggested principles that he thought could be acknowledged universally, that is, across various political and religious communities. It is clear, then, from all that I have said, that the Spaniards, when they first sailed to the Western Hemisphere, carried with them no right at all to occupy those lands.9

Global public authority We have seen how Vitoria postulated natural law precepts regarding the selfdetermination of political communities—precepts that put communities under certain obligations of mutual respect in their interactions with other communities. Conceding his theory of sovereign equality of political communities, we can now ask where he went beyond mutual noninterference, and why he should be relevant for the development of a truly “global” law. There are some precepts that are respected throughout and across all communities and yet cannot be deduced in an evident way from human nature or from the concept of a political community as described earlier. One of these precepts, and arguably the most important one, is the establishment of exclusive property rights (divisio rerum). There seems to be no natural or necessary connection from the respect of political self-determination to exclusive property rights, so they do not seem to be part of natural law. But obviously, basing such rights on mutual agreements would make for a more shaky property regime than we can (and Vitoria could) observe: powerful actors might withdraw at any time from the agreement, invalidating their obligations and relying on their superior power, availing themselves of foreign property, while safely granting to everyone else the liberty to try and do the same, knowing that they, the more powerful actors, will be able to fend off all such attempts. In the context of a political commonwealth, norms regulating such affairs beyond individual consent are realized by public laws, issued and promulgated by the governing power. But according to the previous discussion, the authority these norms are endowed with is none other than that of the community itself. Due to the divergence between individual interests and the common good, the community as a whole has the authority to regulate things for the benefit of the

76  Andreas Wagner common good, even independently of the consent of each and every one whom the regulation concerns. Since the global respect of exclusive property rights and other precepts of law applicable beyond individual commonwealths seemed to require this kind of regulation, Vitoria argued for the “public” character of such international or transnational law, which implies that there had to be a corresponding commonwealth that could endow the norms with the necessary obligatory force. This requirement also explains why Vitoria would qualify ius gentium as positive law. He was not perfectly consistent about this,10 and later authors of the School of Salamanca found their own ways to deal with the question of whether ius gentium was part of natural or of positive law.11 But in the more systematic arguments like the definition of different kinds of law in his commentary on Thomas Aquinas’s Summa Theologiae, Secunda Secundae, q. 57 art. 3,12 in the relectiones on civil power,13 or on the Indians (e.g., first just title)14, he justified the obligatory force of ius gentium by presenting it as the expression of the public self-determination of the global commonwealth as a political community and thus as being part of positive, not natural law. At one point, he referred to the contrast between private and public law and explained that besides “private” pacts and contracts, what we usually treat under the name of ius gentium, such as the inviolability of ambassadors, resulted from the public pact constituted by the consensus of all peoples and nations (ComSTh II–II, q. 57 art. 3.3 [ed. Beltrán de Heredia, p. 15]). Vitoria’s inconsistencies in this question—if they are such—are related rather to his characterization of the necessity that the precepts of ius gentium are endowed with. He sought to maintain, on one hand, that these precepts are not altogether necessary, that they cannot be deduced from natural law by necessary consequence, since otherwise they would form part of natural law, but, on the other hand, that they are still in some way necessary for the maintenance and conservation of natural law, which would be “very difficult” if the precepts of ius gentium did not exist.15 [T]he law of nations (ius gentium) does not have the force merely of pacts or agreements between men, but has the validity of a positive enactment (lex). The whole world, which is in a sense a commonwealth, has the power to enact laws which are just and convenient to all men; and these make up the law of nations. . . . No kingdom may choose to ignore this law of nations, because it has the [authority] of the whole world.16 Given the argument about the necessary connection between political community and governing power outlined earlier, a problem could lie in the absence of such a power on the global level. And it seems somewhat surprising that, on the global scale, Vitoria no longer insisted that the political community is inseparable from the institution of a public authority competent to govern the commonwealth. But as with laws in more particular commonwealths, the legitimacy and authority of which do not depend on the factual legislator but rather on the commonwealth as the “virtual” legislator, the legitimacy and obligatory

Vitoria and the global commonwealth 77 force of an eventual global law is not affected by the absence of a formal legislative authority.

Universal rights as precepts of global law The lack of formal legislation and written laws makes the identification of global law a very difficult problem, but it is a pragmatic or epistemic, not a normative difficulty. The challenge consists in finding out the intention and will of the legislator, the global legal community. On the other hand, since any law must be known, or at least be knowable, by those subject to it in order for it to be binding, this difficulty cannot be insurmountable, and for Vitoria, the solution was a matter of finding and understanding various signs or indicators of legislative intention. One such sign is empirical customs, such as the inviolability of envoys and ambassadors, which Vitoria had presented as an example in the distinction between natural law and ius gentium.17 A second sign can be found in legal scholarship, by studying the necessity or utility of a norm or, more conclusively, the unlikeliness of its contradiction. In fact, in his most famous text, the relectio on the American Indians, Vitoria used both approaches to argue for the first and most fundamental transnational right that human beings have: everyone has a right to travel, trade, and communicate across borders. In a certain sense, this idea specifies and limits the sovereignty that individual political communities are endowed with. In the context of the relectio, this individual right constitutes a legal title capable of justifying an external intervention into a political commonwealth infringing on it. According to Vitoria, it must be assumed that, before the borders of individual political communities were established, everybody had the right to travel everywhere. A limitation of this right by political borders would have had to be introduced along with the borders themselves, by common consensus of the whole world, for which we have no evidence. Nor can we even think of any reason why people would want to give up this liberty while establishing their particular commonwealths. On the contrary, we have widespread customs of hospitality and respect owed to foreigners and travelers, and these customs serve as further persuasive evidence for the intention of the global legal community to maintain the right of free movement. In the words of Vitoria’s discussion of customary law: various signs—scholarly opinion, prevailing custom—are present as indicators suggesting an intention of the legislator—the global commonwealth—to maintain free communication, trade, and movement. The first proof comes from the law of nations. . . . Among all nations it is considered inhumane to treat strangers and travelers badly without some special cause, humane and dutiful to behave hospitably to strangers. . . . Second, in the beginning of the world, when all things were held in common, everyone was allowed to visit and travel through any land he wished. This right was clearly not taken away by the division of property (divisio rerum); it

78  Andreas Wagner was never the intention of nations to prevent men’s free mutual intercourse with one another by this division.18 Related to the absence of a formal governing power of the global commonwealth, there is a second difficulty that, although considerable, does not undermine the legitimacy and normative consistency of global law. Besides the epistemic challenge of identifying the will of the virtual legislator that is the global community, there is the question of who should be authorized to enforce compliance in cases of violation of global law. The requirement of authorization and formal competency of law enforcement is something that Vitoria frequently emphasized, and in the present context it plays a manifest role, for example in the discussions about violations of natural law and those about tyranny (that is, the fifth unjust or just title of Spanish domination of the Americas discussed in De Indis, respectively). In the first instance, Vitoria submitted that, even if there was a systematic, clear, and evident breach of natural law in a political community, no foreign power, not even the pope, has the authority to enforce the abandonment of such practices.19 In the second instance, he asserted that the Spaniards (or, indeed, anyone) may intervene if tyrannical laws lead to killing of innocents.20 The first case would presuppose jurisdiction and public authority of the intervening party; the second, based on the idea of defense of another person, does not presuppose such jurisdiction and permits any capable party, whether public or private, to provide relief.21

Criticism As one of the country’s most important theologians, discussing Spanish claims to the conquered territories and peoples critically was sure to draw interest and—since Vitoria neither concluded that the conquest was just nor that it was unjust—severe criticism. Of course, the loyal followers of the emperor and the encomenderos had their own reasons for criticizing Vitoria, insofar as he had ­delegitimized the arguments on which they had based their titles of presence, rule, and domination in the colonies. However, the more sustained criticism was—and still is—related to Vitoria’s (arguably) insufficient condemnation of the colonial situation. For some, the protection of individuals was lacking, and for others, that of the political community’s autonomy. For some, restricting the discussion of legitimacy and autonomy of political communities to formal considerations amounted to shielding the true sources of oppression from criticism and to limiting demands of political intervention on behalf of the disadvantaged. For others, the postulation of universal rights of individuals to trade, travel, and communicate would pierce the fabric of collective political autonomy and facilitate the arbitrary assault of powerful agents both private and public. Both lines of argument were present already in debates by Vitoria’s contemporaries, and it is to his credit that these debates could develop and gain momentum and prominence in the first place. Vitoria’s pupil Alonso de la Veracruz, for example, had left Salamanca for the Americas before the famous relectio de Indis, but when he played a major role in the foundation of the University of Mexico,

Vitoria and the global commonwealth 79 one of his own most notable relectiones, the relectio de dominio infidelium et iusto bello, from 1553, repeated to a large degree the structure and arguments of Vitoria’s text. However, he identified the economic deprivation of the indigenous population as the main problem of the colonial situation and called on the Spanish king to control the economic processes in the colonies more directly and more deeply, against both encomenderos and (corrupt) caziques, and to limit local autonomy in this sense. His subsequent relectio de decimis (on tithes) reinforced these arguments (and argued for a strong role of religious orders against the authority of the bishops, because he held the former to act more consequently in the interests of the indigenous population). By contrast, Bartolomé de Las Casas (in later texts, e.g., in De regia potestate, from 1571) and Luis de Molina (e.g., in De iustitia et iure from 1593–1609, tract. II, disp. 105), argued to the effect of a more robust sovereignty. Taking further a Vitorian idea, they contended that a self-governing political community would be the only means to promote the individual well-being of its members while respecting their rational nature; this meant that even the very criteria of success and legitimacy of any regime could be established and evaluated only from within the community. The two strands of criticism agreed in their denunciation of Vitoria’s abstract formalism, which was blind to the foreseeable inequities that would in fact result from it. They agreed that the transnational or global liberties he had postulated should be restrained for the benefit of the local population. But they disagreed about whether those liberties should find their limits in social equity and individual rights, or at the borders of autonomous communities.

Conclusion Francisco de Vitoria can be credited with inaugurating a certain strand of discourse on global law. On one hand, the ius gentium he discussed had clear aspects of public international law: he posited political communities as autonomous, self-governing subjects, the interactions of which were mediated by law, and the relations of which were marked by equal, mutual respect that was independent of internal developments and cultural specificities. As a global community, the nations could create laws by majority decision that would be binding also on those members who did not consent. On the other hand, Vitoria’s ius gentium also had aspects of transnational law: individual natural persons were endowed with rights and legal subjectivity, making them citizens of their nation and, at the same time, of the global commonwealth. They could claim their corresponding rights against other persons or against communities, and it was the global legal community of humankind as a whole that had posited these rights and was competent and authorized to judge and to enforce them. In the colonial situation, both aspects separately gave rise to criticism. Many of the more aggressive colonial policies discounted Vitoria’s ideas and relied on the assumption that either cultural or individual factors left the colonized communities or persons incapable of caring for themselves and in need of European

80  Andreas Wagner “guardianship.” Accordingly, critics of Vitoria have pointed out that such arguments were facilitated to some extent by his close coupling of collective autonomy and individual entitlements to the (European) idea of rational and temperate self-control. However, an arguably more intricate problem is related to the fact that the two aspects could be pitted against each other: the alleged violation of individual rights (e.g., of European settlers and traders by host or neighboring communities) could function as a pretext for intervention in and takeover of foreign governments. Conversely, the assumed autonomy of local governments could allow European powers to turn a blind eye to slave labor, forced migration, and economic exploitation. As we have seen, these critical perspectives were present already in contemporary debates, and they are still prominent in today’s reception of Vitoria: scholars like Antony Anghie not only criticize ideas of cultural and political supremacy of the European powers but also point out that allowing European agents into foreign polities and shielding them with rights tailored to their capitalist practices, the inevitable violation of which would justify the demolition of those polities by the colonial powers, was precisely what enabled the disastrous unfolding of colonialism and imperialism.22 This rather formal theory of global law was subsequently instrumentalized by powerful actors (colonial powers and economic entrepreneurs) who would allege violations of their rights and push their interests without the law and its theory providing any effective remedy to the colonized and weaker parties. However, this criticism arises to some extent from the discrepancy between global law and its political institutions; the root of many criticisms leveled against Vitoria’s global law lies in its little consideration of the actual political context and its lack of provisions against abuse by the powerful. In a certain sense, it is a theory for an “ideal” global community, ignoring the need to establish or improve institutions of global law in the first place.23 In more general terms of the development of global law, Vitoria has thus suggested a middle way between protection of liberties of individuals against political communities on one hand, and, on the other, unfettered autonomy of the community in which its members govern themselves however they see fit. Vitoria’s intermediate path posited that the autonomy of a political community is legitimate and has to be respected precisely to the extent that it realizes basic protections of its members—and that this is something that must be amenable to assessment from the outside. For Vitoria, the sole criteria for such an assessment are based on conceptual implications of law as such, for instance, the judgment against systematic killing of innocent subjects. The context of such an assessment is a global legal community to which both natural persons and political communities have access and which is competent to create and enforce legal obligations.

Notes 1 Cf. Villoslada. 2 For Vitoria’s more political relectiones, several modern editions are available, some of them very recent. The most prominent is the English-only Political Writings,

Vitoria and the global commonwealth 81 edited by Pagden and Lawrance. This also includes some other texts, such as letters and Vitoria’s commentary on Thomas Aquinas’s Summa Theologiae, Prima Secundae, q. 90–105, the so-called Treatise on Law. A bilingual LatinGerman, more complete edition of the relectiones is Vitoria, Vorlesungen (Relectiones), Völkerrecht Politik Kirche. A Latin-only online edition based on the first printed publication of the relectiones (Lyon: Boyer, 1557) has been established by Thomas Duve and Matthias Lutz-Bachmann at https://id.salamanca.school/ texts/W0013. Finally, the major part of Vitoria’s commentaries on the Secunda Secundae of Thomas Aquinas’s Summa Theologiae (including the commentary on the Treatise on Law from the Prima Secundae as an appendix) is available in Vitoria, Comentarios a la Secunda secundae de Santo Tomás. In the following, I will give references to the Pagden/Lawrance and the online edition, where available. Translations have been minimally modified from Lawrance’s. 3 Vitoria, On Civil Power, § 5 (q. 1), Pagden and Lawrance, 9; ed. Duve/LutzBachmann, https://id.salamanca.school/texts/W0013:vol1.3.article5. For a dis­ cus­sion of which form this overseeing power can take—monarchic or democratic— cf. Wagner, “Zum Verhältnis von Völkerrecht und Rechtsbegriff bei Francisco de Vitoria.” 4 Vitoria, On Civil Power, §§ 3–5, 6, 7 (q. 1), respectively. As the form of political power, one might think of the series of political-legal activities that Vitoria mentions in § 8: “The [multitude] as such cannot frame laws, [issue decrees], judge disputes, punish transgressors” [ed. Pagden/Lawrance, 14; ed. Duve/ Lutz-Bachmann, https://id.salamanca.school/texts/W0013:vol1.3.article8]; he did not say explicitly, however, that he meant this as an explanation of the formal cause. 5 Vitoria explained this most clearly in a fragment discovered by Beltrán de H ­ eredia in 1931. Pagden and Lawrance include this fragment in Vitoria’s relectio On Dietary Laws [q. 1, art. 5, p. 227f.], Horst/Justenhoven/Stüben include it in the Relectio De Indis [Second Part, §§ 13ff., p. 506ff.]. 6 Vitoria, On Civil Power, § 14 (q. 2) [ed. Pagden/Lawrance, p. 32; ed. Duve/ Lutz-Bachmann, https://id.salamanca.school/texts/W0013:vol1.3.article14, near the very end of the article]. 7 Vitoria, I On the Power of the Church, q. 5 [ed. Pagden/Lawrance, §§ 1–19, pp. 82ff.; ed. Duve/Lutz-Bachmann, https://id.salamanca.school/texts/ W0013:vol1.1.6]. 8 See Vitoria, De Indis, q. 2, art. 2 (second unjust title) [ed. Pagden/Lawrance, §§ 26–31, pp. 258ff.; ed. Duve/Lutz-Bachmann, https://id.salamanca.school/ texts/W0013:vol1.5.27]. 9 Ibid. [ed. Pagden/Lawrance, p. 264; ed. Duve/lutz-Bachmann, https:// id.salamanca.school/texts/W0013:vol1.5.article31]. 10 For instance, the first reason he adduces for the first of the possible just titles for the Spanish conquest in De Indis is “the law of nations (ius gentium), which either is or derives from natural law” [ed. Pagden/Lawrance, p. 278]. 11 Cf. Oliveira e Silva. 12 Ed. Beltrán de Heredia, Vol. 3 (Salamanca: Apartado, 1934), 12ff. 13 Pagden/Lawrance, § 21, q. 3, art. 4, p. 40; ed. Duve/Lutz-Bachmann, https:// id.salamanca.school/texts/W0013:vol1.3.article21 14 Pagden/Lawrance, § 2, p. 278/§ 4, p. 281; ed. Duve/Lutz-Bachmann, https:// id.salamanca.school/texts/W0013:vol1.5.41.article2/https://id.salamanca. school/texts/W0013:vol1.5.41.article4 15 Cf. Vitoria, Comentarios a la Secunda Secundae de Santo Tomás, q. 57, art. 3.4 [ed. Beltrán de Heredia, p. 16]. 16 Vitoria, On Civil Power, § 21 (q. 3, art. 4) [ed. Pagden/Lawrance, p. 40; ed. Duve/ Lutz-Bachmann, https://id.salamanca.school/texts/W0013:vol1.3.article21].

82  Andreas Wagner 17 On custom creating, changing, and abrogating law, cf. Vitoria, Commentaries on the Prima Secundae of Thomas Aquinas, q. 97, art. 3 [Ed. Pagden/Lawrance, pp. 185f.; as an appendix in Comentarios a la Secunda Secundae de Santo Tomás, ed. by Beltrán de Heredia, Vol. VI, 1952, pp. 438f.]. Cf. also Tierney, 101–24. 18 Vitoria, De Indis, q. 3, art. 1 (first just title) [ed. Pagden/Lawrance, p. 278; ed. Duve/Lutz-Bachmann, https://id.salamanca.school/texts/W0013:vol1.5.41. article2]. 19 Vitoria, De Indis, q. 2, art. 5 (fifth unjust title) [ed. Pagden/Lawrance, pp. 273f.; ed. Duve/Lutz-Bachmann, https://id.salamanca.school/texts/ W0013:vol1.5.article40], or, more explicitly, in the fragment mentioned above already, in On Dietary Laws, q. 1, art. 5, fourth conclusion [ed. Pagden/Lawrance, pp. 224f.], resp. in De Indis, second part, art. 7 [ed. Horst/Justenhoven/ Stüben, pp. 500–03]. 20 Vitoria, De Indis, q. 3, art. 5 (fifth just title) [ed. Pagden/Lawrance, pp. 287f.; ed. Duve/Lutz-Bachmann, https://id.salamanca.school/texts/W0013:vol1.5.41. article15], or again On Dietary Laws, q. 1, art. 5, fifth conclusion [ed. Pagden/ Lawrance, pp. 225f.], resp. De Indis, second part, art. 8 [ed. Horst/Justenhoven/ Stüben, pp. 503–5]. 21 Cf. also Vitoria’s relectio On the Law of War, q. 1, art. 2 [ed. Pagden/Lawrance, pp. 299–302; ed. Duve/Lutz-Bachmann, https://id.salamanca.school/texts/ W0013:vol1.6.article2]. 22 Anghie, Imperialism, Sovereignty and the Making of International Law. On similarly critical perspectives, cf. Bohrer. Vitoria’s role in the also not-so-unproblematic development of twentieth-century international legal doctrine is discussed, for example, by Rasilla del Moral, “Francisco de Vitoria’s Unexpected Transformations and Reinterpretations for International Law.” 23 An interesting discussion about how to conceptualize a theoretical framework that could complement an “ideal” normative theory in this sense has developed precisely as an interchange between European and Latin-American perspectives: cf. Curcó Cobos.

Bibliography Anghie, Antony. Imperialism, Sovereignty and the Making of International Law. Cambridge: Cambridge University Press, 2005. Beneyto, José María, and Justo Corti Varela, eds. At the Origins of Modernity: Francisco de Vitoria and the Discovery of International Law. Cham: Springer, 2017. doi:10.1007/978-3-319-62998-8. Bohrer, Ashley. “Color-Blind Racism in Early Modernity: Race, Colonization, and Capitalism in the Work of Francisco de Vitoria.” Journal of Speculative Philosophy 32/2 (2018): 388–99, doi:10.5325/jspecphil.32.3.0388 Brett, Annabel S. Changes of State: Nature and the Limits of the City in Early Modern Natural Law. Princeton, NJ: Princeton University Press, 2011. Curcó Cobos, Felipe. “Latin American Political Thought as a Response to Discourse Ethics.” Latin American Research Review 50/4 (2015): 69–87. Demelemestre, Gaëlle. “Sens, portée et enjeu de la référence à l’unité du genre humain dans la doctrine classique du droit des gens.” Réforme Humanisme Renaissance 85/2 (2017): 95–136, doi:10.3917/rhren.085.0095. Pagden, Anthony. “Human Rights, Natural Rights, and Europe’s Imperial Legacy.” Political Theory 31/2 (2003): 171–99, doi:10.1177/0090591702251008. Koskenniemi, Martti. “Empire and International Law: The Real Spanish Contribution.” University of Toronto Law Journal 61 (2011): 1–36, doi:10.3138/utlj.61.1.001.

Vitoria and the global commonwealth 83 Koskenniemi, Martti. “Vitoria and Us: Thoughts on Critical Histories of International Law.” Rechtsgeschichte: Legal History (Rg) 22 (2014): 119–38, doi:10.12946/ rg22/119-138. Niemelä, Pekka. “A Cosmopolitan World Order? Perspectives on Francisco de Vitoria and the United Nations.” Max Planck Yearbook of United Nations Law 12 (2008): 301–44, doi:10.1163/18757413-90000026a. Oliveira e Silva, Paula. “The Concept of ius gentium: Some Aspects of Its Doctrinal Development from the ‘School of Salamanca’ to the Universities of Coimbra and Évora.” In The Concept of Law (lex) in the Moral and Political Thought of the “School of Salamanca,” edited by Danaë Simmermacher, Kirstin Bunge, Marco Fuchs, and Anselm Spindler, 106–28. Leiden: Brill, 2016, doi:10.1163/9789004322707_007. Rasilla del Moral, Ignacio de la. “Francisco de Vitoria’s Unexpected Transformations and Reinterpretations for International Law.” International Community Law Review 15 (2013): 287–318, doi:10.1163/18719732-12341254. Rasilla del Moral, Ignacio de la. In the Shadow of Vitoria: A History of International Law in Spain (1770–1953). Leiden: Brill, 2017, doi:10.1163/9789004343238. Scattola, Merio. “Das Ganze und die Teile. Menschheit und Völker in der naturrechtlichen Kriegslehre von Francisco de Vitoria.” In Francisco de Vitorias ‘De Indis’ in interdisziplinärer Perspektive, edited by Norbert Brieskorn and Gieon Stiening, 97–120. Stuttgart: Frommann-Holzboog, 2011. Tierney, Brian. “Vitoria and Suarez on ius gentium, Natural Law, and Custom.” In The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, edited by Amanda Perreau-Saussine and James B. Murphy. Cambridge: Cambridge University Press, 2007. Villoslada, Ricardo. La Universidad de París durante los estudios de Francisco de Vitoria, O.P. (1507–1522). Roma: Università Gregoriana, 1938. Vitoria, Francisco de. Comentarios a la Secunda secundae de Santo Tomás. Edited by Vicente Beltrán de Heredia. 6 Vols. Salamanca: Apartado, 1932–52. Vitoria, Francisco de. Political Writings. Edited by Anthony Pagden and Jeremy Lawrance. Cambridge: Cambridge University Press, 1991. Vitoria, Francisco de. Vorlesungen (Relectiones), Völkerrecht Politik Kirche. Edited by Ulrich Horst, Heinz-Gerhard Justenhoven and Joachim Stüben. 2 Vols. Stuttgart: Kohlhammer, 1995/1997. Wagner, Andreas. “Between Cosmopolitan Citizens and Sovereign Nations: International Law According to the Spanish Scholastics.” In A Companion to the Spanish Scholastics, edited by Harald Braun and Erik De Bom. Leiden: Brill, forthcoming. Wagner, Andreas. “Francisco de Vitoria.” In Great Christian Jurists in Spanish History, edited by Rafael Domingo and Javier Martínez-Torrón, 84–97. Cambridge: Cambridge University Press, 2018, doi:10.1017/9781108624732.005. Wagner, Andreas. “Francisco de Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth.” Oxford Journal of Legal Studies 31/3 (2011): 565–82, doi:10.1093/ojls/gqr008. Wagner, Andreas. “Zum Verhältnis von Völkerrecht und Rechtsbegriff bei Francisco de Vitoria.” In Wagner, Bunge, and Spindler, Die Normativität des Rechts bei Francisco de Vitoria, 255–86. Wagner, Andreas, Kirstin Bunge, and Anselm Spindler, eds. Die Normativität des Rechts bei Francisco de Vitoria. Stuttgart: Frommann-Holzboog, 2011.

5 Francisco Suárez on the law of nations and just war Henrik Lagerlund

Introduction: life and work1 In this chapter, I aim to introduce Francisco Suárez’s thinking on what is called the law of nations, or ius gentium in Latin.2 This topic has a very long history that goes all the way back to Roman legal discussions, but which took a somewhat different turn in the sixteenth century, particularly in the writings of Suárez. Both Thomas Aquinas (1225–74) and Thomas de Vio, or Cajetan (1469–1534), argued that the law of nations is a category of natural law, a view that became the most common view in the sixteenth century. For scholars of that period, it was not the will of the lawmaker that obligates human beings but the command of the intellect; that is, the command is a kind of act directed at the will and, as such, is both action-guiding and prescriptive. The natural law commands us to act in a certain way and is itself an expression of reason prescribing the law as a law.3 Just as natural law is an expression of natural reason, so is the law of nations for Aquinas and Cajetan. Suárez developed his thought in a different direction, which would serve as a foundation for the international law tradition. Here I present his contribution and exemplify it by presenting his account of the laws of war. But first let me say a few words about Suárez’s life and works. Suárez wrote about a great many subjects, including metaphysics, natural theology, philosophy of mind, philosophy of action, ethics, political philosophy, and law. In all of these areas, he made essential contributions that influenced later philosophy. So many authors took up his views, and they were so widespread, that many of them are taken for granted and never even attributed to him. He had a direct influence on Grotius, Pufendorf, and Leibniz, but certainly many others took ideas from him, including Descartes.4 Suárez was born in 1548 in Granada, Spain, into a noble family. He was schooled in Granada until the age of thirteen, when he moved to the University of Salamanca to study law. He was not a very good student and was actually seen as a little dim-witted by his fellow students. Interestingly, he was actually rejected initially from the Jesuit order for being intellectually deficient. When he eventually was permitted to enter the order, he was only provisionally accepted without any promise that he would be allowed to become a priest or a teacher. During his period as a trainee, however, he matured considerably, and in 1566, at the age of eighteen, he took the first vows as a full member of the Jesuit order.

Suárez on the law of nations and just war 85 Suárez’s time at the University of Salamanca coincided with a real golden age of the university and of philosophy in particular. The two most famous philosophers at that time, whose influence dominated the atmosphere of the university, were Francisco de Vitoria and Domingo de Soto. They both had studied in Paris under John Mair and were responsible for developing the so-called School of Salamanca in economics, political theory, and legal theory, which was to influence Suárez greatly. During his time at Salamanca, the new edition of the works of Thomas Aquinas was published. Pope Pius V, in 1567, had made Aquinas Doctor Eclesiae, placing him and his works among those of the Church Fathers. This publication came at an opportune time for Suárez, when his own thinking on theology was taking shape. Although he knew Aquinas’s works already, they were here presented anew with a fresh commentary by Cajetan. Suárez’s first publications are also commentaries on Aquinas’s works and include a particularly great commentary on the Summa theologiae. Cajetan’s commentary also greatly influenced Suárez’s views on law and just war. Suárez finished his studies in 1570 and was then given permission to teach philosophy from the start, which was unusual for so young a scholar. In 1572, he was ordained and spent the years to 1580 teaching philosophy and theology at various institutions around Spain. In 1580, Suárez was called to Rome to join the newly founded Collegio Romano. This was a clear sign of his rising star within the order. Another example of his growing reputation was that the pope himself apparently attended his first lectures—curious about the new star of the order. During his time in Rome, Suárez contributed to the development of the new Jesuit Ratio Studiorum, a work that standardized Jesuit education.5 In 1585, Suárez was dispatched from Rome to put the new study program into practice, first at the University of Alcalá, until 1592, and then at Salamanca. He remained in Salamanca until 1597. His time there was very productive. It was during this time that he wrote his greatest work, the massively influential Disputationum metaphysicae. It contains fifty-four disputations and divides metaphysics into three main areas, namely, being qua being, uncreated being, and created being. The first twenty-seven disputations are about the properties of being; disputations 28 to 31 are about uncreated being, and 31 through 53 concern finite, created being. The last third of the work is divided into disputations on substance and accidents. The work then ends with an account of so-called beings of reason, an account that, strictly speaking, does not belong to metaphysics, according to Suárez. It is a remarkable work that had an enormous influence on later philosophers, including Descartes, Locke, and Leibniz.6 In the same year when Disputationum metaphysicae was published, 1597, Suárez moved from Salamanca to the University of Coimbra, in Portugal. He remained there until his retirement in 1613. During his time in Portugal, he turned his attention to law and government. In 1601, he began to lecture on the philosophy of law, and these lectures would form the foundation of De legibus ac Deo legislatore (On law and God as the lawgiver), which he published in 1612, and which we will return to later. Both this work and Defensio Fidei Catholicae et

86  Henrik Lagerlund apostolicae (A defense of the Catholic and apostolic faith), published in 1613, were written at the command of Philip III in response to a papal controversy about the autonomy of royal power in relation to the church. Posthumously, De triplici virtute theologica, fide, spe et charitate (A work on the three theological virtues faith, hope and charity), was printed in 1621. All of these works were very influential, perhaps most famously for Hugo Grotius in writing De iure belli ac pacis, but they also influenced John Locke. Besides writing and lecturing on law, Suárez was mostly occupied in Coimbra by theological questions and controversy. He published many smaller works during this time. In 1613, he was granted release from his teaching duties. The most notable work from the last part of his life was a revised but never-published commentary on Aristotle’s De anima. Suárez died in Lisbon in 1617 after a short illness.

Law of nations (ius gentium) Suárez deals with the topic of the law of nations (ius gentium) in chapters 17–20 of book 2 of De legibus.7 He considers whether the law of nations is distinguished from natural law, what force it has, what its relation to positive human law is, what makes it just, and how it can be changed. These are all tremendously important issues and have had a profound influence on the tradition following Suárez. I will deal with some of these issues later, but another one of importance that I aim to address is the relation between the law of nations and natural reason. It is only by breaking that connection that Suárez can be said to have moved away from his predecessors towards a conception of the law of nations as international law. As we shall see, even though he makes great strides towards a modern view, he is somewhat ambivalent. As noted, most of the philosophical tradition on natural law and the law of nations that Suárez refers to held that the law of nations fell under natural law or was derived from natural law “as conclusions from premises,” as Aquinas writes.8 Suárez mentions Aquinas, Valla, Soto, and many others as holding this view. This was the only way they saw to explain how the law of nations could be universal and apply to all humankind. Suárez is one of the first to systematically disagree with this view and make the law of nations part of human positive law and independent of natural law. There are some similarities between natural law and the law of nations, though, and Suárez outlines these. He lists the following (I.19.1): the law of nations (1) is common to all humankind, (2) applies to humans only, and (3) includes precepts and prohibitions as well as concessions or permissions. The law of nations is applicable, at least in principle, to all humankind just as the natural law is, and it applies to humans only. Moreover, like natural law, the law of nations is a real law in the sense that it is made up of precepts which either prohibit or permit certain actions or behaviors. Naturally, there are also differences, which pertain foremost to the necessity, immutability, and universality of the two systems of law. The two forms of law differ with respect to the origin of their necessity or force, since (4a) the precepts

Suárez on the law of nations and just war 87 of natural law derive their necessity from being inferred from natural principles or natural reason, as Aquinas puts it, while (4b) the precepts of the law of nations derive their necessity from some other source similar to positive law. To explain this further, Suárez uses a phrase he previously has used to characterize positive human law. He notes that something is not made evil because it is forbidden by the law of nations, but it is made evil if forbidden by the natural law and, hence, goes against natural reason itself. Natural law sets the standard for what is good and evil, which is not the job of positive law. Furthermore, (5) the law of nations is not immutable, while natural law is, since it ultimately derives from a necessary and immutable being. (6) The law of nations can fail to be observed, that is, it does not have to be observed by all, so even though it is universal, like natural law, it does not have to be implemented everywhere. Humans cannot fail, however, to implement the natural law; it holds whether we want it or not, which is not the case with the law of nations. Suárez also states that the law of nations is spoken about in two ways, namely, as either the “law which all the various peoples and nations ought to observe in their relations with each other” (I.19.8; 401) or as the body of law that individual nations observe within their own borders, but which is called the law of nations because the law is similar and commonly accepted within their different nations. As an instance of the second usage, laws about selling or buying might be very similar in France and Spain, and in that respect can be called the law of nations. However, Suárez does not think the latter usage is properly called the law of nations. He has the first usage in mind—laws that nations observe in relations with each other—and this makes the law of nations in his account much more like an international law. Contrary to most previous commentators on this topic, Suárez holds that the law of nations does not get its force or derive its obligation from natural law, but is solely a human law that comes into existence “not through [natural] evidence but through probable inference and the common judgment of mankind” (I.19.4; 398). A little earlier in De legibus, he writes (I.17.8; 382): The precepts of the ius gentium were introduced by the free will and consent of mankind, whether we refer to the whole human community or to a major portion thereof; consequently, they cannot be said to be written on the hearts of men by the Author of Nature; and therefore they are part of the human, and not of the natural law. While natural law primarily works through conscience or a force that we feel,9 the law of nations is conventional, just like positive law, and is agreed upon and consented to freely. In order to explain how the law of nations is conventional, Suárez refers to Aristotle’s discussion of what is just by nature and by law in the Nicomachean Ethics V.7. Unlike Aristotle, Suárez does not argue that what is just by nature is changeable. Suárez thinks the natural law is immutable and contains all exceptions already from the beginning.10 Positive human law, including the law of

88  Henrik Lagerlund nations, is changeable, just as Aristotle argues conventions are. Conventions are like measures, which can differ from place to place, Aristotle says. This is obvious for civil law, which differs between nations, but what does this mean for the law of nations, which is supposed to be between nations and almost or fully universal? In what sense can it then differ? Suárez does not mean that there are different laws of nations in place in different parts of the world, but that there is one, which could have been different in the sense that we could have chosen a different law of nations than the one in place. It is in this sense that it is conventional. To pinpoint the differences between the law of nations and civil law and further explain the nature of the law of nations, Suárez brings up a problem that might seem obvious. On the face of it, the major difference might seem to be that civil law pertains to one country, while the law of nations pertains, at least in principle, to all nations. Here lies the problem, since it seems very unlikely that anything agreed upon by human free will would be universal, which means that either the law of nations is not human law, or it does not differ from civil law (I.19.5; 398). To solve this conundrum, Suárez states that one of the main differences between civil law and the law of nations is that the precepts of the law of nations are unwritten and established through the customs not of one nation, but of many or perhaps all. He explains (I.19.6; 399): Unwritten law is made up of custom, and if it has been introduced by the custom of one particular nation and is binding upon the conduct of that nation only, it is also called civil law; if, on the other hand, it has been introduced by the customs of all nations and thus is binding upon all, we believe it to be the ius gentium properly so called. The latter system, then, differs from the natural law because it is based upon custom rather than upon nature; and it is to be distinguished likewise from civil law, in its origin, basis, and universal application, in the manner explained above. The law of nations is not simply a law agreed upon by free individuals and nations, but law based on universal or nearly universal custom. This is how it can be both human law and distinguished from civil law.11 What are some of the examples of customs behind the law of nations? Suárez mentions the following: the custom of receiving ambassadors under the law of immunity and security; the custom of contracts or commercial agreements, particularly the freedom to contract commercial agreements; customs in war, which are the basis of the laws of war; customs of slavery; and so forth. The laws of war have been adopted by custom, argues Suárez (I.19.8; 402). Such custom involves defending oneself against an unjust aggressor. These powers—that is, the power to defend oneself against an unjust aggression and the power to wage war in a just cause—are not derived from natural reason, according to Suárez, since it was always possible for humans to come up with some other way to handle such situations.12 He reasons similarly in relation to slavery. The laws regulating captivity and slavery were put into place based on the customs of nations, and these laws are by no means necessary from the standpoint of natural reason, since another mode of punishment could have been put in place.

Suárez on the law of nations and just war 89 The examples that Suárez discusses regarding the law of nations derived from custom are traditional and derive ultimately from Isidore of Seville and his Etymologies, book 5. Suárez uses them foremost to further elaborate on the differences and similarities between the law of nations and natural law. One of these examples deals with peace treaties and truces. Suárez refers to these as powers to make peace and grant truces, but also the power or obligation not to violate such treaties. These all have their foundation in human agreement. The power to promulgate such conventions, as the law of nations can do, generates an obligation (or power) to uphold them, Suárez asserts. However, the obligation to uphold these conventions after they have been promulgated pertains not only to the law of nations but to natural law as well. Compliance with the law is in harmony with right reason, but such treaties are more firmly established by usage and the law of nations, Suárez argues. It is not possible, however, to draw a distinction between natural law and the law of nations, because the former is preceptive and the latter concessive only. He thinks both systems of law have both characteristics, that is, they both lay down precepts (rules) and grant or concede to these rules once laid down. Suárez seems to think that there is a further basis for the origin of the obligation that underlies the law of nations. He strives to further explain or make plausible how custom can be universal. He writes (I.19.9, 402–3): The rational basis, moreover, of this phase of law consists in the fact that the human race, into howsoever many different peoples and kingdoms it may be divided, always preserves a certain unity, not only as a species, but also a moral and political unity (as it were) enjoined by the natural precepts of mutual love and mercy, a precept which applies to all, even to strangers of every nation. According to the view expressed here, Suárez thinks we are united by a common human nature as a species, which provides some basis for our common customs, but there is more, as expressed in the quote, since we have a moral and political unity as well. He continues to explain this (I.19.9, 403): Therefore, although a given sovereign state, commonwealth, or kingdom may constitute a perfect community in itself, consisting of its own members, nevertheless, each one of these states is also, in a certain sense, and viewed in relation to the human race, a member of that universal society; for these states when standing alone are never so self-sufficient that they do not require some mutual assistance, association, and intercourse, at times for their own greater welfare and advantage, but at other times because also of some moral necessity or need. This universal society that constitutes the human race needs some law, a universal positive law, and this will be the law of nations, Suárez thinks. A concern seems to emerge here, namely, that once again the law of nations is close to collapsing into the natural law, since this seems to be the point of natural law, that is, a law for all

90  Henrik Lagerlund humankind. Suárez insists on a distinction, however. It ultimately comes down to the status of the two systems of law. Ideally, one might think, universal human custom will coincide with natural law, and the two systems are then in practice the same. But there will still be a distinction, since natural law is necessary and sets down what is good and what is evil. The law of nations is human law and will always be conventional and based on human agreement and free will. There is obviously another concern that might be leveled against Suárez’s view of a moral and political unity. A skeptic might point out that there are so many customs in the world in different nations, which even seem to contradict each other, that it would seem futile to use these as a basis for any law governing the relations of nations.13 To achieve the unity that he is arguing for, he seems to need to invoke the rational nature of humankind as what makes us unique and makes it possible for us to come together in a political unity. Doing so, however, brings the law of nations back to natural reason and natural law, which Suárez seems to have wanted to distinguish it from. Throughout De legibus, he seems to struggle with this ambiguity and this problem. In book 7 of De legibus, Suárez goes deeper into custom. In chapter 3, he deals with the varieties of custom. There he draws a distinction between what he calls universal and particular customs. This is a subdivision of what he previously has termed moral customs, which are defined as customs founded upon human acts. Universal customs are common to all or almost all humans, while particular customs are private. It is foremost the universal customs that the law of nations is based on. The law of nations is here explained as law introduced by “the usage and general conduct, not of one or another people, but of the whole world” (VII.3.7; 524). Given this account, the law of nations is thus, for Suárez, rules of conduct specifying the interactions of nations and kingdoms. These rules are drawn from custom, but what makes them laws or upheld as laws is not a document or a book taken to be the laws of nations, but the will of the rulers or, at least, tacit consent. An interesting aspect of the law of nations, in Suárez’s account, is that a part of it can be abrogated by some custom. This is possible, he suggests, because the law of nations is not part of natural law, and what is contrary to the law of nations is not intrinsically evil. An example is slavery of prisoners captured in war, which was a practice introduced by the law of nations, and which can be abolished by custom in the sense that some nation or province could make it impermissible. He thinks this is true of ownership rights as well (VII.4.6; 532–33). It is morally impossible, however, according to Suárez, that the whole law of nations could be abolished. For this to happen, “all nations would have to concur in a custom contrary to the ius gentium” (VII.4.7; 533). It is very improbable, Suárez thinks, that this would happen, but especially since the law of nations is thought to be “in close harmony with nature.” Whatever is contrary to it must be rare. A custom contrary to the law of nations can be tolerated in the case of one or a few peoples, in such a way that it does not result in some more serious harm or prejudice to others. Moreover, a law of nations established by custom cannot be overruled by a ruler or a prince, but he can amend it. He can also do things

Suárez on the law of nations and just war 91 like abolishing slavery within his borders, since this is not opposed to natural reason and hence accords with natural law. The law of nations is not the stronger or the more immutable with respect to this topic. I here end the general treatment of the law of nations as it emerges in De legibus and move on to a treatment of just war as outlined by Suárez. Just war is a partial exemplification of the law of nations.

Suárez on just war In De legibus, Suárez states in no uncertain terms that the law of war falls under the law of nations. For example, he writes (I.19.8; 401–2): Similarly, in my judgment, the law of war—in so far as that law rests upon the power possessed by a given state or supreme monarchy, for the punishment, avenging, or reputation of any injury inflicted upon it by another state— would seems to pertain properly to the law of nations. For it was not indispensable by virtue of natural reason alone that the power in question should exist within an injured state, since men could have established some other mode of inflicting vengeance, or entrusted that power to some third prince and quasi-arbitrator with coercive power. Nevertheless, since the mode in question, which is at present in practice, is easier and more in conformity with nature, it has been adopted by custom and is just to the extent that it may not be rightfully resisted. The laws of war, hence, reside and are drawn from custom. This is not to say that there are not some principles of war that derive from natural law. Presented in this way, Suárez’s position on the status of the laws of war is virtually identical to that of Grotius—that is, these laws are based on both the natural law and the law of nations.14 The most extensive treatment of war by Suárez is in his work De triplici virtute theologica, fide, spe et charitate (A work on the three theological virtues faith, hope and charity).15 Disputation 13 under the discussion of charity deals with war. As a matter of fact, the law of nations is hardly mentioned in this disputation, but it seems clear that everything said here is consistent with what Suárez says in De legibus. The first section is about the question whether war is intrinsically evil. He states four conclusions: 1 Absolutely speaking, war is not intrinsically evil. 2 A defensive war is not only permitted but sometimes commanded. 3 Even when war is aggressive, it is not an evil in itself, but can be right and even necessary. 4 There are conditions on a just war: a b c

War must be waged by a legitimate power; The cause itself and the reason must be just; The method of warfare must be proper.

92  Henrik Lagerlund Condition (4a) deals with what is known as the ius ad bellum, that is, the possible just reason for waging war, while (4c) deals with ius in bello, that is, the just way to conduct a war. Suárez states that there cannot be any just war without an underlying cause that is legitimate and necessary. Such a cause could be the infliction of a grave injustice which cannot be avenged or repaired in any other way (XII.4.1; 929). Suárez’s discussion of ius ad bellum is much dependent on Cajetan and is traditional in that sense. He has, however, a few aspects that are novel and worth mentioning. In section 6, he discusses the kind of certainty a king or prince needs to have in order to start a just war. What seems clear from this discussion is that Suárez requires a much greater moderation on part of the ruler than previous writers on this topic. In several cases, he contrasts his view with Cajetan’s and rejects his less moderate suggestion. This moderation is not called temperance, or a temperamenta, as Grotius calls it, but it seems very similar.16 It is not part of the law of nations, but it is about how the ruler implements the law. The ruler is bound to make a diligent examination of the cause for war and its justice. If there is a measure of uncertainty or probability (probabilitas) on both sides, then the ruler must act as a judge would in a court case and weigh the two sides. He writes (XII.6.3; 945): So, I believe, the more probable opinion should always be preferred in passing judgment. For that is an act of distributive justice, in which the more worthy party is to receive the preference; and he is the more worthy party who enjoys the more probable right. The example he uses to illustrate this kind of reason has to do with two nations arguing over a piece of land or a city. If one opinion is not clearly more probable or likely than the other, then the nation that has possession should have the preference. In such a situation, it would be unjust for the nation not in possession to go to war. In a continued discussion of this case, he considers the situation when there is no clear probability on either side, and no nation has possession. In that case, he entertains the idea that a third party, a judge or a good person, should be called in to make a ruling. This idea comes very close to an international court of some kind settling disputes between nations based on the law of nations. It is a fascinating idea that comes out of his emphasis on moderation in situations of dispute that could lead to war. Since this is a novel idea, I will dwell on it a little bit. One of Suárez’s motivations for introducing this idea is that it would be strange to think that God would have left the human situation in such a way that even though we are “governed . . . by conjecture more frequently than by any sure reason, . . . all controversy between sovereigns and states should be settled only by war” (947). He thinks this would be contrary to justice, and hence there is quite a strong moral argument for the introduction of mediating courts. The parties involved

Suárez on the law of nations and just war 93 must choose the arbitrator themselves or at least consent to the choice. The rulers could also chose representatives to act on their behalf in the proceedings and “the rights in question must be judicially ascertained in the same manner as a just decision of a court” (948). To reach such a decision, two objectives are involved, namely, (1) the examination of the cause and acquaintance with the rights of both sides, and (2) the enforcement of the right after it has been made clear. In (1), knowledge and discretion are necessary, not jurisdiction, but in (2), jurisdiction is required. This jurisdiction is inherent in the ruler. He, she, or they must choose to abide by the decision of the arbitrator. The request for moderation continues in Suárez’s discussion of ius in bello. Before the war begins, the attacking nation is bound to call the opposing side’s attention to the existence of a just cause. His discussion here is also clearly influenced by Cajetan. There is, however, one aspect that stands out, and that is the discussion of innocents in war. Suárez notes the following (XII.7.6; 958): I hold, secondly, that after war has been begun, and during the whole period thereof up to the attainment of victory, it is just to visit upon the enemy all losses which may seem necessary either to obtain satisfaction or for securing victory, provided that these losses do not involve an intrinsic injury to innocent persons, which would be in itself an evil. An innocent may be killed only incidentally, Suárez believes. The direct killing of innocent people is evil and against natural law. He entertains the thought that perhaps this situation should be looked upon differently in the case of a war. For even though it is obviously evil to kill someone in a private matter, a war is conducted by a public authority, and the cause is presumably just. Yet he rejects this view, since innocents are protected by the law of nations, unless it is absolutely necessary—a position that I will come to later. Suárez is clear that life is a very special possession, which does not fall under human dominion, and no one may be deprived of life unless by reason of his or her own guilt. He interestingly points out that those are innocent who do not take part in the conflict, even though they could and are perfectly fit to bear arms (XII.7.15; 966). His account of innocents, hence, comes close to the distinction used today between combatants and noncombatants. It would be just to kill combatants, or non-innocents, in a just war, but not noncombatants, except in extreme circumstances. It is important that the death of an innocent not be sought for its own sake. It might be necessary, however, for the sake of ending a war or securing victory, to burn a city or destroy a fortress, for example. The use of atomic bombs to destroy Hiroshima and Nagasaki at the end of the Second World War comes to mind. It might be possible, on the basis of this provision elaborated by Suárez, to argue that dropping those bombs was a just action by the American military to end the war. To explain his thinking further, Suárez uses another interesting example. He likens the killing of innocents to the mother taking a medicine that is necessary

94  Henrik Lagerlund to preserve her life, but which will kill the unborn baby she is carrying inside of her. If the medicine is not necessary for preserving the mother’s life but merely good for her, then obviously the child’s life should be given priority, but (XII.7.19; 971) if a case of necessity coupled with right intention be present, then without doubt it is permissible [to take the medicine]. This is clearly true, . . . because, if the mother were allowed to die, then, in most cases, both she and the child would perish; therefore, it is preferable, if possible, to save the mother’s life while permitting the child to die, rather than to allow the death of both. Applying this example to the question of killing innocent people in war, it must be said that under extreme exceptions such a thing can be done, as the example of the mother and the child brings out. On Suárez’s account of just war, the burden of justification on the warring parties is extremely high. The moderation he demands is clearly exceptional. In general, there is very little of substance in Grotius that is not already in Suárez’s account of just war theory. Grotius instead works out some basic ideas developed by Suárez. If we are to compare them further, it should perhaps be said that Grotius has made the distinction between natural law and the law of nations even clearer than Suárez. The position that Grotius calls voluntarism can certainly be read from Suárez, but Suárez is much more ambivalent on whether it is human free will or right reason that grounds the law of nations. In this respect, he walks the same middle line as he does with natural law.17

Conclusion Suárez’s account of the law of nations is interesting and breaks new ground. He obviously builds on the long tradition already existing in the Middle Ages and in the sixteenth century, but he also moves beyond that tradition into a modern account of the law of nations. He is much clearer than his predecessors that the law of nations belongs to positive human law, and that it is conventional and distinct from natural reason. He still struggles, however, with what to base the obligation expressed by the law of nations on, if it is not based on natural law and natural reason, and this ambivalence is visible in his writings. It seems clear that someone like Grotius could simply accept most of what Suárez says and then emphasize the voluntarism that is already there in Suárez to achieve the account that came to dominate modern thought through Grotius’s work, but it is merely a matter of emphasis and not a new theory. Another difference between Suárez’s account of the law of nations and a fully fledged account of international law is obviously that in Suárez’s view, the law of nations is unwritten and is based on custom. It can become an account of international law if it is fully assimilated to positive human law and made more like a civil law.

Suárez on the law of nations and just war 95

Notes 1 This summary of Suárez’s life and work is based on the one given in Lagerlund (2018). For more substantial accounts see the introduction to Hill and Lagerlund (2012) and also to Sala and Fastiggi (2014) as well as Shields and Schwartz (2015). 2 For earlier presentations of this topic see foremost Brett (2018) and Tierney (2007). See also Nussbaum (1950) as well as Coujou (2014) and Hamilton (1963). 3 For more on Suárez on natural law, see Lagerlund (2018) and Gordley (2012). Pink (2012) develops a somewhat different view than Gordley (2012). 4 One of the few philosophers cited in the Meditations is Suárez. On this see the introduction to Hill and Lagerlund (2012) and also Ariew (2012). 5 For more about this, see Casilini (2017). 6 See Ariew (2012) for a somewhat different view. 7 Most of my quotations and references will be to Thomas Pink’s edition, titled in English Selections from Three Works (Suárez 2015), but the original Latin can be found in Volumes 5 and 6 of the Opera Omnia in 28 volumes (Suárez 1856–78). 8 Thomas Aquinas, ST, I–II, q. 95, a. 4: “For in the first place it belongs to the notion of human law, to be derived from the law of nature, as explained above. In this respect positive law is divided into the ‘law of nations’ and ‘civil law,’ according to the two ways in which something may be derived from the law of nature, as stated above. Because, to the law of nations belong those things which are derived from the law of nature, as conclusions from premises, e.g., just buyings and sellings, and the like, without which men cannot live together, which is a point of the law of nature, since man is by nature a social animal, as is proved in Polit. i, 2.” 9 See Pink (2012) and Lagerlund (2018). 10 See more in Lagerlund (2018). 11 The distinction between written and unwritten law (ius scriptum and ius non scriptum) goes back a long way and was common in medieval times (see Meder 2008). It is a distinction between statutes enacted by a king or parliament and cases decided by judges, that is, legal customs. The use of the terms “written” and “unwritten” is a little bit misleading. Written law does not necessarily mean rules of law expressed in writing, but a law dictated in an imperative way and where precepts in their words constitute the law. Natural law, as understood by Suárez, is written law in this sense. Unwritten law does not mean that it is not formulated in writing, but is derived through consensus in the reasons and spirit of, for example, cases rather than the letter of the law. The difference lies in that written law is obligatory because it is enacted, while unwritten law is obligatory as general custom. English common law is often described as the “custom of the realm” (Pollock 1896, 242). 12 He in several places expresses himself in this way, namely that the law gives rise to a power or ability to do something. The law can in this way be said to empower a nation or a sovereign, in Suárez’s terminology. For more on this power or obligation, see Lagerlund (2018). 13 See Kadens (2012) for a historical argument similar to this one. She discusses the notion of merchant law in the Middle Ages and raises serious doubt about whether custom was ever really used as the basis for international law, at least on trade and merchant law. 14 See Nussbaum (1950, 102–11), and Miller (2014). See also Thomas Aquinas, ST, II–II, q. 40, and Cajetan’s commentary on this question, which is the most important background for Suárez’s own discussion. 15 See Reichberg (2011) for a careful and more extensive treatment of just war than the one given here. I will merely mention a few interesting aspects that I feel are

96  Henrik Lagerlund missing from previous accounts. One of the more substantial accounts of Suárez on the law of war can be found in Haggenmacher (1983). 16 See Nussbaum (1950, 106–7). 17 For more on this, see Lagerlund (2018).

Bibliography Ariew, Roger. “Descartes and Leibniz as Readers of Suárez: Theory of Distinctions and Principle of Individuation.” In The Philosophy of Suárez, edited by Benjamin Hill and Henrik Lagerlund, 38–56. Oxford: Oxford University Press, 2012. Bach, Oliver, Norbert Brieskorn, and Gideon Stiening, eds. Die Naturrechtslehre des Francisco Suárez. Berlin: Walter de Gruyter, 2017. Brett, Annabel. “Francisco De Vitoria (1483–1546) and Francisco Suárez (1548– 1617).” In The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, 1086–91. Oxford: Oxford University Press, 2018. Cajetan [Thomas de Vio], 1540–41. Sancti Thomae Aquinatis Doctoris Angelici Opera Omnia iussum pensaque Leonis XIII, cum commentariis Thomae de Vio Caietani Ordinis Praedicatorum. Vol. 8. Rome: Typographia Polyglotta, 1895. Casilini, Christiano. “The Jesuits.” In The Routledge Companion to Sixteenth Century Philosophy, edited by Benjamin Hill and Henrik Lagerlund, 159–88. New York: Routledge, 2017. Coujou, Jean-Paul. “Political Thought and Legal Theory in Suárez.” In The Companion to Francisco Suárez, edited by Victor Salas and Robert Fastiggi, 29–71. Leiden: Brill, 2014. García Cuadrado, José Angel, ed. Los fundamentos antropológicos de la ley en Suárez. Colección de Pensamiento Medieval y Renacentista 145. Pamplona: Eunsa, 2014. Gordley, James. “Suárez and Natural Law.” In Hill and Lagerlund, The Philosophy of Suárez, 209–29. Haggenmacher, Peter. Grotius et la doctrine de la guerre juste. Paris: Presses Universitaires de France, 1983. Hamilton, Bernice. Political Thought in Sixteenth-Century Spain: A Study of the Political Ideas of Vitoria, De Soto, Suárez, and Molina. Oxford: Oxford University Press, 1963. Hill, Benjamin, and Henrik Lagerlund. “Ethics.” In Hill and Lagerlund, The Routledge Companion to Sixteenth Century Philosophy, 516–37. Hill, Benjamin, and Henrik Lagerlund. The Philosophy of Suárez. Oxford: Oxford University Press, 2012. Kadens, Elily. “The Myth of the Customary Law Merchant.” Texas Law Review 90 (2012): 1153–206. Lagerlund, Henrik. “Francisco Suárez.” In Great Christian Jurists in Spanish History, edited by Rafael Domingo and Javier Martínez-Torrón, 210–24. Cambridge: Cambridge University Press, 2018. Meder, Stephan. Ius non scriptum: Traditionen privater Rechtssetzung. Tübingen: Mohr Siebeck, 2008. Miller, Jon. “Hugo Grotius.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Spring 2014 ed. https://plato.stanford.edu/archives/spr2014/ entries/grotius/.

Suárez on the law of nations and just war 97 Nussbaum, Artur. A Concise History of The Law of Nations. New York: The Macmillan Company, 1950. Pink, Thomas. “Reason and Obligation in Suárez.” In Hill and Lagerlund, The Philosophy of Suárez, 175–208. Pollock, Frederick. A First Book of Jurisprudence for Students of the Common Law. London and New York: The Macmillan Company, 1896. Reichberg, G. “Suárez on Just War.” In Interpreting Suárez: Critical Essays, edited by D. Schwartz, 185–204. Cambridge: Cambridge University Press, 2011. Salas, Victor, and Robert Fastiggi, eds. The Companion to Francisco Suárez. Leiden: Brill, 2014. Schwartz, Daniel. “Francisco Suárez on Consent and Political Obligation.” Vivarium 48 (2008): 59–81. Schwartz, Daniel. “Late Scholastic Just War Theory.” In Oxford Handbook on Ethics of War, edited by S. Lazar and H. Frowe, 122–44. Oxford: Oxford University Press, 2018. Shields, Christopher, and Daniel Schwartz. “Francisco Suárez.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Summer 2015 ed. http://plato. stanford.edu/archives/sum2015/entries/suárez/. Suárez, Francisco. Opera omnia. Edited by M. André and C. Berton. 28 Vols. Paris: Ludovicus Vivès, 1856–78. Suárez, Francisco. Selections from Three Works: A Treatise on Laws and God the Lawgiver, a Defense of the Catholic and Apostolic Faith, a Work on the Three Theological Virtues: Faith, Hope, and Charity. Translated by G.L. Williams, et al. Indianapolis: Liberty Fund, 2015. Tierney, Brian “Vitoria and Suárez on ius gentium, Natural Law, and Custom.” In The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, edited by A. Perreau-Saussine and J. Murphy, 101–24. Cambridge: Cambridge University Press, 2007.

6 Alberico Gentili and the secularization of the law of nations Rafael Domingo and Giovanni Minnucci

Introduction A prominent early modern Italian legal theorist and practicing lawyer, Alberico Gentili is regarded, along with Francisco de Vitoria and Hugo Grotius, as one of the founders of the science of the modern law of nations (ius gentium) and a major figure in the development of international relations. He designed a solid and autonomous framework for the law of nations based on three pillars: the Greco-Roman idea of natural law, the Justinian compilation of Roman law, and the then novel Bodinian notion of sovereignty as supreme, perpetual, and indivisible power.1 Gentili freed the law of nations from excessive scholastic influences and theological importations, avoiding metaphysical developments and overly subtle dialectics. He tried to build a system based on practice and experience. His legal construction is more inductive from events, episodes, customs, and facts than deductive from unchanged premises. Providing some new arguments, he removed religion as a valid reason for conflict and war;2 he advocated for the legitimacy of non-Christian regimes, especially the Ottomans; and he tried to fix the tenuous lines of separation between jurisprudence and theology and between the internal forum and external forum. Neither the pope nor the Roman Catholic Church has a place in Gentili’s systematic account. His world-famous saying— silete theologi in munere alieno!3—commands the theologian not to be involved in other people’s business and was claimed centuries later by the jurisprudence of European public law to argue in favor of the secularization of the law, beyond the limits Gentili himself intended.4 Gentili lived in turbulent times of recurring wars and strong religious conflicts, when European powers were expanding overseas and a new political theory of sovereignty and the nation-state was emerging. He was a transitional figure, able to partially combine the standards and methods of the old Italian school of civilians and the new style and categories of the humanists. He adjusted the medieval law of nations to the early modern idea of sovereignty by merging both traditional authorities and new developments. A man of great erudition and passion for history, he admired and drew upon many influences: Greek and Roman philosophers, historians, and poets such as

Alberico Gentili and the law of nations 99 Xenophon, Aristotle, Cicero (whom he called “our friend”),5 Virgil, and Seneca; the ancient Roman jurists Pomponius and Ulpian; theologians like Tertullian, Augustine, and many other church fathers; the Byzantine emperor Justinian, promoter of the Corpus iuris; the late medieval Italian jurists Bartolus and Baldus, as well as the Italian humanist Machiavelli; the German reformers Luther and Melanchthon; and, last but not least, the French humanist Jean Bodin, whose masterpiece, The Six Books of the Republic, constitutes one of the main sources of Gentili’s inspiration. Gentili’s reputation and significance declined shortly after his death, especially with the publication of Grotius’s monumental work On the Law of War and Peace [De iure belli ac pacis, 1625], even though Grotius praised and borrowed much from him.6 It was not until the end of the nineteenth century that the interest in and attraction for the work and thought of Gentili revived, thanks especially to Sir Thomas Erskine Holland, who delivered his inaugural lecture at Oxford on Gentili (1874)7 and provided a new scholarly edition of Gentili’s main work on the law of war (1877). Since then, Gentili’s legacy and the academic interest in his life and thought have only grown.8 There is still a long way to go, however, until we reach a full understanding of his work and thought. By way of example: not all Gentili’s works have yet been published.9 This introductory chapter offers a short biographical narrative, including an explanation of Gentili’s main works, then focuses on his idea of the law of nations and his approach to the secularization of that law.

Life and works Alberico Gentili was born into a well-established family in San Ginesio in the Papal States (now the province of Macerata) on January 14, 1552.10 He was the eldest of seven children of the marriage between Matteo Gentili and Lucrezia Petrelli. Alberico received his early education, especially in Latin and Greek, from his father, a distinguished physician and a man of wide culture. In 1569, Alberico enrolled at the University of Perugia, where the memory of Cino da Pistoia, Bartolus, and Baldus—all of whom had taught there—dominated all legal education. At the Perugia law school, Gentili was trained entirely in the medieval style of disputation (mos italicus). He graduated in civil law on September 23, 1572, at the age of twenty. He was elected a judge with jurisdiction in civil and criminal cases in Ascoli, and in 1575 he became the municipal lawyer of his native San Ginesio. In that capacity, he revised the statutory laws of the town, a task that he completed in October 1577. Owing to his adherence to the Reformation, Gentili was forced to flee in 1579 together with his father and his brother Scipione.11 The three first went to Ljubljana, now in Slovenia. From there, Alberico went to Germany (Tübingen and Heidelberg) and finally, in 1580, settled in London, where he was welcomed by a small community of Italian religious reformers. There Gentili was introduced to, among others, Robert Dudley, Earl of Leicester, a favorite and close friend of Queen Elizabeth I, and to her secretary of state, Sir Francis Walsingham. Under

100  Rafael Domingo and Giovanni Minnucci Dudley’s mentorship, Gentili began teaching at Saint John’s College in Oxford in 1581. In Oxford, Gentili became friends with the cosmological theorist Giordano Bruno, who was temporarily lecturing there (Bruno was later burned at the stake in Rome). Both met again in 1586 in Wittenberg, where Gentili most likely had gone to try to get a position in a German university. The reason for his interest in Germany was the opposition from some sectors of the Puritan party, led by the theologian John Rainolds (long his relentless and bitter adversary), to Gentili’s proposed appointment as Regius Professor of Civil Law at Oxford. Gentili finally obtained this appointment on June 8, 1587, the eighth person (the first foreigner and still the only Italian) to hold the prestigious chair established in 1540 in Oxford. He was highly regarded by his colleagues and contemporaries. In 1588/9, Gentili married Esther De Peigny, a woman of French origin from a well-to-do family. They raised five children. In 1600, Gentili became a member of Gray’s Inn (the same Inn to which Francis Bacon belonged), and he began forensic practice. In 1605 Gentili retired from university teaching to devote himself to legal activity as an official attorney of the Spanish embassy in the Admiralty Court in London, with jurisdiction over maritime contracts, torts, injuries, and offenses. Gentili died in London on June 19, 1608 and was buried in the churchyard of St. Helen’s Bishopsgate in London. Gentili published more than thirty works in Latin12 on a great variety of topics of law, theology, and politics, including the law of nations and international relations, conflicts between canon law and civil law, biblical exegesis, the limits of sovereign power, rebellion, conspiracy, and marriage. His contribution to the law of nations is basically contained in the following books: De legationibus libri tres (London, 1585); De iure belli libri tres (Hanau, 1598); and Hispanicae Advocationis libri duo, which appeared posthumously (Hanau, Frankfurt, 1613). These three books have been translated into English,13 as has De armis Romanis libri duo (Hanau, 1599).14 De legationibus contains a treatise on ambassadors and includes an introductory historical account on legations. Its origin was in a diplomatic incident. In 1583, the Spanish ambassador (and spy) Bernardo de Mendoza was accused of being implicated in a plot to dethrone Queen Elizabeth (an allegation later proven to be true). The English government invited two foreign lawyers, Gentili and his friend Jean Hotman, secretary to the Earl of Leicester and professor at Oxford, to advise the government before the pronouncement of a final judgment. Both defended the criminal immunity of the ambassador, and as a result, Mendoza was expelled in 1584. In De legationibus, Gentili argued in favor of the important role of ambassadors in the international realm, the principle of diplomatic inviolability, the justice of maintaining international relations with the Turks, and the right of embassies to remain undamaged and unaffected by religious differences. Gentili devoted the third book of the treatise to discussing the qualification and main virtues (fidelity, fortitude, temperance, and prudence) required of an ambassador, and he finished (chapter 22) with a model of “the perfect ambassador,” inspired by the figure of the English poet, scholar, and soldier Sir Philip Sidney.15 Gentili’s theoretical position in the De legationibus on the differences between a law of

Alberico Gentili and the law of nations 101 religion (ius religionis) and a human law (ius humanum) was later confirmed in correspondence (1593–94) with the Puritan theologian John Rainolds and in Gentili’s subsequent works. From this conviction, he derived the necessity of circumscribing to their respective fields the functions of theologians and jurists—a distinction that ultimately led Gentili to propose the secularization of law. By far, the most illustrious and influential of Gentili’s works is De iure belli (Hanau, 1598). A monographic treatise at the confluence of two related movements in the sixteenth century—the Protestant Reformation and the defense of absolute monarchy—De iure belli was nevertheless still influenced by medieval European ius commune scholasticism. Gentili emphasized controversial issues, providing arguments to support two contrasting positions. On one hand, this method did not allow for a strong systematic exposition of any given issue. On the other hand, it underlined the commentator’s hermeneutic effort in his attempt to reconcile very divergent opinions. The outcome was a treatise in the typical sixteenth-century literary style, starting with a few basic items and evolving through a quite logical presentation. Gentili’s approach to these issues was empirical, by case study, in order to establish a common, shared rule (regula). Gentili often used exempla, that is, stories that illustrate a general principle or moral lesson, often taken from historical events and current conflicts among the European powers. Sometimes, however, the accumulation of exempla concealed his argument. In De iure belli, Gentili tried to establish an unambiguous, clear, and welldefined legal framework for the law of war. The work consists of three books. The first is especially devoted to the definition and causes of war. Gentili defined war as “a just and public contest of arms,”16 waged, therefore, by sovereigns.17 He emphasized that the origin of war had to be a “real and actual necessity,” because it is inevitable that “the decision between sovereigns should be made by arms.”18 The reason for necessity is related to the fact that “there cannot be judicial processes between supreme sovereigns or free peoples unless they themselves consent, since they acknowledge no judge or superior.”19 The sovereign cannot have “an earthly judge, for one over whom another holds a superior position is not a sovereign.”20 Necessity arrived only after all peaceful means for settling a dispute (e.g., arbitration) had been exhausted. The second book is devoted to the so-called ius in bello, that is, the law that governs the conduct of warfare: “just as you ought to observe justice in beginning a war, so you should wage it and carry it on justly,”21 Gentili affirmed. He defended the importance of the formal declaration of war: without it, no war is just. He disapproved of the murder of enemies and the killing of prisoners, since soldiers are defending the rights of their sovereigns. Children and women (except if the latter assumed the duties of men) should be spared, and no violence should be done to unarmed farmers. The third book treats the law of peace, which Gentili considers as “the end of war for which all ought to strive.”22 The victor’s behavior will depend on the significance of the injury that initiated the war and the need for establishing an enduring peace, but Gentili reiterated the importance of justice and fairness

102  Rafael Domingo and Giovanni Minnucci during military occupation, negotiation of treaties, and the imposition of terms and conditions. Cruel punishment is always unjust barbarism: “Punishments which any respect for nature would forbid should have no place here.”23 Finally, Hispanica Advocatio, published by Gentili’s younger brother, Scipio, is a collection of most important notes on cases in which Gentili engaged as the Spanish advocate in England against the Dutch and other foreigners, as well as some opinions in private law. In his notes, Gentili combined rules of Roman law with historical precedents, and he advocated for the doctrine of territorial sovereignty as the main principle supporting the mutual rights and duties between and among nations, whether engaged in war or neutral. Other important works of Gentili include De iuris interpretibus dialogi sex (London, 1582); Disputationum de nuptiis libri septem (Hanau, 1601);24 De unione Angliae et Scotiae (London, 1605); Regales Disputationum tres (London, 1605), and In titulum Digestorum de verborum significatione (Hanau, 1614). In 1603, Gentili’s works were included in the Roman Catholic Index of Prohibited Books.25 Gentili’s style is clear, energetic, very direct, and elegant (though not as elegant as Erasmus’s or Vitoria’s). For instance, he opened his treatise on the law of war by saying that no serious book had been written on the topic so far;26 he confessed to having no “patience with the modern commentators”;27 he dared to call Erasmus a “flighty dilettante”;28 he wanted to deal “only with the ignorant and not with the perverse as well”;29 and he warned theologians not to get involved in matters that did not concern them.30 In his disputation on marriage, he expressed his desire to toss into a fire the books on canon law, and not only the Liber Sextus, as happened in fact in France: “Into the fire with the detestable books of the barbarians; and with the impious books of the Antichrist! Into the fire . . . as the great Luther taught us to do!”31 These diatribes, invectives, and denunciations, abundantly quoted by scholars, in no way represent Gentili’s final opinion. The same Gentili who once asked for burning the books on canon law later accorded an important role to canonical sources.32

Approach to the law of nations Gentili examines the law of nations as a peaceful private order between and among public sovereign states, based on natural law and governed by the principles and rules of Justinian Roman law. Departing from imperialist positions, which consider the law of nations to be an extension of civil law, Gentili tried to find in the law of nature the necessary autonomy required by the law of nations. Following Cicero,33 Gaius,34 Ulpian,35 and Justinian,36 and basing his work solidly on Western legal tradition, Gentili began with the premise that the law of nations belongs to the law of nature. Since the law of nations is a juridical embodiment of nature, jurists are responsible for resolving questions of the law of nations. Abundant light is afforded us by the definitions which the authors and founders of our laws are unanimous in giving to this law of nations which

Alberico Gentili and the law of nations 103 we are investigating. For they say that the law of nations is that which is in use among all nations, which native reason has established among all human beings, and which is equally observed by all humankind. Such a law is natural law. The agreement of all nations about a matter must be regarded as a law of nature.37 Gentili adopted the expression societas gentium, inspired by Cicero and Augustine,38 to speak of a society of all the nations of the earth. This society of nations is supported by the idea that “the human being was born for fellowship, and has a duty to aid others, not to live for self alone.”39 Human beings are “bound by natural law (so say the interpreters of the law) to aid one another.”40 For Gentili, the law of nations is the natural law of that society of nations. The society of nations is not comparable to a sovereign city, since rights and obligations in the society of nations cannot be determined by reference to civil law or national law. Sovereign states—as supreme, indivisible, and absolute power of the ruler over the citizens (here the influence of Jean Bodin is total)—are not subservient to any external legal authority. They are independent and submit only to natural law (which is divine law) and to the law of nations (which is a determination of natural law to govern the society of nations). For Gentili, the Corpus iuris was a source of universal and unchanging secular law and, therefore, of the law of nations and natural law: “the law which is written in those books of Justinian,” he pointed out, “is not merely that of the state, but also that of the nations and of nature.”41 The Corpus iuris of Justinian “holds for sovereigns also, although it was established by Justinian for private individuals.”42 The reason for this extension of the Corpus iuris to sovereigns is that it contains natural law, and natural law is universally valid. Not all of Roman law is natural law; but Roman law is not completely different from the law of nations.43 For instance, according to Gentili, Roman law does not recognize every agreement as enforceable (e.g., a bare agreement or pactum nudum), and those unenforceable agreements do not belong to natural law; that is why the law of nations admits no difference in agreement. In this sense, Roman law is not completely and always universal, unlike the law of nature. Gentili asked rhetorically, however: “Are not the following principles for the books of Justinian applicable to sovereigns: to live honorably, not to wrong another, to give every man his due; to protect one’s children; to defend oneself against injury; to recognize kinship with all people; and to maintain commercial relations, along with other similar and cognate matters which make up almost the whole of the books?” These belong to the law of nations and to the laws of war. Justinian, not only adapted his laws to simplicity of nature, but also restored the old laws to harmony with nature44—for instance, giving equal rights to blood relations on the mother’s side.45 In sum: Gentili tried to reconcile the new Bodinian idea of sovereignty as an absolute and independent power with the notion of natural law and the validity of Roman law as a true law among nations.46 His thought, though not completely explicit, is as follows: (a) the society of nations is a society of fully independent sovereign states; (b) sovereign nations are not subject to any external

104  Rafael Domingo and Giovanni Minnucci common authority except God and natural law, which is divine law; (c) the law of nations is not civil law but natural law, and therefore the law of nations can be applied in the society of nations without depletion of sovereignty; (d) the Corpus iuris, although it is a compilation of civil law, contains natural law and the law of nations (not, however, in relation to war), and therefore, the Corpus iuris can be applied between and among sovereigns, too. Anthony Padgen is right in pointing out that Gentili, “by making the law of nations into the content of the natural law, . . . dispensed with any need for moral discernment. By making that content in all significant respects identical with Roman law, he also eliminated any need of further development.”47 Nevertheless, we will add the following, paraphrasing Padgen: by making the law of nations into the content of the natural law, Gentili protected the independent power of sovereign nations. By making that content in all significant respects identical with Roman law, Gentili protected the province of jurisprudence against the theologians.

The secularization of the law of nations The word “secularization” is used here in the sense that Gentili advocated for the disentanglement of the law of nations from theology, and for the separation of religion, which is also a part of the law of nature,48 from the province of the law of nations (libertas religionis). His concept of secularization does not question, as happens often in our day,49 either the supremacy of the laws of God over human law, or the understanding of natural law as divine law, or, as a result, the supremacy of natural law over civil law. Gentili’s secularization is theistic and firmly based on Christian principles and ideals.

Silete theologi in munere alieno! [“Keep silence, theologians, in other people’s business!”] This famous apostrophe appears in chapter 12 of the first book of De iure belli, at the conclusion of a series of chapters specifically dedicated to the legitimacy of war.50 With this apostrophe, Gentili underlined the necessary separation between law and theology, thus contributing to the presupposition for the creation of the European modern state as a way to neutralize religious conflicts. In his practical framework for the law of nations, Gentili granted no important role to theological constructions, metaphysical assumptions, and philosophical abstractions but gave priority to legal principles, rules, and arguments. As a Bartolist jurist, Gentili confined himself to the subject of jurisprudence and adopted an autonomous attitude about the law of nations.51 He believed that questions related to the law of nations and, therefore, to natural law should be dealt with and resolved by legal scholars. The jurist, not the theologian, is the true interpreter of the law. In 1601, in his work on marriage (Disputationum de nuptiis libri septem),52 Alberico Gentili said his last word on the topic.53 The Gentilian notion of jurist

Alberico Gentili and the law of nations 105 formulated in De nuptiis, and firmly rooted in Roman law,54 unlike the concept he expressed in De iuris interpretibus dialogi sex (1582), is no longer that of a pure and simple exegete of a legal normative body, the Corpus iuris, but that of an authentic priest of justice (sacerdos iustitiae),55 who deals with the “art of goodness and fairness.”56 “Our art is not to repeat what has been established in the books of Justinian, but to define and explain what the law is in each particular case.”57 To explain what the law is, to build the edifice of justice, true jurists should understand the principles of human action, and to do this they might use not only the Justinian compilation but also other legal sources and even sources from other disciplines. The task of distinguishing the just from the unjust cannot be entrusted only to canonists or civil lawyers (a subdivision no longer acceptable in an era characterized by political and religious divisions) but to the jurist (iurisperitum).58 In the first book of De nuptiis, Gentili presents himself as the heir of the universalist tradition of the ius commune and, at the same time, as a reformer of legal science that faces the new century. According to Gentili, the search for justice is not exclusively the result of an evolutionary interpretation of Justinian legislation but derives from a hermeneutic effort by the jurist who, with encyclopedic knowledge, can effectively act as the only intellectual capable of formulating valid principles of justice. Justice, like sovereignty, is indivisible; it cannot be fragmented. Therefore, the interpretation of the law should also be indivisible and unfragmented.

Libertas religionis ( freedom of religion) According to Gentili, religion must be free. Religion can be recommended but never imposed, because it is “a kind of marriage between God and humanity.”59 “Force in connection with religion is unjust.”60 To deprive religion of its freedom will be a “justification of irreligion,” and “to attempt by force what cannot be done by force is madness.”61 Gentili accepts the argument of Bodin that “violence should not be employed against subjects who have embraced another religion than that of their ruler,” but always with the reservation: “unless the state suffers harm in consequence.”62 For instance, “illicit gatherings under the guise of religion might be forbidden by rulers.”63 On the other hand, Gentili points out that private citizens cannot take arms against their sovereign for religious reasons—for instance, when the sovereign decides to change the religion of his subjects. In this case, the religious private citizen has to follow the order of Christ (one ought to obey God rather than men) and flee.64 With the wisdom of the own experience, Gentili concludes: “It is hard to be despoiled of one’s goods and fatherland; but this is the order of Christ.”65 For Gentili, the external forum and the forum of conscience must be kept clearly distinct, nor can it be ruled out that they may offer conflicting directives: it is not the task of the civil law to declare an immunity from the sin of a person who is guilty of murder.66

106  Rafael Domingo and Giovanni Minnucci Gentili affirmed that it is unlawful to make war for religious reasons: since the laws of religion do not properly exist between persons, no one’s rights are violated by a difference in religion, nor is it lawful to make war because of religion. Religion is a relationship with God. Its laws are divine, that is, between God and humanity. Therefore, one cannot complain of being wronged because others differ from him in religion.67 Since war against other religious people will always be either vindictive or punitive, it cannot be just.68 Gentili excludes the case against people “living rather like beasts than like human beings,” without any kind of religious beliefs, since religion is part of the law of nature, and the law of nature should not protect those who do not share in it.69

Conclusion Alberico Gentili was a transitional, erudite, legal thinker and practicing lawyer fully involved in the events of his lifetime and attentive to continuous and profound political and social changes. Educated in the Bartolist method, he gradually evolved to a more integrated jurisprudence, in accordance with the humanist approach. He elaborated a new framework for the law of nations as a part of the law of nature to be applied between and among sovereign states and governed by Justinian Roman law. He also offered a systematic account of two of the most relevant institutions of international relations: diplomacy and war. Gentili’s severe critique of religious intolerance; his drawing of a demarcation between the spiritual and the temporal, the internal and the external forum of conscience; his separation of functions between theologians and jurists; his continuous interpretative effort to find principles of natural law—all of these ideas and attitudes, among others, contributed to the establishment of the theoretical basis of the European modern state and to the building up of an international society of sovereign nations. Gentili probably could not match Vitoria’s philosophical foundations of the law of nations, but he was able to create a practical private framework for international relations in which sovereigns were linked by the natural law and the Justinian Corpus iuris. Gentili’s theory raises the same problems as the idea of sovereignty itself. An indivisible and absolute power, such as any sovereign nation, requires a fragmented international community of sovereign nations, united only by links that do not limit sovereign power (according to Gentili, links of natural law and consent). Inside this weak international framework, war is necessary, at least as the last legal resort to achieve peace. A legal framework which considers war a necessary legal tool is still rudimentary, and that necessity is an expression of the framework’s own incompleteness. Gentili enjoys an extraordinary topicality among scholars and practitioners of international law because the questions of the limits of sovereignty and the legitimization of war continue to be at the core of any serious debate on international law and relations.

Alberico Gentili and the law of nations 107

Notes 1 On the Bodinian idea of sovereignty, see Bodin, On Sovereignty; for the original, see Bodin, Les six livres de la République. 2 Gentili, De iure belli 1.9.64. In general, we follow the English translation but have made some adjustments when necessary. Gentili recognizes that “the learned” Vitoria and Covarrubias also declare that religion is not a good reason for war (De iure belli 1.9.61, p. 39). 3 See Gentili, De iure belli 1.12.92, p. 57: “Keep silence, theologians, in matters which concern others!” 4 Schmitt, 126. 5 Gentilli, De iure belli 1.15.111, p. 69. 6 Grotius, De iure belli ac pacis, Prolegomena § 38: cuius diligentia sicut alios adiuvari posse scio, et me adiutum profiteor [“from his work I confess I have derived assistance, as I believe others will profit too.”] The lecture caused enormous patriotic impact on the young kingdom of Italy. 7 Holland, An Inaugural Lecture. 8 In our day, scholars like Benedict Kingsbury, Benjamin Straumann, Diego Panizza, Andreas Wagner, Ursula Vollerthun, Peter Schröder, Anthony Padgen, Giovanni Minnucci, Diego Quaglioni, and Alain Wijffels, to mention some of them, have produced impressive scholarship on Gentili. See bibliography at the end of the chapter. 9 See Gentili, De Papatu Romano Antichristo, from the manuscript D’Orville 607, Bodleian Library, University of Oxford (1580–85 and 1591). 10 For further biographical information, see Van der Molen; de Benedictis; and Minnucci, “Gentili, Alberico.” 11 Scipione Gentili also became a famous jurist. During his lifetime, his fame in Europe surpassed that of Alberico. See Bianchin. 12 A complete list of Gentili’s works is offered by I.W.F. Maclean, “Alberico Gentili: His Publishers and the Vagaries of the Book Trade between England and Germany,” in Maclean, Learning and the Market Place, 323–37. 13 Gentili, De legationibus libri tres; De iure belli libri tres; Hispanicae Advocationis libri duo. 14 Gentili, The Wars of Romans. 15 See Gentili, De legationibus 3.22.231, p. 201. On the De legationibus, see Feingold. 16 Gentili, De iure belli 1.2.17, p. 12. 17 Ibid., 1.3.22, p. 15. 18 Ibid., 1.3.23, p. 15. 19 Ibid., 1.3.22, p. 15. 20 Ibid., 1.3.23, p. 15. 21 Ibid., 2.1.209, p. 131. 22 Ibid., 3.1.470, p. 289. 23 Ibid., 3.2.482, p. 295. 24 On the importance of this work to understanding Gentili’s thought, see Minnucci, Silete theologi in munere alieno, 190–96. 25 Index librorum prohibitorum SS. Domini nostri Gregorii XVI Pontificis Maximi (Roma: Monteregali 1841), 196: “Gentilis, Albericus, Disputationum de nuptiis libri VII, Dec. 7 aug. 1603;—et caetera ejusdem opera omia, dec. 7 aug. 1603.” 26 Gentili, De iure belli 1.1.1–2, p. 3. 27 Ibid., 1.1.3, p. 4. 28 Ibid., 1.5.46, p. 29. 29 Ibid., 1.1.8, p. 7. 30 Ibid., 1.12.92, p. 57. 31 Gentili, Disputationum de nuptiis libri septem, 112–13: Flammis, flammis libros spurcissimos barbarorum, non solum impiissimos Antichristi. Flammis omnes,

108  Rafael Domingo and Giovanni Minnucci flammis: ut Lutherus magnus facere docuit! On this topic, Minnucci, Silete theologi in munere alieno, 196–202. 32 Gentili, Disputationum libri tres: I. De libris Iuris Canonici. On this topic, Minnucci, “Alberico Gentili: un protestante alle prese con il Corpus Iuris Canonici.” 33 See, for instance, Cicero, De re publica 3.33 and De officiis 3.17.69. For Latin sources, we use The Latin Library: www.thelatinlibrary.com/. 34 Gaius spoke of ius gentium at the beginning of his Institutes (1.1.1) and contrasted it, as did Cicero, with ius civile. Gaius said that civilized peoples—that is, those organized according to law and custom—govern themselves partly by their own law and partly by the law common to all people. The law proper to the city is civil law; the one established by natural reason among all people is called the law of nations because of its universal observance. Natural reason determines, in the abstract, what the law of nations is or could be, and its enforced general application among nations makes it so concretely. 35 Ulpian, in Digest 1.1.6, differentiated the civil law, which he considered proprium or local (ius proprium, id est civile), from a common law comprising both the law of nations and natural law. For Ulpian, however, Cicero’s and Gaius’s bipartite division becomes tripartite (civil law, law of nature, law of nations). According to Ulpian (Digest 1.1.1.3), the reason for this is that the law of nations would be common only to people, whereas the natural law would in general encompass animals as well. For the whole Corpus iuris, we use the edition of Mommsen, Krüger, Kroll, and Schöll. 36 The Emperor Justinian adopted Gaius’s definition of ius gentium and its later three-way division by Ulpian in the sixth century in his Institutes (1.2.1) and Digest (1.1.1.2). 37 Gentili, De iure belli 1.1.10, p. 8. The statement comes from Cicero, Tusculanae Disputationum 1.13.30. 38 Gentili, De iure belli 1.15.109, p. 68. 39 Ibid., 1.15.109, p. 68. 40 Ibid., 1.15.110, p. 68. 41 Ibid., 1.3.26, p. 17. 42 Ibid., 1.1.26, p. 17. 43 Ibid., 1.1.27, p. 17. 44 Ibid., 1.3.28 p. 18. 45 Ibid., 1.3.27, p. 18. On this topic, see Domingo, Roman Law, 169. 46 On the value of Corpus iuris as a legal source among sovereign powers, see Straumann, 102–23. 47 Padgen, 92. 48 Gentili, De iure belli 1.9.65, p. 41: “Religion is a part of the law of nature and therefore that law will not protect those who have no share in it.” 49 See Domingo, God and the Secular Legal System. 50 Gentili, De iure belli 1.12.92, p. 57. 51 In this sense, Phillipson. 52 Gentili, Disputationum de nuptiis libri septem; hereafter De nuptiis. 53 On the importance of this work to understanding Gentili’s thought, see Minnucci, Silete theologi in munere alieno, 190–96. See also Minnucci, Alberico Gentili iuris interpres della prima Età moderna, 19–60, with bibliography. 54 See Ulpian, Digest 1.1.1. 55 Gentili, De nuptiis, 57. 56 See Celsus, Digest 1.1.1pr. 57 See Gentili, De nuptiis, p. 57. On this topic, Minnucci, Silete theologi in munere alieno, 213–14. 58 See Gentili, De nuptiis, 93.

Alberico Gentili and the law of nations 109 9 Ibid., 1.9.61, 39. 5 60 Ibid., 1.9.59, 38. These ideas are firmly rooted in Early Christian Thought (Tertullian and Lactantius, among others). See Wilken. 61 Ibid., 1.9.60, p. 38. 62 Ibid., 1.10.71, p. 44. 63 Ibid. 64 Ibid., 1.11.79–84, pp. 49–52. 65 Ibid., 1.11.84, p. 52. 66 Gentili, De nuptiis, 9–10. 67 Gentili, De iure belli, 1.9.64, p. 41. 68 Ibid., 1.9.66, p. 41. 69 Ibid., 1.9.65, p. 41.

Bibliography Bianchin, Lucia. “Gentili, Scipione.” In Birocchi, et al., Dizionario Biografico dei giuristi italiani, vol. 1, 969–70. Birocchi, Italo, Ennio Cortese, Antonello Mattone, and Marco Nicola Miletti, eds. Dizionario biografico dei giuristi italiani (XII–XX secolo). Bologna: Il Mulino, 2013. Bodin, Jean. Les six livres de la République. Le Plessis Trévise: Myriel, 2017. Bodin, Jean. On Sovereignty. Edited by Julian H. Franklin. Cambridge: Cambridge University Press, 1992. De Benedictis, Angela. “Gentili, Alberico.” In Dizionario biografico degli Italiani, vol. 53, 245–51. Roma: Istituto della Enciclopedia Italiana, 2000. Domingo, Rafael. God and the Secular Legal System. New York and Cambridge: Cambridge University Press, 2016. Domingo, Rafael. Roman Law: An Introduction. London and New York: Routledge, 2018. Feingold, Mordechai. “What’s in a Date? Alberico Gentili and the Genesis of De legationibus libri tres.” Notes & Queries 64 (2017): 312–17. Gentili, Alberico. De iure belli libri tres. The Classics of International Law. Translated by John C. Rolfe and introduction by C. Phillipson. New York: Oceana Publications, 1964. Gentili, Alberico. De legationibus libri tres. Translated by Gordon J. Laing. New York: Oceana Publications, 1964. Gentili, Alberico. De Papatu Romano Antichristo. Edited by Giovanni Minnucci. Milan: Monduzzi Editoriale, 2018. Gentili, Alberico. Disputationum de nuptiis libri septem. Hanau: Apud Guilielmum Antonium, 1601. Gentili, Alberico. Hispanicae Advocationis libri duo. Translated by Frank Frost Abbott. New York: Oceana Publications, 1968. Gentili, Alberico. The Wars of Romans. A Critical Edition and Translation of De Armis Romanis (1599). Edited by Benedict Kingsbury and Benjamin Straumann and translated by David Lupher. Oxford: Oxford University Press, 2010. Grotius, Hugo. De iure belli ac pacis. Translated by Francis Kelsey. New York: Oceana Publications, 1964. Holland, Thomas Erskine. “Alberico Gentili.” In Studies in International Law, edited by Thomas Erskine Holland, 1–39. Oxford, 1898. Reprinted Aalen: Scientia, 1979.

110  Rafael Domingo and Giovanni Minnucci Holland, Thomas Erskine. An Inaugural Lecture on Albericus Gentilis Delivered at All Souls College, November 7, 1874. London: The Macmillan Company, 1874. Kingsbury, Benedict, and Benjamin Straumann, eds. The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of the Empire. Oxford and New York: Oxford University Press, 2010. Lacchè, Luigi, ed. Ius gentium, ius communicationis, ius belli: Alberico Gentili e gli orizzonti della modernità. Atti del Convegno in occasione delle celebrazioni del quarto centenario della morte di Alberico Gentili (1552–1608) (Macerata, December 6–7, 2007). Milano: Giuffrè, 2009. Maclean, I.W.F. Learning and the Market Place: Essays in the History of the Early Modern Book. Leiden: Brill, 2009. Minnucci, Giovanni. Alberico Gentili iuris interpres della prima Età moderna. Milan: Monduzzi Editoriale, 2011. Minnucci, Giovanni. “Alberico Gentili: un protestante alle prese con il Corpus Iuris Canonici.” Ius Ecclesiae 19 (2007): 347–68. Minnucci, Giovanni. “Gentili, Alberico.” In Birocchi, et al., Dizionario biografico dei giuristi italiani (XII–XX secolo), vol. 1, 967–69. Minnucci, Giovanni. “Giuristi, teologi, libertas religionis nel pensiero di Alberico Gentili.” Teoria e História do Direito 3 (2017): 13–36. Minnucci, Giovanni. “La Riforma, il diritto canonico e i giuristi protestanti: qualche spunto di riflessione.” Historia et ius. Rivista di storia giuridica dell’età medievale e moderna 15 (2019): 1–23. Minnucci, Giovanni. Silete theologi in munere alieno. Alberico Gentili tra diritto, teologia e religione. Milan: Monduzzi Editoriale, 2016. Mommsen, Theodor, Paul Krüger, Wilhelm Kroll, and Rudolf Schöll, eds. Corpus Iuris Civilis. 3 Vols. Hildesheim: Weidmann, 1989–93. Pagden, Anthony. The Burdens of Empire: 1539 to the Present. Cambridge and New York: Cambridge University Press, 2015. Panizza, Diego. Alberico Gentili, giurista ideologo nell’Inghilterra elisabettiana. Padova: Tipografia “La Garangola,” 1981. Panizza, Diego. “Political Theory and Jurisprudence in Gentili’s De Iure Belli: The Great Debate Between ‘Theological’ and ‘Humanist’ Perspectives from Vitoria to Grotius.” IILJ Working Paper 2005/15 History and Theory of International Law Series. New York University School of Law. http://iilj.org/wp-content/ uploads/2016/08/Panizza-Political-Theory-and-Jurisprudence-in-Gentilis-DeIure-Belli-2005-1.pdf. Phillipson, Coleman. “Introduction.” In De iure belli libri tres, edited by Alberico Gentili, 9–51. New York: Oceana Publications, 1964. Quaglioni, Diego, ed. “Introduzione.” In Il diritto di guerra, edited by Alberico Gentili and translated by Pietro Nencini, ix–xxxiii. Milan: Giuffre, 2008. Quaglioni, Diego. “The Italian Readers of Bodin, 17th—18th Centuries: The Italian Readers Out of Italy: Alberico Gentili.” In The Reception of Bodin, edited by Howell A. Lloyd, 371–96. Leiden: Brill, 2013. Schmitt, Carl. The Nomos of the Earth in the International Law of the Ius Publicum Europeaum. Translated by G.L. Ulmen. Candor, NY: Tellos Press Publishing, 2006. Straumann, Benjamin. “The Corpus Iuris as a Source of Law Between Sovereigns in Alberico Gentili’s Thought.” In Kingsbury and Straumann, The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of the Empire.

Alberico Gentili and the law of nations 111 Tuck, Richard. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford University Press, 1999. Van der Molen, Gesina H.J. Alberico Gentili and the Development of International Law: His Life Work and Times. 2nd ed. Leyden: A.W. Sijthoff, 1968. Vollerthun, Ursula. The Idea of International Society: Erasmus, Vitoria, Gentili, and Grotius. Edited by James L. Richardson. Cambridge and New York: Cambridge University Press, 2017. Wagner, Andreas. “Alberico Gentili: Sovereignty, Natural Law, and the System of Roman Civil Law.” In System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel, edited by S. Kadelbach, T. Kleinlein, and D. Roth-Isigkeit, 92–114. Oxford and New York: Oxford University Press, 2017. Wagner, Andreas. “Francisco de Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth.” Oxford Journal of Legal Studies 31/3 (2011): 565–82. Wijffels, Alain. “Alberico Gentili e il rinnovamento del diritto pubblico nella tradizione dello ius commune.” In Alberico Gentili (San Ginesio 1552—Londra 1608). Atti dei Convegni nel Quarto Centenario della morte, vol. 2, 519–56. Milano: Giuffrè Editore, 2010. Wijffels, Alain. “Antiqui et recentiores: Alberico Gentili—Beyond Mos Italicus and Legal Humanism.” In Reassessing Legal Humanism and Its Claims. Petere fontes? edited by Paul du Plessis and John W. Cairns, 11–40. Edinburgh: Edinburgh University Press, 2015. Wijffels, Alain. “From Perugia to Oxford: Past and Present of Political Paradigms.” In Alberico Gentili. La tradizione giuridica perugina e la fondazione del diritto internazionale, 57–78. Perugia: Università degli Studi, 2010. Wilken, Robert Loius. Liberty in the Things of Go: The Christian Origins of Religious Freedom. New Haven and London: Yale University Press, 2019.

7 Johannes Althusius and the universal rule of natural laws and rights John Witte, Jr.

Calvinist jurist Johannes Althusius (1557–1638) developed what he called a “universal” account of “the “ultimate rule of natural laws and rights” for the wartorn society of his day.1 Born in Germany, he studied law, theology, philosophy, and the classics at the universities of Cologne, Geneva, and Heidelberg, before taking his doctorate of civil law and canon law from the University of Basel. He taught Roman law from 1586 to 1604 at Herborn Academy, a new and rapidly growing Calvinist college. In 1604, Althusius moved to Emden, an important seaport city and Calvinist stronghold in eastern Frisia. He served as legal counsel for the city (Stadtsyndicus) and as a member of the local Calvinist consistory court. While he gave occasional lectures and opinions in law, he did not hold a formal university position thereafter and turned down attractive professorships in Leiden and Frankener. But he wrote voluminously, leaving a score of books, two of which proved critical for his universal law project. His massive Politics of 1603 (expanded in 1610 and again in 1614), set forth a comprehensive theory of social, political, and legal order and activity, and the forms and norms of sovereignty, authority, and liberty that obtain within each sphere.2 His three-volume Theory of Justice (1617) laid the groundwork for a comprehensive theory of law and justice, with attention to the rights and liberties of private persons and the various private and public associations that they formed.3 Althusius presented these two big tracts, on their title pages, as “comprehensive,” “total,” and “universal” accounts of politics and law. Each tract was amply illustrated by “sacred and profane examples.” Each tract used the dialectical method of the French Calvinist logician Peter Ramus, by which Althusius defined the first principles of these disciplines, and then divided their constituent precepts and practices into a series of ever more particular binary opposites. Each tract drew on hundreds of scholarly sources—sundry ancient Greeks and Romans; the Bible and Apocrypha; various apostolic and patristic writers; numerous medieval theologians, philosophers, and civilians; a few canonists and rabbis; various Protestant jurists; numerous contemporary Catholic and Protestant political writers; and several collections of civil, imperial, feudal, and urban law, ancient and modern. Using this vast library, Althusius aimed to explore deeply

Althusius and natural laws and rights 113 the foundations and fundamentals of law, politics, and society and to bring the insights of the entire Western tradition into a “total” and “universal” theory that would appeal not only to fellow Calvinists and Christian countrymen but to anyone in his world who was serious about faith and order, authority and liberty, justice and equity.

Natural law, common law, and positive law A “universal natural law” was one of the foundations of Althusius’s impressive new system of law and politics. (Complex theories of natural rights, human nature, symbiotic association, social contract, divine covenant, written constitutionalism, and political federalism were among the other foundations.) Particularly in later editions of his Politics and in his Theory of Justice, Althusius set out to demonstrate the ultimate concordance between biblical and rational, Christian and classical teachings on the origin, nature, purpose, and end of law. Althusius effectively merged the hierarchies of law developed by fellow jurists and theologians of his day, both Catholic and Protestant. Civil law and canon law jurists, as he read them, generally distinguished three main types of law: (1) the natural law or law of nature, the set of immutable principles of reason and conscience that are supreme in authority and divinity; (2) the law of nations or common law, the legal principles and procedures that are common to multiple political communities and often the basis for treaties and other diplomatic conventions; and (3) the civil law or positive law, the statutes, customs, and declarations of various states, churches, fiefdoms, manors, and other local political communities. Theologians, in turn, generally distinguished three main types of biblical law: (1) moral law, the enduring moral teachings of the Decalogue and the New Testament; (2) juridical or forensic law, the rules and procedures by which ancient Israelites and apostolic Christians governed their religious and civil communities; and (3) ceremonial law, the Mosaic laws of personal diet, ritual sacrifice, priestly life, and the like that governed the religious life of the ancient Israelites.4 Althusius eventually collapsed these traditional legal terms and hierarchies into two main types of law: natural laws and positive laws. And he subsumed most of the other traditional types of law within these two categories. He treated the moral laws of the Bible and the common laws of nations as two visible forms of the same invisible natural law hidden within each person’s reason and conscience. And he regarded the laws of ancient Israelites and of modern churches as two types of positive law that stood alongside the positive laws of historical and modern states. The modern validity of all these positive laws turned on their concordance with natural law. Their modern utility for the state turned on their compliance with the fundamental law (lex fundamentalis) of the community, which ideally would be set out in a written constitution.5 Natural law is “the will of God for men,” Althusius argued. God has “written this natural law” on the hearts, souls, minds, and consciences of all persons, as

114  John Witte, Jr. Romans 2:15 and sundry other biblical and classical sources make clear. Everyone, by his or her very nature, thus has the “ideas and inclinations of this natural law” born within them. Some of these “natural inclinations” are common to humans and animals. Like animals, humans by nature are inclined to “preserve their lives and to procure the necessities to remain alive.” They are inclined to defend themselves against force and force majeure. They are inclined to ally themselves with others and to rally around natural leaders to aid them in their selfdefense. They are inclined to “procreate by the union of male and female and to educate their natural-born children.” They are inclined to care for themselves and for their loved ones when they are sick, hurt, or ailing. Self-preservation, selfprotection, and self-perpetuation are “natural inclinations” that the natural law teaches to persons and animals alike.6 The natural law also teaches persons higher ideas that appeal uniquely to human reason and conscience. By them, each person “understands what justice is, and is impelled by this hidden natural instinct to do what is just and to avoid what is unjust.” Through the natural law, God commands all persons to “live a life that is at once pious and holy, just, and proper.” He teaches them the natural “duties of love that are to be performed toward God and one’s neighbor.” He sets out the basic “rules of living, obeying, and administering” that must govern all persons and associations. He sets forth “general principles of goodness and equity, evil, and sinfulness” that every person must know in order to live with self and others. God teaches the “actions and omissions that are appropriate to maintaining the public good of human society” as well as the private good of households and families. By the natural law, Althusius wrote in summary, “God teaches and writes on human hearts the general principles of goodness, equity, evil, and sin, and he instructs, induces, and incites all persons to do good and avoid evil. He likewise condemns the conscience of those who ignore these things and excuses those who do them. He thereby directs them to goodness and dissuades them from evil. If they follow the path of goodness, he excuses them. If they do not, he condemns them.”7 This natural law has had many names in the classical and Christian traditions, Althusius recognized: Godly law, divine law, moral law, natural law, natural justice, natural equity, the law of conscience, the law of the mind, the law of reason or right reason, the law inside people, the immutable law, the supreme law, the general law, the common law, and others. Parsing the names for the natural law was not so important to Althusius. He regarded them mostly as synonyms and used them interchangeably.8 Knowing the norms that the natural law teaches was the more important and the more difficult task. Althusius knew the traditional formula taught by the medieval scholastics and by the neoscholastics of his day: that the natural law gives all persons an innate or natural knowledge of good and evil (called synderesis), that by exercising their reason persons can come to understand the norms of this natural law, and that by exercising their conscience they can learn to apply these norms equitably to concrete circumstances. But Althusius also recognized that, throughout history, persons and peoples have reached different

Althusius and natural laws and rights 115 formulations and applications of the natural law. Even in avowed Christian societies today, persons have different degrees of this [natural] knowledge and inclination. This law is not evidently inscribed equally on the hearts of all. The knowledge of it is communicated more abundantly to some and more sparingly to others, according to the will and judgment of God. Given this reality, how can we really know “the nature of the norms of the law that are implanted in us by nature?” How can we be absolutely certain that we as individuals, or as the leaders of our communities, have “a true perception” of the contents of the natural law? How can we even know which person’s or community’s formulations of the natural law are better than another’s? Persons are fallible creatures who perceive natural law only “indirectly,” “circumstantially,” “through a glass darkly,” through “flickering shadows” cast from distant caves of light. Communities have widely variant “customs, natures, attitudes, and viewpoints” that are affected by the “age, condition, circumstances, and education” of their members. There is no universal code of written natural law to consult. So how can we be sure of the natural law’s norms and contents?9 We can know the norms of the natural law if we study both scripture and tradition, revelation and reason very carefully, Althusius argued. We know that God has given a fuller revelation of his law in the Bible, particularly in the Ten Commandments and in the moral teachings of Moses and the Prophets, Christ and the Apostles. This cannot be a new form of natural law, for God would not and could not contradict the natural law already revealed to all of us in and through our human nature. Biblical moral law is rather a more perfect conformation and elaboration of the natural law ideas and inclinations that are already inscribed on the hearts and minds of everyone, believers and nonbelievers alike. Through Moses, God rewrote on stone what was already written on our hearts. Through Christ, God rewrote this law anew by fulfilling its commandments and promises and by teaching Christ’s followers how to discern its “weightier matters.” To be sure, Althusius acknowledged, biblical moral law has clearer precepts and higher purposes than any other form of natural law. It provides a more certain knowledge of the will of God for our lives. It sets out a pathway to salvation for those who can abide by its letter and a pathway to sanctification for those who can live by its spirit. But the Bible’s moral law only rewrites more copiously the natural law that is already written cryptically on the hearts of all people.10 While the Bible has rewritten the natural law for believers to discern, reason and experience have rewritten this natural law for believers and nonbelievers to discover. In every major civilization, Althusius argued, enlightened leaders and magistrates have emerged who have used their natural reason to translate the general principles of natural law in their minds into specific positive laws tailored to “the customs, nature, needs, attitudes, conditions, and other special circumstances” of their communities. This activity has produced widely variant positive laws over time and across cultures, particularly when these local laws are viewed

116  John Witte, Jr. in their details. But these enlightened leaders have also inevitably positioned these laws to reflect some of the natural light within their hearts, and have maintained and extended these laws and legal traditions because they have proved to be both right and useful. Over time, laws have emerged that are common to many peoples and polities, even those that have had no interaction with each other.11 Every major civilization, said Althusius, has developed comparable sets of law to govern religious worship and observance; to honor marriage and the family; to obey authorities and to respect traditions; to protect human lives, properties, and reputations; to care for relatives, widows, orphans, and the poor; to speak respectfully to others; to testify truthfully; to honor promises, contracts, and agreements; to vindicate wrongs and to punish wrongdoers; to fight wars and repel attacks; and to give to each and everyone what is due. These are “universal” or “common” laws, independently developed by different peoples and polities over time and across cultures. They should be seen as “visible expressions of the same invisible natural law” within all persons, reflections of “the natural and divine immutable equity that is mixed into them,” and indications “of the common practice of natural law” around the globe.12 These “common laws of all nations”—gathered from the commonplaces of sundry positive laws and the common practices of sundry legal communities— stand alongside biblical moral laws as a second form and forum of natural law, Althusius wrote. Indeed, at a certain level of abstraction, the moral laws of the Bible and common laws of the nations converge, even though they have very different origins, ends, and languages. “A law is both natural and common if the common use of right reason produces it for the necessity and utility of human social life. It, too, can then be called natural law.” “While some distinguish among common law (ius commune), natural law (ius naturale), and the law of nations (ius gentium), others more properly call each of them forms of the [same] natural law.”13 Althusius rested his case about the contents of the universal natural law most firmly on the confluence between the commandments of the Decalogue and the moral teachings of sundry classical traditions. For him, the Decalogue was the clearest and most comprehensive confirmation and codification of the natural law, of every person’s inner natural inclinations to piety and justice, to faith and order, to love of God and love of neighbor. As such, “the Decalogue has been prescribed for all people to the extent that it agrees with and explains the common law of nature for all peoples.” “The precepts of the Decalogue . . . infuse a vital spirit into the association and symbiotic life that we teach.” “They carry a torch to guide the kind of social life that we desire; they prescribe and constitute a way, rule, guiding star, and boundary for human society.”14 Althusius repeatedly worked through each of the Ten Commandments to show their enduring natural law teachings. His formulation in the 1614 Politics reads thus: The first commandment of the first table is about truly cherishing and choosing God through the knowledge of him handed down in his word,

Althusius and natural laws and rights 117 and through unity with him accompanied by a disposition of trust, love, and fear. . . . The second commandment is about maintaining in spirit and in truth a genuine worship of God through prayers and the use of the means of grace. . . . The third commandment is about rendering glory to God in all things through the proper use of the names of God, oaths of allegiance to him, respect for what has been created by the Word of God and intercessory prayers. . . . The fourth commandment is about sanctifying the Sabbath in holy services through hearing, reading, and meditating upon the Word of God. . . . The fifth commandment is about those things that inferiors are expected to perform toward superiors and vice versa. . . . The sixth [commandment] requires the defense, protection, and conservation of one’s own life and that of one’s neighbor. The conservation of one’s own life comes first, and consists in defense, conservation, and propagation of oneself. . . . Conservation of the neighbor’s life is his protection through friendship and other duties of charity, such as provision for food, clothes, anything he else needs to be sustained. . . . The seventh commandment concerns the conservation of one’s own mind and body and that of one’s neighbor through sobriety, good manners, modesty, discretion, and any other appropriate means. . . . The eighth commandment concerns the defense and conservation of one’s goods and those of one’s neighbor, and their proper employment in commerce, contracts, and one’s vocation. . . . The ninth commandment concerns the defense and conservation of the good name and reputation of oneself and one’s neighbor through honest testimony, just report, and good deeds. . . . The tenth commandment concerns concupiscence, and exerts influence on each of the precepts of the second table. [As Cicero wrote:]: “We are taught by the authority and bidding of laws to control our passions, to bridle our every lust, to defend what is ours, and to keep our minds, eyes, and hands from whatever belongs to another.”15 These moral teachings of the Decalogue are echoed and elaborated elsewhere in the Bible, said Althusius—particularly in the Gospel’s repeated explications of the spirit of the Decalogue and in the many moral lessons set out by the Old Testament prophets and New Testament apostles. These enduring moral laws of the Bible must lie at the foundation of the positive law of any modern Christian polity. But not all biblical law should be taken as natural law or considered mandatory or even useful for our day, Althusius insisted. Many of the 613 Mosaic laws are simply the positive laws of and for the ancient Jewish people. Many of the legal actions and admonitions of the patriarchs, judges, and kings of ancient Israel are simply evidence of one positive law system in action. Particularly the Mosaic “ceremonial” laws and customs respecting diet, dress, sacrifice, ritual, levitical life, temple rules, and more, even though authored by God, were specific to the time and place of this ancient, wandering tribal people. Mosaic ceremonial laws, let alone the later rabbinic accretions upon them, have no place in modern Christian communities—save as an illustration of how one legally sophisticated ancient

118  John Witte, Jr. community exercised its natural inclinations and obligations to religious worship and ritual life. While a modern Christian magistrate would do well to develop a comparable set of ceremonial laws tailored to the needs of the local community, and perhaps even emulate some of the ancient biblical prototypes, a magistrate today cannot simply “impose these Jewish positive laws, which by their nature are changeable and obsolete.” That would be to “destroy the Christian liberty” that Christ gave us and to “entangle himself and others in a yoke of slavery.”16 More useful in our day, for Christian and non-Christian polities alike, are the “juridical laws” of Moses, Althusius continued. These are the many detailed laws and procedures set out in the Bible to govern crime and tort, marriage and family, property and commerce, procedure and evidence, and more. These provisions are more useful and probative because they give more specific content, context, and coherence to the Decalogue and other statements of natural law. “[T]he moral commandments of the Decalogue are general,” Althusius wrote. “They have no certain, special, and fixed punishment attached to them,” let alone procedures for their just and equitable interpretation or enforcement. The juridical law of Moses “makes more specific determinations, which it relates to the circumstances of the act.” So, while the natural law commands “that evildoers ought to be punished,” it “proposes nothing concerning the punishment,” save the bald commandment, “thou shalt not kill,” which cannot be just in all circumstances. The juridical law “works out specifically that adulterers, murderers, and the like are to be punished by death, unless the punishment should be mitigated on account of other circumstances. The Mosaic law has various punishments for these crimes,” and prescribes a number of useful procedures to weigh the evidence and to determine a just punishment.17 Similarly, the Mosaic juridical law offers a number of useful legal rules and procedures for the acquisition, use, and maintenance of public and private property, for the litigation and settlement of private disputes, and for the proper interactions between husband and wife, parent and child, master and servant, creditor and debtor, seller and buyer. None of these juridical positive laws of Moses should be considered binding upon modern-day Christians just because they happen to be in the Bible. But insofar as they are parts and products of the natural law, these juridical laws are edifying for our day and can be appropriated as apt in the construction of modern positive laws.18 What underscored the natural validity and modern utility of the juridical laws of Moses was that they often had parallels in other legal systems, most notably in classical Roman law. “Virtually all Europeans still use” the classical Roman law, wrote Althusius, because its detailed laws have also proved to be “both right and useful.” To be sure, some ancient Roman law provisions betrayed the natural law more than illustrated it. Think of the many old laws celebrating the pagan imperial cult, the domestic laws that permitted infanticide or sodomy, the commercial laws that countenanced exploitation of orphans, captives, slaves, and others. Such laws that openly contradict the Decalogue and other natural law principles cannot be viewed as binding on anyone—as the early apostles and Church Fathers already made clear in their call for legal reforms of Roman society. But the classical Roman law texts also hold numerous more enlightened legal teachings, many

Althusius and natural laws and rights 119 parallel to those in Mosaic juridical law, that are “consistent with the natural law and that cater to public utility and the common good.” Some of these Roman laws have also been adopted and adapted into the canon laws of the medieval church and the civil laws of early modern European nations. When these ancient Roman law texts and their later legal adaptations are interpreted and applied “naturally, equitably, and justly,” they, too, can be taken as reflections and illustrations of the natural law in action.19 This was the method that Althusius used to work out a universal system of public, private, penal, and procedural law for his day. He started with the natural law principles of scripture and tradition. He then cited the elaboration of these principles in the precepts and procedures of various legal systems with an eye to discovering and demonstrating what they held in common. He combed very carefully through biblical law and classical Roman law. He rummaged more freely and selectively through medieval and early modern civil law, canon law, feudal law, manorial law, and urban law, placing hundreds of texts side by side to demonstrate the universality of a given legal proposition. Althusius’s method was not always so neat or cogent. Sometimes he gave inconsistent accounts of the same natural law principle or precept in different writings. Sometimes he just dumped into one long string citation all kinds of passages whose intersection with each other, let alone integration with the natural law principle in question, was not obvious. Sometimes he would pluck out one ancient passage as normative, even when many other passages in the same source qualified or contradicted the one he singled out. Sometimes he would just arbitrarily pick a provision from Mosaic, civil, or canon law and declare it to be a proposition of universal law, without showing its analogues in other legal systems. There was more a priori reasoning at work in Althusius’s theory than he let on. But, these caveats aside, his exhaustive demonstrative method of argument produced an astonishingly comprehensive and complex jurisprudence.

An illustration of natural rights Althusius used this demonstrative method to work out a detailed account of all manner of legal subjects—conscience and commandment, contracts and covenants, procedure and evidence, advocacy and appeal, marriage and family, corporations and associations, business and commerce, torts and crimes, property and poverty, rights and liberties, privileges and immunities, federalism and constitutionalism, and more. Space permits just one illustration, but an important one for the emergence of global law: how Althusius used this method to develop a system of “natural rights and liberties” for his day. Natural rights, he said, were either affirmative or negative claims that a party could make on the basis of natural law—“the right, freedom, or power to act by and for oneself” and the right, freedom, or power to be free from or to forgo acting, or more simply the “rights to freedoms” of various sorts. Again, using the natural law distillation in the Decalogue, Althusius distinguished two main classes of natural rights: (1) “religious rights and liberties” and (2) “social rights and

120  John Witte, Jr. liberties.” Althusius called both classes of rights “fundamental rights”—indispensable to the survival of a person and polity and foundational to any more specific rights formulations by positive laws, whether set out in statutes or in written constitutions.20

Religious rights and liberties Althusius enumerated briefly the natural religious rights that were anchored in the First Table. “Each and everyone in the whole realm should worship freely and fully without any fear or peril,” he wrote. A person has the right to discharge the duties of his or her faith, and must be free from any coercion to worship false gods, to maintain graven images, to swear false oaths, or to take the name of God in vain. A person must be free to “enjoy” and “to observe the Sabbath Day,” and “to labor six days and to rest on the seventh.” If state authorities violate these natural rights of religion, they are engaging in tyranny and should be resisted. If other persons or associations (including the church) violate these rights, they are engaging in crime and should be prosecuted.21 Althusius defended the absolute liberty of conscience (libertas conscientiae) but insisted on a qualified right of religious exercise (liberum religionis exercitium).22 Althusius saw absolute liberty of conscience as the natural corollary to the absolute sovereignty of God, a doctrinal staple of Calvinism. Sovereignty is a legal term, said Althusius, a power to command and control. Through the opening words of the Decalogue, “I am the Lord, thy God,” the Bible makes clear that “God alone can command the conscience.” God alone can bring a person “out of the house of sinful bondage” and into the “promised land”—whether in this life or in the next. God alone can change the hearts and charge the souls of men and women. No person or authority may thus require a person “to believe against his will. Faith must be persuaded, not commanded; it must be taught, not ordered.” To invade the sanctuary of conscience is to impugn the sovereignty of God; “to impose a penalty on the thoughts of men” is to obstruct the work of the Holy Spirit. “The natural law imparts to all men a freedom of the soul or mind (libertas animi),” Althusius wrote. “The exercise of this right cannot be hindered by a command or order, by fear or compulsion.”23 While everyone must enjoy absolute freedom of conscience, lest the sovereignty of God be invaded, no one can enjoy absolute “freedom of religious exercise,” lest the integrity of society be imperiled. The ideal is that all will see the same divine light and come to the “one true orthodox Christian religion”—by which Althusius meant Calvinism. But, given human sinfulness, no such religious uniformity has ever existed in history, and no such uniformity obtains in any nation today. Individual households and congregations, sometimes even small villages and towns, may practice a uniform faith, but this uniformity rarely exists beyond the local level, Althusius said pragmatically. At the provincial, national, and imperial levels, religious pluralism is inevitable, and the magistrate must tolerate all forms of faiths whose presence does not offend God, threaten the integrity of the true church, or endanger the common good of society as whole.24

Althusius and natural laws and rights 121 Judged by the standards of our day, Althusius’s theory of religious rights and liberties was decidedly churlish, despite his promising opening admonition that “each and everyone in the whole realm should worship freely and fully without any fear or peril.” Elsewhere he qualified this statement. He tolerated Protestants of various sorts but thought only “orthodox Calvinists” should receive support from the government. He tolerated Jews and Catholics but only so far as they stayed to themselves, had no public sanctuaries for worship, and received no state support. He tolerated peaceable heretics and nonbelievers in the community, but only so long as they remained unorganized and unpublished. Judged by the standards of his own day, however, Althusius’s theory was more generous. His was a day when most states gave little place to religious dissenters and had little pause about slaughtering or banishing the religiously wayward or impure. Spain was establishing the Catholic decrees of the Council of Trent on all parties by the point of the sword and the terrors of the Inquisition. The Peace of Augsburg (1555) empowered magistrates to establish either Catholicism or Lutheranism in the Holy Roman Empire, with religious dissenters granted only the rights to leave peaceably—and quickly at that. The Edict of Nantes (1598) reestablished Catholicism in France and granted toleration only to Calvinists, but these restricted rights were melting away by the time Althusius was writing, on their way to being violently rejected by the Edict of Fontainebleau (1685). England’s Parliament issued a whole series of severely repressive acts against “papists,” “sectaries,” and others who dissented from the Church of England, and these laws triggered bitter persecutions of non-Anglicans from the 1580s to the 1630s. The Netherlands, by comparison, was something of a haven for religious dissenters, and Althusius defended its policies more progressively than did many others. John Locke’s Letter on Toleration, for example, published three generations later, in 1689, granted no toleration to Catholics, Muslims, and other believers “who deliver themselves up to the service and protection of another prince,” and no toleration to those “who deny the being of a God” for “promises, covenants, and oaths which are the bonds of human society, can have no hold upon an atheist.”25

Social rights and liberties Using the commandments of the Second Table of the Decalogue, Althusius set out five clusters of natural social rights and five corresponding duties that other persons and groups, including the church and state, owed to the rights holder. First, everyone has the right to “natural life” and “bodily liberty and protection.” This Althusius called “the most important” and basic right of the person. He included within it the freedom to nourish, protect, and care for one’s own life and limb, the right to carry arms for protection, the right to proportionate defense of oneself and one’s possessions that are needed for life, freedom from murder, assault, and personal injury, and freedom from unjust punishment, imprisonment, repression, or detainment. The commandment “thou shalt not kill” imposes the corresponding duties on everyone not to “hurt, strike, or treat his body in any inhumane way,” or to “diminish or take away the use of his

122  John Witte, Jr. body.” Among family members, this commandment imposes on each the duty to protect and care for their parents, siblings, and children, as well as their kin if they are able. Second, everyone has the “right to purity and chastity” (castitas et pudicitia)—the right to keep oneself holy, chaste, and pure in mind and body, and to restrict and resist the actions of others who threaten or violate this right. The commandments against adultery and coveting one’s neighbor’s possessions impose the corresponding duties on all to desist from fornication and lust, and to deal with the neighbor “free from the passion of our concupiscence and perverse desire.” Third, everyone has the “right to property” (dominium), to the “fruit of his labors,” and “to goods that he uses and enjoys.” The commandment against stealing requires others to respect and conserve a neighbor’s “title, possession, and use” of his or her property and not to injure, diminish, or remove these property interests. Fourth, everyone has the right to a good reputation—the right to enjoy the “honor,” “good name,” “standing, excellence, dignity, fame, authority, esteem, and prominence” that become his or her status and station in society as accorded by nature, custom, law, and circumstance. The commandment “thou shalt not bear false witness” imposes the corresponding duty on everyone to protect the reputation and good name of their neighbors and desist from insults, lies, defamation, and slander. Fifth, everyone has the “right to a family” (ius familiae)—the right to marry, to procreate, nurture, and educate their children, and to have their marriage, family, and household respected and protected. The commandments about honoring parents, not committing adultery, and not coveting a neighbor’s wife, in turn, impose on everyone else the duty to respect the “honor, authority, dignity, and preeminence, and indeed the right of the family.”26 These five basic natural rights of social life undergirded various public, private, and procedural rights that were to be “constituted” and supported by the positive law of the state. Althusius touched briefly on public rights of domicile, voting, representation, and fair treatment. Each person who is born in a city or properly immigrates to it, he wrote, has the “rights and powers of dwelling in the city, of setting up a residence and household, of transferring one’s family and possessions thereto, of having a workshop in the same place, of being a member of the private association that fits their vocation and profession, and of engaging in commercial activity.” Each person also has “the power of using and enjoying all rights, advantages, and benefits that the whole city has established for all citizens, and approved by common consent.” The most important of these is the “right to vote in the common business and actions of managing and administering the city, and the form and manner by which the city is ruled and governed according to laws it approves and a magistrate that it constitutes with the consent of the citizens.” Each person also has the right to have his or her interests represented in and by the government. And each person has a general right to “fair treatment” by the authorities: “Peace is cultivated and fairness is protected when right, liberty, and honor are extended to each citizen according to the order and distinction of his worth or status.”27 “Fairness” (aequabilitas) for all citizens, however, is not the same as “equality” (aequalitas) of all citizens. To “level all individual

Althusius and natural laws and rights 123 citizens” without regard for their abilities, achievements, offices, or obligations not only is “unfair” and “unjust” but will only bring manifest “disorder.”28 Althusius was more expansive in his discussion of private rights. Private rights were an essential “possession” and “protection” of the individual, he argued, and it was vital that the state’s private laws protect these private rights in detail. At its most elementary level, Althusius argued, all private law can be reduced to three basic loci: (1) property or things—whether universal or particular, real or personal, corporal or incorporeal, movable or immovable; (2) persons—whether single or in natural, voluntary, or contractual groups, whether acting on their own or on behalf of their group or office; and (3) the acts that persons commit, perform, or forgo—voluntarily or involuntarily, intentionally or unintentionally— respecting things, persons, or various combinations of things and persons. Private rights fall into two main classes that straddle these three loci of private law. These rights are rooted in either (1) property or things (dominium), or (2) voluntary or involuntary obligations (obligationes). The law of private rights concerns (1) how these rights of property and obligation are acquired, distributed, or alienated, and (2) how they can be met, discharged, or vindicated by proper legal actions or procedures.29 Althusius’s intricate and lengthy discussion of the rights rooted in property reflected Roman and civil law lore. He differentiated the rights of title and possession, acquisition and use, alienation and devise, and the like that attach to various real and personal, tangible and intangible property interests. Each of these property interests, he showed, can be acquired temporarily or permanently, in whole or in part, and by various legitimate means: by tradition and custom, by contract or gift, by occupation and use, by purchase or loan, by testate or intestate succession, each of which has a whole complex set of rules governing them. He then showed how each of these property interests creates various powers and liberties that are vested in individual persons or in voluntary groups of persons— those bound by marriages, families, partnerships, corporations, churches, schools, guilds, and more.30 Private rights are grounded not only in property but also in obligations between and among persons (obligationes). Althusius differentiated between natural and contractual obligations. Natural obligations are generally those based on “natural associations” that are chosen for us more by nature or by circumstance than by contract or consent—such as between parent and child, brother and sister, neighbor and neighbor, and the like. These natural associations create mutual rights and duties of care, support, loyalty, and others in faithful discharge and adherence to the essential tasks and dispositions for that natural relationship.31 For example, parents have the natural obligation to nurture and educate their children and the right to preclude others from violating their children or interfering in their childrearing without cause. Husband and wife, in turn, have a right to their spouse’s performance of these child-rearing duties.32 Contractual obligations are those that a person voluntarily promises or undertakes to discharge, which, in turn, trigger rights of reliance or expectation in obligees and beneficiaries of those contractual promises. Althusius distinguished

124  John Witte, Jr. all manner of contracts—private and public, written and oral, nominate and innominate, mediated and unmediated, bilateral and multilateral, present and future, gratuitous or commercial, guaranteed and contingent, and others which parties enter into for all manner of personal, commercial, banking, labor, service, and other reasons. Althusius championed “freedom of contract,” which he called a “founding principle of the commonwealth,” and he dwelt at length on the requirements of consent, capacity, and competence that make this freedom of contract real. Once a fit and competent party fully and freely consents to a contract, he argued, this triggers a right in others to have those contractual duties discharged.33

Summary and conclusions Althusius was writing for an early seventeenth-century world that was wracked by the Inquisition and by religious warfare between and among Protestants and Catholics. He was writing for a fragile Netherlands that was still struggling to create a coherent nation-state after its bloody revolt from Spain. He was writing for a Holy Roman Empire, a vast archipelago of 350 polities, each bent on preserving its own precarious rights and liberties, often at the cost of its neighbors. And he was writing for a Christian world that was rapidly extending itself into distant colonies across the oceans and trying to make peace with the vast Muslim, Hindu, Buddhist, and indigenous peoples of the global south and east. Althusius’s theory of natural law and natural rights was an overt effort to produce a new concordance of discordant canons that transcended differences of creed, country, and custom. Inevitably, Althusius’s universal theory of law was a creature of his time, and his legal ken was conditioned by the legal sources at his disposal. But it is remarkable to see how fresh and vital his legal insights remain even for our day. And, it is tempting to experiment anew with Althusius’s “demonstrative theory” with a wider set of legal texts before us—not just texts from the classical, Jewish, and Christian West, but legal texts from all the axial religions and cultures around the world.34 This “demonstrative method” might well show the world today that, despite our bitter culture wars and bloody military battles, there is great deal more confluence than conflict in our fundamental legal teachings and practices. Indeed, developing a new world concordance of discordant canons might well hold far greater promise for peace and order than negotiating yet another transient treaty or temporary truce.

Notes 1 This article is excerpted in part from my volume The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007), ch. 3. 2 Althusius, Politica methodice digesta atque exemplis sacris & profanis illustrata. See abridged English translation, Politica Johannes Althusius, ed. and trans. F.S. Carney (Indianapolis, IN: Liberty Fund, 1995); abridged German text of the 1614 edition published as Althusius, Politik, and Latin and English versions of the

Althusius and natural laws and rights 125 preface to the 1610 edition in Laursen, 193–201. I have used the 1614 Friedrich edition unless otherwise noted, and adapted the English translation by F.S. Carney in Politica [hereafter Pol.] 3 Althusius, Dicaeologicae libri tres, totum et universum Jus, quo utimur, methodice complectentes; I have used the 1618 edition throughout [hereafter Dic.]. 4 Dic. 1.13.6, 10; Pol. XXI.35–40; Pol. XXII.1–12; Pol., Preface (1603, 1610, and 1614 eds.). 5 Pol. X.4; Pol. XIX.6, 15, 23, 29, 49; Pol. XX.18; Pol. XXVIII.30–32; Dic. I.13.3, 6–8. 6 Dic. I.13.10–18; Pol. I.32–39; Pol. IX.21; Pol. XVIII.22; Pol. XXI.16–19; Pol. XXXVIII.37. 7 Dic. I.13.1, 14–15; Pol. XXX.16, 19–20. 8 Dic. 1.13.13–18; Dic. I.14; Pol. XXI.1–20. 9 Dic. I.6.4–6, 26; Dic. I.13.16–18; Pol. XXI.20–21; Pol. XXIII.1–20. 10 Pol. VII.7–12; Pol. X.3–12; Pol. XVIII.32–44; Pol. XXI.22–29. 11 Dic. 1.13.4–18; Dic. 1.14.1–14; Dic. I.35.22–23; Pol. VII.7–12; Pol. IX.20–21; Pol. X.3–12; Pol. XVIII.32–44; Pol. XXI.22–29; Pol. XXII passim. 12 Ibid. 13 Dic. I.13.11, 18–19. 14 Pol., Preface (1610 and 1614 eds.); Pol. XXI.29. See further sustained discussions of the Decalogue in Pol. VII.7–12; Pol. X.3–12; Pol. XVIII.32–44; Pol. XXI.22–29, 41; Dic. I.13.10–18; Dic. 1.14.1–3; and further brief references in Pol. XVIII.66; Pol. XIX.14, 31, 59, 69; Pol. XXVII.18; Pol. XXIX.1; Pol. XXVIII.32, 38, 77, 100. 15 Pol. XXI.25–27, quoting in part from Cicero, The Orator, I.43. 16 Pol. XXI.33–40; Pol XXII.3–4; Dic. I.14.5–11; Dic. I.16.9–10; Dic. I.101.43; Dic. 115.1–36. 17 Pol. XXI.33; Dic. 1.14.5; Dic. I.16.9–18. 18 Pol. VIII.72–91; Pol. XXI.32–33; Dic. 1.14.20; Dic. I.15.18–21. 19 Dic. I.14.1–20; Dic. I.15.1–21; Dic. I.16.8; Pol. VIII.72–86; Pol. XXI.30–40; Pol. XXII.1–3, 10. 20 Dic. I.25.1–8; Pol. XXI.22–24. 21 Pol. XX.12–13, 20–22; Pol. XXXVII.21–22, 33–34, 36; Pol. XXVIII.14, 53–66; Pol. XXXVIII.10–14, 77–78; Dic. 1.101.32–33, 42–43; Dic. 1.113.8–9, 12; 1.115.10–36. 22 Pol. XXVIII.62. 23 Pol. VII.4–7; Pol. IX.33–45; Pol. XXVIII.14, 37–73, 62–66; Dic. I.25.8–10. 24 Pol. XI.33–45; Pol. XXVIII.60–66. 25 The Works of John Locke, 12th ed., 9 vols. (London, 1824), 5:47. 26 Dic. I.25–26; Dic. I.117–22; Pol. X.5–7; Civ. Con. II.1. 27 Pol. VI.43–44; Pol. IX.5–9; Dic. I.81.8–15. 28 Pol. VI.47; Dic. 1.26.10–19, 33; Dic. 1.81.7–18. 29 See the detailed table at the head of book 1 in Dic. 30 Dic. 1.18–24, 27–33, 36–63, 78–81,130; Dic. II.12–23. 31 Dic. I.81.4, 7, 18. 32 Dic. I.5, 7, 9–10, 13, 25, 28–30, 80; III.9.38–44; Pol. III.37–41. 33 Dic I.64–97; Dic. II.11–22. 34 See, e.g., recent efforts along these lines in Doe, Christian Law, and Doe, Comparative Religious Law.

Bibliography Althusius, Johannes. Dicaeologicae libri tres, totum et universum Jus, quo utimur, methodice complectentes. Herborn, 1617; Frankfurt, 1618.

126  John Witte, Jr. Althusius, Johannes. On Law and Power. Edited and translated by J. Veenstra, et al. Grand Rapids, MI: CLP Academic, 2013. Althusius, Johannes. Politica Johannes Althusius. Edited and translated by F.S. Carney. Indianapolis: Liberty Fund, 1995. Althusius, Johannes. Politica methodice digesta atque exemplis sacris & profanis illustrata. 3rd ed. Herborn, 1614. Reprinted as Politica Methodice Digesta. Edited by Carl J. Friedrich. Cambridge, MA: Harvard University Press, 1932. Althusius, Johannes. Politik. Edited by Dieter Wyduckel, translated by Heinrich Janssen. Berlin: Duncker & Humblot, 2003. Doe, Norman. Christian Law: Contemporary Principles. Cambridge: Cambridge University Press, 2013. Doe, Norman. Comparative Religious Law: Judaism, Christianity, and Islam. Cambridge: Cambridge University Press, 2018. Friedrich, Carl J. Johannes Althusius und sein Werk im Rahmen der Entwicklung der Theorie von der Politik. Berlin: Duncker & Humblot, 1975. Gierke, Otto von. The Development of Political Theory. Translated by Bernard Freyd. New York: H. Fertig, 1966. Hueglin, Thomas O. Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism. Reprint ed. Waterloo, ON: Wilfred Laurier University Press, 2009. Krawietz, Werner, and Dieter Wyduckdel, eds. Politische Theorie des Johannes Althusius. Berlin: Duncker & Humblot, 1988. Laursen, John Christian, ed. New Essays on the Political Thought of the Huguenots of the Refuge. Leiden: Brill, 1995. Reibstein, Ernst. Johannes Althusius als Fortsetzer der Schule von Salamanca. Karlsruhe: n.p., 1955. Scupin, Hans U., et al., eds. Althusius-Bibliographie. Bibliographie zur politischen Ideengeschichte und Staatslehre, zum Staatsrecht und zur Verfassungsgeschichte des 16. bis 18. Jahrhundert. Berlin: Duncker & Humblot, 1973. Winters, P.J. Die Politik des Johannes Althusius und ihre zeitgenossischen Quellen. Freiburg: Rombach, 1963. Wolf, Erik. Grosse Rechtsdenker der deutschen Geistesgeschichte. 4th ed. Tϋbingen: Mohr, 1963.

8 Hugo Grotius and the makings of modern natural law Jon Miller

Introduction This volume examines the role of religion generally and Christianity specifically in the formation of global law, where global law is understood as including both a common law of humanity that transcends nation-states and a system of international laws applicable to those states. The present chapter will consider the part of Hugo Grotius in this story. Although he may not be widely remembered today outside the scholarly community, Grotius made hugely important contributions to these matters. Pierre Bayle, Thomas Reid, J.J. Rousseau, David Hume, and Immanuel Kant, among others, all acknowledged Grotius’s accomplishments, even if they did not always like what he said.1 For the most part, my focus will be on Grotius, with the aim to show how he contributes to the development of global law. However, I am going to break with convention by arguing for the importance of Martin Luther in the formation of his ideas. My goal is not to argue that Grotius was a Lutheran, for he was not. Rather, I want to establish that our appreciation of Grotius can be deepened by taking into account what an enormous presence Luther was in the Europe of Grotius as well as in his career. Delaying my discussion of Luther and Grotius to nearer the end of the chapter, I first will cover Grotius’s life and works, and then will come to conceptual issues. Although I will indicate what I take international law or the law of nations to be and where it was in the history of its development during Grotius’s era, I will devote the majority of my discussion to natural law and Grotius’s contributions to its development. I then will make a case for why it is necessary to include Luther in our calculations as we reckon with Grotius.

Life and works2 Hugo Grotius was born in 1583 into a solid family, which might be described as upper class in today’s parlance. His talents were soon on display. He was writing Latin elegies before he turned ten. He earned various advanced degrees by his mid-teens. When he was just fifteen, he was invited to join Johan van Oldenbarnevelt on an official visit to the royal court of France, where he so impressed

128  Jon Miller King Henry IV that the king described him as “the miracle of Holland.” In 1601 Grotius published Adamus Exil or Adam in Exile, a tragedy that enhanced his fame as a poet. It was among the works that John Milton consulted when drafting Paradise Lost. For his entire life, Grotius displayed both an interest in and an aptitude for two distinct worlds—the world of politics and that of ideas. Thanks in part to the patronage of Oldenbarnevelt, Grotius was appointed public prosecutor of the province of Holland when he was in mid-twenties. At the same time, he joined the provincial government and in 1617 advanced to the national stage when he became a delegate to the Estates General, which was the federal government of the Dutch Republic. He seemed to have a very promising future in Dutch politics. Alas, Grotius had aligned himself with the wrong faction, led by Oldenbarnevelt. After contending with another faction, led by Prince Maurice of Nassau, the Oldenbarnevelt faction finally and definitively lost their struggle for power when Maurice organized a counter-putsch to an action of Oldenbarnevelt’s in 1618. Grotius kept his life, unlike his master, but he lost his freedom, for he was convicted of treason and imprisoned for more than two years. Grotius did not always keep politics and ideas separate. This is shown in the way he became involved in a theological dispute between strict orthodox Calvinism on one side and more tolerant Arminianism on the other. Calvinists and Arminians disagreed about many things, but none were so important as the doctrine of predestination. Calvinists thought our souls were predestined from before birth to go to heaven or hell after death; Arminians demurred. Grotius’s sympathies probably lay with the Arminians, but his main concern was to defuse the debate, preventing it from exploding into the political arena. The controversy occurred at more or less the same time as the struggle between Oldenbarnevelt and Prince Maurice; indeed, the theological arguments infused the political ones. Grotius wrote important books on theology and politics during this period of his life, including the De Imperio Summarum Potestatum circa Sacra (1614), in which he held that a single authority must exist within a state to arbitrate religious disputes.3 After more than two years in prison, Grotius managed to escape with the help of his wife, who provided a trunk inside which he hid while it was carried out. He immediately fled to France. Although he was no longer a prisoner, his career in politics in the Netherlands was finished. He would attempt to revive it in 1631, but without success. He might not have been able to practice the art of politics in his native land, but opportunity lay elsewhere, for Grotius’s political abilities had not gone unnoticed elsewhere in Europe. Most importantly, he was recruited in 1635 by Sweden (then a major power on the continent) to serve as the Swedish ambassador to France. At the time, a series of negotiations and discussions were underway, seeking to end the Thirty Years’ War. In such a prominent post, Grotius was heavily involved in the complex diplomacy. He poured himself into this position, but the Swedish government was never entirely satisfied. Grotius eventually went to Sweden in 1645 to deal with his critics, but to no avail, for he lost his appointment

Hugo Grotius and modern natural law 129 that year. His decision to travel to Sweden was fateful; on the voyage home, his ship wrecked near Rostock, Germany. Grotius made it to shore but died soon afterward from the stress of the accident. Even though he was immersed in politics, international relations, and diplomacy, Grotius never abandoned his early love of research and writing. Given how busy he must have been with all his work in those other areas, the range, number, and quality of Grotius’s publications are nothing short of astonishing. He wrote poetry, history, legal theory, theology, international relations, and more. Since the notion of what constitutes a book was different in his day than ours, it is somewhat difficult to count how many he authored or edited, but by one reckoning there are more than sixty such volumes.4 Theology remained an enduring interest for Grotius. Some of his theological works had political dimensions, such as the De Imperio Summarum Potestatum circa Sacra or the De veritate religionis Christianae (1627), probably the most widely read of his books during his own lifetime. Others of his books, such as his commentaries on the New Testament (Annotationes in Novum Testamentum [16465]), lacked any recognizable political aims. In them, Grotius was doing what pious scholars have done since time immemorial, which is to probe sacred texts and extract meaning from them. These days, Grotius’s reputation rests primarily on two works, the De Iure Praedae Commentarius (Commentary on the law of prize and booty, or DIP) and the De Iure Belli ac Pacis (The rights of war and peace, or DIB).6 The former was commissioned by the Dutch East India Company in 1603 and completed by 1606. Part of it was published under the title Mare Liberum in 1609, but the majority of the manuscript remained out of print until the 1860s, when it was discovered in a trove of Grotius’s writings still possessed by his descendants.7 Grotius started the DIB while in prison. A massive work divided into three separate volumes, it was first published in 1625 with subsequent republications in later years. The DIB was an immediate hit and remained hugely influential for centuries. The next section of this chapter focuses on issues raised in both the DIB and the DIP.

Issues To further the aim of this volume to enhance understanding of how Christianity played a role in the formation of global law, I have selected one issue for examination, which is Grotius’s contributions to the development of natural law. Before discussing this matter, however, I need to traverse other ground, starting with my understanding of both natural law and its close cousin, international law or (as I call it) the law of nations. Commentators sometimes blur the distinction between natural law and the law of nations. The difference between them can be subtle, especially in an era such as Grotius’s, when the notions were being retheorized and there were no universally acknowledged authorities which could be invoked to settle disputes. Some difficulties are suggested by the words themselves. Take “natural law.” There are

130  Jon Miller many possible meanings of both “natural” and “law.” Depending on how each word is understood, one will take natural law to mean different things. These problems arise in the context of the English language. Other problems emerge as we turn to Latin and the translation of Latin into English. For instance, Grotius uses two different Latin phrases, ius naturale and lex naturalis, that are often rendered into English with the same phrase, natural law. There is ample precedent to justify this translation, but it helps to understand Grotius if one knows something about the difference between ius naturale and lex naturalis. The former denotes the basic rights which Grotius claims to find in the universe, while the latter denotes the laws which those rights generate. As it is the practice to use “natural law” when referring to both ius naturale and lex naturalis, I do so in this chapter, but where it seems helpful, I will provide the original Latin.8 Turning from natural law to the law of nations, we find many challenges surrounding discussion of the law of nations in Grotius’s day. Take the complexities generated by political and geographical circumstances. In the Netherlands, the various estates were coming together to form a new country. In Germany, the numerous duchies and principalities were at odds with each other almost as much as they were with non-German entities. Across the Atlantic, the European powers were claiming dominion over vast tracts of land in North and South America. The future status of these lands was uncertain: would they remain colonies, and if so, whose colonies would they be? Or might they become countries of their own? Meanwhile, there were known nations in the Far East, although it was not guaranteed that Europeans would respect their integrity. Given such circumstances, it is no surprise that writers possessed different ideas about what constituted a nation and thus what the law of nations might mean.9 Here some conceptual exposition will be helpful, starting with what natural law is supposed to be. This is the view that the normative realm is based on some feature of the universe or perhaps of human beings. Moral and legal entities— moral and legal goodness and badness, rightness and wrongness—exist because of how the universe is or how human beings are. Given the nature of the universe or given human nature, certain moral and legal requirements bind the actions of all human beings, no matter where they live or what their particular desires might be.10 The laws of nature which stipulate what is morally and legally permissible are independent of the actions of humans. Humans merely use their rational capacities to discover those laws and the reasons for them. This way of thinking about normativity is very old. Aspects of natural law ethics have been alleged to exist in Plato and Aristotle, although it is more common to be told that the ancient Stoics were the first to put all the elements together in a way that would have been familiar to later natural law theorists.11 There were robust debates among scholastics about natural law. For instance, Aquinas forcefully argued for the separation of natural law from divine law.12 While both were the result of God’s eternal law, natural law was concerned with human well-being in this world, whereas divine law was aimed at human well-being in the next. Natural law was also discernible in the natural order of God’s creation, but divine law could be learned only through revelation. Aquinas’s views were vigorously

Hugo Grotius and modern natural law 131 contested by Duns Scotus and William of Ockham, among others. Thus Ockham argued that God’s will and God’s will alone must lie at the root of all ethics and law.13 The arguments continued to Grotius’s day. For instance, Francisco Suárez tried in 1612 to find a compromise between Aquinas and Ockham. On one hand, Suárez agreed with Ockham that natural law is binding only because of a divine command of will; on the other hand, Suárez agreed with Aquinas that this command must conform to the inherent normative worth of the actions which it governs, which fact we discover through the use of reason.14 Turning from natural law to the law of nations, we find the situation very different, in terms of both the quantity and the quality of the discussion. Quantitatively, there simply was not much written about the law of nations prior to the seventeenth century. Other chapters in this volume speak to the contributions of specific individuals whose efforts were important. Nevertheless, no special discipline was devoted to the law of nations, no group of practitioners was dedicated to it, and no books specifically about it were carved off from other areas of legal inquiry before the mid-seventeenth century. Indeed, Grotius is often credited with helping to create this discipline, for commentators frequently use terms like “father” when describing his influence on the emerging field of the law of nations.15 Qualitatively, it is vital not to confuse the focus of the law of nations with the concerns of natural law. If the locus of natural law theory is the individual person, that of the law of nations is the nation or state. The traditional players and holders of rights and responsibilities in the law of nations are nations. Such law is concerned with how states are related to one another. It speaks about the justification of war, the resolution of nonviolent disagreements between states, the regulation of trade between states, and more. The law of nations addresses practices extant among nations and the derivation of those practices, whether from common consent or principles of nature. It also speaks about rules and agreements forged between individual states. These topics rightly concern the law of nations; they do not pertain to natural law. There are, then, many difficulties—linguistic, historical, political, and purely conceptual—entailed in any discussion of natural law and the law of nations. There is certainly much more to be said about all the issues that I have just brought up. Fortunately, some of what should be said can be found in other chapters in this volume. For my part, it is time to turn from natural law and the law of nations in general to how Grotius in particular worked with these ideas. Because there is not enough space to consider both types of law in this chapter, I focus only on natural law, with occasional asides to the law of nations. Let me begin with the overall shape of Grotius’s argument. Whether we look at either of his two major works on law, the DIP or the DIB, Grotius employed the same approach. He argues first for the existence of natural law (ius naturale). In the course of making that argument, he specifies exactly the laws (lex naturalis) generated from natural law (ius). Once he has established these claims, he derives from the natural laws (lex naturalis) certain fundamental international laws. From those international laws, he subsequently derives a host of other, less

132  Jon Miller basic international laws. Such is the form of Grotius’s argument in both of his major works on natural and international law.16 Now we can consider in detail how Grotius’s arguments proceed. (Since the arguments in both the earlier DIP and the canonical expression of Grotius’s thought in the DIB are very similar, I draw freely from both works.) He begins by positing two different theses. The first is that self-preservation is the most primitive impulse animating the actions of all beings, including human beings. As he puts it in the DIP, “all things in nature . . . are tenderly regardful of self, and seek their own happiness and security. This phenomenon can be observed not only in the human race, but among beasts also and even in connexion with inanimate objects” (DIP “Prolegomena,” p. 21). The same thesis is accepted in the last sentence of DIB “Prolegomena,” § 6. However, although the self-preservation impulse guides the actions of all beings, Grotius thinks it can be overridden in some instances. He writes that nonhuman animals can “forget a little the Care of their own Interest, in Favour either of their young ones, or those of their own Kind [species].”17 Although nonhuman animals can override their self-preservation impulse, this is not because they possess a deliberative power that allows them to subjugate the instinct. Rather, this is due to the intervention of “some extrinsick intelligent Principle” (ibid.). In other words, God forces them to act in such a manner; they do not undertake such actions themselves. Not so for humans. They can choose to act in a non-self-preserving manner because of a crucial difference between their nature and the nature of all other beings. The passage where Grotius spells out this difference is worth quoting at length: Man is indeed an Animal, but one of a very high order, and that excels all the other Species of Animals much more than they differ from one another; as the many Actions proper only to Mankind sufficiently demonstrate. Now amongst the Things peculiar to Man, is his Desire of Society, that is, a certain Inclination to live with those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding; which disposition the Stoicks termed Oἰκείωσιv. (DIB “Prolegomena,” § 6) Here we find the second thesis that Grotius employs to make his case for natural laws. What is special to humans—what Grotius calls the proprium of the human being—is a powerful desire for the company of other humans. Humans want not just any social life; they do not want to live together in a chaotic state. No, they want a social life that is pleasant and comfortable. As Grotius writes, humans have a “Care of maintaining Society in a Manner conformable to the Light of human understanding” (DIB “Prolegomena,” § 8). Once Grotius has established those two theses—that (1) humans are selfpreserving beings who also (2) need to live with other humans in a stable and peaceful condition—he can derive the existence of a natural law (ius naturale).

Hugo Grotius and modern natural law 133 Human nature may have other properties as well, but the two features just cited are the most critical. Since human nature has those two features, humans will naturally seek what they need to remain in existence. At the same time, they will also naturally want to stand in meaningful relations to other humans. This desire places limits on how far humans will go in pursuit of their self-preservation. What is right, in the most fundamental sense, is “that which [is needed for] the Maintenance of Society” (DIB “Prolegomena” § 12). Because humans are social beings, they must abstain “from that which is another’s, and [offer] the Restitution of what we have of another’s” (DIB “Prolegomena,” § 8). Their social-impulse compels them to respect each other’s rights. This social-impulse is “the Fountain of Right” (DIB “Prolegomena,” § 8). Hence, it is from human nature itself that the law of nature stems. In an oftquoted passage from the DIB “Prolegomena,” Grotius says that “the Mother of Natural Law is human Nature itself, which, though even the Necessity of our Circumstances should not require it, would of itself create in us a mutual Desire of Society” (DIB “Prolegomena,” § 17). Even if we did not have to cooperate in order to obtain the goods necessary for existence, we would still want to cooperate because we would want to be together. Because we would want to cooperate, we would agree that certain actions are right and others wrong, which is exactly what the law of nature holds. I discussed earlier in general terms what the law of nature says. Here is a good place to return to this matter, this time taking into account Grotius’s views. Grotius explicitly defines natural law (ius naturale): Natural Right is the Rule and Dictate of Right Reason, shewing the Moral Deformity or Moral Necessity there is in any act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature. (DIB Bk 1, Chap 1, Section 10, Part 1) Because humans are the way that they are, some actions are in conformity with their natures and others are not. Those actions that are in conformity with their natures are morally necessary. Those actions which do not conform with their natures are morally forbidden. This is what natural law (ius naturale) means, according to Grotius. Understood in these terms, the concept of natural law prompts an obvious question about its source. In what might be the most famous passage of the DIB, Grotius argues that the moral law—the law of nature—stands on its own, without requiring the support of any being, not even God. Because humans are fundamentally social and self-preserving beings, actions which violate these needs are strictly forbidden, while those which support them are obligatory. In Grotius’s words, “And indeed, all we have now said would take place, though we should even grant [etiamsi daremus], what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs” (DIB “Prolegomena,” § 11). Grotius’s stance here is described as nonvoluntarist, for

134  Jon Miller he does not think the moral law and normativity generally depend at all on God’s volitions. The moral law is valid and possesses its exact characteristics because of human nature and nothing else. As he writes: The Actions upon which such a Dictate is given, are in themselves either Obligatory or Unlawful, and must, consequently, be understood to be either commanded or forbid by God himself; and this makes the Law of Nature differ not only from Human Right, but from a Voluntary Divine Right; for that does not command or forbid such Things as are in themselves, or in their own Nature, Obligatory and Unlawful; but by forbidding, it renders the one Unlawful, and by commanding, the other Obligatory. (DIB Bk I, Chap I, Section 10, Part 2) Grotius has been described as an ethical “realist,” for he believed “that normative claims are simply there, part of the framework of the universe.”18 It is not part of his project to deny the existence of an omnipotent God. As I indicated earlier, Grotius was a committed Christian who believed in the existence of a single, allpowerful God. Yet while Grotius held this belief, he also thought that tho’ the Power of God be infinite, yet we may say, that there are some Things to which this infinite Power does not extend. . . . For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil should not be Evil (DIB Bk 1, Chap 1, Section 10, Part 4) The issues Grotius is grappling with here had received much scholarly attention before him, as Grotius himself would have been aware. For instance, debates over omnipotence went back centuries. Thus Ockham was arguably led to his extreme voluntarist views—his belief that all things depend on the will of God— largely because of his commitment to unqualified omnipotence, the notion that God’s power is so great that He can do literally anything that does not involve a logical contradiction. To cite another example, Grotius’s famous etiamsi daremus passage, where he maintains that the law of nature is independent of God’s will and actions, is present in something Suarez wrote in 1612: The natural law is not derived from God as a Lawgiver, since it does not depend upon His Will, and since, in consequence, God does not, by virtue of that law, act as a superior who lays down commands or prohibitions. Indeed . . . even if God did not exist, or if He did not make use of reason, or if He did not judge of things correctly, nevertheless, if the same dictates of right reason dwelt within man, constantly assuring him, for example, that lying is evil, those dictates would still have the same legal character which they actually possess.19 Suarez does not ultimately endorse this hypothesis, preferring a more nuanced position that he attributes to Aquinas (see Bk 2, Chap 6, Section 5). That is

Hugo Grotius and modern natural law 135 beside the point, though, as I have brought Suarez into the discussion only to show that Grotius would have encountered in his writings ideas highly reminiscent of ones he himself would put forward. The fact that Grotius was engaging with material that was already by his day very old raises a question about his originality. Does he deserve to be known as the father of international law? What about the claim that he had “broken fundamentally with mediaeval views” of natural law?20 These are relevant and pressing questions, and I shall return to them later. For now, I want to return briefly to Grotius’s argument. Once he has established the necessary existence of the natural law (ius naturale), he derives concrete laws of nature (lex naturalis). This is especially clear in the DIP, though it also holds for the DIB. Thus, after introducing the natural law in the DIP, Grotius shows how it implies distinct individual laws. He writes: from this combination of concepts [involving the natural law], two precepts [duae leges] of the law of nature [iuris naturalis] emerge: first, that It shall be permissible to defend one’s own life and to shun that which threatens to prove injurious; secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. (DIP “Prolegomena” p. 23; italics in original) Notice the adherence to method: from the basic natural rights which all humans possess, Grotius derives two basic laws. He continues to follow this method, ultimately proving thirteen laws and a number of rules. In this manner, Grotius obtains the law of nature—in the sense of the basic rights held by all human beings—and the individual laws of nature—in the sense of those rights which are generated by the more basic law of nature.

Grotius and Luther Let us leave for the time being our analysis of Grotius’s views on natural law. We will take up the important question of how, if at all, Grotius affected the development of natural law in the next section. Before we can get to that question, however, we need to bring someone else into the conversation—Martin Luther. Luther (1483–1546) lived exactly one century prior to Grotius (1583–1645). In many ways, the German and the Dutchman were very different. Temperamentally, Luther was courageous and contentious, while Grotius was cautious and tactful. Intellectually, Luther was a purist who saw the world in black-and-white terms. By contrast, Grotius found grains of truth scattered nearly everywhere, and he regarded his task as assembling them into a cogent framework.21 Another seeming difference between Luther and Grotius might reside in their attitudes toward violence. Luther could be brutal. In the mid-1520s, German peasants rose up against their lords, partially inspired by Luther. They had taken to heart Luther’s claim that everyone is his or her own priest, which led them to think that they no longer needed political masters as well. Luther’s response was savage. He urged the ruling class to be merciless, writing “let everyone who can

136  Jon Miller smite, slay, and stab, secretly or openly, remembering that nothing can be more poisonous, hurtful, or devilish than a rebel.”22 Grotius deeply regretted sectarian violence. The actual wars and rebellions spawned by the Reformation, in which so many died and such devastation was wrought, were terrible. Also awful were the new divisions, with the Catholic Church finding new rivals in the Protestant denominations, which were almost as bitterly opposed to each other as they were to the Roman church. As Grotius despairingly wrote, “throughout the Christian World [there was] a Licentiousness in regard to War, which even barbarous Nations ought to be ashamed of: a Running to Arms upon very frivolous or rather no Occasions; which being once taken up, there remained no longer any Reverence for Right, either Divine or Human” (DIB “Prolegomena,” § 29). The overall legacies of these two men are also impossible to confuse. There is debate whether Luther anticipated, much less intended, the far-reaching effects wrought by his efforts at reforming the church.23 Whether he wanted them or not, the changes of the Reformation initiated by Luther were felt across Europe and in all aspects of life. The practice of religion was transformed, and eventually, so too were economic, political, and social structures. Once the CounterReformation was determined by the Council of Trent in the mid-1500s, it was nearly impossible for prominent public figures to avoid taking sides. Luther was no longer around, but the process he started was far from over. For his part, Grotius also left a big mark on history, but his was the touch of a scholar. It is true that Grotius engaged in more obviously practical pursuits. He was hired by the Dutch Vereenigde Oostindische Compagnie (VOC, or United East India Company) to assist their corporate enterprises. He was a diplomat whose services were solicited by various countries. He attempted to broker a truce between the opposing sides of the religious divide opened by Luther. These are but some of the ways in which Grotius worked outside the ivory tower. Yet when we consider why he became famous in his own lifetime and remained so for many generations after his death, it was for his writings, especially on natural law and what has come to be called international law. There are, then, many important ways in which Luther and Grotius led different lives and left different marks on history. Nevertheless, it would be a mistake, especially for the purposes of this chapter, to overlook the similarities between the two men. Take the point about violence. While Grotius lamented the ease with which Christians could wage war on other Christians, it is also the case that he found many acceptable grounds for war. Indeed, Grotius follows up the passage quoted earlier with a quite different lament: The Spectacle of which monstrous Barbarity worked many, and those in no wise bad Men, up into an Opinion, that a Christian, whose Duty consists principally in loving all Men without Exception, ought not at all to bear Arms. . . . But this very Endeavour of inclining too much to the opposite Extreme, is so far from doing Good, that it often does Hurt. (DIB “Prolegomena,” § 30)

Hugo Grotius and modern natural law 137 Grotius was no peacenik. He might not have expressed himself so bluntly as Luther, but he did think there were many circumstances in which war was justified and necessary. A related affinity between the two lies in the domain of political authority. Luther cannot be called a political theorist, if by that one means a thinker who has carefully considered the mechanics of government, how political power can be justified, what sort of government is best, and so on. Although his interests lay elsewhere, Luther did evolve a partial theory of government. According to him, there are two distinct and autonomous governments. One was the “realm of the spirit,” in which God ruled directly over the souls of individuals. As a man of God, Luther esteemed this form of government far more than the other, which was the realm of the secular. Here civil leaders—princes, kings, and the like—use civil law and physical force to meet the temporal needs of their subjects. In either realm, the right of the ruling entity was unlimited; Christ and king could do whatever was required to run the affairs of his realm.24 Something similar exists in the thought of Grotius, who also posits two legal orders with corresponding powers behind their laws. One order is the natural law, which is applicable to all humans. The standards embedded in this law held for Christians and non-Christians alike. As we shall see, the source of the authority for those standards is complicated, but Grotius was definitely attracted to a view like Luther’s, which held that God was ultimately responsible for the natural law. In addition to the natural law, there were also civil laws. These varied from jurisdiction to jurisdiction; their enforcement was the responsibility of the states which enacted them. Grotius gave more thought to how the two legal orders—the natural and the civil—relate to one another than did Luther, who was largely uninterested in the temporal realm. For example, Grotius thought that a case could be made, using the principles of natural law, to intervene in the affairs of an individual sovereign state, if that individual state was abrogating its civil law obligations.25 So much for my discussion of Grotius apud Luther. Let me address why I have included this overview in my chapter. I do not expect any of what I said to be completely convincing, as I realize that I have omitted many complications. A full consideration of Grotius’s relation to Luther will have to await another day. But I have chosen to connect the two because doing so allows us to see Grotius in a new light, one that is especially valuable given the ambitions of this volume. Let me explain. Grotius may not have responded directly to Luther often, in the sense of quoting him or dealing with his arguments;26 however, the context in which Grotius worked and wrote was largely defined by Luther. Grotius grappled with the religious reforms and controversies brought about by Luther. This is shown explicitly in some of Grotius’s publications, where he tried to effect a theological rapprochement between Protestants and Catholics.27 Moreover, the Thirty Years’ War began in 1618 and continued until after Grotius died. Like all great wars, the Thirty Years’ War had many causes, but Luther’s legacy was certainly among them.28 Grotius had to contend in both personal and professional ways with the

138  Jon Miller war that Luther’s influence had helped to spawn. These are but two ways in which Luther was a monumental presence in Grotius’s life. Perhaps more pertinent to the purposes of this volume is one other connection. As I noted in my introduction, this volume explores how Christianity contributed to the formation of both natural law and international law. Luther may not have intentionally spoken to those concerns, but he did unintentionally stake out positions on them. His views on these matters are relevant to understanding Grotius’s own views—or so I shall now argue.

Conclusion There is no doubt about Grotius’s theism. He was a devoted Christian who remained true to his religious beliefs throughout his life. He wrote many works on various religious issues.29 Even in the two books before us in this chapter, proof of Grotius’s theism abounds. Consider specifically Grotius’s argument for natural law. As I have said, he grounds natural law in human nature. This is the point of the etiamsi daremus passage discussed earlier. At the same time, there is more to the story. For starters, the etiamsi daremus passage advances a hypothesis that Grotius himself does not accept. He does not think it is true that there is no God. In the very sentence where he presents the hypothesis, he declares that it would be “the Greatest Wickedness” to deny the existence of God (DIB “Prolegomena,” § 11). Moreover, the argument from human nature which Grotius gives for the natural law is just one argument he advances. In the next two sections of the “Prolegomena,” he gives two other arguments, both of which rely on God. For Grotius, there are many reasons for believing in the natural law. Chief among them may be certain features of human nature, but not far behind are key facts (as he would see them) about God. What is going on here? What are we to make about Grotius’s insistence that the natural law can be known to exist just by reflection on what kind of beings humans are and his almost equally adamant belief that God himself established the basic rights which humans enjoy? This is where I see Luther as crucial. Grotius and Luther, both leading intellectuals of their respective centuries, did take positions on the relationship between God and morality. Luther was a voluntarist, who thought normativity depended wholly on God’s will, while Grotius saw the force of voluntarism but thought a nonvoluntarist case could be made for the natural law simply by looking into nature. More than connecting Grotius to Luther on specific matters of doctrine, however, I see them as tied because Luther had changed Europe in ways that Grotius understood. In response to all that Luther wrought, Grotius started tentatively to create a basis for morality that did not depend on God. The recognition of this connection brings me to another issue. For many decades, scholars have debated whether there is anything original in Grotius or whether he is just repackaging old ideas. I have noted this debate in my chapter. As a concluding suggestion, I offer a way of thinking about how Grotius did break new ground, even as he recycled earlier arguments.

Hugo Grotius and modern natural law 139 Grotius foresaw the coming age of secularization. He tried to heal the schisms in Christianity with works as such De veritate religionis Christianae. Even if he had been successful in those endeavors, however, he sensed that Luther had fundamentally changed Europe. The days when God and theology were central to virtually all aspects of life were ending. To prepare for the new era, he provided a new method for proving the existence and relevance of the natural law. What differs about Grotius’s natural law theory is not its content but its approach to the subject. This is how Grotius himself understands his work. As he writes about the DIP, The little treatise on Indian affairs is complete: but I do not know whether it should be published as it was written. . . . Many indeed have dealt with this subject both old and new. But I believe that new light can be shown on the matter with a fixed order of teaching, the right proportion of divine and human law mixed together with the dictates of philosophy.30 Grotius’s “fixed order of teaching” attempted to steer natural law into the modern era, protecting natural law from the new political and ideological realities which Luther introduced.

Notes 1 I mention some of these in my article on Grotius for the Stanford Encyclopedia of Philosophy (https://plato.stanford.edu/entries/grotius/). For additional discussion, see Tuck, “Introduction” to Grotius, De Iure Belli ac Pacis, ix–xii. Hereafter I refer to this work by Grotius as DIB. 2 Perhaps because Grotius was an important man who led a fascinating life, there are numerous biographies of him. In the concluding section of this chapter, I provide two historical sources. Two more recent lives are Dumbauld, The Life and Legal Writings of Hugo Grotius, and Edwards, Hugo Grotius. I have relied on these sources and my own understanding of Grotius in this section on his life and works. 3 For more on this work and the theological-political context, see the “General Introduction” to the excellent critical edition produced by Harm-Jan van Dam. 4 The most comprehensive record of Grotius’s writings remains the Bibliographie by Ter Meulen and Diermanse. 5 This work was first published posthumously, although a partial edition appeared in Grotius’s lifetime under the title Annotationes in libros Evangeliorum (1641). 6 Throughout this chapter, I use the edition of the DIB edited by Tuck. For the DIP, I use the edition edited by Van Ittersum. 7 Van Ittersum retells the story of the composition and eventual publication of DIP on pp. xiv–xxiii of her edition of the volume. 8 The tendency to equate ius naturale and lex naturalis goes back to Grotius’s day, as we learn from Hobbes. He writes, “though they that speak of this subject use to confound jus [sic] and lex (right and law), yet they ought to be distinguished, because Right consisteth in liberty to do or to forbear, whereas Law determineth and bindeth to one of them; so that law and right differ as much as obligation and liberty, which in one and the same matter are inconsistent” (Leviathan 1.14.3). 9 An excellent guide to the vast literature on the subject of this paragraph can be found in Rasilla Del Moral.

140  Jon Miller 10 As Isidore of Seville wrote a thousand years before Grotius: “Natural law is common to all nations. It is followed everywhere by all people due to a natural impulse, not because of any institution”: Etymologiarum sive originum libri XX, bk. 5, para. 4, 1 (my translation). 11 For a helpful introductory discussion of natural law in Plato, Aristotle, and the Stoics, see Striker. 12 See, e.g., Aquinas, Summa theologiae, Ia–IIae, question 91, article 4, pp. 944–45. 13 See, e.g., Ockham’s Commentary on the Sentences, 2, 4–5. 14 See, e.g., De Legibus, bk. 1, ch. 5, section 13 (for his agreement with Ockham) and bk. 2, ch. 6, section 5 (for his agreement with Aquinas). 15 See, e.g., Vreeland. The first comprehensive treatment wholly dedicated to international law was by Zouche. 16 As Grotius writes of his method, “first, let us see what is true universally and as a general proposition; then, let us gradually narrow this generalization, adapting it to the special nature of the case under consideration. Just as the mathematicians customarily prefix to any concrete demonstration a preliminary statement of certain broad axioms on which all persons are easily agreed, in order that there may be some fixed point from which to trace the proof of what follows, so shall we point out certain rules and laws of the most general nature . . . with the purpose of laying a foundation upon which our other conclusions may safely rest” (DIP, ch. 1, pp. 17–18). 17 Grotius, DIP, “Prolegomena,” § 7. Henceforth all citations to this work will be intext. Two notes about abbreviations: (1) I use DIB plus book, chapter and section numbers to refer to the De Iure Belli ac Pacis; (2) I use “Prolegomena” plus a section number to cite this part of the DIB. All translations are from Tuck’s edition. 18 Korsgaard, 22. 19 Suárez, bk. 2, ch. 6, section 3. 20 Irwin, 86. Irwin himself does not think of Grotius as a pioneer in natural law; he is only citing the opinions of the many others who do. 21 These descriptions of their personalities are my own. In forming them, I have relied on various sources, including Albrecht Beutel, “Luther’s Life,” and Helmar Junghans,“Luther’s Wittenberg,” both in part 1 of McKim, Cambridge Companion to Luther. For Grotius, see the hagiographic “Life of Hugo Grotius” published with De Iure Belli ac Pacis (see note 3 for the full bibliographical record) as well as Bayle, “Grotius.” 22 Luther, “Against the Robbing and Murdering Hordes,” Luther’s Works, vol. 46, p. 50. 23 There is a balanced discussion of this topic in Hendrix “Luther’s Impact on the Sixteenth Century.” See also Hillerbrand. 24 See especially Luther’s “Temporal Authority: To What Extent It Should Be Obeyed,” in Luther’s Works, vol. 45, pp. 81–129. For discussion, see Cargill Thompson, ch. 3, and Massing, 573–74. 25 See, e.g., DIP, ch. 4, question 2, p. 73ff. of Van Ittersum’s edition. 26 At the same time, it is not the case that Grotius never directly responded to Luther. One such instance is documented in Irwin, The Development of Ethics, 85. 27 Most notably, there is De veritate religionis Christianae (The truth of the Christian religion). Here Grotius argues both for the superiority of the Christian religion over all others and for the agreement of all Christians on a core set of beliefs. These core commitments are vastly more important than the peripheral issues where Christians disagreed. 28 For more on Luther and this war, see Friedeburg. 29 An excellent summary of Grotius’s religious writings and his core beliefs can be found in Tuck, Philosophy and Government, 179–86. 30 Letter from Grotius to G.M. Lingelsheim of November 1, 1606, translated and printed in Van Ittersum’s edition of the DIP, p. 552.

Hugo Grotius and modern natural law 141

Bibliography Aquinas, Thomas. Summa Theologiae. Alba-Rome: Editiones Paulinae, 1962. Bayle, Pierre. “Grotius.” In Dictionnaire historique et critique. 5th ed. Amsterdam, Leyde, La Haye and Utrecht, 1640. Blom, Hans W., ed. Hugo Grotius on War and Booty in De iure praedae—Concepts and Context. Leiden: Brill Academic Publishers, 2009. The papers collected here study the DIP from many different disciplines. Blom, Hans W., and Laurens C. Winkel, eds. Grotius and the Stoa. Assen, The Netherlands: Royal Van Gorcum, 2004. This volume contains several papers on Grotius’s understanding and use of ancient Stoicism, including his deployment of it in the argument for natural law. Brooke, Christopher. Philosophic Pride: Stoicism and Political Thought from Lipsius to Rousseau. Princeton, NJ: Princeton University Press, 2012. See especially chapter two, on Grotius. Cargill Thompson, W.D.J. The Political Thought of Martin Luther. Sussex: The Harvester Press, 1984. D’Entrèves, A.P. Natural Law. 2nd ed. London: Hutchinson & Co. Publishers, 1970. See especially chapter 4 for a discussion of Grotius’s alleged originality. Dumbauld, Edward. The Life and Legal Writings of Hugo Grotius. Norman: University of Oklahoma Press, 1969. Edwards, Charles. Hugo Grotius. Chicago: Nelson-Hall, 1981. Friedeburg, Robert von. Luther’s Legacy: The Thirty Years War and the Modern Notion of “State” in the Empire, 1530s to 1790s. Cambridge: Cambridge University Press, 2016. Grotius, Hugo. De Imperio Summarum Potestatum circa Sacra. Edited by Harm-Jan van Dam. Vol. 1. Leiden: Brill, 2001. Grotius, Hugo. De Iure Belli ac Pacis. Edited by Jean Barbeyrac and Richard Tuck and translated by John Morrice. Indianapolis: Liberty Fund, 2005. Grotius, Hugo. De Iure Praedae Commentarius. Edited by Martine Julia van Ittersum and translated by Gwladys L. Williams and Walter H. Zeydel. Indianapolis: Liberty Fund, 2006. Hendrix, Scott H. “Luther’s Impact on the Sixteenth Century.” The Sixteenth Century Journal 16/1 (Spring 1985). Hendrix, Scott H. Martin Luther: A Very Short Introduction. Oxford: Oxford University Press, 2010. This is perhaps the best short biography of Luther. Hillerbrand, Hans J. “The Legacy of Martin Luther.” In McKim, Cambridge Companion to Luther. Irwin, Terence. The Development of Ethics. Vol. 2. Oxford: Oxford University Press, 2008. Isidore of Seville. Etymologiarum sive originum libri XX. Edited by W.M. Lindsay. Oxford: Clarendon Press, 1911. Korsgaard, Christine. The Sources of Normativity. Cambridge: Cambridge University Press, 1996. Luther, Martin. Luther’s Works. Philadelphia: Fortress Press, 1955–86. Massing, Michael. Fatal Discord: Erasmus, Luther, and the Fight for the Western Mind. New York: Harper, 2018. McKim, Donald K., ed. Cambridge Companion to Luther. Cambridge: Cambridge University Press, 2003.

142  Jon Miller Mitsis, Phillip. “The Stoic Origin of Natural Rights.” In Topics in Stoic Philosophy, edited by Katerina Ierodiakonou. Oxford: Oxford University Press, 1999. Rasilla Del Moral, Ignacio De La. “History of International Law, 1550–1700.” In Oxford Bibliographies. www.oxfordbibliographies.com/view/document/obo9780199796953/obo-9780199796953-0036.xml. Schneewind, J.B. The Invention of Autonomy: A History of Modern Moral Philosophy. Cambridge: Cambridge University Press, 1998. Part 1 of this influential book is called “The Rise and Fall of Modern Natural Law”; see especially chapters 4–5, which deal extensively with Grotius. Straumann, Benjamin. Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law. Cambridge: Cambridge University Press, 2015. Striker, Gisela. “Origins of the Concept of Natural Law.” Proceedings of the Boston Area Colloquium in Ancient Philosophy 2 (1987): 79–94. Suárez, Francisco. “De Legibus.” In Selections from Three Works of Francisco Suarez. Oxford: Clarendon Press, 1944. Ter Meulen, Jacob, and P.J.J. Diermanse, eds. Bibliographie des écrits imprimés de Hugo Grotius. The Hague: Martinus Nijhoff, 1950. Tierney, Brian. “Origins of Natural Rights Language: Texts and Contexts, 1150– 1250.” History of Political Thought 10 (1989): 615–46. Tuck, Richard. “Introduction.” In Grotius, De Iuri Belli ac Pacis. Tuck, Richard. Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press, 1979. Tuck, Richard. Philosophy and Government: 1572–1651. Cambridge: Cambridge University Press, 1993. Van Ittersum, Martine Julia. Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615. Leiden: Brill Academic Publishers, 2006. This is a close study of the DIP. Vreeland, Hamilton, Jr. Hugo Grotius: The Father of the Modern Science of International Law. Oxford: Oxford University Press, 1917. Zouche, Richard. Iuris et iducii fecialis, sive iuris inter gentes, et quaestionum de eodem explication. Oxford: H. Hall, 1650.

9 Kant’s Religion and Perpetual Peace Lawrence Pasternack

Introduction The 1648 Peace of Westphalia is often recognized as a decisive point of transition from religious to secular models of international relations. While prior to the Reformation international law was “rooted in the divine law administered by the church,”1 the political repercussions of the Reformation, particularly the Thirty Years’ War, instigated a transition from basing international law on religious principles to grounding it in reason. In the eyes of many, one of the greatest exemplars of this movement is the German philosopher Immanuel Kant. His philosophy is often thought to embody the triumph of reason and the epitome of Enlightenment thinking. Accordingly, much has been made of the manner in which Kant’s thought usurps or overturns traditional Christian claims about the world, including the principles which govern political authority. In this chapter, however, we will explore a more nuanced reading of Kant’s political philosophy, one that offers something of a counterexample to the postWestphalian trend. Hence, while most Anglophone Kant scholars through much of the twentieth century dismissed the religious themes in his writings, recent scholarship has begun to recover these elements.2 Our goal is thus to consider the extent to which Kant’s affirmative religious positions influence his views on international relations. To that end, we will discuss the extent to which Toward Perpetual Peace (1795) is shaped by some of the key themes of Religion within the Boundaries of Mere Reason (1792/3). In particular, we will examine the following three issues. First, we will consider how Kant’s treatment of radical evil in Religion within the Boundaries of Mere Reason impacts Perpetual Peace. Second, we will discuss our duty to peace and the importance of distinguishing between what Kant calls “peace pacts” versus perpetual or everlasting (ewigen) peace. Third, we will explore certain parallels between the “antinomy between politics and morals” in Perpetual Peace and the “crooked wood” problematics presented in Religion within the Boundaries of Mere Reason.

144  Lawrence Pasternack

Radical evil and warfare Despite his other commitments to the Enlightenment picture of humanity, Kant’s writings present us as embattled creatures: though capable of acting from duty, we are nevertheless influenced by the inclinations of self-interest. Thus, unlike Locke and Rousseau in their more bucolic treatments of the state of nature, Kant sides far more with Hobbes. For just as Hobbes represents the state of nature as a “state of incessant mutual exploitation” and a war of “every man against every man,”3 so likewise Kant writes that “[a] condition of peace among men living near one another . . . involves the constant threat of an outbreak of hostilities even if this does not always occur” (8:348–49).4 Kant further maintains that the inherent aggression of human nature is not so much eliminated by civil society as it is “veiled by the government’s constraint” (8:355). The same applies as well to the relation between nations. In fact, rather than taking peace as the baseline for relations between individuals and nations, Kant writes, “It is usually assumed that one may not behave with hostility toward another unless he has actively wronged me . . . [b]ut a human being (or a nation) in a mere state of nature . . . already wrongs me just by being near me” (8:349n). In order that we not miss the significance of this point, consider: Kant proposes that in the absence of a system of law, we may behave with hostility towards one another without active provocation, for the mere presence of another near enough to possibly do one harm is enough to justify hostile action towards them (8:354, 6:307). Within a nation-state, rule of law overcomes the natural conditions by which unprovoked hostile actions are permissible, but it does not eliminate the characteristics of human nature which would result in a war of all against all. Those characteristics are, rather, “veiled” within civil society (8:355). That is, Kant does not subscribe to a theory of moral improvement whereby the morally corrupting aspects of our humanity are cultivated away. This theory may seem to be present when he portrays pure practical reason in the Groundwork as disciplining our inclinations (4:390), or where virtue is portrayed in subsequent texts as working to gain moral strength (6:390). But at least from the standpoint of the Religion, we have an innate “propensity to evil,” one that regardless of our moral progress is deeply intertwined with our social relations (6:94) and never eradicated (6:31). Accordingly, civil society does not eliminate the darker elements of human nature, which Kant identifies with the Christian doctrine of original sin (6:31). Society and its laws may keep our conduct in check, but they do not repair our innate moral corruption. Famously, Kant states that civil society is possible “even for a nation of devils” (8:366). It manages our “unsocial sociability” (8:21), but does not extirpate our propensity to evil. We shall discuss this further later, but here let us note that even while the coarser aspects of human nature are “veiled” in how we relate to one another under the governing structure of the state, between those states a condition of war remains. There is no natural right of peaceful relations, integrity of border, sovereignty of rule, and so on. As with

Kant’s Religion and Perpetual Peace 145 human relations outside of a governing order above them, so likewise in the absence of a “federative union,” nations exist in a war of all against all (8:367). Kant further states that neither the mere absence of current hostilities nor an absence of hostilities due to a “peace pact” should be mistaken for more than it is, for “by a peace pact a current war can be brought to an end but not a condition of war” (8:355). The condition of war will remain until there is a “pacific league” (foedus pacificum) as opposed to a mere “peace pact” (pactum pacis) (8:356). That is, what is needed is an international union governed by “a constitution similar to a civil constitution” (8:354)—in other words, a federation or league of nations which seeks to end not just one war or another, but “end all war forever” (8:356). The realization of this goal, however, is far easier said than done. The InterParliamentary Union of the late nineteenth and early twentieth centuries failed to prevent World War I, the League of Nations failed to prevent World War II, and the United Nations, though likely helpful in preventing certain outbreaks of war, hardly has ended “all war forever.” The reduced (direct) warfare among larger nations is instead most probably due to nuclear deterrence and, in line with another theme in Perpetual Peace, the “spirit of commerce” (8:358, 8:364). The distinctive significance of the “spirit of commerce” within Kant’s treatment of international law can be understood in relation to two features of his moral anthropology. First, as briefly noted earlier, humanity has an innate and inextirpable propensity to evil, a propensity, more specifically, to adopt a “supreme maxim” in which self-interest is given priority over morality. The adoption of this maxim, for Kant, marks one as having an evil Gesinnung (disposition), and thus serves as his philosophical rendering of the condition of sin.5 Second, Kant assigns to us three “predispositions”: animality (bodily needs), humanity (social/ego needs), and personality (respect for the moral law). Suggestive of Rousseau’s division between amour de soi and amour propre, Kant links our immorality not primarily with our brute animal interests but rather most significantly with our social psychology. As he explains, we have an “inclination to gain worth in the opinion of others” (6:27), which readily turns into “anxiety that others might strive for ascendancy” (6:27). So, while we have a need to find esteem in the eyes of others, at the same time that places the other in a position of power over us, making them a threat, and instigating a need to not be subordinate. The mutuality of this relation creates a dynamic whereby we each, needing the esteem of the other but not wanting our value to be in their hands, strive to “acquire superiority for oneself over others” (6:27). Such is the source of “envy, ingratitude, joy in others’ misfortune, etc.” (6:27), and as Kant writes later in the Religion, it is behind “envy, addiction to power, avarice, and the malignant inclinations associated with these” (6:93–94). Certain aspects of international relations likewise reflect this predisposition, for nations also have an interest in their reputation and relative standing. The consequent need for supremacy can then manifest either in border conflicts, arms races, imperialism, and so on, or more peaceably through international competitions, cultural exports, technological innovation, and, of course, economic might. Kant

146  Lawrence Pasternack particularly highlights commerce in Perpetual Peace as the alternative to war. He writes that “the power of money may well be the most reliable of all the powers (means) subordinate to that of a state . . . to promote honorable peace” (8:368). Economic competition thus functions as a less (immediately) destructive way for human beings and nations to seek supremacy over one another. In other words, it channels our self-interest and the pernicious social dynamics of “envy, addiction to power, avarice, and the malignant inclinations associated with these” away from violence and to the accumulation of wealth, the advancement of industry, and so forth. The question to which we now turn is whether such vehicles are sufficient to take us out of the international state of nature, which for Kant keeps nations in a perpetual state of warfare. For while these vehicles provide an alternative to amassing wealth and power through military conquest, they reflect no more than the opportunities afforded us by way of a peace pact and do not themselves serve as the instruments of a true, everlasting peace. Accordingly, a question whose answer, as we shall see, is not fully articulated in Perpetual Peace, is how does humanity move beyond trade, tourism, and other facets of cosmopolitanism (still driven by self-interest), and to a new form of international relations wherein there is not merely a peace pact or suspension of hostilities, but a peace that will be truly perpetual/everlasting (ewigen)?

The duty to peace Perpetual peace, for Kant, is a duty (8:356), and as such, it is subject to the logic of ought implies can. This holds as well if the duty is understood as the promotion of an end (rather than a duty to in fact bring it about), for if we ought to aid in its realization, then it must follow that our efforts must bring us closer to the end and/or that the end itself can be obtained.6 One important theme in Perpetual Peace and, roughly a decade prior, in Kant’s Idea for a Universal History with a Cosmopolitan Aim, is that our natural (that is, nonmoral or prudential) interests drive us beyond violence and war to social order and the suspension of international hostilities. Prudence, however, is not on its own sufficient to perpetual peace. For while prudence can justify a peace pact for the sake of the more materially advantageous spirit of commerce, it can also justify “force or fraud” (8:380). With this, Kant distinguishes between the “political moralist,” whose social station requires that he clothe himself in the language of morals but exploit such rhetoric to his advantage, versus the “moral politician,” who seeks to morally improve both his nation and his nation’s relationships with other powers “even at the cost of sacrifices to their self-seeking [inclinations]” (8:372). What frustrates the moral politician, however, is that not all nations are led by moral politicians, and thus the moral leader of one state, were he to give advantage to another state not so governed, jeopardizes his people, and perhaps even the world’s overall trajectory towards perpetual peace.7 Put differently: a problem Kant faces is whether the principles of political governance necessary for perpetual peace are sufficient for it as well.

Kant’s Religion and Perpetual Peace 147 Given the moral pessimism found in part 1 of the Religion, the “unsocial sociability” of the Idea, and the recognition in Perpetual Peace of the “malevolence rooted in human nature . . . obvious in the external relation of states to one another” (8:375), why expect peace? Even more concretely: why should a moral politician risk bringing disadvantage to his people in the name of morality if he cannot trust that that disadvantage will help the world progress to perpetual peace? The moral politician may be willing to sacrifice his nation’s interests if in doing so the cause of peace is advanced, but given the actual political and moral situation in the world, such a sacrifice may very well not be fruitful. Hence, while Perpetual Peace tenders a number of core principles necessary for perpetual peace, why should leaders, even those who are morally minded, do anything other than seek the advance of their own nations? Why put one’s people at risk from bad international actors in actively pursuing it? Given that, for Kant, the natural condition for international relations is that of warfare, and given his view that the whole of humanity bears an inextirpable propensity to evil, transforming the wish for peace to active measures in its pursuit does not look at all likely to succeed. Why expect honesty in international negotiations? Why agree to disarmament given the abiding state of international war? Why presume treaties will not be broken once they are no longer to the advantage of one’s adversary? In short, quite unlike the optimism often associated with the Enlightenment’s picture of human nature, Kant cautions us with regards to our moral hopes: for how a “moral revolution” is possible “surpasses every concept of ours,” and paraphrasing the Gospels (Matthew 7:18, Luke 6:43), he adds, “how can an evil tree bear good fruit?” (6:45).

On the possibility of perpetual peace In “Nature, Morality, and the Possibility of Peace,” Paul Guyer does not consider the worries rooted in the moral pessimism of the Religion; instead, he holds that so long as perpetual peace is not “demonstrably impossible,”8 politicians are morally bound to pursue this end. Guyer further argues that history has provided us with “some palpable evidence that such progress is actually possible.”9 Guyer also clarifies that we do not need a future perpetual peace guaranteed. Rather, it just need not be demonstrably impossible in order for our duty to hold; and “the sensible nature of human beings”10 can be “encouraged and fortified” by evidence of progress. That is enough, Guyer maintains, for moral politicians operating on the world stage. As support for his view, Guyer reviews the picture of human prehistory that Kant offers in “On the Guarantee of Perpetual Peace.” To Guyer, this picture provides a “catalog of the natural mechanisms for world peace”11 which are sufficient to satisfy concerns over the can of ought implies can with respect to the duty to peace. What Guyer does not adequately consider, however, is the schism between Kant’s treatment of these natural mechanisms and the moral problematic surrounding perpetual or everlasting (ewigen) peace.12 For while the text does present various natural mechanisms which let “concord arise” (8:360), these mechanisms,

148  Lawrence Pasternack rather than ensuring the rise of the international institutions necessary for perpetual peace, instead have a more modest function, as they serve merely to move humanity away from active hostilities. That is, these mechanisms may guarantee that active hostilities will tend, in light of our prudential interests, to give way to peace pacts, but they do not offer a guarantee of perpetual/everlasting peace. As noted earlier, Kant highlights the “spirit of commerce” and the “power of money” as channeling “the mechanism of human inclination itself” (8:368) away from war. Nature’s guarantee is thus not that we shall have perpetual peace, but rather the assurance that hostilities will tend to be suspended in the interest of commerce. Peace everlasting, by contrast, demands more, including a moral change, which for Kant is not something that nature can procure and not something it can guarantee. In other words, active hostilities will, through natural forces, tend to give way to cosmopolitan interests. But since such interests hold even “for a nation of devils” (8:366), nothing in the preceding entails “the moral improvement of human beings” (8:366). Cosmopolitanism, in short, does not require a change in “inner morality” and is just another way for “self-seeking inclinations” (8:366) to flourish. It may be preferred over warfare, but still reflects “the human race as a class of animals” (8:365). It offers peace “more or less,” a peace pact. But Kant’s history lesson does not convey any basis for an assurance that we will be able to realize our duty to perpetual/everlasting peace.13 One may respond to the preceding that while Kant’s presentation of the mechanisms of nature may only provide us with the surety that the human race, out of its own natural inclinations, will tend to prefer commerce over war, moral politicians can still pursue their duty to promote perpetual peace because all that is needed for this duty to hold is that it is not “demonstrably impossible.” That is, we do not, in fact, need any assurance that perpetual peace is possible. Rather, to commit to this end as a duty requires no more than that it is not demonstrably impossible. To determine whether or not Guyer is correct on this point, let us briefly consider how Kant understands possibility, and how this understanding informs our commitment to the realization of ends in the world. A central part of Kant’s understanding of possibility, one which is also relevant for this analysis, is his distinction between “logical” and “real” possibility. The former may be understood in terms of conceptual coherence, such that any state of affairs which does not involve a conceptual contradiction is at least logically possible (A596/B624n). The latter, however, is more complicated. Real possibility has both formal (A218/B266) and material (A227–8/B280) aspects. The first involves the transcendental conditions for possible experience, which need not be examined here. The second involves relationships within the order of nature. Hence, one may demonstrate impossibility in any of these ways: conceptual contradiction, incompatibility with the conditions for possible experience (e.g., sensible intuition of a non-Euclidean shape), or impossibility given one or more facts or natural laws. When considering perpetual peace in isolation, Guyer is correct that it is not demonstrably impossible in the sense that the concept of peace is not incompatible

Kant’s Religion and Perpetual Peace 149 with the concept of perpetuity. We may bypass the issue of whether or not peace in perpetuity is compatible with the formal conditions for experience. A problem arises, however, when we consider the possibility of perpetual peace given the political facts of the world, and given, as well, Kant’s picture of human nature. The point here is not just that peace seems unlikely in light of these, but rather that the possibility of perpetual peace may be seen as falling within the same concerns raised by Kant in the Religion with regards to other decisive moral transformations. As noted earlier, in part 1 of the Religion, Kant proposes that how an individual can transform from evil to good surpass “every concept of ours” (6:45). Likewise, in part 3 of the Religion, he raises similar (if not more extreme) concerns about how the “ethical community” can come into being.14 For both at the individual and social level, Kant sees a catch-22 present in moral transformations: a will which has chosen a supreme maxim that prioritizes self-interest over morality would not choose to reverse the order of these incentives. That is, a will guided by the logic of a principle prioritizing self-interest would not will to replace that principle with one that subordinates self-interest to morality. To do so would be to make an affirmatively moral choice, which is not what a will guided by the priority of self-interest would elect. Hence, it seems the only way for a will to choose to subordinate self-interest to morality is for that will to have already subordinated self-interest to morality. It is because of this problematic that Kant maintains that the moment of transformation “surpasses every concept of ours”—not because the will lacks the power to bring it about but, rather, because the logic of its own commitments means that the transformation, it seems, would never happen. Accordingly, with respect to both our personal “moral revolution” and the establishment of the ethical community,” Kant asks: “how can an evil tree bear good fruit?” (6:45); “how could one expect to construct something completely straight from such crooked wood” (6:100)? In light of this, Guyer may have been too quick to accept the possibility of perpetual peace on merely conceptual or logical grounds. While Kant does not explicitly discuss this “crooked wood” problem in Perpetual Peace, he does nonetheless wrestle with an “antinomy between politics and morals,” which, as we shall next discuss, intimates that the same problematic is present.

The antinomy of peace The final pages of Perpetual Peace introduce an antinomy between politics and morals. The antinomy emerges out of Kant’s introduction of the “transcendental formula of public right,” which states: “All actions relating to the rights of others are wrong if their maxim is incompatible with publicity” (8:381). That is, every claim of a juridical right must be consistent with its public availability: any policy or agreement which would be undermined if it became public would be in violation of this principle. While a test of this sort reflects the familiar formalism of Kantian ethics, it gives rise to an antinomy because in the absence of a federative union, there is a

150  Lawrence Pasternack gulf between public and private right. Ideally, the private right of nations would harmonize with the principle of publicity, but this, Kant tells us, “is possible only within a federative union” (8:385). Put simply, absent a federative union, there is no institution of trust between treaty partners. Negotiations could not be fully transparent because each party would not want to disclose anything that could be used against them. Likewise, no party would publicize their intentions to hold to the treaty only while it remains to their advantage to do so. Kant, in fact, goes so far as to assert that as long as there exists a state of nature between nations, treaties have no binding force: there is no “rightful condition that actually binds [them] together,” for “the only kind of right there can be is private right” (8:383). Treaties are, rather, based only on private right (sovereign interests) and are broken as warranted by political calculation. An antinomy thus exists between two equally binding principles. On one hand, a sovereign is obligated to further the interests of his people, which outside of a federative union would require that he not always observe the formula of public right; yet as a moral politician, the sovereign is obligated to observe this formula. To offer an example, a sovereign when negotiating a treaty may purposefully overvalue some disputed territory in order to seek greater concessions from the other nation. Advantage must always be pursued because there is no telling when the peace pact will end and thus when his nation will have to utilize any advantage gained when shifting to a war footing. On the other hand, if there were a federative union and, with it, a guarantee of everlasting peace, full disclosure would be in order because it would be consistent with the trust which must be sustained in the name of everlasting peace. Kant’s solution to this antinomy is more theoretical than it is practical. So long as there is no federative union, prudence and morality will diverge. Thus, the institution (both figuratively and literally) of trust will not come into being, and treaties will have no real binding force (8:383, 6:350). Nations are, thus, seemingly stuck in everlasting war, even if it is frequently suspended by the advantages of cosmopolitan trade over the ravages of active hostilities. Prudence and morality, however, align within the federative union, and thus the solution to the antinomy is that two conflicting principles would conflict no longer if a federative union were to come into being. What remains a problem is whether or not, so long as the schism between prudence and morality exists, escape is possible. Accordingly, while as a matter of conceptual analysis, we certainly do not claim that perpetual peace is “demonstrably impossible,” there is a seeming catch-22 here where the establishment of a federative union out of a condition of the international state of nature parallels the “crooked wood” problematics of the Religion.15

Ethical community In part 3 of Kant’s Religion, Kant distinguishes between what he calls the “juridical community” versus the “ethical community.” While the juridical community correlates to the political state, Kant holds that the moral goals of humanity

Kant’s Religion and Perpetual Peace 151 require as well a “union,” “universal republic based on the laws of virtue,” or “system of well-disposed human beings in which . . . the highest moral good can come to pass” (6:98). Kant further characterizes this union or system as a church, and more fully as the “church invisible” (insofar as it is the “idea of the union of all upright human beings under direct yet moral divine world-governance”) and “church visible” (as “the actual union of human beings into a whole that accords with this ideal”) (6:101). Because this union must have the form of universality, it cannot have doctrines of any specific “historical faith” as necessary requirements for membership. Individual religious traditions are instead for Kant most appropriately understood as “vehicles” for the universal principles of “pure rational faith” (that is, those doctrines which fall within the bounds of reason alone versus those which depend upon special revelation).16 One way to understand the need for this union is that it functions as the counterpoint to the social dimension of evil linked to our predisposition to humane behavior. As discussed earlier, this feature of human nature involves an “inclination to gain worth in the opinion of others” (6:27) which, on one hand, is capable of being channeled into such socially stabilizing mechanisms as economic competition but, on the other hand, foments hostility and catalyzes “malignant inclinations” (6:93). Accordingly, for Kant, our condition as morally evil is not merely due to our choices as particular individuals to give priority to self-interest over morality; rather, our social psychology is such that we “mutually corrupt each other’s moral disposition and make one another evil” (6:94). The union suggested by Kant is supposed to offset this dynamic by orienting its members towards a common goal: the promotion of the highest good, which in the Religion Kant presents as “a duty sui generis, not of human beings towards human beings but of the human race toward itself” (6:97). Hence, rather than discordant ends of self-interest and competition as the mechanism by which individuals struggle for egoistic ascendancy over one another, the union provides a common goal: the moral betterment of all humanity. He thus calls upon us to establish a union which has for its end the prevention of this evil and the promotion of the good in human beings—an enduring and ever expanding society, solely designed for the preservation of morality by counteracting evil with united forces. (Religion 6:94) Kant’s reasons for why this union must take the form of a church has a number of facets, but at their heart, he claims that absent a commitment to God, we would lack the confidence to do as much as we must for our part in realizing the highest good. While we must act as if the establishment of an ethical community depended upon humanity alone (6:101), in light of the crooked-wood problem, Kant states that “we cannot know whether as a whole it [the ethical community] is also in our power” (6:98). Moreover, beyond just an academic endorsement of some modest Deism or theism, in part 4 of the Religion, Kant recognizes

152  Lawrence Pasternack the motivational value of religious activities, including prayer (6:194), church attendance (6:198), and ritual (6:199), all meant to expand “people’s narrow, selfish and intolerant cast of mind” and cultivate instead a “cosmopolitan moral community” (6:200). Hence, beyond the political institutions of the state and of international law, the moral challenge Kant assigns humanity as a whole, the “duty sui generis, not of human beings towards human beings but of the human race toward itself” (6:97) is to be furthered through a universal, worldwide religious body. The symbols and rituals of this body may vary, taking on varying local vehicles for pure rational faith, but its principles and practices are meant to enliven the “moral disposition of brotherly love” (6:200) as counterpoint to the social dynamics that perpetuate our prioritization of self-interest over morality, and which frustrate the “moral revolution.”

Providence, the ethical community, and perpetual peace The question we shall now consider is whether or not to apply the religious framework of the Religion to Perpetual Peace, particularly whether the catch-22 or crooked-wood problem in the Religion has bearing on the “antinomy between politics and morals” in Perpetual Peace. To begin, let us consider what Perpetual Peace says about providence. In a key section of Perpetual Peace, where Kant begins to consider whether or not we can have some guarantee that ultimately the “course of the world” will bring us to peace, he offers a very lengthy footnote addressing whether we can attribute to nature “the profound wisdom of a higher cause directed to the objective final end of the human race” (8:361). Much of the footnote reviews various conceptions of providence (general vs. special providence, etc.), but overall Kant dismisses their use as “futile theoretical cognition[s]” (8:362n). That is, in line with transcendental idealism, we commit an error when we fail to keep separate our theoretical judgments about the order of nature and our thoughts regarding the supersensible. Although we may find it fruitful to represent nature as purposive, as it helps us in our inquiries into the causal means-ends relations in the world, in both the Critique of Pure Reason and the Critique of Judgment, Kant explains that such judgments are not to be seen as constitutive of the actual features of the world, but are rather just regulative or reflective judgments we use for their heuristic value (A687/B715, 5:378–81). Likewise, in Perpetual Peace, while Kant makes sure to explicitly reject a dogmatic commitment to providence, he nevertheless proposes that the idea of design, if not providence, seems to be reflected in the fact that certain mechanisms of nature align with our practical interests. As an example, Kant discusses how war tends to weaken nations, so that there is a natural limit on how much damage can ultimately result (of course, Kant never imagined nuclear conflicts). But rather than taking this to mean that we have gained an insight into God’s design, he brings up the point as an opportunity for learning, “so that posterity may someday take a warning example from them” (8:380). Hence, similar

Kant’s Religion and Perpetual Peace 153 to how the Critique of Judgment presents the concept of purposiveness as an instrument through which we can represent the world in order to gain a better understanding of its mechanisms, so in Perpetual Peace, Kant notes that a picture of the world as designed or even providential will motivate us to uncover natural mechanisms which cohere with our moral aims. In this way our use of the concept of providence is “justified in the course of the world” (8:380). It is important to note, however, that the mechanisms of nature Kant discusses are ones which move us towards the cessation of hostilities in favor of more peaceable practices such as commerce. That is, even this allowance for providence offers at best a movement towards a peace pact rather than a perpetual or everlasting peace. What Kant does not mention is whether some sort of divine aid is needed for such peace, and thus whether it would be needed for the establishment of a federative union. So while Kant writes more affirmatively about the alignment of nature and prudence, when we consider the antinomy between politics and morals, it seems instead that there is a schism between what we can attribute to the empirical world and our empirical natures versus what morality calls for. While nature and prudence tend to align, prudence and morality significantly do not. The antinomy is present because of this disconnect, and thus while a reflection on the alignment of nature and prudence can offer us some surety that active hostilities between nations will tend to give way to cosmopolitan interests, there does not seem any such confidence that the latter in turn will bring us to a perpetual peace or the institution of the federative union. Similarly, in the Religion, Kant writes that we cannot know whether a “universal republic based on the laws of virtue” (6:98) is within our power as human beings. In light of this, he proposes that we “need the presupposition of another idea, namely, of a higher moral being through whose universal organization the forces of single individuals, insufficient on their own, are united for a common effect” (6:98). Likewise, in the Religion, Kant comments that our propensity to evil underlies “the state of constant war” (6:34), and those who regard human nature as inexorably morally corrupt have “universally derided as sheer fantasy” all “hopes for a state of perpetual peace based upon a federation of nations” (6:34). Such hope, however, becomes possible through appeal to divine aid, and later in the Religion, Kant links the hope for an ethical community with the eschatological imagery of the Kingdom of God on Earth, depicting this ideal as one that “assures the world of an eternal peace [ewigen Frieden].” There is no such explicit connection between divine aid and the federative union in Perpetual Peace, but Kant does note when discussing providence that while it should be rejected as a theoretical principle, and serve (at best) regulatively when considering the mechanisms of nature, nevertheless “from a morally practical point of view . . . the belief that God, by means incompatible to us, will make up for the lack of our own righteousness . . . is quite appropriate and even necessary” (8:362n). That is, the individual “moral revolution” discussed in part 1, the establishment of an “ethical community” discussed in part 3, and the establishment of a federative union discussed in Perpetual Peace all face the

154  Lawrence Pasternack structurally similar problematic that the logic of self-interest perpetuates itself. Since we have chosen to give priority to self-interest over morality, we would not, while under the reign of self-interest, ever choose to subordinate it to morality.17 This seems to apply to the “real possibility” of a federative union as well, since its antinomy pertains specifically to the problem of how to escape the crooked-wood problem in international relations. What is needed is for nations to be able to follow the formula of publicity without compromising their prudential interests. However, so long as there is no federative union, the two principles stand in an antinomic relation, and are only made harmonious with the establishment of a federative union. To reprise an earlier point: the mechanisms of nature used by Guyer to support his claim that perpetual peace is not “demonstrably impossible” should instead be understood as offering surety with regards to a tendency to move away from active hostilities and to a peace pact. Whether or not a true perpetual peace is possible is not thereby resolved and is rather brought into question by the antinomy. Hence, while we know that the antinomy finds its solution in the federative union, so long as the antinomy abides (which it will until there is such a union), anthropological and political realities stop that union from coming into being. This does not mean that moral politicians have no duty to avoid warfare and promote peace, but it would be a mistake not to separate such a duty from the more radical one, a duty to a perpetual/everlasting peace that may be beyond our capacities.18 Accordingly, just as in the Religion, we must wonder whether the possibility of a federative union, and thus the possibility of a true perpetual/ everlasting peace, calls us to religion, to the need for divine aid. Kant does not take this step explicitly in Perpetual Peace, but he does place between the status quo of international relations and the realization of a perpetual/everlasting peace an antinomy whose problematic stands in parallel with those that, in the Religion, lead to the idea of “a higher moral being through whose universal organization the forces of single individuals, insufficient on their own, are united for a common effect” (6:98).

Conclusion The religious sense of Zum ewigen Frieden would certainly have been recognized by Kant’s contemporaries, particularly given its publication in the closing years of the eighteenth century and the widespread interest in chiliasm at the time.19 Unfortunately, the translation of ewigen as “perpetual” rather than its more natural translation into “everlasting” or “eternal” masks this connotation for the Anglophone readership.20 Moreover, we may speculate that Kant took particular caution when writing Zum ewigen Frieden to resist discussion of related religious themes. For as the result of certain controversies related to the publication of the Religion, Kant was from October 1794 to November 1797 under a royal edict which prohibited him from “discoursing publicly, in lectures or in writing, on religion, whether natural or revealed” (CF: 7:10).21

Kant’s Religion and Perpetual Peace 155 In the preface to his 1798 Conflict of the Faculties, Kant maintains that he abided by this edict from the date of its issuance until the death of Frederick William II in 1797. Hence, subsequent to the June 1794 publication of “The End of all Things” (Kant’s essay on chiliasm and eschatology), Kant made only passing reference to matters of religion in his writings until returning to them at length in the Conflict of the Faculties. Yet we know from the Religion and elsewhere that Kant positively associates ewigen Frieden with his theological picture of the ethical community, the universal church, and the eschatological concept of the Kingdom of God on earth. It has thus been the goal of this chapter to propose that there may be more theology between the lines in Perpetual Peace than is made explicit therein. As we have seen, the picture of humanity in the Religion as bearing a propensity to evil carries through into Perpetual Peace. Not only do these themes reappear in the Conflict of the Faculties, a year after Kant regards himself released from Frederick William II’s edict, but as this chapter has argued, they inform the final pages of Perpetual Peace by way of the antinomy between politics and morals. Once the full import of ewigen Frieden is understood—that what is at issue is not merely a treaty that suspends active hostilities but a transformation of international relations into one that can secure a true everlasting peace—the challenge is precisely the one that we find in the Religion: the challenge of overcoming the crooked wood of human nature and its institutions, a challenge that in Kant’s writings, both before and after his period of censorship, calls for the “hope that what does not lie in [one’s] power will be compensated for from above” (6:52).22

Notes 1 Philpott, 206. 2 Such trends are discussed in “Kant’s Philosophy of Religion” in the Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/kant-religion/. 3 Hobbes, 70. 4 Citations to Kant will be to the Akademie Ausgabe by volume and page, except for the Critique of Pure Reason, where citations will use the standard A/B edition pagination. Unless otherwise noted, English quotations will be from The Cambridge Edition of the Works of Immanuel Kant. 5 See Pasternack, “Kant on the Debt of Sin.” 6 Kant does not seem settled as to whether or not our duty to perpetual peace is a duty to merely strive towards it or a duty to bring it into actuality. In the Religion and in Perpetual Peace, he seems to support the former; in the Metaphysics of Morals, he indicates instead the latter (6:350). 7 One might think of Neville Chamberlain’s appeasement of Hitler as such an example. 8 Guyer, 430. 9 Ibid., 434. 10 Ibid. 11 Ibid., 426. 12 Note that Guyer does not claim that prudence and the mechanisms of nature are sufficient to realize perpetual peace, as he too acknowledges the role of an “inscrutable choice to be virtuous” (425). My point, however, is that what Guyer

156  Lawrence Pasternack utilizes to provide the basis for our confidence that perpetual peace is not impossible pertains instead to peace pacts. 13 This is not to say that agents interested in the moral betterment of humanity would not support cosmopolitanism, for it is not only better than active warfare but it also may be seen as helping make us potentially more receptive to moral growth. See Frierson. 14 See Pasternack, “Restoring Kant’s Conception of the Highest Good.” 15 In other words, while moral politicians may still pursue a duty to avoid warfare and promote peace, the antinomy between politics and morality may be read as a challenge to the possibility of perpetual peace. As such, unless we have a way to overcome the catch-22 conveyed by the antinomy, we may in fact have to conclude that the “crooked wood” of humanity tells us either that perpetual peace is “demonstrably impossible,” or at least how it is possible “surpasses every concept of ours.” 16 See Pasternack, “Religious Assent and the Question of Theology.” 17 Kant does not follow the Augustinian thesis that our moral capacities are so corrupted by original sin that we no longer have the volitional powers needed to become morally good. Rather, his point is that out of self-interest, we would not choose to subordinate it to morality, and thus once we have willed to prioritize self-interest over morality (something Kant claims all humanity has done), we would never will to reverse that order. Hence, it is out of the logic of what we have willed that we face the catch-22 which then prompts the need for divine aid. See 6:51–52. 18 By analogy, we may separate our specific duties, such as to be charitable, from the more radical duty to undergo a “moral revolution,” whereby we change our “supreme maxim” to one that prioritizes morality over self-interest. It is the latter which Kant maintains requires our appeal to divine aid (6:47–52). 19 Breul and Schnurr. 20 Early translations shifted between “perpetual” and “eternal.” Examples include the 1796 Project for a Perpetual Peace (unknown translator, London: Vernor and Hood) and Eternal Peace (J.D. Morell, London: Hodder and Stoughton, 1884). One possible reason why “perpetual” was chosen by translators is because of the antecedent French work on perpetual peace by Abbé St. Pierre, Project pur rendre la paix perpetuelle en Europe (1713). 21 See Borowski; see also Hunter. 22 Thanks to Geoff Dargan, Pablo Muchnik, and Rob Gressis for helpful discussion and feedback.

Bibliography Borowski, Ludwig. “Kant’s Censorship Troubles.” Appendix 4. In Darstellung des Lebens und Characters Immanuel Kant’s. Königsberg: Friedrich Nicolovius, 1804. Reprinted and edited by F. Gross. Berlin: Deutsche Bibliothek, 1912. Breul, Wolfgang, and Jan Carsten Schnurr, eds. Geschichtsbewusstsein und Zukunftserwartung in Pietismus und Erweckungsbewegung. Göttingen: Vandehoeck & Rupprecht, 2013. DiCenso, James. Kant, Religion, and Politics. Cambridge: Cambridge University Press, 2011. Dora, Ion, ed. Kant and International Relations Theory: Cosmopolitan CommunityBuilding. London: Routledge, 2012. Frierson, Patrick. “The Moral Importance of Politeness in Kant’s Anthropology.” Kantian Review 9 (2005): 105–27.

Kant’s Religion and Perpetual Peace 157 Guyer, Paul. “Nature, Morality, and the Possibility of Peace.” In Kant on Freedom, Law, and Happiness. Cambridge: Cambridge University Press, 2000. Hobbes, Thomas. Leviathan. New York: Dover, 2006. Hunter, Ian. “Kant’s Religion and Prussian Religious Policy.” Modern Intellectual History 2 (2005): 1–27. Insole, Christopher. “Kant on Christianity, Religion and Politics: Three Hopes, Three Limits.” Studies in Christian Ethics 29 (2016): 14–33. Kant, Immanuel. Cambridge Edition of the Works of Immanuel Kant. Edited by Paul Guyer and Allen Wood. Cambridge: Cambridge University Press, 1992. Kant, Immanuel. Werke. Akademie Ausgabe. Berlin: 1894. Kleingeld, Pauline. Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship. Cambridge: Cambridge University Press, 2012. Molloy, Seán. Kant’s International Relations: The Political Theology of Perpetual Peace. Ann Arbor: University of Michigan Press, 2017. Palmquist, Stephen. Comprehensive Commentary on Kant’s Religion Within the Bounds of Bare Reason. Chichester: Wiley, 2015. Pasternack, Lawrence. “Kant on the Debt of Sin.” Faith and Philosophy 29/1 (2012): 30–52. Pasternack, Lawrence. Kant’s Religion Within the Boundaries of Mere Reason: An Interpretation and Defense. Routledge Philosophy Guidebook Series. London: Routledge, 2014. Pasternack, Lawrence. “Religious Assent and the Question of Theology: Making Room for Historical Faith.” In Kant and the Question of Theology, edited by Chris Firestone and Nathan Jacobs, 99–118. Cambridge: Cambridge University Press, 2017. Pasternack, Lawrence. “Restoring Kant’s Conception of the Highest Good.” Journal of the History of Philosophy 55/3 (2017): 435–68. Philpott, Daniel. “The Religious Roots of Modern International Relations.” World Politics 52 (January 2002). Ripstein, Arthur. Force and Freedom: Kant’s Legal and Political Philosophy. Cambridge, MA: Harvard University Press, 2009. Rossi, Philip. The Social Authority of Reason: Kant’s Critique, Radical Evil, and the Destiny of Humankind. Albany: State University of New York Press, 2005. Sweet, Kristi. Kant on Practical Life: From Duty to History. Cambridge: Cambridge University Press, 2013. Taylor, Robert. “Kant’s Political Religion: The Transparency of Perpetual Peace and the Highest Good.” Review of Politics 72 (2010): 1–24.

10 Jacques Maritain and the Universal Declaration of Human Rights William Sweet

Introduction Jacques Maritain was born in Paris, France, on November 18, 1882. He was the son of Paul Maritain, a prominent lawyer, and the grandson of the French statesman and academician Jules Favre. Maritain’s religious upbringing was unsettled. He was baptized in the Lutheran church and, after his parents divorced in 1885, was raised by his mother in a predominantly secular home. As a young man, Maritain had strong socialist and anticlerical sympathies, and he became a disciple of the socialist essayist Charles Péguy. Beginning in 1899, he attended the Sorbonne, obtaining a licence in philosophy (1901) and, later, a licence in the natural sciences (1902) and his agrégation in philosophy (1905). In 1901, Maritain met Raïssa Oumansoff, a fellow student in the Faculté des Sciences and the elder daughter of a Russian Jewish family that had immigrated to France in 1892. Jacques and Raïssa were depressed by the materialism, relativism, and positivism of their professors, which suggested to them that life had no meaning. Péguy, however, introduced them to Henri Bergson’s lectures at the Collège de France, where they found an alternative to the skepticism and positivism of their teachers. Jacques and Raïssa married in 1904 and, through the influence of the writer Léon Bloy, were received into the Roman Catholic Church in 1906. In 1906, the Maritains moved to Heidelberg, where Jacques held a fellowship in biological science. They returned to France in 1908, and in September 1910, on the encouragement of Raïssa, Jacques began to read the Summa theologiae of Thomas Aquinas. He became professor of philosophy at the Lycée Stanislaus in 1912, and in 1914 was appointed as a lecturer in modern philosophy at the Institut Catholique de Paris, where he taught until 1939. In his early writings, Maritain wrote on Catholic spirituality and sought to defend Thomistic philosophy from its secular rivals. Receiving an inheritance from a former student who had died during the First World War, Jacques was able to devote more time to writing. Another beneficiary of the inheritance was the journalist and right-wing nationalist Charles Maurras, leader of the Action Française movement. Maritain became closely associated with the work of Maurras until the movement was condemned by Pope Pius XI. In the mid-1930s, Maritain began to write books and essays that articulated a personalist humanism and a defense of human rights, notably in Du régime

Jacques Maritain and the UDHR 159 temporel et de la liberté (Freedom in the Modern World, 1933) and in a series of lectures given in Spain in 1934, later published as Humanisme intégral (Integral Humanism, 1936). Recognized as a major Catholic thinker, Maritain was an invited lecturer in Canada and the United States in 1933, 1934, and 1938, and in Argentina and Brazil in 1936. Maritain was attacked, however, by both the left and the right, in France and abroad, for his criticisms of the Nationalist side in the Spanish Civil War and for the putative left-wing character of his political philosophy. The Maritains were in North America when Germany invaded France in June 1940, and they decided to stay. Jacques taught at Princeton University (1941–42) and Columbia University (1941–44) but was also active in the war effort, recording broadcasts destined for occupied France. During this time, Maritain wrote some of his most influential books and essays: e.g., De la justice politique (1940), Le crépuscule de la civilisation (The Twilight of Civilization, 1941), Les droits de l’homme et la loi naturelle (The Rights of Man and Natural Law, 1942), and Principes d’une politique humaniste (1944). When France was liberated in 1944, General Charles de Gaulle named Maritain French ambassador to the Holy See, where he served until 1948. During this time, Maritain became involved with the work of UNESCO, and he was chosen to head the French delegation to the second general conference of UNESCO, in Mexico City in late 1947. There, Maritain gave the opening address, emphasizing that “one of the most important tasks undertaken by the United Nations is the new declaration of the rights of man, which Unesco is helping to draft.”1 In the spring of 1948, Maritain returned to Princeton, where for three years he taught a graduate course on systematic ethics, in which he elaborated a theory of natural law, and which he repeated, in summary form, in short summer courses presented at L’Eau Vive, at Soisy-sur-Seine, near Paris. Maritain became professor emeritus at Princeton in 1952 but continued to lecture at many American and Canadian universities, frequently speaking about questions of moral and political philosophy and the foundations of human rights. In June 1960, the Maritains returned to France, but Raïssa, whose health had always been frail, died in November. Jacques moved to Toulouse, where he lived with and eventually joined a religious order, Les Petits Frères de Jésus. Maritain travelled periodically and continued to write essays and books primarily on spiritual topics. He was present at the closing of the Second Vatican Council, where he received the Council’s Address to Men of Thought and Science from his longtime admirer and disciple, Pope Paul VI.2 But Maritain increasingly sought seclusion, and he died in Toulouse on April 28, 1973. He is buried alongside Raïssa in Kolbsheim (Alsace), France.

Origins of Maritain’s views on human rights Maritain’s views on human rights were formulated and developed principally in the period from the mid-1930s to the early 1950s. They were inspired initially by his distinctive humanism and took shape as he developed his theory of law—of

160  William Sweet the natural law, but also of ius gentium, or the common law of civilization. Maritain’s writings also reflected, and may have influenced, the reference to rights in some of the major papal encyclicals of the period—encyclicals that were written in response to the totalitarianism that was increasingly present in Europe—as well as some articles of the Universal Declaration of Human Rights and, later, documents of the Second Vatican Council. From early in the 1930s, Maritain was concerned with developing a Christian response to the secularism that was increasingly dominating intellectual culture in Europe. The humanism of the Renaissance—a philosophical theory that placed human beings and human values ahead of all other values, and that drew on classical authors for inspiration—not only had become increasingly opposed to religion but also was being coopted by the totalitarian ideologies of nationalisme intégral (promoted by Maurras, in France), of fascism (particularly in Italy and Germany), and of communism (in the Soviet Union, but also in some countries of Western Europe). Rather than abandon humanism altogether, Maritain proposed a new humanism that insisted upon recognition of the spiritual dimension in human nature. Maritain’s humanism had a specifically personalist character. Influenced by figures such as Emmanuel Mounier and Nikolai Berdyaev, whom Maritain knew in Paris, but also by St. Thomas Aquinas, Maritain argued that the human person had a basic dignity which entailed that persons were never to be treated as objects or as mere means to others’ ends, but always as ends in themselves. Maritain noted, however, that the term “personalism” had been used in different senses, and that “it is essential . . . to respect . . . the supra-temporal ends of the human person.”3 Maritain’s personalism, then, was to be “a social philosophy centered in the dignity of the human person” rather than “centered in the primacy of the individual and the private good.”4 One of Maritain’s first discussions of rights is found in Humanisme intégral (1936). There, Maritain elaborated a personalist “integral humanism” that emphasized the value of the human person in all its dimensions: intellectual, moral, physical, and spiritual. Human rights were essential to this. Maritain argued that the “earthly city” must be so ordered as to “recognize the right [of its members] to existence, to work, and to the growth of their life as persons.”5 The key word here is “recognize,” because Maritain did not consider these rights to be a product of the political community. The next year, one finds two papal encyclicals, published within days of each other, that make major statements about human rights. In the first, Mit brennender Sorge (March 10, 1937), Pope Pius XI challenged the evils already occurring in the German Reich. The encyclical mentions rights more than ten times, refers to the importance of “every human right and dignity” (§ 21), and calls attention to the need to respect basic rights. The second encyclical, Divini redemptoris (March 19, 1937) is a critique of atheistic communism, again emphasizing the themes of human dignity (mentioned five times) and rights (mentioned twelve times), and insisting on the “rights, dignity, and liberty of human personality” (§ 14).

Jacques Maritain and the UDHR 161 These same concerns are found in Maritain’s writings of the period, and some scholars (e.g., Samuel Moyn)6 have suggested that Maritain’s work influenced Pius here. In “Democracy and Authority” (1938),7 Maritain builds on his remarks about human rights in Integral Humanism, referring specifically to the rights enumerated by Pius in Divini redemptoris. Human rights now include “the right to live, to bodily integrity, to the necessary means of existence; the right of man to tend towards his ultimate goal in the path marked out for him by God; the right of association and the right to possess and use property.”8 Soon thereafter, in “Integral Humanism and the Crisis of Modern Times” (1939)9 Maritain adds the “right to work and to a spiritual life,” but also the importance of religious conscience. Noteworthy in these early discussions is that rights are ascribed to the “human person.” (Maritain does not speak of them as natural rights, for reasons given later.) This view reflects an important distinction that Maritain makes in talking about human beings—a distinction between the human being qua person, and the human being qua individual. Maritain notes that human beings are social and political beings. They are dependent on, and related at a fundamental level to, others. Because they are part of a social whole, human beings are called individuals. Individuals, therefore, have duties towards others and can be called to serve society. For example, the state can, by making military service mandatory, even oblige citizens to risk their lives in a just war. The individual, then, is the human being seen primarily in its relation to society and to a temporal common good. But the human being is also a relatively independent whole10 that tends towards its own “realization.” Having an intellectual, rational, and free nature, it possesses a spiritual soul, and has an end that is “superior to all temporal societies.”11 Thus, the human being is also what Maritain calls a “person.” While the human person is connected to other persons—Maritain says that the person “tends . . . to communion”12—it is particularly “summoned to a destiny that is beyond time” and space,13 an eternal common good. This distinction between the individual and the person is helpful, Maritain believes, in explaining the nature, source, and limits of rights. It shows why human rights must always and everywhere be recognized and respected, but it also explains that there are obligations that one has, as a member of a community, towards that community, and that the exercise of one’s rights can sometimes be limited. This distinction was not commonly found in other authors at the time,14 and Maritain’s account of the person was the object of serious criticism from a number of authors, Catholic and non-Catholic. Maritain’s views had a significant impact. In South America, for example, Maritain’s personalist integral humanism was highly regarded by many academics, intellectuals, and politicians—for example, the Thomist philosopher L.G. Martínez Villada; the founder of Brazilian Christian Democracy, Amoroso Lima; the Catholic archbishop and, later, advocate of liberation theology Hélder Câmara; and the politician and later president of Chile, Eduardo Frei. During his threemonth visit to South America in 1936, Maritain was made a corresponding

162  William Sweet member of the Brazilian Academy of Letters and an honorary professor of the Cursos de Cultura Catolica in Buenos Aires, Argentina. Yet Maritain was not without his critics. Maritain’s integral humanism, personalism, and defense of human rights were controversial, and led to his being attacked by Luis Arturo Pérez in Chile and Julio Meinvielle in Argentina, on the grounds that his work was communistic.15 Similarly, while Maritain was often lionized in Canada and the United States, he was also the target of critics for allegedly emphasizing the priority of the person over the common good. In De la primauté du bien commun contre les personnalistes (1943),16 for example, fellow Catholic philosopher Charles De Koninck argued that personalists (such as Mounier and—though he did not refer to him by name, many suspected—Maritain) placed too much emphasis on the value and importance of the person.17 Maritain continued to develop his views on human rights through the 1940s. In Les droits de l’homme et la loi naturelle (1942), he presented some twentyseven human rights, which he divided into three categories: rights of the human person as such (eleven), rights of the civic person (seven), and rights of the social or working person (nine). Maritain begins with rights of the human person—that is, rights ascribed to human beings simply because they are human beings. These rights include the “right to existence, to personal freedom and to the pursuit of the perfection of moral life,” but also “the right to the private ownership of material goods,” “freedom of conscience,” and “freedom of speech and expression,”18 which Maritain says is better understood as “freedom of investigation . . . to seek the truth.”19 Interestingly, for Maritain, not all of these rights are natural rights. Some are derived from the natural law and, hence, are rightly called natural, but others “follow from the first principle [of natural law] in a necessary manner, but supposing certain conditions of fact, as for instance the state of civil society or the relationship between peoples.” Such rights are, nevertheless, practically “universal, at least in so far as these conditions of fact are universal data of civilized life.”20 Here, Maritain draws on his view that there are different kinds of law. Natural law is the law, based on human nature, reflecting that nature and the ends that human beings naturally seek, which provides fundamental principles of right and wrong. The positive law contains those laws determined by “the reason and the will of man,”21 needed to provide order and stability in a particular community, such as state laws concerned with regulating vehicular traffic on public roads. The ius gentium or “common law of civilizations”22 has its root in the natural law, but also takes account of the relation of human beings to one another. Thus, while some rights follow directly from the natural law, others are related to the ius gentium. Like the natural law, this “common law” of humanity—also called the droit des gens—is prior to any positive law, including international law. In addition to the rights of the human person, Maritain refers to the rights of the civic person—that is, of the citizen. These rights include political equality within the state, equality before the law, and equal admission of all citizens to public employment according to their capacities. While Maritain writes that these rights “spring directly from positive law and from the fundamental constitution

Jacques Maritain and the UDHR 163 of the political community,” because they reflect human nature (since human beings are “naturally made to live in society”)23 and because they concern the relations among human beings in the political community, it seems that these rights may be regarded as following from the ius gentium. Finally, Maritain refers to the rights of the social or working person—for example, the right to a just wage, the freedom to organize in trade unions, the right to unemployment insurance and social security, and the right to enjoy the material and spiritual goods of civilization.24 While these rights, too, may seem to be a product of positive law, Maritain states that human beings possess these rights “as such,” and in virtue of “the dignity of the human person”25 in his or her social, economic, and cultural functions, subject only to the possibility of the state having the material and economic resources to provide them. One of the distinctive features of Maritain’s account here is that several of these rights did not appear in earlier documents, or in much of the prior discussion, of human rights. Thus, Maritain calls the economic and social rights (e.g., the rights of the social or working person) “new” rights.26 Another feature, as noted earlier, is that rights are ascribed to the human person and not, as in documents such as the Déclaration international des droits de l’homme, the individual. Third, Maritain adds that rights are held not simply by persons but also by groups, such as the family—for, he writes, the constitution of the family is based on natural law. Finally, Maritain’s interest in human rights was not simply theoretical. He saw that there had to be an international recognition of these rights; it is perhaps for this reason that he placed the Déclaration international des droits de l’homme— which had been drafted by the Institut de Droit International in New York in October 1929, and which was the first international instrument proclaiming the rights and liberties of human beings—as an “annexe” to Les droits de l’homme et la loi naturelle. Maritain continued to defend a robust account of human rights through the middle 1940s. In Principes d’un politique humaniste (1944), for example, he included a revised version of his earlier essay on “Democracy and Authority,” in which he insisted on, and described, the rights of the human person. Here, again, he refers to “the primordial rights of the person.” As noted earlier, Maritain does not seem concerned whether the rights of the human person, the civic person, and the social person are natural rights; the terms he uses are “human rights” and the “rights of man.” Given the account in Les droits de l’homme et la loi naturelle, Maritain’s view seems to be that the human being qua person cannot be separated from the human being qua individual— that is, as a member of society. A human being, then, ought to have all the rights necessary to growing and flourishing as an individual and as a person. Yet some such rights depend on the state of the economic, social, and political order, and on the resources available. While these rights therefore may seem contingent, because they reflect human nature and the natural law and are not simply a matter of the will of the state, they are, at least in principle, universal rights. In short, in Maritain’s writings from the 1930s to the mid-1940s, there is a gradual but constant recognition of human rights. These rights are fundamental,

164  William Sweet universal, and inalienable.27 As noted earlier, Maritain provides an extensive list of rights, including many “new” rights. These rights are, generally, properties of human persons and, as the rights of persons, do not depend on any national or international body; they are not a product of but rather a condition for national and international law.

The Universal Declaration of Human Rights (UDHR) Maritain’s writings on human rights were timely. By 1942, in the midst of World War II, the Allies had decided that an international body, a United Nations, would be needed after hostilities ended. Moreover, this United Nations should have an international bill of rights. Within a year of its formal creation, then, the UN established the Economic and Social Council (ECOSOC) and the Commission on Human Rights which, beginning in January 1947, set about to develop such a bill of rights. While almost half of the members of the commission came from Western countries, Eastern Bloc, Middle Eastern, and Asian countries were represented as well. To assist in producing a first draft, the commission created a drafting committee, chaired by Eleanor Roosevelt (of the United States, widow of the former US president), and comprised of Peng-Chun Chang28 (of China, a philosopher, poet, and diplomat, Western-educated but deeply schooled in Confucian thought) and Charles Habib Malik29 (of Lebanon, also a philosopher and diplomat, who had studied with A.N. Whitehead at Harvard and Martin Heidegger in Germany), as well as—in a secretarial capacity—John Peters Humphrey, a Canadian and the director of the UN Secretariat’s Division on Human Rights. While later drafts of what became the Universal Declaration of Human Rights were produced by an expanded commission and, eventually, by ECOSOC as a whole, the main list of rights—and some of the key innovations in thinking about rights—were products of the drafting committee. Malik took a leading role there, serving also, successively, as chair of the Commission on Human Rights and of ECOSOC as the document made its way to the General Assembly. In its final version, the UDHR gives a list of rights and freedoms in thirty articles, although it does not provide a definition of a right. One finds, first, a series of “civil and political rights” in articles 3 to 21—for example, rights to life, to a series of liberties (such as freedom of speech, conscience or religion, and association), and to basic securities and freedoms from arbitrary treatment, but, second, a number of economic, social, and cultural rights (the rights in articles 22–28). On this account, human rights are (1) universal (that is, possessed equally by all human beings (see Article 1) and to be universally recognized and respected); (2) inalienable (While a controversial notion,30 it is generally taken to mean that human rights are not removable by, because not conferred by, any state or public authority.); (3) “fundamental” to what it is to be a human being (that is, human beings are “born free and equal in dignity and rights” [Article 1, emphasis mine]); and (4) based on, and necessary to, the inherent dignity of every human being. The term “dignity,” while, again, contested in committee,31 ultimately appears five times in the Declaration.

Jacques Maritain and the UDHR 165 There was a serious effort by the drafting committee to ensure that the proposed bill of rights itself was broadly based. Revisions to the draft were suggested by the diverse membership of the Commission on Human Rights and of ECOSOC, including members from India, China, and Latin America, and it was decided early on to separate the text from a philosophical foundation. The UDHR, then, sought to be pluralistic and secular, without specific theoretical foundation, so as to garner international consensus. It did not explicitly reflect any comprehensive conception of the good, although it reflected respect for freedom, equality, and human dignity. Still, the prospect of a UDHR did not satisfy everyone. The American Anthropological Association, for example, issued a statement suggesting that the “proposed Declaration” could not “be applicable to all human beings,” was simply “a statement of rights . . . [reflecting] the values prevalent in countries of Western Europe and America,” and therefore could not make any claim to universality.32 Moreover, throughout the deliberations of the Commission on Human Rights, some delegates—for example, the Soviet delegate, Alexei Pavlov—attempted to undermine the process by arguing, persistently, that “it was the laws of States that fixed the limits for the exercise of human rights and freedoms.”33 The UDHR was finally brought to the General Assembly and was approved on December 10, 1948. The final vote was forty-eight in favor, none against, eight abstentions—principally the Eastern Bloc countries, South Africa, and Saudi Arabia—and two who failed to vote or abstain.

Maritain, the UDHR, and UNESCO Maritain was significantly involved in advocacy for the UDHR, both during and following its drafting, and it can be argued that he had an influence on the content of the text as well.34 Nevertheless, Maritain was not a member of any of the committees involved in the drafting of the UDHR, and many of the accounts of his relation to it are inaccurate.35 To begin with, as noted earlier, Maritain was an early advocate for an international bill of rights, and his writings—particularly his 1942 Les droits de l’homme et la loi naturelle—were well known to members of the drafting committee.36 Indeed, this book appeared in the list of materials available to the committee; by coincidence, in December 1947, at a crucial moment in the drafting of the Declaration, Maritain traveled with Eleanor Roosevelt from New York to Geneva;37 and René Cassin later said that the UDHR had been “drafted following the wish of Jacques Maritain, in a spirit of ‘practical idealism.’ ”38 Moreover, if one compares Maritain’s list of human rights39 and those discussed by the Commission on Human Rights and by ECOSOC that culminated in the UDHR, one finds a number of similarities. Both Maritain and the UDHR held, for example, that “respect for human dignity and the rights of the person” are essential to lasting peace (cf. Preamble). Both also affirmed the rights of all human persons to life, to personal freedom, “to the pursuit of the perfection of moral and rational human life” (cf. Article 18); “to marry according to one’s

166  William Sweet choice” and “to raise a family which will be assured of the liberties due it” (cf. Article 16); to property (cf. Article 17); to “freedom of speech and expression” (cf. Article 19); to “association” (cf. Article 20); to “equality of all before the law” (cf. Article 7); to “an independent, judiciary power” (cf. Article 10); and to social and economic rights such as rights to “a just wage,” “to relief, unemployment insurance, sick benefits, and social security” (cf. Article 25), and to “have a part . . . in the elementary goods, both material and spiritual, of civilization” (cf. Articles 22 and 27). One might argue that it is not surprising that there are similarities, for many earlier declarations or bills of rights, such as “The American Declaration of the Rights and Duties of Man” (adopted in Bogota on May 2, 1948), the Déclaration international des droits de l’homme, and, arguably, even those of the United States and France, referred to many such rights. But there are other similarities between Maritain’s list and those in the UDHR that are generally not expressed in those earlier statements. For example, both Maritain and the UDHR assert that rights are assigned to “persons,” not to individuals. As noted earlier, this distinction between the person and the individual was not commonly made, and is not simply a verbal one.40 Indeed, whether the rights of the UDHR were rights of individual members of a community or state, or of persons, was a matter of considerable debate in the drafting of the UDHR, and it was primarily the advocacy by Charles Malik, who was influenced by Maritain’s political philosophy, that won the day. The UDHR includes a fundamental right of conscience. Maritain argued that this right was “the first of [one’s] rights,”41 and that it was not just a freedom to think or believe what one wants. It is, to use the words of Charles Taylor, to have the freedom to hold “core convictions” (that is, convictions around which one centers one’s life and which are important or central to the meaning of one’s life) and to follow these convictions.42 A right to conscience, distinct from a freedom of religion or of worship, was something scarcely contemplated at that time, and something that was—and is still today—contested. Again, it was primarily Malik who, despite opposition, succeeded in having it included in Articles 1 and 18 of the UDHR.43 A third noteworthy similarity is seen in how the UDHR presents the rights of the family—the rights to marry according to one’s choice and to the protection of the family. Not only was this not found in many prior accounts of human rights, but it encountered significant opposition, particularly in the form in which it ultimately appeared, given national differences concerning family relations and beliefs on the freedom to marry. Both Maritain and the UDHR, however, acknowledge that “the family community” has “special rights”44 and, in particular, that the family has a “right . . . to respect for its constitution.”45 Admittedly, these similarities between Maritain’s list of rights and those that appear in the UDHR do not establish conclusively that Maritain had an influence on the text of the UDHR. Nevertheless, the distinctive character of some of these rights, the fact that Maritain had already proposed a justification for many of these new rights, and that Maritain’s political philosophy had a significant

Jacques Maritain and the UDHR 167 influence on some of the members of the commission—particularly Malik, who, as noted earlier, was one of its key members—suggest that Maritain had some influence.46 In any case, it is indisputable that Maritain had an important role in garnering international support for the UDHR. He was a major advocate for it, both during and following its drafting, as well as in the years following its adoption, and he was a public face for it, particularly in communities that were initially resistant to it. This is evident in Maritain’s work with the then newly established UNESCO and, later, in his scholarly work of the late 1940s and early 1950s. One of the early projects undertaken by UNESCO was to address a question that had been set aside by ECOSOC—“the theoretical problems raised by the elaboration of an International Declaration of the Rights of man.” UNESCO therefore established the Committee on the Philosophic Principles of the Rights of Man to consider whether any common justification could be given for the rights being discussed by Commission on Human Rights. The committee decided to contact eminent intellectuals and scholars from around the world and asked them to comment on both the need for “a common formulation of the rights of man” and “the theoretical grounds, the practical extent, and the efficient guarantees of specific rights and freedoms.” A survey was sent out, starting in late March 1947. As results of the survey came in, it was clear that there was no likelihood of agreement on a theoretical foundation; there were too many “philosophic differences.” Yet some members of the committee found that it was not only “possible to draw a list of fundamental rights on which . . . all men are agreed,” but that these rights “may be seen to be implicit in man’s nature as an individual and as a member of society and to follow from the fundamental right to live.”47 It is in this context that one finds Maritain’s specific role in the work of the UNESCO committee. Although Maritain was not a member of the committee, he was one of those asked, in the spring of 1947, to answer the survey, and he provided a response. Moreover, Maritain had been appointed chief of the French delegation to the second (November 1947) meeting of the UNESCO General Conference. This was a crucial period in the discussion of an international bill of rights, and Maritain was tasked with giving the opening address at the conference.48 Maritain made the point that, although there might be no “common basis” for a theoretical justification for human rights, some “unity of thought” is possible, because UNESCO’s goals are practical ones: “Agreement may still result spontaneously, not from a common speculative philosophy but from a common practical philosophy.”49 Maritain’s comments helped to galvanize support for the proposed bill of rights,50 and they were featured in the first issue of the UNESCO Courier. It was likely because of his visibility and his strong advocacy for an international human rights instrument that the director general of UNESCO, Julian Huxley, invited Maritain to write the introduction to a selection of the responses from the survey of the committee, titled Human Rights: Comments and Interpretations. Here, Maritain reiterated that, while no theoretical justification could be

168  William Sweet agreed upon, practical agreement was substantive and sufficient. This agreement, Maritain wrote, constituted “a sort of unwritten common law”51—a common law of humanity, as it were. Indeed, in his own contribution to the volume, Maritain argued that an international declaration of human rights could serve as a “preface to a moral Charter of the civilized world,” and that this practical agreement could “enable a great task to be undertaken.”52 Whether the work of the UNESCO Committee had an influence on the drafting of the UDHR is not clear. When completed, the UNESCO report was presented to the Commission on Human Rights, though the commission refused to distribute it.53 Yet this period was a particularly sensitive one in the drafting of the declaration, with some of the distinctive articles of the UDHR still being developed, and the work of UNESCO was essential in making the case for it. In the end, however, even if there was a practical agreement on human rights, some, such as Maritain, held that more justification was needed.

After the UDHR The list of rights in the UDHR was not, in the end, a product of “rational justification.” Maritain spoke of the UDHR as the expression of a shared faith and “a programme of actions to be carried out.”54 Indeed, as E.H. Carr wrote at the time, the articulation of a declaration of human rights that could be accepted by the international community was essentially a political process, not a philosophical one, for one “can compromise in politics, but not—unless you are either stupid or intellectually dishonest—in philosophy.”55 As Maritain noted, some members of the UNESCO committee said, “we agree on the rights, but on the condition that no one asks us why.”56 Maritain continued to be an advocate for the UDHR in the years following its adoption by the United Nations, but he believed that rational justifications “are indispensable because each one of us believes instinctively in the truth, and will only assent to what he himself has recognized as true and based on reason.”57 Yet he also insisted that it had to be a justification that avoided the ideological features not only of the totalitarian East but also of the modern West.58 Consequently, in the years following the adoption of the UDHR, and particularly after his return to Princeton, Maritain returned to the theme of human rights several times, arguing for their root in a personalist humanism and, specifically, in natural law, which indicated that there was not just a philosophical but also a legal basis for human rights that antedates modern international law. Maritain also addressed several issues left undeveloped in the UDHR, such as the definition of rights, the inalienability of rights, and whether the UDHR itself was complete. In his lecture on “The Rights of Man,” presented in December 1949—later published as chapter 4 of Man and the State—Maritain pointed out that the UDHR, and the rights within it, were connected with what it is to be a human person—a free, rational, autonomous being who has, as its end, a transcendent reality, and who is a being of dignity.59 He had already argued for this robust

Jacques Maritain and the UDHR 169 conception of the human person in a work written just prior to the drafting of the UDHR, “The Person and the Common Good,” but Maritain had to explain the legal character of these rights. Maritain was careful to point out that not just any theory of law would do; he noted that, through much of the modern period, the notion of law had been either too rationalistic or too empiricist.60 An adequate theory of law had to show that the law was not only rooted in human nature but also consistent with the idea of progress in moral knowledge. While Maritain had given some elements of his theory of law in Les droits de l’homme et la loi naturelle (pp. 34–40), he provided a more extensive account of it in La loi naturelle ou loi non écrite (pp. 84–99), written in 1949–50.61 Here, Maritain draws extensively—often verbatim—from his earlier work but adds more argument and example. His focus is not so much on human rights, which he had presented at length in the 1940s, but on the theory of law that underlay them. For Maritain, the foundation of human rights was in natural law and, more broadly, the ius gentium or common law of civilization, which is a “rational extension” of the natural law, in light of the human person understood as a social and civic being. This is not simply a philosophical foundation but a legal foundation, as the natural law tradition sees natural law as the foundation for all human law. In La loi naturelle ou loi non écrite, Maritain explains that the natural law is natural because it is rooted in human nature, reflecting the ends and goals that human beings naturally seek; this is what he calls the ontological element of natural law. Thus, the natural law does not—indeed, cannot—change. But Maritain argues that the natural law is also natural because it is naturally known. Here, Maritain draws on his earlier work on “connatural knowledge,” arguing that, while much of what is known is conceptual, based on reason, and increases over time, some basic principles are known to all “connaturally”—“with nature”—in an obscure, nonconceptual, and nonrational way. Thus, while much of the natural law is known, over time, through reason and experience, the first principles of natural law are known connaturally, through a nonconceptual awareness of “what we are and the inner bents or propensities of our own being.”62 It has been suggested that Maritain might have held that the “practical agreement” on the articles of the UDHR was a result of such connatural knowing. There is a difference, however, between the natural law and knowledge of this law. While the natural law is universal and objective, people and cultures come to know it at different times, and so there can be progress in the knowledge of the natural law. Making this distinction allows Maritain both to avoid a criticism of natural law—that it has not been, and is not, known in all places and times—and to explain how it is that natural rights, for example, came to be generally recognized first only in Europe and only in the eighteenth century. Maritain explains that it is only over time that human nature came to be better known and that certain inclinations were able to develop within humanity, so that notions such as “the specific equality of human beings” and human dignity could be grasped. Maritain’s account of natural law and his observation of ethnological data from a range of cultures allowed him, then, to hold that natural law could provide a basis

170  William Sweet for universal human rights and, by extension, the rights and freedoms enumerated in the UDHR. In La loi naturelle ou loi non écrite, Maritain also provides a more extensive account of the ius gentium. While he distinguishes ius gentium from natural law, he argues that the distinction does not question the universality of ius gentium but, rather, simply acknowledges the fact that ius gentium can be known only “through the conceptual exercise of the human reason (considered not in such and such an individual, but in common civilized humanity).”63 Ius gentium is, however, connected with the first principle of natural law “in a necessary manner,” and “it formally constitutes a juridical order (though not necessarily written in a code)” and, he writes, is “formulated in the common conscience by human reason as legislative.” This analysis, then, provides Maritain with an account of a common law of humanity that goes beyond what is found in modern international law. Further, because rights are rooted in natural law and are not sui generis, Maritain is able to make a case for, and defend, basic or natural duties. This bears importantly on the UDHR. The final two articles of the UDHR contain a statement of limits on rights as well as the existence of fundamental duties. For example, the penultimate article, Article 29, refers to limitations on rights, based on what might broadly be called “public order”: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. In this same article, the UDHR states that “Everyone has duties to the community in which alone the free and full development of his personality is possible.” The wording of this article, however, raises the questions of which law determines these limitations, and who determines whether, when, and how the “just requirements” of public order are being met. Further, it does not state what duties one has to the community, what community that is, and whether these duties exist (only) to the extent that that community is essential to human flourishing. Maritain recognized these concerns. As early as 1948 he writes: “a Declaration of Rights should normally be rounded off by a Declaration of man’s obligations and responsibilities towards the communities of which he is a part, notably the family group, the civil society and the international community.”64 For Maritain, since rights are a product of a natural law that recognizes both the value of the human person and the conditions required for a common good, there is an explanation of when rights and their exercise may be limited, of which law is involved in doing this, and of how this law provides a juridical order independent of any national or international purely positive law. Maritain’s theory of natural law, then, shows why, when, and how rights are subject to limits. For example, Maritain holds that, if the exercise of even a very basic right “goes so very far afield

Jacques Maritain and the UDHR 171 that it leads to acts repugnant to natural law and the security of the State, the latter has the right to interdict and apply sanctions against these acts.”65 Moreover, given that the human person is naturally oriented towards both a temporal and an eternal common good, it is in terms of these goods that human beings have not only basic rights but also basic duties. Even fundamental freedoms, such as freedom of conscience, need to be understood within a larger context (e.g., in the prior (individual) duty to seek the truth). In these later writings, Maritain was also able to address some issues that the UDHR did not explicitly address, but that are important to how a declaration of rights and, more broadly, a common law of humanity can have an effective place in the modern state. First, in addition to his developed exposition of his theory of law—a theory that, he believed, provided the necessary justification for human rights—Maritain provided a definition of rights. In a little-known essay titled “The Philosophical Foundations of Natural Law,” Maritain exceptionally offers an answer to the question, “What does the notion of right mean?” “A right is a requirement that emanates from a self with regard to something which is understood as his due, and of which the other moral agents are obliged in conscience not to deprive him. The normality of functioning of the creature endowed with intellect and free will implies the fact that this creature has duties and obligations; it also implies the fact that this creature possesses rights, by virtue of his very nature.”66 Maritain recognized that, to avoid equivocation on the notion, and for the exercise of human rights, there needs to be agreement on underlying values. Still, the awareness of the rights of the UDHR was, he believed, a “first condition” towards this agreement. Second, Maritain addresses the thorny issue of the inalienability of human rights. While Maritain had argued that human rights are inalienable, there was opposition to the use of the term “inalienable” in the UDHR. For some, if a right is inalienable, it cannot be taken away, and so individual rights could not yield to, and might even have priority over, all other goods. Through Malik’s efforts, the term was included in the UDHR, but the opposition remained. What Maritain does in his later writings is to explore this concept further—to distinguish between rights that are absolutely inalienable and those that are inalienable only substantially, but also to argue that, while one may possess an inalienable right, one might be restricted in exercising that right in view of a greater good.67 One further issue that Maritain considered in his later writings was not so much whether the new rights appearing in the UDHR could be justified, but whether there could be additional human rights beyond those listed in the UDHR. For some time, Maritain had held that the natural law and human rights call “for completion, according to the needs of time and circumstance,”68 and in his response to the UNESCO survey, Maritain writes that no Declaration of Human Rights will ever be exhaustive and final. It will ever go hand-in-hand with the state of moral consciousness and civilization at a given moment in history. And it is . . . a principal interest of humanity that such Declarations should be renewed from century to century.69

172  William Sweet In developing his more extensive account of natural law in 1949–50, then, Maritain wrote of how technology and social structures had impeded awareness of what it is to be human, of human inclinations, and, hence, of the natural law and human rights.70 And so, Maritain writes, as these structures change, and as society and culture develop, human beings may become aware of other human rights. For example, “the day when technology will have enabled us to give suitable housing to all . . . —at that moment, one will say that to have suitable housing . . . is a natural right for a family.”71 This feature of Maritain’s account of natural law and natural rights has led some to see Maritain’s moral and political philosophy as radically progressive. His approach allows for an increasing number of human rights and freedoms that, once a community is aware of them and has the material means to provide them, cannot morally or legally be ignored.72 In short, in the years following the adoption of the UDHR, Maritain was actively involved in advocacy for its lengthy list of human rights. For some of his contemporaries, work was completed once the UDHR was adopted, but Maritain maintained that more was required: not only did the UDHR need to be further explained and defended, but terms needed to be clarified or explained, arguments and justification given, and criticisms anticipated and addressed—issues on which the UDHR had not spoken. Maritain’s activism and his later philosophical work on the person, moral philosophy, and the law have led him to be described as “the premier postwar philosopher of human rights.”73

Conclusion Maritain was not only an influential figure in the development of, and advocacy for, the Universal Declaration of Human Rights, but a leading figure in the philosophy of law and social and political philosophy, especially in the United States, Canada, and Latin America, and throughout the world in Catholic circles. His arguments for universal, inalienable human rights not only provided a rational justification for the UDHR in the years following its adoption by the United Nations, but may even have influenced the text itself. Although the UDHR has been accused of reflecting Western values, its adoption, unopposed, by a General Assembly with representatives from more than fifty countries, along with Maritain’s justification of it by appeal to natural law and to the common law of humanity, is a testament to its universality. For Maritain, the rights enumerated in the UDHR had not only a moral but a legal status. He saw the UDHR as “the preface to a moral Charter of the civilized world,” as a document containing “rights . . . which any society which has attained a condition of political justice is required to recognise,”74 and that could serve as “an unwritten common law.” Maritain’s role in the UDHR and his arguments defending it are, today, primarily of historical interest. And while there have been many criticisms of his account of human rights and the natural law, his influence in later charters and bills of rights is noteworthy. The arguments that Maritain offers, and the clarifications

Jacques Maritain and the UDHR 173 that he provides, remain valuable, particularly in a pluralist world, in the defense both of human rights and of a common law of humanity.

Notes 1 Maritain, “The Possibilities for Cooperation in a Divided World,” 172–84, at 182. 2 See Chenaux. 3 Maritain, Humanisme integral, in Oeuvres complètes, 443, translation mine. See Integral Humanism. 4 In The Review of Politics, 8 (1946): 419–55, at 420. This text, based on lectures from 1939 (“The Person and the Individual”) and 1945 (“The Human Person in Society”), appeared almost simultaneously in French, in the Revue Thomiste (maiaoût 1946): 237–78. A year later, in 1947, it was published in book form with some minor revisions. 5 Maritain, Humanisme integral, 447. Stibora, 33, seems to have missed this obvious reference. 6 Moyn, “Jacques Maritain, Christian New Order, and the Birth of Human Rights,” 59. Stibora, 52, disagrees, though her arguments here are weak. 7 In Maritain, Scholasticism and Politics. 8 Ibid., 111. 9 Maritain, “Integral Humanism and the Crisis of Modern Times.” 10 Maritain, “Person and the Common Good,” 432. 11 Ibid., 442. 12 Ibid., 435. 13 Ibid., 442. 14 Some members of the Commission on Human Rights made just this mistake. See Commission on Human Rights: Summary Record of the Fourteenth Meeting, New York, 4 February 1947, E/CN.4/SR.14, pp. 4–5, at https://digitallibrary. un.org/record/626959/files/E_CN.4_SR.14-EN.pdf. 15 See, for example, Meinveille; see also Perez; and Compagnon, 165–70. 16 De Koninck. 17 Maritain responded to De Koninck’s criticisms, albeit indirectly, in “The Person and the Common Good.” 18 Maritain, The Rights of Man and Natural Law, 39–41. See also Maritain, Natural Law, 96–98. 19 Ibid., 49. 20 Ibid., 39–40. 21 Ibid., 40. 22 Ibid., 39. 23 Ibid., 46–47. 24 Ibid., 51–53. 25 Ibid., 60. 26 Ibid., 52; see also Man and the State, 103–5. 27 See Maritain’s essay “Christianisme et démocratie,” in Le crépuscule de la civilisation, 76 and 81, and his “Introduction,” to UNESCO (ed.), Human Rights: Comments and Interpretations, UNESCO/PHS/3 (rev.) Paris (July 25, 1948) [later republished, with minor changes, London: Allan Wingate, 1949], p. vii. Maritain’s account of the inalienability of rights is controversial. See, for example, Crosson. Interestingly, Maritain did not use the term “inalienable rights” in Les droits de l’homme et la loi naturelle. 28 See Roth.

174  William Sweet 9 See Sweet, “Charles Malik.” 2 30 This was, as noted above, a disputed term. Malik was responsible for including the term in the preamble of the UDHR. Chang objected to the term, but the commission allowed the word to remain. For a recent discussion, see Nelson. 31 See Glendon, 144. 32 American Anthropological Association, 539–43. 33 Commission on Human Rights, Summary Record of the Seventy-Fourth Meeting, June 15, 1947, E/CN.4/SR.74, p 14 at https://undocs.org/E/CN.4/ SR.74. 34 See Ochs and Gimeno. 35 See Goodale’s mildly dismissive, but also somewhat inaccurate, comments on Maritain’s relation to the UDHR, in “The Myth of Universality.” 36 Agi, 212. See also Winter and Prost, 164. 37 Mougel, 76. 38 Ibid., 65, my translation. 39 These quotations are taken from Maritain’s discussion and list, given in Maritain, Natural Law, 71–98. 40 See note 14 above and E/CN.4/SR.14, 4–5. 41 Maritain, Natural Law, 79. 42 Taylor and Maclure, 96. 43 Malik, 11. 44 Maritain, Natural Law, 80. 45 Ibid., 97. 46 A further reason for believing that Maritain may have had an influence on the UDHR is based on the possible impact of the American Declaration of the Rights and Duties of Man (May 2, 1948)—sometimes called the “Bogota Declaration”— on the UDHR. Given Maritain’s influence in Latin America in the late 1930s and early 1940s, it is possible that Maritain had some effect on this text and thus, indirectly, on the UDHR. For his influence in Latin America, see, Ramos-Reyes. 47 UNESCO, ed., Human Rights, Appendix II, p. 11. 48 Maritain, “La Voix de la Paix,” in Oeuvres Complètes, Vol. 9. See n. 1 above. 49 “M. Maritain Calls for Unity,” Unesco Courier 1/1, February 1948. 50 See Seydoux. See also Barré, Beggars for Heaven, 393–94. 51 Maritain, “Introduction,” in UNESCO, Human Rights, II. 52 Maritain, “Philosophical Examination of Human Rights,” in UNESCO, Human Rights, 59–63, at 59. 53 Goodale, “The Myth of Universality,” 610. 54 “The Grounds of an International Declaration of Human Rights,” in UNESCO, Human Rights. 55 Letter from E.H. Carr to J. Huxley, September 29, 1947, reprinted in Letters to the Contrary. 56 Maritain, “Introduction,” I. 57 Ibid. 58 See Maritain, Man and the State, 107; see also Natural Law, ed. Sweet, 74. 59 Maritain, Man and the State, 87, 107. 60 Sweet, “Maritain’s Criticisms of Natural Law Theories.” 61 Maritain, La loi naturelle ou loi non écrite. Texte inédit, établi par Georges Brazzola (Fribourg: Éditions Universitaires, 1986). An English edition, Lectures on Natural Law, tr. William Sweet, is forthcoming from University of Notre Dame Press. Versions of the first and second chapters also appeared in Man and the State, ch. 4, “Natural Law and Moral Law” [in Moral Principles of Action: Man’s Ethical Imperative, ed. Ruth Nanda Anshen (New York: Harper and Brothers, 1952), 62–76], and in some other essays of the period. 62 Maritain, The Range of Reason, 22.

Jacques Maritain and the UDHR 175 3 Maritain, La loi naturelle, 52, 56. 6 64 Maritain, “Philosophical Examination of Human Rights,” 63. 65 Maritain, Natural Law, 79, n. 40. 66 See Maritain’s paper, “Natural Law and the Rights of Man: A Philosophical Discussion,” preserved in the Jacques and Raissa Maritain papers at Kolbsheim. The paper seems to have been read at the College of St. Thomas, in St. Paul, Minnesota, in late 1950/early 1951, and is almost identical to Man and the State, ch. 4, and to “The Philosophical Foundations of Natural Law” in Natural Law and World Law, volume d’hommage offert a Kotaro Tanaka (Tokyo: Yuhikaku, 1954), 133–43. 67 Maritain, Man and the State, 90–98. 68 Maritain, “Communication with regard to the Draft World Declaration on the Rights of Man,” Letter of June 18, 1947, p. 3, section 5. http://unesdoc.unesco. org/images/0012/001243/124341eb.pdf. See also his “Philosophical Examination of Human Rights,” 60. 69 Ibid. 70 Maritain, La loi naturelle, 190. Translations are mine. 71 Ibid., 190–91, emphasis mine. 72 Ibid. 73 Moyn, “Personalism, Community, and the Origins of Human Rights,” 87. 74 Maritain, “Philosophical Examination of Human Rights,” 61.

Bibliography Agi, Marc. René Cassin, prix Nobel de la paix, 1887–1976, père de la ‘Declaration universelle des droits de l’homme.’ Paris: Perrin, 1998. American Anthropological Association, Executive Board. “Statement on Human Rights.” American Anthropologist, New Series 49/4 (1947): 539–43. Barré, Jean-Luc. Jacques et Raïssa Maritain, les mendiants du ciel. Paris: Stock, 1996. English translation, Jacques & Raïssa Maritain: Beggars for Heaven. Translated by Bernard E. Doering. Notre Dame, IN: University of Notre Dame Press, 2005. Charette, Léon. “Le droit naturel et le droit des gens d’après Jacques Maritain.” Maritain Studies/Etudes Maritainiennes 5 (1989): 41–62. Chenaux, P. Paul VI et Maritain. Les rapports du “montinianisme” et du “maritanisme.” Rome: Ed. Studium, 1994. Compagnon, Olivier. Jacques Maritain et l’Amérique du Sud. Le modèle malgré lui. Villeneuve-d’Ascq: Presses universitaires du Septentrion, 2003. Crosson, Frederick J. “Maritain and Natural Rights.” The Review of Metaphysics 36 (1983): 895–912. De Koninck, Charles. De la primauté du bien commun contre les personnalistes. Le principe de l’ordre nouveau. Montréal: Éditions Fides, 1943. Glendon, Mary Ann. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001. Goodale, Mark, ed. Letters to the Contrary: A Curated History of the UNESCO Human Rights Survey. Stanford, CA: Stanford University Press, 2018. Goodale, Mark. “The Myth of Universality: The UNESCO ‘Philosophers’ Committee’ and the Making of Human Rights.” Law & Social Inquiry 43 (2018): 596–617. Hittinger, F. Russell. “Maritain on Human Rights as Constitutional Limits.” Paper presented at New York University, sponsored by Carnegie Council on Ethics and International Affairs and the American Maritain Association, November 9, 1994.

176  William Sweet Malik, Charles Habib. “The Universal Declaration of Human Rights.” In Free and Equal: Human Rights in Ecumenical Perspective, edited by O. Frederick Nolde. Geneva: World Council of Churches, 1968. Maritain, Jacques. Integral Humanism: Temporal and Spiritual Problems of a New Christendom. Translated by Joseph W. Evans. Notre Dame, IN: University of Notre Dame Press, 1973. Maritain, Jacques. “Integral Humanism and the Crisis of Modern Times.” The Review of Politics 1 (1939): 1–17. Maritain, Jacques. Le crépuscule de la civilization. Montreal: Editions de l’Arbre, 1941. Maritain, Jacques. Letters to the Contrary: A Curated History of the UNESCO Human Rights Survey. Edited and introduced by Mark Goodale. Stanford, CA: Stanford University Press, 2018. Maritain, Jacques. Man and the State. Chicago: University of Chicago Press, 1951. Maritain, Jacques. Natural Law: Reflections on Theory and Practice. Edited by William Sweet. South Bend, IN: St. Augustine’s Press, 2001. Maritain, Jacques. The Range of Reason. New York: Scribner’s, 1952. Maritain, Jacques. The Rights of Man and Natural Law [Les droits de l’homme et la loi naturelle. New York: Éditions de la Maison Française, 1942)]. Translated by Doris C. Anson. London: Geoffrey Bles, The Centenary Press, 1944. Maritain, Jacques. Scholasticism and Politics. New York: The Macmillan Company, 1940. Maritain, Jacques, and Maritain Raïssa. Oeuvres completes. Paris: Éditions Saint-Paul, 1984. Meinveille, Julio. Critica de la Concepción de Maritain sobre la Persona Humana. Buenos Aires: Ed. Nuestro Tiempo, 1948. Mougel, René. “Jacques Maritain et la Declaration universelle des droits de l’homme, 1948.” Cahiers Jacques Maritain 61 (2010): 65–77. Moyn, Samuel. “Jacques Maritain, Christian New Order, and the Birth of Human Rights.” In Intercultural Dialogue and Human Rights, edited by Luigi Bonanate, Roberto Papini, and William Sweet. Washington, DC: Council for Research in Values and Philosophy, 2011. Moyn, Samuel. “Personalism, Community, and the Origins of Human Rights.” In Human Rights in the Twentieth Century, edited by Stefan-Ludwig Hoffmann. Cambridge: Cambridge University Press, 2010. Nelson, John O. “Are There Inalienable Rights?” Philosophy 64 (1989): 519–24. Ochs, René, and José Blat Gimeno. “Looking Back.” In UNESCO on the Eve of Its Fortieth Anniversary, edited by Amadou-Mahtar M’bow, 5. Paris: Unesco, 1985. www.unesco.org/education/nfsunesco/pdf/OCHS_1_E.PDF. Pérez, Luis Arturo. Estudio de filiosofía político-social. Santiago de Chile: Editorial El Imparcial, 1948. Ramos-Reyes, Mario Fernando. “The Impact of Jacques Maritain’s Political Thought in Twentieth Century Latin America.” PhD dissertation, University of Kansas, 1996. Ramos-Reyes, Mario Fernando. “Latin American Democracies at the Crossroads.” In The Common Things: Essays on Thomism and Education, edited by Daniel McInerny, 247–58. Washington, DC: Catholic University of America Press, 1999. Roth, Hans Ingvar. P.C. Chang and the Universal Declaration of Human Rights. Philadelphia: University of Pennsylvania Press, 2018.

Jacques Maritain and the UDHR 177 Seydoux, Roger. “Jacques Maritain à Mexico.” Cahiers Jacques Maritain 10 (1984): 25–28. Stibora, Carrie Rose. “Jacques Maritain and Alasdair MacIntyre on Human Rights.” PhD dissertation, Catholic University of America, 2013. Sweet, William. “Charles Malik: From Process to Reality.” In On the Philosophical Thought of Charles Malik: Vol. 1: Whitehead, Reason and Spirit, edited by Habib C. Malik and Tony E. Nasrallah, 27–51. Louaize, Lebanon: Notre Dame University Press, 2018. Sweet, William. “Human Rights in Ethics, Law, and Politics.” In Intercultural Dialogue and Human Rights, edited by Luigi Bonanate, Roberto Papini, and William Sweet, 31–53. Washington, DC: Council for Research in Values and Philosophy, 2011. Sweet, William. “Jacques Maritain (1882–1973).” In Great Christian Jurists in French History, edited by Olivier Descamps and Rafael Domingo, 387–403. New York: Cambridge University Press, 2018. Sweet, William. “Maritain’s Criticisms of Natural Law Theories.” Études maritainiennes/Maritain Studies 12 (1996): 33–49. Taylor, Charles, and Jocelyn Maclure. Secularism and Freedom of Conscience. Cambridge, MA: Harvard University Press, 2011. Winter, J.M., and Antoine Prost. René Cassin and Human Rights: From the Great War to the Universal Declaration. Cambridge: Cambridge University Press, 2013.

11 Robert Schuman and the process of European integration Rafael Domingo

Introduction A convinced Christian Democrat of German education and French heart, and a profoundly committed Roman Catholic, Robert Schuman embodied the most genuine spirit of European reconciliation. He was raised in the contested border area of Alsace-Lorraine and thus experienced from his youth the desire for a Europe free from artificial boundaries and joined in mutual cooperation and solidarity. Schuman’s life coincided with one of the most extensive periods of crisis in European history. He was deeply marked by the consequences of the FrancoPrussian war, the two devastating World Wars, and the Cold War. Early in life, Schuman was introduced to a trilingual culture, and in time he would hold two different citizenships—German and, later, French. He was able to defend without conflict of interest the particularities of Lorraine, the singularity of France, the special role of Germany in the construction of Europe, and the uniqueness of Europe as a supranational entity. Visionary and realist, he brought to French diplomacy a new aim, a new dynamism, a new aspiration. Working in collaboration with West Germany, especially with its postwar chancellor, Konrad Adenauer, and drawing on the creative work of French political economist Jean Monnet, Schuman was the leading advocate for and public author of the plan for the European Coal and Steel Community, which pooled French and German coal and steel industries and anticipated the European Union. Illuminated by the Gospel, educated in Thomism, and fiercely influenced by Pope Leo XIII, Jacques Maritain, and Maurice Blondel, among others, Schuman tried to defend his political ideas from Christian humanism. He felt that he was an instrument in the hands of divine providence to undertake a mission for his country rather than the designer of that mission.1 Although much appreciated by his colleagues, he was neither a popular man nor a brilliant speaker. He was a hard worker with a pragmatic mind who exhibited legendary modesty, generosity, great capacity for listening, and a deep sense of humor.2 He was an atypical French politician because of his double culture, “monkish ascetism,”3 and lack of personal ambition. Perhaps that is why he spent so little time in the political arena. He dignified the governmental debate of his time. A man of great originality and

Schuman and European integration 179 imagination, he was able to take a simple approach to big ideas. He was a lover of dialogue and persuasion, a passionate reader, an admirer of Shakespeare, a great student of history, and a devout collector of autographs of great men. No full biography of Robert Schuman has been written in English. So far, the best accounts are provided by Alan Paul Fimister4 and Margriet Krijtenburg.5 In French, the leading biography is by Raymond Poidevin, published in 1986.6 Also useful is Christian Pennera’s volume on Schuman’s youth and early political years. Schuman’s colleagues and friends—especially Robert Rochefort, René Lejeune, and Jean-Marie Pelt—have left very useful information, as have the hagiographers Francois Roth and Hans August Lücker.7 Rudolf Mittendorfer’s biography of Schuman, written in German, offers an especially good treatment of his European role.8

Biographical information Jean-Baptiste Nicolas Robert Schuman was born on June 29, 1886, in Clausen, one of the oldest neighborhoods in Luxemburg City.9 His father, Jean Pierre Schuman (1838–1900), was a French farmer born in Évrange, in the Moselle region of Lorraine, on the French border with Luxembourg. The father had fought with the French army for Napoleon III in the Franco-Prussian War of 1870, in which Prussia and its German allies overwhelmingly outnumbered the French.10 After the war, as result of the Treaty of Frankfurt of May 10, 1871, some parts of Alsace-Lorraine, including Jean Pierre Schuman’s birth village, were annexed to the German empire.11 Jean Pierre decided not to exercise the option of retaining his French nationality, which would have required him to leave the annexed area and immigrate to the trimmed and humiliated France, thereby losing his small farm. Thus Jean Pierre Schuman became a German citizen automatically by misfortune. To escape the German annexation, however, and to make up for the scanty yields of the farm, he decided to settle in Luxembourg in 1873 and to live off his rents. In 1884 he married a Luxembourger, Eugénie Duren (1864–1911), who also became German by the marriage and therefore lost her Luxembourgish citizenship. This explains why Robert Schuman, although born in Luxembourg from a Luxembourger mother, was born with German citizenship. Like every child born in Luxembourg to foreign parents, Robert was eligible for Luxembourgish citizenship when he reached the age of majority, but he never chose that possibility. Young Robert learned Luxembourgish at home because it was his mother’s tongue.12 He attended first the public school of Clausen-Luxembourg, where he mainly learned German, and at the age of ten he was admitted to the Luxembourg Athenaeum, where courses were taught in both German and, in the upper classes, French. Trilingual from his youth, Robert also learned Latin, Greek, and English at the school (although his English never was fluent). The Catholic education he received in Luxembourg schools and especially at home from his beloved mother influenced his whole life. He also developed from a very young age a great love for his father’s homeland, the Lorraine, where he spent seasons

180  Rafael Domingo working on the family farm. All through his life, Schuman considered himself a Lorrainer like his father. In 1900, when Robert was only fourteen, his father died. His mother died eleven years later as result of an accident with a horse cart. These losses deeply affected Schuman all his life. The preserved correspondence between mother and child—often weekly, and in French rather than Luxembourgish—testifies to the deep spiritual relationship between Schuman and his mother.13 With her, Robert had traveled to Rome in 1909 to attend the beatification of Joan of Arc. After finishing high school in Luxembourg, where there was no university, Robert moved to Lorraine. In 1903 he was admitted in the Kaiserliches Lyceum in the French city of Metz, just south of where France, Germany, and Luxembourg meet. One year later, he passed the German university-preparatory school exam (Abitur), which opens the door to German universities. As was customary at the time, Schuman attended different law schools to benefit from the scholarship of the most distinguished jurists: Josef Kohler, Otto von Gierke, Paul Laband, Lujo Brentano, Franz von Liszt, and Gustav von Schmoller, among others. He spent one semester in Bonn, two in Munich, and two in Berlin, and he finally graduated from the University of Strasbourg (then under the German rule) in 1908, after passing the first state examination. In 1912, Schuman received his law doctorate with a thesis on civil litigation under the supervision of the young professor Wilhelm Kisch, and he also passed the second state examination, which allowed him to practice law in the German empire. Then, Schuman decided to open a law firm in Metz. Schuman also became actively involved in Catholic charities at this time. In 1912 the young lawyer of twenty-six met for the first time Bishop Willibrord Benzler. The prelate integrated Schuman into a group of lay diocesan leaders and put him at the head of an organization created specifically for him: the Diocesan Federation of Youth Groups. Benzler urged Schuman to deepen his Thomist thinking. This period in Metz convinced Schuman that he must consecrate not only his activity but his whole person to God and to the service of others. He considered the possibility of becoming a priest but finally decided to live as a celibate lay apostle in the midst of the world. Increasing the frequency of his receiving the sacraments, he also devoted time to meditation on the Bible as well as concentrated study of the magisterium of the church. He especially studied the teachings of the pope of his youth, Leo XIII, author of the first encyclical letter on social issues, Rerum Novarum (1891), and father of the social teaching of the Catholic Church. In 1914, when the First World War broke out, Schuman was not drafted into the German army because of weak health. Instead, he was assigned to administrative tasks in Boulay-Moselle. He never wore a German military uniform. In 1919, just after the entrance of French troops under Marshal Pétain into Metz, and once the imperial territory of Alsace-Lorraine had reverted to France, Schuman became a French citizen and was elected to the French National Assembly from the Department of Moselle. During his years as a deputy (1919–40), he worked to preserve the social legislation that had been applied in Moselle during the

Schuman and European integration 181 German annexation, because it was much more advanced and beneficial than the French policies: bilingualism in school and courts, special status of the railways, and moderate application of French secularism.14 In 1924 Schuman purchased a piece of land in Scy-Chazelles, a Lorraine village in the Moselle valley. Today his house has been transformed into a museum and inspirational European convention center. In March 1940, with World War II already begun, Schuman became a member of Paul Reynaud’s government as under-secretary of state for refugees. Just months later, on June 14, Paris fell to Nazi Germany. On June 22, Marshal Pétain signed the armistice with the Germans, and the French government moved to Vichy, 220 miles south of Paris.15 Schuman was confirmed in his position by Pétain. On July 10, 1940, Schuman voted with the majority of the National Assembly to grant extraordinary powers to Marshal Pétain to reform the constitution of France, but, unhappy with the attitude and guidance of the Petain government, Schuman resigned his ministry and returned to Metz at the end of August. On September 14, 1940, Schuman was arrested by the Gestapo, the Nazi secret police, and on April 13, 1941, after the Nazis considered sending him to a concentration camp, he finally was placed under house arrest in Neustadt an der Weinstrasse, a German town in the Rhineland-Palatinate. This benevolent measure by gauleiter Joseph Burckel, the German party leader and governor of the annexed department of Mosele, may have been an attempt to persuade Schuman of the advisability of supporting the Nazi regime.16 In Neustadt, Schuman enjoyed some degree of freedom, especially after gaining the confidence of the police. On August 1, 1941, helped by friends in Lorraine, he escaped to unoccupied France. Until the liberation at the hands of the Americans in August 1944, he lived secretly in twelve different hiding places, most of them religious houses, and worked for the French resistance. He also spent time improving his English and reading Shakespeare, Thomas Aquinas, and Saint John of the Cross. At that time he experienced the need to make the best effort to engage France and Germany in a common project of unifying Europe. After the war, Schuman was officially declared a collaborator of the Vichy regime and therefore disqualified from public office. General Charles de Gaulle himself, undisputed leader of the French resistance, personally resolved the problem, however, and secured Schuman’s rehabilitation, opening the door for Schuman again to enter French political life. Schuman made his enormous political contribution over the next eight years of the so-called French Fourth Republic (1948–56), which was marked by governmental instability and social insurrection. Schuman was almost sixty years old when he began his national and international career. He served as minister of finance (1946) under the governments of Georges Bidault, leader of a Christian democratic party called the Popular Republican Movement (MRP), and Paul Ramadier. In November 1947, the National Assembly elected Schuman himself as prime minister (only the Communists voted against him). Less than a year later, however, on July 27, 1948, Schuman stepped down as prime minister, unable to hold his political coalition

182  Rafael Domingo together.17 The new prime minister, André Marie, appointed Schuman as minister of foreign affairs, a post that Schuman retained through eight governments, until January 1953. Later, Schuman was appointed minister of justice (1955) for less than a year. As prime minister and, especially, as foreign minister, Schuman was instrumental in negotiating major treaties and international initiatives such as the Marshall Plan (1948–52), the Council of Europe (founded on May 5, 1949), and the North Atlantic Treaty Organization (NATO), founded on April 4, 1949. Schuman believed that NATO, the European Convention on Human Rights (drafted in 1950 by the newly formed Council of Europe), and the European integration process itself would constitute the foundations of a new Western order.18 Schuman became internationally renowned for what is now called the Schuman Declaration,19 which he issued on May 9, 1950, in Paris, at the Salon de l’Horloge (the Clock Room) in the Quai d’Orsay, headquarters of the French Ministry of Foreign Affairs. This declaration changed the history of Europe and is now considered the founding document of the European project that comprises the European aspirations of peace, solidarity, and cooperation.20 There, just five years after the end of World War II, Schuman launched his proposal for France and West Germany to work together on the production of coal and steel, “under a common high authority in an organization open to the other countries of Europe”—and in the process making “any war between France and Germany not merely unthinkable but materially impossible.” The common high authority would have decision-making power in accordance with the statutes, and it would be really an authority protected by a supranational jurisdiction.21 This plan would end the means and incentives for new wars and would lay the foundation for a potential supranational Europe. The Schuman Declaration marked the beginning of post–World War II Franco-German cooperation and the reintegration of West Germany into Western Europe. Schuman was always aware of the relevance of the event: “In 1950,” he wrote, “France was the forerunner of a new ideal. It was revolutionary in terms of its design and range, but it was peaceful in the way it was undertaken.”22 The main architect of the plan had been Jean Monnet, the general planning commissioner.23 With great humility, Schuman recognized the “exceptional merits of an exceptional man”—Jean Monnet, whom Schuman did not hesitate to call his friend.24 Like all great men, Schuman discounted the significance of his own work: “It was the foreign minister’s responsibility to provide his patronage and his backing, and to assume the political risks of the initiative.”25 Italy, Belgium, the Netherlands, and Luxembourg responded positively to the proposal and joined France and West Germany in creating the European Coal and Steel Community (ECSC) on April 18, 1951. The ECSC is considered the precursor to the European Economic Community established in 1957 and the beginning of what is now the European Union. Since 1985, May 9 is celebrated annually as Europe Day, and it is commonly recognized as one of the great “European constitutional moments.”26 In some sense, it can be said that the Schuman Declaration is of similar importance to the Declaration of Independence of the United States. Both are at the heart of the birth of two important political and social

Schuman and European integration 183 projects, the United States of America and the European Union. Both documents were produced by great men in difficult circumstances. Both were firmly based on religious principles. Both constitute a call to the common sense of the people: the one to justify the independence of a new nation; the other to seek the union of a devastated continent. Similarities abound. After May 9, 1950, Schuman the statesman became identified with the cause of European integration. With the fall of Antoine Pinay’s administration in December 1952, Schuman’s ministry of foreign affairs ended. The German novelist Thomas Mann wrote to Schuman: “I cannot imagine that the country wants to or can give up your services.”27 Schuman came back to government in 1955 for a short term as a minister of justice in the Edgar Faure government. In 1958, however, the return of General de Gaulle to power ended Schuman’s political career in the French government. De Gaulle had never had great esteem for Schuman let alone for his particular European project.28 Schuman then became the greater defender of the European cause, traveling throughout the continent (Rome, Vienna, London, Athens) and around the world (Rio de Janeiro, Washington, Boston) promoting European reconciliation and unification. From 1955 to 1961 he was the president of the European Movement, and from 1958 to 1960, president of the European Parliamentary Assembly29 (now the European Parliament) in Strasbourg. Honored often, Schuman received honorary doctorates from the universities of Edinburgh, Birmingham, and Tilburg, the University of California, Los Angeles (UCLA), Fordham University, and Catholic University of Leuven. In 1956, Pope Pius XII awarded him the Great Cross of the Order of Pius IX. In 1958, he received the Charlemagne Prize in Aix-la-Chapelle (Aachen), one of the most prestigious European prizes. In 1959, he received the Erasmus Prize along with the German-Swiss philosopher Karl Jaspers. The European Parliamentary Assembly awarded him the title of Father of Europe at the end of his term of office (1960). At the end of 1959, Schuman’s health declined, and in 1962 he announced his retirement from political life. He then devoted much time to meditating on sacred scripture. He decided not to write his memoirs to avoid personal judgments about other people and circumstances and because he did not want to feel the center of attention of European political life. Instead, he wrote a short essay on Europe, consisting of a brief summary of the essential ideas and convictions that had guided his political activity in favor of the European Union (see the next section). Schuman died on September 4, 1963, at the age of seventy-six. His death went largely unnoticed because Gaullism then occupied the whole political sphere. A few days before his death, the bishop of Metz, having administered the sacrament of the sick, read to him a telegram from Pope Paul VI. The old man was so much affected that he cried.30 Schuman was buried in the twelfth-century fortified church of Saint-Quentin, adjacent to his house. His process of beatification was officially opened in the diocese of Metz on June 9, 1990.31 The Robert Schuman Foundation was established in 1991 in Paris and Brussels to promote European research on the policies of the European Union, as well

184  Rafael Domingo as to foster European values in accordance with the spirit and inspiration of the founding fathers of Europe. The European University Institute in Florence, Italy, is home to the Robert Schuman Centre for Advanced Studies (RSCAS), focusing on interdisciplinary, comparative, and policy research on the major issues on the European integration process.32 In 2016, the University of Luxembourg inaugurated the Robert Schuman Institute of European Affairs, which focuses on the interdisciplinary study of European affairs and the European Union.33 Schuman’s papers are deposited at the departmental archive of the Moselle.34 In addition, both the European Commission Library and the Robert Schuman Foundation hold abundant material. The archival collection of Hans August Lücker on the beatification process for Robert Schuman is now available for research at the Historical Archives of the European Union (HAEU).35

Schuman’s European vision Schuman’s vision of Europe has been reflected in the many speeches and lectures36 he delivered throughout his life, but especially in what can be called his political testament—his essay For Europe.37 Although written in the political context of the sixties, Schuman’s essay on Europe continues to have great value for our time because of the powerful inspiration of its perennial principles. Schuman did not look for a provisional solution to resolve the problems of a devastated Europe after the Second World War but sought to develop a long-term common project based on legal solidarity and constructive endeavor. He was realistic, believing that partial agreements and success should be the starting point for more relevant and lasting achievements. Schuman saw the need to politically organize interdependence and diversity as well as the need to maintain different levels of government, with different intensities, developing a healthy patriotism and solidarity among peoples. The starting point for his project was the realization that the division of Europe had become anachronistic.38 European borders had become an obstruction, a hindrance, or an impediment to the exchange of goods, the developing of ideas, and the mobility of people. More than a barrier, he thought, borders should constitute a venerable and respected meeting point of cultures and ideals. Union, cohesion, cooperation, and coordination between and among European nations was required. This new supranational level, illuminated by a universalist approach, should be founded on the principles of solidarity, international cooperation, majority rule freely accepted by the nation-states, and the principle of equality of rights among them. The aim would not be to join states to create a super European state, but to allow people to live in different countries that are part of a supranational structure. Key to understanding Schuman’s approach to the organization of Europe is supranationality. The supranational, Schuman explained, is situated at the same distance between, on one hand, international individualism that treats national sovereignty as intangible, and accepts no more

Schuman and European integration 185 limit of sovereignty than contractual obligation; and, on the other hand, a state federalism that is subordinated to a superstate endowed with its own territorial sovereignty.39 Behind this project lie no hidden imperialistic goals or any kind of egoistic inclination, but only the firm desire to achieve peace among nations and to contribute to the development of humanity. The European project falls within a broader one that is the “rational organization of the world,”40 of which Europe will become an essential part. It is therefore a peaceful endeavor, based on a matter of fact: countries need each other, regardless of the international power they might hold. Isolation of countries means decline. Patriotism is not opposed to Europeism, because “the national can flourish within the supranational.”41 Nations have a mission not only in relation with their own peoples but also vis-à-vis other nations. Nationalism itself, therefore, is a bad refuge. Europe is a “cultural community in the most elevated sense of the term”42 before being a military alliance. It should to be thought to have developed a soul in the diversity of its traditions and aspirations. Security is a necessary condition for peace and prosperity, and, like peace, has become indivisible. Thus, Schuman continues, a legitimate and constructive goal of Europe is to guarantee collective defense. Defending Europe is not enough, however, since mere defense of Europe does not necessarily imply building Europe. “The present feeling of insecurity,” Schuman affirms, “will be the direct cause of the European unification, but it will not be its raison d’être.”43 European countries are interdependent. For better or worse, all countries are united in a single destiny, and this unity demands solidarity between and among nations. According to Schuman, solidarity is based on “the conviction that the real interest of all lies in acknowledging and accepting the interdependency of all,”44 a reality incompatible with claims to hegemony or egoistic superiority. But solidarity is also incompatible with any kind of political nationalism, autarchic protectionism, or cultural isolationism. True political solidarity requires “democratic equality.”45 The European project is not imperialistic but supranational and therefore democratic in essence. It implies majority decisions (avoiding any kind of dictatorial superiority), organized cooperation, and a free market, which in turn means competition, confidence, and automatic selection.46 Finally, the European project demands the cultural development of a real community of ideas, values, and aspirations. Christian Democracy constitutes the framework of Schuman’s European ideal. According to him, democracy and Christianity are strongly linked because “democracy owes its existence to Christianity.”47 “Like Bergson,” he pointed out, “I have come to the conclusion that democracy is essentially evangelic, since love is its mainspring.”48 As a doctrine, democracy is linked to human dignity, individual rights and freedoms, and brotherly love toward others. Democracy is an expression of civilized maturity. It took Europe over a thousand years to achieve democracy. “Christianity taught us that all men are equal by nature, children of the same God, redeemed by Christ regardless of race, color, social status, or

186  Rafael Domingo profession. . . . The universal law of love and charity made every man our neighbor.” All of these teachings, with crucial practical consequences, “have changed the world forever.”49 But Christianity should not be a part of the structure of a political system, nor should it be identified with any form of government. Rather, it is necessary to distinguish what belongs to Caesar and what belongs to God. Administration of changing situations belongs to Caesar; immutable principles of natural law belong to God.50 On one hand, theocracy minimizes the necessary separation between the two domains. On the other hand, the nation-state, which seeks to separate the domains, cannot undermine the extraordinary value and moral authority of religious inspiration in public life and in protecting people against social disintegration. For this reason, democracy must define a positive approach to religion. The last chapters of Schuman’s essay on Europe are more circumstantial, but they also contain important statements that later history has confirmed. First, Schuman states that without Germany, just as without France, building Europe would be impossible.51 More than any other country, perhaps, Germany has a deep sense of community that will make it a full player in a united Europe. Schuman firmly opposed the division of Germany into West and East, for one very practical reason: “The policy of constraint, applied by the victors, only brings flimsy and deceptive solutions; and it generates new conflicts. On the other hand, as long as there is room for revenge, the risk of war can arise again.”52 According to Schuman, neutralizing or even nullifying Germany is contrary to the European project. He anticipated a unified Germany fully integrated in European institutions.53 Second, Schuman foresaw that the United Kingdom would agree to join an integrated Europe only when forced by events. Schuman does not consider the United Kingdom as particularly identified with the new European spirit. The issues are psychological, cultural, and political. According to Schuman, “it was inconceivable for the British government to grant a European body more authority than the Commonwealth.”54 The Brexit vote of 2016 clearly harks back to the words of Schuman. Third, Schuman believed that economic integration was inconceivable in the long term without its logical complement, political integration.55 Political integration for Europe means federation in the noblest sense of the idea. European countries should be partner states working together through collective diplomacy and supranational institutions led by a parliamentary assembly elected by universal suffrage,56 with the capacity of imposing its will over national parliaments in serious decisions on war and peace, nations’ independence, and integrity of territory.57 This federation of states should avoid the mistakes of nation-states, particularly bureaucracy and technocracy:58 “administrative paralysis,” Schuman says, “is the basic danger that threatens any supranational organization.”59 Unfortunately, the European Union has disregarded the voice of one of its founders on a point as important as this.

Schuman and European integration 187

Schuman’s contribution to the idea of global law Schuman did not develop the idea of global law. Moreover, he probably never used the expression “global law.” However, some principles applied by Schuman to build up the European integration project are also useful for a general theory of global law. The principle of the centrality of the person, the need to eliminate wars through peaceful means rooted in the law, the importance of limiting the sovereignty of states without abolishing national communities, and the relevant role of solidarity and subsidiarity in the building up of supranational structures, are some of Schuman’s intuitions that might be applied in the development of global law. The European community and the global human community are different by nature since the former is particular and the latter universal. However, both communities share one element. They are both incomplete and, therefore, complementary communities. That is why, in my opinion, the analogy between the two communities is possible and helpful. Incomplete communities are those that strive to satisfy only certain specific human needs, and not as many as possible, in the way of complete communities (e.g., the nation-state). All incomplete communities are complementary in nature. This degree of complementarity might ultimately be determined through political decision-making according to the principles of solidarity and subsidiarity.60 A reading of Schuman’s essay For Europe from this perspective, based on analogy, offers us some lessons because he understood the European project as a complementary project to develop solidarity between and among European citizens and European countries. Paraphrasing For Europe, we can say (1) the new global community should refer to a community of human beings and not just a community of nation-states (p. 10); (2) the idea of global law is not to merge nation-states to create a super world nation-state, (p. 16); (3) no global law is possible without the union, cohesion, and coordination between and among nation states (p. 17); (4) the democratic majority rule should be implemented at the global institutional level (p. 17); (5) the end of global institutions is not to absorb the nation but to endow it with a broader and higher sphere of activity (p. 21); (6) global security and peace have become indivisible (p. 24); (6) the law of solidarity between peoples is a must for the modern global conscience (p. 31); (7) global law is the implementation of widespread democracy in the Christian sense of the term (p. 41); (8) each country should be aware of its interdependence with others (p. 103); (9) administrative paralysis is the basic danger of supranational institutions; and (10) serving humanity is a duty similar to loyalty to the country (p. 131).

Conclusion Robert Schuman’s life is closely linked to an international mission: bringing together France and Germany to lead the process of European unification. He

188  Rafael Domingo believed in an organized and united Europe based on the leadership of Germany and France, acting as two powerful lungs under equal rights with other nations. The heart of Europe should be, however, Christian in character, because Christianity is, according to Schuman, the true inspirational source for forgiveness and love. He embodied and anticipated the values that Europe should develop politically: diversity, solidarity, forgiveness, magnanimity, and generosity. In this sense, Robert Schuman was the first citizen, the first founding father, of the European Union. He was a visionary but at the same time a very realistic politician. His proposals were courageous but accessible, without being lost in pure aspiration or abstraction. In all his political ideas and actions, he was guided and determined by his religious attitude. Out of his Christian outlook, he understood politics as a service to humanity, oriented to the common good, and in harmony between individuals and peoples. Since both the European community and the global community are incomplete and complementary, some analogies based on Schuman’s approach to Europe can be established in the development of a theory of global law.

Notes 1 See Schuman, French Foreign Policy, 5. In a letter of 1942 to Robert Rochefort, Robert Schuman wrote (in French): “We are the very imperfect instruments of a Providence which makes use of them in the accomplishment of great designs which go beyond us. This certainty demands a lot of modesty but gives us a serenity that would not always be justified by our personal experiences considered from a merely human point of view.” See Roth, Robert Schuman, 562. 2 See some examples in Krijtenburg, Schuman’s Europe, 52–53. https://open access.leidenuniv.nl/bitstream/handle/1887/19767/fulltext.pdf?sequence=17. 3 Acheson, 32. 4 Fimister. 5 Krijtenburg, Schuman’s Europe. 6 See Poidevin; see also Pennera. 7 Rochefort; Lejeune;Roth; Lücker and Seitlinger; Pelt. 8 Mittendorfer. 9 For biographical details, see the biographies listed in notes 2–7 and the bibliography. 10 On the Franco-Prussian War, see Wawro; also Howard. 11 The territory was made up of 93 percent of Alsace and 26 percent of Lorraine; the remaining portions of these regions continued to be part of France. Since its complete reversion to France following World War I, the territory has been referred to administratively as Alsace-Moselle. Since 2016, Alsace and Lorraine are a part of the new French administrative region in northeastern France called Great East. For an overview of the history of Alsace-Lorraine, see Roth, Alsace-Lorraine. 12 It is a west Germanic language, very close to German and Dutch, with borrowed words from French. In Luxembourg, children study in Luxembourgish at kindergarten level and in German and French at primary level. 13 The letters received by Schuman from his mother (1906–09) are deposited in the Schuman Papers (34 J 1) at the Departmental Archives in the Moselle. See Hiegel and Duvigneau, 10. For a commentary about these letters, see Poidevin, 17–19. 14 In Alsace and Moselle, a local law is still in force. Established in 1919 after the end of the First World War, it is applied in the French departments of Bas-Rhin,

Schuman and European integration 189 Haut-Rhin, and Moselle, grouped under the generic name of Alsace-Moselle, which is now in the Grand East region. This local law retains the provisions set up by German authorities between 1871 and 1918 when those provisions are considered more favorable to the inhabitants of Alsace and Moselle. The local law also includes the pre-1870 French laws maintained by the German administration but abrogated by the French authorities before their return in 1918. Finally, the local law includes specific French laws after 1918 applicable only to these territories. The local law mainly affects professional regulations, credit institutions, statutory holidays, legislation on the reimbursement of health expenses, social assistance for the poorest persons, the organization of justice and the courts, civil procedures, bankruptcy, the land register, the law of hunting, and the law of association. The French law on separation of the churches and the state of December 9, 1905, is not applied in Alsace and Moselle. Instead, the 1801 Concordat with the Holy See and the special laws of 1802 are still in force. As result, religious education is compulsory in primary and secondary schools (with permission of the parents); the University of Strasbourg and the University of Metz are the only French public universities to teach theology; the remuneration of the ministers of the four recognized cults (Catholic priests, Lutheran and Reformed pastors, and Jewish rabbis) is taken over by the state. The appointments of the archbishop of Strasbourg and the bishop of Metz are made by the president of the French Republic, the last head of state in the world to appoint Catholic bishops. For an overview of the local law in Alsace and Moselle, see Institut Du Droit Local Alsacien-Mosellan. 15 On the so-called Vichy regime, see Burrin. 16 See Poidevin, 137. 17 Schuman was prime minister again for a week, September 5–11, 1948. 18 See Lejeune, Robert Schuman, père de l’Europe, 153. 19 See the whole text available at: https://europa.eu/european-union/about-eu/ symbols/europe-day/schuman-declaration_en. 20 On the spirituality of the declaration, see Wilton, 13–32. As Fimister well pointed out, the 1950 declaration resulted from the “self-conscious application” by Schuman of the Catholic social thought and neo-Thomistic political philosophy to international relations. See Fimister, 17. 21 See Schuman, For Europe, 110. 22 Ibid., 20. 23 Ibid., 119: “In a small hotel on Rue Martignac, it was Jean Monnet who, together with his collaborators, sketched out within a few months, discretely and in the utmost secrecy—not even the government knew—the idea of the coal and steel community.” See also Monnet, Memoirs, 318–35. The first draft was prepared by Paul Reuter, Schuman’s colleague and the lawyer at the Foreign Ministry, and it was mainly edited by Jean Monnet, Étienne Hirsch, Pierre Uri, and Bernard Clappier. In her doctoral thesis, Margriet Krijtenburg tries to recover Schuman’s leadership in the project. See Krijtenburg, Schuman’s Europe. In the same vein, see also Price, 61–62. On the role of Paul Reuter, see Cohen. For a general overview, see Reuter, La Communauté européenne. 24 Schuman, For Europe, 119. On this relationship, see Roussel, 87–92. 25 Schuman, For Europe, 119. An example of risk is, for instance, that two days before the declaration, on May 7, 1950, Schuman, without the consent of the French Council of Ministers, assured Chancellor Konrad Adenauer in a letter that the proposal of declaration would be approved a few days later by the French government. The letter is available at: www.cvce.eu/con tent/publication/1999/2/10/5b2f4ed8-b98c-4dc3-b7de-0f53bf11ff55/ publishable_en.pdf.

190  Rafael Domingo 6 On constitutional European moments, see Weiler, esp. 3–4. 2 27 See Rochefort, 317; and Poidevin, 367. 28 The lack of understanding between De Gaulle and Schuman was profound. See Fimister, 170–71; and Lejeune, Robert Schuman, père de l’Europe, 135–138. The divergences among the two politicians are explained by Chopra, 35–39. 29 After the establishment of the European Economic Community (ECC) and the European Atomic Energy Community (Euratom) in 1957, a single assembly was created with the powers and responsibilities assigned to it at the EEC and Euratom treaties. This assembly also replaced the Common Assembly of the European Coal and Steel Community. The single assembly held its first session on March 19, 1958. It was this new assembly that elected Schuman as president unanimously. The official and unified designation as European Parliament was made by Art. 2 of the Single European Act of 1986. For an overview of the history of the European Parliament, see: www.cvce.eu/en/obj/european_parlia ment-en-ad6a0d57-08ef-427d-a715-f6e3bfaf775a.html. 30 See Poidevin, 420. 31 On the cause of beatification, see Institut Saint-Benoît, esp. 11–15. 32 Information available at: www.eui.eu/DepartmentsAndCentres/RobertSchuman Centre/Index.aspx. 33 Information available at: http://wwwen.uni.lu/recherche/robert_schuman_insti tute_of_european_affairs. 34 See Hiegel and Duvigneau, available at: www.archives57.com/phocadown load/6._FONDS_PRIVES/politique/frad57%20034-036j%20papiers%20schu man.pdf. 35 The inventory is available at: http://archives.eui.eu/en/fonds/153157?item= HALK. 36 A list of Schuman’s more than sixty minor writings, lectures, and speeches can be found in Poidevin, Robert Schuman, homme d’État, 481, 484–86. Most of them can be consulted in the Schuman Papers (34 J) at the Departamental Archive of Moselle. Some are available at: www.schuman.info led by David Heilbron Price. 37 Schuman, For Europe. The English translation of the essay must be improved. 38 Schuman, For Europe, 15. 39 Robert Schuman, “Préface,” in Reuter, La Communauté européenne, 3–8, at 7. The legal approach to the idea of supranationality was deeply developed by Paul Reuter. 40 Ibid., 18. 41 Ibid., 22. 42 Ibid., 29. 43 Ibid., 134. 44 Ibid., 35. 45 Ibid., 36. 46 Ibid., 37. 47 Ibid., 43. 48 Ibid., 51. 49 Ibid., 44. 50 Ibid., 46. 51 Ibid., 61. 52 Ibid., 79. 53 Ibid., 139. 54 Ibid., 86. 55 Ibid., 93. 56 The Decision and the Act on European elections by direct universal suffrage were signed in Brussels on September 20, 1976. The Act entered into force in

Schuman and European integration 191 July 1978, following ratification by all member states. The first elections took place on June 7 and 10, 1979. See basic information at: www.europarl.europa. eu/ftu/pdf/en/FTU_1.3.1.pdf. 57 Schuman, For Europe, 108. 58 Around thirty-three thousand people are employed by the European Commission. In the European Parliament, around six thousand people work in the general secretariat and in the political groups. In the Council of the European Union, around thirty-five hundred people work in the general secretariat. See basic information at https://europa.eu/european-union/about-eu/figures/ administration_en 59 Schuman, For Europe, 106. 60 For further development, Domingo, “The New Global Human Community.”

Bibliography Acheson, Dean Gooderham. “Robert Schuman.” In Sketches from Life of Men I Have Known, edited by Dean Gooderham Acheson, 31–59. New York: Harper, 1961. Adenauer, Konrad. Memoirs, 1945–53. Translated by Beate Ruhm von Oppen. London: Weidenfeld and Nicholson, 1966. Benning, Hermann J. Robert Schuman: Leben und Vermächtnis. Munich: Verlag Neue Stadt 2013. Beyer, Henry. Robert Schuman, L’Europe par la réconciliation franco-allemande. Lausanne: Fondation Jean Monnet pour l’Europe, Centre de recherches européennes, 1986. Bitsch, Marie-Therèse. Robert Schuman: Apôtre de l’Europe 1953–1963. Brussels: Peter Lang, 2010. Burrin, Philippe. France Under the Germans: Collaboration and Compromise. Translated by Janet Lloyd. New York: New Press, 1996. Chaplin, Jonathan, and Gary Wilton, eds. God and the EU: Faith in the European Project. London and New York: Routledge, 2016. Chopra, Hardev Singh. De Gaulle and the European Unity. New Delhi: Abhinav Publications, 1974. Cohen, Antonin. “Le plan Schuman de Paul Reuter. Entre communauté nationale et fédération européenne.” Revue française de science politique 48 (1998): 645–63. Conzemius, Victor. Robert Schuman: Christ und Staatsmann. Hamburg: F. Witting, 1985. Descamps, Olivier, and Rafael Domingo. Great Christian Jurists in French History. Cambridge and New York: Cambridge University Press, 2019. Domingo, Rafael. “The New Global Human Community.” Chicago Journal of International Law 13/1 (2012): 563–87. Domingo, Rafael. The New Global Law. Cambridge and New York: Cambridge University Press, 2010. Fimister, Alan Paul. Robert Schuman: Neo-Scholastic Humanism and the Reunification of Europe. Frankfurt am Main and Bern: Peter Lang, 2011. Griffiths, Richard T. “The Founding Fathers.” In The Oxford Handbook of the European Union, edited by Erik Jones, Anand Menon, and Stephen Weatherill, 181–92. Oxford and New York: Oxford University Press, 2012. Heilbron Price, David. Robert Schuman, Jalonneur de la Paix Mondiale. Berlin: Bron Communications, 2014.

192  Rafael Domingo Hiegel, Charles, and Marion Duvigneau. Papiers de Robert Schuman. Répertoire numérique détaillé des fonds déposés sous les cotes 34 et 36 J. Saint-Julien-lès-Metz: Archives départamentales de la Moselle, 2002. Howard, Michael. The Franco-Prussian War: The German Invasion of France 1870– 1871. 2nd ed. London and New York: Routledge, 2001. Institut Du Droit Local Alsacien-Mosellan, ed. Le guide du droit local: Le droit applicable en Alsace et en Moselle de A à Z. 4th ed. Strasbourg: Institut Du Droit Local Alsacien-Mosellan, 2015. Institut Saint-Benoît. Robert Schuman. Saintité et politique. Actes des journées organisées à Metz du 4 au 8 septembre 2013. Metz: Éditions des Paraiges, 2013. Kaiser, Wolfram. Christian Democracy and the Origins of European Union. Cambridge: Cambridge University Press, 2007. Krijtenburg, Margriet. “Robert Schuman: Principal Architect of the European Union.” Research paper. Markets, Culture and Ethics Centre Research Papers, March 1, 2015. Rome: Pontifical University of the Holy Cross. Krijtenburg, Margriet. Schuman’s Europe: His Frame of Reference. Leiden: Leiden University, 2012. Lejeune, René. Robert Schuman, père de l’Europe (1886–1963). Paris: Fayard, 2000. Lejeune, René. Robert Schuman, une âme pour l’Europe. Paris and Fribourg: Editions Saint-Paul, 1986. Lücker, Hans August, and Jean Seitlinger. Robert Schuman und die Einigung Europas. Bonn: Bouvier Verlag, 2000. McCauliff, C.M.A. “Union in Europe: Constitutional Philosophy and the Schuman Declaration, May 9, 1950.” Columbia Journal of European Law 18 (2011–12): 441–72. Milward, Alan Steele. The European Rescue of the Nation-State. Hoboken, NJ: Taylor & Francis, 1999. Mittendorfer, Rudolf. Robert Schuman. Architekt des neuen Europa. Hildesheim and New York: Georg Olms, 1983. Monnet, Jean. Memoirs. London: Third Millenium, 2015. Monnet, Jean, and Robert Schuman. Correspondence (1947–1963). Laussane: Fondation Jean Monnet pour l’Europe, 1986. Mowat, Robert Case. Creating the European Community. New York: Barnes & Noble Books, 1973. Muñoz Martínez, María Ángeles. “El pensamiento europeo de Robert Schuman: el retorno lógico de la Unión Europea a la comunidad federación.” Madrid: Universidad Complutense, 2012. Doctoral thesis. http://eprints.ucm.es/16322/1/ T33942.pdf Oreja, Marcelino, and Rafael Domingo. “Robert Schuman.” In Juristas Universales IV, edited by Rafael Domingo, 141–45. Madrid and Barcelona: Marcial Pons, 2004. Pelt, Jean-Marie. Robert Schuman, Père de l’Europe—Father of Europe. English Version. Thionville: General Council of Moselle, Serge Domini Publisher, 2001. Pennera, Christian. La jeunesse et les débuts politiques d’un grand européen, de 1886 à 1924. Sarreguemines: Editions Pierron 1985. Poidevin, Raymond. Robert Schuman, homme d’État (1886–1963). Paris: Imprimerie nationale, 1986. Price, David Heilbron. Robert Schuman, Jalonneur de la paix mondiale. Berlin: Brons Commuications, 2014.

Schuman and European integration 193 Reuter, Paul. La Communauté européenne du charbon et de l’acier. Paris: Librairie Geénérale, 1953. Reuter, Paul. La naissance de l’Europe communautaire. Lausanne: Fondation Jean Monnet pour l’Europe, 1980. Rochefort, Robert. Robert Schuman. Paris: Cerf, 1968. Roth, François. Alsace-Lorraine: histoire d’un “pays perdu,” de 1870 à nos jours. Nancy: Editions de la Place Stanislas, 2010. Roth, François. Robert Schuman. Du Lorrain des frontières au père de l’Europe. Paris: Fayard 2008. Roussel, Éric. “Les paradoxes de la relation Jean Monnet—Robert Schuman.” In Schirmann, Robert Schuman et les Pères de l’Europe. Schirmann, Sylvain, ed. Robert Schuman et les pères de l’Europe. Brussels: Perter Lang, 2008. Schreiber, Thomas. Robert Schuman. De la déclaration Schuman à pour l’Europe. Paris: Lignes de Repères, 2013. Schuman, Robert. For Europe. Paris: Foundation Robert Schuman; Chêne-Bourg: Nagel, 2010. Schuman, Robert. French Foreign Policy Towards Germany Since the War. Stevenson Memorial Lecture delivered on October 29, 1953. London: Geoffrey Cumberlege; Oxford: Oxford University Press, 1954. Wahl, Jürgen. Robert Schuman: Visionär, Politiker, Architekt Europas. Trier: Paulinus, 1999. Wawro, Geoffrey. The Franco-Prussian War: The German Conquest of France in 1870– 1871. Cambridge and New York: Cambridge University Press, 2003. Weiler, J.H.H. The Constitution of Europe. Cambridge and New York: Cambridge University Press, 1999. Wilton, Gary. “Christianity and the Founding: The Legacy of Robert Schuman.” In God and the EU: Faith in the European Project, edited by Jonathan Chaplin and Gary Wilton. London and New York: Routledge, 2016. Zin, Edoardo. Robert Schuman: un padre dell’Europa unita. Rome: AVE, 2013.

Part II

Structural principles of global governance

12 Christianity and the global rule of law Neil Walker

Introduction: narratives of the global rule of law Religion in general, and Christianity in particular, stands in an opaque and complex relationship to the global rule of law. On one hand, there is an influential general narrative of the global rule of law as a contemporary accomplishment that makes no direct reference to the contribution of religion, still less to any specific religious tradition. We may, for shorthand, call this the secular narrative. It rests on the assumption—sometimes so firmly as to obviate acknowledgement of nonsecular antecedents,1 that today’s transnational legal order has undergone full secularization and is entirely “detached from religion.”2 On the other hand, any account actively attuned to religious involvement in the long history of the development of law’s global ambition, will find many points of connection. This type of narrative—the religious narrative, for shorthand—sees in the Christian religion both a specific source and a deeply sedimented general foundation of a globally expansive rule of law, as well as a continuing influence upon its development. This narrative notes that religious actors, especially Christians, have been among the key players in the formulation of the idea and practice of a global rule of law. It identifies issues raised by religion around war, mission, intervention and assistance, toleration, and minority protection—especially with respect to the Christian religion in or emanating from its European heartlands—as among the key drivers of the development of a global rule of law. And the religious narrative may view contemporary conditions as particularly conducive to an enhanced role for religious influence in the development of a global rule of law. What are we to make of this contrast in perspective between secular and religious narratives? In part it concerns differences in historical breadth and depth of vision. A story that focuses on high and late modernity may observe little of religion in general and Christianity in particular in the juridical foreground, whereas a more historically curious account of the early modern origins of the idea of a global rule of law cannot deny the prominence of religious beliefs, doctrines, issues, and personalities. In part, too, the contrast in perspective has to do with what is explicit and what is merely implicit, and whether we pay as much attention to the latter as to the former. Much of the continuing influence of Christianity in recent times is easily passed over. If not silent, it speaks only intermittently or in

198  Neil Walker a vernacular that merges with the legal-cultural mainstream, and so its distinctive contribution may be overlooked. These differences are of interest since they remind us that, whether as doctrinal accomplishment or as narrative tradition, the development of a global rule of law is far from linear. It is just the case that there is more than one plausible account of the global expansion of the rule of law, and, indeed, we can also point to differences within each religious and secular narrative—and, as we shall see, an interesting similarity in the structure of these internal differences—as well as between them. And we should appreciate that these differing shades speak not only to a measure of genuine and reasonable disagreement among external commentators about what factors should be given priority within the narrative whole. Additionally, in a domain of law (the international and global rather than the national and statal) that, as we explore later, has perforce relied more on the shifting commitments and projections of its sponsors than on a regime of settled authority, these differences also tell us something about the tensions internal to a still precariously emergent practice. In turn, this understanding points towards a third ground of divergence—namely, a more explicitly normative difference over the proper course of development of a global rule of law. For the different narrative types—again, both within and across secular and religious categories— not only emphasize different factors of development and nuances of interpretive understanding but also, with these different back stories as empirical ballast and politico-ethical corroboration, are apt to stress rather different future prospects. All of this suggests that we can properly grasp what is distinctive about the religious narrative—and in particular the Christian narrative—of the global rule of law only if we examine it alongside the secular narrative, with the latter serving not only as a point of (more or less acknowledged) reception but as a basis for comparison and also, in some respects, a competing agenda. Before we undertake this dual examination, however, we need to say a few words about what in juridical terms is the even more basic distinction—namely, between the operative conditions of the rule of law on its “home ground” of the nation-state and those that obtain at our focal global level.

The contestable concept of the rule of law Whatever and wherever its domain of application, the rule of law is a highly variegated and somewhat disputed concept—perhaps even, as Jeremy Waldron suggests, drawing on familiar terminology, “an essentially contested concept.”3 Why so? Basically, the rule of law operates as a kind of metarule—a rule about the importance and priority of legal rules—for the jurisdiction and polity to which it refers. Of course—and this is key to the general elusiveness and contestability of the rule of law—the basic idea of a metarule already carries a whiff of paradox, a circular sense of there being a causal force and a justifying source (that is, the metarule itself ) that purports to possess, and must therefore also be able to explain and justify, its own possession of the same (rule-like) properties as the thing for which it provides higher explanation and justification (the law). Waldron

Christianity and the global rule of law 199 conveys this well in suggesting that the rule of law offers a “solution-concept” rather than an “achievement-concept.”4 A solution-concept is defined by reference to a problem we identify as being important to solve, even though, as in the case of the paradoxical quality of a “rule that (legal) rules should rule,” we are not sure what that solution is or whether we can ever fully achieve it. As the emphasis on both explanation and justification makes clear, there are two aspects, related but distinct, to the problem addressed by our solution-concept, although tellingly, at the level of the state the emphasis tends to be on the former. Indeed, for Aristotle, through Hobbes and Dicey to Hayek, the focal question of the rule of law falls within the sphere of explanation; to wit, how can we make law rule? And it is a question that tends to elicit primarily institutional responses. These speak to the constitutional ways and means of “law being in charge in a society” in terms which contrast the rule of law favorably with the arbitrary “rule of men.”5 The relevant cluster of regulatory aspirations, and the order of priority among them, is not uncontroversial between different approaches, but tends to include the following: fairly generalized rule in a political community through law and the avoidance of large zones of nonlaw (either in theory or in practice) where other forms of domination prevail; a high degree of legal predictability through published and prospective laws; separation of the legislative and the adjudicative function; and general adherence to the principle that no one, least of all the government of the day, is above and immune from the law.6 Notably less often attended to in these discussions, however, are the motivational underpinnings of such institutional solutions. The question of ensuring the necessary social support for making the “law rule” through these institutional measures tends to be passed over. Instead, in the context of well-established nation-states, that support is often taken for granted as part of a territorial bounded community of “we-feeling,” a propensity to put things in common that is viewed as a reinforced product as much as a producer of the relevant institutional measures and the densely established system of public authority that accompanies them. For indeed, at the deepest level of our modern social and political imaginary,7 cultural belonging and institutional capacity come together synergistically within a single received template of the place of the order of state authority within the overall planetary constellation—one in which the state is seen as our primary political identity and as the site uniquely endowed with the institutional and social resources necessary for the development of a holistic framework of political community.8 What of the sphere of justification? Here the focal question of the rule of law is teleological in nature; it asks what is the rule of law for?9 But just as motivational support is often assumed at the state level, justification may also be taken for granted, and it is for that reason that it is often hardly seen as a separate question at all. For just because of the prominence of the received template of state authority within our modern political imaginary, the very idea of a well-ordered constitutional state tends to be viewed as its own justification, with the prerequisites thereof, in particular a basic affirmation of the ruling power of law, treated as self-evidently legitimate.

200  Neil Walker Of course, questions of justification are not so easily put to rest, and, indeed, the very prominence of the state as a recognized key author and site of political community can encourage a deeper consideration of the ends of the statelevel polity. Some theorists, therefore, venture beyond the “narrow”10 or “thin”11 sense of the rule of law as an institutional dish wrapped up in a framework of state-centered self-justification to seek a “thicker” sense of the purpose of ruling through law. It is here, in fact, that the contestability of the rule of law at the state level is most evident. This is so both as regards the threshold structural question of whether it should be considered in thick rather than thin terms—with some critics of the thin approach claiming that any defense of legal and constitutional order in general, in its apparent modesty, merely masks its support for the particular state regime that general defense happens to favor—and as regards what the content and explicit substantive preference of any candidate thick conception should be.12 For example, should the justifying purpose of the rule of law, rather than confining itself to the basic defense of the constitutional state, embrace a commitment to distributive justice, or a robust catalogue of individual rights, or a particular pluralistic ethic of accommodation of different communities within the state? When we move to the global level, however, the contestability of the rule of law becomes more profound. Quite simply, we do not possess a shared general template of the order of authority appropriate to the global level of governance capacity to match the shared template we have of the order of authority of the state; and without such a shared template, we have no stable sense of the referent object of the metalevel rule of law. Otherwise put, we have no clear common sense of the kind of law and associated political order to which the global rule of law does or should refer. Granted, contemporary international law, which on any understanding is an important component of global law, has its own institutional architecture, and so at the level of accounting and explanation of the global order we might attempt from that baseline the kind of institutional checklist that is familiar from the state level. But here, partly because that checklist is drawn from the state and how it figures in our political imaginary, we find much more evidence of incompleteness than at the state level in terms of a received “constitutional” model of the comprehensiveness of law’s writ, the stability of its sources, the precision of their internal hierarchy, the clarity of its separation of powers, and the identifiability of a level of (global) government that stands clearly subject to and accountable under the rule of law rather than merely as the wielder and beneficiary of legal powers.13 And behind that incompleteness, and the lack of clear institutional design and definition it reveals, lie profound unanswered questions both of justification and motivation. Is the justificatory purpose of the global rule of law simply or predominantly to respect the sovereignty of states in their relations inter se, or is it to develop certain general standards of good government within and between states, or, in the strongest sense of “the global,” is it to forge a more centralized and globally pervasive governmental capacity and normative regime within the overall planetary constellation of authority? Finally, wherever on that spectrum of possibilities the answer might in principle be proposed, how in practice can we ensure support for any version of a global rule of law beyond

Christianity and the global rule of law 201 a modest state-aligned model that is parasitic on the support already offered by citizens to their sovereign states?

The secular narrative As this question might rhetorically suggest, absent a shared general template of the order of authority appropriate to the global level within the overall planetary constellation, we should not be surprised that the default model of the global rule of law in its secular understanding is one that gives a prominent role to the sovereign states in a strictly inter-national system. Yet we should not underestimate what is involved even in this achievement. In one sense, the emergence of the very notion of international law as a distinct discipline and set of positively grounded doctrines serviced by a specialist professional cadre, as reflected in the founding of the Institut de Droit International in 1873, already signals a decisive shift away from unqualified state sovereigntism. For it involves a categorical rejection of a “realist” position according to which law between states is viewed as having no intrinsic noninstrumental value, and, given the incorrigibility of the international state of nature, cannot but reflect a precarious balance of power between states.14 Instead, we see the gradual consolidation of a more liberal position, one closely reliant on the example of individuals in the idealized liberal model of the state who consent to limit their freedom through general laws only to the extent necessary to secure their freedom. In the scaled-up liberal international model, sovereign states, while still considered ontologically prior in the global order, are likewise understood as capable, through law, of achieving stable cooperation, albeit a cooperation based on a common interest in peace and reliable mutual commitments rather than on some sense of a thick normative consensus. Even in this most basic meaning, therefore, the liberal internationalist position involves a noncontingent commitment to a rule-based order, and so requires subscription to a globally expanded rule of law rather than a mere disorderly rule of sovereigns—the scaled-up version of the “rule of men.” That commitment has clearly influenced many of the tenets seen as keystones of today’s international order. These include the principles of self-determination, sovereign equality, and nonintervention in the internal affairs of other sovereigns, as well as the establishment of a framework of collective security, with the peaceful resolution of conflicts treated as prior and the use of force a last resort. Those rudiments of a liberal international order, while already strongly advocated at the end of the nineteenth century, were severely tested by two world wars and the continuation of the territorial empires of the powerful West until the mid-twentieth century. Only with the post–Second World War development of the United Nations system of global institutions—including a foundational commitment to collective self-determination of all peoples, the development of an institutionalized system of collective security with the Security Council as its linchpin, and a commitment to the peaceful settlement of disputes through arbitration or adjudication—do we find a more concerted application of these liberal standards.

202  Neil Walker Yet we should not overstate attachment to this conception of global order. As already noted, it lacks the widely shared template of authority and the associated sharpness of institutional definition, embedded societal support, and discourse of justification we associate with the state-level rule of law. The thin/thick distinction, already identified as a key structural fault line at the state level, again helps to bring this out. Recall that one reservation about a thin conception of the rule of law, which is how the liberal internationalist version undoubtedly styles itself, is that this can distract attention from the thicker commitments any such conception is in practice likely to favor. For the suggestion of neutrality implicit in a vision of order presented in the register of legality rather than political ideology does not gainsay but merely camouflages its affinity with a particular set of political preferences and outcomes. In the context of liberal internationalism, the force of this insight lies in the slippage between, on one hand, the treatment under the liberal model of the relation of the individual to the state as merely a useful analogy in making sense of the global order and, on the other, the treatment of the global arena as a direct territorial extension of the basic liberal paradigm of individual-and-state relations. For under the sign of liberal internationalism, the sponsors of a particular secular narrative of the global rule of law, especially in the late and post–Cold War years, have “also looked to law as a vehicle for transforming all states into liberal democracies, entrenching market logic at the heart of government, and protecting freedom”15—economic as well as political. Such a model involves a high level of judicialization, with compulsory systems of dispute settlement in areas as diverse as international trade, regional human rights, the law of the sea, foreign investment protection, and international criminal law. The outcome of this approach involves a dense framework of transnational regulation in which the sovereign autonomy of states, rather than treated as the first principle of international law, is increasingly compromised by a vision that sees regulation on a global scale as necessary to create the conditions of optimal individual freedom, with market freedom at the center of that ethos. Yet this outgrowth of the liberal model is by no means the only thick version of the global rule of law available within the secular narrative. The stress on sovereign equality and the expansion of collective self-determination to include postcolonial societies under the UN system, together with the spread of social democracy with its more positive, capability-centered16 conception of liberty as a government ethic at the national level, has encouraged a more “solidaristic”17 strain within the global rule of law as an alternative to, and often competing with, the liberal approach. Indeed, the solidaristic orientation, which takes seriously the globe as a single community of justice alongside and not necessarily deferential to the sovereign nation-state communities, partly responds to an increasingly manifest global interdependence—which has itself been stimulated by liberalism’s aggressive sponsorship of capital mobility and global market freedoms more generally. The emphasis within this augmented “concurrent interests”18 model is upon increasingly clear and often urgent areas of interdependent prospect and predicament between states and peoples, where our capacity in joint agency to

Christianity and the global rule of law 203 produce common benefit or harm is undeniable and unavoidable. The most obvious candidates for inclusion within this approach are those global concerns—such as free trade, climate change, nuclear safety, security, and pandemic disease— that most closely approximate to the classical (economic) public goods model of “nonexcludability” of access (to the problem and its solution) and “nonrivalness” in consumption (that is, nonexhaustible benefits, or at least significant economies of scale).19 Beyond the manifest interdependence of the concurrent interests model, however, a stronger strain of moral interconnectedness within the solidaristic version of the secular narrative can be found in the mutual responsibility model. The guiding premise here, much of whose political force, both constructive and critical,20 comes from the postcolonial global south,21 is that the very arrangement of the world into sovereign states and their peoples (with the international resource, borrowing, treaty, and arms privileges consecrated by that state-sovereigntist arrangement) and the institutional configuration of state-centered international law and politics that reflects this, is no neutral framework or international state of nature. Rather, it is a background frame with significant and uneven effects on the global distribution of benefits and burdens. In particular, the historical embedding and perpetuation of these arrangements in ways that systematically favor some parts of the globe over others, specifically those prominent in the original design and continuing refinement of the system, accounts for many of the world’s deep inequalities, including the catastrophe of global poverty. It follows from this deeper investigation of the causal dynamics of the world order that those states and their citizens who are responsible for inequalities and other distributive injustices are under a duty to correct or mitigate the harms that we have caused, which require a level of compensatory common action much greater than under the concurrent interests model. Alongside these two models of moral interconnectedness, the idea of the globe as a single community of justice is also supported by the common concern model. This argues for a deeper framework of mutual commitment and obligation just in view of our common humanity.22 From that more universalistic moral standpoint, it is not just the historical proximity of our action-effects and our greater or lesser interdependence due to that proximity that leads us to take responsibility for each other, or at least to recognize manifest concurrent interests and the associated entanglement of predicaments and prospects; rather, our responsibility arises from a deeper affinity and solidarity as members of the same species. And just as the concurrent interests model becomes more salient under conditions of contemporary globalization, so too do the models of mutual responsibility and common concern. Globalization of movement and communications increases our recognition of the deeper roots and conditions of interdependence of our life-chances, as also, partly on account of this denser web of interconnections, it encourages a cosmopolitan awareness of our common human condition. If, within the secular narrative, there is a continuing tension between liberal and solidaristic conceptions of the global rule of law, this is not the only force at work. Recall that liberalism also emerges out of a tension with realism

204  Neil Walker and its unmoderated championing of state sovereignty. This realist strain and an attendant general skepticism towards the very idea of a global rule of law continue to exist, and in recent years, under the influence of an anticosmopolitan nativist populism that sets itself against liberalism and solidarism alike, it has gained ground among some of the planet’s most powerful states. From Brexit and the US withdrawal from the Paris Agreement on Climate Change Accord, to a broader trend of disassociation from the International Criminal Court, we witness a gathering countertrend of detachment from the key institutions of the postwar global order.23

The religious narrative in history If we look behind the secular narrative, claims Martti Koskenniemi, “it would not be hard to defend the proposition that ‘international law is a Christian discipline.’ ”24 In the medieval age, the scholastic concept of natural law described a hierarchical normative structure with strong religious roots. In Thomas Aquinas’s famous thirteenth-century classification, natural law (lex naturalis) sits below only the eternal law (lex aeterna), which is identical to the mind of God.25 Natural law, which is supplemented by divine revelation in the form of scripture (lex divina), comprises that part of divine reason accessible to humans through the facility of human reason, which itself is subject to divine providence. The general principles of natural law, as apprehended through human reason, all rest upon one basic axiom; namely “that good is to be done . . . and evil avoided.” The relevant principles are “natural” in the sense that they are deemed to have been implanted in human nature by the creator. At the base of the hierarchy of legal forms, what Aquinas calls human law (lex humana) makes close reference to natural law. Most pertinently, that part of human law involving the law of peoples or nations (ius gentium)—the predecessor of today’s international law—consists of conclusions drawn from the general precepts of natural law. The Thomist approach, which drew heavily on the premonotheistic Aristotelian tradition in natural law as well as Christian teachings, reflected and reinforced the importance of religion in medieval law in general and in law beyond the state in particular. The notion of ius gentium has a complex heritage traceable to classical Rome, but at every stage it gained traction as a form of common or customary law that stood apart from and supplemented the positive law sourced in statutes and codes. Originally its main function was as a kind of interregional commercial law. Over time, however—its content influenced by medieval canon law as well as earlier forms of rationalism—it developed a broader meaning. With its systematic structure, its universalistic claims, its emphasis upon the principle of personhood rather than state territoriality, and its facility for generating legal order where the materials of positive law were weak or absent—as was broadly true of the nonstate domain—the ius gentium came by the early modern age to refer to the law of and between peoples more generally. From these beginnings, the process of secularization would take hold only gradually.26 Scholars started placing more emphasis on man-made positive law

Christianity and the global rule of law 205 as an alternative source to natural law. This shift can be seen by contrasting two pivotal figures of the influential sixteenth-century Spanish School of Salamanca, which sought to reconcile the teachings of Aquinas with the emerging early modern political and economic order in which the territorial state was beginning to displace the more pluralistic constellation of medieval society, and in which European powers, with Spain at the forefront, were beginning to rationalize their expansionist ambitions into the form of an overseas empire. The Dominican theologian Francisco de Vitoria27 held that natural law remained the highest source of international law, though it was supplemented by positive, consent-based treaties and customs. Writing half a century later, the Jesuit Francisco Suárez28 turned this thinking on its head. For him, international law is humanly made, albeit founded upon and deriving its stable coherence from natural law. The leading Protestant jurists and humanists Alberico Gentili29 and Hugo Grotius30 sought to prise international law from these Catholic theological roots, and in so doing gave further impetus to the process of secularization. They continued to stress the foundational status of natural law but significantly downplayed its religious content. For Gentili, it was the reason-based agreement of all nations about a practice, rather than the direct Christian pedigree of that practice, which constituted natural law and the law of nations, although that reason remained embedded within an overtly Christian cultural tradition. Grotius went a step further by claiming that, in theory at least, a conception of natural law need not even presuppose the existence of God. And to the extent that natural law did in fact rest on Christian beliefs, these were not restricted to the doctrines of a specific confession. Yet Grotius’s work, in particular his seminal De jure belli ac pacis, remains saturated with religious references. And while Grotius was reasonably tolerant towards different creeds of Christianity, and even saw his writings as being concerned with preserving Christian unity in an age when it was increasingly threatened by the power and different confessional adherences of absolute monarchs, that tolerance did not extend towards Islam or nonreligion. By the seventeenth century, legal scholarship generally had begun to divide into naturalist and positivist strands. The most strongly positivist voices, however— notably Thomas Hobbes, who based his system of law entirely on consent— tended to remain skeptical of the very idea of a stable, consent-based normative order of international law. Some of the increasingly secular natural lawyers, too, such as Samuel Pufendorf, remained doubtful about the standing of international law. They did so because reason emptied of religious content, rather like the custom and agreement of the positivists, could seem a thin gruel when spread across nations rather than located within the tradition and culture of a single one. It was not until the eighteenth century and the contribution of Emir de Vattel, a Swiss internationalist strongly influenced by Grotius, that we find a scheme of international law which integrates positive and natural elements and eschews any reliance on religion either as source or as general foundation. Like many leading European jurists of the seventeenth and eighteenth centuries, Vattel’s thought had been conditioned by the Peace of Westphalia of 1648, which consolidated the European state system according to the sovereigntist principle of cuius regio,

206  Neil Walker eius religio following the radical divisions within the church which had prompted the wars of the Reformation and the Counter-Reformation. The work of these jurists produced a specifically continental conception of the law of nations, a ius gentium europaeum, which in turn gave rise to a ius publicum europaeum, an unwritten collection of rules drawn from treaties, declarations, and common or overlapping usage among and exclusive to the nations of Europe. Despite this approach gradually becoming more centered on the sovereign relations of states than on the cultural affinities of nations, it took Immanuel Kant to advocate in explicit terms a law of states (Staatenrecht) rather than of nations (Völkerrecht). Although it was the positivist Jeremy Bentham who was to coin the modern English term “international law,” it was Kant,31 still working from natural law foundations, who first imagined the “international” in the strong sense of an alliance of states (foedus pacificum) based upon an original compact of the sort that would eventually become institutionalized in the twentieth-century League of Nations and United Nations. The proposed founding agreement would involve a system of juridical coordination operating at two interacting levels, both between states and between citizens; peace among states would be secured through norms respecting the equality, liberty, and ultimate sovereignty of all state parties, and a cosmopolitan ethic, founded on a right to hospitality (in particular a right to visit and to trade) would join all individuals as members of what would eventually become, from European roots, a world republic (Weltrepublik).

The religious narrative in contemporary context Kant’s neonaturalist vision, Bentham’s appropriation of the religiously inspired history of the law of nations under the new label of international law, and the overt Protestantism of the professional founders of the Institut de Droit International in 1873 are just a few among many eloquent testimonials to the increasingly fertile intersection of religious and secular narratives as the age of high modernity beckons. Even if Koskenniemi’s proposition that “international law is a Christian discipline” is overstated, there is much truth in the notion that the deeply penetrative intellectual and social discipline of Christianity over many centuries was responsible for bequeathing to us international law, and also the rudiments of a more encompassing global law. It is one thing to show that Carl Schmitt’s famous claim that our most important modern political concepts are secularized theological concepts is nowhere more forcefully demonstrated than in tracing the history of the fashioning of legal and political order beyond the state.32 It is quite another, however, to discern what that means for the relationship between Christianity and law’s global presence now and in the future. Indeed, the thrust of the Schmittian view is that over time, as religious and secular narratives become baked together in theory and practice, it has become difficult to unmix them and so to discern their separate influence. But we should not overstate this problem. We can concede the general influence of the predominantly Christian religious narrative on

Christianity and the global rule of law 207 the early development of law beyond the state, and we can acknowledge that this formative influence has cast a deep shadow and continues in a long pathdependent way to affect the tone and shape of the law—its Eurocentric orientation, its basic institutional design, its key ethical doctrines, its social priorities. But beyond this we can still look at more particular causal factors and the difference they have made or might make, and in examining this more detailed causal background it is important to attend to differences and tensions within the religious narrative and how they affect what Christianity brings to the overall story of global law. One basic distinction, of course, lies between Christianity and other religions, particularly the other two great transcendental monotheistic religions—Islam and Judaism. While recent work has corrected the underestimation of Muslim and Jewish influences on the making of global law, not least through their separate contribution to the development and activation of doctrines of natural law,33 Christianity has undoubtedly had the greater influence. This is not only on account of the political and economic power of the predominantly Christian states of Europe in the foundational phase, but also—although the two factors are not unrelated—because Christianity has always been a “sending religion,” one with a “profound missionary impulse.”34 The religious command to share the word of God in Christ implies a universalizing ambition. This helps account for the pervasiveness of the influence of Christian doctrine, and in so doing reveals its two contrasting sides—an attractive inclusiveness and a dogmatic tendency to authority and subjugation. Much of the early doctrinal work within the ius gentium, indeed, was concerned with the right to preach the Christian faith and the appropriate treatment of heretics and unbelievers in the context of war and colonial expansion. For present purposes, however, the more significant distinctions are those that arise within Christianity. We have already commented on the jurisprudential tensions that arose when Roman Catholic hegemony was challenged by the Protestant Reformation of the sixteenth century. Yet, within the long history of jurally directed Christian thought and practice, there is a more fundamental difference that cuts across denominational divisions, one that mirrors the distinction between thin and thick versions of the rule of law within the secular narrative. It is a distinction that turns on rival attitudes towards the basic question of the justification for the use of power by humans over each other. On the thin side of the divide lies a realist35 view. In a tradition extending from Augustine of Hippo36 to Thomas Hobbes, the main institutions of secular legal doctrine affecting both national and internationals domains, such as sovereignty and private property, are viewed as serving a predominantly prudential purpose. They are useful in protecting humans from the ravages of unceasing conflict but possess no higher virtue, while allowing the truly virtuous to devote their lives to spiritual tasks. On the thick side of the divide is a more idealist tradition, led by figures such as Aquinas and Kant. For them, the institutions of national and international law do possess a deeper purpose and content, one derived from or at least consonant with Christian teachings. These legal institutions may be used to encourage persons to

208  Neil Walker act toward each other with Christian charity, and more generally to bring about security and well-being in accordance with universally shared standards. This religious version of the thin/thick distinction with regard to the rule of law has nothing to do with levels of religious devotion and everything to do with the relationship between religious and secular domains—God and Caesar. For the realist, the purity of the religious life is purchased at the expense of a lack of influence over the secular domain. For the idealist, influence over the secular domain is purchased at the expense of the purity of the influencing doctrine. The fluctuating history of natural law provides one expression of this distinction. It can be seen as a moral cosmology quite apart from the secular law in terms of its inspiration and the sense of obligation its inspires. Quite contrastingly, it can be viewed as a body of doctrine that draws heavily on nonreligious reason alongside divine design and gives rise to general obligations in the secular realm alongside or as part of positive law. Just as the secular narrative of the rule of law does not follow a linear progression, but describes an ongoing tension between thinner and thicker storylines, the same is true of the religious narrative and of how it impacts the secular narrative. This indicates some important qualifications to the long secularization of the rule of law. In the first place, the idea that religion recedes steadily into the background, an ever deeper part of the subsoil out of which has emerged the “ ‘cool’ professionalism”37 and rational humanism of contemporary global governance, paints too smooth and even a picture of the changing role of religion. Important initiatives in the global rule of law in the last century have seen religious actors and ideas play a more overt role. Samuel Moyn, for example, has shown how postwar Christian democracy’s emphasis on personalism and human dignity underscored the development of the idea of universal human rights in regional and planetary regimes.38 Similarly, Joseph Weiler has demonstrated how the key founders of the European Union, with its “messianic”39 commitment to peace and prosperity across the continent, were inspired by their common Catholic faith. And today more generally, after the end of the post–Cold War’s brief “end of history”40 and the demise of the confident belief in the hegemony of a liberal international order which drew that conclusion, religion has returned as a much more visible indicator of difference and division. In fact, it is one of the key accomplices of the new national realism and populism which are challenging the very idea of a progressive—or even coherent—global normative order.41 In the second place, and more subtly, secularization in any case by its very nature describes an asymptotic process—a journey that can never reach its destination. Recall that, ironically, the dilution—or thinning out—of the overt religious content of law is the price of Christianity’s retention of any kind of thick influence over the contemporary secular rule of law, and this applies particularly to the thicker solidaristic versions of the rule of law that increasingly contend with the ostensibly thin liberal version. The point here is not just that the receding of Christian roots is no guarantee of their disappearance, but also that religiously inspired actors and institutional sources can themselves be active agents of a

Christianity and the global rule of law 209 process of “secularization” intended precisely to retain a religious dimension by blending it harmoniously with other sources. A good current example of this process at work can be found in the work of the Spanish comparativist and legal historian Rafael Domingo. What he explicitly labels “the new global law”42 resembles many of the new human rights—centered approaches in treating not the state but the individual, in her full range of social ties and relations, as the ultimate subject of the new legal order. His approach also claims to share with modern international law more generally certain key background principles essential to all forms of law, namely justice, reasonableness, and coercion. According to Domingo, however, where global law as a gradually emergent category clearly distinguishes itself from the modern tradition of international law is in its endorsement of the further umbrella principles of universality, solidarity, subsidiarity, and horizontality. These global principles are counterposed to what he styles as the more narrowly internationalist principles of totality, individuality, centralism, and verticality.43 In developing this perspective, Domingo stresses that the ideal of global legal community underpinning his approach has a diverse pedigree. The notion of humankind joined in harmonious order beyond particular communities of interest or attachment is a vision shared by worldviews as diverse as Stoic cosmopolitanism, the early Christian ideal of a world united by charity, various more or less religiously grounded conceptions of natural law, and the Kantian project of world peace. These visions possessed a literally utopian quality—in “no place” fully realized yet tending to draw inspiration from very particular places and centers of knowledge and belief, and their very limited imagination of the global compass of civilizations. Importantly, however, something cumulative is capable of being read into this process, with different and more or less religious strands building on each other within a progressive humanist whole whose overtly theistic dimension is decreasingly prominent. In practice, the earlier understandings of transnational or global law that did succeed in gaining traction as positive law were modest in character, responding as we have seen to key imperatives of their age. The ius gentium, with its roots in the need to regulate the affairs of noncitizens to whom the ius civile could not apply, met the requirements of Rome’s territorial empire. Modern state-centered international law originated in and has long continued to reflect the balance of interests of the dominant European powers, each with its overseas empire. Yet the more expansive understanding of global law that for earlier writers was no more than an exalted aspiration has become, according to Domingo, the new practical imperative of the age of global interdependence. For him, the new law of global association to which he subscribes, with its novel catalogue of umbrella principles, is as much a child of its time as its more limited predecessors. In terms of our various and increasingly solidaristic models of global moral interconnectedness discussed earlier, this supplies the appropriate—and in his view now clearly emergent—response to the pathologies of vulnerable interdependence witnessed in successive world wars and throughout the Cold War, 9/11, and countless other globally ramified common goods and bads of the contemporary age.44

210  Neil Walker This last point indicates an important sense in which Domingo’s approach is characteristic of new trends of global law more generally. For all that his vision is highly abstract in specification and panoramic in scope, by insisting that the time is ripe for a more solidaristic global law because of objective developments in global political circumstances, he nevertheless makes a claim that goes beyond pure ambition. His vision therefore partakes of and adds to a sense of global law as an active project in law-making, and of its commentators and chroniclers (including those who continue to view the process of secularization as rooted in a religious perspective), as key participants in that active project.45

Conclusion Like many ambitious projects, Domingo’s efforts might unite quite different conventional wisdoms in their challenge and opposition. On one side, he might be criticized from a strictly secular perspective for undue optimism and injudicious mixing in seeing the prospect of such a harmonious accumulation of religious and nonreligious sources in a new common front of global law. On the other hand, he might be criticized from a more strictly religious perspective on similar grounds: for overstating the continuity between Christian and secular sources and understating the role of religion’s foundational belief in the vanguard of any global project for justice. How these debates progress will undoubtedly depend on the play of ideology and material power, but behind these lie genuine philosophical differences. For some, monotheistic religion is, at best, a ladder to enlightenment that, once climbed, can be set aside without loss in a secular age. For others, religious belief, and Christian belief in particular, is a vital, perhaps indispensable, source of the commitments on which we build any justice-sensitive conception of global right.46 For others still, there is a third way where religion is but one leg of the chair of conviction, apt to strengthen or reassure (at least) some of us of beliefs cultivated and testable in other ways. In a world in which diverse religious and nonreligious identities are held with equal conviction, the ecumenical hope for global law surely rests on the capacity to nurture that third way and persuade a wide audience of its credentials.47

Notes 1 See, e.g., Orford. 2 Ungern-Sternberg, 295. 3 Waldron. 4 Ibid., 158. 5 Ibid., 157; see also Tamanaha, ch. 9. 6 This list is adapted from Rosenfeld, at 1313. 7 Taylor. 8 Walker, “Beyond the Holistic Constitution?” 9 See, e.g., Krygier. 10 See, e.g., Rosenfeld, 1313.

Christianity and the global rule of law 211 1 See, e.g,. Tamanaha, ch. 7. 1 12 Ibid., ch. 7–8. 13 See, e.g., Waldron, “Are Sovereigns Entitled to the Benefits of the International Rule of Law?” 14 On the realist-liberal distinction, see, e.g., Slaughter. 15 Orford, 2. 16 See, e.g., Sen. 17 See, e.g., Neff, esp. ch. 10. 18 On different models of morally relevant interconnectedness in respect of global justice, see Walker, “The Gap between Global Law and Global Justice.” 19 See Samuelson. 20 Chimni. 21 See, e.g., Pogge. 22 See, e.g., Singer. 23 See, e.g., Koskenniemi, “International Law and Religion: No Stable Ground,” 3–24. 24 Koskenniemi, “No Stable Ground,” 16. 25 See Chapter 3 of this volume on Thomas Aquinas and the doctrine of natural law. 26 See, e.g., Ungern-Sternberg. 27 See Chapter 4 in this volume. 28 See Chapter 5 in this volume. 29 See Chapter 6 in this volume. 30 See Chapter 8 in this volume. 31 See Chapter 9 in this volume. 32 Schmitt. 33 See, e.g., Nafziger. 34 Paz, 926. 35 Koskenniemi, “No Stable Ground,” 9. 36 See Chapter 2 in this volume. 37 Koskenniemi, “No Stable Ground,” 4. 38 Moyn. See also Chapter 19 in this volume. 39 See, e.g., Weiler. 40 Fukuyama. 41 See, e.g., Zuquete. 42 Domingo, New Global Law. See also his “Gaius, Vattel, and the New Global Law Paradigm.” 43 Domingo, New Global Law, 157–58. 44 Ibid., ch. 4. 45 See, e.g., Walker, Intimations, ch. 5. 46 See, e.g., Waldron, “The Image of God.” 47 See, e.g., Habermas.

Bibliography Chimni, B.S. “A Just World Under Law: A View from the South.” American University International Law Review 22 (2007): 199–220. Domingo, Rafael. “Gaius, Vattel, and the New Global Law Paradigm.” European Journal of International Law 22 (2011): 627–47. Domingo, Rafael. The New Global Law. Cambridge: Cambridge University Press, 2010. Fukuyama, Francis. The End of History and the Last Man. New York: Free Press, 1992. Habermas, Jürgen. “Religion in the Public Sphere.” European Journal of Philosophy 14/1 (2006): 1–25.

212  Neil Walker Koskenniemi, Martti, Rovira Mónica García-Salmones, and Paolo Amorosa, eds. International Law and Religion: Historical and Contemporary Perspectives. Oxford: Oxford University Press, 2017. Krygier, Martin. “The Rule of Law: Pasts, Presents and Two Possible Futures.” Annual Review of Law and Social Science 12 (2016): 199–229. Moyn, Samuel. Christian Human Rights. Philadelphia: University of Pennsylvania Press, 2015. Nafziger, J.A.F. “The Functions of Religion in the International Legal System.” In Religion and International Law, edited by M.W. Janis and C. Evans, 155–76. Boston and Leiden: Martinis Nijhoff, 2004. Neff, Stephen. Justice Among Nations. Cambridge, MA: Harvard University Press, 2014. Orford, Anne. “A Global Rule of Law.” In The Cambridge Companion to the Rule of Law, edited by Martin Loughlin and Jens Meierhenrich. Cambridge: Cambridge University Press, forthcoming. Paz, Reut Yael. “Religion, Secularism and International Law.” In The Oxford Handbook of the Theory of International Law, edited by Ann Orford and Florian Hoffman, 923–39. Oxford: Oxford University Press, 2016. Pogge, Thomas. World Poverty and Human Rights. 2nd ed. Cambridge: Polity, 2008. Rosenfeld, Michel. “The Rule of Law and the Legitimacy of Constitutional Democracy.” Southern California Law Review 74 (2001): 1307ff. Samuelson, Paul A. “The Pure Theory of Public Expenditure.” Review of Economics and Statistics 36 (1954): 387. Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago Press, 2006. Sen, Amartya. The Idea of Justice. London: Allen Lane, 2009. Singer, Peter. One World: The Ethics of Globalization. 2nd ed. New Haven: Yale University Press, 2004. Slaughter, Anne Marie. “International Law in a World of Liberal States.” European Journal of International Law 6 (1995): 1–39. Tamanaha, Brian. On the Rule of Law. Cambridge: Cambridge University Press, 2004. Taylor, Charles. Modern Social Imaginaries. Durham, NC: Duke University Press, 2004. Ungern-Sternberg, Antje Von. “Religion and Religious Intervention.” In The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, 294–316. Oxford: Oxford University Press, 2012. Waldron, Jeremy. “Are Sovereigns Entitled to the Benefits of the International Rule of Law?” European Journal of International Law 22 (2011): 315ff. Waldron, Jeremy. “The Image of God: Rights, Reason and Order.” In Christianity and Human Rights, edited by John Witte, Jr. and Frank S. Alexander, 216–32. Cambridge: Cambridge University Press, 2010. Waldron, Jeremy. “Is the Rule of Law an Essentially Contested Concept (in Florida)?” Law and Philosophy 21 (2002): 137–64. Walker, Neil. “Beyond the Holistic Constitution?” In The Twilight of Constitutionalism? edited by Petra Dobner and Martin Loughlin, 291–308. Oxford: Oxford University Press, 2010. Walker, Neil. “The Gap Between Global Law and Global Justice: A Preliminary Analysis.” In In Pursuit of Pluralist Jurisprudence, edited by Nicole Roughan and Andrew Halpin, 216–38. Cambridge: Cambridge University Press, 2019.

Christianity and the global rule of law 213 Walker, Neil. Intimations of Global Law. Cambridge: Cambridge University Press, 2015. Weiler, Joseph H.H. “The Political and Legal Culture of European Integration: An Exploratory Essay.” International Journal of Constitutional Law 9 (2011): 678–94. Zuquete, Jose Pedro. “Populism and Religion.” In The Oxford Handbook of Populism, edited by Cristobal Rovira Kaltwasser, Paul Taggart, and Paulina Ochoa Espejo, 445–66. Oxford: Oxford University Press, 2017.

13 Christianity and the principle of dignity Martin Schlag

Introduction One of the principles of law that has gained prominence in the struggle to make the world a better place, especially since World War II, is human dignity. As a legal, ethical, and political concept, human dignity is widely used. However, this increasing use has not made the notion clearer. To the contrary, the confusion and the cacophony of diverging opinions seem to increase. Especially representatives of an atheist form of Enlightenment feel that the religious right has hijacked the concept of human dignity, and consequently reject it as redundant. This is surprising when one considers how important the idea of human dignity was for the Enlightenment in the eighteenth century. The contemporary lack of consensus on the meaning and content of human dignity shows how difficult it is to lead moral conversations between different moral traditions, as are Christianity and radical Enlightenment. In this chapter, I wish to explain the Christian origins of human dignity in the Bible and some patristic authors, and the development of the concept in the Catholic tradition. I am aware that explaining the whole Christian tradition of human dignity is not possible in this short chapter. Nor can I claim to have offered a complete account of the genealogy of human dignity on a global level. There are other religious and philosophical traditions that contain similar concepts and have made their own impact on the world. Nevertheless, for Western modernity, Christianity has played a decisive role. I hope that I might contribute to greater clarity by recovering the Christian roots of a foundational concept of our legal culture. Yechiel Michael Barilan has pointed out that “public discourse on human rights and dignity is a phenomenon of the post-Holocaust generation.”1 This, I think, does not mean that human dignity was unknown in past centuries and needed to be invented or recovered from oblivion, but rather that certain implications of a notion only become relevant when they are attacked or denied. We react with horror to terrible negations of the deepest moral convictions that we carry in us but would never have formulated or defended without being forced to by circumstances. We can only react because we already possess the principles and bases from which we formulate our criticism. This is a reason why human dignity

Christianity and the principle of dignity 215 was formulated as a legal concept long after its powerful history as an ethical and political idea had begun. Without the moral and spiritual foundation, there would be no legal term. As a reaction of abhorrence to the crimes of totalitarianism during the Second World War, the international community placed the legal concept of human dignity at the center of contemporary national and international human rights protection. It is a foundational principle, as the Universal Declaration of Human Rights from 1948 proclaims in the first line of its Preamble.2 Human dignity is enshrined in over 150 national constitutions as a core value that shapes the organizational structure of the nation, serves as a guideline for the interpretation of law, and establishes a subjective individual right against cruel and demeaning treatment.3 Besides, the respect for human dignity is the inspiring idea in the international agreements against genocide, torture, war crimes, and human trafficking. Human dignity is an idea that excludes discrimination of race, religion, gender, sexual orientation, and other characteristics of the human person. Over the last decades, human dignity thus has come to function as the ultimate value, on which all human rights depend and which integrates them into a sensible whole by serving as guiding principle to solve mutual tensions between conflicting rights. Over the past decades, negative phenomena related to human dignity as a legal concept also have emerged. Human dignity is frequently and increasingly proclaimed in the constitutions of developing countries and other nations that do not respect human rights at all well. Schulztiner and Carmi have discovered an acceleration of the use of human dignity as a legal concept in national constitutions especially since the year 2000. Human dignity in these cases becomes a mere declaration of words. Inflation of a term does not increase its value: “If the term means everything, it runs the risk of meaning nothing.”4 It has furthermore become painfully apparent that the consensus on human dignity after World War II was achieved by shunning the question why human persons have an inherent value that deserves respect from others. The proclamation in the Universal Declaration was, in this sense, an “unfinished business,” because it left the ultimate foundation of human rights obscure. After the war there were, and still are, so many divergent traditions and conceptions that none of them could convincingly claim superiority. Paolo Carozza is right in stating that human dignity is at the starting point of human rights protection as a “mediating concept among varied traditions.” The concept is, however, “vulnerable to great ambiguity.”5 This ambiguity is reinforced by differences in cultural traditions, even among those that share common roots in the Western tradition, as for instance those of the United States and Europe. James Q. Whitman correctly pointed out that “differences in cultural tradition, in short, have made for palpable differences in law.”6 He was referring to the differences between the American and the European, in particular the French and the German, legal traditions regarding privacy as a right. In Europe, privacy is seen mainly as a right to personal dignity and respect for one’s image, name, and reputation; whereas in the United States,

216  Martin Schlag in contrast, privacy is mainly understood as protection of home and property against the government. This difference is due to historical reasons. In Europe, the concept of “dignity” emanated from a process of social “leveling-up.” Beginning in the eighteenth century, or even earlier, the honor due to the aristocracy was extended to ever wider circles of persons until it comprehended all citizens and people in general. Dignity as a legal term, Whitman affirms, has roots in the law of insult as an injury of personal honor of the “dueling classes.” “What the continental law of privacy expresses is the fundamental social importance of a commitment to extend royal treatment to everyone.”7 Leon Kass, too, has noted the aristocratic origins of human dignity that, in his view, make the concept an “undemocratic idea.”8 We can disagree with Kass on this point, but in any case it is commonly held that the American legal concept of human dignity differs from the European legal concept. The American tradition associates dignity mainly with freedom and autonomy from government interference. In the European tradition, on the other hand, the concept quickly triggers positive government intervention, even though Europe has a deeply established tradition of negative human and civic rights that guarantee protection against unjustified state encroachment on freedom. Where do these different Western traditions come from? We turn first to the Bible and Hellenistic sources to find an answer.

Scriptural foundations If we sought the words “human dignity” in the Bible, we would be disappointed, just as we are when we look for other concepts of modern political philosophy, like “human rights,” “rule of law,” “democracy,” and “separation of powers.” Strictly speaking, human dignity is not a biblical term: we do not find the literal concept in the Bible. Nevertheless, the Bible offers a vision of the human person that Christian theology has developed into an anthropology that places human dignity at its center.

Old Testament In the Hebrew Bible, the central passage for the later theological development of the notion of human dignity is Genesis 1:26–28. The theme of imago Dei is taken up in Genesis 5:39 and 9:6,10 and in Psalm 8:6.11 The Greek books of the Old Testament contain re-readings of Genesis 1:26–28, Wisdom 2:23,12 and Sirach 17:3.13 Apart from these few passages that extol the glory of humanity as the image of God, the Old Testament rather underscores the frailty and weakness of humanity in comparison with the dignity, glory, and majesty of God. Before God, the nations are nothing and void (Isaiah 40:17–18), humans resemble the beasts that perish (Psalm 49:13–14), human life is like a passing shadow and little more than a breath (Psalm 144:3–4), and humankind has no advantage over the animals (Ecclesiastes 3:19–21). Genesis 1:26–28 is actually a rather secondary text in the context of the Old Testament. The passage needed the “sea change” of

Christianity and the principle of dignity 217 Christianity to bring out its full meaning. For our purposes, the somber Old Testament vision is the backdrop that makes Genesis 1:26–28 stand out like a precious jewel encrusted in the first chapter of the Bible: Then God said: Let us make human beings in our image, after our likeness. Let them have dominion over the fish of the sea, the birds of the air, the tame animals, all the wild animals, and all the creatures that crawl on the earth. God created humankind in his image; in the image of God he created them; male and female he created them. God blessed them and God said to them: Be fertile and multiply; fill the earth and subdue it. Have dominion over the fish of the sea, the birds of the air, and all the living things that crawl on the earth. The cultures surrounding Israel knew myths of creation that contained similarities with the biblical text but also many differences. For instance, they did not confer on man and woman the status of being an image of God. Humans were seen as slaves of the gods, created to serve them with their labor. The Hebrew Bible, in contrast, exalts and honors every man and every woman, as becomes apparent when we analyze the words. For “image,” the Hebrew original uses the expression dselem, which means statue, sculpture, picture, monument, idol, image, or representation. In the Law of Moses, God forbade every image or likeness of a god, a human being, or an animal (Exodus 20:4–5; Deuteronomy 5:8) because he wished to preserve his people from the polytheism of the surrounding nations that venerated all these images as idols. In antiquity, the belief was widespread that the statue of a god or goddess not only represented him or her in the sense that we hold today. We know that a picture or a statue of God is not the same as the reality it depicts. In antiquity, people thought that the statue contained the god in a real sense. The statue made the god present. Thus, no statues or sculptures of the Hebrew god were allowed. There is only one exception. God made an image and likeness, a statue, a dselem, of himself: every man and every woman re-presents God. Every human being makes the Absolute present in this world. Human dignity means just that: with every child, somebody incommensurable and priceless who is to be accepted unconditionally comes into our world. Killing or treating such a person in a demeaning way offends God, just as defacing a portrait destroys the painting but also offends the depicted person. Later intertestamental rabbinic interpretations understand the imago Dei in a moral sense. Being created in the image of God also implies a calling to moral excellence. Genesis 1:26–28 in this interpretation already points to a problem of our own day: the distinction between dignity as a “floor,” or minimum, and dignity as a program of moral excellence. As a floor or minimum, dignity is due to all human persons, irrespective of their moral status, because they make present the Absolute. Absolute means that someone is under no condition, mediated by no other purposes, and not a means to something else but an end unto itself. Even the most depraved criminal still is human and therefore is entitled to some

218  Martin Schlag form of respect that protects him against instrumentalization. Nobody ever stops being human or can ever be treated as a mere heap of cells that could be used, for instance, as a supplier of spare organs or fresh meat for consumption. On the other hand, dignity is a program of moral excellence that calls us to strive for resemblance with our Creator, whose image we are. What human dignity is in the full sense of the word becomes visible in the saints or moral heroes.

New Testament The New Testament is the good news of the incarnation of the Word of God in Jesus of Nazareth. The central idea is that Jesus Christ is the measure of all things, and that he alone is the true image of God. We sinners, whose likeness to God is marred, are refashioned in Christ to be images of the Image that is Christ. By becoming images of Christ, we become images of God. This transformation is universally valid and accessible to all human beings independently of racial and cultural barriers. Genesis 1:26–28 expanded to every man and every woman the royal privilege of being the image of God. The Synoptic Gospels reinforce this view radically. As judge over the nations, Jesus, the Son of God, identifies himself with “the least ones”: “whatever you did (or did not do) for one of these least brothers of mine, you did for me” (Matthew 25:40). In the light of the Christian faith in the divinity of Jesus Christ, this is a strong affirmation of imago Dei that goes against normal social standards: the socially weak and marginalized are God’s representatives with whom he identifies. What we do to them, we do to him. In these words, Jesus not only ignores social classifications but invites his disciples to go beyond them by welcoming the blind, the crippled, and the lame, and to give generously without expecting recompense (Luke 6:31–36). Not money, health, prestige, success, or other elements that usually define a person’s standing in society make up human dignity, but what counts is the dignity of being a child of God through God’s gratuitous love poured out over all like the light of the sun. The Synoptic Jesus sets the pyramid of social honor on its head. So do the Pauline and the Johannine writings. The Gospel of John and the First Letter of John contain the new commandment to love one another as Jesus has loved us (John 13:34–35; 1 John 4:7–12), as well as the revelation that God is love (1 John 4:16b). This is of momentous importance for the concept of human dignity, especially in its expression as a floor of minimal but absolute respect of the person as a person, even a criminal or an enemy. Such a form of dignity is a consequence of charity rather than of justice. To respect someone unconditionally who has perhaps hurt us, goes beyond what we owe this person. It goes beyond justice. It is an expression of love. This is one of the reasons why it has taken so long for dignity to become a legal concept and to unfold its consequences in society. Society is organized by laws, and culture is formed by structures of behavior that crystalize as rules. Laws and rules are manifestations of justice, both in the sense that they are foreseeable and reciprocal, and that they are sanctioned by authority. Violations of laws and rules have unpleasant

Christianity and the principle of dignity 219 consequences—they are punished. Charity, in contrast, is self-giving; its omission is not sanctioned by legal punishment, except in those cases in which charity has morphed into justice. Entitlement to social care, for instance, is an example of such a process: what originally was given as charity has become a legal claim. Racism, slavery, suppression of women and children, and other practices that we now rightly consider to be violations of dignity were widespread in Christian societies in past centuries. Christians in conscience came to understand them to contradict God’s will.14 Nevertheless, it took centuries for the legal order to be sufficiently charged with Christian principles to ban them. Charity must somehow become justice in order to shape society. Otherwise it remains an individual moral or spiritual value, or remains confined to small groups. We can discover the incipient dynamism of such a movement in Paul. In his letters, Paul was fighting for the universalization of salvation for nonJews: “There is neither Jew nor Greek, there is neither slave nor free person, there is not male and female; for you are all one in Christ Jesus” (Galatians 3:28). Paul thus undermines any prejudice of class, which becomes even more apparent if we understand the political implications of his statements that we are all “sons of God.” In the Roman Principate after Augustus, Caesar was venerated as “Son of God,” as divi Filius, as hyios Theou, the same expressions that Paul applies to the Christians who belonged to all social classes, notably also to slaves and former slaves, situated at the bottom of the social pyramid. In antiquity the highest aim was social recognition, honos or dignitas, achieved through selfaggrandizement when necessary. Conferring the emperor’s title to everybody, as Paul did, set the pyramid of honor on its head. This idea was a powerful explosive that would detonate in the cultural revolution that Christianity brought about in the patristic era.

The patristic contribution to the Christian tradition of human dignity Meilaender has written of “a great rupture in Western culture, a rupture that gradually reshaped the classical notion of dignity . . . by bringing it within a system of thought and practice that worshipped as God a crucified man who suffered a criminal’s death on a cross.”15 Meilaender is referring to Western culture that goes back to pre-Christian times, to Roman law and Hellenistic philosophy. Stoic philosophers like Seneca and Marcus Aurelius were precursors of the notion that all human beings, including slaves, were persons and, as such, possessed the “right to rights.” However, they belonged to a small elite that did not transform the predominant culture. What brought about the cultural change was the widespread practice of real and tangible charity by the church for all, independently of their social status. Meilaender is right in affirming that Christian faith disrupted the ancient notion of dignity. Our notion of the dignity of the individual person originated with Christianity—to be precise, with the Church Fathers of the first centuries. The Greek Fathers were more speculative and mystical, the Latin Fathers more

220  Martin Schlag practical, but both from the first commentaries on the book of Genesis linked the biblical notion of the image of God with the legal term dignitas in Latin or axioma in Greek. In Greek, it was Theophilus of Antioch who around the year 180 ce wrote: When God said, “Let us make man after our image and likeness” [Gen. 1:26], he first reveals the dignity of man [to axioma tou anthropou]. For after making everything else by a word, God considered all this as incidental; he regarded the making of man as the only work worthy of his own hands.16 A long list of Greek authors follow suit: Clemens of Alexandria, Origen, Basil, Gregory of Nazianzus, Gregory of Nyssa, John Chrysostom, John Damascene, and others. A few years after Theophilus of Antioch, Tertullian wrote in Latin: It was necessary that God should be known. This is good and reasonable. Whatever is to know God must be worthy [dignum]. What can be considered as worthy as the image and likeness of God? And that is good and reasonable without a doubt. It was thus necessary to create the image and likeness of God with free will and under its own power. In this very fact one would be able to recognize it as the image and likeness of God: in his freedom and power of choice.17 Ambrose, Augustine, Leo, and Gregory the Great also combine image of God and dignity. The fact that both the Christian East and West link the biblical term with a legal concept is extraordinary. The word dignitas in general denotes the suitability, the fitness, the worthiness of a person. However, as a political and legal term it also expressed rank, status, and office. In this sense, dignitas was a consequence of public recognition for political and military service. Honor, glory, esteem, authority, majesty, nobility, and other similar expressions were related to the Roman use of dignity. The Church Fathers, too, in some passages use dignitas with this meaning, referring to the public authorities but also to the church. As an example for the general legal political use of the word, Cicero criticized the Athenian democratic constitution because it did not respect dignitas sufficiently: “their State, because it had no definite distinctions in rank, could not maintain its fair renown.”18 Roman law discriminated according to social status, to dignitas. Penal laws, for instance, were not equal for all: the legal obligations, the procedure, and the punishments differed according to the social conditions of the accused. The honestiores were treated more leniently than the humiliores because of their different levels of dignitas. In this context, the great achievement of the early church was the inversion of the usual sequence in the acquisition of dignitas. In the spirit of Jesus and Paul, the Church Fathers set the pyramid of social honor on its head. If the usual sequence of steps that an aspiring Roman had to take up the ladder of

Christianity and the principle of dignity 221 social recognition was virtue, accomplishments, and merits in office, whence followed honors and dignitas as the highest aim, the Church Fathers started off with God’s gratuitous gift of dignitas by creation and redemption. As a consequence, Christians were called to live a virtuous life and earn merit. Instead of virtue—merit—dignity, Christianity taught dignity—virtue—merit. The important element in this process was that the concept of dignity was already located in the legal and political sphere. It could thus unfold its social and cultural significance more easily than a purely theological or philosophical term. Dignitas was meant to change society along the lines of charity, equality, and freedom that it implied. This would take time, as any change of society requires time. However, the spirit of Christianity has transformed our culture deeply, even if change sometimes had to be put into practice outside the visible church or against its hierarchy. Nevertheless, the Church Fathers already sowed the seeds that would bring fruit during the Enlightenment and in our own day, for in reality the task of living up to the dignity of every human being is never finished. The early church taught something radical in the hierarchical Greco-Roman world where dignitas was reserved to the upper echelon: everyone has dignitas in Christ, making the new Christian concept of dignity a powerful leveler. The development of the Christian idea of human dignity did not stop there but moved forward through the medieval period, the humanist Renaissance, late Scholasticism, the Enlightenment, and up to our time. The development was neither linear nor unambiguous. Besides, new strands of thought and concepts arose that were combined with the notion of dignity, in particular the concepts of “person” and natural human rights. Just as the Church Fathers had linked the biblical idea of the image of God with the sociolegal term dignitas, so later generations created new combinations. The historical path of the Christian notion of dignity did not follow only one straight line but was more like a myriad of collateral streams that, at times, appeared at the surface, at other times flowed in subterraneous channels, and at a certain point in history converged and emerged to effectively shape society. As any social change, this process had to overcome the resistance of antagonistic forces, both in the church and in society, wishing to maintain the status quo. In what follows, I wish to give an overview of what I consider to be the most significant developments and currents of thought in this history. With limited space in this chapter, my presentation is cursory but, I hope, nevertheless true. I will try to show how Thomas Aquinas enriched the notion of human dignity, and how its essence was maintained up to the Enlightenment. Immanuel Kant deeply transformed the concept by transposing the Christian notion of human dignity into a different moral framework, incompatible with the Christian tradition because Kant’s system is not based on God’s will or on human nature. Consequently, this framework was not received into the Catholic intellectual and social tradition after the Second Vatican Council. The church’s teaching has remained firmly theocentric and christocentric.

222  Martin Schlag

Medieval and humanist contributions to the Christian tradition of human dignity Thomas Aquinas is not the only medieval scholar. The Middle Ages were uniform in their adhesion to the Christian faith but very diverse in the way this faith was implemented philosophically and culturally. Nevertheless, Thomas Aquinas is the most influential medieval scholar in our own day. I will therefore concentrate on his position, complementing his political thought with that of John Duns Scotus. Thomas Aquinas uses the concept “dignity” or its cognates at least 1,760 times in his writings, and with different meanings.19 In Aquinas, dignitas can mean the rank of a dignitary in society or the church. However, I identify six lasting enrichments of our notion of human dignity in Aquinas that go beyond the meaning of social rank: 1

Aquinas links dignity with the concept of person. Speaking about the three Persons of the Most Holy Trinity, he states that persona est nomen dignitatis:20 person is a name for dignity, it is an expression of dignity. Influenced by Cicero’s Stoic concept of the persona as a role or function in society, Aquinas applies the dignity of being a person to the high role played by all human beings.21 “Person” as a concept thus is universalized and becomes practically synonymous with dignity. At the same time, Aquinas is premodern when he teaches that one’s dignity as a person can be forfeited by crime. A criminal can be executed to preserve society, just as a surgeon must cut off a gangrenous member to save the whole body.22 2 Aquinas describes the human person as priceless. Centuries before Immanuel Kant, Aquinas already had written, “a free man’s person surpasses any pecuniary estimation.”23 Once we realize that all human persons are free, the step to the idea that every man and woman has dignity, not price, is immediate. 3 Aquinas links the notion of imago Dei with the idea that humanity is endowed with dominion over creation, thus with natural rights. In the context of the right to property, Aquinas wrote: “man has a natural dominion over external things, because, by his reason and will, he is able to use them for his own profit, as they were made for his own account: for the imperfect is always for the sake of the perfect.” Reason and will, according to St. Thomas, are where God’s image resides in the human person.24 Subjective rights are dominion over things and claims against actions or omissions by others. Aquinas links these to humanity as the image of God. Canonists of the twelfth century had created the language in which rights theories could be formulated. Aquinas used that language, founding it on imago Dei, without adopting a Lockean stance of individual rights, as his theory was embedded in a communitarian notion of the common good. 4 Aquinas shows the way in yet another aspect: having dignity means being an aim in oneself. Defending the superiority of the contemplative over the active life, he writes that dignitas significat bonitatem alicuius propter seipsum

Christianity and the principle of dignity 223

5

6

(dignity signifies the goodness of something/someone because of itself ).25 This again anticipates Kant’s formulation of human dignity by centuries. Aquinas confirms dignity as a calling to moral excellence. As we recall, there are two dimensions of the Christian notion of human dignity: the floor, under which no treatment must fall, and the height of moral excellence. In a moving passage, Aquinas writes that God will treat good persons who strive to be just in a way “that is congruent with their human dignity; that is, nothing will happen to them that is not for their own good, and everything that happens to them will be to their own advantage.” Those who, in contrast, “do not keep that order which is congruent with their dignity as rational creatures, . . . fall into another order, an order in which the will of God is done to them.”26 Aquinas finally positions the human being in society as a part that belongs to the whole; at the same time, he affirms that individual human beings do not belong completely to human society; only to God do they belong utterly. This opens a space of individual freedom in the public sphere.

Complementary to Aquinas and the Dominican school, the Franciscan school also was of enormous importance in the Middle Ages. Its greatest representative was John Duns Scotus. The Franciscan Order and its school accentuated human individuality and will. This emphasis also comes to bear in Scotus’s political philosophy. Scotus can be considered one of the first theoreticians of popular sovereignty. He taught that civic authority emanates from the people who elect the representatives supposed to govern them according to a kind of “social contract.” Should the governors infringe on the people’s rights or not abide by the laws given to them by the people, then the people could impeach the government. Human law, for Scotus, is not a concretion of or deduction from natural or divine law, but it must not contradict these laws either. If it does, human law becomes unjust, though not invalid, as Thomas Aquinas taught. For Scotus, civil law was not a static and rigid regulation but a flexible and evolving means of adaption to historically changing social circumstances. This required argumentation and reasoning, and it obligated the government to explain the rationality of its decisions and laws. Such thoughts were of great importance when it came to translating the idea of human dignity into practical social and political reality. The Renaissance was an important time of cultural acceleration along this path. The humanism of the Renaissance brought both continuity and discontinuity. We discover continuity with the past in the concepts used by the humanists, which fundamentally remain unaltered from medieval times: the aim was always the rebirth of the person through baptism. The humanists wished to renew Christianity, which seemed to have lost its vigor because of the Great Schism and clerical misbehavior. In this sense, Renaissance humanism has its origins in the late-medieval spiritual movements of Christian reform. There is discontinuity, however, in the way this Christian rebirth is expressed culturally: Renaissance humanism is opposed to the clerical and monastic culture of the past and to ecclesiastic conservatism that wished to preserve the existing social order. The

224  Martin Schlag humanists analyzed society not in the light of faith alone but also in the light of human reason, making use of the pagan classical writers. The humanists thus were not at all anti-Christian but can be called antimedieval. An example of this perspective is Pico della Mirandola and his now famous “Oration on Human Dignity.” Written probably in 1486, it was published after his premature death by his nephew with the simple title Oration. Later editions expanded the title by adding the concept of human dignity. The text itself, however, exalts humanity’s position without using the expression dignity. It contains thoughts of major importance to the Renaissance, centering the exalted position of humanity in freedom. Pico’s words remain in a Christian context. The Oration is a dialogue with the biblical God who creates human freedom. Humanity receives freedom from God as a gift and as a task, not as arbitrary willfulness: humanity is called to choose between a brutish and an angelic form of life: Thou, constrained by no limits, in accordance with thine own free will, in whose hand we have placed thee, shalt ordain for thyself the limits of thy nature. . . . We have made thee neither of heaven nor of earth, neither mortal nor immortal, so that with freedom of choice and with honor, as though the maker and molder of thyself, thou mayest fashion thyself in whatever shape thou shalt prefer.27 This is God the Creator speaking, and it is in accordance with the Bible: “It was he who created man in the beginning, and he left him in the power of his own decision” (Sirach 15:14).

Human dignity in late scholasticism This deeply theistic Christian notion of human dignity is clear also in late Iberian scholasticism, especially in the founder and greatest teacher of the School of Salamanca, Francisco de Vitoria. As a member of the Dominican Order, he had studied Aquinas in Paris, where he had also become acquainted with the moderate nominalist school. When he went back to Spain, he became professor in Salamanca and was confronted with the intellectual challenges of the sociopolitical upheaval caused by the Spanish conquest of America. For the first time in history, Christendom had to answer the question whether heathen nations that were neither Christian nor Muslim nor Jewish had rights, in particular to property and self-government. Francisco de Vitoria answers this question in the affirmative: the Native Americans are human beings created as the image of God, and therefore have true rights just as Christians do.28 More clearly than Aquinas, Francisco de Vitoria linked the notion of the image of God with natural rights, while firmly remaining in the Christian theistic context. Protestantism, too, reinforced the Christian framework of rights and dignity, by appealing to the dignity of a free Christian conscience and religious freedom. The first human right, even before the French Declaration des droits de l’homme e du citoyen of 1789 and the US Bill of Rights of 1791, was the claim of religious

Christianity and the principle of dignity 225 freedom by William the Silent in the Netherlands and by Roger Williams in the colony of Rhode Island.29

The Enlightenment and what it did to the Christian concept of human dignity Like the scholars of the Middle Ages, those of the Enlightenment share certain common convictions and traits. At the same time, they greatly differ in their specific formulations and positions. Generally speaking, the thinkers of the Enlightenment rejected Aristotelian natural science, a teleological worldview based on natural final causality and the intervention of God in nature through miracles. They exalted human reason and nature. However, the differences between radical and moderate, between Scottish, French, and German Enlightenment are notable. For Adam Smith, for instance, as representative of the Scottish Enlightenment, the concept of human dignity was not central. The most important author for our topic is Immanuel Kant. For his moral philosophy, the notion of human dignity is pivotal. His definitions of the essence of human dignity are nearly literally the same as those of the earlier Christian authors we have dealt with in these pages. Nevertheless, with Kant something radically new entered the history of ideas. Kant famously wrote, Man is such an end [an end in itself]. Man, or more generally, every rational being, exists as an end in himself. . . . But rational begins, on the other hand, we call persons, since by their very nature they exist as ends in themselves, never to be treated simply as things. . . . The practical imperative, then, is this: Always act so that you treat humanity, whether in your own person or in another, as an end, and never merely as a means.30 In a kingdom of ends, everything has either a price or a dignity. Anything having a price can be replaced by something else with an equivalent value. But if this value is priceless, having no equivalent, we say it has dignity. Those things which relate to general human desires or needs have a market price. On the other hand, things which we value not from need but from taste, for the immediate purposeless enjoyment we derive from them, are said to have an aesthetic price. But that which is the fundamental condition for all value must be an end in itself; its value is not relative, but inherent. Such is dignity.31 In Thomas Aquinas there already had appeared the idea of personhood, the distinction between price and dignity, and the notion that possessing dignity means being an end in itself. In this respect, Kant does not go beyond Aquinas. What radically modified the Christian concept of human dignity, however, was the new framework of Kant’s moral philosophy. Kant does not base his “metaphysics of morals” on God’s will, human nature, or happiness, but on what he takes to be the a priori concepts of pure reason alone. The foremost of these is the concept of the necessity of duty as a universalizable law. Kant cannot and does not

226  Martin Schlag even try to explain why duty exists, but he takes it as his point of departure. In the Christian tradition of moral philosophy, duty is seen as an expression of and response to the loving care of the good God who guides us with his moral law in order for us to flourish as happy virtuous beings. Without an ontological and theological foundation of this kind, Kant’s system is highly fragile: it presupposes that we have already accepted the Christian values he attempts to prove in vain. He denies the possibility of a rational proof of God’s existence but postulates his existence as a requirement for the validity of morality. God thus is not the foundation and aim of morality but its subordinated part. Kant himself realized that he had intentionally broken with the precedent Christian tradition when he proudly proclaimed that “all previous attempts to find the principle of morality have failed.”32 Kant did not do the cause of human dignity a favor by separating it completely from the notion of the image of God and from the Christian tradition of moral philosophy. Catholic social thought therefore did not follow Kant. In the nineteenth century, reeling from the shock of the French Revolution and the ferociously anticlerical political liberalism of the times, the Catholic Church stayed entrenched in a strict rejection of modernity and the Enlightenment. At the Second Vatican Council (1962–65), when the Catholic Church reconciled with modernity, it did not choose a Kantian version of human dignity and human rights but maintained a clear theocentric and Christocentric version of humanism. Pope Paul VI affirmed this explicitly in the speech with which he concluded the Council, but the conciliar documents also state this clearly. The Pastoral Constitution Gaudium et Spes on “The Church in the Modern World,” for instance, famously said that only Christ reveals humanity to humanity (Gaudium et Spes, n. 22) and that the creature without the Creator would disappear (Gaudium et Spes, n. 36). Moreover, the declaration on religious freedom, Dignitatis Humanae, which bears human dignity in its title, bases religious liberty on the duty to seek God and to adhere to him. It is therefore not true that the Catholic Church after the Second Vatican Council has become a Kantian form of Christianity; it has rather gone back to its own tradition. There, concepts like human dignity, the human person as an end in itself, without price but possessed of dignity and rights as an image of God, are not only clearly documented: the Christian tradition is the source, from which the Enlightenment and modernity borrowed the concepts, while at the same time transforming them by placing them in an insufficient gnoseological framework.

Conclusion In modernity, human dignity and human rights were introduced into our international and national legal orders as fundamental principles. Based on the Catholic Church’s opposition to enlightened modernity in the nineteenth century, the social and political achievements of the Enlightenment are sometimes seen as independent of, if not opposed to, Christian faith. The best reflections manage only to dismiss both the Christian and the Enlightenment narrative. I defend the

Christianity and the principle of dignity 227 Christian narrative because the intellectuals of the Enlightenment took their values, including that of human dignity, from the Christian tradition. I have therefore intentionally gone back to when these Christian values entered the world and began to shape the general culture: to the Bible and some authors of the early church, following the path of the Christian tradition through the centuries. I hope to have shown that human dignity with its implications of equality and freedom are originally and authentically Christian. The Church Fathers detonated the social explosive contained in the biblical expression that man and woman are created as God’s image and likeness, and the church continued this dynamism over time. Frequently in our day, human dignity either is postulated in an axiomatic way as the consequence of some human quality or is rejected as a kind of squishy religious dogma. We live in a technocratic age, in which we know what the human body is but less and less who we are and for what we are on earth. I respect attempts to establish a universal nonreligious concept of human dignity with the intention of increasing its communicability in our secularist pluralist society. However, I think this attempt has failed, not only because religious believers do not accept the public irrelevance of their faith but also because without Christ, Christian values like human dignity, freedom, and equality are like cut flowers in a vase. They stay fresh for a couple of days and then wither. Trying to preserve human dignity without God—Creator and Redeemer—would be like attempting to play soccer after having removed the goals. At the beginning, the memory of where they stood is fresh, but over time it dims. Finally, players question why they need to follow rules that have become increasingly incomprehensible. Human dignity can be best understood within a Christian narrative, of course free from past forms of clericalism and political privileges of the clergy. Affirming the Christian roots of modern political achievements like human dignity, human rights, democracy, and others in no way implies the wish to return to ultramontanism or integralism. To the contrary, the Second Vatican Council accepted the autonomy of earthly affairs, and the Catholic Church has come to terms with the modern state as it emerged from a process of secularization by proclaiming religious freedom. Accepting that the modern conception of human dignity is of Christian origin is not only more honest but also more realistic. In the face of countless and unceasing violations of human dignity, we are forced to admit that something has gone very wrong with human nature and history. The reality of sin without a universal redeemer would make a universal notion of human dignity appear as little more than an illusion. In the end, human reason illuminated by the light of faith might turn out to be more communicable than mere reason.

Notes 1 Barilan, 89. 2 “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”; www.un.org/en/universal-declaration-human-rights/.

228  Martin Schlag 3 See Shulztiner and Carmi, 461–90. 4 Ibid., 490. 5 Carozza, https://doi.org/10.1093/law/9780199640133.003.0015, downloaded December 2018. 6 Whitman, 1196. 7 Ibid., 1170. 8 Kass, 246. 9 “Adam was one hundred and thirty years old when he begot a son in his likeness, after his image; and he named him Seth.” 10 “Anyone who sheds the blood of a human being, by a human being shall that one’s blood be shed; for in the image of God have human beings been made.” 11 “Yet you have made him little less than a god, crowned him with glory and honor.” 12 “For God formed us to be imperishable; the image of his own nature he made us.” 13 “He endowed them with strength like his own, and made them in his image.” 14 Paul’s letter to Philemon clearly asks for Onesimus’s liberation. See on Gregory of Nyssa’s rejection of slavery, keywords “social analogy” and “slavery,” in MateoSeco and Maspero. 15 Meilaender, “Human Dignity and Public Bioethics,” 40. 16 Theophilus, Ad Autolycum, II.18, p. 57. 17 Tertullian, Adversus Marcionem, vol. I, p. 481 (my own translation). 18 Cicero, De Re Publica I, XXVII, 43: “Quaniam distinctos dignitatis gradus non habebant, non tenebat ornatum suum civitas”: pp. 68–69. 19 See Hanvey, 212. 20 Aquinas, Scriptum Super . . . Petri Lombardi Episcopi Parisiensis, vol. 1, Liber 1, distinctio 10, q. 1 art. 5, p. 270. 21 Aquinas, Summa Theologiae, I, q. 29, a. 3, ad 2. 22 Ibid., II–II, q. 64, a. 2. 23 Ibid., II–II, q. 189, a. 6, ad 3: “Persona liberi hominis superat omnem aestimationem pecuniae.” (my translation). This was a formulation also of Roman law. 24 Ibid., q. 66, a 1 c. 25 Aquinas, Scriptum Super . . . Petri Lombardi Episcopi Parisiensis, vol. 3, Liber 3, distinctio 35, q. 1 art. 4, quaestiuncula 3, solutio 1, p. 1189. 26 Aquinas, De Veritate, q. 5, a. 7 c. 27 Pico della Mirandola, 225. 28 Vitoria, De Indis et de Iure Belli Relectiones, Section I, n. 21. p. 127, n. 24, p. 128. 29 For the Protestant tradition on human dignity, see Witte. 30 Kant, n. 428–29, p. 15–57. 31 Ibid., n. 435, p. 172. 32 Ibid., n. 433, p. 166.

Bibliography Aquinas, Thomas. Scriptum Super Libros Sententiarum Magistri Petri Lombardi Episcopi Parisiensis. Edited by R.P. Mandonnet, O.P. Vol. 1. Paris: Lethielleux, 1929. Aquinas, Thomas. Summa Theologiae. London: Blackfriars, 1964. Barilan, Yechiel Michael. Human Dignity, Human Rights, and Responsibility: The New Language of Global Bioethics and Biolaw. Cambridge, MA, and London: The MIT Press, 2012. Carozza, Paolo. “Human Dignity.” In The Oxford Handbook of International Human Rights Law, edited by Dinah Shelton, 345–60. Oxford: Oxford University Press, 2013.

Christianity and the principle of dignity 229 Cicero. De Re Publica. Loeb Classical Library. Cambridge, MA: Harvard University Press, 1966. Debes, Remy, ed. Dignity: A History. Oxford: Oxford University Press, 2017. Dilley, Stephen, and Nathan J. Palpant, eds. Human Dignity in Bioethics: From Worldviews to the Public Square. New York and London: Routledge, 2013. Hanvey, James. “Dignity, Person and Imago Trinitatis.” In Understanding Human Dignity. Proceedings of the British Academy 192, edited by Christopher McCrudden, 209–29. Oxford: Oxford University Press, 2013. Kant, Immanuel. On the Foundation of Morality: A Modern Version of the Gundlegung. Translated and commentary by Brendan E.A. Liddell. Bloomington and London: Indiana University Press, 1970. Kass, Leon R. Life, Liberty and the Defense of Dignity: The Challenge for Bioethics. New York and London: Encounter Books, 2002. Kraynak, Robert P., and Glenn Tinder, eds. In Defense of Human Dignity: Essays for Our Times. Notre Dame, IN: University of Notre Dame Press, 2003. Lawler, Peter Augustine. Modern and American Dignity: Who We Are as Persons, and What That Means for Our Future. Wilmington, DE: ISI Books, 2001. Mateo-Seco, Lucas Francisco, and Giulio Maspero, eds. The Brill Dictionary of Gregory of Nyssa. Leiden and Boston: Brill, 2009. McCrudden, Christopher. Understanding Human Dignity. Proceedings of the British Academy 192. Oxford: Oxford University Press, 2013. Meilaender, Gilbert. “Human Dignity and Public Bioethics.” The New Atlantis 17 (Summer 2007): 33–52. Meilaender, Gilbert. Neither Beast nor God: The Dignity of the Human Person. New York and London: New Atlantis Books, 2009. Pico della Mirandola, Giovanni. “Oration on the Dignity of Man.” In The Renaissance Philosophy of Man, edited by Ernst Cassirer, Paul Oskar Kristeller, and John Herman Randall, 223–54. Chicago: The University of Chicago Press, 1948. Pöschl, Viktor. “Der Begriff der Würde im antiken Rom und später.” In Sitzungsberichte der Heidelberger Akademie der Wissenschaften, Philosophisch-historische Klasse, Vol. 3. Heidelberg: Carl Winter Universitätsverlag, 1989. Rosen, Michael. Dignity: Its History and Meaning. Cambridge, MA, and London: Harvard University Press, 2012. Rychlak, Ronald J., ed. American Law from a Catholic Perspective: Through a Clearer Lens. Lanham, Boulder, New York, and London: Rowman & Littlefield, 2015. Scaperlanda, Michael A., and Teresa Stanton Collett, eds. Recovering Self-Evident Truths: Catholic Perspectives on American Law. Washington, DC: The Catholic University of America Press, 2007. Schlag, Martin. La dignità dell’uomo come principio sociale: Il contributo della fede cristiana allo Stato secolare. Rome: EDUSC, 2013. Shulztiner, Doron, and Guy E. Carmi. “Human Dignity in National Constitutions: Functions, Promises and Dangers.” The American Journal of Comparative Law 62/2 (Spring 2014): 461–90. Tertullian. “Adversus Marcionem.” In Corpus Christianorum Series Latina. Turnholt: Brepols, 1965. Theophilus of Antioch. Ad Autolycum. Translated by Robert Grant. Oxford: Clarendon Press, 1970. Vitoria, Francisco de. De Indis et de Iure Belli Relectiones. Translated by Ernest Nys. Washington, DC: Carnegie Institute of Washington, 1917.

230  Martin Schlag Waldron, Jeremy, Wai Chee Dimock, Don Herzog, and Michael Rosen. Dignity, Rank, and Rights. Edited by Meir Dan-Cohen. Oxford: Oxford University Press, 2012. Whitman, James Q. “The Two Western Cultures of Privacy: Dignity Versus Liberty.” The Yale Law Journal 113/6 (April 2004): 1151–221. Witte, John, Jr. “Between Sanctity and Depravity: Human Dignity in Protestant Perspective.” In In Defense of Human Dignity: Essays for Our Times, edited by Robert P. Kraynak and Glenn Tinder, 119–37. Notre Dame, IN: University of Notre Dame Press, 2003.

14 Christianity and the principle of equality in global law Julian Rivers

Introduction1 In the early 4th century, the Christian apologist, Lactantius, wrote these words: The second constituent part of justice is equality . . . For God who gives being and life to men wished us all to be equal, that is, alike. He laid down the same terms of life for us all, making us capable of wisdom and promising us immortality, excluding nobody from the benefits of heaven. And so, as he gives us all a place in the daylight, waters the earth for us all, provides nourishment and precious, relaxing sleep, no less does he endow us all with moral equality. With him there is no slave or master. Since we all have the same father, so we are all alike his freeborn children. No one is poor in his eyes, except for want of justice; no one is rich except in moral qualities. No one is prominent, except in being incorruptible; no one is famous, except for works of mercy performed on a grand scale; no one has the title ‘Excellency’ without accomplishing all the stages of moral growth. And that is why neither the Romans nor the Greeks could sustain justice, since they had so many levels of disparity in their societies, separating poorest from richest, powerless from powerful, the obscure from the most elevated dignities of royal state. Where all are not alike, there is no equality; and inequality is enough to rule out justice, the very point of which is to afford like treatment to those who have entered this life on like terms.2 His words suggest that Christianity has something rather important to say about equality. Lactantius was tutor to Crispus, son of the first Christian Emperor, Constantine. He was one of the first Christian thinkers to integrate Roman and Christian ideas of justice, and equality took central place in his thought.3 Against the background of deeply rooted and intertwined social hierarchies within Roman society he proclaimed the moral superiority of Christianity in precisely this respect: ‘we address one another as “brother”, since we believe we are one another’s equals’.4 But he rejected two alternative visions of equality: Platonic communitarianism in which everything—property,

232  Julian Rivers women and children—are possessed in common, and classical social contractarianism,5 in which society is based on an original compact between individuals. For Lactantius, the derivation of the entire human race from one original couple was what made all people one family and so also one another’s equals. Many centuries later, the Universal Declaration of Human Rights (UDHR, 1948) opened with the striking claim that “recognition of the inherent dignity and of the equal and inalienable rights of the members of the human family is the foundation of freedom, justice, and peace in the world.” Article 1 continues, “all human beings are born free and equal in dignity and rights.” It is not hard to see the parallel, and a full account of the relationship between Christianity and equality would enable us to trace the long and twisted threads which connect Lactantius to the UDHR and beyond to our own current preoccupations with equality. Such an account would be by no means straightforward. It is undeniable that for much of its long history, Christianity has been at least as much concerned with other political values, such as peace, order, security, liberty, and prosperity. A considerable body of historic Christian political thought is also, quite literally, hierarchical. As for the present, one cannot now mention Christianity and equality in the same breath without being aware of several recent cases exposing tensions between Christians and new equality law norms, particularly around questions of sexual identity, orientation, and gender. Not only is there a considerable diversity of views about equality within what is a broad and complex moral tradition, the very label “Christian” admits only of permeable boundaries, since the sources of moral authority for Christians include those common to all human beings. And Christians should be the first to acknowledge the extent to which we are bound up in the social and moral conventions of our society, with all their systemic injustices, as well as our general human inability to live up to the standards we profess. But in spite of all these caveats, Christianity has something important to say about equality; it also has something to say about the third element of this chapter’s topic—global law. Lactantius’s case for equality is inseparable from a claim to universality. He wrote in the context of a social revolution in which a persecuted religion of the marginalized had overrun the known world. Against all the odds, a religion with global aspirations had succeeded. Once joined to Roman imperial ideology, it became plausible to imagine new forms of global justice and global law. In modern times, the idea of global law is relatively new and is best explained by way of example. In April 2008, a group of academics, legal practitioners, and human rights activists gathered in London under the auspices of the Equal Rights Trust. They met out of a perceived need to harmonize and strengthen existing legal provisions across the world relating to protection against discrimination and the promotion of equality. They did so by formulating a new Declaration on Principles of Equality, designed to reflect “a moral and professional consensus

Christianity and equality in global law 233 among human rights and equality experts.”6 The twenty-seven propositions contained in that declaration not only represent a distillation of norms from several sources in international human rights law, but also are aspirational in the sense that they “level up” from the particularities of specific treaty provisions into a uniform system of equality precepts. These principles are not legislative; they have no enactment force in themselves. Rather, their authority rests on their rational persuasiveness and the extent to which they can be embraced as implicit in the existing binding rules of international and domestic law. Global law is not a system of law but a growing legal consciousness that it is possible to construe diverse elements of the law that already exist on a world scale as more or less coordinated expressions of normative convergence, or at least the coordinated management of divergence.7 Global law draws on familiar and emerging areas of law such as public and private international law, human rights law, comparative constitutional law, and global administrative law. In one sense, it is only a scholarly construct, but since law is always more than the discrete rules enacted by legislatures or adopted by courts, it has the power to shape the meaning of those rules as they continue to be developed and applied. In Robert Cover’s terms, it offers a new narrative in which to embed an older nomos.8 And as the example of the Declaration of Principles of Equality shows, that narrative claims to be motivated by humane goals and inspired by a vision of human amelioration. Global law is law in pursuit of global justice. It is arguable that the intellectual processes underlying the emergence of global law are no different from those involved in legal scholarship more generally. What must be acknowledged, however, is that the raw materials available at the preinterpretative stage are more diffuse, and the possibilities for reconstruction more diverse. While the claim that equality must figure within any plausible account of the principles of global law is probably uncontroversial, at least among intellectual elites, what equality amounts to and requires is much less clear. Equally eminent political philosophers can take diametrically opposed positions: equal concern and respect may be the sovereign virtue of a just political order,9 or equality may be a purely formal idea, a mere by-product of other substantive political principles.10 Equality is surely the most demanding and the most elusive of political principles. How, then, can we connect Christian political thought with both equality and the emergence of global law? In this chapter it is possible to give only the briefest of introductions. We start with the place of equality in the Christian scriptures.

Equality in the Christian scriptures Within the Christian scriptures there are substantial resources for the construction of a wide-ranging principle of equal human worth. At the root of this principle is a distinctive theological anthropology. To be human is to share in two fundamental identities which overshadow all others: “in Adam” and “in Christ.”11 All human persons are created in God’s image and are descendants of one original

234  Julian Rivers couple.12 It follows that human beings are brothers and sisters in one human family. Human alienation from God is also universal, and so is the human need of forgiveness and reconciliation with this God, whose just rule we collectively and individually rebel against.13 Likewise, those who are in Christ are new creations, all inspired with God’s Holy Spirit, all enjoying his gifts, brothers and sisters in a new family, fellow citizens of the kingdom of heaven, in which there is no distinction of race, rank, or gender.14 These two fundamental identities are the basis of one of the most enduring Christian political ideas: the doctrine of two cities or societies, that of the world with its government and laws, and that of the church.15 There is a basic moral equality of human persons within each. The Old Testament narrative of Israel contains numerous and surprising applications of equality.16 The land was divided up according to tribes and families to ensure universal and roughly proportionate access to the means of production.17 The Jubilee system expresses a periodic reversal of accumulated debt and inequality to restore that original equitable distribution.18 This is arguably the ideal economic model: “endowment-blind and ambition-sensitive.”19 So the prophets rail against those who heap up wealth and estates and who sell the poor “for a pair of sandals.”20 Grabbing the land of others is a central target of prophetic critique.21 Instead, and repeatedly, the law and the prophets insist that justice requires special concern to be shown to “the widow, the orphan, and the alien,” a stock image of the vulnerable and oppressed.22 In addition, in the texts describing the premonarchical period, there is some idea of political equality. Each Israelite and the “whole assembly” of Israel are God’s covenant partners. Israel is not to choose a king, because God is their king, who has entered into treaty with them to rescue them from slavery and constitute them a people at Sinai.23 The hostility to kingship is also driven by concern about the inevitable accumulation of wealth implicit in ancient kingship. “He will take your sons . . . and your daughters . . . the best of your fields and vineyards . . . the best of your cattle and donkeys . . . and you yourselves will become his slaves.”24 God saved the people from slavery and gave them a land; human kings do the precise opposite. When Israel finally succumbs to cultural pressure, their king is to be one of them, moderate in power and wealth, subject to the law.25 There is equality before the law as well.26 The Israelite law codes are distinguished from other contemporaneous codes of the ancient Near East by the absence of class-based punishments depending on the status of the parties.27 This classlessness is rooted in the character of God, who is the just judge of all.28 God shows no partiality or favoritism; he is no respecter of persons.29 So human judges are to imitate him in this.30 The Kingdom of God announced by Jesus of Nazareth is characterized by a Great Reversal. When Jesus’s birth is announced to Mary, she sings of the God who brings down rulers from their thrones and who lifts up the humble; the God who fills the hungry with good things but sends the rich away empty.31 Of course! Israel’s national narrative tells of a God who consistently prefers the weaker party, who overlooks the first-born.32 Jesus’s ministry is radically inclusive, extending to rich and poor, men and women, foreigners and fellow citizens, the socially excluded

Christianity and equality in global law 235 and the respectable.33 This is not just what God does, it is who God is: the Son of God “did not consider equality with God something to be clung on to, but took the nature of a slave.”34 He who was rich became poor, so that we through his poverty might become rich.35 God made him who had no sin to be sin for us, so that in him we might become the righteousness of God.36 The call at the heart of Christian ethics to love God completely and to love our neighbor as ourselves is a call to love a God who is like this, and to treat each other equally in response.37 So in the Kingdom that Jesus proclaims, and for which we long, those who exalt themselves will be humbled, and the humble will be exalted;38 those who have good things in this life will receive bad things in the life to come, but those who had bad things will receive good;39 the blind will see, and those who think they can see will be blind;40 the foolish will be wise and the wise actually foolish;41 the first will be last and the last first, the least will be greatest and the greatest least.42 This saying is applied in the gospel narratives to a wide range of contexts of hierarchy: rich/poor, leader/ follower, lifelong believer/deathbed convert, adult/child, Jew/Gentile. The church is called to live in the light of God’s Great Reversal. This is what grounds the claim that in Christ all human distinctions and hierarchies melt away: neither Jew nor Greek, neither slave nor free, neither male nor female, neither adult nor child, neither rich nor poor, neither fit nor disabled, neither “moral” nor “sinful.”43 Thus the primitive church “had all things in common; they would sell their possessions and goods an distribute the proceeds to all, as any had need.”44 In what may be the earliest recorded example of positive discrimination, one of the first acts of the apostles was to make special provision for Greek-speaking widows.45 Paul was concerned to wean the Thessalonians from their dependence on abusive clientpatron relationships and to encourage all to work for themselves, so that they could in turn be generous to those in need.46 When he asked the Corinthian Christians to be more intentional about their financial support for the poverty-stricken church in Jerusalem, he insisted that he was not seeking to reverse their fortunes—simply that there should be equality of mutual support.47 And he appealed to yet another powerful Old Testament image: the provision of manna in the wilderness. “He who gathered much did not have too much, and he who gathered little did not have too little.”48 So, also, James excoriated as “judges with evil thoughts” those in the church who paid greater respect to the wealthy than to the poor.49 All are to live as brothers and sisters in the church, enjoying the transforming work of the Holy Spirit, sharing in His gifts, and in the age to come representing all nations now united (the real, eschatological United Nations), worshipping before the throne of God.50

Equality as a basic value in the Christian political tradition What is the relationship between the scriptural images and precepts which have just been sketched out and our foundational modern ethical commitment to equality? First, there is a historical question about the way in which ideas of equality have been mediated through Christian political theory and practice. Of course, such an argument will never be uncontroversial, since questions of historical causation are

236  Julian Rivers complex and contested. It would take considerable effort to trace that argument through two thousand years of history, although Nietzsche was certainly in no doubt about the (malign) cumulative egalitarian effect of Christianity on Western civilization. Here, there is only space to touch on one period by way of example: the Christianization of the Roman-Greek empire in the fourth century ce. Reading Lactantius’s Divine Institutes, one could be forgiven for thinking that Roman status differences are not so much deconstructed as evaded. At times, in early writings, the Christian church seems rather to be a place of escape from a society which remains untouched in its hierarchical constitution. For example, the apostle Paul’s comments on slavery undermine the master-slave distinction in the church and are critical of slave-trading, but they avoid seeking social transformation.51 Perhaps given the cultural embeddedness of slavery, they could do no other.52 However, that equality is no mere spiritual ideal or separatist aspiration can be seen in the writings of Ambrose (339–97), bishop of Milan, a man who quite literally brought the emperor Theodosius to his knees.53 Ambrose’s work The Story of Naboth is a vigorous diatribe against wealth, the oppression which accompanies it, and the moral poverty and slavery it generates in the hearts of those captivated by it. In more positive vein, his Duties of the Clergy praises the virtue of liberality. Liberality is expressed in multitudinous ways, whether through financial or practical assistance: distributing food, redeeming prisoners from enemy captivity, releasing slaves, rescuing men from slaughter, women from rape and sexual assault, reuniting families, repatriating citizens, assuming debts, educating children, acting as guardian for orphans, providing dowries for young women. Above all, Ambrose insisted, liberality should be methodical and proportionate, aware of the possibility of abuse and the need to distribute limited resources fairly. It required the rational administration of welfare. Ambrose lived through a time when the institutions of the church were brought within the imperial administrative structure. The impact of the church was not simply at the level of ideas. The transformative effect arose from the institutionalization of these ideas into church practices, which survived into the medieval period, even as the Roman imperial administration crumbled.54 The most radical of these practices was monasticism, which in its central vows of poverty, chastity, and obedience required the deliberate rejection of the normal bases of human hierarchy. This rejection of hierarchy also played an incalculable role in shaping later medieval practices of economic development, education, healthcare, and the mitigation of poverty. Of course, the reality was never as radical as the vision. There is evidence that as the Christian church gained in social acceptability and political power through the fourth century, its critical edge was muted. Old Roman aristocratic sensibilities were adopted as well as adapted. But that there was nevertheless a revolutionary effect on moral and political sensibilities seems undeniable.55 Even if the historic cultural influence of Christianity was significant, it does not follow that we still need such a metaphysical framework today. However, some political philosophers think that we might. The argument is mounted in exemplary form by Louis Pojman.56 Pojman reviews a wide range of modern secular theories of justice, which are avowedly “metaphysically unambitious,” to use Ronald Dworkin’s term. They all presuppose equal human worth but are singularly incapable of justifying

Christianity and equality in global law 237 that presupposition. It seems a mere article of faith, and an implausible one at that. Human beings vary enormously in gifts, skills, and moral character. Why, and in what sense, would we ever believe that a Mother Teresa and an Adolf Hitler are of equal worth? Modern egalitarianism seems to be a hangover from older metaphysically ambitious theories, predominantly those of Christianity. If we are to displace the clear evidence of human inequality all around us, do we not still need something similar? Jeremy Waldron’s writings on equality share this thesis. In God, Locke, and Equality, Waldron shows at length how Locke’s political theory, which stands behind so much modern liberal democratic constitutionalism, is deeply indebted to his slightly unorthodox, but nonetheless recognizably Christian, theology.57 In particular, the biblical creation narrative provides an essential moral foundation. Jeremy Waldron’s closing words are as follows: Equality cannot do its work unless it is accepted among those whom it consecrates as equals. Locke believed this general acceptance was impossible apart from the principle’s foundation in religious teaching. We believe otherwise. Locke, I suspect, would have thought we were taking a risk. And I am afraid it is not entirely clear, given our experience of a world and a century in which politics and public reason have cut loose from these foundations, that his cautions and suspicions were unjustified.58 In more recent work, Waldron has returned to this idea, suggesting that if humans are to be accorded equal moral worth, we have to be able to tell the same story of “creation, life, faith, sin, penitence, and redemption” about each of us.59 Given the obvious differences between human beings, it is unlikely that some single common quality or attribute of the human person will be able to ground equality; rather, the foundation for human equality needs to have this dynamic and relational character. Relationality with God also lies at the heart of another Christian philosopher’s defense of the inescapable metaphysical presuppositions needed to ground equal rights. In Wolterstorff’s view, we each have inestimable worth because we are each loved by God.60 The response to arguments such as those of Pojman, Waldron, and Wolterstorff mimics that of the Marquis de Laplace: “I have no need of that hypothesis.” It is, of course, undeniable that there are plenty of agnostics and atheists committed to equal human worth (as well as plenty of theists who are not!). It is certainly possible to construct a commitment to human equality out of a number of basic intuitions and practices. The problem is that from a theistic perspective, such constructions look decidedly jerry-built. For the Christian, placing equal human worth at the foundation of global law is a matter of fidelity to the way things really are.

Equality before and within the law What does it mean to take equal human worth seriously as a foundational principle of law? One of the oldest applications of basic equality is equality before the law. Equality before the law is the idea that there should be no differences in treatment between human beings when we are confronted by legal institutions

238  Julian Rivers and legal officials. Justice should be administered impartially, or, as British judges swear on taking office, “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will.”61 We have already seen that there are clear examples of this idea of legal equality in the Christian scriptures, and there is evidence that once Christian bishops were included in the judicial system of the Roman Empire, their relative immunity from corruption resulted in considerable popularity.62 The principle can be found in the Universal Declaration of Human Rights (UDHR, 1948) as well as the International Covenant on Civil and Political Rights (ICCPR, 1966), regional instruments, and numerous constitutions. For example: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.63 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.64 One might think that equality before the law is logically redundant. After all, it simply seems to amount to the requirement that the law should be followed and rights respected. But this is to ignore the fact that law is implemented by real, living, situated human beings, embedded in networks of social relationships, subject to cultural assumptions and pressures. The ideal of equality before the law guards against the ever-present risk of distortion and subversion. Nor is equality before the law a purely negative value. Lawyers and legal officials may be disinterested and fair-minded, but the quality of advice and representation people receive is inevitably dependent on their wealth and social status. And once one remembers that the vast majority of law is socially enforced, equality before the law depends on a widespread and spontaneous commitment to legality. So even equality before the law, which at first sight seems so unambitious, has a questing, idealistic orientation, looking towards a society in which the practice and experience of law is not distorted by any of the inequalities of power resulting from the innumerable markers of difference, including wealth and class, by which we human beings elevate ourselves over others. Equality before the law might be theoretically undemanding, but it is practically denied at every moment across the world. As the British judicial oath makes plain, equality before the law has nothing to say about the content of law. The law itself may contain the most invidious of distinctions, but this does not touch equality in its application. So long as those distinctions are applied uniformly and fairly, without reference to other distinctions not contained in the law, equality before the law is satisfied. Human rights instruments go further than equality before the law when they insist that the rights they protect should be secured to all. Thus the regular wording—“noone shall” and “everyone has the right”—implicitly secures legal equality. This

Christianity and equality in global law 239 equality within the law effectively recognizes that the same considerations which motivate the biased application of law may also unjustly motivate its content. This recognition is then reinforced expressly by articles found repeatedly in the core human rights treaties which ensure that rights are enjoyed “without distinction of any kind, such as race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth, or other status.”65 In the light of the more recent development of antidiscrimination law, the inclusion of property or wealth in the potential grounds of bias is important to note here. The French versions of the closing words make the universal nature of the ban even clearer: toute autre situation (any other situation). Of course, law depends on the drawing of distinctions. What is targeted here are those familiar distinctions of social situation which—from the perspective of a commitment to equal human worth—we know to be irrelevant to justice. For this reason, the International Covenant on Economic, Social, and Cultural Rights (1966) insists on nondiscrimination in the exercise of rights, even while recognizing that their full realization is a matter of incremental development.66 Regional human rights bodies such as the European Court of Human Rights have extended the reach of such nondiscrimination clauses by applying them to limitations of rights, as well as to other laws within the broader ambit of existing rights. Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2000) takes this development to its logical conclusion by prohibiting discrimination in the enjoyment of any right set forth by law.67 Equality within the law is sometimes treated rather dismissively, as a merely formal precursor to the introduction of a superior conception of substantive equality. Anatole France’s famous aphorism makes the point well: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”68 It is undoubtedly true that legal equality is a (limited) means to an end, and it is easy to see that the failure to draw distinctions may be unjust. But law is not simply a means to an end; it is a semiautonomous discursive practice which carries a symbolic significance of its own. This point was famously recognized by the United States Supreme Court in Brown v. Board of Education, when it rejected the “separate but equal” test of earlier case law.69 A distinction on grounds of race within the law is discriminatory regardless of the effect. The same implicit acceptance that there is a cost in express departures from legal equality can be seen in the International Convention on the Elimination of all Forms of Racial Discrimination (1965): Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for

240  Julian Rivers different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.70 In short, “special measures” are less than ideal and are a transitional expedient pending the adequacy of one law for all, at least in relation to race and sex. Equality before and within the law lies at the heart of the legal principle of equality. It is the most obvious expression of a commitment to equal human worth.

Antidiscrimination law When modern legal authors consider equality in relation to law, they normally think of antidiscrimination law. The development of antidiscrimination law has been a general feature of international human rights law as well of constitutions and legal systems in many developed states across the world since the 1960s. Tarunabh Khaitan argues persuasively that antidiscrimination law is a distinct branch of law designed to redress the abiding, pervasive, and substantial disadvantage suffered by one group as compared to its cognate group(s) by making it more likely that tangible benefits are distributed to the protected group in question.71 This formulation makes it clear that although discrimination is often also ruled out in relation to protected and already advantaged classes (e.g., men, whites), the purpose of the law as a whole is to ensure comparable advantages to those who are disadvantaged. In that sense, antidiscrimination law is quite different from equality before and within the law. It is for this reason that antidiscrimination law tends to read the list of protected characteristics rather more restrictively than does equality within the law. The recent history of antidiscrimination law includes the expansion of closed lists of protected characteristics, whether by legislative intervention or judicial development. Modern versions will often expressly include age, disability, gender identity, and sexual orientation as well. The Declaration of Principles on Equality suggests that grounds of discrimination are prohibited only where such discrimination: 1 Causes or perpetuates systemic disadvantage; 2 Undermines human dignity; or 3 Adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on the prohibited grounds stated above. Since social disadvantage is caused as much by private action as by the state, antidiscrimination law also goes beyond equality within the law by imposing antidiscrimination obligations on private actors such as those making provision for goods and services, education, and employment. Article 26 of the International Covenant on Civil and Political Rights (1966) seems to take this step in requiring the law to prohibit discrimination and guarantee equal and effective protection against discrimination in all contexts. The Declaration of Principles on Equality

Christianity and equality in global law 241 states simply that the right to equality “applies to all areas of activity regulated by law.”72 Antidiscrimination law has developed a formidable array of conceptual tools, including direct and indirect discrimination, positive discrimination, reasonable accommodation, harassment, and victimization. In human rights treaties, discrimination is usually defined as any distinction, exclusion or restriction made on the basis of a protected characteristic which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.73 In the first instance, this refers to direct discrimination: the drawing of unwarranted distinctions. In exceptional cases, even direct discrimination may be justified. A special case of direct discrimination arises when the justification of the distinction is precisely to bring about the effect of redressing past discrimination. For examples, quotas in university admissions or political party shortlists may be maintained for underrepresented groups. This is positive or reverse discrimination, and it is often controversial, not least because it departs from equality within the law. But in form, it is no different from other cases of justified direct discrimination. There is some debate whether international human rights law goes any further than direct discrimination. However, recent case law has seen regional human rights bodies finding violations in cases of indirect discrimination.74 This occurs in two quite distinct forms. In some cases, a distinction is relied on which seems at first sight innocuous, but which in reality correlates to a protected characteristic. A common example in the case-law concerns a distinction between the rights of full-time and part-time workers, which broadly correlates to a distinction between men and women. Nondiscrimination on grounds of sex rules out both expressly relying on sex as a ground for differentiation and relying on other distinctions which correlate to sex. We could call this implicit discrimination, as it is actually a form of hidden direct discrimination. In its other form, indirect discrimination arises when two or more people are treated in the same way, but the effect on them is differential. Typical examples include the imposition of general workplace rules on disabled persons or persons with religious beliefs and practices. These are experienced as particularly burdensome on account of the personal characteristics of the individual concerned. The presumption that general provisions which impose differential burdens are unjustified must be weaker than the presumption against drawing distinctions, because the application of a uniform provision has at least something going for it from the perspective of equality. But the burden of uniformity may still be excessive for some individuals. The question is how one establishes that the differential impact is excessive. At this point, an important current debate opens up. The uniform provision may be justifiable by reference to the general advantage flowing from it, or it may

242  Julian Rivers be justified only if it is not possible to make a workable and proportionate exception tailored to the individual (reasonable accommodation). To what extent are employers, for example, able to justify uniform business practices which impose differential burdens on their employees, by reference to the general advantage which accrues? In the context of disability discrimination, the Convention states, “In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.”75 Reasonable accommodation is relatively uncontroversial in the case of disabled persons because there is a consensus that it is unjust for the individual disabled person to bear the whole burden of their disability. To the extent that disability is socially constructed around a norm that benefits the able-bodied, it is right that the costs of that norm are (at least) shared, and ideally eliminated.76 This is much less clear in the case of religious diversity. Even if it is incorrect to assert simply that religions are “chosen”—they are not chosen any more than any other fundamental beliefs which are taken to be true—one still has to take responsibility for what one believes and how one acts in response. On this view, limitations on religious belief and practice may be justified by general norms which proportionately pursue legitimate aims of employers and others. Domestic jurisdictions vary, and the Declaration on Principles of Equality is agnostic on this point, simply noting in general terms that reasonable accommodation may be necessary across all protected characteristics.77

Substantive equality Equality within the law and antidiscrimination law are means to an end of an “equal society,” but what does that mean? This is the question answered by a conception of substantive equality. It treats equality as a political goal in a program of social change, and law as a tool for its achievement. Stated so broadly, there is no branch of law which does not relate in some way to such a project. For example, the prohibition on slavery says nothing about equality, yet slavery is one of the most extreme expressions of human inequality. Eliminating it is an equality goal, and the fact that one does so without mentioning the word is irrelevant. The same could be said of a whole host of other laws. Thinking about equality as the attribute of a transformed society is ambitious and controversial. For this reason, human rights law, which is built on consensus around minimum standards, contains fewer clues as to the ultimate vision of equality it aspires to. The clearest commitments are in relation to gender. For example: States Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.78

Christianity and equality in global law 243 This obligation applies not only in the workplace, in education, and before the law, but also in relation to marriage and family relations.79 Repeatedly in the Convention on the Elimination of All Forms of Discrimination against Women (1979), we read “on equal terms with men,” “the same rights as men,” or equivalent phrases. It is easy to see here a commitment to a liberal theory of gender equality in which male norms are taken as the baseline, and effort is directed to ensuring that women have the same opportunities as men. It is a defensible vision of social equality, but it is by no means uncontroversial.80 The Convention on the Elimination of all Forms of Racial Discrimination aims to eliminate division and promote racial integration; once again, one can detect a tendency towards a liberal as opposed to a multicultural agenda at work. The Convention on the Rights of Persons with Disabilities (2006) seeks to secure both “full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities” and “full and effective participation in society on an equal basis with others.” But in this case, abolishing discrimination means securing differential treatment. By contrast, when it comes to children, the Convention on the Rights of the Child (1989) is highly open-textured. Children are not adults, and what it means to treat them as equals is contested and variable: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.81 Here, allowance is made for different views of a child’s maturity and independence, as well as cultural variation in the role of different adults in the life of the child. Rather more expansively, the Preamble claims to take “due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.” Equality is not limited to the protected characteristics familiar from antidiscrimination law. The human rights treaties also refer expressly to democratic equality (equal suffrage and equal access to public service)82 and employment equality (equal pay for equal work, equality of opportunity).83 There is even a commitment to “an equitable distribution of world food supplies in relation to need.”84 But the most striking use of equality in a global context is not individual at all. The United Nations “is based on the principle of the sovereign equality of all its Members.”85 The principle of sovereign equality is foundational to classical international law. On this view, the human person is completely subsumed within the identity of their state. In the context of the United Nations, this principle of state equality is instantiated in concrete terms of representation: each member (state), from the largest to the smallest, may send up to five representatives to the General Assembly.86 Each has just one vote.87

244  Julian Rivers Yet we should not see this “sovereign equality of states” as diametrically opposed to equality as an individual right. The clue to their relationship can be found in Article 1(2) of the UN Charter: friendly relations among nations are to be based on respect for the principle of equal rights and self-determination of “peoples.” Here we have equality between peoples. The right of selfdetermination is a human right, and it is a right which manifests itself supremely in the right to form a sovereign state.88 In other words, statehood is not to be seen fundamentally as an obstacle to the realization of human rights, but as an expression of human right in its collective dimension. As applied to the principle of equality, it follows that we should not consider equality merely as a function of the relation between human beings as individuals, but also as a function of the relation between human beings as constituents of collective persons and bearers of collective identities, of which state citizenship is one of the most important. The most obvious collective identities to receive protection, which to some extent overlap with the right of self-determination of a people, are the “minority” and “indigenous people.” Article 27 of the ICCPR refers to “ethnic, religious or linguistic minorities,” and this may appropriately be treated as a group right, not merely an individual one.89 In short, global law takes seriously the human being as both an individual and a zoon politikon. To the extent that global law contains any commitment to an ultimate vision of an “equal society,” that vision is correspondingly complex, and we might even say conflicted. There is a tendency within human rights law to a liberal conception of equality, which is to say an identity-suppressing conception. However, the legacy of the older minorities-treaties approach, as of international law more generally, is to affirm and protect collective identities, which include ethnically and religiously aligned identities. In this sense, global law merely replicates familiar tensions between nationalism, cosmopolitanism, and multiculturalism which any complete theory of equality has to resolve.

Three limits to equality It is not possible in this context to develop a comprehensive critical account of the principle of equality from the perspective of Christian political theology. As has already been indicated, the scope of such a project would be substantial, and the range of opinions to be engaged too great. All that can be done here is to indicate three points of tension which need resolution.

Equality and ethical evasion Equality arguments can sometimes be used in a way which is ethically evasive or question-begging. This point is sometimes made in connection with the charge that equality is an “empty idea,” a purely formal structure into which any content can be poured, however liberating or oppressive.90 If one thinks—as Aristotle did—that some people are slaves by nature and that women are underdeveloped men, then equality means treating slavish people as slaves and women as

Christianity and equality in global law 245 inferior beings.91 In a postmodern age which is skeptical of any foundational moral claims, equality is a peculiarly attractive source for legitimating programs of political change. It seems to make it possible to mount rhetorically powerful arguments while masking the underlying value-choices. As Oliver O’Donovan once wryly remarked, “thus equality-arguments become the politician’s alchemy, producing the gold of judgment from the straw of non-committal stances.”92 Steven Smith puts this worry in the strongest possible form when he argues that equality is at root nihilistic.93 All it can do is sweep away distinctions without establishing what is good, and therefore which distinctions have moral salience. Equality is an “ethical bulldozer” which only clears the ground. But the charge of nihilism is overstated. As we have seen, the most basic precept of equality is that all human beings are equal in moral worth, and that they should enjoy equal basic rights as a consequence. That is by no means empty, although it is true that it still leaves open what those rights are. And that question does require some further theory of universal human goods. Equality can give rise to a different form of ethical evasion when it is used to foreclose legitimate disagreement about the value of personal beliefs and practices. Antidiscrimination law attaches not only to immutable personal characteristics but to a range of protected beliefs and actions. If this is then grounded in a version of substantive equality which seeks to secure widespread social acceptance and even celebration of those protected beliefs and actions, criticism and debate on related questions of truth and goodness become politically suspect. In response, it is important to emphasize the relationship between the principle of equality and the commitment to equal rights, which include freedoms of religion, belief, opinion, and expression. This does not mean that equality attaches only to supposedly immutable personal characteristics. Rather, it follows that antidiscrimination law is better seen in respect of protected beliefs and actions as a tool of mutual toleration, not of social transformation. It ensures that even though we disagree about fundamental questions of religion and personal ethics, we are each guaranteed access to the basic conditions of human existence and flourishing on the same terms.

Equality and social differentiation A different worry about equality concerns the scope of application of antidiscrimination law. The problem can be seen most clearly in relation to nondiscrimination on grounds of religion. It is entirely right that state officials should not discriminate between citizens of different religions in the provision of public services, and it is entirely right that a general “secular” employer should be under a similar obligation. We can—and do—argue about whether that obligation requires the exclusion of distinctive religious practices from public life or the workplace, or whether it requires recognition and accommodation, but the underlying norm is clear. However, it seems equally clear that the same obligation should not apply to a religious group itself. If a religious group is not permitted to distinguish on grounds of religion, it is vulnerable to losing its distinctive identity and purpose.

246  Julian Rivers Legal systems recognize this either by exempting religious groups from the operation of antidiscrimination law entirely or by creating tailored exceptions. However, the problem is not limited to religious groups in the narrow sense (churches, synagogues, mosques, temples, etc.) or to religious nondiscrimination alone. Many schools have a religious foundation. Hospitals and other charities can also have religious foundations. Religions themselves may impose restrictions of gender on their ministers, or restrictions of behavior and lifestyle on their members. We can debate the limits of the adjustments, but the requirements of equality cannot be exactly the same. This problem is not limited to “third sector” social institutions. Religious believers may engage in business and wish to adopt business practices in conformity with their opinions. How far should this be allowed? To some extent, the problem even applies to the state as a whole. States often have some sort of religious identity. How far is that permissible? In short, the worry here is that equality might be taken to legitimize an agenda of social de-differentiation in which distinctive groups and collective identities are undermined in the name of a rigorously individual equality.

Equality and political priorities A final tension concerns political priorities. The point has already been made that the legal principle of equality, expressed through equality within the law and antidiscrimination law, represents only a part of equality as a social goal. The worry here is that too much may be invested in “equality law,” resulting in distraction from more pressing equality concerns. If there is any constant theme throughout the Christian political tradition of equality, it has been a concern with the distribution of power in general, and the power which comes from wealth in particular. In modern terms, the problem is multifactorial social deprivation.94 Antidiscrimination law may play no more than a minor role in addressing its root causes. While “reduced inequalities” and “gender equality” are two of the seventeen UN Sustainable Development Goals, one might think that other goals such as programs to end hunger and to provide good healthcare, quality education, clean water, and decent work for all are more significant objectives. For the recognition that justice, and therefore equality, is so much more than law also lies close to the heart of Christian political thought.

Conclusion In the space of this chapter, it has been possible only to touch on some key elements of a complex conversation about equality in modern law. But it has, at least, been possible to catch a glimpse of what Christian political thought might have to offer that debate: robust metaphysical foundations in response to those who would doubt the value of equality; a tradition of narratives and images which can breathe ethical life into the bloodless abstractions of law; a strong commitment to the equality of all persons before and within the law; a conception of

Christianity and equality in global law 247 antidiscrimination law which is respectful, rather than destructive of other rights; an approach to substantive equality which balances individual and collective identities, and which cares about all forms of disadvantage, not just those connected with protected characteristics; and a reminder of the limits of law in general, and equality law in particular, in achieving global justice. The challenge is to weave these hints and tendencies into a complete theory of equality which is both authentically Christian and evidently directed towards the good of all. It is hoped that enough has been said here to suggest that such an endeavor would be well worth pursuing.

Notes 1 I am grateful to Jonathan Burnside, Rafael Domingo, Ian Leigh, and John Witte, Jr. for their comments on an earlier draft. 2 Lactantius, Divine Institutes, 5.14 (trans. Oliver and Joan Lockwood O’Donovan). 3 The O’Donovans claim that he was “the first Christian thinker to subject the idea of justice to serious analysis.” See O’Donovan and O’Donovan, 46–47. 4 Lactantius, 5.15. 5 Such as the theory Plato puts in the mouth of Glaucon in book 2 of The Republic. 6 www.equalrightstrust.org/content/declaration-principles-equality. Accessed April 9, 2019. 7 See Walker. 8 See Cover. 9 See Dworkin. 10 Raz, ch. 9. 11 Romans 5:12–21. 12 Genesis 3:20; Acts 17:26. 13 Romans 3:23–24. 14 1 Corinthians 12:12–13; Galatians 3:26–28; Colossians 3:11. 15 See, classically, St. Augustine, The City of God Against the Pagans (411–26), esp. book 15.1 for the relationship between the two cities and Adam/Christ. 16 See Berman. 17 Deuteronomy 3:12–20; Joshua 13–22. 18 Leviticus 25. 19 This is Dworkin’s preferred model: Sovereign Virtue, 89; cf. Hutton. 20 Amos 6:1–7; 2:6. 21 1 Kings 21; Isaiah 5:8–10; Micah 2:1–2. 22 E.g., Deuteronomy 10:18; 14:29; Psalm 94:6; Jeremiah 7:6; 22:3; Ezekiel 22:7; Zechariah 7:10; Malachi 3:5. 23 Exodus 19:3–8; Deuteronomy 5:22. 24 1 Samuel 8:10–18. 25 Deuteronomy 17:14–20. 26 Exodus 23:6–8; Leviticus 19:15. 27 See, e.g., Code of Hammurabi (c. 1754 bce), which distinguishes extensively according to the relative status of slaves, freeborn, and freedpersons. 28 2 Chronicles 19:7. 29 Proverbs 17:15; Romans 2:11; Ephesians 6:9; Colossians 3:25; 1 Peter 1:17. 30 Deuteronomy 25:1. 31 Luke 1:52–53. 32 Summed up in the prophetic words, “Jacob I have loved, but Esau I have hated”: Malachi 1:2–3.

248  Julian Rivers 33 See the gospels generally! John 4 will suffice as an example of outstanding intersectionality. 34 Philippians 2:6. 35 2 Corinthians 8:9, 13. 36 2 Corinthians 5:21. 37 Matthew 22: 34–40. 38 Luke 14:11; 18:14. 39 Luke 16:25. 40 John 9:41. 41 1 Corinthians 1:27–28. 42 Matthew 19:30; 20:16; Mark 9:35; Luke 13:30; Luke 9:48. 43 Galatians 3:26–28. 44 Acts 2:44–45. 45 Acts 2:6; 6:1–7. 46 1 Thessalonians 4:11–12; 2 Thessalonians 3:6–10. 47 2 Corinthians 8:1–15. 48 Exodus 16:18. 49 James 2:1–9. 50 Revelation 7:9–10. 51 See Colossians 3:22–4:1; 1 Timothy 1:10; and the remarkably countercultural letter of Philemon. A similar, although considerably more complex and controversial, case can be made in relation to the position of women. 52 Estimates of the size of the slave population vary considerably. It is often claimed that 30 to 40 percent of the Italian population were slaves in the first century bce. Kyle Harper reviews the evidence for the later Empire as a whole and lands on a figure of 10 percent. See Harper, Slavery, ch. 1. 53 Excerpts in O’Donovan and O’Donovan, 66–88. 54 See Siedentop. 55 This is the thesis of David Bentley Hart in Atheist Delusions. For a parallel account of sexual ethics, see Harper, From Shame to Sin. 56 See Pojman. 57 Waldron, God, Locke, and Equality. 58 Ibid., 243. 59 Waldron, One Another’s Equals, 205. 60 Wolterstorff, ch. 16. 61 Promissory Oaths Act 1868, s. 4. 62 Augustine was not the only bishop to complain about the time this absorbed. See Lamoreaux. 63 UDHR, art. 7; see also ICCPR, art. 26. 64 UDHR, art. 10; see also ICCPR, art. 14(1). 65 UDHR, art. 2; see also ICCPR, art. 2(1). 66 ICESCR, art. 2. 67 Art. 1(1). 68 Le Lys Rouge (1894). 69 Brown v. Board of Education, 347 US 483 (1954). 70 CERD, art. 1(4); see also CEDAW, art. 4(1). 71 See Khaitan. 72 Art. 8. 73 See, e.g., CERD, art (1); CEDAW, art. 1(1); CRPD, art. 2. 74 D.H. v. Czech Republic (57325/00), November 13, 2007 (ECtHR, Grand Chamber). The most recent major human rights treaty (CRPD, 2006) expressly states that it extends to “all forms of discrimination including denial of reasonable accommodation.” This must refer to indirect discrimination.

Christianity and equality in global law 249 5 CRPD, art. 5(3). 7 76 See the commitment to “universal design” in CRPD, art. 4(f ). 77 Art. 13. 78 CEDAW, art. 5(a). 79 Ibid., art. 16. 80 See, e.g., Cain. 81 CRC, art. 5. 82 ICCPR, art. 25. 83 ICESCR, art. 7. 84 Ibid., art. 11(2)(b). 85 Charter of the United Nations (1945), art. 2(1). 86 Art. 9(2). 87 Art. 18(1) 88 ICCPR, art. 1; ICESCR, art. 1. 89 McCorquodale, 361. 90 See Westen. 91 Nichomachean Ethics V.3; Politics I.5. 92 O’Donovan, Ways of Judgment, 33. 93 See Smith. 94 See White and, for a vigorous Christian case along similar lines, Forrester.

Bibliography Allan, T.R.S. Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism. Chapter 7. Oxford: Clarendon Press, 2003. Berman, Joshua. Created Equal: How the Bible Broke with Ancient Political Thought. Oxford: Oxford University Press, 2008. Cain, Patricia A. “Feminism and the Limits of Equality.” Georgia Law Review 24 (1990): 803–48. Cover, Robert. “Foreword: Nomos and Narrative.” Harvard Law Review 97 (1983– 84): 4–68. Durham, W. Cole, Jr., and Donlu Thayer. Religion and Equality: Law in Conflict. London and New York: Routledge, 2016. Dworkin, Ronald. Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press, 2000. Forrester, Duncan B. On Human Worth. London: SCM Press, 2001. Ghanea, Nazila. “Religion, Equality, and Non-Discrimination.” In Religion and Human Rights: An Introduction, edited by John Witte, Jr. and M. Christian Green. Oxford: Oxford University Press, 2011. Greenawalt, Kent. “Religion and Equality.” In Christianity and Human Rights: An Introduction, edited by John Witte, Jr. and Frank S. Alexander. Cambridge: Cambridge University Press, 2012. Harper, Kyle. From Shame to Sin: The Christian Transformation of Sexual Morality in Late Antiquity. Cambridge, MA: Harvard University Press, 2016. Harper, Kyle. Slavery in the Late Roman World, AD 275–425. Cambridge: Cambridge University Press, 2011. Hart, David Bentley. Atheist Delusions: The Christian Revolution and Its Fashionable Enemies. New Haven and London: Yale University Press, 2009. Hutton, Will. “Leviticus Chapter 25 Is a Passage That Makes Das Kapital Look Tame.” The Observer, October 3, 1999.

250  Julian Rivers Khaitan, Tarunabh. A Theory of Discrimination Law. Oxford: Oxford University Press, 2015. Lactantius. “Divine Institutes.” In From Irenaeus to Grotius: A Sourcebook in Christian Political Thought, 100–1625, edited by Oliver O’Donovan and Joan Lockwood O’Donovan. Grand Rapids, MI: Eerdmans, 1999. Lamoreaux, John C. “Episcopal Courts in Late Antiquity.” Journal of Early Christian Studies 3 (1995): 143–67. McCorquodale, Robert. “Group Rights.” In Moeckli, et al., International Human Rights Law, 3rd ed. Moekli, Daniel. “Equality and Non-Discrimination.” In Moeckli, et al., International Human Rights Law, 3rd ed. Moekli, Daniel, Sangeeta Shah, and Sandesh Sivakumaran. International Human Rights Law. 3rd ed. Oxford: Oxford University Press, 2018. O’Donovan, Oliver. The Ways of Judgment. Grand Rapids, MI: Eerdmans, 2005. Pojman, Louis. “On Equal Human Worth: A Critique of Contemporary Egalitarianism.” In Equality: Selected Readings, edited by Louis P. Pojman and Robert Westmoreland. New York: Oxford University Press, 1997. Raz, Joseph. The Morality of Freedom. Oxford: Oxford University Press, 1986. Siedentop, Larry. Inventing the Individual: The Origins of Western Liberalism. London: Penguin, 2015. Smith, Steven D. “Equality, Religion and Nihilism.” In Research Handbook on Law and Religion, edited by Rex Ahdar. Cheltenham: Edward Elgar Publishing, 2018. Volf, Miroslav. Exclusion and Embrace: A Theological Exploration of Identity, Otherness and Reconciliation. Nashville: Abingdon Press, 1996. Waldron, Jeremy. God, Locke, and Equality: Christian Foundations of John Locke’s Political Thought. Cambridge: Cambridge University Press, 2002. Waldron, Jeremy. One Another’s Equals: The Basis of Human Equality. Cambridge, MA: The Belknap Press, 2017. Walker, Neil. Intimations of Global Law. Cambridge: Cambridge University Press, 2015. Westen, Peter. “The Empty Idea of Equality.” Harvard Law Review 95 (1982): 537–96. White, Stuart. Equality. London: Polity Press, 2007. Wolterstorff, Nicholas. Justice: Rights and Wrongs. Princeton, NJ: Princeton University Press, 2008.

15 The principle of the common good George Duke

The starting point for an adequate treatment of the common good in Christian medieval thought is an acknowledgment of the breadth and diversity of the concept’s application across the domains of theology, metaphysics, politics, and ethics. An interpretation of the theory of the distinctively political common good developed by St. Thomas Aquinas, for example, requires attentiveness to its relationship with principles such as the participation of individuals in the common good of God and God’s communication of goodness. Although contemporary political theorists also appeal to the common good, they are much more circumspect regarding the (at least) explicit use of theological or metaphysical assumptions in the political and legal domains. It is instructive in this context to compare the definitions of the common good in John Rawls’s liberal theory of justice and John Finnis’s contemporary variant of natural law theory. In a chapter arguing for the priority of liberty as a political principle, Rawls defines the common good as “certain general conditions that are in an appropriate sense equally to everyone’s advantage.”1 This vague definition of the common good reflects Rawls’s prioritization of individual persons and their liberty over the goods that would be paramount for a teleological theory, whether utilitarian or perfectionist. When we turn to Finnis’s definition, the contrast with Rawls is perhaps not so great as one might expect. Finnis defines the common good as a set of conditions which enables members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value(s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community.2 While Finnis’s references to both the reasonable objectives or values which individuals can realize in their own lives and collaboration distinguish his definition from that of Rawls, the common good is nonetheless conceived instrumentally in terms of the set of conditions which allow individuals (“themselves”) to pursue goods in their own lives. These definitions reveal much about the status of the concept of the common good in contemporary liberal political discourse. On one hand, it is difficult to

252  George Duke imagine a political theory of any kind, no matter how individualistic or libertarian, which totally neglected a notion of public benefit or the material conditions that allow individuals to live in common. On the other hand, both definitions regard the common good as instrumental or aggregative insofar as their ultimate point of reference is the advantage of each and every individual. Although one can certainly make the case that both definitions presuppose, despite not explicitly mentioning, a common end beyond the many interests of individuals, they preclude reference to integral wholes or distinctive goods of community that possess a reality distinct from the aggregated sum of their many parts. The common good thus retains a place within liberal theories of politics, but in an attenuated form. One plausible source of the tendency for contemporary political theories to articulate thin conceptions of the common good has recently been identified by Adrian Vermeule.3 According to Vermeule, liberal constitutional theories tend to be animated by a shared notion of the “common bad” rather than the common good. The common bad refers here to the threat of tyranny, associated with the Communist and Fascist regimes of the twentieth century. This threat has resulted, Vermeule suggests, in the dominance of the view that “we can’t agree on the good, but we can limit authority to prevent the agreed-upon bad, and this will allow us to pursue our individual life plans.”4 One can of course trace the lineage of such a view much further back in time than the twentieth century, as it is at least implicit in aspects of the theories of Hobbes and Locke in the seventeenth century. Regardless of contested questions of historical origins, however, it is uncontroversial that decisions must be made in any political community as to the distribution of benefits and burdens and the legal regulation of conduct so that individuals can coexist in relative harmony. The dominance of the common bad over the common good results less in the eclipse of the latter than in a particular interpretation of the common good which renounces appeals to theological or metaphysical principles and concentrates rather upon its instrumental aspects. In this chapter, I contrast medieval Christian theories of the common good with contemporary theories as a way of exploring some of the themes sketched in the previous paragraphs. The first section examines the standard contrast between the Augustinian and Thomistic Christian interpretations of the common good. The second section turns to aggregative and instrumental accounts of the common good offered by two contemporary theorists working in the natural law tradition. The chapter closes with brief reflections on the common good as a normative principle.

Augustine and Aquinas Expositions of the Christian understanding of the political common good are often framed as a comparison between Augustine and Aquinas.5 If undertaken with the necessary caution, this approach can serve as a helpful way into the different aspects of the Christian common good.

The principle of the common good 253 In book 19 of De civitate Dei contra paganos (c. 426), Augustine presents political authority as a consequence of the Fall. Political authority is hence a remedy for sin which aims at earthly peace as a common good enabling humans to secure things necessary for mortal existence.6 Although Christian emperors who place their power at the service of the majesty of God may in one sense be considered virtuous, most regimes which pursue the attachments associated with the political common good—in particular, civic glory—are not genuinely virtuous at all. The political common good is accordingly ascribed a limited and instrumental role in the development of Christian virtue, which is in turn identified with the love of God. Members of the City of God are brought together by their common love of God, which makes one heart out of many.7 The Earthly City, by contrast, was founded by Cain and a love of self that extends so far as to constitute contempt for God.8 In Summa Theologiae (c. 1265–74), by contrast, Aquinas ascribes the political common good a constitutive role in the development of virtue. Aquinas identifies the common good with the peace and justice of a well-ordered political community. Peace is both the proper ordering of citizens and the absence among them of strife and discord.9 Justice, understood as an ethical virtue, concerns our dealings with others and implies a certain form of equality.10 Aquinas’s association of the common good with general or “legal” justice is indebted to the rediscovery of Aristotle’s ethical and political works in the thirteenth century.11 In line with Aristotle, Aquinas regards general justice (complete virtue, but in relation to other persons) as in essence (if not conceptually) the same as all the ethical virtues. General justice is the justice which governs citizens of a political community insofar as they are citizens, and as the disposition to virtuous activity in relation to other citizens, it is necessarily ordered towards the common good.12 Aristotle’s influence is also evident in Aquinas’s famous definition of law as ordinances of reason that are promulgated for the common good.13 Read in context, the definition suggests that the lawmaker has a positive role to play in the inculcation of citizen virtue.14 Although legislation certainly does not reach as far as the inner life of the will for Aquinas,15 it does extend beyond the maintenance of “social stability” to the active promotion of virtue.16 In contrast to the Augustinian position, therefore, Aquinas’s teaching postulates the common good as “genuinely perfective and not merely a remedy for sin.”17 Although not inaccurate as a general sketch of the Augustinian and Thomistic interpretations of the political common good, this picture does require some supplementation. The political common good is only one aspect of the Christian common good, and certainly not the most fundamental. For Augustine, the political common good has a subordinate status in relation to the ultimate good of communion with God.18 In his Sermo 355 discussion of the practices of the first Christian community in Jerusalem, for example, Augustine says that what is common (de communi) is “a substantial and extremely fertile estate,” and he identifies it with ipse Deus.19 All persons can participate in this common good without jealousy and diminishment. The fertility of such an estate reflects the distinction between what is one’s own (proprium) and what is in

254  George Duke common (in commune). Consistent with Neoplatonic teaching, Augustine claims that truth and beauty are the proprium of no one and can be enjoyed equally by all who love them.20 In the words of 1 Corinthians 13:5, “love does not seek its own.”21 It is our fallen tendency to turn away from the truth that God belongs to us all and should be enjoyed in communion which leads Augustine to recall the lament of Paul from Philippians 2:21 that all seek their own interests and not that of Jesus Christ.22 These points explain why Augustine, in the De civitate Dei discussion of political authority as a remedy for sin, directs us to participate in a “fully ordered and fully harmonious community (societas) in which people can enjoy God and one another in God.”23 While the common good of narrowly political society is limited, Augustine’s work evinces a robust commitment to the common good in a broader sense encompassing a society of believers and love and communion with God. Aquinas’s conception of the common good is mediated through his teacher Albertus Magnus’s synthesis of sources, including Aristotle, Cicero, Augustine, Boethius, and the Neoplatonism of Pseudo-Dionysius. While the reintroduction of Aristotle’s practical writings leads Albertus to develop a more robust theory of the specifically political common good than is found in Augustine, the ultimate common good remains that of God. God is the supreme good (summum bonum) and the source of all goodness in the universe (bonum in communi) through “communication” of the good.24 Love (caritas) does not seek its own good, but rather prefers what is common (caritas non quaerit quae sua sunt quia communia propriis antepont).25 For Aquinas, following Albertus, the common good is also an analogical concept principally applicable to the universal good of God. This inclusive common good is the perfect good towards which our love should be ordered: each part of Creation ultimately loves its own good because of the common good that is found in God.26 Aquinas’s metaphysical theory of goodness results in a “general principle that the common good is superior to the individual good.”27 The question of the application of theological and metaphysical principles to the political domain in Aquinas is nonetheless extremely complex. One way into the topic is to examine Aquinas’s identification of general justice with the common good and the definition of law as rational ordinances for the common good, both mentioned earlier in more detail. Following Aristotle, Aquinas defines general (or “legal”) justice as complete virtue, considered from the perspective of relations with other persons.28 As a disposition to act correctly with respect to what is fearful, the virtue of courage, for example, can be considered either from the perspective of an individual’s soul or in terms of their relationship with others. General justice is all of the virtues considered under this relational aspect, and it is, for Aquinas, ordered to the common good.29 Actions of virtue, in other words, serve the political community and can be understood as parts that are subordinate to the good of the whole (bonum partis est ordinabile in bonium totius).30 Conversely, Aquinas contends that the common good serves as a telos that is conducive to members of a

The principle of the common good 255 political community developing the cardinal virtues of courage, temperance, and prudence.31 A resolute soldier, for example, can cultivate a virtuous disposition to be courageous by serving the political common good. This is the central sense in which for Aquinas, in contrast to Augustine, the common good of a political community—and the exercise of authority necessary to promote it—is perfective and not primarily a reflection of our postlapsarian condition. Aquinas’s theory of general justice as directed to the common good of a political community informs his definition of law in the Prima Secundae as “nothing other than an ordinance of reason for the common good, made by the person who has care of the community, and promulgata” (legis, quae nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgate).32 Two aspects of this definition are worthy of particular focus. First, Aquinas’s reference to the person who has care of the community evokes the discussion in De Regno of “regnative prudence”—that is, the virtue of practical wisdom in the exercise of political authority.33 Second, the definition suggests that the common good is the normative goal (and hence also a criterion for assessment) of positive law. This point is significant in light of the AristotelianThomistic assumption that final causes should feature in explanations of what it is to be an instance of a particular kind.34 The final causality operative in practical affairs reflects our directedness towards ends that rational beings naturally pursue.35 In relation to human acts like legislating, which involve intentionality and the willing of an end identified by reason, the final cause has priority.36 Insofar as the common good provides reasons for action, serving as an end for political activity, it is correct to say that the common good is a common end.37 The status of the common good as a proximate final cause is closely connected with Aquinas’s understanding of the political common good as a unity of order distinguishable from a mere aggregate of individual goods.38 Justice and peace are conditions of the community considered as a whole; a just and well-ordered community is an articulated unity in good condition.39 This does not entail that the political community is an organic whole or substance,40 let alone that the ultimate good and dignity of persons is to be subordinated to the good of the whole. Rather, Aquinas understands the political community as a structured unity that “derives from the ordering of different individuals towards the goal that they have in common.”41 The whole constituting a political association is hence a unity of order (habet solam ordinis unitatem), not absolutely one.42 A unity of order is more than the sum of its parts because, while a part of a whole can operate separately from the whole (as a soldier can act separately from the whole army), the whole nonetheless has an operation and aim that is proper not to its parts but to the whole (e.g., an assault by the entire army and the end of victory).43 Aquinas emphasizes the sense in which the army is made up of individuals able to act independently of the whole. Yet it remains legitimate to ascribe action to the whole considered as a unity structured by a common goal. Aquinas’s political common good is hence multifaceted and dependent on a metaphysics of parts and wholes. The previous discussion, however, demonstrates why it would be misleading to contrast without qualification the robustness of

256  George Duke the Thomistic political common good, as an integral whole and final cause, to the Augustinian conception. Augustine also has a full-blooded account of the common good of God and the community of Christian believers. In order to understand Augustine’s different approach to the distinctively political common good, one needs to consider (in addition to theological differences regarding the effects of the Fall) the fact that Augustinian teaching arose in dialogue with and opposition to the Roman value of patriotic striving for glory in the civitas terrena. Roman values could be considered a model for Christian activity, but this was only legitimate at the level of the civitas Dei.44 It is the common good of the political community in the terrestrial sense that is to be regarded as limited and instrumental on the Augustinian model. Indeed, Augustine’s conception of the specifically political common good as limited and instrumental points back to a potential ambiguity within the idea of the common good that was already evident in Aristotle’s discussion of the common advantage (to koine[i] sumpheron). Whereas book 1 of the Nicomachean Ethics associates the common advantage with the happiness, and hence virtue, of an entire community, the discussion of the common advantage in book 9 and the Politics suggest a more instrumental account. This twofold aspect was subsequently clarified by Albertus in the form of an explicit distinction between the common good (bonum: identified with virtue) and the common benefit (utilitas: identified with peace and material prosperity).45 One potential ramification of a low estimate of the normative value of the specifically political common good is that it comes to be identified with common benefit (utilitas)—the security and prosperity of a city or nation—rather than understood as a genuinely common good (bonum) dependent upon the virtue of citizens. A conception of the common benefit primarily oriented by the salvation of a commonwealth (salus rei publicae) in turn empties the common good of much of the ethical content that it has when it is associated with the flourishing and virtue of citizens. The early modern appropriation of Cicero’s principle from De Legibus that the health or welfare of the people is the highest law (salus populi suprema lex esto) is quite revealing in this context.46 This principle is found in chapter 30 of Hobbes’s Leviathan (1651), chapter 19 of Spinoza’s TheologicalPolitical Treatise (1677), and the preamble to Locke’s Second Treatise (1689). The principle occupies a similar structural position to the common good within an Aristotelian and Thomistic framework, albeit without being ethically perfective or representing a higher metaphysical reality.

Contemporary natural law theories of the common good As suggested in the opening of this chapter, the common good maintains a presence within liberal-democratic politics, but in an attenuated form. At the theoretical level, the position of Jürgen Habermas may be taken as both representative and instructive. Habermas denies that the theological and metaphysical assumptions of medieval natural law doctrines are applicable to functionally differentiated societies informed by value pluralism, yet he insists on the importance of

The principle of the common good 257 “an orientation to the common good” in his attempted reconstruction of the legitimacy of democratic procedures.47 The practical resonance and abiding relevance of this orientation to the common good can be found in constitutional evocations of the general welfare and the assumption that, at least in theory, the political leaders of a well-functioning liberal democracy will govern for all citizens rather than a few. Direct appeals to the normative force of the common good nonetheless remain most prevalent in contemporary natural law theories. One might think that these natural law theories, developed in particular by John Finnis and Mark C. Murphy, would reject Habermas’s appraisal of the theological and metaphysical assumptions of the Aristotelian and Thomistic tradition. As I demonstrate in this second section, however, this is only partly true. Murphy has provided the most rigorous translation of natural law assumptions regarding the common good into the idiom of contemporary Anglo-American political theory and jurisprudence. Murphy begins by specifying two constraints on a natural law common good: it must be sufficiently common and sufficiently good. The constraint of commonness sets a condition on shared aims of political deliberation and action.48 A natural law common good must not be conceived so broadly that it includes Hobbesian-style theories which acknowledge the importance of social stability and peace but regard the obtaining of such states of affairs as agent-relative ends.49 The constraint of goodness sets a condition on the goodmaking characteristics of the common good. The natural law common good satisfies the constraint of goodness insofar as it provides reasons for action, serving as an end for political deliberation and guiding the acceptance of its outcomes.50 Underlying the formulation of these constraints is an assumption that the main explanatory role of the natural law common good is to ground an obligation to obey the law.51 Murphy’s constraints of commonness and goodness allow for a contrast between the natural law conception of the common good and thinner liberal and civic-republican conceptions. One might argue, for example, that Rawls’s liberal conception of “justice as fairness” fails to satisfy the commonness constraint because of the agent-relative orientation of the “conditions to everyone’s advantage” it advocates. Similarly, civic-republican accounts which lack a specific and detailed theory of substantive human goods plausibly fail to satisfy the goodness constraint.52 A robust appeal to the common good is, however, more likely to be found in a utilitarian or consequentialist political theory than liberalism or civic republicanism. Consequentialist approaches are based on a methodological injunction to “compare the benefits and harms promised by alternative possible choices . . . and make that choice which promises to yield a better proportion of benefit to harm than any alternative choice.”53 Prima facie, this formulation seems consistent with the emphasis of the natural law tradition upon the need to promote the overall good of the members of a political community. As Finnis has argued, a “proportionalist” approach to ethical and political deliberation can nevertheless be criticized from a natural law perspective. In the first instance, an appeal to the computation of benefit overlooks the incommensurability of

258  George Duke different human goods.54 Faced with a choice between the decision to build a hospital or a school, for example, the proportionalist injunction would seem to suggest—incoherently—that it is possible to weigh the good of health promotion against the good of knowledge according to some kind of calculus. In the second instance, the proportionalist’s model of choice is an inadequate methodology in the realm of human affairs because it neglects considerations of practical reasonableness. Decisions for the common good of a political community, on the traditional natural law conception, cannot be guided by strict computations of the benefits or harms, but presuppose a prudent assessment of the diverse goods that political decisions can privilege. According to Murphy, the correct natural law conception of the common good is “aggregative.” The aggregative common good “consists in the realisation of some set of individual intrinsic goods, characteristically the goods of all (and only) those persons that are members of the political community in question.”55 This conception assumes that the state of affairs in which an agent, A, is flourishing is “a fundamental reason for political action within A’s political community.”56 If the state of affairs in which individual A is flourishing provides a decisive reason for political action within A’s community, then the state of affairs in which A and another individual, B, are flourishing is an even more decisive reason for action. One generates the normative ideal of the aggregative common good by carrying out this process of inclusion to its limit, including all of the goods of all of the members of a political community. As a result, the common good “aggregatively conceived is that state of affairs in which all of the members of a political community are fully flourishing.”57 The main competitors to this aggregative account, at least according to Murphy’s analysis, are the distinctive and instrumental conceptions. Murphy characterizes the distinctive common good as “the obtaining of some state of affairs that is literally the good of the community as a whole.”58 As Murphy notes, it is plausible to attribute this conception of the common good to Aquinas.59 On the instrumental conception defended by Finnis, the political common good is subordinate to the realization of basic values or goods such as knowledge, friendship, health, play, and so forth at the level of individuals and families.60 The political common good thus does not itself instantiate a basic good, but is rather limited and instrumental to the realization of such goods. Practical reasoning about the common good reveals a wide range of projects, orientations, and commitments with respect to the basic goods, none of which can be regarded as definitively superior to the others. It is this incommensurability that establishes what Finnis refers to as coordination problems, which reflect not only the diversity of human projects but also disputes about the most effective means for individuals to realize the basic goods. Finnis gives an example of the rival interests of environmentalists and farmers in relation to river pollution to demonstrate the role of the law in providing authoritative and binding solutions to resolve coordination problems arising out of competing projects and interests.61 The farmer in this case is confronted with a law on river pollution that goes against the farmer’s economic self-interest. Yet the law also provides the farmer

The principle of the common good 259 with benefits (protection of property, subsidies, etc.) that could not be realized other than through an authoritative legal system, and such benefits contribute to integral human fulfilment. A commitment to the priority of the instrumental conception, Finnis argues, does not preclude recognition of genuinely communal goods. A practically reasonable agent has strong, albeit defeasible, moral reasons to aid others in the realization of basic goods, and the coordinated pursuit of the instrumental political common good can also instantiate the good of friendship.62 More contentiously, Finnis acknowledges the relevance to practical deliberation of a “complete” political community such as the nation-state. The common good of a nation state, Finnis argues, can be “an intrinsically desirable object for the service of everyone whose patria, country, and people it is.”63 It is also, Finnis suggests in a passage which acknowledges the purposive aspect of the common good, difficult to think of political community without “some more or less shared objective or, more precisely, some shared conception of the point of continuing co-operation.”64 Murphy rejects Finnis’s instrumental conception on the grounds that it fails to provide a satisfactory account of our moral obligation to obey legal directives. If the primary function of the common good is to provide a normative basis for justified legal authority, Murphy contends, then a natural law theorist will ultimately need recourse to the aggregative conception. On the aggregative conception, “an individual’s good provides all members of the political community with a reason for action.”65 Yet, if we look closely, the instrumental conception also asserts that it is the flourishing of each individual (through their realization of basic goods) which justifies an obligation to obey legal directives. The instrumental conception is from this perspective normatively redundant to the aggregative conception.66 Although Murphy, as it turns out, doubts the capacity of the common good to ground an obligation to obey the law without supplementation from consent-theory, his argument thus seeks to establish that the aggregated goods of individuals must be the normative core of an account of law’s justified authority and legal obligation. Murphy’s critique of the traditional distinctive approach is also grounded upon that conception’s alleged normative redundancy. The function of the common good is to generate reasons for action, and appeals to a good over and above the good of each and every individual are practically otiose and unnecessary. In a revealing passage, however, Murphy also alludes to a metaphysical reason why we should prefer the aggregative to the distinctive approach. There is a difference between “what exists strictly speaking and what exists only loosely speaking; and human persons fall on the former side of this divide while communities and associations fall on the latter.”67 Since “only what exists can have a good,” Murphy continues, individual human beings can have goods strictly speaking, whereas “communities and associations can have goods only in a loose sense.”68 The distinctive common good is thus good only “in a manner of speaking,” and since practical deliberation must be directed by what is genuinely good, the distinctive account cannot have the same normative force as the aggregative account with its ultimate appeal to the good of persons.69

260  George Duke It would be facile to condemn this argument on the basis that, in its refusal to acknowledge the reality and goodness of integral wholes, it uncritically assumes the premises of liberal individualism. A comparison with classical and late medieval theories of the common good is nonetheless instructive. One of the central texts for the late medieval theory of the common good is Aristotle’s elaboration on the identification of the end of politics with the human good as such in book 1.2 of the Nicomachean Ethics. According to Aristotle, although the good (agathon) is the same (tauton) for an individual and a political community (polis), the latter is both greater (meizon) and more perfect (teleioteron) to attain and preserve. While it is pleasing or satisfactory to secure the good for one person, Aristotle continues, it is nobler (kallion) and more divine (theioteron) to attain it for a people or a city state (1094b7–10). Although this passage admits of competing interpretations, its full import cannot be explicated in aggregative terms insofar as it refers to the good of the political community as a whole rather than a mere collection of individual goods. Aristotle’s statement has always been regarded as puzzling because it asserts both the superiority of the good of the political community over the good of the individual and their identity. A sophisticated attempt to resolve this interpretative puzzle is found in Albertus Magnus’s second commentary on the Nicomachean Ethics. According to Albertus, the good of the political community is a potential whole (present in its parts only in power or virtue) rather than a universal whole that is present in essence in each of its parts.70 Albertus explains the point by reference to the diverse virtues and powers (fighting, ordering troops, etc.) operative in the case of a victorious army.71 While the victory of an army depends on the virtues of its parts, it is only when all the virtues “are gathered together and directed towards a single goal that victory is made complete (perficitur).”72 As a potential rather than a universal whole, moreover, the political common good is a unity which serves as an end (telos) of practical action. Individual goods and virtues, on this reading, share in the unity of the good according to their proximity to a common standard and point of reference.73 In his discussion of the Aristotelian common advantage, Albertus demonstrates the way in which an ordered group can achieve a collective goal that would be impossible for individuals to achieve on their own. In the Physics, Aristotle argues against Zeno’s claim that if a bushel of millet makes a noise, then every grain making up the bushel must make a proportionate noise (Phys. 249b27–50a24). Aristotle also notes that a ship hauled by a number of people cannot be moved any distance at all by one individual working independently. In his second commentary on Aristotle’s Nicomachean Ethics, Albertus applies both of these analogies to the political domain. Human happiness, as the supreme human good, presupposes the existence of the four cardinal virtues. It is the virtue of justice, however, which is represented by the hauling of a ship, the sound of a bushel of millet, and the good present in the leader of an army.74 Justice is a virtue which derives its potential for action from its parts, yet it is present in a way that cannot be reduced to an aggregation of those parts. Like the hauling of a ship and the sound of a bushel of millet, it is a necessary condition for the attribution of

The principle of the common good 261 the relevant activity to the parts that the activity is attributed to the whole.75 In this sense, general justice functions as a distinctive common good of a political community, because it represents a unity of order attributable to the association as such. Aquinas’s commentary on the Nicomachean Ethics further elaborates on these points. According to Aquinas, the whole constituting a political association is a unity of order (habet solam ordinis unitatem), not something absolutely one.76 A unity of order is more than the sum of its parts: a part of a whole can operate separately from the whole (as a soldier can act separately from the whole army), but the whole nonetheless has an operation that is proper not to its parts but rather to the whole (e.g., an assault by the entire army).77 An army is made up of individuals who are able to act independently of the whole, and yet it is also legitimate to ascribe action to the whole insofar as it is considered as a unity structured by a common goal. This common goal is flourishing and virtue, and the political community is well ordered insofar as it allows for the realization of that end. In the background of Aquinas’s discussion, as M.S. Kempshall has demonstrated, is Aristotle’s account of the double ordering of a whole in Metaphysics 12. Here Aristotle argues that “individual parts of a whole are ordered towards other parts in an intrinsic good of order but they are also ordered towards the extrinsic good of the whole.”78 Aquinas’s account of the political common good thus understands it as a double ordering (duplex ordo), which incorporates both the formal cause of order and the final cause of virtue and flourishing. The partial jettisoning of this metaphysical framework and the associated terminology of formal and final causes is one of the sources of the “thinner” conceptions of the common good which inform contemporary natural law theory. Another related source of the tendency for contemporary natural law theorists to develop thin conceptions of the political common good is the assumption that its main explanatory function is to justify political authority. As Finnis drily notes, in the late 1970s theorists began denying that there is a moral obligation to obey the law.79 A felt need to respond to these theorists has arguably obscured other significant functions of the political common good. In closing this chapter, therefore, I consider the use of the common good as a criterion for assessing correct and deviant political regimes, its status as the aim of legislative prudence, and its association with “general justice.” Aristotle’s most direct appeal to the concept of the common advantage in the Politics is in his famous classification of correct and deviant constitutions (politeiai) (Pol. 1279a17–29). What distinguishes the three correct constitutional forms (kingship, aristocracy, polity) from their deviant counterparts (tyranny, oligarchy, democracy) is that the former are established with the aim of promoting the common advantage (to koine[i] sumpheron), whereas the latter aim at the private advantage of the rulers (1279a18–39). The common advantage—which Aristotle also identifies with political justice (1279a18 and 1282b17–18)—thus serves primarily as a normative criterion for regimetypes rather than a normative basis for the justification of legal authority

262  George Duke (1279a17–29). The justice and injustice of laws for Aristotle in fact ultimately depends on whether the regimes that enact them are politically just because directed to the common advantage. For Aristotle the common advantage is hence the telos or end at which all (just) laws (should) aim. The laws pronounce on all things in their aiming at the common advantage (koine[i] sumpherontos): those things apt to produce and preserve happiness (eudaimonias) and its parts for the political community (politikē[i] koinōnia[i]) are hence in a manner just (NE. 1129b15–19). Aquinas retains this Aristotelian conception of the common good as the end of law in identifying law with ordinances of reason for the common good. In both cases the common good is a normative criterion for the assessment of laws as just or unjust, reasonable or unreasonable. This appeal to the common good as a telos and criterion for the normative evaluation of law is compatible with an instrumental conception of the common good which regards it as ultimately a set of conditions for individual flourishing. One can certainly argue, and Aquinas did argue, that the political common good is from one perspective to be regarded as a proximate goal which needs to be achieved in order for the goods of individuals to be realized. When the common good is understood as a proximate goal, moreover, then following legal directives is a requirement of reason for human flourishing. With these moves in place, the concept of the common good can then serve as a basis for normative evaluation and the generation of moral obligations to obey the law. While the definitions of Rawls and Finnis cited earlier may not explicitly use the common good as a normative criterion, they do not rule out its application as an evaluative concept in this way. As we have seen, however, the notion of the common good operative in Aquinas’s thought is much richer and more diverse than that found in instrumental theories. Even if one wishes to circumscribe the reference to the common good found in Aquinas’s definition, so that it refers only to the narrowly political common good and does not encompass the wider theological and metaphysical meanings of the term, then it is necessary to reckon with the identification of the common good with general justice and hence the virtues. At this point, features of Aquinas’s definition of law are evident that are harder to reconcile with liberal political and legal thought. Aquinas’s definition of law refers expressly to the person who has care of the community—that is, the person responsible for the ordinances of reason which serve the common good. In the central case, the person who has care of the community is the Aristotelian legislator or the exponent of Thomistic regnative prudence. Two features of such a figure tend to be obscured by contemporary assumptions about lawmaking. The first feature is that the legislator is a person or persons possessed with a high degree of practical wisdom (rather than a legislative assembly of elected representatives). The second is that the genuine legislator (that is, a legislator with practical wisdom) exercises care over the community not simply by making laws which prevent citizens from encroaching upon each other’s rights and interests in the pursuit of their own

The principle of the common good 263 goods, but by playing an indispensable role in the positive promotion of the ethical virtues. The notion that the role of the legislator is to direct citizens towards virtue, and in doing so to promote the common good of virtue, does indeed sound potentially tyrannical on modern assumptions. In the absence of an agreed-upon understanding of what is good, and what is excellent, then such a view of the role of law raises the fear that law is simply serving the power interests of a particular segment of the community—that it is not for the common good at all but rather serves sectional interests in a way that evokes the classical critique of a Thrasymachus. When one considers the role of the legislator to promote the common good of virtue (“general justice”), however, the difference between classical and medieval and contemporary accounts is clearest. From a contemporary perspective, law is understood primarily as a mode of constraint. The direction of inquiry is thus from the question, “why should I obey the law, given that it can encroach upon my immediate self-interest,” to the possibility that there are conditions which we must all accept if we are all peacefully to pursue our own interests. The Thomistic definition of law moves in the opposite direction. A legislator should have the common good in view when engaged in law-making, and this common good is inseparable from virtue and human flourishing. An example of the interplay of virtue and the common good which is prevalent in classical and medieval sources, but more scarce in contemporary accounts, is the case of courage. Michael Pakaluk provides a lively example of the point in his account of homesteaders who, faced with an external threat, form an association for the defense of their property.80 It is not difficult to imagine a situation in which one of the homesteaders is called away—against immediate self-interest— from the defense of their own property, when it was under threat, to occupy a position with more strategic importance for defending the homesteads as a whole. Such a sacrifice is difficult to explain or justify by reference to instrumental conditions for well-being or an obligation to obey the law which follows from our aggregated interests. It can be justified, however, by an appeal to the ethical virtues. Albertus indeed ranks courage highly in the hierarchy of traditional virtues, insofar as it contributes most to the common good. The genuinely courageous person seeks what is difficult and what is good (cf. NE. 1105a8–10), and in so doing they promote the conditions under which justice is possible at all—that is, the continued existence of the political community.81 In his theory of the political common good, Finnis states clearly that we should not think of a political community as having a single “aim or determinable sets of aims.”82 Such a claim is of course simply common sense from the perspective of liberal commitments. The position reflects the view that there is a variety of human projects and commitments, and the lack of a single, objective hierarchy of value among the goods. Yet one may wonder at the response of an Augustine or Aquinas to the claim that there is no objective hierarchy of value among the goods, and also whether this is one respect, at least, where Christianity and liberalism are in significant tension.

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Conclusion The claim that contemporary liberal-democratic regimes are motivated more by a shared notion of the common bad than the common good is perhaps only a partial truth. It would seem more accurate to say that all political communities necessarily aim at the common good, but that their understanding of the ethical content and normative significance of that notion is inseparable from an underlying interpretation of citizen virtue. This is because, even on a robust construal, the common good is ultimately dependent upon a conception of the telos of a good human life.

Acknowledgment Thanks to Michael Pakaluk, Simon P. Kennedy, and Grace Haeun Hwang for helpful comments on drafts of this chapter.

Notes 1 Rawls, 217. 2 Finnis, Natural Law and Natural Rights, 155. Finnis’s instrumental account of the common good is indebted to Grisez, 850, and John XXIII, Mater et Magistra, § 65. 3 Adrian Vermeule, “The Common Bad,” unpublished presentation at the Thomistic Institute, October 2018. 4 Ibid. 5 See, for example, Weithman. 6 De civitate Dei. 19.17. 7 Ibid., 15.3. 8 Ibid., 15.2, 14.28. 9 Aquinas, Summa Theologia (ST) II–II q. 29. a.1. 10 ST II–II q. 57, a.1. 11 ST II–II q. 58. a. 6 and 7. 12 ST II–II q. 58. a 6. 13 ST I–II. q. 90. a.4. 14 ST I–II q. 95 a.1; Summa Contra Gentiles III. 121. 15 ST II–II q. 104. a. 5. 16 ST I–II. q. 90. a.3; q. 107 a. 2. 17 Weithman, 371–72. 18 As Josef Lössl notes in this volume, Augustine aims “beyond any political notion of the common good . . . and explore[s] the anthropological, theological, and in particular eschatological dimensions of the concept.” 19 See Canning for excellent discussion of this point. 20 De Libero Arbitrio 2.14.37. 21 Regula 5:2. 22 Confessiones 12.25.34. 23 Canning, at 221 citing De civitate Dei 19.17. 24 Kempshall, 73. 25 Ibid. 26 Summa Contra Gentiles III. 117 and ST I–II q. 109. a.3. 27 Kempshall, 102.

The principle of the common good 265 8 ST II–II q. 58. a.15. 2 29 Ibid. 30 ST II–II q. 58. a.6. 31 Ibid. 32 ST I–II q. 90. a. 4. 33 De Regno, I. I. 34 ST I–II q. 91. a. 2. 35 Summa Contra Gentiles III. 2. 36 ST I–II I, q. 1, a. 1, 2. 37 ST I–II q. 90 a. 3. 38 ST I–II q. 72, a. 4; q. 93, a. 1; q. 95, a. 4; q. 96, a. 4; q. 97, a. 4; II–II, q. 109, a. 3; q. 114, a. 2; q. 129, a. 6. 39 It is instructive in this context that Aquinas derives the precepts of the “law of nations” (ius gentium) from the natural law by reference to justice as a form of good order: just relations (e.g., in buying and selling) are necessary in any political community, if humans are to live together in relative harmony. ST I–I q. 95 a. 4. 40 ST I–II q. 17, a. 4. 41 Kempshall, 100. This understanding can of course extend to smaller associations (such as the family and church), each with its own common goods worthy of promotion through law. Conversely, the breakdown of such institutions tends to have flow-on effects for the sense of a shared common good beyond the provision of public goods in a narrower material sense. 42 Sententia Ethic, lib. 1 l. 1 n. 5. 43 Ibid. 44 Tuck, 55. 45 Ethica, I.4.16 and V.3.9. 46 De Legibus, III, III, VIII. 47 Habermas, 84, 95. 48 Murphy, “Common Good,” 134–35. 49 Ibid., 135. 50 Ibid. 51 Murphy, Natural Law, 114. 52 See Keys, 41–48. 53 Finnis, “The Authority of Law,” 86–87. 54 Ibid., 87–89. 55 Murphy, “Common Good,” 136. 56 Ibid., 137. 57 Ibid. 58 Ibid., 136. 59 Ibid., 148. 60 Finnis, Natural Law and Natural Rights, 85–90. See also Finnis, Aquinas, 82, 97–98. 61 Finnis, “The Authority of Law,” 133–37. 62 Finnis, “Reflections and Responses,” 520. 63 Ibid. 64 Finnis, Natural Law and Natural Rights, 153. 65 Ibid., 138. Italics mine. 66 Murphy, “The Common Good,” 142. 67 Ibid., 157. 68 Ibid. 69 Ibid. 70 Ibid., 31. 71 Ethica, I.3.14.

266  George Duke 2 Kempshall, 31. 7 73 Ibid., 32. 74 Ibid., 38–40. 75 Ethicorum Libri Decem, 1.6.3. 76 Sententia Ethic, lib. 1 l. 1 n. 5. 77 Ibid. 78 Kempshall, 100. 79 Finnis, “Authority of Law,” 116. 80 See Pakaluk. Cf. Aristotle’s claim that it is the virtuous person who acts most courageously and nobly in dangerous situations because they have more to lose (NE 1117b10–15). 81 Super Ethica, III.8. 82 Finnis, Natural Law and Natural Rights, 155.

Bibliography Canning, Raymond. “Common Good.” In Augustine Through the Ages: An Encyclopedia, edited by Allan D. Fitzgerald O.S.A., 219–22. Grand Rapids, MI: Eerdmans, 1999. Cochran, Clarke E. “Yves R. Simon and ‘The Common Good’: A Note on the Concept.” Ethics 88 (1978): 229–39. Finnis, John. Aquinas: Moral, Political, and Legal Theory. Oxford: Oxford University Press, 1998. Finnis, John. “The Authority of Law in the Predicament of Social Theory.” Notre Dame Journal of Law Ethics and Public Policy 115 (1984–85): 115–38. Finnis, John. Natural Law and Natural Rights. 2nd ed. Oxford: Oxford University Press, 2011. Finnis, John. “Reflections and Responses.” In Reason, Morality, and Law, edited by John Keown and Robert P. George. Oxford: Oxford University Press, 2013. Grisez, Germain. The Way of the Lord Jesus. Vol. 2: Leading A Christian Life. Chicago: Franciscan Press, 1993. Habermas, Jürgen. Between Facts and Norms. Translated by William Rehg. Cambridge: Polity, 1996. John XXIII, Pope. Mater et magistra. Mahwah, NJ: Paulist Press, 1962. Kempshall, M.S. The Common Good in Late Medieval Political Thought. Oxford: Oxford University Press, 1999. Keys, Mary M. Aquinas, Aristotle, and the Promise of the Common Good. Cambridge: Cambridge University Press, 2006. Murphy, Mark C. “The Common Good.” Review of Metaphysics 59 (2005): 133–64. Murphy, Mark C. Natural Law in Jurisprudence and Politics. Cambridge: Cambridge University Press, 2006. Pakaluk, Michael. “Is the Common Good of Political Society Limited and Instrumental?” Review of Metaphysics 55 (2001): 57–94. Rawls, John. A Theory of Justice. Rev. ed. Cambridge, MA: Harvard University Press, 1999. Tuck, Richard. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford University Press, 1999. Weithman, Paul J. “Augustine and Aquinas on Original Sin and the Function of Political Authority.” Journal of the History of Philosophy 30 (1992): 353–76.

16 Christianity, sovereignty, and global law Nicholas Aroney

Introduction1 The term “global law” harbors a semantic significance: it is a law no longer conceived as merely inter-national, not even supra-national or trans-national.2 It refers, rather, to the law of a global community which, as Rafael Domingo argues, is “made up of new members, inspired by new principles, and based on new ideas and ideals.”3 On his account, it is the law of a global community which is composed of individual persons, not states; universal, not particular to a specific group of persons or communities; compulsory, not based on voluntary agreement among states; and yet incomplete, because it is a law directed only to the common needs of humanity as a whole, and is therefore complementary to other forms of human community. Such a global community, Domingo argues, will involve the establishment of a new organizational structure to replace the United Nations, including a global parliament, global tribunal, and global armed forces “to ensure compliance with its goals,” for “every legal order must consolidate its monopoly on coercion.”4 In this chapter, I seek to bring this understanding of global law into conversation with the concept of sovereignty. While I agree with many of the criticisms that have been directed against absolutist conceptions of sovereignty, I wish to record a hesitation about the abandonment of something important that sovereignty can be taken to represent, particularly in its resistance to a theory of global law premised on the idea of a universal and compulsory world community consisting essentially of individuals.5 Domingo rightly insists that global law must be understood as the law of a global society that is incomplete and complementary to other forms of human community. It is not the law of a sovereign “global state.”6 However, my concern is that the universal, compulsory, and individualist characteristics of global law do not offer an adequate context for the accommodation of other forms of human community. Ironically, it is these attributes of universality, compulsion, and individualism which make global law too much like a kind of state sovereignty exercised at an imperial scale to make it a desirable way of thinking about a global order of nations. The chapter is organized around three questions: (1) What is sovereignty? (2) What is wrong about sovereignty? (3) What is right about sovereignty? In

268  Nicholas Aroney answering the first of these questions, I focus on contemporary accounts of the nature and extent of state sovereignty, for it is this kind of sovereignty that stands in the way of global law. In response to the second question, I turn to the highly influential theories of sovereignty advanced in the late sixteenth and mid-seventeenth centuries by Jean Bodin and Thomas Hobbes as examples of the logic of sovereignty when developed in its most absolute form. Here it will be seen that underlying the modern idea of sovereignty is a theological concept of absolute power (potentia absoluta), first attributed to God, and later to popes, kings, and states. This gives rise to a theological critique of state absolutism and an alternative account of sovereignty that I develop in response to the third question. Here I focus on the political theory of Johannes Althusius, an early seventeenth-century jurist who developed a pluralized conception of sovereignty deliberately in contradiction to Bodin’s absolutism. Building on Althusius, I argue that political authority, understood as legitimate jurisdiction, is a status rightly possessed in different degrees and in different respects by the ruling institutions of many different forms of human community, from the smallest and most local to the largest and most global. Sovereignty is a term that can be used to designate this kind of rightful but limited authority, and understood in this sense, it represents something very important standing in the way of a concept of global law premised on a compulsory universal community consisting essentially and simply of individuals. To conceive global community in this way is to posit a kind of “simple space” in which there is one center of rule exercised over the multitude of individuals, instead of “complex space” in which there are multiple locations of authority operating simultaneously in different places and in different respects. It is this kind of complex and multifaceted space that is a more appropriate model underlying any law having a global reach or universal scope.

What is sovereignty? How is sovereignty understood in international law? Whatever sovereignty means, there can be no doubt that it is important.7 The first principle of the Charter of the United Nations is the “sovereign equality” of all its member states. The Charter commits member states to “refrain from the threat or use of force against the territorial integrity or political independence of any state,” and the jurisdiction of the United Nations is qualified by a general principle of nonintervention in matters which are “essentially within the domestic jurisdiction of any state.”8 The Vienna Convention on the Law of Treaties, which declares international customary law on the topic,9 likewise treats the sovereign equality and independence of states as one of its fundamental premises. Reflecting a view of what sovereignty means in this context, the Vienna Convention states that an international treaty derives its binding force from the voluntary agreement and consent of the contracting states.10 When a state enters a treaty, the state binds itself, in accordance with the principle of pacta sunt servanda, to comply in good faith with the treaty, exercising its sovereign powers in

Christianity, sovereignty, and global law 269 a manner consistent with the treaty. The sovereign equality of all states is thus taken to mean that a state cannot be legally obliged to enter a treaty. The Vienna Convention therefore stipulates that a treaty is void if it has been procured by the threat or use of force in violation of international law.11 However, once a state has concluded a treaty, it is bound to the treaty while it remains in force,12 and cannot withdraw from a treaty except in conformity with the provisions of the treaty, or in specified circumstances outlined in the Vienna Convention, which include mutual agreement among the parties, or in circumstances such as fraud, corruption and coercion, or pursuant to peremptory norms of general international law.13 Consistent with this logic, a treaty can be amended only by the agreement of the state parties, and in the case of multilateral treaties, such amendment binds only the parties to the amending agreement.14 An underlying concern of the Charter of the United Nations is the advancement of all peoples. The Charter speaks in the name of “We the Peoples of the United Nations” and proclaims that one of its purposes is to promote “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Member states which have responsibilities for the administration of territories “whose peoples have not yet attained a full measure of self-government” have an acknowledged obligation to promote the political, economic, social, and educational advancement of the inhabitants of such territories, but must do so in a manner which has “due respect for the culture of the peoples concerned.” This includes the development of self-government through the establishment of “free political institutions,” but in a manner that takes “due account of the political aspirations of the peoples” and the “particular circumstances of each territory and its peoples.”15 Note here that several peoples may inhabit a particular territory. The Charter anticipates the rights of all peoples to self-determination.16 As Luke Glanville has shown, over the decades following the Charter’s signing, postcolonial states pressed the UN General Assembly to issue increasingly forthright statements of the sovereign rights of self-governing peoples to independence and noninterference.17 In 1965 the General Assembly declared: No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned.18 Reflecting on developments such as these, Antonio Cassese has argued that the principle of the sovereign equality of states “constitutes the linchpin of the whole body of international legal standards, the fundamental premise on which all international relations rest.”19 In a more recent paper, Cassese and Luigi Condorelli have gone further, pointing out that although states are increasingly subject to the authority of various international and supranational institutions and agencies, the resulting limitations on state sovereignty are the result of “sovereign choices”

270  Nicholas Aroney exercised by the states themselves; the states are therefore active in the decisionmaking of the institutions, and the decisions of the institutions are implemented by the states themselves.20 One of the clearest and most absolute definitions of state sovereignty in international law was offered by Lassa Oppenheim. He proposed that sovereignty consists of two essential elements: independence and supremacy. The independence of a state consists in its ability to exercise its authority independently of any other earthly authority, especially the authority of any other state. This independence in turn has two aspects: an external aspect, which concerns the state’s liberty of action outside its borders in its relations with other states (external independence), and an internal aspect, which concerns the state’s liberty of action within its borders (internal independence). The supremacy of a state consists in its ultimate authority over all persons and things under its jurisdiction. This supremacy again has two aspects: supreme authority over all persons and things within its territory (territorial supremacy) and supreme authority over all its subjects or citizens wherever they are located (personal supremacy). For Oppenheim, these distinguishable qualities are aspects of the one essential concept of state sovereignty.21 The external independence of a state means it can determine the conduct of its international affairs according to its own discretion, especially by entering into alliances and treaties, sending and receiving diplomatic envoys, acquiring and ceding territory, and making war and peace. The internal independence and territorial supremacy of a state means that it can organize its domestic affairs as it thinks fit, especially in the constitution it adopts, the laws it enacts, the policies it implements, and the organization of its military forces. The state’s territorial supremacy means that all individuals and all property within its territory are under its dominion, and even foreign individuals and property are subject to the authority of the state when they enter its territory. The state’s personal supremacy further means that a state retains authority over its subjects even outside its territory, so long as they remain subjects of the state. A state may therefore command its subjects to return to the state to fulfill their military service, require them to pay taxes, punish them for crimes committed abroad, and stipulate that they must comply with certain conditions in order to have marriages and wills legally recognized by the state.22 Presented in this way, sovereignty seems to entail certain qualities that flow analytically and logically from the external and internal independence and territorial and personal supremacy of the state. However, the absoluteness of these qualities is necessarily qualified by the existence of other states that possess the same characteristics. It follows that a state does not have authority beyond its territorial and personal jurisdiction and is under a correlative duty to abstain from violating another state’s sovereign rights.23 In addition, Oppenheim acknowledged the existence of protectorates that are not fully independent or sovereign; he noted that states may enter into treaties through which they accept obligations which restrict them in the exercise of sovereignty; and he drew attention to rules of customary international law which constrain what a state may do within its own territory. Further, Oppenheim pointed out that a state may act in

Christianity, sovereignty, and global law 271 its own self-preservation and may intervene with the external or internal affairs of another state for various reasons, although, consistent with his emphasis on state sovereignty, he considered rights of intervention to be limited and not to include intervention to prevent religious persecution or cruelty of treatment, even though many jurists and political leaders of his time considered such a right to exist.24 When international law and state sovereignty are conceived in this way, they seem to stand in the way of a global law the constituents of which are individuals, the application of which is compulsory, and the scope of which is universal. How did such a conception of sovereignty come about? And what exactly—if anything—is wrong with it? To answer these questions, it is instructive to turn to the sources from which the idea derives: Jean Bodin and Thomas Hobbes.

What is wrong with sovereignty? How did sovereignty go wrong? Jean Bodin began his Les Six livres de la République with the bold claim that no jurist or political philosopher had hitherto defined the idea of sovereignty, even though it is essential to the very nature of the state.25 “Sovereignty,” he asserted, is “the absolute and perpetual power of a commonwealth.”26 It is an “absolute and perpetual power to dispose of all possessions, persons and the entire state.” It is not limited in the extent of its power, the variety of its functions, or the length of time that it is held. A sovereign ruler is not “subject in any way to the commands of someone else” but is “able to give the law to subjects, and to supress or repeal disadvantageous laws and replace them with others,” for the very concept of law implies “the command of him who has the sovereignty” and depends “solely on his own free will.” Accordingly, “whatever the king pleases by way of consent or dissent, command or prohibition, is taken for law, for edict, or for ordinance.” Sovereign power is absolute because the sovereign recognizes no authority greater than himself other than God. Sovereignty, by its nature, can have no conditions or limitations placed upon it other than “what is commanded by the law of God and of nature.”27 According to Bodin, the subjection of the sovereign prince to divine and natural law derives from the fact that the sovereign prince obtains his authority from God. But this divine warrant, while subjecting the prince to divine authority, also means “there is nothing greater on earth, after God, than sovereign princes.” For “just as God, the great sovereign, cannot make a God equal to himself,” so the prince, who is the image of God, “cannot make a subject equal to himself without annihilation of his power.”28 The result, as Jacques Maritain observed, is the conception of a power that is entirely separate from and utterly transcendent over the society which it rules. Sovereignty is not merely the highest ruling authority (suprema potestas) within a political community, it is an absolute power (potentia absoluta) which transcends the political community.29 Thomas Hobbes commenced his account of the establishment of the political commonwealth in similar fashion. He wrote of the “generation of the great

272  Nicholas Aroney Leviathan, or rather (to speake more reverently) of that Mortall God, to which we owe under the Immortall God, our peace and defence.”30 This mortal god, said Hobbes, has concentrated in his steady grasp “the use of so much Power and Strength, conferred on him, that by terror thereof, he is inabled to forme the wills of them all.” Such power may be conferred upon an individual or an assembly, but when conferred it unites the multitude into one civic person under the name of a commonwealth. This person “is called Soveraigne and said to have Soveraigne Power; and every one besides, his Subject.”31 Hobbes meant this literally. In his conception, “the sovereignty of the state was unlimited, illimitable, irresponsible and omnipotent, was necessarily concentrated in a single centre and was armed with power.”32 In an illuminating study,33 Gabriel Negretto has shown how Hobbes’s choice of the name “Leviathan” was deliberate and profound. Of the Leviathan, it is said: “no one on earth is his equal, a creature without fear; he looks down on the highest; he is a king over all proud beasts” (Job 41:24). Similarly, the power of the sovereign “is as great, as possibly men can be imagined to make it.” For concentrated in his hands is all the “coercive Power” needed to “compell men” to the performance of their duties, particularly “by the terrour of some punishment.” In this context, Negretto draws attention to Hobbes’s analogy between the absolute power of God and the absolute power of the sovereign ruler: both are all-powerful, and both have an unlimited and arbitrary power of law-making. Accordingly, just as the law of the commonwealth is made effective by the aweinspiring power of Leviathan, so the law of nature derives its force from God’s “Irresistible Power” and his “right of afflicting men at his pleasure,” a right which belongs to him “not as Creator, and Gracious; but as Omnipotent.” For Hobbes, both divine and human law are nothing other than expressions of sovereign will, expressed in commands and enforced by sanctions.34 As the sole source of law in the commonwealth, the sovereign cannot, by definition, be subject to any human law or authority. The only law to which Leviathan is subject is the law of nature, because this law is divine. As far as this world is concerned, the absolute sovereignty vested in Leviathan involves unlimited and arbitrary power of legislation. No law, therefore, can be deemed unjust, for the sovereign is the sole judge of what policies need to be adopted, what doctrines are fit to be taught, and what laws are suitable to be enacted. Moreover, sovereignty is indivisible. All potentially competing authorities must be absolutely subject to the sovereign, just as all potentially competing covenants must be absolutely inferior to the social contract which constitutes the sovereign. For competing leagues among the people are dangerous and therefore unlawful. A society may contain various towns, provinces, universities, colleges, and churches, each with its distinct laws and customs, but Hobbes insisted they must all ultimately be subject to the superior will of the sovereign. Of the “infirmities” of a commonwealth, one is, therefore, the “excessive greatness of a town,” and another is a “multitude of corporations,” which “are as it were many lesser Common-wealths in the bowels of a greater, like wormes in the entrayles of a natural man.” But the most dangerous source of conflict within a commonwealth is the existence

Christianity, sovereignty, and global law 273 of two competing authorities: an ecclesiastical power that depends on the threat of excommunication and divine judgment for its authority, and a civil power that depends on the threat of bodily imprisonment and execution. Hobbes considered that allowing the existence of two authorities is to set up “a Supremacy against the Soveraignty; Canons against Lawes; and a Ghostly Authority against the Civill,” and he warned that such a state of affairs, pitting a “Spirituall” or “Ghostly” power against the “Temporall,” places the commonwealth in grave danger of civil war and dissolution.35 To shore up the authority of the temporal sovereign, Hobbes proposed three remedies. First, he subordinated the church to the state by denying that the church has any genuine law-making power, rendering its priests ministers of the prince, and making every Christian king the head of the church.36 Second, he diluted the prophetic authority of the church by relegating the earthly manifestation of the kingdom of God to the distant past or the eschatological future, leaving the government of this present age to the temporal rule of the civil sovereign. Third, he undercut the spiritual authority of the church by denying the immortality of the soul, thereby eradicating fear of punishment in the immediate afterlife.37 As Negretto has argued, this deepens our appreciation of what Hobbes meant when he referred to the Leviathan as a mortal god: the fear of the heavenly Sovereign has been replaced by the fear of his earthly counterpart.38 This view of the authority of the sovereign has consequences for relations between states. According to Hobbes, sovereign nations are in a state of nature with each other, governed only by the law of nations, which is nothing other than the law of nature enforced by God alone. Every sovereign thus has “the same Right, in procuring the safety of his People, that any particular man can have, in procuring the safety of his own Body,” which is to say that independent states are in a continual condition of “Warre, where every man is Enemy to every man.” There being no “Court of Naturall Justice” between sovereigns; the only constraint on the actions of sovereign nations is the “Conscience onely; where not Man, but God raigneth.”39 Otherwise, the condition of states in the state of nature is one in which: Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which is a posture of War.40 For Hobbes, accordingly, there can be no international law legally binding on sovereign states, only the moral limits imposed by natural law.41 Bodin, similarly, considered that the prince is not bound by the common law of peoples (ius gentium). The only thing binding on the prince is the law of nature, for just as the prince is the “image of God,” so the laws of the prince should be modelled on the law of God. A sovereign prince is bound by his promises, contracts, and treaties, but only to the extent required by natural law.42

274  Nicholas Aroney In these ways, for both Bodin and Hobbes, the sovereign power of the prince mirrored the sovereign power of God.43 Such a conception necessarily drew on the theology of the time, but with a significant modification. In early medieval thought, divine power had been understood in terms largely determined by Augustine. He understood divine power in terms of the divine will: God’s omnipotence is a power to do whatever he wills, noting that whatever he wills is necessarily in accordance with the perfection of his divine nature.44 Many theologians followed Augustine on this point, but others, such as Peter Damian and Peter Lombard, introduced an additional dimension by proposing that God can potentially do more than he actually wills, for there is a realm of possibility open to God that is not exhausted by what God has chosen to do in actuality.45 In the thirteenth century a distinction came to be drawn between what is theoretically possible for God to do (potentia absoluta) and what God has actually chosen to do (potentia ordinata). As William Courtenay explains, this distinction did not mean that there were two distinct powers in God, but rather that God’s power could be understood in two ways. Theoretically, the divine power is so unlimited that it encompasses any possibility (potentia absoluta); however, that which God has chosen to do, by creating this world and establishing its laws, is the exercise of God’s potentia ordinata. Later in the thirteenth century, potentia absoluta and potentia ordinata moved into the domain of law, based on an analogy between divine power and the power exercised by popes and kings. Canon law had long acknowledged that while the pope is obliged to obey and implement the fundamental laws of the church, he is also able to suspend the operation of particular laws when considered necessary for the greater good. Hostiensis made explicit use of the theological distinction, arguing that when the pope grants a dispensation or privilege from the ordinary operation of the law, he is acting de potestate absoluta, not de potestate ordinata.46 As John Milbank has pointed out, it was even suggested that in the exercise of this power, the pope, like God, “makes something that is, not be; and makes something that is not, come into being.”47 The same distinction soon came to be used in relation to the power of kings,48 influencing Bodin’s assertion that the prince is able by his “absolute power” to “derogate from ordinary law,”49 and Hobbes’s conviction that God’s power is entirely absolute.50 There also developed a tendency to characterize the royal prerogatives as belonging to the king’s absolute power, whereas the administration of justice according to law was associated with his ordinary power. Courtenay proposes that Duns Scotus provided unwitting support to this idea by suggesting that potentia absoluta designates not merely that which God is able to do as a matter of abstract possibility, but an active capacity to intervene in the world apart from the established order. Thus, for Scotus, “potentia ordinata means acting according to the law, de jure,” whereas acting “potentia absoluta is the ability to act apart from the law, de facto.”51 The premise of such formulations lay in the analogy that was drawn between the powers of God, the pope, and the prince.52 However, this construction came with a disturbing element, for unlike the divine potentia absoluta, which was originally only a theoretical possibility, the de potestate absoluta was concretely expressed

Christianity, sovereignty, and global law 275 in human action. Such a concept, applied in this way to the power of kings and popes, therefore introduced a potential for arbitrariness.53 The roots of this thinking run very deep. When the civil lawyers discussed the powers of the prince, they were often commenting on passages of Roman law which taught that the Roman people had conferred upon the emperor the fullness of sovereignty and power (imperium et potestatem), that whatever pleases the prince has the force of law (quod principi placuit, legis habet vigorem), and that the emperor is not bound by the law (princeps legibus solutus).54 Moreover, the emperor’s sovereignty was said to encompass the authority of all “lesser kings, princes and magistrates.”55 The emperor, it was observed, is “over all kings . . . and all nations are under him. . . . He is the lord of the world . . . and no king may gain an exemption from his authority.”56 To similar effect, Dante Alighieri “appropriated, like the jurists, theological language and ecclesiastical thought” in order to justify the sovereignty of the emperor.57 Jean Bethke Elshtain put it this way: Dante dreams a dream of unity . . . all of humanity should be gathered together under a single capacious canopy of political authority to be lodged in an emperor. . . . A unity of political rule makes possible an actualization of human potentialities with a world government directing the process. Human beings require a forging of many into one, and discrete units of rule are a “many” that stand in the way of unity, at least as they are presently constituted with each kingdom proclaiming its own autonomy against some other. It is the task—the very telos of empire—to forge a one. This and this alone is a precondition for world peace.58 Many centuries earlier, Eusebius of Caesarea had written similarly in his idealizing panegyrics in praise of Emperor Constantine. Observing that from of old the nations of the earth had been “variously distributed into provincial, national, and local governments” and subjected to “kingdoms and principalities of many kinds,” Eusebius argued that the consequences had been “war and strife, depopulation and captivity, which raged in country and city with unceasing fury.” However, with the proclamation of “one God” and the emergence of “one universal power” in the Roman imperium, the “enduring and implacable hatred of nation against nation” had given way to the dominion of a “single sovereign” under whom “profound peace reigned throughout the world.”59 This assessment contrasted sharply, however, with Augustine’s penetrating criticism of the Roman Empire, which he characterized as having secured its dominion through “constant wars of such a scale, in slaughter and the shedding of human blood” so that, once the nations had been subjected to its power, this gave way to an even worse state, a condition of “social and civil war” involving “incessant and innumerable devastations” and “unrelenting and unrelieved horrors.” True peace, Augustine maintained, is not secured through the exercise of power but is rather a “tranquillity of order” established in the bodies and souls of individual persons, potentially within families and cities committed to divine love

276  Nicholas Aroney and interpersonal justice, but only fully and completely in the “perfect and eternal peace” of that heavenly city which is the “supremely cooperative, supremely ordered association of those who enjoy God and one another in God.”60 Charles Norris Cochrane accordingly drew attention to the challenge posed by Christianity to the Greco-Roman belief that “it was possible to attain a goal of permanent security, peace and freedom through political action.” This latter notion was denounced by the early Christians “with uniform vigour and consistency.” For them, “the state, so far from being the supreme instrument of human emancipation and perfectibility, was a straight-jacket to be justified at best as a ‘remedy for sin.’ ” On this view, the state could no longer be regarded as the “ultimate form of community,” but merely as an instrument which regulated external behavior. It might “intimidate the evil and enable the good,” but only in the negative sense of condemning the evil act “without removing the evil disposition.” The state may engage in grand projects of reconstruction and renovation, and might even enlist Christianity in its support, but it cannot regenerate the heart or revive the will.61 That could only occur through the hearing of the Word of God, the inspiration of the Holy Spirit, and the ministry of the church. The desacralized state was thus reduced to what Oliver O’Donovan has called the task of “judgment.”62 Sovereignty, on this view, becomes nothing more than legitimate jurisdiction, the rightful but limited authority to do justice under law.

What is right about sovereignty? How should sovereignty be conceived? By limiting and relativizing the pretensions of the classical polis and imperium, the Christian faith generated a multiplicity of authorities functioning in diverse domains and at varying scales, from the most intimate and local to the most extended and global.63 The result was what John Milbank has described as “complex space”: the idea that human societies are properly understood to consist of an array of “intermediate” groups and institutions, such as families, neighborhoods, guilds, trade unions, religious associations and universities, which are “not simply subordinate to the greater whole.”64 It was against such an ordering of society that Jean Bodin and especially Thomas Hobbes argued in favor of state sovereignty. However, as Thomas Hueglin has pointed out, well into the early modern age there were two equally viable paths that could have been taken: One was the formation of centralized territorial nation-states, and in them the concentration of power at one single, unified, and exclusive centre of authority. The other was based on the maintenance of a plural organization of overlapping jurisdictions and shared power structures.65 This latter path was most systematically advocated by Johannes Althusius in his Politica Methodice Digesta, first published in 1603.66 Althusius expressly rejected the proposition, advanced by Bodin, that sovereignty (maiestas) is by its nature absolute, in the sense of being unlimited by

Christianity, sovereignty, and global law 277 positive or human law. His first reason was fundamental: all human authority must acknowledge “divine and natural law” (lex divina et naturalis) as superior.67 This is because the ruler is “a minister of God for your good,” and “if he is the minister of God, he can do nothing contrary to the commandment given by his Lord.” Thus, the supreme magistrate is constrained to administer justice within the commonwealth in a manner that accords with the second table of the Decalogue. For, as Augustine pointed out, “when justice is taken away, what are realms except great bands of robbers?” Bodin had conceded the subjection of the prince to divine and natural law. However, Althusius pointed out that civil and positive laws necessarily contain “a certain degree of that immutable equity which is both natural and divine.”68 It followed that to liberate power from civil law is to release it to a certain degree from the bonds of natural and divine law (lex naturalis et divina). For there is no civil law, nor can there be any, in which something of natural and divine immutable equity has not been mixed.69 And if the civil law accords with the natural and divine law, then the ruler is necessarily subject to that law. Accordingly, “absolute power, or what is called the plenitude of power,” simply “cannot be given to the supreme magistrate.”70 Even if a legal instrument, such as the Roman lex regia, were to vest sovereign powers upon a prince legibus solutus,71 Althusius maintained that such an instrument should be “closely interpreted,” in accordance with the principle that the true nature of magistracy is to govern for the welfare and benefit of the people. For every power in the commonwealth, even that which is relatively “supreme,” ought to be “limited by definite boundaries and laws,” and no power can of itself be “absolute, infinite, unbridled, arbitrary or lawless.”72 In Althusius’s account, the commonwealth is formed by “the agreement of many symbiotic associations and particular bodies, brought together under one right.” In this he differed sharply from the position later taken by Hobbes, and also John Locke, that the commonwealth is formed through a social contract among individuals. According to Althusius, an ascending series of covenanted agreements first gives rise to families and clans, then hamlets and villages, next towns and cities, later provinces and regions, and finally the universal association or commonwealth. For “families, cities and provinces existed by nature prior to realms, and gave birth to them.” Thus, the city is “an association formed by fixed laws and composed of many families and collegia living in the same place”; the province likewise “contains within its territory many villages, towns, outposts, and cities united under the communion and administration of one right”; and the commonwealth or “universal and major public association” is formed when “many cities and provinces obligate themselves to hold, organize, use, and defend, through their common energies and expenditures, the right of the realm (ius regni) in the mutual communication of things and services.” In such a scheme, the “supreme magistrate,” who has general authority over the entire commonwealth, has only as much right as is “explicitly conceded to him by the

278  Nicholas Aroney associated bodies,” for he is bound by the “fundamental law of the realm,” which is “nothing other than those pacts by which many cities and provinces come together and agree to establish and defend one and the same commonwealth.”73 In this context, Althusius speaks of a right of sovereignty (ius maiestatis), a “universal power of ruling” (potestas imperandi universalis), which recognizes no authority equal or superior to itself. However, unlike Bodin, he insists that the ius maiestatis is not held by the supreme magistrate as such but is vested in “the members of the realm jointly” and “the entire associated body of the realm.” For it is “the associated members of the realm” that have the power (potestas) to establish the ius regni, and it is only in and through the “consent and concord of the associated bodies” that the ius maiestatis is exercised.74 Accordingly, while the prince or supreme magistrate is the “steward, administrator, and overseer” of the rights of sovereignty, the “ownership and usufruct” of these rights properly belong to the associated body of the commonwealth as a whole.75 For the right to rule is nothing more than the duty to serve the utility of others, as Augustine taught. Moreover, for Althusius, this was not merely a theoretical proposition. He insisted that “the king, prince and optimates recognise this associated body as their superior, by which they are constituted, removed, exiled and deprived of authority.”76 And he argued that this responsibility to hold the supreme magistrate to account is vested in particular representative officials within the commonwealth, which, following John Calvin, he called “ephors.” The ephors are elected representatives of the commonwealth or universal association as a whole, responsible to constitute and support the supreme magistrate, as well as to employ their powers to ensure that the supreme magistrate is kept within the limits of his office, even to the point of deposing him as a tyrant. In addition to these general powers and responsibilities, the ephors also have special rights and duties as “dukes, princes, and counts” in the administration of their particular provinces and regions. Indeed, a special ephor has the same right and power within his province as the supreme magistrate has within the commonwealth as a whole. It follows that the special ephors, as representatives of the particular cities, provinces and estates of the realm, have the authority to respond to tyranny by withdrawing from the commonwealth and establishing their own separate and independent commonwealth.77 When sovereignty is understood in this qualified way, it provides good reason to be hesitant about the idea of a global community which exercises compulsory and universal power and which regards individuals, rather than states, as its constituent members. In Althusius’s theory, no political authority, not even one that is directed towards good and just ends, is justified if it is established without the participation of the smaller political communities in and through which it exercises its powers. Its very formation involves recognition that the smaller political associations are its constituents, and this constituency involves something like a kind of constituent power to which the exercise of sovereign powers of government are always accountable. As a consequence, every group, including the state, exercises authority within its “own appointed sphere.”78

Christianity, sovereignty, and global law 279

Conclusions There was a time when the term “sovereignty” did not mean or entail absolute power. Its earliest use in English suggests it was a relative term, suitably attributed to heads of households, mayors of towns and cities, superiors of monasteries, and rulers of nations alike.79 In such usage, sovereignty was identified with rightful authority, rather than merely coercive power.80 It is, therefore, something that can be exercised within many different spheres: church, state, and society.81 However, under the influence of the theories of Bodin, Hobbes, and others who followed in their wake, sovereignty came to mean a power that is original and absolute, the source of law rather than an authority derived from and bound by the law. This involved a transposition, from theology to politics, of the idea that the divine power includes, in principle, an absolute potentiality (potentia absoluta) unlimited by any particular act of God’s creative and ordaining will (potentia ordinata). This culminated in the idea that all law derives from the will of the sovereign, whether divine or human. Georg Hegel, consistent with his view that the state is the incarnation of God in history and is therefore “the source par excellence” of law, characterized international law as a kind of “external state law” (das außere Staatsrecht).82 Reflecting on these developments, Oliver O’Donovan has observed that the sovereign arbitrariness of God’s creative decree was taken into the human act of founding a society, so that it looked rather like a creation ex nihilo, presupposing no prior law, no preexisting social rationality, a new beginning, not merely relatively and politically, but absolutely and metaphysically.83 Carl Schmitt was in this respect correct to observe that sovereignty is the prime example of a secularized theological concept: the “omnipotent God” was transformed into “the omnipotent lawgiver.”84 Such a conception of sovereignty seems obviously to be resistant to the development of a global law that does not depend upon, but rather bypasses, the authority of modern nation-states. So long as states are sovereign, as Domingo has pointed out, there can be no global law, but only interstate or international law.85 But in imagining the possibility of a global order of law, care must be taken lest the potestas absoluta of modernity be eradicated at a state level only to be attributed to the institutions of a global legal community, thus creating a “world super state.”86 It is good to recall the observation of Martin Wight that, throughout history, “most states-systems have ended in universal empire, which has swallowed all the states of the system.”87 The political theory of Johannes Althusius offers an approach which guards against the establishment of a new imperium in the guise of a global legal order. Essential to his theory is the proposition that all legitimate political authority is related to, and depends upon, the active collaboration of smaller constituent political communities. In his time, Althusius’s theory resisted the establishment

280  Nicholas Aroney of the regime of state sovereignty advocated by Bodin and later Hobbes. In our time, his framework likewise resists the idea of a global legal community composed essentially of individual persons, even a democratic one governed by a global parliament. It does so by opposing the simple space of liberal modernity in which the authority of the state is based on the tacit consent of individuals and is exercised directly over individuals, insisting rather that the commonwealth or universal association is constituted by a succession of founding covenants (foedera) between families, guilds, cities, and provinces. For, as Milbank has argued, it is only within the complex space of a multifaceted network of free associations and overlapping jurisdictions that political sovereignty can effectively be dispersed, perhaps even dissolved.88 Today’s federations and confederations offer instructive models in this respect, even though they have been shaped by the post-Westphalian context in which they have developed. The federating processes through which contemporary federalized systems of governance are established typically depend upon the consent of a plurality of peoples, rather than a single people; they usually involve the establishment of governing institutions that represent both the people as a whole and the people organized into their respective provinces or states; and the constitutions of such systems can be altered only through processes of decision-making that recognize the organization of the peoples into their respective constituent units. In such systems it is difficult, if not impossible, to identify any particular locus of sovereignty.89 These recurrent features of federal systems reflect the principles that undergirded Althusius’s theory of politics. It is not enough that smaller units, such as towns, cities, provinces, or states, continue to exercise self-governing powers within their respective spheres. It is also vital that they be actively involved in the formation, governance, and operation of the larger political wholes of which they become constituent parts. In many of today’s federations, power has increasingly been centralized at the expense of the constituent units. These trends have frequently been promoted by precisely the kinds of appeals to the absoluteness and indivisibility of sovereignty that were advocated by figures such as Bodin and Hobbes. Thus, just as the construction of the modern sovereign state involved an “ever-increasing directness of relationship between the individual and the state,”90 so the centralization of power within federations has been justified through governing mechanisms that bring the individual and the federation into direct relationship, bypassing the cities and provinces of which the federation is composed. Separatist movements have also appealed to the principle of sovereignty in a way that identifies it exclusively with the irredentist region in contradistinction to the larger federal or unitary state of which it is a part. Sovereignty, when conceived in absolutist terms, makes it impossible to imagine the political order in a manner that is genuinely federal. This is because a federal ordering of politics depends on a conception of political authority that is plural rather than unitary.91 Considered in this light, the proposal that international law should be succeeded by global law requires careful assessment. Certainly, there are reasons to question the idea of an international legal order constituted as a system of

Christianity, sovereignty, and global law 281 absolutely sovereign states. But a conception of global law grounded in a form of individual citizenship is difficult to distinguish conceptually from the kind of thinking that gave us Hobbes’s Leviathan. St. Augustine taught us to be wary of the notion that true peace and true justice can be secured simply through the imperium and potestas of government, especially global or universal government. For, as O’Donovan has observed, the “ideal of world government” has, as a matter of practical experience, “proved impossible to disentangle from the realities of the imperial-colonial enterprise.”92 Such is human nature that it is always prone to the libido dominandi, especially as its power enlarges and intensifies. This is why it is vital that the federal principle remain central to our conceptions of law operating on a universal scale. For we must remain on guard lest a freshly cast system of global law transition all too easily from res publica to imperium, as it seems always to have done when universalizing projects are put into practice.

Notes 1 An earlier version of this chapter was presented at a seminar organized by the Programme for the Foundations of Law and Constitutional Government, Oxford University, July 24, 2019. Thanks are due to Nick Barber, Anthony Cassimatis, Rafael Domingo, Richard Ekins, Luke Glanville, Joel Harrison, Simon Kennedy, Pablo Ortuzar, Ewan Smith, John Witte, Jr., and Paul Yowell for their comments. 2 Walker, 18–24. 3 Domingo, “A Global Law for a Global Community,” 1. 4 Domingo, The New Global Law, 92, 145–46, 166. 5 Ibid., xvi. 6 Ibid., 71–72. 7 Jens Bartelson observes that while sovereignty is “essentially contested as to its meaning,” it is “essentially uncontested” as to its foundational role in modern political discourse: Bartelson, 14. 8 Charter of the United Nations (1945), Preamble, Arts. 2.1, 2.4, 2.7; see also Art. 78. 9 Sinclair, 10–21. 10 Vienna Convention on the Law of Treaties (signed 1969, came into force 1980), Preamble, Arts. 1(a), 11, 24.2, 34. See also Henkin, 11. 11 Vienna Convention, Arts. 26, 52. 12 Subject to any reservations it may have made, as in turn qualified by any objections by other state parties pursuant to the treaty: Vienna Convention, Arts. 19–23; see Cassese, 173–75. 13 Vienna Convention, Arts. 49–54. Withdrawal from or denunciation of a treaty is also possible where it is established that the parties intended to admit the possibility of doing so or the right to do so can be implied from the nature of the treaty: Vienna Convention Art. 56.1. 14 Vienna Convention, Arts. 39–41. 15 Charter of the United Nations (1945), Preamble, Arts. 1.2, 73. See, likewise, Art. 76 in relation to trust territories. 16 See International Covenant on Civil and Political Rights (1966), Art. 1.1; International Covenant on Economic, Social and Cultural Rights (1966), Art. 1.1. 17 Glanville, 85–86. 18 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, UNGA Resolution 2131 [XX] (1965), cited in ibid., 86.

282  Nicholas Aroney 19 Cassese, 48. He adds that the principle is the only one on which there is “unqualified agreement” among states “regardless of ideologies, political leanings, and circumstances.” 20 Condorelli and Cassese, 14–18. 21 Oppenheim, Vol. 1, 206–7 (§ 123). 22 Ibid., 207–8 (§ 124). 23 As Martin Wight observed, “It would be impossible to have a society of sovereign states unless each state, while claiming sovereignty for itself, recognized that every other state had the right to claim and enjoy its own sovereignty as well”: Wight, 135. 24 Oppenheim, Vol. 1, 208–15, 221–29 (§§ 125–29, 134–37). On the duty to protect, see Glanville, Sovereignty and the Responsibility to Protect. 25 Bodin, On Sovereignty, I.8, p 1. On Bodin’s significance, see Skinner, 286–301; Hinsley, 119–25; Bartelson, 141–43. 26 Bodin, I.8, p 1. Bodin’s Latin translation rendered the sentence thus: “maiestas est summa in cives legibusque solute potestas.” See Domingo, New Global Law, 66, and Domingo, “Roman Law and Global Constitutionalism.” 27 Bodin, I.8, pp. 3, 4, 7–8, 11, 13, 19; see also pp. 23, 32, 39; I.10, p 51. 28 Ibid., I.8, p. 34; I.10, pp. 46, 50. 29 Maritain, “The Concept of Sovereignty,” 343, 344, 346. 30 Hobbes, Leviathan, II.17, p. 132 [87]. On Hobbes’s significance, see Hinsley, 141–57. 31 Bodin, II.17, p. 132 [87]–[88]. 32 Hinsley, 143–44. 33 Negretto, 179. 34 Hobbes, Leviathan, I.15, p. 110 [182]; I.16, p. 123 [80]; II.20, p. 160 [170]; II.26, p. 203 [137], p. 208 [140]; II.31, p. 276 [187]. See also Hobbes, A Dialogue, Vol. 11, p. 31. 35 Hobbes, Leviathan, II.9, 250 [169]; II.18, pp. 133–39 [88]–[92], p. 139 [92]– [93]; II.22, p. 172 [115], pp. 175–77 [118], p. 181 [121]–[122]; II.26, p. 204 [137]–[138]; II.29, pp. 253–54 [171]–[172], p. 251 [170], pp. 256–57 [174]; II.30, p. 268 [71]. 36 Bodin drew a similar set of conclusions. See Bodin, I.10, pp. 48–49, 52. 37 Ibid. II.29, pp. 253–54; III.42, pp. 384–85, 421–24, 427–28; III:35, pp. 314– 15; III.38, pp. 345–60; III:41, pp. 375–76; IV.44, pp. 486–90, 474–75; IV.46, pp. 526–27. See also Wright, 20, and Wright’s translation of Hobbes’s “Appendix” to Leviathan (1688), §§ 193–94, 199–200, pp. 160, 162. 38 Negretto, 186. 39 Hobbes, Leviathan, I.12, p. 96 [61]; II.30, p. 273 [185]. 40 Ibid., I.13, p. 98 [63]. 41 Malcolm, ch. 13, “Hobbes’s Theory of International Relations.” 42 Bodin, I.8 pp. 13–14, 45. 43 Jens Bartelson has written of an “ideological deification of sovereign authority”: Bartelson, 153. 44 Augustine, Enchiridion, XXIV.96. 45 Courtenay, 243, 244–47. See also Boh, 185. 46 Ibid., 252. 47 Milbank, 194–95, citing Hostiensis, Summa Aurea (1250–53) and discussing Kantorowicz, “The Sovereignty of the Artist.” 48 Oakley, The Watershed of Modern Politics, ch. 5. 49 Oakley, “Jacobean Political Theology,” 329–30, citing Bodin, Six Books on the Commonwealth, I.8, p. 13. 50 Foisneau, 271. 51 Courtenay, 254.

Christianity, sovereignty, and global law 283 2 Oakley, “Jacobean Political Theology,” 332–33. 5 53 Courtenay, 253. On the “operationalisation” of the potentia absoluta, see also Oakley, “The Absolute and Ordained Power of God in Sixteenth- and SeventeenthCentury Theology,” 437; Oakley, “The Absolute and Ordained Power of God and King in the Sixteenth and Seventeenth Centuries,’’ 669. 54 Justinian, Digest, I.3.3; I.4.1. 55 Pennington, “Law, Legislative Authority, and Theories of Government, 1150– 1300,” 424, 432. 56 Ibid., 432. 57 Kantorowicz, The King’s Two Bodies, 463. 58 Elshtain, 69–70. 59 Eusebius, 58. 60 Augustine, City of God, XIX.7; XIX.13, 20. 61 Cochrane, vi, 509–10, citing Augustine, City of God, XIII.5. 62 O’Donovan, The Desire of the Nations, 146–51. 63 Berman, 10. 64 Milbank, 268, 276. 65 Hueglin, 169. 66 For more detail, see Chapter 7 in this volume. Interest in Althusius’s work was revived by Gierke in his Johannes Althusius and was a seminal influence on the pluralist thought of Frederick Maitland, John Neville Figgis, Abraham Kuyper, and Herman Dooyeweerd. See Runciman; and Van der Vyver. 67 Althusius, Politica: An Abridged Translation, IX.21. 68 Ibid., IX.21 (citing Romans 13:1 and Augustine, City of God, IV.4); X.1. 69 Ibid., IX.21. 70 Ibid., XIX.9–11. 71 Digest, 1.4.1. 72 Althusius, Politica, XIX.35 (again citing Augustine, City of God, IV.4); XVIII.106. 73 Ibid., V.8; VII.1; IX.1, 3, 5; XIX.6–7, 49. 74 Ibid., IX.15, 18, 19, 25. 75 Althusius, “Preface to the First Edition (1603),” in ibid., 7; see also ibid., XXXVII.1. 76 Ibid., IX.22, 27 (citing Augustine, City of God, XIX.15). 77 Althusius, Politica, XVIII.48, 63, 88, 90; XX.20; XXXVIII.28–29, 50, 61, 76, 112. 78 Runciman, 45. 79 For an array of examples, see Oxford English Dictionary, 2nd ed, sv “sovereign,” “sovereignty.” 80 Elshtain, Sovereignty, 43. 81 Kuyper, 79: “the Sovereignty of the Triune God over the whole cosmos, in all its spheres and kingdoms . . . eradiates in mankind in a threefold deduced supremacy, viz., 1. The Sovereignty in the State; 2. The Sovereignty in Society; and 3. The Sovereignty in the Church.” 82 Hegel, §§ 330, 331. 83 O’Donovan, “Government as Judgment.” 84 Schmitt, 37. On Schmitt’s motives and presuppositions, see Howse, 212. 85 Domingo, New Global Law, 49. 86 Ibid., 71, 103, 117. 87 Wight, 43. 88 Ibid., 276. 89 For details, see Aroney, “Formation,” 277; and Aroney, “Constituent Power,” 5. 90 Cavanaugh, 243, 260. 91 Moltmann, 19. 92 O’Donovan, Ways of Judgment, 214.

284  Nicholas Aroney

Bibliography Althusius, Johannes. Politica: An Abridged Translation. Translated by Frederick Carney. Indianapolis, IN: Liberty Fund, 1995. Althusius, Johannes. Politica methodice digesta atque exemplis sacris & profanis illustrate. 3rd ed. Herborn, 1614. Aroney, Nicholas. “Constituent Power and the Constituent States: Towards a Theory of the Amendment of Federal Constitutions.” Jus Politicum: Revue de droit politique 17 (2017). Aroney, Nicholas. “Formation, Representation and Amendment in Federal Constitutions.” American Journal of Comparative Law 54/1 (2006). Augustine. City of God. Translated by R.W. Dyson. Cambridge: Cambridge University Press, 1998. Augustine. Enchiridion: On Faith, Hope, and Love. Translated by Albert C. Outler. Louisville: Westminster Press, 1955. Bartelson, Jens. A Genealogy of Sovereignty. Cambridge: Cambridge University Press, 1995. Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press, 1983. Bodin, Jean. On Sovereignty: Four Chapters from the Six Books of the Commonwealth. Translated by Julian H. Franklin. Cambridge: Cambridge University Press, 1992. Boh, Ivan. “Divine Omnipotence in the Early Sentences.” In Rudavsky, Divine Omniscience. Cassese, Antonio. International Law. 2nd ed. Oxford: Oxford University Press, 2005. Cavanaugh, William T. “Killing for the Telephone Company: Why the Nation-State Is Not the Keeper of the Common Good.” Modern Theology 20/2 (2004). Cochrane, Charles Norris. Christianity and Classical Culture: A Study of Thought and Action from Augustus to Augustine. Oxford: Oxford University Press, 1944. Condorelli, Luigi, and Antonio Cassese. “Is Leviathan Still Holding Sway Over International Dealings?” In Realizing Utopia: The Future of International Law, edited by Antonio Cassese. Oxford: Oxford University Press, 2012. Courtenay, William J. “The Dialectic of Omnipotence in the High and Late Middle Ages.” In Rudavsky, Divine Omniscience and Omnipotence in Medieval Philosophy. Domingo, Rafael. “A Global Law for a Global Community.” In Globalization of Law: The Role of Human Dignity, edited by Maciej Dybowski and Rafael García Pérez. Cizur Menor, Navarra: Thomson Reuters Aranzadi, 2018. Domingo, Rafael. The New Global Law. Cambridge: Cambridge University Press, 2010. Domingo, Rafael. “Roman Law and Global Constitutionalism.” San Diego International Law Journal 20 (2019) 1–24. Elshtain, Jean Bethke. Sovereignty: God, State, and Self. New York: Basic Books, 2008. Eusebius of Caesarea. “From a Speech on the Dedication of the Holy Sepulchre Church.” In From Irenaeus to Grotius: A Sourcebook in Christian Political Thought, 100–1625, edited by Oliver O’Donovan and Joan Lockwood O’Donovan. Grand Rapids, MI: Eerdmans, 1999. Foisneau, Luc. “Omnipotence, Necessity and Sovereignty: Hobbes and the Absolute and Ordinary Powers of God and King.” In The Cambridge Companion to Hobbes’s Leviathan, edited by Patricia Springborg. Cambridge: Cambridge University Press, 2007.

Christianity, sovereignty, and global law 285 Gierke, Otto von. Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien. Breslau, 1880. Glanville, Luke. “The Myth of ‘Traditional’ Sovereignty.” International Studies Quarterly 57/1 (2013). Glanville, Luke. Sovereignty and the Responsibility to Protect: A New History. Chicago: University of Chicago Press, 2014. Hegel, G.W.F. Elements of the Philosophy of Right. Translated by H.B. Nisbet. Cambridge: Cambridge University Press, first published 1821, 1991. Henkin, Louis. International Law: Politics and Values. Dordrecht: Martinus Nijhoff, 1995. Hinsley, F.H. Sovereignty. 2nd ed. Cambridge: Cambridge University Press, 1986. Hobbes, Thomas. “A Dialogue Between a Philosopher and a Student, of the Common Laws of England.” In The Clarendon Edition of the Works of Thomas Hobbes, edited by Alan Cromartie and Quentin Skinner. Oxford: Clarendon Press, 2005. Hobbes, Thomas. Leviathan, or the Matter, Forme, & Power of a Common-Wealth Ecclesiastical and Civill. 1651. Reprint ed. Oxford: Clarendon Press, 1929. Howse, Robert. “Schmitt, Schmitteanism and Contemporary International Legal Theory.” In The Oxford Handbook of the Theory of International Law, edited by Anne Orford and Florian Hoffmann. Oxford: Oxford University Press, 2016. Hueglin, Thomas O. Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism. Waterloo, OT: Wilfrid Laurier University Press, 1999. Justinian. The Digest of Justinian. Translated by Alan Watson. Philadelphia: University of Pennsylvania Press, 1998. Kantorowicz, Ernst H. The King’s Two Bodies: A Study in Mediaeval Political Theology. Princeton, NJ: Princeton University Press, 1957. Kantorowicz, Ernst H. “The Sovereignty of the Artist: A Note on Legal Maxims and Renaissance Theories of Art.” In Selected Studies. Locust Valley, NY: J.J. Augustin, 1965. Kuyper, Abraham. Lectures on Calvinism. Grand Rapids, MI: Eerdmanns, 1931. Malcolm, Noel. Aspects of Hobbes. Oxford: Oxford University Press, 2004. Maritain, Jacques. “The Concept of Sovereignty.” American Political Science Review 44 (1950). Milbank, John. Beyond Secular Order: The Representation of Being and the Representation of the People. Hoboken, NJ: Wiley Blackwell, 2013. Milbank, John “On Complex Space.” In The Word Made Strange: Theology, Language, Culture. Oxford: Blackwell, 1997. Moltmann, Jürgen. “Covenant or Leviathan? Political Theology for Modern Times.” Scottish Journal of Theology 47/1 (1994). Negretto, Gabriel L. “Hobbes’ Leviathan: The Irresistible Power of a Mortal God.” Analisi e diritto: Ricerche di giurisprudenza analitica 2001. Oakley, Francis. “The Absolute and Ordained Power of God and King in the Sixteenth and Seventeenth Centuries: Philosophy, Science, Politics, and Law.” Journal of the History of Ideas 59/4 (1998). Oakley, Francis. “The Absolute and Ordained Power of God in Sixteenth- and Seventeenth-Century Theology.” Journal of the History of Ideas 59/3 (1998). Oakley, Francis. “Jacobean Political Theology: The Absolute and Ordinary Powers of the King.” Journal of the History of Ideas 29/3 (1968). Oakley, Francis. The Watershed of Modern Politics: Law, Virtue, Kingship, and Consent (1300–1650). New Haven: Yale University Press, 2015.

286  Nicholas Aroney O’Donovan, Oliver. The Desire of the Nations: Rediscovering the Roots of Political Theology. Cambridge: Cambridge University Press, 1996. O’Donovan, Oliver. “Government as Judgment.” First Things 92 (April 1999): 36. O’Donovan, Oliver. The Ways of Judgment. Grand Rapids, MI: Eerdmans, 2005. Oppenheim, Lassa. International Law: A Treatise. Edited by Ronald Roxburgh. 3rd ed. London: Longmans, Green and Co, 1920. Pennington, Kenneth. “Law, Legislative Authority, and Theories of Government, 1150–1300.” In The Cambridge History of Medieval Political Thought C. 350—C. 1450, edited by J.H. Burns. Cambridge: Cambridge University Press, 1988. Rudavsky, Tamar, ed. Divine Omniscience and Omnipotence in Medieval Philosophy: Islamic, Jewish and Christian Perspectives. Dordrecht: Springer, 1985. Runciman, David. Pluralism and the Personality of the State. Cambridge: Cambridge University Press, 1997. Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Translated by George Schwab. Chicago: University of Chicago Press, [1922] 2005. Sinclair, Ian. The Vienna Convention on the Law of Treaties. 2nd ed. Manchester: Manchester University Press, 1984. Skinner, Quentin. The Foundations of Modern Political Thought. Volume II: The Age of Reformation. Cambridge: Cambridge University Press, 1978. Van Der Vyver, Johan D. “Sphere Sovereignty of Religious Institutions: A Contemporary Calvinistic Theory of Church-State Relations.” In Church Autonomy: A Comparative Survey, edited by Gerhard Robbers. Frankfurt am Main: Peter Lang, 2001. Walker, Neil. Intimations of Global Law. Cambridge: Cambridge University Press, 2015. Wight, Martin. Systems of States. Leicester: Leicester University Press, 1977. Wright, George Herbert. Religion, Politics and Thomas Hobbes. Dordrecht: Springer, 2005.

17 Christianity and the principle of solidarity Ana Marta González

Introduction: a new word for a new world Solidarity is a suggestive term. It evokes a fraternal ethos, which intuitively brings to mind ideas of unity, togetherness, and mutuality wherein we feel and meet the needs of the other as we feel and meet our own. It is also a modern term, which directs our attention to the social consequences of the industrial revolution and the initiatives and structural solutions designed to confront them. Although the Latin language did not have a word for solidarity, Roman law had an institution that represents a relative antecedent to it: Obligatio in solidum,1 or “liability in solidum,” meant that “several persons owe one performance in such a manner that each of them is bound to effect the whole performance, but the creditor is entitled to demand the performance only once.”2 This juridical institution was the basic reference for solidarity in secular affairs until the end of the eighteenth century;3 the emergence of the “social question” in the nineteenth century brought the word to the fore. The word “solidarity” came to encapsulate an ethical and social challenge, namely how to bring about a fraternal ethos in a context marked by the dissolution of traditional social bonds and the emergence of strong class divisions that threatened to fracture society. This challenge sparked reflection on the nature of social bonds and social organization in modern circumstances. In the hands of the emerging discipline of sociology, this involved the dissociation of scientific knowledge and humanitarian sentiment;4 “solidarity” came to designate both the fact of human interdependence and the ethical requirements derived from it, an ambivalence which has always haunted the concept. Similarly, the practice of solidarity oscillates between institutional and relational approaches to it. Both tensions are present in the history of the idea of solidarity and explain the different ways it has been worked out and incorporated within socialism, solidarism, and Christianity. While both socialism and solidarism came to frame solidarity mostly in political and sociological terms, Christianity approached it from a theological and practical perspective. Catholic Social Teaching (CST) presents itself as offering a theological point of view to judge social matters, leaving to the faithful the task of articulating their own views and extracting the practical consequences from them, at both the

288  Ana Marta González individual and the sociopolitical level. The term solidarity as such was included relatively late in CST. The first time the word “solidarity” appeared in a pontifical text was in Pius XII’s Christmas message in 1947. Heinrich Pesch, Oswald von Nell-Breuning, and Gustav Grundlach, counselor to Pius XI and Pius XII, paved the way toward inclusion of the term.5 Later on, John XXIII devoted several paragraphs to solidarity in Pacem in terris (1963), as did Paul VI in Populorum Progressio (1967), speaking of the social bond that unites the entire human family beyond racial and national divisions (PP, 62–63). John Paul II made solidarity central to CST by devoting an entire encyclical, Sollicitudo rei socialis (1987), to it, both as a principle of social order and as a virtue. More recently, Benedict XVI and Francis have elaborated further on the requirements of the principle of solidarity in the context of globalization. Outside of Catholicism and on the other side of the Atlantic, Baptist pastor and theologian Walter Rauschenbusch, author of Christianity and the Social Crisis (1907) and The Social Principles of Jesus (1916), pioneered the practice of solidarity. His work influenced the development of the Social Gospel, inspiring many initiatives beginning in the late nineteenth century, such as the settlement movement, proof of a kind of bottom-up solidarity that complements the top-down solidarity developed in Continental Europe. It has been argued that Catholic and Calvinist approaches to the social question are more in line with each other than either is with Lutheran ones, insofar as the former tend to stress the principle of subsidiarity while the latter is more linked to the strengthening of the state.6 In all cases, however, the incorporation of the term solidarity was a relatively late phenomenon. Part of the reason lies in the polemical use of the term by some of its original proponents, for whom solidarity represented a “more efficient” response to social suffering than Christian charity.7 Nevertheless, given Christian thinkers’ lack of interest in class struggle, the ideas evoked by the word “solidarity” resonated well within Christianity, which drew upon its own sources for thinking about and practicing the social requirements of charity, including the experience of early Christian communities (Acts 2:42–45), the inseparability of God’s love and love for one’s neighbor (Matthew 25:31–46; 1 John 4:10–11), and St. Paul’s words about the church as the mystical body of Christ (1 Corinthians 12:12–31; Romans 12:5), which brought unquestionable depth to the core idea of solidarity and found ample echo within French social thought.8 Thus, by the end of the nineteenth century, solidarism evolved towards a more harmonious relationship with Christian charity, an evolution matched by similar progress on the Christian front,9 where the practice of solidarity was becoming a locus of ecumenical encounter. Throughout the twentieth century, the term has found its place within Christian thought as a specific principle and virtue that should both animate and structure social and political life. Beyond this, the high value accorded to solidarity has become one of the most powerful signs of humanity in our times. At the same time, many important questions and challenges concerning both the concept and the practice of solidarity remain.9 Some have to do with the

Christianity and solidarity 289 sources and scope of the fraternal ethos that the term evokes. Indeed, along with aspirations toward universal solidarity, which conjure up our common humanity and destiny as grounds for caring for each other and for humanity as a whole, we also have ample experience with tribal and divisive solidarities grounded on dialectical oppositions, which work against universalistic aspirations. Four main sets of questions thus arise. 1

Does solidarity merely refer to the “social fact”—the fact of human togetherness and interdependence—or does it involve an ethical requirement? Were it just a natural or social fact, there would be no point in speaking of solidarity as a principle or duty or virtue, for these are normative concepts, which cannot be derived from natural facts, lest we fall into the naturalistic fallacy. While many people have argued for naturalistic foundations of human solidarity by pointing toward evolution, sentiment, and sympathy as sources of social bonds, an argument for solidarity as an ethical requirement requires resorting to reason. 2 Assuming that solidarity represents an ethical requirement, how should we think of it: as a principle guiding both individual behavior and social organization, or as a specific duty for individuals, or as both? What does it require from us? When does it apply? Does it commit us to satisfying every kind of human need, in all kinds of situations, or is it restricted to certain needs in specific situations? Should we represent it as an imperfect or a perfect duty? Accordingly, can it adopt a juridical form or not? Indeed, how does solidarity stand in relation to justice and beneficence? 3 Is there a duty to institutionalize solidarity? Are we required to organize ourselves so that we can meet the basic needs of each member, and of society as a whole? Are we required not merely to enter into a civil state but also to develop the civil state into a social state? This has been the idea behind the different systems of social security developed in the past century, which rely on the institutionalization—and enforcement—of a cooperative solidarity largely based on the centrality of work in human society and thus potentially affected by changes in the world of work. By reference to these cooperative systems, we blame free riders who benefit without contributing their part. 4 In other cases, however—such as humanitarian aid—solidarity adopts an entirely different form: it is spontaneous rather than coerced, and we do not think everybody is equally obliged to cooperate. How can we make sense of this asymmetry in our approaches to solidarity? Should we aim at institutionalizing solidarity at the global level, as we have done in the past at the national level? Should we simply rely on spontaneous solidarity, as we have up to now? Can institutionalized, coercible solidarity coexist with the personal virtue of solidarity, which as such can only be exercised freely? On what terms could it do so? While these questions represent some of the conceptual problems to be addressed by any reflection on the idea of solidarity, their very formulation presupposes

290  Ana Marta González contributions from both secular and Christian thinkers in the last two centuries. In what follows, I summarize some of the ideas that need to be taken into account in order to adequately frame these problems and their solutions.

Substantive contributions to the discussion on solidarity Approaches from social theory and solidarism While in Marxist “scientific” socialism solidarity quickly became linked to class consciousness and class struggle that resisted any form of compromise,10 the many authors that contributed to the rather loose current of French solidarism were not as concerned with class solidarity as they were with social integration and the issue of the social bond.11 Emile Durkheim was interested in showing that a purely utilitarian approach to social relationships, one that tries to ground a contract’s binding power in mutual advantage, is not enough to account for the contract’s binding force because the social institution of contract exceeds the intentions of the parties. In The Division of Labor in Society (1893), he argued that social integration depends generally on individuals’ attachment to the beliefs, norms, and values that make up the morals of a society. He also observed that modern societies were holding together because of an increasing functional interdependence based on differences derived from the division of labor; he characterized that interdependence as “organic solidarity” to distinguish it from “mechanical solidarity” based on similarities and proper to traditional societies. Over time, he came to recognize that in every society, including modern ones, a set of norms binds individuals together, engendering their support. Paradoxically, the “ethics” he envisioned as binding modern societies together amounts to the sacred value that everyone accords to the individual. In spite of conflating the typology and the genealogy of solidarity, Durkheim’s approach to solidarity remains a benchmark in the development of the idea. Interestingly, he held that, in order for solidarity to be functional and organic, the division of work must develop somewhat spontaneously. Yet in the context of the Third French Republic, the problem of social integration was subject to a juridical and political “solution.” By introducing solidarity in the realm of public law, Léon Bourgeois, one of the leading figures in solidarist thought, author of Solidarité (1896), and a prominent politician, prepared the ground for Pierre Laroque’s establishment of the French system of social security in 1944; that year, too, the United Kingdom implemented the Beveridge Report, which defined another social security model and remains a milestone in the history of the welfare state. One question that could be raised in this regard refers to the nature of this kind of solidarity that relies more on juridical enforcement than on spontaneous action and giving. This coerced nature marks an important difference with Christian charity,12 not because charity cannot be institutionalized, but rather because in order to remain charity it needs to be free. As St. Paul urged the Corinthians, “Each of you should give what you have decided in your heart to give, not

Christianity and solidarity 291 reluctantly or under compulsion, for God loves a cheerful giver” (2 Corinthians 9:7). Interestingly, the famous Essai sur le don (1924) by Marcel Mauss (Durkheim’s nephew) described the social bonds generated in archaic societies, where a social obligation to return a gift exists, which goes far beyond what a strict conception of justice, understood as the sheer exchange of equivalents, requires. At any rate, the French approach to the social question in terms of “integration” was different from the social legislation that Bismarck had advanced in Germany some years earlier; German laws were for their part intended as a way of providing security to the vulnerable working class—indirectly appeasing socialist initiatives. Both approaches, in turn, contrasted with the manifold initiatives that developed in the United Kingdom and the United States around the settlement movement,13 Robert Owen’s inspired cooperative workshops, and others.14 From a theoretical point of view, these initiatives represented a relational and bottom-up solidarity aligned with Alexis de Tocqueville’s observations regarding participation in American social and political life. These kinds of initiatives lent themselves better to explanation through a micro approach to social realities rather than through Durkheim’s macrosocial categories. For example, Georg Simmel did not speak so much of communal bonds as of sociability, a form of social relationship that emerges in the context of modern societies where we are bound to meet with strangers. The originality of Simmel’s approach can be appreciated best in light of Ferdinand Tönnies’s societal typology. Töennies spoke of Gemeinschaft and Gesellschaft to illustrate the transition from traditional societies to modern ones, thinking that the former, communal bonds were “natural” while the latter, societal bonds were “voluntary.” Although this idea has been criticized for arguing that paradigmatic forms of Gemeinschaft such as family or friendship are originated voluntarily15 the point is that Simmel was not as interested in recovering traditional Gemeinschaft as in exploring the social forms that characterize modern life. If solidarity fell within traditional bonds, then he was not interested in solidarity. A question remains, though, about the proper meaning of solidarity. For Max Weber, for example, the interest-based solidarity found in unions could not simply be referred back to traditional bonds or to modern ones, because it involves a sense of belonging proper to Gemeinschaft, combined with rationality proper to Gesellschaft. Could this mixture also explain the associationist initiatives mentioned earlier? Weber’s focus on social relationships led him to view solidarity more as a relationship based on reciprocal expectations than as a behavior resulting from assimilating a legitimate order;16 Talcott Parsons would follow this line of thought, noting that in modern societies we find forms of solidarity other than those found in the family. An example is influence: “Attempting to influence,” he wrote, is to a degree an attempt to establish a common bond of solidarity. [. . .] [B]eing subject to mutual influence is to constitute a “we” in the sense that the parties have opinions and attitudes in common by virtue of which they ‘stand together’ relative to those differing from them.17

292  Ana Marta González It is important to note that social relationships and reciprocal expectations need not be based merely on class interests or, more generally, on the exchange of equivalent values. Accordingly, Simmel insisted on the symbolic dimension of social exchanges, as did Alfred Schütz, Charles Horton Cooley,18 and the American school of symbolic interactionism, all of which shed light on the source of cooperative behaviors and helped us understand grass-root solidarity, which could be easily missing from a macro perspective. According to the standard view, Durkheim himself evolved from a more positivistic approach to society towards a more idealistic one, in which elements involved in individual agency played a greater role.19 Given this new focus on agency, it is not a surprise that Maurice Blondel’s work on L’Action (1893) was well received among solidarist circles in France. Victor Delbos found Blondel’s book interesting with regard to its approach to the social dimension of agency, as conveyed by signs and symbols: “Blondel outscores when he describes these facts of moral contagion and social solidarity.”20 Indeed, in Blondel’s words, “we never act alone”:21 There is no act, however interior it may be, but always forced to express itself, that does not call for a sort of complaisance and collaboration outside the individual. A gesture, a word, are possible only through the milieu where they manifest themselves. The phenomenon is neither from ourselves alone nor from the surrounding world alone; it is from both and, as it were, indivisibly so.22 The exterior operation of the will . . . constitutes a synthesis of phenomena that contain between them an internal energy, a forced cooperation. In this way the common terrain is constituted where the inevitable exchanges take place and the universal solidarity is consolidated.23 Blondel exerted an important influence on theologian Henri de Lubac, whose work Catholicisme: les aspects sociaux du dogme (1938) remains a reference for understanding the social dimension of Christianity.24 Likewise, the major philosophical work of Karol Wojtyla (later Pope John Paul II), The Acting Person (1969), which includes a final chapter devoted to “participation,” was also in debt to Blondel’s work. Focus on human agency is relevant in order to appreciate the contrast and the necessary complementarity between structural and relational approaches to solidarity. After all, such complementarity is at the heart of this concept, insofar as it attempts to bring about a fraternal ethos in the context of modern, highly mobile societies. Sociologist Pitirim Sorokin went to the heart of the matter when he realized the changes undergone by solidarity in modern circumstances.25 Precisely Sorokin is among the authors who have invoked solidarity as a mark of a harmonious social system. Yet he has done so in a different sense than the one developed in French solidarism. For Sorokin, the social dimension does not exhaust humanity; humanity also encompasses culture and personality. A well-ordered society that truly serves the common good of human beings needs to consider all three elements. Social equilibrium is, for him, dynamic, in view of the social

Christianity and solidarity 293 relationships that individuals establish with one another, and requires participation of the people as well as of social institutions and organizations. Interestingly, he reflects extensively on the uniting power of love;26 solidarity and love become key pieces of Sorokin’s theory of social equilibrium, which is neither mechanistic like the theories of Léon Walras and Vilfredo Pareto nor organistic like those of Alfred Fouille or Bourgeois.27 For Sorokin, our social dimension derives from our being human subjects: we are social because we are solidary in the first place (we share human nature) and not the other way around. On this basis, he characterizes solidary interactions by convergence of aspirations and actions, as well as the mutuality of those involved in the interaction found in the achievement of goals; additionally, he also offers a rich classification of solidarity forms.28 Sorokin’s approach makes clear why neither a merely naturalistic nor a merely structural approach to solidarity is sufficient for understanding the moral phenomenon of solidarity, which includes the question of why individuals spontaneously engage in solidary actions in a variety of contexts. In order to answer that question, we need to focus on the sources of human cooperation, on agency and relationships. This brings us close to heart of Catholic Social Teaching on solidarity, insofar as this doctrine places the human person at the core of social life.

Approaches to solidarity in recent Catholic social teaching In Libertas Conscientia (1983), an important document signed by Cardinal Joseph Ratzinger a few months before the publication of Sollicitudo rei Socialis, the principles of solidarity and subsidiarity appear together and are intimately linked to human dignity: By virtue of the first [solidarity], man with his brothers is obliged to contribute to the common good of society at all its levels. Hence the [Catholic] Church’s doctrine is opposed to all the forms of social or political individualism. By virtue of the second [subsidiarity], neither the state nor any society must ever substitute itself for the initiative and responsibility of individuals and of intermediate communities at the level on which they can function; nor must they take away the room necessary for their freedom. Hence the Church’s social doctrine is opposed to all forms of collectivism. (LC, 73) The requisite interplay of subsidiarity and solidarity is a consequence of human dignity because it involves taking the human being as intrinsically capable of contributing to his or her own development, as well as to the development of others. This approach to solidarity might be taken as an indicator that the core idea of solidarity has always been operative in the Christian approach to social affairs, providing it with a basic direction: while Christian thought and practice are not opposed to structural approaches to solidarity, they certainly require those approaches to be consistent with the responsible development of human freedom and the virtue of solidarity. This imperative emerges clearly and explicitly

294  Ana Marta González in John Paul II’s approach to the topic in Sollicitudo rei socialis (1983): solidarity and liberty must go together in order to foster authentic development, without sacrificing any part of one to the other (SRS, 33). Thus, while Paul VI had already pointed at solidarity as both a fact and a duty (PP, 17), John Paul II interpreted the fact that people are concerned about the destiny of other persons as a sign that the factual interdependence proper to the modern world (SRS, 26) has been transformed into “conscience,” acquiring thereby a moral character (SRS, 38). In this moral context, he spoke of solidarity as a Christian virtue (SRS, 40) closely linked to charity that is to be practiced at the individual, national, and international levels. In Centessimus Annus (1991), John Paul II reasserted the interplay of solidarity and subsidiarity as one of the fundamental principles of the Christian approach to social and political organization (CA, 10), introducing a reference to what he called “the subjectivity of society.” He stressed that the social nature of humanity is not completely fulfilled in the state but is realized in various intermediary groups, beginning with the family and including economic, social, political, and cultural groups which stem from human nature itself and have their own autonomy, always with a view to the common good. (CA, 13) While recognizing and stressing the role of the state in determining the juridical framework for economic affairs (CA, 15), he referred to subsidiarity and solidarity as the indirect and the direct ways respectively that the state has to promote a fair economic system (CA, 15). The complementary role of both principles emerges again when he refers to the “malfunctions and defects in the social assistance state” as “the result of an inadequate understanding of the tasks proper to the state.” Correcting these defects requires respect for the principle of subsidiarity: A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good. (CA, 48) Interestingly, he pointed at the principle of subsidiarity as a way of promoting a culture of solidarity (CA, 49) and highlighted the family as the primary site of solidarity, whose work was to be complemented and developed by other “intermediate communities,” which “give life to specific networks of solidarity.” All of them together strengthen “the social fabric and prevent society from becoming an anonymous and impersonal mass” (CA, 49). Solidarity here is something more than the provision of material goods and services, thus clearly indicating that its fulfillment goes beyond the function of the state or the market.

Christianity and solidarity 295 This idea of “something more” was taken up by Benedict XVI in his encyclical Caritas in Veritate (CV, 2009) on the human dimensions of globalization. While the framing of the text is first and foremost theological, it can certainly be read as a reflection on the need “to appropriate the underlying anthropological and ethical spirit that drives globalization towards the humanizing goal of solidarity, . . . to steer the globalization of humanity in relational terms, in terms of communion and the sharing of goods” (CV, 42). From this perspective, CV constitutes an invitation to reflect anew on the relationship of charity, justice, and solidarity. According to Benedict, charity, a theological virtue, inspires the Christian commitment to justice and peace (CV, 1); it is “the principle not only of microrelationships (with friends, with family members, or within small groups) but also of macrorelationships (social, economic, and political ones)” (CV, 2). Aware of “the ways in which charity has been and continues to be misconstrued and emptied of meaning,” he insisted on “the need to link charity with truth not only in the sequence, pointed out by Saint Paul, of veritas in caritate (Ephesians 4:15), but also in the inverse and complementary sequence of caritas in veritate” (CV, 2), an expression which summarizes “the principle around which the Church’s social doctrine turns, a principle that takes on practical form in the criteria that govern moral action” (CV, 6). In other words, Benedict proposes charity as a principle that requires the practice of justice but also transcends and completes justice in the logic of giving and forgiving: “The earthly city is promoted not merely by relationships of rights and duties, but to an even greater and more fundamental extent by relationships of gratuitousness, mercy, and communion” (CV, 6). On this basis, he speaks of the principle of gratuitousness as an expression of fraternity (CV, 34). Like John Paul II, Benedict uses the term solidarity not only in the institutional sense associated with systems of social security or the traditional networks of solidarity (CV, 25), but also in a specifically relational sense. Referring back to his predecessor’s call to recognize the “subjectivity of society,” he observes that gratuitousness and fraternity should not be viewed merely as a prerogative of civil society, and solidarity should not be interpreted merely as a prerogative of the state. Especially in the context of globalization, it is clear that “solidarity is first and foremost a sense of responsibility on the part of everyone with regard to everyone, and it cannot therefore be merely delegated to the State” (CV, 38). Solidarity can and should be present in the state and civil society, as well as in the market. “Economic activity cannot abstract from gratuitousness, which fosters and disseminates solidarity and responsibility for justice and the common good among the different economic players” (CV, 38). Benedict underscores this idea by saying that, “While in the past it was possible to argue that justice had to come first and gratuitousness could follow afterwards, as a complement, today it is clear that without gratuitousness, there can be no justice in the first place” (CV, 38). The latter clearly reminds us of the discussion that influenced the origins of social theory, namely that human society is not the result of individuals contracting with each other according to their individual interests; rather, it is primarily based on individuals sharing an ethos ultimately based on human

296  Ana Marta González nature, hence on a fundamental solidarity, which expresses itself in social relations not necessarily governed by individual interests alone. This is why there is room in social life for gifts and gratuitousness, multiple forms of reciprocity that are not merely based on the principle of the equivalence of exchanged values. This is so much so that Benedict locates solidarity at the basis of the market: “Without internal forms of solidarity and mutual trust, the market cannot completely fulfill its proper economic function” (CV, 35). Ultimately, Benedict argues that neither the logic of exchange—giving in order to acquire—nor the logic of public obligation imposed by the state can account for the forms of solidarity, participation, and gratuitousness found in civil society, which are necessary for both the market and the state to fulfill their mission. Furthermore, the exclusively binary model of market-plus-state is corrosive of society, while economic forms based on solidarity, which find their natural home in civil society without being restricted to it, build up society. The market of gratuitousness does not exist, and attitudes of gratuitousness cannot be established by law. Yet both the market and politics need individuals who are open to reciprocal gift. (CV, 39) By placing solidarity and gratuitousness at the basis of social life, Benedict famously made explicit previously underdeveloped elements of the Christian notion of solidarity. At the same time, he followed the lead of John Paul II in stressing the complementary role of subsidiarity and solidarity, for instance in the case of international development aid (CV, 58), and in connecting this topic with environmental issues (CV, 49, 51). In what could be considered a bold and even revolutionary move, since there is no solidarity without sacrifice, he invites us to upgrade the scope of solidarity from the national to the global level. Along these lines, he invites labor unions to revise their role on the global scene and extend their solidarity “to those outside their membership, and in particular to workers in developing countries where social rights are often violated” (CV, 64); likewise, he invites a revision of social assistance and welfare policies in developed countries so that larger portions of their GDP might be allocated for development aid: One way of doing so is by reviewing their internal social assistance and welfare policies, applying the principle of subsidiarity and creating betterintegrated welfare systems, with the active participation of private individuals and civil society. . . . A more devolved and organic system of social solidarity, less bureaucratic but no less coordinated, would make it possible to harness much dormant energy, for the benefit of solidarity between peoples. (CV, 60) Pope Francis has connected environmental issues with the principle of solidarity, as seen in Laudato si’ (2015). “We require a new and universal solidarity” (LS, 14) are the words he uses to reassert the connection between environmental

Christianity and solidarity 297 issues and the problem of integral development in a global world. In spite of difficulties and problems, Francis relies on human solidarity (LS, 58) by stressing the importance of those “networks of solidarity and belonging” which compensate for the limitations of the environment in so many densely populated residential areas (LS, 148). He further argues that, in a global world, concern for the common good involves solidarity and a “preferential option for the poorest of our brothers and sisters” (LS, 158). Importantly, he highlights the issue of intergenerational solidarity as an aspect of justice and the common good (LS, 159, 162). By early 2019, Francis’s most extensive reference to solidarity was in his April 28, 2017, message to the plenary session of the Pontifical Academy of Social Sciences. Francis referred there to fraternity as a principle in charge of governing the economic order, pointing out that fraternity encompasses more than the usual appeal to solidarity. The importance of this text lies in explicitly disentangling the meaning of fraternity and solidarity: “Where other lines of thought speak only of solidarity, the social doctrine of the Church speaks instead of fraternity, since a fraternal society is also typified by solidarity, while the opposite is not always the case” (PASSLetter). Taking up Benedict’s line of thought in CV, Francis then refers to the mistake of contemporary culture, which has led to the belief that a democratic society can progress by keeping separate the code of efficiency—which would be enough to regulate relationships between humans within the sphere of the economy—and the code of solidarity, which would regulate intersubject relationships within the social sphere. It is this dichotomy that has impoverished our societies. (PASSLetter, 482) Yet instead of appealing to gratuitousness, as Benedict had done in CV, Francis speaks directly of fraternity: The key word that expresses better than any other the need to overcome this dichotomy is “fraternity,” an evangelical word, taken up in the motto of the French Revolution, but which the postrevolutionary order then abandoned, for well-known reasons, up to the point of its deletion from the politicaleconomic lexicon. (PASSLetter, 482) Indeed, while the 1848 revolution retrospectively incorporated the word fraternity into the revolutionary motto to give the word a political meaning,29 the attempt dramatically failed. Indeed, the principle of fraternity disappeared from the political scene, and the only trace of it was to be found in the principle of solidarity. Thus, in Francis’s words: It was the evangelical witness of St. Francis, with his school of thought, that gave this term the meaning it then preserved over the centuries; that is, to

298  Ana Marta González build at the same time the complement and the exaltation of the principle of solidarity. (PASSLetter, 482) By characterizing fraternity this way, Francis not only points to the Christian source of solidarity, he also introduces a significant distinction between both terms, which are meant to have both a personal and a political translation: While solidarity is the principle of social planning that allows the unequal to become equal, fraternity is what allows the equal to be different people. Fraternity allows people who are equal in their essence, dignity, freedom, and their fundamental rights to participate differently in the common good according to their abilities, their life plan, their vocation, their work, or their charism of service. (PASSLetter, 482)30 Recapitulating the battles fought during the previous century in the name of solidarity—“the history of trade unions, the struggle to obtain civil and social rights, that are in any case very far from being concluded”—and invoking the tradition of Catholic Social Teaching, Francis summarizes and sketches the challenges that lie ahead, not so much in the name of solidarity as in the name of fraternity: A participatory society cannot settle for the objective of pure solidarity and assistentialism, since a society that was characterized only by solidarity and assistance, without being fraternal, would be a society of unhappy and desperate people from whom everybody would try to flee, in extreme cases even by suicide. A society in which true fraternity dissolves is not capable of having a future; a society in which only “giving in order to have” or “giving out of duty” exists is not capable of progressing. That is why neither the liberal-individualist vision of the world, in which everything (or almost) is an exchange, nor the state-centric vision of society, in which everything (or almost) is a duty, is a safe guide for overcoming inequality, inequity and exclusion that now overwhelm our societies. (PASSLetter, 482)

Conclusion The term “solidarity” is not only a suggestive notion but also a modern one, whose contested meaning cannot be divorced from the evolution of the “social question” in the aftermath of the French Revolution and the industrial revolution. It emerged from the experience of a fractured society following the dissolution of traditional social bonds, and as a way to designate the human source of social cohesion; it was soon taken up by emerging social scientists as a sign that a contractual approach to society was not only insufficient for generating social cohesion but also epistemologically inconsistent.

Christianity and solidarity 299 Authors who invoked solidarity in the eighteenth century were moved by a desire to rebuild society on natural and scientific principles, and they often used the term in contrast to Christian charity. Yet the principle as such resonated within Christian faith and practice. Many bottom-up solidarity initiatives from Christians of all confessions emerged during the nineteenth and twentieth centuries, and they soon became a topic of reflection among both secular and Christian authors; at the same time, the principle of solidarity was being institutionalized at the national level through different social security systems. At the beginning of the twenty-first century, solidarity represents a privileged perspective to confront many of the critical ethical challenges that lie ahead of humanity. In the meantime, many of the inherited conceptual problems regarding the relationship between solidarity and charity, the factual and the ethical dimension of solidarity, as well as the structural or relational approaches to solidarity have found a satisfactory solution. Thus, we have seen that the “fact” of human solidarity cannot be regarded as a mere natural fact; as soon as it touches human conscience, it acquires an ethical dimension because humans are naturally moved to act in light of others’ needs, but, in so doing, their acts, at both the micro and the macro levels, have an ethical meaning. Ultimately, solidarity emerges from the fact that we share our human nature. This ontological dimension precedes and sustains every social interaction and social form, without cancelling out personal dignity and freedom, because that shared human nature does not exist apart from individual persons who naturally organize themselves into families and constitute political communities. Solidarity is therefore at the root of all social duties and introduces a flexible line between duties of strict justice and duties of beneficence: what from an individual perspective could be regarded as an imperfect duty of beneficence, from a social perspective could become a perfect duty of justice. This is always the case when solidarity is institutionalized. Yet, although it is natural that a fully organized political society takes steps towards the institutionalization of solidarity, such institutionalization alone will never replace the need for personal and social initiative. If both approaches to solidarity can and should coexist in practice, it is not because of any particular defect on the side of individuals or societies, but rather because institutional solidarity, necessary as it is, does not exhaust the realm of human goods. Indeed, were we to trust everything to individual solidary initiatives, it would be impossible to ensure that everybody received the basic goods they needed to conduct their lives; were we to reduce solidarity to the top-down provision of social benefits, we would nullify human freedom and miss the relational dimension of human goods involved in everyday life. Solidarity is not merely the result of structural decisions aimed at redistributing existing resources; no matter how necessary this kind of solidarity is, it is insufficient for generating social cohesion. In order to do that, we need to take into account relational solidarity as a spontaneous principle of human agency. It is also at this level that we can best understand the complementarity and perfection that fraternity brings to solidarity, even if fraternity as such can and should be operationalized at the political level.

300  Ana Marta González

Notes 1 Monti, 45. See also Metz, “Solidarität und Geschichte. Institution und sozialer Begriff der Solidarität in Westeuropa im 19.Jahrhundert,” 172–94. 2 Zimmermann, 53, footnote 136. 3 Stjernø, 27–28. 4 Wilkinson and Kleinan, 190–94. 5 See Augier, 4. For an extensive study of the development of solidarity in Catholic Social Teaching, see Montii. 6 See Oseewaard. 7 “J’ai voulu remplacer la charité du christianisme par la solidarité humaine.” Leroux, La Grève, vol. 1, ch. 42, p. 254. For a comprehensive account of his approach to solidarity and Christianity, see Leroux, De L’Humanité. See also Metz, 172–94. 8 Leroux starts his De L’Humanité with a quote from Romans 12:5. Auguste Comte used the organic metaphor to approach social reality, as did Alfred Fouillée and Léon Bourgeois. However, it was also a highly controversial idea within social theory: See Tarde, 78–82. John Paul II saw in this doctrine the fundamental anthropological error of socialism (Centessimus Annus, n. 13). 9 See Monti, 73. 10 See Sennett, 41. 11 See Blais; also Augier. 12 See Bouglé. 13 In the UK, Toynbee Hall opened in 1884 with Christian inspiration, while Chicago’s Hull House opened in 1889 in the United States. Its founder, Jane Addams, had visited Toynbee Hall; Hull House, however, was not religiously based. Dorothy Day, herself a Catholic convert, continued this idea in the 1930s with her Hospitality Houses. 14 Such as the Tuskegee Institute for the education of black people advanced by Booker T. Washington or the progress of community work. See Sennett, 44–45, 55–62. 15 See Parsons, Structure of Social Action, 688–91. 16 See Stjerno, 38–39. 17 Parsons, “Concept of Influence,” 224–54, 240. 18 See his notion of “primary groups.” Cooley, 179–84. 19 Parsons, Structure of Social Action, 713. 20 Delbos, 7–12, 637. 21 Blondel, 210. 22 Ibid., 207. 23 Ibid., 217. 24 See Russo. 25 Sorokin, Social and Cultural Mobility, 538–40. 26 See Sorokin, Ways and Power of Love, 8. 27 See Rodrigo del Blanco. 28 According to the direction, it can be direct or indirect solidarity (which resembles Cooley’s distinction between primary and secondary groups); according to intensity, it can be minimal (courtesy, benevolent neutrality, amiability) or maximal (passion, friendship, compassion, devotion); according to extension it can be minimal (for instance, that between a tourist and a shopper, a client, etc.) or universal (which encompasses everything, as in a family); according to the subjects it can be interpersonal or intergroup; according to the motivation, it can be fundamental, intentional, normative, mechanic, organic; according to the meanings and values, it can be total or special. All these forms can be organized around three types:

Christianity and solidarity 301 family-type solidarity, compulsive-type solidarity, and mixed-type solidarity. See Rodrigo del Blanco, 86–106. 29 See Baggio. 30 Francis, Pope, 482 Among secular authors, it is perhaps John Rawls who most closely argued along these lines, highlighting the limited role fraternity has played in the political arena so far, and trying to make room for it in his theory of justice through his “Difference Principle.” See Rawls, 90.

Bibliography Augier, Serge. La pensé solidariste. Paris: PUF, 2010. Baggio, Antonio Maria. “The Forgotten Principle: Fraternity in its Public Dimension.” Claritas: Journal of Dialogue and Culture 2/2 (2013): 35–52. Bayertz, Kurt. Solidarität. Begriff und Problem. Frankfurt am Main: Suhrkamp, 1998. [Solidarity, Springer, 1999]. Benedict XVI, Pope. “Caritas in veritate.” Acta Apostolicae Sedis, 101/8 (2009): 641–709. Blais, Marie-Claude. La solidarité. Histoire d’une idée. Paris: Éditions Gallimard, 2007. Blondel, Maurice. Action (1893). Essay on a Critique of Life and a Science of Practice. Notre Dame, IN: University of Notre Dame Press, 1984. Bouglé, Celestin. “Note sur les origines chrétiennes du solidarisme.” Revue de Métaphysique et de morale 44 (1906): 251–64. Cooley, Charles Horton. On Self and Social Organization. Chicago and London: The University of Chicago Press, 1998. Delbos, Victor. “Compte rendu su L’Action (1893) de Maurice Blondel.” Revue philosophique de la France et de l’étranger (1894). Francis, Pope. “Ad participes Sessionis Plenariae Pontificiae Academiae Scientiarum Socialium.” Acta Apostolicae Sedis, 109/5 (2017): 481–486. John Paul II, Pope. “Sollicitudo rei sociales.” Acta Apostolicae Sedis, 80/5 (1988): 513–86. Leroux, Pierre. De L’Humanité. Paris: Fayard, 1985. Leroux, Pierre. La Grève de Samarez. Poème Philosophique. Paris: E. Dentú, 1863. Metz, Karl H. “Solidarität und Geschichte. Institution und sozialer Begriff der Solidarität in Westeuropa im 19.Jahrhundert.” In Bayertz, Solidarität. Begriff und Problem. Monti, Eros. Alle Fonti della Solidarietà. La nozione di solidarietà nella Dottrina Sociale della Chiesa. Milano: Pontificia Universitas Gregoriana, 1999. Oseewaard, Marinus. “Settling the Social Question: Three Variants of Modern Christian Social Thought.” Journal of Markets & Morality 14/2 (2011): 301–17. Parsons, Talcott. “On the Concept of Influence.” In On Institutions and Social Evolution. Chicago: The University of Chicago Press, 1982. Parsons, Talcott. The Structure of Social Action: A Study in Social Theory with Special Reference to a Group of Recent European Writers. Vol. 2. New York: Free Press, 1968. Ratzinger, Joseph Cardinal. Die Christliche Brüderlichkeit. München: Kösel Verlag, 1960. [The Meaning of Christian Brotherhood. San Francisco: Ignatius Press, 1993.] Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971.

302  Ana Marta González Rodrigo del Blanco, María José. Pitirim A. Sorokin: Equilibrio social y solidaridad. Pamplona: Servicio de Publicaciones de la Universidad de Navarra, 2003. Russo, Antonio. “L’idée de solidarité dans Catholicisme (1938).” Revue théologique de Louvain 44 (2013): 55–81. Sennett, Richard. Together: The Rituals, Pleasures, and Politics of Cooperation. London: Penguin Books, 2013. Sorokin, Pitirim A. Social and Cultural Mobility. New York: The Free Press, 1959. Sorokin, Pitirim A. The Ways and Power of Love. Boston: Beacon Press, 1954. Stjernø, Steinar. Solidarity in Europe: The History of an Idea. Cambridge: Cambridge University Press, 2009. Tarde, Gabriel de. On Communication and Social Influence: Selected Papers. Chicago: University of Chicago Press, 2010. Vincent, Gilbert. “Ethos Protestant, Éthique de la solidarité. L’heritage kantien. Reprises et transformations.” Revue d’Histoire et de philosophie religieuses 82/3 (2002): 307–30. Wilkinson, Iain, and Arthur Kleinan. A Passion for Society: How We Think About Human Suffering. Oakland: University of California Press, 2016. Zimmermann, Reinhard. The Law of Obligations: Roman Foundation of the Civilian Tradition. Oxford: Oxford University Press, 1996.

18 Christianity and the principle of subsidiarity Thomas C. Kohler

Introduction “How can it be,” the distinguished German constitutional scholar and legal philosopher Josef Isensee asks about subsidiarity, that one and the same principle draws such diverse and conflicting expectations to itself? It is supposed to direct governmental and ecclesiastical, national as well as supranational actions, determine the relationship of the markets to governmental regulation, and voluntary to public welfare undertakings, protect federalism and self-government, and promote while at the same time establishing limits to European unification. The subsidiarity principle should accomplish that and more.1 “The problem with the subsidiarity principle,” the theologian Alois Baumgartner observes, “doubtless lies not in some want of its acceptance, but in a dearth of unambiguousness and clarity by those who draw on it argumentatively. Since the concept has become part of the public domain,” he continues, hardly any party to a debate over regulation has failed to invoke it, thereby causing the principle “to forfeit its contours.”2 Quoting from the 1931 papal encyclical Quadragesimo anno, the philosopher and organizational theorist Peter Koslowski observes that subsidiarity represents “one of the paramount social-political principles.” It “is one of those principles of construction and coordination,” he continues, “that demonstrates its strength through the fact that it contains several principles as elements of meaning within it.” These become significant, he explains, because, “they unite perspectives on society and the guiding principles for its configuration and, like a magnifying glass, focus them to a central point.”3 For his part, the eminent English legal scholar, Lord Wedderburn of Charlton, has described subsidiarity as “that principle of feline inscrutability and political subtlety.”4 Leaving its possible inscrutability and its undoubted subtlety aside for the moment, subsidiarity represents, as Isensee, Koslowski, and others suggest, a principle of almost protean character. It stands as a principle of Christian social

304  Thomas C. Kohler ethics as well as a philosophical, political, legal, and economic precept. The Consolidated Version of the Treaty on European Union enshrines the solidarity principle in its Article 5, providing in part that, “The use of Union competencies is governed by the principle of subsidiarity.” Among other things, Article 5 also provides that “the institutions of the Union shall apply the principle of subsidiarity,” and it directs that “national parliaments ensure compliance with the principle of subsidiarity.” Consistent with this direction, the Federal Republic of Germany, as Isensee puts it, “re-imports” the idea through Article 23, Paragraph 1 of its Constitution, adopted in 1993, that expressly binds it to “the principle of subsidiarity.” Similarly, Article 72, Paragraph 2 of the German Constitution manifests a positive legal implementation of the subsidiarity principle in directing the manner that conflicting lawmaking competencies should properly be divided between the German federal states and the national parliament, and Isensee’s classic study on the subject demonstrates how the principle of subsidiarity illuminates and orients the entire postwar German constitution and its structures. Its framers embedded the principle in that constitution’s very essence. The great Jesuit moral theologian and political economist Oswald von Nell-Breuning, who played a considerable role in explicating the principle, described it and the integrally related principle of solidarity as the two fundamental “laws of construction” (Baugesetze) for society, the two basic principles on which any flourishing social order must rest. Given all this, one might echo, in a slightly amended fashion, Isensee’s question: how can it be that a principle of such sweep and fundamental importance is so little known in the English-speaking world, and especially in the United States? To the degree to which Americans have familiarity with the principle of subsidiarity, they tend to regard it as what I might call a principle of “ratchetdown” federalism, a considerably crabbed and badly distorted understanding that overlooks the lion’s share of the principle’s importance. Furthermore, although subsidiarity constitutes, according to Quadragesimo anno, a “most weighty principle, which cannot be set aside or changed,” and which lies at the very center of Catholic social theory, one can well ask just how it has come about that, even among American Roman Catholic clerics, the full significance of the principle largely has gone unappreciated? Along these lines, one might also ask why the principle has gained its fullest development at the hands of German Catholic theorists and activists? Before turning to these questions, we should start with a formulation of the principle.

What is the subsidiarity principle? What are its sources? The 1931 papal encyclical Quadragesimo anno (Q.a.), promulgated by Pope Pius XI (†1939), sets forth the classic exposition of the principle of subsidiarity in paragraphs 79–80 of that document. There it states: 79. As history abundantly proves, it is true that on account of changed conditions many things which were done by small associations in former times

Christianity and subsidiarity 305 cannot be done now save by large associations. Still, that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them. 80. The supreme authority of the state ought, therefore, to let subordinate groups handle matters and concerns of lesser importance, which would otherwise dissipate its efforts greatly. Thereby the state will more freely, powerfully, and effectively do all those things that belong to it alone because it alone can do them: directing, watching, urging, restraining, as occasion requires and necessity demands. Therefore, those in power should be sure that the more perfectly a graduated order is kept among the various associations, in observance of the principle of “subsidiary function,” the stronger social authority and effectiveness will be, the happier and more prosperous the condition of the state. Nell-Breuning, who, in consultation with some of the members of the Königswinter Kreis, a Catholic social-thought study group, played a major role in drafting Q.a., stated that the term “subsidiarity,” as well as the principle’s formulation in that document, came from his brother Jesuit Gustav Gundlach. Subsidiarity stems from the Latin, subsidium, to provide assistance. The word originally referred to troops in reserve (the subsidiarii cohortes), who stood ready to move to the front lines (the prima acies) to support and strengthen sections in danger of collapse or in need of relief. Nell-Breuning described its meaning as hilfreicher Beistand, or “helpful assistance.” This means, Nell-Breuning tells us, that the community is there to be helpful to its members, to offer them advantages or to bring them benefits. Thus, the community should do for its members what is truly and actually beneficial, advantageous, and useful, but only that. It has to refrain from whatever would be detrimental, harmful, or deleterious.5 Subsidiarity rests on a particular understanding of human character, an anthropology that will receive further elucidation later. In this perspective, community of whatever form exists for the individual, who is by nature a social being. As Pope John XXIII put it in the 1961 encyclical, Mater et magistra, “Individual human beings are the foundation, the cause, and the end of every social institution” (para. 219). The German version of Q.a. states the point far more directly than the rather curious and stilted English version of that document: “Every activity of society is by its nature and concept subsidiary” (Jedwede Gesellschaftstätigkeit ist ja ihrem Wesen und Begriff nach subsidiär)

306  Thomas C. Kohler (para. 79), or to put it slightly differently, every community stands in a subsidiary relationship with each of its individual members. (Perhaps the Latin version expresses it most precisely of all: cum socialis quaevis opera vi naturaque sua subsidium afferre membris corpus socialis debeat.) This statement, however, tells only half the story: as we will see, the subsidiarity principle also maintains that individuals stand in a relationship of solidarity with one another, a relationship of mutual obligation. The principles of subsidiarity and solidarity represent two sides of the same coin; one principle gains meaning and intelligibility only in light of the other. The subsidiarity principle focuses on the individual and on protecting and enhancing the ability of every individual to develop his or her unique intellectual and physical talents, abilities, and skills or, as it is sometimes expressed, to unfold one’s personality. Reflecting this intention, Article 2 of the German Constitution guarantees each person “the right to the free unfolding of his personality.” The principle proceeds outward, so to speak, from the individual, but it understands the individual as embedded in and oriented by a community—or by overlapping and intertwined communities. Broadly stated, the principle seeks in part to adjust the proper relationship between the individual and the greater communities in which the individual operates. This little introduction turns us to the question of the sources of the subsidiarity principle. Although, as noted, subsidiarity represents one of the central pillars of Catholic social thought, and while it received perhaps its best-known formulation in a papal document, the principle does not spring from religious roots. It does not constitute a matter of revealed truth, but rather is an expression of practical wisdom. The philosopher Josef Pieper described the principle simply as an ancient German legal principle, while the moral theologian John Coleman, S.J., characterizes it “neither as a theological nor even really a philosophical principle, but a piece of congealed historical wisdom.”6 Historical it does indeed seem: Exodus 18:18–22 records that Moses’s father-in-law warned him that settling the disputes between his people and answering their inquiries “is too heavy for you; you are not able to perform it alone.” He advised Moses “to choose able men” and to place them over the people as “rulers of thousands, of hundreds, of fifties, of tens.” They should submit the “great matters” to Moses, “but any small matter they shall decide themselves; so it will be easier for you, and they will bear the burden with you.” Dante likewise remarks, in his treatise De Monarchia (I, 14), that “the petty decisions of every municipality” cannot issue from “the supreme prince,” observing that, “nations, kingdoms, and cities have individual conditions which must be governed by different laws.” Consistent with Pieper’s remarks, placing decision-making at the lowest capable levels seems reflective of German habits of ordering. In stark contrast to England or France, Germany’s political development historically took place on a territorial level. At a time when Henry VIII ruled England and Louis XIV reigned over France, Machiavelli pointed out that “the cities of Germany are very free and obey the emperor when they want to; they do not fear him or any power around.”7 Perhaps this characteristic led Montesquieu to claim that the

Christianity and subsidiarity 307 English “borrowed the idea of their political government” from the Germans. “This beautiful system,” he claims, “was invented first in the woods.”8 The provenance of the subsidiarity principle, of course, lies neither in the desert nor in the forest, but in the reasonable operations of the human mind. Examples of its expression and anticipations of its fullest formulation abound. In his Fragment on Government, Abraham Lincoln states, The legitimate object of government is to do for a community of people whatever they need to have done, but cannot do at all, or cannot so well do for themselves in their separate and individual capacities. In all that people can do individually as well for themselves, government ought not to interfere.9 The famous “workers’ bishop” of Mainz, Wilhelm Emmanuel von Ketteler, a pioneering figure in the development of Catholic social doctrine, neatly captures the heart of the eventual formulation of the principle in a writing from 1862, in which he maintains that “reason and truth” give to the people the right . . . to do that which they themselves can, in their homes, in their local communities, in their home territories (Heimat), and to be responsible for and to accomplish tasks themselves. Admittedly, this is in no way compatible with the principle of centralized state power, and what remains to it is only a more limited, narrower, and more natural sphere. He mordantly observes, “Modern liberalism does not so comprehend the matter.”10 In an early writing from 1848, a young Ketteler, then a delegate to the Frankfurt Parliament, explained to his constituents: My view proceeds from the simple proposition, that each individual who can exercise his rights himself may exercise them himself. To me, the state is not a machine, but a living organism with living members, in which each member has its own rights and its own function, to shape its own life freely. To me, such members are the individual, the family, the community, etc. Each lower member moves freely in its sphere and enjoys the right of self-determination and self-government. Only where the lower member is no longer capable of achieving its purposes itself, or cannot itself fend off an imminent danger, does the higher step into action. The lower must then surrender from its freedom and self-determination what the higher member requires to achieve its purpose. Therefore, what the family, the community, to the attainment of their natural purposes, can bestow on themselves must be left to their free self-rule.11 Ketteler also early employed the term “subsidiarity” in its modern sense. Writing on the freedom of parents to send their children to parochial schools—a troubled

308  Thomas C. Kohler topic in the Prussian territories and part of a greater and deeply fraught discussion on church-state relations, themes to which he frequently returned—Ketteler addressed the proper limits to state oversight of private, and especially religious, schools. He noted that he did not contest that the state has a right “to demand a certain degree of knowledge from all its members, and so far as is necessary to obtain this goal, to impose compulsory education.” He further comments that as much as he values the right of parents to determine the care and upbringing of their children, “there exists on earth no unlimited right.” To afford “an unlimited right to the parents would leave the children without rights,” he observes. “Thus, along with the church, the state has a certain custodial right for those cases where parents neglect their duties.” Nevertheless, he insists, “it is a harsh absolutism, a true enslavement of spirit and soul, when the state abuses this, I might say, subsidiary right.”12 Ketteler expressed himself very similarly in notes for a speech about the “school question” he held in September 1848: “No right is more sacred and more inviolable than the right of parents to the upbringing and education [of their children]. It is an inalienable right. The state has only a subsidiary right: accomplishment.”13 While influential, Ketteler hardly represented the only, or even the first, German to provide a formulation of the subsidiarity principle. In 1839, in a treatise on political science, the jurist and early Catholic social theorist Franz Josef von Buss prescribed, “that which an individual can manage, he, and not the state, should manage, and that which an association of people are capable of achieving, not the state but such an association of participants should effectuate.”14 Variously formulated, the principle has assumed a place in management and organizational theory as well as political and ethical theory. Writers often portray subsidiarity as an antidote to bureaucracy and centralization and as a means to enhance efficiency or to promote deregulation. But what, in its fullest significance, does the principle intend? How did it become a central aspect of Christian social ethics?

What is the purpose of the principle? What understanding of human character illuminates it? Isensee correctly points out that the subsidiarity principle represents an attempt to provide a remedy against the destructive tendencies of modern individualism.15 That may seem counterintuitive. After all, as mentioned earlier, subsidiarity focuses on the individual and the proper unfolding of each individual’s personality, the development of the unique talents and abilities that both characterize and distinguish each person from every other. To an American, at least, this sounds like a description of a position that many refer to as “expressive individualism.” Although the subsidiarity principle shares some superficial characteristics with it, subsidiarity most decidedly does not ground itself on the notion of the sovereign, wholly autonomous, self-defining, autarkic self that informs expressive individualism. In contrast to the anthropology of modernity, subsidiarity in its fullest sense understands the human person as naturally social—a zoon politikon, as Aristotle described the human, a political animal. The understanding of human

Christianity and subsidiarity 309 personality that illuminates the subsidiarity principle would agree with Aristotle’s observation, in the Politics (1253a1), that a human outside of a community “is either a beast or a god,” but in either case, not an authentic human. From the perspective that informs the subsidiarity principle, deliberating, judging, choosing, and acting responsibly on one’s choices constitute the most characteristically human activities. Humans do these things only in community with others. A shared language, a set of mutually agreed-upon values, a more or less common history, a set of loosely shared daily experiences and commonly understood symbols—all of these constitute aspects of community, but if they go no further, we experience them largely as abstractions. They are shards of a community, epiphenomenal artifacts of its existence, but they do not represent the web of concrete and dedicated attachments that support and constitute a fully human life. Without such attachments, which exist through our involvement in the diverse small communities and associations that make up a healthy society, we lack the places and the occasions to engage in those most distinctively human acts. Instead, we find ourselves stranded, voiceless, powerless and detached, on the edges of what purports to be our society. In our loneliness and anomie, we exist in a less than fully human state. Such a condition may promise some sort of formal freedom, a blissfully unencumbered liberty, but it wholly lacks anything one could describe as effectual freedom. The principles of subsidiarity and solidarity, Nell-Breuning remarks, “directly root themselves in what the human intrinsically is.”16 The subsidiarity principle seeks to secure what Isensee calls “the spheres of activity” that humans require effectively to unfold their personalities.17 Modern individualism has exerted a nearly hydraulic-like destructive force on these lesser associations, and it has done so by design. Whether in the versions influenced by Hobbes and Locke or in those stamped by the thought of Rousseau and Kant, the founders of modernity agreed on two points: they denied the possibility of friendship, either in the form of the specifically political friendship insisted upon by the Platonic-Aristotelean tradition as the necessary foundation for any sort of polity, or in the Christian sense, as inherited from the Jews, of caritas (e.g., Micah 6:8; Mark 12:28–32). From perspective of modernity, self-interest ultimately motivates and explains all of our actions. The nominalism that suffuses modernity, and the cognitive anthropology upon which it rests, admits of no transcendence. Modernity thereby disavows the grounds of authentic friendship, making love unintelligible and suggesting that claims made in its name represent the height of irony—or deceit. In contrast, warns Pope Benedict XVI in his 2005 encyclical Deus Caritas est, which in part discusses the themes of love and subsidiarity, “Whoever wants to eliminate love is preparing to eliminate humanity as such” (para. 29b). Second, the moderns regard associations of all sorts as a menace to individual status and to personal autonomy, seeing them as darkly looming heteronomic conspiracies that threaten to obtrude and subjugate rather than to enable effective self-determination. Hobbes declaimed the “lesser associations” described by Ketteler as an “infirmity” which represented, “as it were many lesser Commonwealths in the bowels of the greater, like worms in the entrails of a natural

310  Thomas C. Kohler man,” and every bit as enervating and debilitating. Rousseau, Hobbes’s greatest critic, resoundingly agreed with him on this point. What Rousseau described as “factions” and “partial associations,” he insisted, existed only to further “particular interests” and form themselves “at the expense of the great association,” the state. “It is therefore essential,” he maintained, “that there should be no partial society within the state, and that each citizen should think only his own thoughts,” in isolation from one another. Where the extirpation of the partial associations proved impossible, Rousseau advised that it would be best “to have as many as possible,” thereby setting “particular interests” against each another and rendering them inert—advice that Madison eagerly adopted and promoted in The Federalist Papers, No. 10. Proceeding from a standpoint consistent with the insights that inform the subsidiarity principle, Alexis de Tocqueville took a rather different stance. “Despotism,” he warned, “by its very nature suspicious, sees the isolation of men as the best possible guarantee of its own permanence. So it usually does all it can to isolate them.” The formal equality that the democratic era has introduced, Tocqueville continues, “puts men side by side without a common link to hold them firm. Despotism raises barriers to keep them apart. It disposes them not to think of their fellows, and it turns indifference into a sort of public virtue.”18 The individualism that characterizes democracy, Tocqueville states, represents something new: “Individualism is a word recently coined to express a new idea.” It “is a calm and considered feeling which disposes each citizen to isolate himself from the mass of his fellows and to withdraw into the circle of family and friends; with this little society formed to his taste, he gladly leaves the greater society to look after itself.” “Individualism,” he observes, “at first only dams the spring of public virtues, but in the long run it attacks and destroys all the others too.” “Individualism is of democratic origin,” he continues, “and threatens to grow as conditions get more equal.”19 “Despotism, dangerous at all times, is therefore particularly to be feared in ages of democracy.”20 The peculiar sort of democratic despotism that Tocqueville fears does not take the form of jackbooted storm troopers or agents in leather trench coats, sharply rapping on the door in the middle of the night, but a soft tyranny that “would degrade men rather than torment them.”21 This tyranny expresses itself in two ways. The tyranny of the majority over thought and opinion represents the first. The loss of the habits of self-determination, engaged by people managing and accomplishing what they can on their own through the lesser associations—what we now call the mediating institutions of society—that stand between the individual and the large institutions of the state and the market, constitute the second. Once these habits and the institutions through which people exercise them fall into desuetude, Tocqueville points out, when people “have entirely given up managing their own affairs,” they become mere objects of administration by powerful political or market actors. Such unfortunates may, he cautions, retain suffrage, but, “One should never expect a liberal, energetic, and wise government to originate in the votes of a people of servants.”22

Christianity and subsidiarity 311 The antidote to these dangers, Tocqueville maintains, lies in encouraging and actively practicing the habits of association and active involvement in the lesser associations, and not just those organized for political purposes. “When citizens have the faculty and habit of associating for everything, they will freely associate for little purposes as well as great.”23 It is, he argues, “a delusion to suppose that the spirit of association, if suppressed in one place, will nevertheless display the same vigor in all other directions.” “In democratic countries,” Tocqueville insists, “knowledge of how to combine is the mother of all other forms of knowledge; on its progress depends that of all the other.”24 The personalist philosopher Emmanuel Mounier memorably and succinctly describes individualism as, “a system of morals, feelings, ideas, and institutions in which individuals can be organized by their mutual isolation and defense.” “This,” he continues, was the ideology and the prevailing structure of Western bourgeois society in the 18th and 19th centuries. Man in the abstract, unattached to any natural community, the sovereign lord of a liberty unlimited and undirected; turning towards others with a primary mistrust, calculation, and self-vindication; institutions restricted to the assurance that these egoisms should not encroach upon one another, or to their betterment as a purely profitmaking association. Mounier concludes, “such is the rule of a civilization now breaking up before our eyes, one of the poorest history has known.”25 The understandings of the person that illuminate the subsidiarity principle comport with those embodied by personalism. As Isensee, Nell-Breuning, and others observe, the goal of the subsidiarity principle consists in securing the conditions necessary to the development, or the unfolding, of human personality. This good represents one common to all humans, who “are the end of every social institution.” The emphasis on the individual, the priority the subsidiarity principle places on the value of the person, sets strict limits to any attempt to submerge the individual into some undifferentiated “social” mass, thereby ignoring each person’s distinct individuality and worth, or allowing individuals to be sacrificed in the name of some greater “common good.” The principle thus functions, Isensee points out, to regulate arguments proceeding from distorted notions of the bonum commune, and secures the status of the individual within the whole.26 The principle represents more than a mere organizational precept. It stands as an ethical principle, one that Q.a. describes as a gravissimum principium, an “especially important principle,” and as such one that commands observance. This ethical principle unquestionably is consistent with Catholic social teaching, but practical reason itself, and not religious doctrine, serves as its source. “The Church’s social teaching argues on the basis of reason,” Benedict observes in Deus caritas est, “on the basis of what is in accord with the nature of every human

312  Thomas C. Kohler being. It recognizes that it is not the Church’s responsibility to make this teaching prevail in political life.” “A just society,” he continues, “must be the achievement of politics, not the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something that concerns the Church deeply” (para. 28a). Likewise, he states, “the formation of just structures is not directly the duty of the Church, but belongs to the world of politics, the sphere of the autonomous use of reason” (para. 28b). The church’s duty in this area is indirect: “The Church wishes to help form consciences in political life and to stimulate greater insight into the authentic requirements of justice” (para. 28a). In other words, the church plays a subsidiary role here, assisting public conversations and deliberations about ordering issues by clarifying what justice requires, pointing out ethical blind spots, helping to form consciences, and not infrequently in ways that run against widely accepted but critically unexamined cultural assumptions. As John Paul II put it in his 1990 encyclical, Redemptoris missio, “The Church proposes; she imposes nothing” (para. 39). The subsidiarity principle embodies an institutional intention. It presumes some sort of hierarchy of institutions, but it does not prescribe the order or the carriers of competencies. While it constitutes a principle for general application, as both the Treaty on European Union and the German Constitution exemplify, subsidiarity finds its most significant expression as a principle for social, legal, and political ordering, and for guiding the devolution of the direct responsibility for that ordering to the lowest capable social level, while providing whatever structures and assistance required to assure the success of those efforts. Properly assisting (subsidiuum) requires the exercise of practical wisdom (phronesis) in deciding how best to effectuate the principle and in sustaining what Pope John Paul II called the “networks of solidarity.” The principle makes clear that the state has the positive obligation to encourage, enhance, and protect the existence and functioning of mediating institutions. In the United States, perhaps the most prominent example of the application of the principle comes through the National Labor Relations Act (NLRA), which represents the only place in the American federal legal scheme where the law (formally, at least) encourages the formation and maintenance of employee associations for the purpose of the private ordering of the employment relationship. The legal scholar and sociologist Gunther Teubner refers to the NLRA and similar collective-bargaining law schemes as examples of “reflexive” ordering, a system of “regulated autonomy.” The state, through the law, restricts itself only to erecting the procedural and organizational norms within which private ordering can occur.27 The parties alone have responsibility for the substance of the order that governs their relationship. Along these lines, Article 9, Paragraph 3 of the German Constitution, in guaranteeing the right to association, explicitly guarantees, “the right to form associations to safeguard and improve working and economic conditions,” and its provisions provide wide protection for the activities of collective bargaining. One noted scholar remarks that Article 9 “means a basic right to solidarity.”28

Christianity and subsidiarity 313 The mention of the solidarity principle turns us to the next set of questions: What is the solidarity principle and how are the principles of subsidiarity and solidarity related?

Subsidiarity as a specific application of the principle of solidarity Although commentators sometimes describe subsidiarity and solidarity as two sides of the same coin to describe their deep interrelatedness, I have come to regard subsidiarity as an application, or an expression, of the principle of solidarity. Solidarity might be understood as a principle of reciprocity. It recognizes our mutual obligations to one another and the communities of which we are part. The term itself springs from Roman law, where an obligatio in solidum refers to a matter in which a group of individuals have common and indivisible liability for, or entitlement to, the whole of a debt. From a Christian perspective, the term reminds us that, like it or not, we are “our brother’s keeper” (Genesis 4:9) and, consequently, each of us is to “love your neighbor as yourself” (Mark 12:31), for “none of us lives for himself, and none of us dies for himself” (Romans 14:7). The word “solidarity” began to creep into use in the wake of the French Revolution. By Article 1 of the famous “August Decrees,” enacted in the night of August 4, 1789, the National Assembly declared that it “entirely destroys the feudal regime.” The noted historian François Furet points out that with that audacious act, the venerable social structures that made up society and anchored one’s place in the world simply collapsed. In their wake remained an aggregation of (at least formally) free, equal, and sovereign individuals left, as Tocqueville puts it, “without a common bond to hold them firm.”29 Although the effects of the Revolution arrived later in the German territories, come they did, and with spectacularly disorienting effects that made themselves widely felt in political, social, and economic spheres of life. The effects of this “triple revolution” reflect themselves in Ketteler’s observations about the challenges the new situation posed: “We are standing,” he wrote, “at the end of a time in which all the old dwellings that our Catholic forebears had furnished have been razed, and where we Catholics have not yet quite sorted out how we should take up residence in the new order of things.”30 The Catholic social-thought tradition finds its roots here, as various theorists and activists, largely lay, worked to puzzle out responses to this new order. The solidarity principle represents one of the products of this prodigious work. The term gained its theoretical and practical development at a time when, as we have seen, the ideas of love and friendship, particularly in their political sense, had lost their meaning. An evocative term, “solidarity” seeks to capture the idea of compact and integrated social unity without the loss of the individual’s unique status, a threat to which the various forms of modern individualism pose. The principle seeks to supply the “common bond” that will hold the members of society firm. The noted political theorist J.E.S. Hayward, in his study of the principle, observes that “it was amongst the Roman Catholic social theologists . . . that

314  Thomas C. Kohler the idea of solidarity first achieved its pivotal social significance.” He continues, “Roman Catholicism remained an immensely powerful opponent” of the doctrinaire individualism that characterizes modern political and social thought, and the anthropology that informs it.31 The solidarity principle received its development at many hands, but particularly among members of the late German political Romantic movement, many of whom played significant roles in the early elaboration of what became Catholic social thought. Members of this movement sought unity without denying individuality. Responding to the extreme individualism of modern political thought, the movement emphasized the social nature of human beings and strove to create the conditions for the full realization of human personality. In so doing, the movement mounted a comprehensive effort to provide new approaches to the intractable philosophical problems that stubbornly resisted solution by Enlightenment rationalist procedures, and to the social and political arrangements inspired by them. The movement worked to resolve apparent antitheses, claimed by Enlightenment thought, such as those between mind and body, nature and intellect, feelings and reasoning, and to elevate them in a higher unity. In part, it undertook to produce an anthropology that re-integrates the role of feelings in human knowing. In the modern account, humans are ruled by their passions. This account instrumentalizes reason by reducing it to a mere calculative activity, one limited to seeking the best way to satisfy one’s drives. Leo Strauss memorably termed this account one of “retail sanity and wholesale lunacy.” Reason could judge the efficacy of the means, but stood mute before the question of the worth of the goal. Many of the late Romantics understood that, while our feelings lead our knowings, while they give us the motive to investigate a question and to act, those feelings and emotions stand before the tribunal of reason. We reasonably can and must choose and order among them. In other words, human freedom means that we bear the responsibility of determining what is truly reasonable to love. This understanding rather raises the stakes on the meaning of self-determination. The German Romantics put an enormous emphasis on love and the mysteries of friendship and, consequently, on the development of the solidarity principle. Solidarity stands as recognition of the fact that none of us can live alone, that none of us is self-sufficient. If nothing else, a reasonable self-love compels the recognition that I must go beyond myself, and that the conditions for others will affect mine as well. What Aristotle called “friendships of utility” last only so long as a common need exists, but a community of any sort defines itself by an agreement on values, and it bases the friendship the community represents on those values. “Not every ‘we,’ not every ‘together,’ is of itself solidarity,” observes the philosopher Jósef Tischner. “Authentic solidarity—let us say it once more—is solidarity of consciences. This is clear,” he insists, “because to be in solidarity with a person means to rely on that person, and to rely on that person means to believe that there is something permanent in a person, something that does not fail.”32 The subsidiarity principle gains its meaning only in the context of the solidarity principle. This explains why subsidiarity does not represent merely a principle of administrative devolution, or what I have called a principle of ratchet-down federalism. We stand in relationships of mutual obligation. The subsidiarity principle

Christianity and subsidiarity 315 requires us to consider that concrete individual persons lie at the center of every decision about ordering, and that those decisions must take into account what arrangements best will enable those individuals responsibly to unfold their personalities, to engage in the activities of authentic self-determination.33 Subsidiarity does not countenance a delegation of unwanted responsibilities. It does not allow us to hand off leaking bags of burdens to the less capable, the less powerful, or the less fortunate circles of society and their members. Solidarity means nondelegable responsibilities. Subsidiarity constitutes a precept of practical reason to guide us in our execution of those responsibilities.

The curious obscurity of the subsidiarity principle Perhaps enough now has been said to explain why the subsidiarity principle, despite its considerable significance in other societies and ordering systems, has gained relatively little recognition in the English-speaking world, but particularly in the United States. Subsidiarity and the integrally related principle of solidarity stem from different intellectual traditions and distinctly different understandings of human character than those that predominate among the heirs of Hobbes and Locke. The reflexive individualism common among Americans also makes us deeply suspicious of any claims of obligations to which we have not expressly conceded. This includes that ever-rarer species, American Catholics, as well as some of their shepherds, who, formed by the society around them, strongly tend to understand their faith and its teachings through lenses supplied by the surrounding culture. The notion of the freedom to choose pervades American selfunderstandings, a notion from which American Catholics hardly are insulated. Nevertheless, as to those Catholics and their attitudes, choices, and beliefs, Étienne Gilson points out: the teachings of the Popes, as found in their encyclical letters, can by no means be considered as expressing mere opinions which anyone is free to hold or reject at will. Even though they may not be binding as to faith in all their parts, the teachings of an encyclical are all directly related to faith in the supreme teaching authority of the Church with the special assistance of the Holy Spirit. There always is grave temerity in not accepting the teaching of an encyclical on any of the points it touches.34 Of course, the judgment of temerity presumes familiarity with the social teachings, a presumption that, in the case of the Catholic laity and possibly some portion of the American hierarchy, might prove dubious.

Conclusion As an expression of practical reason which historically has been elucidated and promoted by European Catholic thinkers and activists, the subsidiarity principle retains a constant and vibrant relevance in guiding deliberations about ordering society. Koslowski does not err in describing the power of subsidiarity as uniting

316  Thomas C. Kohler perspectives on society with the guiding principles for its configuration, nor does Nell-Breuning in characterizing subsidiarity and solidarity as the basic laws of construction for any polity. The subtlety of the principle, mentioned by Lord Wedderburn, lies largely in its application, which itself involves the exercise of practical wisdom. Eerily enough, we live in a time not wholly dissimilar to that in which the principle of subsidiarity received its classic formulation in the pages of Quadragesimo anno. The subtitle of that encyclical, “On Reconstruction of the Social Order,” also sounds surprisingly, if unsettlingly, germane. At a time when so many societies find themselves deeply rent, when the forces of the globalization of trade and a growing sense of governmental unresponsiveness to citizens’ concerns have led to dangerous levels of frustration and despair, the principle of subsidiarity and the insights into human character that inform it offer sources for reasonable responses to the crisis. A just society unquestionably must be the achievement of politics. Like the “householder who brings out of his treasure what is new and what is old” (Matthew 13:52), the subsidiarity principle and the insights that illuminate it offers from age-old reflections on the human condition novel ways to approach the effective resolution of contemporary problems.

Notes 1 Isensee, 333. 2 Baumgartner, 13. 3 Koslowski, 39. 4 Wedderburn, 14. 5 Nell-Breuning, 79. 6 Coleman, 183. 7 Machiavelli, 43. 8 Montesquieu, 237. 9 Lincoln, vol. 2, 220. 10 Ketteler, Freiheit, Autorität und Kirche, 282–83. 11 Ketteler, “Offenes Schreiben Kettelers als Deputierten der deutschen Nationalversammlung an seine Wähler, 17. September 1848,” in Wilhelm Emmanuel von Kettelers Schriften, 403. 12 Die Katholiken im Deutschen Reich. Entwurf zu einem politischen Programm in, Ketteler, Sämtliche Werke, section 1, vol. 4, 210. 13 Ketteler, Sämtliche Werke, sect. 1, vol. 5, 122. 14 Buss, 15. 15 Isensee, 345. 16 Nell-Breuning, 114 (emphasis in original). 17 Isensee, 339. 18 Tocqueville, 509–10. 19 Ibid., 506–7. 20 Ibid., 510. 21 Ibid., 691. 22 Ibid., 694. 23 Ibid., 522–23. 24 Ibid., 517. 25 Mounier, 19.

Christianity and subsidiarity 317 6 Isensee, 81. 2 27 Tuebner. 28 Kittner, 929. 29 Furet, 107. 30 Ketteler, Sämtliche Werke, sect. 1, vol. 1, 227. 31 Hayward, vi–vii. 32 Tischner, 7. 33 In speaking in this essay of “the proper” or “the responsible unfolding of the personality,” I intend by those qualifiers to distinguish the self-transcendence such a process entails from the narcissistic and ungrounded sense of unfolding or development of the personality spoken of by Wilhelm von Humboldt in his work Ideen zu einem Versuch, die Gänzen der Wirksamkeit des Staats zu bestimmen, especially part 2 of that essay, which finds substantial echo in John Stuart Mill’s On Liberty. Among other pathologies, these latter approaches lead to an extraordinary individualism and estrangement from others that not only denies the sort of transcendence that grounds friendship and community but also edges into self-divination. On this theme, see Voegelin, 1. 34 Gilson, 4–5.

Bibliography Baumgartner, Alois. “ ‘Jede Gesellschaftstätigkeit ist ihrem Wesen nach subsidiär’: Zur anthropologischen und theologischen Begründung der Subsidiarität.” In Nörr and Oppermann, Subsidiarität: Idee und Wirklichkeit. Buss, Franz Joseph von. Die Aufgabe des katholischen Theils teutscher Nation in der Gagenwart, oder der katholische Verein Teutschlands. Regensburg: Verlag von Georg Joseph Manz, 1851. Coleman, John S.J. “Development of Church Social Teaching.” In Official Catholic Social Teaching, edited by Charles E. Curran and Richard A. McCormick. New York: Paulist Press, 1986. Furet, François. “The Night of August 4.” In A Critical Dictionary of the French Revolution, edited by François Furet and Mona Ozouf and translated by Arthur Goldhammer. Cambridge, MA: The Belknap Press, 1989. Gilson, Étienne. The Church Speaks to the Modern World: The Social Teachings of Leo XIII. Garden City, NY: Doubleday, 1954. Gundlach, Gustav. Die Ordnung der menschlichen Gesellschaft. Vol. 1. Köln: Verlag J.P. Bachem, Katholischen Sozialwissenschaftlichen Zentralstelle, Mönchengladbach, 1964. Hagel, Joachim. Solidarität und Subsidiarität—Prinzipien einer theologischen Ethik? Eine Untersuchung zur normativen Ordnungstheorie. Innsbruck and Vienna: Tyrolia Verlag 1999. Hayward, J.E.S. “The Idea of Solidarity in French Social and Political Thought in the Nineteenth and Early Twentieth Centuries.” PhD diss., University of London, 1958. Höffner, Joseph. “Christliche Gesellschaftslehre.” In Joseph Höffner: Ausgewählte Schriften, Bd. 1, Perspektiven Sozialer Gerechtigkeit, edited by Ursula NothelleWildfeuer and Jörg Althammer. Paderborn: Ferdinand Schöningh 2015. Isensee, Josef. Subsidiaritätsprinzip und Verfassungsrecht: Eine Studie über das Regulativ des Verhältnisses von Staat und Gesellschaft. 2nd ed. Berlin: Duncker & Humblot, 2001.

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Thomas C. Kohler

Ketteler, Wilhelm Emmanuel Freiherr von. “Freiheit, Autorität und Kirche.” In Sämtliche Werke und Briefe, edited by Erwin Iserloh, section 1, vol. 1. Mainz: von Hase & Koehler Verlag, 1977. Ketteler, Wilhelm Emmanuel Freiherr von. Wilhelm Emmanuel von Kettelers Schriften, Bd. I: Religiöse, kirchliche u. kirchenpolitische Schriften, edited by Johannes Mumbauer. Kempten and München: Verlag der Jos. Kölsel’schen Buchhandlung, 1911. Kittner, Michael. Arbeits- und Sozialordnung. Continued by Olaf Deinert. Frankfurt am Main: Bund Verlag, 2018. Kohler, Thomas C. “In Praise of Little Platoons.” In Building the Free Society: Democracy, Capitalism and Catholic Social Teaching, edited by George Weigel and Robert Royal. Grand Rapids, MI: Eerdmans, 1993. Kohler, Thomas C. “Lessons from the Social Charter: State, Corporation and the Meaning of Subsidiarity.” University of Toronto Law Journal 43 (1993): 607ff. Komonchak, Joseph A. “Subsidiarity in the Church: The State of the Question.” Jurist 48 (1998): 298ff. Koslowski, Peter. “Subsidiarität als Prinzip der Koordination der Gesellschaft.” In Nörr and Oppermann, Subsidiarität: Idee und Wirklichkeit. Lawrence, Frederick G. “The Economic Good of Order and Culture in Relation to Solidarity, Subsidiarity, and Responsibility.” In The Fragility of Consciousness: Faith, Reason and the Human Good, edited by Randall S. Rosenberg and Kevin M. Vander Schel, 296ff. Toronto, Buffalo and London: The University of Toronto Press, 2017. Lecheler, Helmut. Das Subsidiaritätsprinzip: Strukturprinzip einer europäischen Union. Berlin: Duncker & Humblot, 1993. Lincoln, Abraham. Collected Works. Edited by Roy P. Basler. New Brunswick, NJ: Rutgers University Press, 1953. Machiavelli, Niccòlo. The Prince. Translated by Harvey C. Mansfield. Chicago and London: University of Chicago Press, 1985. Millon-Delsol, Chantal. L’État Subsidiaire: Ingérence et non-ingérence de l’État: le principe de subsidiarité aux fondements de l’histoire européenne. Paris: Presses Univeritaires de France, 1992. Montesquieu. The Spirit of the Laws. Translated by Thomas Nugent. New York: Hafner, 1949. Mounier, Emmanuel. Personalism. Translated by Philip Mairet. Notre Dame, IN: University of Notre Dame Press, 1952. Nell-Breuning, Oswald von. Baugesetz der Gesellschaft: Solidarität und Subsidiarität. Freiburg im Breisgau: Herder Verlag, 1990. Nörr, Knut Wolfgang, and Thomas Oppermann, eds. Subsidiarität: Idee und Wirklichkeit: Zur Reichweit eines Prinzips in Deutschland und Europa. Tübingen: MohrSiebeck, 1997. Nothelle-Wildfeuer, Ursula, and Arnd Küppers. “Subsidiarität.” In Neues Handbuch philosophischer Grundbegriffe, edited by Armin G. Wildfeuer and Petra Kolmer, 2135–45. Freiburg im Breisgau: Verlag Karl Alber, 2013. Pontifical Council for Justice and Peace. Compendium of the Social Doctrine of the Church. Città del Vaticano: Libreria Editrice Vaticana, 2004. Schasching, Johannes. Zeitgerecht, zeitbedingt: Nell-Breuning und die Sozialenzyklika Quadragesimo anno nach dem Vatikanischen Geheimarchiv. Bornheim: Ketteler, 1994.

Christianity and subsidiarity 319 Tischner, Jósef. The Spirit of Solidarity. Translated by Marek B. Zalensi and Benjamin Fiore S.J. San Francisco: Harper & Row, 1984. Tocqueville, Alexis de. Democracy in America. Edited by J.P. Meyer and translated by George Lawrence. Garden City, NY: Anchor Books, 1969. Tuebner, Gunther. “Substantive and Reflexive Elements in Modern Law.” Law and Society Review 17 (1983): 229. Voegelin, Eric. “The German University and the Order of German Society: A Reconsideration of the Nazi Era.” In Published Essays, 1966–1985. Baton Rouge: Louisiana State University Press, 1990. Wedderburn, Kenneth William, Lord of Charlton. “The Social Charter in Britain: Labour Law and Labour Courts?” Chorley Lecture 1990. Modern Law Review 54 (1991): 14.

Part III

Global issues and global public goods

19 Christianity and human rights Samuel Moyn

Since the explosion in the later Cold War of human rights as a prominent ideal and slogan of institutions, movements, and states, representatives of many traditions have claimed to have invented it—Christians of various kinds near the front of the pack. “From the biblical conception of man,” Pope John Paul II remarked in 2003, “Europe drew the best of its humanistic culture, found inspiration for its artistic and intellectual creations, created systems of law and, not least, advanced the dignity of the person as a subject of inalienable rights.”1 It would stand to reason that, on the basis of a strong and tight connection between Christianity and human rights from the start, global law could now arise. Alas, most claims about the relation of Christianity and human rights are apologetic in a technical sense and fictitious according to the standards of contemporary secular historical scholarship, even as their profusion makes it quite difficult to validate what true claims remain. No one who thinks about the sources of human rights in Christianity for the sake a prospective global law can fail to reflect on this difficulty, especially if the goal is to reckon apologetically with those who deny much relationship between the two.2 Nowadays, and since the later Cold War, many Christians are part of a coalition that supports human rights as essential principles of a local and supralocal governance in many parts of the world, and even of a potential global law of the future. But like the history that preceded it, contemporary politics shows that Christians remain divided about human rights, and the prospect of a global law with human rights as a major feature of its rule looks increasingly evanescent. For this reason, it is best to take a historical perspective on how contingently and recently Christianity became associated with human rights, in order to more honestly assess the obstacles that may stand in the way of the coming of a global law with human rights at its core. The Jewish traditions out of which Christianity came were hardly a good source for human rights.3 The Hebrew Bible does not mention any notion of rights nor offers a concept of nature from which, for centuries, Christian philosophers later derived them. And its own legislative codes are repressive enough for modern sensibilities as to make the advocates of modern human-rights standards blanch. The idea of the unity of all people is stressed in the prophetic traditions of the Jewish people, but principally to confirm the division between themselves and the others with whom they will gather together in the end of days. While there

324  Samuel Moyn were some universal obligations later read into such prophetic sources as the rules applicable to all the “sons of Noah,” they do not contain individual entitlements against state and society.4 As for that Jew named Jesus, so uncertain about his own place in relation to prophetic traditions, he did not propound any human rights but preached the coming of the kingdom of God; while the disciple who spread what became the Christian gospel through Roman lands, Paul, following Jesus’s command to defer to Caesar’s law, did the same. As in the Hebrew Bible, early Christians had no problem with many of the most oppressive practices ever known. Among other flagrant concessions to human domination in this world, Paul never recommended any end of slavery but did repeatedly counsel bondsmen to obey their masters. In spite of such unpromising origins, by the end of the second millennium of the common era, many claims were being made that Christianity gave rise to human rights. Indeed, at this point it is impossible to credit some of those arguments for origins and deny others without giving a sense of their own history. Perhaps even more revealing than a Christian history of human rights, in other words, is a history of when and how people have claimed that Christianity gave rise to human rights—an assertion so popular in our time that it risks screening out how rare it was in the annals to offer it up. Many of the earliest claims about the Christian invention of human rights took the form of postschism wrangling over who deserved blame for human rights. It was an especially familiar stock in trade of Roman Catholic polemics against Protestantism that, by assaulting the authority and unity of a putatively universal church, Protestants bred the characteristically modern temptations of relativism and rights. As recently as Brad Gregory’s The Unintended Reformation, the story is told of the “relativizing doctrines” and “subjectivizing morality” that Protestantism brought along with unintended modernity and secularism.5 One of the earliest and most influential versions of this polemical view, due to conservative French Roman Catholic jurist Michel Villey, located the error somewhat earlier, in the late medieval nominalism that has routinely been given attention as the source of Protestant heresy.6 Returning the favor, Protestants have sometimes argued that their own devotion to faith alone, more consistently adhering to Jesus’s maxims to leave to Caesar his own realm, saved them from the Roman Catholic error of viewing politics as the forum for the realization of religious morality—including individual political entitlements. Arguments concerning the Christian origins of human rights thus for a long time consisted in Christians stigmatizing other Christians for them in confessional disputes. But the truth is that, long after the Reformation, there was no reason to anticipate that Christianity would look plausible as a source of contemporary human rights, whether for ill or for good. By the early modern period, Christianity’s Roman and medieval encounters with governance had long ago taken place. But outside the rare occasion in Scholastic moral philosophy, individual entitlements against the community or the state were not prominent in the teachings of Christianity. Some responsible historians of medieval thought,

Christianity and human rights 325 such as Annabel Brett and Brian Tierney, have taken advantage of a propitious moment to investigate anew the philosophical understandings of individual rights in Scholastic thought—in part to push back against Villey’s claim that it took nominalism to give rise to them. But nobody has established that anything like a culture of rights existed even in moral philosophy, let alone under Christian kingship and feudal power. Medieval theories of natural law sometimes included some individual moral entitlements, including one (for example) to steal in the case of extreme need. But these theories were mostly about imposing duties on individuals for the sake of the common good, not merely correlatively to the rights enjoyed by others, and justified what advocates of human rights today would consider outrageous subjugation—not least for women. The history of human rights may have origins in Christian natural law, but it is mostly a story of the accidental extrication of individual entitlements from the larger Christian framework which occasionally gave rise to them.7 As we will see, in the mid-twentieth century it became popular for Roman Catholics, reversing their long association of human rights with the French Revolution and wildfire relativism, to embrace the principles and even to claim to have pioneered them. And in Protestantism, self-congratulation for inventing human rights has been around for far longer and remains common, especially among Americans concerned to stress the genius of Protestants who founded a country that never forced its citizens to choose between religion and rights. But by professional historical standards, neither argument fares well, even if they encourage a few provisos to the basic verdict that rights became prominent in an increasingly post-Christian world. For one thing, arguments for governance to which Roman Catholic and Protestant sources alike most often led over the centuries were repressive in the extreme—even when Puritans offered grounds for a right of revolution. Martin Luther and his followers progressively hollowed out a forum internum as a site of faith, with disagreement persisting for a long time about whether government coercion of belief was legitimate. Luther himself insisted on the absolute freedom of the Christian conscience on condition of insisting on the absolute prostration of the Christian’s sinful body to government authority. And while it is true that some Protestants recommended more freedom from bodily coercion to allow for the conscientious leap to faith on one’s own—as in John Locke’s defense of toleration—it was always with exceptions and limits. (Most of all, Locke drew the line at atheists as well as Catholics, permitting their state persecution; and no one forbade occasionally aggressive proselytization.) As for those radical Protestants who innovated in the tracks of John Calvin’s theology a rationale—previously taboo in the history of Western political thought—for overthrow of a monarch if he did not make sufficient room for faithful commitments of believers, it was initially to replace him with a monarch who did make such room, and it allowed political authorities overwhelming latitude for repression in other domains (from the circulation of ideas to punishment of the body). And as interesting as this radical Protestant contribution was, perhaps even more interesting is how poorly the right to revolution has since fared in

326  Samuel Moyn both the politics of human rights and accounts of the trajectory of human rights since the era of twentieth-century decolonization—precisely when discourses about and movements for other human rights exploded in currency. The human right to overthrow illegitimate political authority is not mentioned in the Universal Declaration of Human Rights (1948), and no human rights nongovernmental organization monitors or pursues it. Put another way, the most notable Christian input to the history of human rights, aside from the right to religious freedom, has been squandered in the very age when human rights have become legally and politically more familiar than ever. To appreciate the irony of this fact, it is helpful to recall the historiographical functions the Protestant Reformation once served, before (like so many other eras of world history) it became fodder for narratives of the emergence of human rights.8 In 1965, political theorist Michael Walzer published a revision of his Harvard University dissertation as The Revolution of the Saints. Its focus was on how Calvinists after the founder of that sect resembled twentieth-century revolutionaries, especially in their apologetics for righteous violence. Though he acknowledged that “[v]irtually all the modern world has been read into Calvinism,” it is extraordinary that Walzer himself read into it the origins of radical politics, without mentioning rights—even the right to revolution. Wisely, however, Walzer insisted on caution even when it came to the clergy after Calvin who began to dissent from Calvin’s own bias for political order among fallen creatures and so became avatars of “radical intellectuals,” including Marxists in the twentieth century. If there were “modern” elements to Protestant religious currents, Walzer observed, it was more proper to say that they were “elements later incorporated in the modern world” and that “this incorporation was a long and complex process, involving selection, corruption, and transformation; it was a result of men working upon their Calvinist heritage.”9 Two helpful inferences for thinking about the parallel difficulty of deriving human rights from Christian history follow. One is that rights appeared to be an important (or the main) heritage of the Reformation only in recent historiographical time, replacing other claims on its legacy. Another is that the path from the Reformation’s undoubted contributions to theories of rights (especially of revolution) to the North Atlantic upheavals of the end of the eighteenth century is much more an abyss to bridge than a bridge to cross. “Protestant doctrine predates modern, post-eighteenth century views of universal human rights,” the great historian of English Christianity Patrick Collinson agreed, “which were reactive against coercive religious systems, Protestantism included.”10 How those often anti- or at least non-Christian theories and practices of rights emerged in the seventeenth and eighteenth centuries remains a fascinating question. Scholars will debate until the end of time how to assess the role of Christianity in the American Revolution, with its widespread declarations of rights in 1776 in Virginia and elsewhere, and in the Declaration of Independence for the breakaway federation as a whole. At one extreme, Hannah Arendt boldly contended not only that Christianity was peripheral to the “covenants” of American colonists in centuries before the new nation emerged, but also that

Christianity and human rights 327 rights were peripheral to the Americans’ revolutionary venture.11 Unlike in their original migration to North America, Anglo-Saxon settlers and their descendants were not primarily motivated by religious concerns in fomenting revolution— suggesting how easily and how quickly the once religiously motivated Protestant theory of resistance could slip original constraints and serve completely different purposes. Like American revolutionaries, of course, French revolutionaries gave religious freedom an important place in their declarations of rights in 1789 and after, although the Americans left room for established churches and considerable sway of Christianity in public life, while the French moved with alacrity to more oppositional attitudes to the Roman Catholic church. It was the nineteenth century that first saw the inception of the myth of the religious origins of human rights and gave rise at the turn of the twentieth century, in perhaps the first academic controversy over the history of human rights, to a struggle to locate the place of Christianity in the sources of the French Revolution’s Declaration of the Rights of Man and Citizen (1789). Preceded by Frenchman Paul Janet, Austrian Georg Jellinek proposed to great controversy (at least in France) that American and Puritan freedom had been the source of the French and post-Catholic rights declared in 1789, with the enormous consequences they were to have for the future of world politics. Much of the bitter dispute that ensued turned on Émile Boutmy’s nationalist outrage at the deprivation to Frenchman of their birthright invention and gift to humanity of basing politics on eternal rights. But the argument also concerned what precise role Protestantism and Puritanism in particular had played in the origins of human rights. The narrow dispute over the French Declaration presupposed a broad nineteenth-century history across the Atlantic where credence given to the very idea of indefeasible personal entitlements against community and state divided Christians in nearly every national setting. Boutmy’s patriotic attempt to assert ownership could distract from the far more important fact that within each nation across the north Atlantic—and increasingly around the world—the advent of modern liberal politics forced Christians to take sides for or against it; some list of personal entitlements was often central to what Christians who either assumed or rejected the liberal mantle understood themselves to be fighting with one another about. And one strategy for both sides was to claim or deny how much Christianity had done to make the modern idea of human rights possible—even when it was clear, after the French Revolution, that it was secularists and often avowed enemies of Christianity who most passionately invoked the principles. It has recently been contended that Roman Catholic popes, far from rejecting human rights as of 1789, embraced them, merely decrying their abuse by revolutionaries.12 But there is no doubt that, as the nineteenth century passed, political conservatives and reactionaries among Catholics and Christians generally conceded ownership of the concept to liberals, associating human rights with a reign of license and relativism, and dismissing them as profoundly threatening to Christian moral teachings. At the same time, as modern liberal politics emerged across the Atlantic in the aftermath of the French Revolution, many liberals were Christians and vice versa, and many championed the compatibility of religion and

328  Samuel Moyn rights, and often—to win favor for their side in the intra-Christian struggle— suggested that the origins of the latter lay in the former. In Great Britain and its empire, most famously, the story began to be told of “Puritanism and liberty,” as if the intent of breakaway Protestants centuries earlier, with their generally authoritarian politics and strict religious orthodoxies, had always been to establish permissive modernity. In a genuine transformation in memory, the bloody two centuries following the Reformation were more and more annexed retrospectively to later ideologies of liberal nationhood and empire.13 In France, Protestants after the French Revolution rallied to the idea of rights, and some of the canonical liberals, like Swiss-French political theorist Benjamin Constant, were Protestants for whom it was of the utmost importance to claim that Christianity gave birth to modernity and its human rights. Some liberal Catholics in France followed suit. A similar configuration occurred in Germanspeaking lands, with due allowance for the much greater presence of Protestant churches and, after the unification of Germany under Prussian auspices, the fact that in Germany Catholics were more likely to celebrate liberal principles: if Protestants were under Catholic threat in France, the reverse was true across the Rhine, as the Kulturkampf graphically demonstrated. Even so, it was rare as the nineteenth century passed for Roman Catholics anywhere to have good things to say about human rights, given the growing hostility of the papacy to rights. The famous Anglo-German Catholic liberal Lord Acton, like his German master Ignaz von Döllinger, nonetheless could insist against conservative enemies within the church (at the First Vatican Council and elsewhere) that Catholicism allowed for and even required advocacy of the progress of liberal civilization, including God-given individual rights. But these Catholics did not win the day in their church. What is perhaps most interesting about the nineteenth century is that, even though it was the great age of the globalization of Christianity beyond its longtime North Atlantic homeland and durably established Latin American outposts, there is no sign that human rights were globalized along with it. Indeed, imperial rule by Europeans and later Americans retains its reputation for much callous disregard for human life, including for nearly every item on the list of contemporary human rights. In spite of certain advocates of a kinder and gentler form of European empire and Christianization of the “sacred space” of new continents for centuries—Spanish Dominican Bartolomé de Las Casas has been especially lionized in this regard—there were no human rights activists in global affairs at any point in the age of empire building, and precious little constraint on social and state treatment of native populations.14 The strict separation between assumptions and expectations for European citizens and those whom they ruled overseas was justified first religiously, then civilizationally, then racially. For centuries, Christians drew stark and often incipiently racialized lines between themselves and the “heathens” they discovered and violently conquered around the world. Overlapping with and parallel to empire, an eventually massive global missionary project offered more generous inclusion to converts; empires, however, do not seem to have been reformed in their governance where Christianity penetrated

Christianity and human rights 329 more. There is no evidence, either, that Christians asserted human rights in the face of the move of their more secular fellow imperialists to justify despotism in the name of a civilizing process (as John Stuart Mill, for example, did), or even to decry the globalization of a white racial politics or “global color line” in the later nineteenth century—let alone to protest the serial atrocities that mar the record of empire.15 A fuller embrace than in a nineteenth century still anxious about the viability of rights for Christians required perhaps the pivotal moment in the middle decades of the twentieth century—centuries after Christianity inadvertently provided elements for human rights concepts. And that pivotal moment saw many Christians lurch towards embracing human rights only once they had tried out other choices. After all, many Christians in the disconcerting years after the Great Depression anticipated a postliberal politics—with the crisis of economic liberalism forcing so many beyond the boundaries of political liberalism. And if Christians could not live in an authoritarian regime of their own making—as in Portugal after 1933, Austria between 1934 and the Anschluß of 1938, and Spain after its civil war, as well in opportunities in France, Slovakia, and elsewhere that Adolf Hitler’s empire created during World War II—they often sidled up to secular dictators, conceiving of them as the lesser evil to a communist or Judeo-Bolshevik threat. As historian James Chappel has shown, there was even a politically reactionary discourse of human rights in these years, understood as basic values of Christians forced to build often oppressive right-wing states. But Catholics and Protestants also moved in the late 1930s and especially during World War II to define human rights as an “antitotalitarian” alternative to communism and fascism alike.16 After World War II, many more Christians than had been willing in the 1930s or before embraced human rights as the basic principles of politics, including in new Christian Democratic regimes that were being founded across Western Europe. At the international level, others participated fully in nongovernmental activism when ecumenical Protestants formed the World Council of Churches in 1948 or sought a role in intergovernmental negotiations over the new United Nations Universal Declaration, propounded the same year.17 Essential to this development were churchmen in resistance networks of Protestants and Roman Catholics during World War II; leading them all in global public visibility was Roman Catholic layman Jacques Maritain, who insisted that natural law required a range of human rights. This same period saw a broad revival of natural law approaches to the foundations of liberal democracies, something secular progressives had broadly rejected for the prior century precisely because appeals to the duties and limitations that nature imposes upon humans in community and under God’s will had once been the chief arguments against individual entitlements and personal empowerment. Whatever the medieval roots of human rights in Christian natural law centuries before, the moment after World War II was the first time that appeals to natural law made an essential place for individual rights. Often limitations imposed on the sovereignty of the state or nation-state, given its immediately prior misdeeds, were predicated in natural law discourse on an

330  Samuel Moyn acknowledgment of God’s sovereignty, precisely to combat the risks of inflating individual self-regard.18 It is fascinating that the canonization of antitotalitarian human rights, which occurred in the late 1940s as the Cold War dawned, prompted its own revisionist return to early modern origins (much as seems to be occurring once again today for new post-Cold War purposes). The search for tradition was easiest for Protestants, who conveniently forgot how many Protestants had long embraced a politics of religious and ethnic exclusion for centuries, including through the end of the recent war. Probably the most widely circulating historical account about early modern developments in the United States, The Travail of Religious Liberty (1951) by Yale University divinity professor Roland H. Bainton, opens this way: The historian who set out twenty-five years ago to write the history of the struggle for religious liberty believed the subject peculiarly suited to his pen because the evidence was all in. The victory had been won, and to recount the tale was a task of filial piety in order to extol the exploits of those who had put to flight armies of aliens. Today the armies of aliens hold the field in many quarters, and the history of religious liberty is a chapter in the intelligent man’s guide to the reading of the newspapers. It was the threat of communism, Bainton clarified, that gave the past of religious liberty such new salience, so as “to learn . . . lest we too be engulfed.” As among European Christians who moved so quickly from teachings of contempt to human rights, such historical fabrications around religious freedom were deeply misleading. For Americans, they concealed how much anti-Catholicism had deeply defined Protestant hegemony in the history of the United States, along with the endemic antisemitism, until the Cold War allowed for a “tri-faith America” of Protestants, Catholics, and Jews to crystallize.19 Meanwhile, the leading study in Europe, by Jesuit Joseph Lecler, a dissident in his own faith who argued for the transformation of Catholicism to incorporate religious liberty (which required the Second Vatican Council in the 1960s and a bitter struggle within the church), made it his main mission in an ecumenical age to show that impulses to toleration cut across the Catholic-Protestant divide from the beginning, presumably suggesting deep sources for trans-Christian unity against communist suppression of religious freedom now.20 Gerhard Ritter, German Protestant conservative as well as the historian who first tried—long before our time—to give international human rights in general a lineage deep in the past, put the fate of religious freedom at the very center of his history. To his somewhat wayward European brethren, Ritter cheered on American Cold War Secretary of State John Foster Dulles for recognizing freedom of religion as the main human right that mattered, in the emergency of communism’s global prestige and threat. “Geopolitically,” Ritter explained, there can be no doubt that the future of everything that we customarily regard as the heritage of Christian-Occidental culture depends on the almost

Christianity and human rights 331 religious zeal with which today’s America defends the principle of general human rights against the totalitarian state system. Not surprisingly, Ritter’s history of human rights reflected his politics: on his account, Americans had discovered human rights through the right of freedom of conscience, and they continued to stand up for it now that the perverse French interpretation of rights—secular and materialist—threatened, as its main heirs in the communist east unleashed violence as a slander for justice.21 Given the imperial past of the Western countries that called themselves the “free world” in these Cold War years, the globalization of human rights depended on even later factors, and the decolonization of most of the world’s peoples. That decolonization was not immediate after 1945, and instead required several decades: for the last phase of the Western European empires Christians had spent centuries building was bloody and repressive, exacerbated by Cold War geopolitics. This was also the era of the continuing globalization of Christianity, which due to its decline in the global north eventually became in many respects a global southern religion. Following the World Council of Churches, which embraced human rights as progressive values consonant with decolonization, perhaps the most catalytic event for the association of Christianity and human rights worldwide was the papacy of John XXIII, whose epoch-making encyclical Pacem in Terris (1963) foresaw a global peace in its title and made the idea of human rights essential to its realization. Unlike the Vatican at the time of the Universal Declaration fifteen years earlier, John’s message insisted that human rights find a place in every state constitution and specifically praised the touchstone United Nations document. Though the effects of the encyclical worldwide have not yet been fully assessed, it is clear that they were massive. One consequence was the short-lived embrace of human rights by leftist liberation theologians in the early days of their movement, before their interest in Marxism overwhelmed this commitment. Another was the possibility of coalitions of Christians with secular critics of authoritarian and totalitarian regimes in the era of the true global breakthrough of human rights worldwide, which occurred in the 1970s. Especially in Eastern Europe and in some places in Latin America, the Christian embrace of human rights made possible the founding of alliances among Christians and non-Christians, who together sparked the emergence of human rights as a global moral lingua franca—something that had never occurred before.22 Yet in spite of important growth of Christian arguments for human rights in the 1980s, not least due to the anticommunist activism of Roman Catholic pontiff John Paul II, nothing like the possibility of global law with individual human rights at its heart was conceivable until the Cold War ended. Both before and after 1989, there were continuing Christian criticisms of the very idea of human rights, not only in liberation theology on the left but also and more familiarly on the right, such as in Alasdair Macintyre’s influential dismissal of them in his classic study After Virtue as unrealities on par with witches or unicorns.23 For a halcyon two decades, nonetheless, the dream of spreading human rights in national law and the launching of human rights as a much fuller-fledged project

332  Samuel Moyn in international law than ever before captured the imaginations of global elites, and Christians were certainly part of this history, though it remains to be told in its full ramifications. Neil Walker described the idea of global law as reflecting “a new mood” that “registers as a state of contestable becoming rather than corrigible achievement.” Others, such as Rafael Domingo, have gone further. Domingo writes that the Universal Declaration of Human Rights is a witness to the fact that international law, now obsolete, yielded to global law in this universal race for freedom and justice [and] the hope of realizing global excellence, a condition inherent to the innate dignity of persons. And it is significant that Walker describes human rights as “the most obvious and appropriate candidate for broadly encompassing claims of legality at the global level.” The main question, however, for the prospective intersection of the conflicted and modest and recent Christian heritage of human rights with global law is whether anything like the latter is in prospect in the near future—or whether it was an illusion brought on by a historical circumstance that has now definitively passed.24 Needless to say, there has been a great deal of evidence in the past two decades in favor of the inception of “global community,” however that phenomenon is related to the now more than two billion Christians worldwide and however human rights norms are thought to fit into a possible move from an international law of states to a genuinely suprastate law. But three principal reservations have also been expressed, which alone and together suggest that commentators may have mistaken signs for wonders. First, globalization—including the globalization of Christianity and human rights—has been exclusionary and spotty. Second, the main globalization of law that has taken hold is by no means that of human rights for individuals, but rather one of economic freedom for plutocratic elites and multinational corporations. Third, and in part in consequence, backlashes to neoliberal globalization have undermined any prospect of global law soon—and those backlashes have intersected with Christianity to a revealing and often startling extent. A tour of global “populism” suggests as much. In the Philippines, authoritarian leader Rodrigo Duterte has been quite hostile to the Roman Catholic Church; while in Latin America there is no deep cleavage but also no love lost between Venezuela’s Nicólas Maduro and Christian institutions. In global northern populism, by contrast, there is considerable evidence of Christian support for the new breed of strongmen, even when they are godless or treat Christianity in the most crassly instrumental terms. (This is not new, since in the early twentieth century, reactionary Christians backed atheists like Charles Maurras and secular leaders who won power.) In the United States, self-declared Christians, especially evangelical Protestants but also a high percentage of Roman Catholic males, were enthusiastic supporters of Donald Trump’s presidency—which no one would say has placed human rights at the core of its policies domestically or internationally.

Christianity and human rights 333 In Europe, while the primary ideology of far-right parties is nationalist and xenophobic, their leaders across the continent have made frequent appeals to Christianity and self-identifying Christian voters, while disdaining human rights. Given the intersection of Christianity and far-right politics earlier in European history, and the development in recent years of powerful versions of Christian nationalism, the rise of populism is a potent reminder of how conflicted the relations between Christians and human rights may always have remained—even in the era between the 1960s and the present when the association between them became far stronger than in the prior two thousand years. Starting with the proposition that the historical relationship between Christianity and human rights is genetic and long-standing, and the assumption that extraordinary steps towards a global law based on human dignity have already been taken, leaves contemporary politics confusing. This is not to say that there are no resources in Christianity for a global law based on human rights. But the main reason this is true is that, in the long history of Christian theory and practice, there are resources for an enormous set of alternative outcomes. Christianity is imaginably a source of such a global law not because the latter already exists but because, throughout its millennial existence, Christianity has been a fund for a huge range of prior legal projects, both a series of local ones and earlier global ones (European empire, not least). Seeing Christianity inspire a new “world law” based on the Holy Spirit and human rights alike, as the great scholar Harold Berman hoped at the end of his life, is self-evidently premature—but it is no more unthinkable than other outcomes past and present. The only defensible conclusion is that Christianity seems to be a gift that gives to those who seek it, whatever their ends.25 After the conversion of Constantine, the Roman Empire became tightly linked to Christianity, in the eyes of Eusebius and other prognosticators of its coming destiny. But in spite of the empire’s own self-styled cosmopolitan or at least ecumenical features, history went a very different way. The empire fell, and it was left to Augustine of Hippo to extricate Christianity from any indenturement to a philosophy of the religion’s world-historical success. After the disaster of affiliating Christianity too closely with a this-worldly politics, Augustine concluded that the cities of God and humanity, even during the pilgrimage of one through the other, are different if related. It is a salutary reminder of the strict limitations to any expectations that Christianity will open the way to a global law of human dignity. Given their obvious importance, it is very much to be hoped that human rights may progress further in global law. Even then, the world will never become Christianity’s home.

Notes 1 See John Paul II. 2 See Zuber’s L’origine religieuse des droits de l’homme, which is now the best general work on the topic. For a counterpoint to the cautious skepticism of my treatment, compare Witte and Alexander, Christianity and Human Rights.

334  Samuel Moyn 3 Henkin is accessible and authoritative. 4 See Schwarzschild. 5 See Gregory. 6 See Villey. 7 On this topic, see the relevant chapters in Halme-Tuomisaari and Slotte. 8 See Witte, The Reformation of Rights. 9 Walzer, 300. 10 Collinson, 46. 11 See Arendt. 12 Edelstein, “Christian Human Rights in the French Revolution”; On the Spirit of Rights, 196–204. 13 See Howard. 14 On comparative Christian frameworks for expansion over “sacred space,” see Elliott, esp. ch. 6. 15 See Lake and Reynolds. 16 Chappel, “Explaining the Catholic Turn to Rights in the 1930s.” 17 See Bouwman; see also Lindqvist. 18 See Moyn, “Personalism, Community, and the Origins of Human Rights.” 19 Bainton, 13–14; Schultz. Compare also Wilken. 20 See Lecler. 21 Ritter, 469; Moyn, “The First Historian of Human Rights.” 22 Engler; Moyn, The Last Utopia, ch. 4. 23 Macintyre, 69. 24 Walker, 27, 71; Domingo, 143 (footnote omitted). But compare Soirila. 25 See Berman.

Bibliography Arendt, Hannah. On Revolution. New York: Viking Press, 1957. Bainton, Roland H. The Travail of Religious Liberty: Nine Biographical Studies. Philadelphia: Fortress Press, 1951. Berman, Harold J. “World Law: An Ecumenical Jurisprudence of the Holy Spirit.” Theology Today 63 (Fall 2006): 365–74. Bouwman, Bastiaan. “Universal Rights in a Divided World: The Human Rights Engagement of the World Council of Churches from the 1940s to the 1970s.” PhD diss., London School of Economics, 2018. Chappel, James. Catholic Modern: The Challenge of Totalitarianism and the Remaking of the Church. Cambridge, MA: Harvard University Press, 2018. Chappel, James. “Explaining the Catholic Turn to Rights in the 1930s.” In Christianity and Human Rights Revisited, edited by Daniel Steinmetz Jenkins and Sarah Shortall. Cambridge: Cambridge University Press, forthcoming. Collinson, Patrick. “The Case of and for Protestantism.” In Historical Change and Human Rights, edited by Olwen Hufton. New York: Harper Collins, 1995. Domingo, Rafael. The New Global Law. Cambridge: Cambridge University Press, 2010. Edelstein, Dan. “Christian Human Rights in the French Revolution.” Journal of the History of Ideas 79/3 (July 2018): 411–26. Edelstein, Dan. On the Spirit of Rights. Chicago: University of Chicago Press, 2018. Elliott, J.H. Empires of the Atlantic World: Britain and Spain in America, 1492–1830s. New Haven: Yale University Press, 2006.

Christianity and human rights 335 Engler, Mark. “Toward the ‘Rights of the Poor’: Human Rights in Liberation Theology.” Journal of Religious Ethics 28/3 (Fall 2000): 339–65. Gregory, Brad. The Unintended Reformation: How a Religious Revolution Secularized Society. Cambridge, MA: Harvard University Press, 2012. Halme-Tuomisaari, Miia, and Pamela Slotte, eds. Revisiting the Origins of Human Rights. Cambridge: Cambridge University Press, 2015. Henkin, Louis. “Judaism and Human Rights.” Judaism 25/4 (Fall 1976): 435–46. Howard, Thomas Albert. Remembering the Reformation: An Inquiry into the Meanings of Protestantism. Oxford: Oxford University Press, 2018. Invernizzi Accetti, Carlo. What Is Christian Democracy? Politics, Religion, and Ideology. Cambridge: Cambridge University Press, 2019. Jenkins, Daniel Steinmetz, and Sarah Shortall, eds. Christianity and Human Rights Revisited. Cambridge: Cambridge University Press, forthcoming. John Paul II, Pope. Ecclesia in Europa. London: Catholic Truth Society, 2003. Lake, Marilyn, and Henry Reynolds. Drawing the Global Color Line: White Men’s Countries and the International Challenge of Racial Equality. Cambridge: Cambridge University Press, 2008. Lecler, Joseph S.J. Histoire de la tolérance au siècle de la Réforme. 2 vols. Paris: Aubier, 1955. Available in English as Tolerance and the Reformation. 2 Vols. Translated by T.L. Westow. New York: Association Press, 1960. Lindqvist, Linde. Religious Freedom and the Universal Declaration of Human Rights. Cambridge: Cambridge University Press, 2017. Macintyre, Alasdair. After Virtue: A Study in Moral Theory. Notre Dame, IN: Notre Dame University Press, 1981. Moyn, Samuel. Christian Human Rights. Philadelphia: University of Pennsylvania Press, 2015. Moyn, Samuel. “The First Historian of Human Rights.” American Historical Review 116/1 (February 2011): 58–79. Moyn, Samuel. The Last Utopia: Human Rights in History. Cambridge, MA: Harvard University Press, 2010. Moyn, Samuel. “Personalism, Community, and the Origins of Human Rights.” In Human Rights in the Twentieth Century, edited by Stefan-Ludwig Hoffmann. Cambridge: Cambridge University Press, 2011. Moyn, Samuel. “Too Much Secularism? Religious Freedom in European History and the European Court of Human Rights.” In Freedom of Religion, Secularism, and Human Rights, edited by Nehal Bhuta. Oxford: Oxford University Press, 2019. Ritter, Gerhard. “Die englisch-amerikanischen Kirchen und die Friedensfrage.” Zeitwende 18 (1949): 459–70. Schultz, Kevin M. Tri-Faith America: How Catholics and Jews Held Postwar America to Its Protestant Promise. Oxford: Oxford University Press, 2011. Schwarzschild, Steven S. “Do Noachites Have to Believe in Revelation? (A Passage in Dispute between Maimonides, Spinoza, Mendelssohn, and Hermann Cohen): A Contribution to a Jewish View of Natural Law.” In Pursuit of the Ideal: Jewish Writings of Steven Schwarzschild, edited by Menachem Kellner. Albany: State University of New York Press, 1990. Soirila, Ukri. “The Law of Humanity Project: An Immanent Critique.” PhD diss., University of Helsinki, 2018. Villey, Michel. Le droit et les droits de l’homme. Paris: Presses Universitaires de France, 1983.

336  Samuel Moyn Walker, Neil. Intimations of Global Law. Cambridge: Cambridge University Press, 2014. Walzer, Michael. The Revolution of the Saints: A Study in the Origins of Radical Politics. Cambridge, MA: Harvard University Press, 1965. Wilken, Robert Louis. Liberty in the Things of God: The Christian Origins of Religious Freedom. New Haven: Yale University Press, 2019. Witte, John, Jr. The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism. Cambridge: Cambridge University Press, 2007. Witte, John, Jr., and Frank S. Alexander, eds. Christianity and Human Rights: An Introduction. Cambridge: Cambridge University Press, 2011. Zuber, Valentine. L’origine religieuse des droits de l’homme: le christianisme face aux libertés modernes (XVIIIe—XXIe siècles). Geneva: Labor et Fides, 2017.

20 Christianity and the international economic order Daniel A. Crane

It is difficult to feel much optimism about the future of the global economic order. As this chapter is being written, Great Britain is fighting to extricate itself from the European Union, the United States is repudiating its longtime championship of multilateral free trade agreements, and the long-standing “Washington consensus” around the neoliberal policies epitomized by such institutions as the International Monetary Fund (IMF), the World Bank, and the General Agreement on Tariffs and Trade (GATT) seems to be disintegrating. A global order that just a few years ago seemed to be increasingly united and homogenized by the internet, economic globalization, and the movement toward market democracy is threatening to fall apart under the centrifugal forces of nationalism, localism, and political alienation. It may be too early to sound warning bells about the global disintegration that preceded the rise of fascism and the Second World War, but current trend lines are not looking promising for Thomas Friedman’s “Golden Arches” theory of conflict prevention—that no two countries that had McDonald’s restaurants would ever go to war. The pressures bearing down on the global economic order come from multiple directions. On the political right, demands to preserve traditional prerogatives of national sovereignty and autonomy and to reject multiculturalism and internationalism are driving to erect (or reerect) economic border walls.1 On the political left, criticisms have mounted against the Washington consensus or neoliberalism that was seen as serving corporatist rather than indigenous interests and, particularly, serving up a new form of colonialism to the developing world.2 It is increasingly difficult to find robust defenders of economic globalism outside of technocratic elites that seem to be routed by a populist tidal wave of nationalism and localism. Amid this doom and gloom for globalism, what does the church have to offer beyond platitudes concerning the need to construct a just and equitable system that works for all? Should the church focus its efforts on influencing political leaders to redouble efforts to preserve the global economic order through the force of treaties, laws, and regulations? Should it instead accept the reversion to economic nationalism as inevitable and perhaps even respectful of national sovereignty, and refocus its efforts on domestic economic justice? Or, more radically, should the church look beyond the global economic order as a system created

338  Daniel A. Crane and maintained by public law and adopt strategies to influence the global economic system directly as a deliberate market participant? There is no consensus Christian answer to these questions, although much material in the Christian tradition bears on all of them.

Christian ideology and the global economy Christian thinkers have long contributed to the development of economic theory in important ways. For example, scholastic theorists wrote extensively on such matters as money lending, just pricing, sales, leases, and partnership contracts;3 natural law theorists like Samuel von Pufendorf and Hugo Grotius contributed to the intellectual foundations of international trade;4 and Reformation figures like Martin Luther developed bodies of teachings on usury and monopoly.5 But the present question is to what extent the contemporary international economic order, reflecting a general orientation toward regulated market capitalism, reflects Christian theological, moral, and dogmatic influences. Historically speaking, there is little doubt that aspects of Christian ideology have significantly shaped the contemporary international economic order, although scholars often disagree on just how it has done so. Rodney Stark has argued that Christianity, by focusing on theological abstraction and rationality and recognizing property and contract rights, became a catalyst for technological and scientific innovation throughout Western Europe.6 Joel Mokyr has disputed what he views as Stark’s “argument based on some inherent superiority of Western or Christian culture” in advancing technological innovation, but does credit the Puritan embrace of science as the impetus behind the British Industrial Revolution.7 Empirical work has shown that the spread of Protestantism following the Reformation had significant economic effects on human capital, economic development, competition in media markets, and political economy.8 Max Weber famously credited Protestantism and its rigorous work ethic with the creation of capitalism, which underlies the economic globalization that has occurred since the fall of the Berlin Wall, and Adam Smith—theologically a Deist but heavily influenced by Scottish Presbyterianism—laid the intellectual foundations of free-market systems.9 Christian thought is often said to undergird the rise of capitalism.10 While Christian thinkers and systems of Christian thought have undoubtedly shaped the global economic order, it would be difficult to sustain the claim that the international economic system portrays a Christian image, for the simple reason that it would be difficult to find any five randomly selected priests or ten randomly selected pastors who would concur on what a Christian economic system should resemble. It bears remembering that, in the twentieth century alone, Christians were willing to go to war over whether liberation theology and its Marxist dogma or liberal capitalism better epitomized the message of the cross. Given that prominent Christian leaders like William Temple, the Archbishop of Canterbury, could assert that Marxism was the only viable economic theory for Christians to accept,11 and theologians like Paul Tillich and Reinhold Neibuhr

Christianity and the economic order 339 could (at least at one point in their careers) largely assent to Karl Barth’s declaration that “a real Christian must become a socialist [and] a real socialist must become a Christian” and that “anti-Communism [is] as a matter of principle an even greater evil than Communism itself,”12 it would seem presumptuous to equate the global capitalist order with Christian theology—whatever any individual Christian’s views on the merits. At most, the global economic order reflects the influence of various strands of Christian thought. While any number of thinkers have attempted to justify a comprehensive economic theory on biblical principles, the intellectual lineage of global capitalism is primarily traceable to a Western European Enlightenment tradition that drew on many Christian influences, but also on many skeptical ones. The agnosticism or skepticism of leading proponents of laissez-faire systems like Adam Smith, Herbert Spencer, and John Stuart Mill should give us pause before dubbing global capitalism the offspring of Christendom. Rather than attempting to understand the global economic order as the intellectual offspring of any single faith tradition, it is probably more relevant to consider the interventions that the church has made on concrete institutions, rules, and principles of the international economic order. Beyond the particulars of Christian theology, there are interesting questions around the effects of Christian beliefs on economic growth and development within different populations around the globe. Empirical evidence suggests crosscutting effects for different manifestations of Christian belief. A 2003 study by the National Bureau of Economic Research (NBER) found that increases in church attendance tend to reduce economic growth because church attendance is correlated with a greater use of economic resources by the religious sector (and the authors were studying mostly Christian-majority countries), but that some particular religious beliefs—heaven, hell, and an afterlife—tend to increase economic growth because they sustain various behaviors that enhance productivity.13 The authors interpreted these results as suggesting that “growth depends on the extent of believing relative to belonging.” Christian beliefs may have a positive effect on the growth of the global economy, even while church attendance may seem, empirically, like a drag on economic growth. Christian beliefs and practices are thus exerting an influence on the global economic order, but the sign and magnitude of their influence is difficult to pin down.

The global order and public law When people speak of the global economic order, they usually have in mind the formal system of treaties, laws, regulations, and institutions created by public international law and public domestic law focused on international economic dealings. A leading list of such institutions would include the World Trade Organization (WTO), an intergovernmental organization policing trade agreements among member states; the European Union, the political and economic union of (a shrinking) number of member states; and the IMF, an association of 189 countries ostensibly working to foster global monetary cooperation, secure

340  Daniel A. Crane financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world. There are also many international institutions of “soft law,” such as the Basel Accords on banking regulation, which since 1988 have resulted in a series of recommendations to national banking authorities on how to manage such issues as capital adequacy risk, bank supervision, financial disclosure, and liquidity ratios. At a yet less formally structured level, cooperation among national regulatory authorities on matters such as antitrust and securities regulation through a variety of bilateral or multilateral cooperation and information-sharing agreements contributes to the creation of a global economic order structured and policed by the force of law. The church’s role in shaping this formal economic order is largely hortatory. The church, or individual Christians, can attempt to influence political decisionmakers to adopt ethical and moral principles, as they can on any matter of public policy. And they have done so. For example, Pope Benedict XVI’s encyclical letter Caritas in veritate excoriated the excesses of individualistic global capitalism and called for a humane and fraternal vision for economic globalism: Sometimes globalization is viewed in fatalistic terms, as if the dynamics involved were the product of anonymous impersonal forces or structures independent of the human will. In this regard it is useful to remember that while globalization should certainly be understood as a socio-economic process, this is not its only dimension. Underneath the more visible process, humanity itself is becoming increasingly interconnected; it is made up of individuals and peoples to whom this process should offer benefits and development as they assume their respective responsibilities, singly and collectively. The breaking-down of borders is not simply a material fact: it is also a cultural event both in its causes and its effects. If globalization is viewed from a deterministic standpoint, the criteria with which to evaluate and direct it are lost. As a human reality, it is the product of diverse cultural tendencies, which need to be subjected to a process of discernment. The truth of globalization as a process and its fundamental ethical criterion are given by the unity of the human family and its development towards what is good. Hence a sustained commitment is needed so as to promote a person-based and community-oriented cultural process of world-wide integration that is open to transcendence.14 (emphasis added) In May 2018, the Vatican issued its Oeconomicae et pecuniariae quaestiones: “Considerations for an Ethical Discernment Regarding some Aspects of the Present Economic-Financial System,” which called for greater oversight and vigilance by public authorities to prevent such economic evils as fiscal evasion, financial mismanagement, unsurmountable public debt, and the increase of offshore accounts to hide financial assets. The text pillories the “profoundly amoral culture” of greed by financial agents and calls for Christians to make themselves “catalysts of a new social behavior, shaping our actions to the search for the common good, and establishing it on the sound principles of solidarity and subsidiarity.”

Christianity and the economic order 341 Similarly, international organizations of the so-called Christian left, such as the World Council of Churches (WCC), frequently speak to governments and policymakers about a Christian vision for an ecologically friendly and economically just global order. A current initiative of the WCC calls for adoption of policies supporting “small-scale, live-giving [sic] agriculture,” “climate-friendly mobility,” “ecological, fair, and regional” consumption, the creation of “places for moneyless interaction,” and “just finance.”15 Individual churches or church associations frequently attempt to use their influence with governmental officials or organizations to promote economic policies that they see as congenial to the message of the Gospel. The church’s force of moral suasion may exert some influence on policy formation among the political elites that set the rules for trade, regulation, banking, securities dealing, sovereign debt, and the like, but many Christian leaders are reluctant to come too close to the technocratic details lest they be perceived as becoming excessively political or overstepping the boundaries of their expertise. The Archbishop of Canterbury can call Brexit a “political,” “practical,” and “moral” failure, but, at the end of the day, the Church of England as an institution can do little more than urge five days of prayer for the poor affected by the economic disruption of British exit from the European Union.16 Meanwhile, many evangelical leaders in the United States are celebrating Brexit and related antiglobalist retrenchments as the just reassertion of national sovereignty and the rejection of an internationalism vehemently suspected of socialist and secularist leanings. While Christian leaders frequently opine about the large political-economic questions of the day, there is scant evidence that their influence is seen in the important details of policy implementation. The reality is that the legal regulation of the international public order has become so specialized, complex, and insular that few lay people—including the church leaders with the largest bully pulpits—understand it very well. When experts at the Organisation for Economic Co-operation and Development (OECD) debate whether the Dynamic Stochastic General Equilibrium model or some alternative better predicts the interaction of world economies, it is unlikely that the perspectives of religious leaders will be seen as helpful. The heads of the elite economic organizations making the key policy decisions for the global economic system are just as likely to see religious leaders as forces of division and discord as moral forces to be harnessed in shaping economic policies.17 This is not to say that the technocratic decisions that shape the global economy are morally neutral. When banking regulators set liquidity thresholds in Basel, or antitrust regulators set the terms of global mergers in Brussels, or monetary officials determine acceptable sovereign debt levels in Belize, their technocratic assessments rest upon implicit value-laden judgments, but ones that even sophisticated lay people have little hope of comprehending. The growing tide of antiglobalism rests, at least in part, on the perception that consequential decisions that shape lives and destinies are being made by distant technocrats whose value systems and analytical tools reside in an impenetrable black box. Christian leaders

342  Daniel A. Crane have, thus far, shown no greater aptitude than anyone else at opening the black box.

Grassroots Christianity around the globe If the church qua church has found itself largely excluded from the expert decision-making that shapes the formal economic order among nations, this is not to say that Christians have little influence in international markets or economic systems. To the contrary, the economic influence of individual Christians is as broad and international as the spread of Christianity itself, which, from its earliest days, has been on global mission to reach the farthest ends of the earth. Writing about Christianity and the global economic order, Paul Williams observes that “Christianity, like capitalism, is also a global order but one whose nature and function is quite different.”18 He further notes that “Christianity’s indigenizing tendency,” which allows cultures to develop their own syncretic versions of the faith, has made Christianity the world’s largest religion without enabling the church to develop “a centralized global infrastructure in the way the world’s largest firms have.”19 Grass-roots Christianity infuses the world’s economy without centralized management of any Christian institution. Scholarly work suggests that the global missionary movement from the seventeenth century to the present had a significant effect on democratic, educational, social, and economic progress in the developing world,20 although missionaries may also have settled in locations that were already the most favorable for economic development.21 At present, there are an estimated 430,000 Christian international missionaries spreading the Gospel around the world.22 Many of these missionaries follow the example of the Apostle Paul as “tentmakers,” pursuing an economic vocation or profession in their place of ministry and hence contributing to both spiritual and economic life. Increasingly in recent years, mission organizations have focused their efforts on the economic empowerment of the poor and oppressed. Initiatives such as microfinance to stimulate entrepreneurship among the needy, job training and employment initiatives for victims of coerced prostitution or human trafficking, and economic development projects for destitute villages are examples of missionary participation in the global economic order out a conscious commitment to serve both souls and bodies.23 Such initiatives can both contribute directly to economic justice by providing material aid to needy people and project a Christian message about the obligation to consider the needs of “the least of these” to decision makers in the economy more broadly. Beyond traditional missionary work, Christian NGOs like Catholic charities, World Vision, Compassion International, and the Salvation Army play a critical role in disaster relief and economic rehabilitation around the globe.24 Churches also play an important role as oases of stability, shelter, and liberty in tempestuous places across the globe, often providing relief and economic support for persons displaced by war and oppression. The influence of globally mobile Christians does not stop with those working across borders on missions of economic charity. Christianity is spreading around

Christianity and the economic order 343 the globe through the twin forces of migration and conversion. Globally, Christianity has roughly maintained its demographic “market share” over the last one hundred years—around a third of the world’s people are nominal Christians— but the distribution has shifted sharply.25 In 1910, two-thirds of the world’s Christians lived in Europe; today, that number has fallen to a quarter.26 About a third of all Christians live in the Americas, a quarter in sub-Saharan Africa, and an eighth in Asia and the Pacific.27 Christianity is so widespread and diverse that it lacks any geographical center, dominant political ideology, or consensus economic theory. But individual Christians and Christian communities are the backbone of many facets of the global economy. Christian entrepreneurs in both the developed and developing world have the potential to shape local and global business cultures on such matters as bribery and corruption, vocational calling, and fair labor practices.28 The ideas, values, and practices that Christians bring to their businesses, employment relationships, and consumer choices shape the international economic order, whether consciously or unconsciously. Economists often insist that they have no competence to say what something is worth, but only to identify what people are willing to pay for it. From an inductive perspective, the world’s economic system is simply the revealed preferences of the billions of individuals who participate in markets, make investment decisions, buy and sell things, hire and fire, or start or close businesses. Whether they think about it or not, Christians have the power to shape the global economic order through the retail decisions they make about their time, money, and relationships. If the church universal were to develop a common economic identity and a common set of economic beliefs and practices, it could reshape the international system. To give a concrete example, consider the popular “buy local” movement that encourages consumers to prefer locally grown or manufactured products over those produced at a distance. “Buy local” is surely not free from moral and spiritual implications. One could imagine a Christian consensus developing that Christians should demonstrate solidarity with their local communities by supporting the local economy. Conversely, one could equally well imagine a consensus developing to the effect that the Christian should have no greater affinity for the local farmer than for the farmer living half a world away—both being equally cast in the image of God and, perhaps, equally a brother or sister in Christ—and therefore should make consumption decisions on some other principle, such as comparative advantage, allocative efficiency, or output maximization. Adoption of either of these perspectives as a matter of Christian belief by the mass of Christians globally would do more to shape the global economy than any decisions of the World Bank or IMF. But then we are back to where we started—the observation that the vast heterogeneity in social and economic beliefs and practices in global Christianity renders it virtually impossible to trace a distinctively Christian influence on the global economy. While some social science research suggests that highly religious consumers behave somewhat differently than others—for example, by making fewer impulse purchases and spending less of their discretionary income29—such

344  Daniel A. Crane empirical work tends to identify the effects of strong religiosity of any kind rather than adherence to a particular set of theological commitments. Christians are undoubtedly shaping the international economic system through their retail decisions, but whether their revealed preferences exhibit an identifiable set of distinctive patterns is doubtful. Jesus said that his disciples would be known by their fruits; alas, it would be challenging to identify the fruits of Christian participation in markets.

The corporatist global order Thus far, we have considered the influence of Christian thought on economic structures, Christian organizations in dialogue with governmental decision makers, and grassroots Christianity participating directly in markets. If none of these three angles has seemed to capture the potential for a distinctive Christian influence on the global economy, that may be because the keys to the power structure moving the global economy are now held not by governmental technocrats or local politicians but by the top shareholders and managers of a few large multinational corporations. Firms like Google, Facebook, Amazon, and Apple hold immense power to reshape the world’s business, the goods and services people buy, the information people receive, and how they connect with others. International banks drive monetary policy, conglomerated pharmaceutical companies make the critical investment decisions that can mean life or death for vulnerable populations, and individual wealth and security is often bound up in the vagaries of the stock market. Populists decry the power of these new “robber barons,” the European Union issues ever more dramatic monetary sanctions for ostensible abuses of corporate power, and politicians call for their break-up, but the power and influence of the largest corporations seems to grow unabated. Consider the following: in a series of increasingly stern decisions from 2017 to 2019, the European Union fined Google $9.3 billion for violating European Union competition law principles. As large as that amount may seem, it did not even reach ten percent of the firm’s annual revenue. Standing alone, Google’s market capitalization exceeds the annual GDP of all but six European Union member states. The combined market capitalization of Google, Facebook, and Amazon exceeds the annual GDP of any member state. Throw in Microsoft and Apple, and the combined market capitalization of a few American technology firms quickly starts approaching the GDP of the entire European Union. However hard the European Union or other players in the global economic order might fight to catch up, the genie is out of the bottle. Large corporate players have such an embedded economic advantage that countervailing regulatory forces can only hope to smooth the roughest edges of a global system dominated by for-profit business firms. In what is perhaps a recognition that powerful corporations are inevitably here to stay, legal systems have increasingly anthropomorphized the corporation in an attempt to give them human agency and humane responsibility. Criminal liability, once the exclusive pitfall of the natural person, has now migrated on a large scale

Christianity and the economic order 345 to the corporation itself.30 The corporation’s soul can be judged in a criminal case. So too can the corporation’s conscience be pricked through the activism of shareholders or consumers. Corporate social responsibility (CSR) is now all the rage, with efforts shifting from the hortatory to the legal, with jurisdictions increasingly considering formal measures to encourage corporations to “give back”—to show that they are . . . human. For example, in recent years both India and China have moved toward mandatory CSR regimes that require corporations to give back to communities in various ways.31 Anticorporatists rail against the humanization of the corporation: how can an inanimate thing—a creature of the state—have a First Amendment or free speech right to purvey political messages?32 And then it turns out that a corporation may have not only free speech rights but also the right to express its religious conscience.33 Man was created in the image of God, and now the state has created the corporation in the image of man. What role can individual Christians or the church play in a global economic system where extremely large corporations have assumed not only the power to shape entire markets but also the moral attributes of humans, including the expression of religious conscience? For Christians, the problem is not that corporations cannot act religiously, but that most assiduously avoid any explicit adoption of religious values. Unlike a family-owned business like Hobby Lobby, which won the corporate religious conscience case in the US Supreme Court, most corporate executives would blanch at the prospect of injecting any element of religion into the corporation’s decision-making. Multinational corporations maximize their profits by appealing to everyone and offending no one—by assuming political correctness in their every marketing decision, corporate statement, and public presentation. The slightest provocation to some demographic group in an advertising campaign or product design in some remote corner of the world can lead to a global backlash, calls for a boycott, and plummeting quarterly earnings. The American fast food company Chik-fil-A has spent years running the gauntlet of boycotts and bans springing from its perception as a Christian-affiliated company purveying antigay hate. Although liberated by law to speak politically and religiously, the large multinational corporations running the world want nothing to do with religion, apart from insipid montages of ecumenicism during the holiday season. Even companies with controlling shareholders perceived as religiously devout, such as Walmart, have to issue “clarifications” that they have no policy against their employees wishing customers “Merry Christmas,” so long as they use their best judgment and try not to offend anyone.34 Contrary to the perception that the US Supreme Court’s recognition of corporate religious liberty rights augurs a broad shift toward corporate religiosity, the far more prevalent trend is corporate avoidance of anything touching on religion in order to avoid offending anyone. The global corporatist order presents similar challenges to Christians as the rise of the secular state presented in the wake of the Enlightenment two centuries ago. The Enlightenment made the public sphere—the sphere of government—a secular space which religion could only behold at a distance. The separation of

346  Daniel A. Crane church and state was promised not to unduly restrict the influence of the church over human affairs, since the church could continue to operate in the private sphere—the sphere not occupied by government, including the world of business and commerce. But as the sphere of government has grown in tandem with a private sphere increasingly occupied and dominated by large corporations also working according to a strict secularist modus operandi, the share of the global sphere in which Christian values can be expressly deliberated and implemented has shrunk proportionately. When Christians ask for a voice in the legislature, they are often told that they should not impose their private beliefs in the political sphere; when they ask for a voice in a boardroom, they are again told to keep their private views out of business decisions that affect others who do not share Christian beliefs. With the political regulation of the global economic order largely committed to secularist technocrats and the economic heart of that order manned by secularist multinational corporations, from what quarter will a distinctive Christian influence on that order emerge? Obvious contenders are few.

An agenda for relevance Faced with the daunting challenge of maintaining relevance to the management of the world’s fragile economy, it is tempting for the church to cede the field and retreat to the spaces still ostensibly left open to its influence: personal piety, corporate worship, and acts of charity. That would be a tremendous mistake. Although Christians may not easily reach consensus on the content of a Christian economic worldview, it would be difficult to deny that the Bible contains an economic message, indeed that an economic message is central to the biblical worldview. In the Gospel accounts, Jesus teaches about money—its evils, opportunities, and responsibilities—more than almost any other topic. Most of his parables concern financial management and economic activity (e.g., tenants, talents, faithful servants, hidden treasure, fishing nets, lending practices, lost coins, squandered inheritances, unjust stewards, and the rich man and Lazarus). The early church modeled both shared ownership and individual enterprise. Christian thinkers across the ages have engaged intensively with economic questions: think Augustine on utility and function, Aquinas on just price theory, Luther on predatory commercial dealings, Calvin on work and the professions. The Christian tradition in economics arises not out of compulsion to interact with culture, but out of an abundance of biblical source material. Though daunting, none of the obstacles to the church’s relevance to the global economic order identified in this chapter is insurmountable. That there is no consensus Christian economic philosophy should not prevent Christian thinkers from articulating comprehensive blueprints for a just and efficient economic order grounded in a Christian worldview. The diversity in available perspectives should count as a feature, not a bug, of the big tent that is Christendom. The technical complexity of the political, legal, and bureaucratic public management of the world’s economic order should not discourage Christians from participating in the channels of decision-making and, particularly, in expressing the

Christianity and the economic order 347 core values that should drive analysis and decision. If Christians do not shape those values, others will, and not based on some “neutral” (although, of course, not truly neutral) conception of the good. Although grassroots participation by Christians in economic markets leaves little distinctive impression of a Christian philosophy of market participation, this should not discourage Christians from thinking about how their own retail economic decisions reflect their faith and shape their world. Marketing literature suggests that a small number of active consumers or users can shape entire markets, for better or for worse.35 Faith the size of a mustard seed can move mountains; a slightly larger number of Christian consumers, employers, employees, or entrepreneurs—acting forcefully on a shared moral vision—might reform the global economy. Finally, Christians should not be deterred by the increasing areligiosity of the global corporatist order from seeking to influence the culture and decisions of the corporate behemoths that drive an increasing share of global economic activity. Unlike in the political sphere, the obstacle to religious influence on corporate decision-making is not legal or constitutional, but material and economic. Corporate managers respond with alacrity to financial incentives. Christians are shareholders and consumers too; they, too, have levers to pull. It is difficult to feel much optimism about the future of the global economic order, but Christians are enjoined from existential pessimism. Jesus promised tribulation in this world, but also commanded good cheer since he had already overcome the world. The Christian is called to cheerful faithfulness regardless of the odds. The global international order may never be Christian, but Christians must remain in it, if not of it.

Notes 1 See Turley. 2 See, generally, Stiglitz. 3 See, for example, Decock; Colish. 4 Pufendorf; Grotius. 5 Luther. 6 See Stark. 7 Mokyr, 229, 314. 8 See Becker, Pfaff, and Rubin. 9 See Gregg. 10 See Chamberlain. 11 See Temple. 12 Janz, 63. 13 Barro and McCleary. 14 See Benedict XVI, Caritas in veritate (emphasis added). 15 World Council of Churches. 16 “Church of England urges five days of prayer for the poor as Brexit looms,” www.theguardian.com/uk-news/2019/feb/23/justin-welby-says-poorestface-biggest-risks-posed-by-brexit-uncertainty. 17 Marshall, 397. 18 See Williams. 19 Ibid.

348  Daniel A. Crane 20 See Woodberry, who argues that conversionary Protestants “were a crucial catalyst initiating the development and spread of religious liberty, mass education, mass printing, newspapers, voluntary organizations, and colonial reforms, thereby creating the conditions that made stable democracy more likely.” 21 See Jedwab, Meier, and Moradi. The authors collect much of the research on the economic effects of missionary expansion but also argue that some of the ostensible effects may be endogenous—missionaries went to locations that were already the best suited for economic development. 22 https://factsandtrends.net/2016/12/12/10-key-trends-in-global-christianityfor-2017/. 23 See, for example, Freeman. 24 See Bush, Fountain, and Feener; see also Thaut. 25 Pew Forum. 26 Ibid. 27 Ibid. 28 See Wood and Heslam. 29 See Kurt, Inman, and Gino. 30 See Khanna. 31 See Afsharipour and Rana. 32 Citizens United v. FEC, 558 US 310 (2010). 33 Burwell v. Hobby Lobby Stores, Inc., 573 US 682 (2014). 34 “Clarification on Wal-Mart’s Holiday Greeting,” https://corporate.walmart. com/_news_/news-archive/2005/12/01/clarification-on-wal-marts-holidaygreeting. 35 See Harrison and Kjellberg.

Bibliography Afsharipour, Afra, and Shruti Rana. “The Emergence of New Corporate Social Responsibility Regimes in China and India.” UC Davis Business Law Journal 14 (2014): 175. Alan, Robert C. Global Economic History: A Very Short Introduction. Oxford: Oxford University Press, 2011. Barro, Robert J., and Rachel McCleary. “Religion and Economic Growth.” NBER Working Paper No. 9682, May 2003. www.nber.org/papers/w9682. Becker, Sasha O., Steven Pfaff, and Jared Rubin. “Causes and Consequences of the Protestant Reformation.” https://warwick.ac.uk/fac/soc/economics/research/ workingpapers/2016/twerp_1105_becker.pdf. Benedict XVI, Pope. “Caritas in veritate.” Encyclical Letter of the Supreme Pontiff. http://w2.vatican.va/content/benedict-xvi/en/encyclicals/documents/hf_benxvi_enc_20090629_caritas-in-veritate.html. Bush, Robin, Philip Fountain, and R. Michael Feener. “Religious Actors in Disaster Relief: An Introduction.” International Journal of Mass Emergencies and Disaster 33/1 (2015). www.ijmed.org/articles/667/download/. Chamberlain, John. The Roots of Capitalism. Indianapolis, IN: Liberty Fund, 1977. Clarke, John N., and Geoffrey R. Edwards, eds. Global Governance in the Twenty-First Century. Basingstoke: Palgrave Macmillan, 2004. Colish, Marcia L. Medieval Foundations of the Western Intellectual Tradition 400– 1400. New Haven: Yale University Press, 1997. Crane, Daniel A., and Samuel Gregg, eds. Christianity and Market Regulation. Cambridge: Cambridge University Press, forthcoming.

Christianity and the economic order 349 Decock, Wim. “Martín de Azpilcueta.” In Domingo and Martínez-Torrón, Great Christian Jurists in Spanish History. Domingo, Rafael, and Javier Martínez-Torrón, eds. Great Christian Jurists in Spanish History. Cambridge: Cambridge University Press, 2018. Freeman, Dena. “Pentecostalism and Economic Development in Sub-Saharan Africa.” In The Routledge Handbook of Religions and Global Development, edited by Emma Tomalin. London: Routledge, 2015. Gregg, Samuel. “Commercial Order and the Scottish Enlightenment: The Christian Context.” In Christian Theology and Market Economics, edited by Ian R. Harper and Samuel Gregg, 43–59. Cheltenham: Edward Elgar Publishing Inc., 2008. Grotius, Hugo. The Rights of War and Peace Including the Law of Nature and of Nations. Translated by A.C. Campbell. Washington, DC and London: M.W. Dunne, 1901. Harper, Ian R., and Samuel Gregg, eds. Christian Theology and Market Economics. Cheltnham: Edward Elgar Publishing Inc., 2008. Harrison, Debbie, and Hans Kjellberg, “How Users Shape Markets.” https://jour nals.sagepub.com/doi/pdf/10.1177/1470593116652004 Janz, Denis R. World Christianity and Marxism. New York: Oxford University Press, 1998. Jedwab, Remi, Felix Meier, and Alexander Moradi. “The Economics of Missionary Expansion: Evidence from Africa and Implications for Development.” Centre for the Study of African Economies. July 5, 2018. https://pdfs.semanticscholar.org/ ed41/6084500b874309e962e65cc4eb3239951183.pdf. Khanna, V.S. “Corporate Criminal Liability: What Purposes Does It Serve?” Harvard Law Review 109 (1996): 1477. Krugman, Paul R., Maurice Obstfeld, and Marc Melitz. International Economics: Theory and Practice, Global Edition. 2nd ed. New York: Pearson, 2017. Kurt, Didem, J. Jeffrey Inman, and Francesca Gino. “Shoppers with Strong Religious Beliefs Spend Less and Make Fewer Impulse Purchases.” https://hbr. org/2018/07/shoppers-with-strong-religious-beliefs-spend-less-and-make-fewerimpulse-purchases. Luther, Martin. “On Trading and Usury.” In Works of Martin Luther. Philadelphia: A.J. Holman Company, 1915. Marshall, Katherine. “Faith, Religion, and International Development.” In Oslington, The Oxford Book of Christianity and Economics. Mokyr, Joel. A Culture of Growth: The Origins of the Modern Economy. Princeton, NJ: Princeton University Press, 2018. Oslington, Paul, ed. The Oxford Book of Christianity and Economics. Oxford: Oxford University Press, 2014. Pew Forum. “Global Christianity: A Report on the Size and Distribution of the World’s Christian Population.” www.pewforum.org/2011/12/19/global-christi anity-exec/. Pufendorf, Samuel. Political Writings. Edited by Craig L. Carr and translated by Michael J. Seidler. New York: Oxford University Press, 1994. Stark, Rodney. The Victory of Reason: How Christianity Led to Freedom, Capitalism, and Western Success. New York: Random House, 2007. Stiglitz, Joseph E. Globalization and Its Discontents. New York: W.W. Norton, 2002. Temple, William. The Kingdom of God. London: The Macmillan Company, 1912. Thaut, Laura C. “The Role of Faith in Christian Faith-Based Humanitarian Agencies: Constructing the Taxonomy.” International Journal for Voluntary and Nonprofit

350  Daniel A. Crane Organizations 20 (2009): 319–50. https://link.springer.com/article/10.1007% 2Fs11266-009-9098-8. Tomalin, Emma, ed. The Routledge Handbook of Religions and Global Development. London: Routledge, 2015. Turley, Steve. The New Nationalism: How the Populist Right Is Defeating Globalism and Awakening a New Political Order. Turley Talks, 2018. Williams, Paul S. “Christianity and the Global Economic Order.” In Oslington, The Oxford Book of Christianity and Economics. Wood, Eric A.S., and Peter S. Heslam. “Faith and Business Practice Amongst Christian Entrepreneurs in Developing and Emerging Markets.” www.scielo.org.za/ pdf/koers/v79n2/04.pdf. Woodberry, Robert D. The Missionary Roots of Liberal Democracy. Washington, DC: American Political Science Association, 2012. World Council of Churches. “Roadmap for Congregations, Communities, and Churches for an Economy of Life and Ecological Justice.” March 11, 2019. www.oikoumene.org/en/resources/documents/wcc-programmes/diakonia/eco nomy-of-life/roadmap-for-congregations-communities-and-churches-for-aneconomy-of-life-and-ecological-justice.

21 Christianity and a global law for migration Silas W. Allard

Introduction More people are on the move today than at any other point in human history. The International Organization for Migration estimates that in 1970 there were 84.5 million international migrants; in 2015, that number had climbed to 243.7 million.1 This includes 25.4 million refugees and 3.1 million asylum seekers, according to the United Nations High Commissioner for Refugees. Like international migrants generally, there are now more refugees globally than at any prior time, including the previous refugee apotheosis following the Second World War.2 In response to growing international migration, the United Nations General Assembly convened a heads-of-state-and-government-level summit on large movements of refugees and migrants on September 19, 2016. At the conclusion of the summit, all 193 members states of the United Nations signed the New York Declaration for Refugees and Migrants. The New York Declaration initiated a two-year process of negotiation on two new global compacts to address largescale migration: the Global Compact for Safe, Orderly, and Regular Migration, and the Global Compact on Refugees. The global compact process was initiated in recognition of the necessity for global cooperation in addressing global migration. As the New York Declaration stated: “Large movements of refugees and migrants have political, economic, social, developmental, humanitarian and human rights ramifications, which cross all borders. These are global phenomena that call for global approaches and global solutions. No one State can manage such movements on its own.” In addition to recognizing the necessity of global cooperation, the New York Declaration goes on to state that “our challenge is above all moral and humanitarian. . . . We acknowledge a shared responsibility to manage large movements of refugees and migrants in a humane, sensitive, compassionate and people-centered manner.”3 The New York Declaration’s aspiration to global cooperation for a peoplecentered policy invokes the values of global law as it is discussed throughout this volume. As Rafael Domingo has articulated in The New Global Law: The human person, and not the state, should constitute the cornerstone of global law. Humanity is the global amalgamation of persons, not states.

352  Silas W. Allard Consequently, a global law must find its normative foundation in the person, that is, the individual in space and time who ultimately is responsible for and is the reason for being of all jurisprudence and positive law. . . . Global law, compatible with the existing legal systems and traditions within the framework of international economics and politics, would gradually abandon the corset of the nation-states and employ a legal metalanguage in response to the new challenges of globalization in all its permutations.4 Despite this apparent confluence between the New York Declaration and the values of global law, a closer look at the global compact process and the broader legal milieu of international migration reveals that the state continues to be retrenched as the locus of the law on migration, domestically and internationally. This pervasive state-centeredness continues to foreground states’ interests in unilaterally controlling borders and limiting immigration. Beyond the aspirational rhetoric of the New York Declaration, a different fundamental understanding of the relationship between persons and states is necessary to break states’ hegemony in the making of migration law and policy. This global compact moment—historically distinct and theoretically emblematic—gives us a chance with its aspirations and shortcomings to reassess global migration in legal, political, and theological terms. In this chapter, I explore the global law of migration, with particular attention to issues of forced migration (conceived expansively, as I will discuss later). The international treaties on refugees lay the foundation for a global law on migration, but the tenacious persistence of state-centeredness truncates further development. In order to escape this state-centeredness, the international community needs ways of reconceiving the ordered relationships of states and persons. In this chapter, I locate one such resource in Christian theological reasoning that treats the interests of the state as fulfilled only in the good of broader humanity.

Migration and global law International migration is a multifaceted phenomenon; it encompasses human movement for tourism, education, and business as well as movement to escape violence, persecution, and economic deprivation. For purposes of analysis and policy making, international migration has been commonly divided between economic migration (migration for the purpose of improving a person’s economic prospects) and forced migration (migration to escape violence or persecution). These categories, however, are increasingly called into question, as the mixed nature of migration is more widely recognized. As Filippo Grandi, the United Nations High Commissioner for Refugees has noted: “increasingly, the causes of flight are all intertwined. Conflict gets linked up with poverty because conflict produces poverty. And poverty produces conflict.”5 Moreover, poverty is exacerbated by environmental degradation and a changing climate; conflict is exacerbated by violent nonstate and quasi-state actors. Conceptualizing international migration as a clear binary between the forced migrant fleeing human rights violations by an

Christianity and a global law 353 abusive state and the economic migrant seeking improved economic conditions fails both descriptively and normatively. To avoid this binary, I will focus instead on what Alexander Betts has termed “survival migrants”: “Persons who are outside of their country of origin because of an existential threat for which they have no access to a domestic remedy or resolution.”6 A global law for migration might well include other motivations and modalities; however, as will become clear, any emergent global law of migration is nascent, and there is some moral priority to considerations of survival migration.

The refugee convention: toward a global law of migration? There is an emerging body of international law related to migration, and to survival migration specifically, but that body of law remains largely limited in its impact. International treaties have been drafted on statelessness, migrant workers, trafficking in persons, and refugees.7 There are also a number of provisions related to migration that appear in other treaties.8 Among the various treaties that could be considered part of an international legal framework for migration, the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol have by far the greatest visibility and impact by virtue of their robust regime of refugee rights and widespread adoption by state parties.9 The 1951 Convention was not the first effort to address refugee movements through collective action by the international community. Prior to 1951, the international community used ad hoc treaties to provide protection for particular, discrete groups, often established on the basis of ethnicity or nationality, who were fleeing violence and persecution in their country of origin.10 The 1951 Convention, by contrast, eschewed both ad hoc and group-based protection by creating a general refugee definition grounded in persecution on the basis of race, religion, political opinion, national origin, or membership in a particular social group that would be applied on the basis of individual claims.11 The history of the 1951 Convention and the 1967 Protocol reflects a movement toward a “limited global law” of migration. The Refugee Convention begins to approximate global law when it shifts the focus of refugee protection from group to individualized determinations and creates a comprehensive protection scheme through the principle of nonrefoulement. The principle of nonrefoulement is found in article 33 of the 1951 Convention, and it forbids a state party to “expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The argument that the Refugee Convention inaugurates a movement toward a limited global law of migration is furthered by several scholars who have argued that the principle of nonrefoulement is now a norm of customary international law and others who have argued that it has achieved the status of a jus cogens norm.12 The movement toward a global law of migration inaugurated by the Refugee Convention is, however, incomplete and frequently falters in the face of state

354  Silas W. Allard opposition. First, the scope of the Refugee Convention is qualified by the refugee definition itself, which limits protection to those persons fleeing persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. Thus, many forms of survival migration—which may result from threats to human rights and human flourishing equivalent to the persecution recognized under the Refugee Convention—are neither recognized nor protected in the emerging global law of migration. Some of these forms of survival migration are recognized in more limited international legal instruments, including regional agreements and other, less widely ratified international treaties.13 But some forms of survival migration, such as migration in response to natural disaster or climate change, have garnered little to no legal purchase. Second, while the Refugee Convention may not be endlessly elastic, it does have the capacity to adapt to the necessity for new forms of protection—what Andrew Schoenholtz has described as the evolutionary potential of the treaty. Despite this potential, however, “State Parties have tried for some time to minimize [the Refugee Convention’s] relevance to today’s forced migrants.”14 Governments and judiciaries have engaged a practice of reading the refugee definition narrowly, particularly the more open-ended “particular social group category,” and weaponized the limitations within the refugee definition to characterize those whose claims approach or push the edges of the definition as frauds and cheats looking to exploit the system.15 In summary, the Refugee Convention, particularly as it has evolved over the past seventy years, inaugurates a movement towards a global law of migration. We must recognize, however, that there remain significant limitations around the Refugee Convention, including the Convention’s own terms and the efforts by state parties to actively limit the scope and expansion of protection afforded by the Convention. This latter impulse helps us to better understand the context for the aspirational rhetoric of the New York Declaration.

The global compacts and the persistent priority of state interests The global compact negotiations concluded in late 2018.16 Yet, despite the commitments to cooperation and a people-centered approach that launched the global compact negotiations, the process and result of the negotiations have been plagued by a long-standing tension between a global migration regime that protects the interests of individuals on the move and one that protects the interests of states. In the case of both compacts, the UN chose to pursue global cooperation through nonbinding agreements that emphasize voluntary international cooperation. In his critique of the Global Compact on Refugees, James Hathaway has referred to this as a “ ‘thin’ version of protection under which we simply pay lip service to burden and responsibility sharing by setting up an endless loop of conversations.”17 This “endless loop of conversations” is both an invitation to inaction, as Hathaway points out, and a recurring opportunity for states to assert their sovereign prerogative of exclusion and defend what the compacts themselves refer to as “national policies and priorities.”18 In this regard, the global compacts

Christianity and a global law 355 are unremarkable because they reflect a long-standing approach to international migration that foregrounds the interests of the state and subsumes the interests and rights of migrants to the sovereign power of exclusion. Discussions of international migration, including the global compact negotiations, are dominated by a discourse of and commitment to states’ selfpreservation. This discourse is not, of course, unique in international law. State sovereignty, and its preservation, is the cornerstone of the international legal system, and anxiety over the diminution of sovereignty animates international negotiations around the use of force, trade, environmental regulation, and other topics. What is distinct in the discourse of international migration is that the threat to state sovereignty is not other states, or even other multinational organizations, but individuals: the wicked, dangerous, desperate, scheming migrant.19 This inversion of precarity (it is the migrants who are often leaving conditions of persecution, violence, economic destitution, and environmental destruction) creates a dynamic in which states can exercise their already significant powers of exclusion for justified self-preservation against dangerous outsiders. These dynamics highlight both the need and the impediments to a global law for migration. Migration is paradigmatically “global”: simultaneously a phenomenon of individual human action and a suprastate phenomenon in both its scope and its border-transgressing nature. International migration places the person in relief as an individual by disassociating the individual from the national collective. But, as Hannah Arendt famously articulated, it is precisely in their bare humanity that many survival migrants lose their political and legal subjectivity: The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all significance.20 While the Refugee Convention offers the beginning of a global law for migration, it is inevitability truncated by the prioritization of state interests, and the global compact negotiations make clear that efforts to supplement or move beyond the Refugee Convention will be similarly curtailed. The modern nation-state depends on a complementary binary between the nation and the state or, put in more contemporary terms, between the citizen and the state. In this regard, the system of international law that privileges the interests of nation-states is illequipped to address the challenges of migration because it lacks a place for the value and interests of persons as persons. As John Hope Simpson wrote in 1939, “the whole system is based on a scheme of national states, with populations which fit into the scheme of nationalities. [The] person without a nationality does not fit into that system.”21 In the international order of nation-states, migrants are, in Mary Douglas’s terms, “matter out of place.”22

356  Silas W. Allard This is a theological problem concerning certain persons’ possibility of belonging in the world. In an international system that prioritizes and orders the world by the interests of nation-states, “border controls and the like produce ‘legally unnameable and unclassifiable beings.’ The nation-state claims for itself the powers of a tyrannical god.”23 It is important, then, to understand how this tyrannical god is an idol—a contingent good mistakenly made absolute—that “elevat[es] nation-states (or their laws as presently configured) to ultimate status . . . attempting to absolutize the lesser good or solidarity of a circumscribed ‘us,’ ‘ours,’ or ‘here.’ ”24 Christian theology challenges the notion that the nation-state’s interests can be an absolute good and insists, instead, that, in the words of Archbishop Oscar Romero, the “political community’s reason for being is not the security of the state but the human person.”25

Christian theology and the priority of state, person, and humanity While there are different ways to approach this problem from Christian theology, one theological response to the challenge of international migration begins with the imago dei: the inherent worth of all humans who are each created in the image of God (Genesis 1:27). The imago dei grounds inherent human dignity and requires that persons not be treated as “a means to an end.”26 The inherent worth of all persons created in the image of God has particular resonance in the context of migration. When the conversation on migration is centered on state interests, migrants are made a means to the end of those interests. Thus, as M. Daniel Carroll has argued, the conversation on migration should not begin with borders and legality; rather, a more suitable place to ground the discussion is the creation account in two opening chapters of Genesis. The key point is that all human beings are made in the image of God. . . . [O]utsiders also are created in the divine image. They, too, are valuable in God’s sight and worthy of regard.27 If the inherent human worth that proceeds from the imago dei is shared equally by all persons, whether members or nonmembers of our community, then an international order that has no place for migrants or treats them always as an exception, fails to recognize that worth. The responsibility to value and protect inherent human worth is a boundarycrossing responsibility. Valuing and protecting inherent human worth is effective only if particular communities recognize their responsibility to do so for persons outside of the community; otherwise, the equal worth of all persons made in the image of God is effectively denied. Pope Francis emphasized the border-crossing nature of this responsibility in his message for the 2018 World Day of Peace. Among four mileposts for action on migration, Francis included “protecting.” “Protecting,” he wrote, has to do with our duty to recognize and defend the inviolable dignity of those who flee real dangers in search of asylum and security, and to prevent

Christianity and a global law 357 their being exploited. . . . God does not discriminate: “The Lord watches over the foreigner and sustains the orphan and the widow.”28 The boundary-crossing (often boundary-transgressing) nature of this responsibility is also evident in the gospel narratives. Jesus’s interactions with persons on the margins of or excluded from his own religious and political community testifies to the necessity of valuing and protecting inherent human worth by reaching out to those separated from us by boundaries of difference, including national borders.29 Perhaps most pointedly, in the parable of the Good Samaritan, Jesus defines neighbor-love by reference to the crossing of a border of communal enmity as he identifies a despised foreigner, the Samaritan, as a neighbor when the Samaritan values and protects the inherent worth of the injured Jewish traveler by extending care to him (Luke 10:25–37). The parable of the Good Samaritan invited its original audience to consider the Samartian as someone other than a long-standing enemy of the community; it reimagined a relationship of antagonism as a possible relationship of care and solidarity.30 Thus, the parable argues, the boundary of intracommunal responsibility is also an opportunity to recognize and build relationships of extracommunal solidarity. If the responsibility to value and protect the inherent worth of persons is a boundary-crossing responsibility, then it elevates human claims for protection above state claims to the sovereign power of exclusion. In its statement “Welcoming the Stranger among Us,” the United States Conference of Catholic Bishops argues that “nations have the right to control their borders.” This right, however, is not absolute. The bishops go on to qualify the right by “recogniz[ing] and strongly assert[ing] that all human persons, created as they are in the image of God, possess a fundamental dignity that gives rise to a more compelling claim to the conditions worthy of human life.”31 The bishops’ statement highlights that human beings have inherent worth, whereas political communities—such as the nation-state—have instrumental worth. Political communities are valuable when they serve to promote and protect the inherent worth of persons. When political communities’ practices of exclusion fail to promote or protect inherent human worth, those practices of exclusion lose their legitimacy. Or, stated somewhat differently, the good of any particular community is incomplete if it comes at the expense of broader humanity; the interests of states should be subject to the broader interest of promoting and protecting inherent human worth. Luke Bretherton has captured this priority of states and persons in his political theology of Christian cosmopolitanism. “Within the multifarious strands of the Christian tradition,” Bretherton argues, “there is a common teleology which orders the good of a particular community as being fulfilled in the good of humanity which is itself fulfilled in communion with God.”32 Bretherton distinguishes a Christian cosmopolitanism, which emphasizes “a commonwealth of nations, Christian or otherwise, that can seek a common good of nations and which ultimately finds its telos beyond itself in the communion of all humans together with God,” from a rationalist cosmopolitanism (with its apotheosis in Enlightenment thinkers such as Bentham and Kant) in which “love for humanity precedes and

358  Silas W. Allard has priority over love of one’s immediate neighbor.”33 Thus, for Bretherton, a Christian cosmopolitanism begins with the flourishing of particular communities, but the flourishing of particular communities must be oriented toward, and never exclusive of, the flourishing of broader humanity. As Esther Reed argues, drawing on the theological tradition of the ordo amoris, “the challenge is always to refer the local, particular love to the good of the whole,” whereby “the whole” eventually extends to the whole of humanity.34 Bretherton’s Christian cosmopolitanism helps to translate the implications of the imago dei into politics and law. The state cannot serve itself (as a selfperpetuating political entity) or its citizens exclusively, when doing so comes at the expense of broader human flourishing; rather, the state should always be oriented toward and striving to achieve promotion and protection of the inherent worth of all persons. An order of priority that orients the good of states inexorably toward the broader good of humanity calls for both solidarity with refugees and survival migrants, whose inherent worth is denied when they are excepted from the international system, and cooperation among states to share responsibility for creating a system that includes those migrants and honors their inherent worth. In its statement “Welcoming the Migrant to the U.S.,” the United Methodist Church writes: Paul reminds us that when ‘one part suffers, all the parts suffer’ as well (1 Corinthians 12:26). The solidarity we share through Christ eliminates the boundaries and barriers which exclude and isolate. Therefore, the sojourners we are called to love are our brothers and sisters, our mothers and fathers, our sons and daughters; indeed, they are us.35 The boundary-crossing responsibility to promote and protect inherent human worth means expanding or extending our community to others through solidarity. We can see this solidarity reflected in the laws of Israel, perhaps best exemplified by Leviticus 19:33–34: “When a foreigner resides among you in your land, do not mistreat them. The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt.”36 Orienting the good of the particular community toward the good of humanity requires a solidarity that opens the particular community to those seeking to protect their inherent human worth; otherwise, the community is making of itself an idolatrous good. As Bretherton argues, the current treatment of refugees and asylum seekers makes clear that liberal democratic states have made an end in and of themselves and their common lives are based on objects of love—notably, individual and collective self-fulfillment and autonomy—that inherently tend toward hostility to friendless strangers . . . because the pursuit of such goods directs us away from the just and generous consideration of the needs of others.37 In our globalized world, however, the boundary-crossing responsibility to promote and protect inherent human worth also requires global cooperation.

Christianity and a global law 359 Kristin Heyer has described this cooperation as “institutional solidarity,” and argues that “institutional solidarity moves responses beyond humanitarian efforts or fine tuning judicial discretion to ‘a prior attitudinal change in which nations see themselves as collectively responsible for the problem because they are collectively responsible for the international order.’ ”38 The particular communities of nation-states are “collectively responsible for the international order” and, therefore, collectively responsible for ensuring that the international order serves to promote and protect inherent human worth. This requires cooperation among nation-states for the purpose of human flourishing, not state flourishing, which requires, in turn, the prioritization of human interests over state interests. This theological approach has implications for global law in many areas, including economics, the environment, and dispute resolution. In the particular context of migration, the demand of the refugee or survival migrant for protection is a call for the state and the citizens of a state to embrace the good and flourishing of those beyond the particular political community by recognizing our boundarycrossing responsibilities. This is true at both the micro level—solidarity with the individual migrant seeking protection—and the macro level—cooperation and responsibility sharing for the growing number of people displaced by persecution, violence, and economic deprivation. The boundary-crossing responsibility to value and protect the inherent worth of all persons requires both solidarity with refugees and survival migrants and a communion of global cooperation. Neither solidarity nor cooperation is possible, however, unless the privileging of state interests gives way to privileging the value and interests of persons. The state is not an end in itself; it is a proximate good towards the ultimate good of global human peace and flourishing. The exclusion of refugees and survival migrants undermines the moral justification of the state as a proximate good towards that end.

Conclusion The development of the Refugee Convention from its creation in 1951 until today reflects the deep tension in attempts to address migration policy at the global level between the individual needs and interests of the migrant and the well-established power of exclusion that currently resides with the state. The Refugee Convention introduced apertures into the sovereign power of exclusion through the general definition of a refugee, individual refugee status determination, and the principle of non-refoulement. Through these apertures, we might glimpse the path toward a global law of migration. Despite the openings created by the Refugee Convention, states have continued to exert the sovereign prerogative of exclusion, frequently in ways that inhibit the evolution of the Refugee Convention to meet the changing nature of survival migration and often to narrow the scope of the Refugee Convention itself. The global compact negotiations inaugurated by the New York Declaration are one of the most significant developments on the global stage with regards to the issue of migration in the last seventy years. Yet, despite the powerful rhetoric in the New York Declaration about the moral imperative to construct a cooperative,

360  Silas W. Allard people-centered approach to migration, the global compacts have largely reinscribed the priority of state sovereignty. International migration is a paradigmatic global issue, as the New York Declaration rightly recognizes. An appropriate global approach to this issue, including a global law approach, must begin with a reconsideration of the order of priority of state and person, particularly of state and migrant. The priority of the state and its sovereign power of exclusion contribute to what Pope Francis has described as the globalization of indifference: “Where is your brother?” Who is responsible for this blood? . . . Nobody! That is our answer: It isn’t me; I don’t have anything to do with it; it must be someone else, but certainly not me. Yet God is asking each of us: “Where is the blood of your brother which cries out to me?” Today no one in our world feels responsible; we have lost a sense of responsibility for our brothers and sisters. . . . In this globalized world, we have fallen into globalized indifference. We have become used to the suffering of others: it doesn’t affect me; it doesn’t concern me; it’s none of my business!39 The suffering of the world’s survival migrants does affect us; it is our business as a matter of both our moral obligation and the social, political, and economic realities of large-scale movement. This responsibility, however, is obfuscated by prioritizing the state as an end in itself. The theological approach that I have offered here coalesces around a reordering of the priority of our particular political community and broader humanity— a reordering that always places the particular political community in service of broader humanity and, therefore, in service of those who move in search of opportunities to live and flourish. The boundary-crossing responsibility to promote and protect the inherent worth of all persons calls for a prioritizing of persons over the state through practices of both solidarity and global cooperation. This theological approach is one conversation partner in the dialogue that must precede future legal negotiations, so that our next global agreement on migration does not retrench a disordered priority of the state to the exclusion of the migrant.

Notes 1 International Organization for Migration, 15. As a proportion of global population, international migration has remained relatively steady over the past thirtyfive years, rising from 2.3 percent in 1970 to 3.3 percent in 2013. International Organization for Migration, 15. It is worth noting, however, that 1 percent of the world’s population of 7.7 billion is 77 million people—a small number in relative, but not absolute, terms. 2 UNHCR, 1, 13. 3 G.A. Res. 71/1, New York Declaration for Refugees and Migrants, paras. 7, 10–11 (October 3, 2016) (emphasis added). 4 Domingo, xvi–xvii.

Christianity and a global law 361 5 “U.N. Commissioner Wants U.S. to Show Leadership on Refugee Crisis,” NPR, October 23, 2017, www.npr.org/2017/10/23/559454562/u-n-commissionerwants-u-s-to-show-leadership-on-refugee-crisis. 6 Betts, 23. 7 Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 117; Convention on the Reduction of Statelessness (Aug. 30, 1961), 989 U.N.T.S. 175; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Dec. 18, 1990), 2220 U.N.T.S. 3; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Nov. 15, 2000), 2237 U.N.T.S. 319. See footnote 9 for treaties regarding refugees. 8 See, for example, G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 13 (Dec. 10, 1948) (right of return to one’s country of nationality; right to leave any country), art. 14 (right to seek asylum), art. 15 (limiting denationalization); International Covenant on Civil and Political Rights, art. 12 (right of return to one’s country of nationality; right to leave any country), art. 13 (due process before expulsion from country of residence), art. 23 (right to family unity) (Dec. 16, 1966), 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3 (non-refoulement to a situation of torture) (Dec. 10, 1984), 1465 U.N.T.S. 85. 9 Convention Relating to the Status of Refugees (July 28, 1951), 189 U.N.T.S. 137; Protocol Relating to the Status of Refugees (Jan. 31, 1967), 606 U.N.T.S. 267. Hereafter, I refer to the 1951 Convention and the 1967 Protocol. When referring to the 1951 Convention as modified by the 1967 Protocol, I use the term “Refugee Convention.” As of writing, there are 147 state parties to the Refugee Convention. For a discussion of the substantive impact of the rights contained in the Refugee Convention, see Hathaway. 10 Einarsen, paras. 9–11, http://opil.ouplaw.com.proxy.library.emory.edu/view/ 10.1093/actrade/9780199542512.001.0001/actrade-9780199542512-chap ter-2. See also Goodwin-Gill and McAdam, 16 (“In treaties and arrangements concluded under the auspices of the League of Nations, a group or category approach was adopted. That someone was [a] outside their country of origin and [b] without the protection of the government of that State, were sufficient and necessary conditions.”); Gatrell, ch. 2. 11 The Refugee Convention defines a refugee as: any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 1951 Convention, art. 1(A)(2) (as modified by the 1967 Protocol art. 1(2)). The 1951 Convention did contain important geographic and temporal limitations related to the postwar context of the late 1940s and early 1950s. Article 1(A)(2) of the 1951 Convention limited the refugee definition to those persons impacted by events “occurring before 1 January 1951,” and article 1(B)(1) permitted state parties to the 1951 Convention to declare that “events occurring before 1 January 1951” meant “events occurring in Europe before 1 January 1951.” These temporal and geographic limitations were subsequently removed by article 1(2) of the 1967 Protocol, giving the refugee definition a global scope (both

362  Silas W. Allard geographically and temporally). The expanded scope of the Refugee Convention reflects the movement toward a global law of migration discussed below. 12 Aleinikoff, 29 n36; Lauterpacht and Bethlehem, 149–63; Goodwin-Gill and McAdam, 345–54. For arguments that nonrefoulement is a jus cogens norm, see Costello and Foster; Allain. 13 For regional agreements, see, for example, OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 U.N.T.S. 45; Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena, Colombia, November 19–22, 1984. For international treaties, see, for example, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Dec. 18, 1990), 2220 U.N.T.S. 3. 14 See Schoenholtz. 15 See, for example, Allard, “Global and Local Challenges to Refugee Protection.” 16 The Global Compact for Safe, Orderly and Regular Migration was finalized in July 2018 and adopted at the International Conference on the Global Compact for Migration, December 10–11, 2018, in Marrakech, Morocco. In the end, 164 UN member states signed the compact in Marrakech. The Global Compact on Refugees (G.A. Res. 73/12 (Part II)) was adopted by the UN General Assembly on December 17, 2018, with 181 UN member states voting in favor of the resolution. Only the United States and Hungary voted against the compact on refugees, and a small number of countries abstained from the vote. 17 Hathaway, 596. 18 New York Declaration, para. 21; see also Global Compact on Migration, para. 15 (asserting “people-centered” and “national sovereignty” as foundations of the framework). 19 See Allard, “Reimagining Asylum”; Malkki, “Speechless Emissaries”; and Snyder. 20 Arendt, 182. 21 Simpson, 230, quoted in Gatrell, 53 (interpolation in Gatrell). 22 Douglas, 36; see also Bretherton, 137 (drawing the same analogy to Douglas). 23 Reed, 228, quoting Agamben, 3; see also Ngai. 24 Heyer, 109; see also Kerwin, 204. 25 Quoted in Kerwin, 204. 26 Cruz, 57. 27 Carroll, 5–6. 28 Francis, 9, https://migrants-refugees.va/wp-content/uploads/2018/03/Legalsize-ENG-2nd-Edition-Towards-the-Global-Compacts-2018-EMAIL.pdf (quoting Psalm 146:9). 29 See, for example, the stories of Jesus’s interactions with the Samaritan woman (John 4:1–26), the centurion (Matthew 8:5–13), and tax collectors (Luke 19:1– 10, Mark 2:13–17). 30 Rajendra, 142–44. 31 United States Conference of Catholic Bishops, “Welcoming the Stranger among Us: Unity in Diversity” (United States Catholic Conference, 2000), http:// usccb.org/issues-and-action/cultural-diversity/pastoral-care-of-migrants-refu gees-and-travelers/resources/welcoming-the-stranger-among-us-unity-in-diver sity.cfm (emphasis added). 32 Bretherton, 131. For Bretherton’s genealogy of Christian cosmopolitanism, see Bretherton, 131–33. 33 Ibid., 132–33. 34 Reed, 242. 35 United Methodist Church, “Welcoming the Migrant to the U.S.,” in The Book of Resolutions of the United Methodist Church (Nashville, TN: The United

Christianity and a global law 363 Methodist Publishing House, 2016), www.umc.org/what-we-believe/welcom ing-the-migrant-to-the-us. 36 For other biblical laws relating to the foreigner, see Carroll, 11–12. 37 Bretherton, 135. 38 Heyer, 115, quoting Steck, 164. 39 Francis, “Homily at ‘Arena’ Sports Camp.”

Bibliography Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Translated by Daniel Heller-Roazen. Stanford, CA: Stanford University Press, 1998. Aleinikoff, T. Alexander. International Legal Norms and Migration: An Analysis. Geneva: International Organization for Migration, 2002. Allain, Jean. “The Jus Cogens Nature of Non-refoulement.” International Journal of Refugee Law 13/4 (2001): 533–58. Allard, Silas W. “Global and Local Challenges to Refugee Protection.” International Journal of Legal Information 46/1 (2018): 45–52. Allard, Silas W. “Reimagining Asylum: Religious Narratives and the Moral Obligation to the Asylum Seeker.” Refuge: Canada’s Journal on Refugees 29/1 (2013): 121–29. http://pi.library.yorku.ca/ojs/index.php/refuge/article/view/37521. Arendt, Hannah. “Part Two: Imperialism.” In The Origins of Totalitarianism. Orlando, FL: Harcourt, Inc., 1976. Betts, Alexander. Survival Migration: Failed Governance and the Crisis of Displacement. Ithaca, NY: Cornell University Press, 2013. Bretherton, Luke. Christianity and Contemporary Politics: The Conditions and Possibilities of Faithful Witness. Malden, MA: Wiley-Blackwell, 2010. Carroll R., M. Daniel. Immigration and the Bible. Missio Dei 19. Elkhart, IN: Mennonite Mission Network, 2010. Costello, Cathryn, and Michelle Foster. “Non-Refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test.” In Netherlands Yearbook of International Law 2015: Jus Cogens: Quo Vadis? edited by Maarten den Heijer and Harmen van der Wilt, 273–327. The Hague: T.M.C. Asser Press, 2016. Cruz, Gemma Tulud. Toward a Theology of Migration: Social Justice and Religious Experience. New York: Palgrave Macmillan, 2014. Domingo, Rafael. The New Global Law. Cambridge: Cambridge University Press, 2010. Douglas, Mary. Mary Douglas Collected Works. Vol. 2: Purity and Danger: An Analysis of Concepts of Pollution and Taboo. London: Routledge, 2003. Einarsen, Terje. “Part One Background, Drafting History of the 1951 Convention and the 1967 Protocol.” In The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, edited by Andreas Zimmermann, Felix Machts, and Jonas Dörschner. Oxford: Oxford University Press, 2011. http://opil.ouplaw.com. proxy.library.emory.edu/view/10.1093/actrade/9780199542512.001.0001/ actrade-9780199542512-chapter-2. Francis, Pope. “Homily at ‘Arena’ Sports Camp, Salina Quarter, Lampedusa, Italy,” July 8, 2013. http://w2.vatican.va/content/francesco/en/homilies/2013/docu ments/papa-francesco_20130708_omelia-lampedusa.html. Francis, Pope. “Message of His Holiness Pope Francis for the 51st World Day of Peace 1 January 2018: Migrants and Refugees: Men and Women in Search of

364  Silas W. Allard Peace.” In Towards the Global Compacts on Migrants and on Refugees 2018. Vatican City: Migrants & Refugees Section, Integral Human Development, 2018. Gatrell, Peter. The Making of the Modern Refugee. Oxford: Oxford University Press, 2013. Goodwin-Gill, Guy S., and Jane McAdam. The Refugee in International Law. 3rd ed. Oxford: Oxford University Press, 2007. Groody, Daniel G., and Gioacchino Campese. A Promised Land, a Perilous Journey: Theological Perspectives on Migration. Notre Dame, IN: University of Notre Dame Press, 2008. Hamid, Mohsin. Exit West. New York: Riverhead Books, 2017. Hathaway, James C. “The Global Cop-Out on Refugees.” International Journal of Refugee Law 30/4 (2018): 591–604. Heimburger, Robert W. God and the Illegal Alien: United States Immigration Law and a Theology of Politics. Cambridge: Cambridge University Press, 2018. Heyer, Kristin E. Kinship Across Borders: A Christian Ethic of Immigration. Washington, DC: Georgetown University Press, 2012. International Organization for Migration. World Migration Report 2018. Geneva: International Organization for Migration, 2017. Kang, Namsoon. Cosmopolitan Theology: Reconstituting Planetary Hospitality, Neighbor-Love, and Solidarity in an Uneven World. St. Louis, MO: Chalice Press, 2013. Kerwin, Donald. “The Natural Rights of Migrants and Newcomers: A Challenge to U.S. Law and Policy.” In Groody and Campese, A Promised Land, a Perilous Journey: Theological Perspectives on Migration. Lauterpacht, Elihu, and Daniel Bethlehem. “The Scope and Content of the Principle of Non-Refoulement: Opinion.” In Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, edited by Erika Feller, Volker Türk, and Frances Nicholson. Cambridge: Cambridge University Press, 2003. Malkki, Liisa Helena. “Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization.” In Genocide: An Anthropological Reader, edited by Alexander Laban Hinton, 344–67. Malden, MA: Blackwell Publishers, Inc., 2002. Ngai, Mae M. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, NJ: Princeton University Press, 2014. Rajendra, Tisha M. Migrants and Citizens: Justice and Responsibility in the Ethics of Immigration. Grand Rapids, MI: William B. Eerdmans Publishing Co., 2017. Reed, Esther D. Theology for International Law. London: Bloomsbury, 2013. Schoenholtz, Andrew I. “The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century.” Chicago Journal of International Law 16/1 (2015): 81–126, 83. Simpson, John Hope. The Refugee Problem: Report of a Survey. Oxford: Oxford University Press, 1939. Snyder, Susanna. Asylum-Seeking, Migration and Church. Burlington, VT: Ashgate, 2012. Steck, Christopher. “Solidarity, Citizenship, and Globalization: Developing a New Framework for Theological Reflection on U.S.—Mexico Immigration.” Journal for Peace and Justice Studies 14/2 (2004): 164. United Nations High Commissioner for Refugees. Global Trends: Forced Displacement in 2017. Geneva: UNHCR, 2018.

22 Christianity, global environmental protection, and animal law Mark Somos and Anne Peters

And God said to them, “Be fruitful and multiply and fill the earth and subdue it, and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.” —Genesis 1:28

Introduction “It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century,” the UN’s Intergovernmental Panel on Climate Change announced in 2013.1 In his influential 2015 encyclical, Laudato si’, Pope Francis also drew attention to the “unprecedented” changes brought about by humanity “to our common home,” the planet.2 Scholars have argued that in this age of the Anthropocene, not only are scientific, economic, legal, and political innovations required, but “environmental issues challenge theological traditions in ways unprecedented.”3 As it is impracticable to start the world anew, we must reexamine the traditions that led us to this point, sustained us on the way, and may, if handled with constructive criticism, help us halt and reverse collective self-destruction. The planet is the proper primary unit of analysis because the problem is universal. States have an important role to play, but the pollution of soil, the atmosphere, oceans, space, and other parts of global and extraterrestrial nature cannot be understood, let alone addressed, in a state-by-state fashion. Furthermore, the combination of connected but distinct discourses, such as Christianity and law, is more likely to generate innovative responses than the pursuit of relatively narrow methods. As Anne Peters has argued, a global or transnational animal law is needed partly because the problem cannot be solved at the national level, and partly because the existing human rights discourse suppresses “the historic parallels and intertwinement of the legal discourse on humans and animals.”4 It is “a global issue per se calling for a global response.”5 The need for such global and critical analysis applies to environmental protection, as well. This chapter explores how Christian teachings, institutions, and practices have helped, and can and could help, frame global environmental and animal law. This is not to neglect or

366  Mark Somos and Anne Peters deny that Christian thought has been used and misused to undergird and exculpate ruthless exploitation of animals and nature. The heritage of Christianity is therefore deeply ambivalent towards the environment and animals.6 Acknowledging this dark side of Christendom is imperative for overcoming and rectifying past shortcomings and harnessing the Christian tradition as a force for good for nature and all its components. Humanity’s relationship with the natural environment in the Christian tradition is subject to intense debate. More than fifty years ago, Lynn White published a seminal article that stimulated this discussion and remains important to this day.7 White argued that the environmental damage accelerating since the Industrial Revolution is rooted in the Judeo-Christian anthropocentric attitude of exploiting the natural world with purported divine approval. He suggested refashioning the Christian attitude to that of Francis of Assisi, and reconceiving nature on the basis of “the equality of all creatures.” Pope Francis, who in 2013 took his name from Francis of Assisi, followed White’s suggestion, but rejected his interpretation of the Bible and of Christian history. In Pope Francis’s reading, Genesis lays out three relationships: with God, with our neighbors, and with the Earth. Forgetting God means placing ourselves in the highest role—an arrogant exaggeration of human importance that replaces harmony with nature with a search for dominion.8 Thus “the Genesis account which grants man ‘dominion’ over the earth . . . is not a correct interpretation of the Bible as understood by the Church. . . . Clearly, the Bible has no place for a tyrannical anthropocentrism unconcerned for other creatures.”9 Moreover, in Laudato si’, Pope Francis implies an uninterrupted history of proactive Catholic environmentalism. He also presents numerous encyclicals, apostolic letters, speeches, and addresses as part of a tradition of papal leadership in environmental issues and activism. Laudato si’ acknowledges the “scientists, philosophers, theologians and civic groups” who enriched the church’s thinking on this issue, and it refers briefly to Eastern Orthodox texts—but not to scientific or secular sources—before returning to the purported legacy of Francis of Assisi.10 Ideal-typical genealogies, such as the diametrically opposed accounts of White and Pope Francis, are often misleading. Nuanced surveys of Christianity, environmentalism, and animal law remain to be written. It suffices to note here that Christianity’s approach to nature drew extensively from Judaism, Greek philosophy, and Roman law.11 Most of these traditions shared the assumption that humans are unique and differ from other animals. This was not to deny all commonality. All sentient creatures’ right to self-defense was acknowledged in Roman law and canon law, both of which were claimed to embody international law.12 Some animals were considered gregarious, even “political”—bees and ants being the classical examples.13 Other animals were understood to show affection for their offspring or parents that seemed to transcend self-interest. The altruistic care of storks for their aged parents was an emblematic reference to animal morality, as legal and political writers saw no obvious benefit to the species in caring for parents.14 Most famously, in and following Aristotle’s Politics, humans were portrayed as political animals.15

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The commonalities between animals and humans gave rise to the doctrine that they had equal standing in natural law.16 When we acknowledge animals’ right to self-defense, natural affection for offspring and kin, passions in common with humans, and instincts that make them act as if they had reason, the foundations are in place for a natural law status for animals.17 In such arguments, however, something else was in turn offered to distinguish human beings from beasts, be it reason, speech, conscience, bipedalism, erect posture, abstract thought, toolmaking, corruption, a divine origin or likeness, or the necessity of sociability for surviving in and/or leaving the state of nature.18 Conversely, critical reassessments of the nature of humankind involved challenging the hallmarks that allegedly distinguished humans from animals, and often portrayed nature and animals as superior to the flawed moral, political, and legal order established by Homo sapiens.19 In some traditions, animals were deemed morally superior only because they were held incapable of reason or ill-intention. Thus they could produce harm, but not crime.20 In other traditions, including the Judeo-Christian, some animals embodied moral values that humans should aim for.21 Other animals were deemed immoral or vicious: between the ninth and nineteenth centuries, with the greatest intensity and geographic spread in Europe in early 1600, animals which had “stolen” food (dogs, cats, rats, donkeys, and so on), bitten their masters, had sexual intercourse with them, or committed other “crimes” were subjected to criminal trials, found guilty, and executed. These were frequently ecclesiastical proceedings under religious authority.22 Moreover, when humans were considered as animals, they gained natural rights that neither domestic laws nor international law could give them. In De iure belli ac pacis, Hugo Grotius surveyed the Greek, Roman, and natural law traditions, and extended to both prisoners of war and slaves the famous dictum of the Roman Stoic philosopher Seneca the Younger: “Tho’ it be lawful to do any Thing to a Slave, there is something which the common Right of Animals forbids to be done to the Man.”23 In addition to identifying commonalities and differences between animals and humans, the Greek, Roman, and natural law traditions are also often cognizant of the exhaustibility of natural resources, and mandated the protection of fruit trees, crops, and animals that are useful for human life, but without grounding this protection exclusively in human use. Trees may not be wantonly cut down, nor animals tortured, partly because they are useful, and partly because cruelty and waste corrupt human individuals and their relationships.24 Though anthropocentric, such laws and arguments formulated animal protection rules not to serve but to limit and morally valorize material human interests. In addition, all three traditions produced philosophies and hermeneutics of religion to ward against imbuing nature and animals with divine powers. The Jewish, Greek, and Roman proscription of idolatry, as well as the writings of Euhemerus, Pausanias, Cicero, and others who traced numerous religions to the ignorant worship of natural phenomena, became cardinal Christian doctrines when they were adopted by Lactantius, Jerome, Augustine, and other formative Church Fathers.25

368  Mark Somos and Anne Peters Christianity also incorporated Judaic and pagan philosophies that attributed nonanthropocentric autonomous value to animals and natural phenomena. For instance, the Pythagorean idea that animals have some sort of reason and soul, and therefore rights,26 found its way into Christian theology (and vegetarianism) and became particularly influential during the Renaissance,27 together with the maxim that disharmonies caused by disrupting nature inevitably affect humans. Roman law, civil law, and English common law traditions accorded natural liberty to all animals until they are captured, and even considered some wild animals incapable of becoming private property, thus endowing them with a sort of negative right or autonomy of their own.28 Grotius extended to the high seas the category of natural entities that resist possession, while the American Founding Fathers claimed individual natural rights, including the right to secede, for all British American colonists on the same grounds, namely, that without effective control and a spirit of obedience, humans and nonhuman animals are born free.29 To adumbrate and best use Christianity’s approach to environmental protection and animal law, it is therefore vital to appreciate its continuous engagement with other belief systems and philosophies throughout its history. The anthropocentrism that White detected is partly explicable by Christianity’s adaptation of Euhemerist and Ciceronian criticisms of other religions as overly focused on animals and natural phenomena. Christians were fully aware of these nonanthropocentric borrowings, even when they endorsed the legal implications of the anthropocentric view that nature existed primarily to serve human interests.30 Alongside extensive cross-pollination with other traditions, Christianity has two relevant distinctive features. First, the Christian tradition draws a sharp distinction between animals and humans: only humans are made in God’s image. According to Augustine, God created humans “with a soul endowed with reason” so they can “excel all the creatures of the earth, air, and sea, which were not so gifted.”31 Animals can be used and killed at human discretion.32 Even Christians, such as Ephrem the Syrian, who attributed some rationality or a primitive soul to animals, emphasized the unique status of humans.33 Another distinctive feature is the Christian doctrine of the Fall. Other traditions also have versions of a golden age past and/or to come. However, the Christian vision of the original harmony among humans and animals in Eden, the restoration of this harmony in a predicted Paradise, and the condition of strife and imperfection where the world is trapped between these events, shape the Christian approach to the environment and animals in specific ways that we will explore in this chapter. In the genealogy supplied by Grotius, commonly regarded as the “father of modern international law,” after the Fall “nature became no longer ‘mother’ but ‘stepmother.’ ”34 Pagan and Jewish rituals of animal sacrifice were wrong because “beasts are of too lowly a value for them to qualify to act as a sacrificial substitute for man.”35 According to Grotius and many others, animal sacrifice is one of the mistakes that Jesus Christ and his followers corrected by accepting only the crucifixion as lawful punishment.36 Grotius, a key figure in the history of international law, thus exemplifies the way in which Christians both absorbed and transformed

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other value systems to create a distinctive approach to environmental protection and animal law. As the editors’ introduction to this volume explains, the organizing precept of this volume is that Christianity no longer makes claims to exclusive insight or authority but still wishes to clarify its historical contribution and update it. The past, present, and possible future of constructive dialogue between Christianity, on the one hand, and environmental protection and animal welfare and rights, on the other, can be considered through five topics: the global community, human stewardship, the interconnectedness of all things, epistemic humility, and relevant variations within Christianity.

Global community Edith Brown Weiss helpfully framed environmental coordination challenges in terms of global commons versus public goods. Commons (common goods) are nonexcludable (you cannot stop others from using them) but rivalrous to a certain degree, because in one way or another they are exhaustible. Public goods are equally nonexcludable but also nonrivalrous, because one party using them does not reduce availability to others. In Brown Weiss’s formulation, natural resources such as water and air are global commons—they are rivalrous (exhaustible). In contrast, sustainably clean water and sustainably clean air are public goods, because sustainable purity or nontoxicity is not rivalrous.37 From a national or even international perspective, the challenge to reverse human harm to the environment might appear to pose a series of trade-offs, for instance between economic development and environmentally safe industrial processes, or between developing states, which rely on extractive industries, and highly developed states that can import raw materials due to their competitive advantage in higher value-adding sectors. Yet this is to misunderstand the point. The point is that benefiting from natural resources (air, water, livable climate, minerals, and so forth) is necessarily predicated on their sustainable use. According to current scientific knowledge, the sustainability of their use is a bottom line that should never be undercut in any legal arrangement concerning elements of nature and is in that sense a nonnegotiable standard. To approach natural resources as exhaustible goods subject to rivalrous treatment is to ignore that sustainability is their defining intrinsic characteristic. In a sense, the challenge is therefore to reframe the global commons as public goods.38 The benchmark for our collective tasks is not to establish acceptable tradeoffs to regulate the commons, but to institutionally and procedurally embed an understanding of environmentally sustainable practices as a public good. There is an emerging consensus that framing natural resources as common goods is a dead end, and we need new approaches that “point away from a political economy built on the competitive pursuit of interests, in which commercial considerations come to drive the exploitation of nature.”39 Even in the unlikely event that the relevant treaties predicated on the conceptualization of natural resources as global commons were universally and faithfully observed, mechanisms such as the Kyoto Protocol and the Paris Agreement cannot be more than a means to

370  Mark Somos and Anne Peters an end. The end must be to reconceive of environmental sustainability politically, economically, and legally as a nonnegotiable standard. An uncompromisably global perspective, such as Christianity or global law, is essential for stopping sustainable public goods from being misunderstood and misrepresented as global commons.40 If global law upholds political participation as a sine qua non of state legitimacy, then rallying electoral interest in sustainability and animal rights, and/ or framing them as democratic norms, can provide legislative means to prevent sustainability and animal rights from being mistaken for common goods. For instance, if a sufficiently large number of states’ voters adopted a global perspective and conceptualized sustainable water as a public rather than a common good, municipal and international law could set a quantitative upper limit and a fair price on Nestlé’s water privatization, which erodes water sustainability both globally and in particular states.41 Another global law mechanism operates through international organizations and treaty systems that enshrine the nonexcludable and nonrivalrous nature of sustainability. One idea is to interpret the principle of permanent sovereignty over natural resources as a principle encompassing not only territorial jurisdiction over natural resources, but also state responsibility to manage such resources in the interest of humanity.42 A complementary but nonoverlapping, albeit wholly anthropocentric, alternative would be to codify intergenerational responsibility and the interests of future generations into the relevant hard global law instruments.43 Both global law and Christianity operate with the notion of a global community, to which such a public goods standard can belong. We are members of the global community by virtue of our shared humanity. Applications of these ideas to environmental issues suggest that the Christian doctrine that humans are made in the image of God, and therefore comprise one humanity, is hardly more vague or contestable than its current international law counterparts. International law distinguishes between states’ self-interest and common interest, but has had mixed success in operationalizing common interest and allied categories. Recall the 2015 decision by the International Law Commission (ILC), concerning the international regulation of atmospheric pollution, that the “common heritage of mankind” is limited to the deep seabed, as states are not yet ready to extend it into other spheres. Eventually, the ILC ended up with the even less ambitious formulation that atmospheric pollution is a “pressing concern of the international community as a whole”44—only to find that states themselves were ready to adopt the more assertive and progressive “common concern” phrase in 2015.45 In this case, the ILC notably failed in its purpose, namely the “promotion of the progressive development of international law and its codification.”46 Even though both Christian and international law notions of a global community are somewhat vague and difficult to use in the optimal protection of nature, they provide a framework in which important issues can be expressed, such as the global trend and injustice known as environmental racism. “Environmental racism” refers to the practice of placing polluting industries, including landfills and incinerators, in underrepresented or otherwise disadvantaged

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communities, usually poor and of color. The global systemic trend connecting poverty and environmental degradation has been empirically proven by a German developmental agency (GIZ) report.47 Some churches have been militant against this trend, though it is unclear whether their opposition arises from their level of organization or their environmental theology. For instance, in 1986 a black community organized itself through churches and protested effectively against a nuclear waste dump in Halifax Country, Virginia.48 Christian communities claim Neri Lito Satur, murdered in the Philippines in 1991, and Dorothy Stang, shot dead in Brazil in 2005, as martyrs killed for their work against the nexus of poverty and environmental damage. Laudato si’ also draws attention to the disproportionate burden of environmental hazard on the poor globally, many of whom are forced to migrate as a result of environmental degradation.49 While water is a common global good, pollution that restricts access to safe water also disproportionately harms the poor.50 According to Pope Francis, the “ecological debt” between global north and south, whereby the north exploits, consumes, and pollutes at the south’s expense, means that “a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensable.”51 While Pope Francis clarifies that Laudato si’ is meant to be part of “the body of the Church’s social teaching,”52 it is useful to consider this encyclical and the church’s campaign of popularization and lobbying that surrounds it as a legal initiative.53

The human stewardship of creation Mary Evelyn Tucker and John Grim, convenors of the Forum on Religion and Ecology and editors of the Harvard University Press series, “Religions of the World and Ecology,” point out that the environmental crisis is a challenge to many religions, especially those focused on personal salvation that involves rejecting this world as corrupting or relatively insignificant.54 The problem seems to be encapsulated by stewardship. Stewardship has long been a foundational Christian notion for conceptualizing humankind’s relationship with the natural environment.55 In its basic form, the concept denotes the doctrine that God entrusted the creation to humans, who have dominion or at least usufruct over the natural world that was created primarily for their benefit in the first place. In Passmore’s oft-cited phrase, “Man is to nature, that is, as God is to man.”56 This is because only humans are made in the image of God, with a free will that renders their worship of God meaningful, in contrast with mechanistic or mindless nature. According to Jenkins, “[s]tewardship therefore appears doubly insulated from any moral claim of nature: obedient stewards conform to God’s will, not nature’s orders, and Christians discover nature only by participating in God’s act.”57 The doctrine of stewardship can provide “religious justification for anthropocentric domination” and crowd out “nature’s own significance for God.”58 “What a jaded, selfish view of the world and our place within it—a kind of reverse Genesis in which every species shall now be summoned before almighty

372  Mark Somos and Anne Peters man. . . . And what do we, the stewards, have to justify?”, Matthew Scully rightly asks. He goes on: “So Christians are called to be good stewards. And just what might that mean? What is good dominion? What is godly dominion? What is bad or irresponsible or wicked dominion?”59 Clearly, “dominion” must be reconceptualized in order to put humans in their place in interdependence with nature, and to cater to the needs of animals. Along this line, and based on a “caring” understanding of dominion, Michael Rosenberger has sketched out a contractarian model of “justice as fairness for animals” in analogy to the covenant between God and Noah and all creatures.60 According to Jenkins, among US evangelical Protestants stewardship “emerged as a discrete theological discourse in the 1980s.” Conferences on stewardship led to the creation of the Evangelical Environmental Network (EEN), which lobbied legislators and mobilized to defeat congressional attempts to roll back the Endangered Species Act. This was a milestone in US religious public environmentalism, which gained new respect from secular entities such as the Sierra Club.61 Subsequent partnerships between secular and religious environmental groups were so successful that the EPA warned that their collaboration must be stopped, lest they become too powerful.62 These developments were not limited to American Protestants, but followed in the steps of the mostly evangelical Justice, Peace, and Integrity of Creation movement in the World Council of Churches from 1974 on.63 Despite its flaws, stewardship remains a prominent feature of Christian approaches to animals and the environment. According to Laudato si’, “we are called to be instruments of God our Father, so that our planet might be what he desired.”64 While the encyclical emphasizes the effect of environmental degradation on human rights to life and happiness, it does not consider animal rights. The stewardship approach goes hand in hand with the animal welfare model.65 Political scientist Robert Garner characterizes welfarists as “those who accept human moral superiority.”66 The welfarist ethics is the position that animals should not suffer unnecessarily but do not have a right to life.67 Concomitantly, “animal welfare does not challenge the property status of animals.”68 The practical consequence is that “using animals, per se, therefore, is not the problem. It is what they are used for that is the key.”69 To conclude, the stewardship model is thoroughly anthropocentric and does not call into question the status of animals as rightless things. Nevertheless, it can impose considerable obligations on humans to take full and sole responsibility for planetary harmony.70

The interconnectedness of all things Christian emphasis on the interconnectedness of all creation has the potential to shape environmental and animal law. Churches in the developing world find it relatively easy to express their faith through environmental practices and incorporate them in their religious practice. Jenkins describes Ugandan Christian church groups planting trees to combat deforestation. A Japanese program he visited

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does the same through ecumenical initiatives in which participants regard their environmental and sustainable agricultural practices as integral to their religious experience. Small farmers in Minnesota emphasize the harmony between religious faith, family farming, and social welfare.71 It is through the interconnectedness of all things that an individual who lives in accordance with Christian virtues and righteousness can transform the whole of nature. Throughout the history of Christianity, Noah, Christ, and numerous saints were identified as such individuals, restoring peace and harmony not only among humans but also among animals, between animals and humans, and throughout creation.72 Interconnectedness is a leitmotif of Laudato si’.73 The encyclical moves away from anthropocentric environmental theology by attributing to animals the power to praise God “by their very existence,”74 a power that humankind has no right to limit.75 Thus one plausible suggestion is to raise the profile of animal rights in democratic politics, including electoral priorities, even by means of civil disobedience and breaking the law through “militant resistance,” ideally leading to the institutionalized direct representation of animal interests.76 Another avenue is to accept animals “as members of the society in whose name the state governs,” as “members of ‘the public.’ ”77 Yet it is difficult to pinpoint what is distinctive about interconnectedness in Christian environmental theology. Arguably, environmentalism was seldom without a spiritual dimension, and combining religion with environmentalism can be seen as merely a variant of this trend.78 Nineteenth-century Romantics, 1960s– 70s hippies, and others have attributed spiritual value to nature independently from, or even in denial of, divinity. In fact, Christian environmentalists are concerned about the spiritualization of nature for its own sake, as it resembles the idolization of nature which, as mentioned earlier, Christianity has rejected from the beginning. The spiritualization of nature appears even in secular nationalist guises. There is a long-enduring British intellectual tradition that associates islands with independence and ingenuity, and considers topography to be a chief reason for British exceptionalism. Venetian and Dutch lawyers and legal scholars have used the argument for centuries that the maritime locations of their respective states, coupled with scarcity of land and resources, prove that God intended their states to be mercantile and providentially to connect all parts of the globe, giving rise to commercial exceptionalism and corresponding world-law eminence.79 Another variant is the US belief, present since the country’s foundation, that the potential inherent in making full use of the country’s natural resources is exceptional and shows that the country’s manifest destiny is to directly dominate the North American continent and, indirectly, the world.80 According to Jedediah Purdy, “providential republicanism aimed to produce not just an agrarian republic, but an extractive one.”81 Gifford Pinchot’s influential The Fight for Conservation (1910) presents environmental protection as a key to Christian duty, American patriotism, and global public good, which are always in concord. In these traditions, the interconnectedness of all things only serves to highlight

374  Mark Somos and Anne Peters the uniqueness of a distinct subset, namely, a given state’s physical environment and population.

Epistemic humility Christianity is often accused of antiscience bias and obscurantism. Doubting climate change is unquestionably an article of faith for many.82 Yet the more constructive contribution comes from the Christian tradition of epistemic humility. Humility can solve some problems intrinsic to Christian environmentalism, such as the anthropocentric bias associated with stewardship. Humility makes people value things apart from their utility for human purposes. It also creates respect for other people’s knowledge. Animals and nature are well-established foci for Christian humility. Grotius provided a classic formulation when he argued that just as animals cannot understand how humans govern countries, humans in turn should adopt the stance of epistemic humility toward God. Humans correspond to animals in this analogy, but also differ because they can use animals as an object lesson.83 John Nagle is among those who point out that the Christian attitude of humility can accomplish a great deal in environmentalism.84 However, he argues that unlike Greeks and Romans, Christians made humility a central part of their beliefs; thus it is “a quintessentially Christian discovery.”85 In support, he cites both the Old Testament (a Jewish text) and the New Testament (a largely Jewish text), as well as Augustine, Aquinas, American Protestants, and Pope Francis. Nagle distinguishes between environmental humility and legal humility. By the former he means that we do not know or understand nature. We do not know how many fish live in the sea, or how many trees are in forests. We do not understand the environmental impact of nuclear power until after we start using it. We do not understand the complexity of ecosystems, not because we have insufficient information but, according to some prominent scientists, because ecosystems are more complex than we can think. The theology of humility, as opposed to what are called sins of pride and immodesty in the readily available Christian vocabulary, is thus particularly appropriate for environmental protection. Though Nagle does not spell it out, in terms of environmental law this suggests a strong presumption in favor of protection. Legal humility describes the approach to regulation recommended from the perspectives of both common reason and Christianity. Sometimes we damage the environment, and thereby ourselves, because we cannot understand how the laws will work in relation to an environment we cannot understand. Nagle surveys the voluminous literature that cautions against the epistemic hubris of lawmakers and judges who write and apply law with the intention of saving a nation or status quo. A simpler epistemic humility runs through Laudato si’. Pope Francis points out that we do not know many of the species, nor how they are interrelated in the ecosystem, how we impact them, and how in turn damage to them impacts us.86 Laudato si’, like many other Christian texts, calls for epistemic humility and at the same time for increased awareness and research.87 It also warns against the

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temptation “to think that what is happening is not entirely clear,” and against evasive or politically motivated misuses of epistemic humility to cast doubt on the nature and urgency of the environmental crisis.88 This is not a self-contradiction. It is plausible to strive for more information and maintain at the same time the assumption that we will never know enough to understand something as complex as our natural environment. Even under that assumption, it is better to know more than to know less or to stop inquiring. For example, both common reason and Christian humility can undergird a precautionary approach to measures affecting the environment; both suggest honoring the maxim in dubio pro animale—“when in doubt, favor the animals.” In the face of scientific uncertainty—for example, about an animal’s sentience—one should presume that the animal feels pain. This is highly relevant for fish, whose sensitivity to pain was disputed until recently.89 To recall an earlier point, the Christian tradition of epistemic humility can help to reframe commons as public goods. One can assert that the broad scientific evidence on environmental degradation is incontrovertible, and that environmental sustainability is a public good, misunderstood as rivalrous commons. Instruments like the Kyoto Protocol, whereby signatory states commit to reducing greenhouse gas emissions, contain mechanisms for capping and reducing global emissions while allowing for developmental and technological adjustments by enabling states to trade carbon credits. Yet research suggests that even in the case of wide use and compliance, a market for fees and quotas would not optimize the outcome, because the carbon credit–trading system cannot take into account the environment’s real complexity. Similarly to the ostensible self-contradiction of Laudato si’, there is no doubt that the Kyoto Protocol helps more than it harms, even if one reason for its inadequacy is that either a higher or an unattainable level of scientific knowledge would be required to price carbon credits in correlation with real-world environmental harm.

Variation Although the aforementioned themes combined Protestant and Catholic strands, there are salient variations. Northcott argues that Protestantism has a stronger historical connection with environmentalism than Catholicism does.90 As noted, the idea that small family farms are the best guarantee of individual and communal virtue, harmony with nature, and sustainable growth, has a religious variant— but a secular one, too.91 The findings of Inglehart and Baker seem to corroborate this. The large-scale and longitudinal surveys that they have organized over decades suggest that even though most people in Western countries are not devoutly religious, they still adhere to values that are historically characteristic of their countries’ religion.92 While environmentalism might be labeled a “post-material value,” its dissemination and intensity correspond to historical Protestantism. By contrast, Jenkins’s research suggests that Roman Catholicism and mainline Protestantism have more in common than either has with evangelical Protestantism or Eastern Orthodoxy.93 He argues that variants of environmental theology arose

376  Mark Somos and Anne Peters from underlying doctrinal differences concerning salvation and grace. This raises the possibility that the unprecedented scale and importance of current challenges in environmental protection and animal law, which most denominations seem to agree on, is an opportunity to prompt sectarian heterodoxies to converge toward a common Christian approach.

Conclusion: contradictions and contributions Some genealogies of environmentalism underestimate or ignore Christianity.94 In addition to its historical importance, Christianity is in a unique position to improve environmentalism and animal law. One reason is the global vantage point of Christianity, and another is its long-held notion of humankind’s common identity and interest. A third advantage is that Christianity is a live and adaptable tradition, capable of both using and transcending its historical resources, and bringing its revived resources to bear in fostering environmental and pro-animal sensibilities around the world, whether through political activism or through the training of priests, pastors, and missionaries.95 Finally, Christians can directly mobilize elements of their tradition that harmonize with their beliefs as well as with current and potential future trends in global environmental and animal law. Such elements include the dereification of animals (that is, their change of legal status from “things” (res) to “not things”96 or “sentient beings”)97, for instance through the doctrines of an underlying equality of all parts of creation, and of edenic and eschatological harmony.98 Most obviously, international environmental and animal law evolves through appeals to highly disputed moral norms.99 There is no reason why the moral core and historical authority of Christianity cannot be brought directly to bear on these disputes. Yet Christianity must overcome a few hurdles. Environmental statements such as Laudato si’ describe Christianity as engaging all worldviews while remaining distinct. By contrast, recent scholarly works pursue the comparative religious approach and the syncretization of science and religion seriously enough to render the Christian perspective both constructive and nonexclusive.100 Laudato si’ praises all environmental efforts and insists that Christianity has a unique contribution, but the encyclical cannot make the distinctive nature of that contribution clear. Balancing precariously between too much and too little, the engagement with other views remains underdeveloped for fear of sounding arrogant. Exactly because it claims universal scope, Christianity cannot easily fit its specificities into an intrinsically pluralist system. When they tackle the problem head on, Christian authorities can make things worse. According to Laudato si’, relativism is the cause of environmental evil.101 Global environmental and animal law require a global set of norms as well as global institutions guided by such norms to coordinate global action. Christianity is not in a position to supply these global norms, and its mechanisms for creating impact and consensus are inadequate to the task. By paying equal attention to the potential and limits of the Christian historical tradition to inform our age, we might discover in the unprecedented nature of the environmental crisis an opportunity to reconfigure and adapt the Christian approach accordingly, and not only to update and adapt the Christian vision for the end of this world.

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The authors wish to thank Ioannis Evrigenis, Guillaume Futhazar, Francesca Iurlaro, Anette Kreutzfeld and Tom Sparks for their comments. Mark Somos thanks the Deutsche Forschungsgemeinschaft for their generous support.

Notes 1 2 3 4 5 6 7 8 9 10

11 12 13 14

15 16 17 18

19

IPCC, “Summary for Policymakers,” in Stocker, et al., eds., 17. Francis, Laudato si’, par. 17. See the essays in Pasquale. Jenkins, 3. Also see Kotzé. Peters, 10. Ibid., 16. Remele, 48; Schroer, 9–10. White, 1205. Laudato si’, par. 66. According to Pope Francis, Genesis and other biblical phrases cited by Lynn White and others against Christianity should be put in their context and read in light of the progressive evolution of Christianity (par. 67). Laudato si’, par. 67–69. See for specifically animal-friendly reinterpretations of the notion of “dominion” in Genesis: Linzey, 14–19; Rosenberger, 117. This structure repeats in chapter 2 of the encyclical, which begins with the call for dialogue between the religious and secular concerns for nature, asserts the Catholic posture of dialogue and search for synthesis between faith and reason, then proceeds to adumbrate the Catholic contribution with no reference to science or any secular position. For Judaism and early Christianity, see Grant. In Roman law: Digest I.i.3, XLVIII.vi.11. Code IX.xvi.2. In canon law: Decretals V.xii.18, Constitutions of Clement V.iv. In natural and international law: Hugo Grotius, De iure praedae, VII.104. De iure belli ac pacis, I.II.i.180–83. See the references in Depew, at 402–3, and in Evrigenis, 99–101. Notable moral discussions of this animal emblem of sociability, with direct legal implications for regulating commonwealths, appear in storks’ piety toward parents in James I, “The Trew Law of Free Monarchies” (1598) in Political Writings, 62–84, at 77; Hugo Grotius, De iure belli ac pacis (Paris, 1625), Prolegomena; and The Pennsylvania, Delaware, Maryland, and Virginia almanack and ephemeris, for the year of our Lord, 1783 (Baltimore, 1782), which intriguingly cites Samuel Bochart’s Hierozoicon (London, 1663). A related sentimental-political commonplace held that storks live only in republics—e.g., Harrington, 8–9. Comparably, Cicero argued that humans want the same things as animals: pax, libertas, otium. Cicero, De leg. agr. II.iv.9. Partial survey of this literature in Grotius, De iure belli ac pacis, I.I.xi.157. Grotius, De iure belli ac pacis, II.V.xii.530–31, II.VII.iv.585–86, II.XX.v.959. E.g., Grotius, De iure belli ac pacis, Prolegomena, 79–85. For early modern strategies to draw this distinction, and render animals objects but not subjects of law and dominion, see Brett, Changes of State and Brett, “Rights of and over Animals.” Later cases in Rahe. Richard Popkin, Richard Tuck, and others convincingly show that neoskepticism was one of the key intellectual movements that prompted a shift of emphasis from divine law to natural law and natural science. To give one influential example, Montaigne revived and reframed several doctrines of Sextus Empiricus, the best-known ancient Skeptic. For instance, due to human epistemic arrogance, animals understand nature and each other better than humanity does (Montaigne, 16–17, 31–33, 50–51, 54–55). Gregarious animals have better-organized societies and polities than humans (Ibid., 19). Some animal species are religious (Ibid., 33). Animals can excel humans in household management and even war (Ibid., 38–41). Some animals have a superior understanding of mathematics

378  Mark Somos and Anne Peters (Ibid., 44–45). Their moral qualities generally surpass ours, whether one examines faithfulness, gratitude, trustworthiness in alliance, greatness of spirit, selfcriticism, or clemency (Ibid., 41f.). Montaigne also follows Sextus in comparing the virtues of animals over humans with the virtues of ordinary people over scholars and philosophers (Ibid., 35, 52–53, 59, 64, 66). Also see Seneca, De ira, I.xvi. 20 Digest IX.i.1, Grotius, De iure belli ac pacis, I.II.iii.188. 21 Philo, On the Decalogue, commentary on the Fifth Commandment. 22 See Evans; also Fischer; also Girgen. 23 Seneca, De clementia 1.18, cited in Grotius, De iure belli ac pacis, III.X.1414–16, III.XIV.1483. 24 See Schwartz. Arnaoutoglou, 27–28. Aquinas, Summa Contra Gentiles, III.112.13, p. 119. Compare John Locke, Second Treatise, on the natural prohibition against waste. 25 See Vossius. 26 Nussbaum, 1514–16. 27 See Allen. 28 Roman law: Digest XLI.i.5. Canon law: Decretum I.i.7. The legal title for wild animals that could never become property is ferae naturae. 29 Grotius, Mare liberum, 23, 111, passim. Somos, American States of Nature, 316–17. 30 E.g., Grotius, De veritate, noting that God gave Creation to humankind not only according to Genesis but also according to Hesiod, Ovid, and other pagans. Linzey, “Is Christianity Irredeemably Speciesist?” xi–xx. 31 Augustine, City of God, XII.23. 32 Ibid., I.20. 33 Ephrem, cited in McLaughlin, at 138n3. 34 Grotius, Meletius, 114. 35 Ibid., 117. 36 Ibid. 37 For the cardinal Roman law passages see Grotius, Mare liberum, 24–31. 38 See Bodansky. See also Shaffer. 39 Feichtner and Ranganathan, 546. 40 See Peñalver; see also Kaul. 41 See Winter and Shimo. 42 Schrijver, passim. See also Nolte, “The International Law Commission and Community Interests.” Nolte also points out that a “community interest does not fall from the sky” but “needs to be socially established (constructed, recognized)” even in the case of scientifically provable facts, such as environmental harm. Our point is that the electoral tactics mentioned above are relevant methods for constructing them. The renewed appreciation that sovereignty encompasses responsibility is the core idea of the “responsibility to protect” (Resolution adopted by the General Assembly, World Summit Outcome, UN-Doc. A/RES/60/1 of October 24, 2005, para. 138). 43 Mickelson, charting the emergence of references to the interests of future generations in CHM regimes. 44 ILC Report 2015 (n 10), 22–23 at para. 53, cited in Nolte, “International Law Commission.” 45 S Murase, Second report on the protection of the atmosphere (March 2, 2015) UN-Doc.A/CN.4/681, 18–19 at par. 29. P.H. Sand/J.B. Wiener, “Towards a New International Law of the Atmosphere?” (2016) 7 GoJIL 195, 216. Both cited in Nolte, “The International Law Commission.” 46 Statute of the International Law Commission, Art. 1(1), Nov. 21, 1947. 47 Kosmus, Renner, and Ullrich, Integrating Ecosystem Services into Development Planning: A Stepwise Approach for Practitioners Based on the TEEB Approach (GIZ, 2012). Also see www.bbc.com/news/world-asia-india-46436829.

Christianity and environmental protection 48 49 50 51 52 53

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McDuff, 105. Laudato si’, par. 20, 25, 45, 42–48, passim. Ibid., par. 30. Ibid., par. 51–53. Ibid., par. 15. See Lin. Lin’s article shows targeted lobbying, pressure on US legislators, voter mobilization, and other direct legal effects of Laudato si’. 54 Mary Evelyn Tucker and John Grim, “Overview of World Religions and Ecology” (2009), The Forum on Religion and Ecology at Yale, http://fore.yale.edu/ religion/. 55 See Catechism of the Catholic Church, 2417. Stewardship in environmental theology takes Paul’s use of oikonomia for its founding concept. Jenkins, Ecologies of Grace, 81. 56 Passmore, 29. 57 Jenkins, Ecologies of Grace, 84. 58 Ibid., 90. 59 Scully, 117, 131. 60 Rosenberger. 61 Jenkins, Ecologies of Grace, 78–81, n. 22. 62 McDuff, 113–14. 63 Heltzel, cited in the excellent article by Jochemsen. 64 Laudato si’, par. 53. 65 Ibid., par. 43. 66 Garner, at 112. 67 Ibid., 120. 68 Ibid., 168. 69 Ibid., 129. 70 McLaughlin, 127 on stewardship and responsibility in Irenaeus. 71 Jenkins, ch. 1–2. 72 McLaughlin, 129–35. 73 See, e.g., Laudato si’, par. 70. 74 Catechism of the Catholic Church, 2416. This is the key message of Saint Francis’s Canticle of the Sun. See Moloney. 75 Laudato si’, par. 33. 76 Electoral prioritization: see Parry. Via civil disobedience and unlawful action: see Cooke. 77 Kymlicka On problems of reframing global commons as public good via transboundary harm, erga omnes obligations, or multilateral environmental agreements: Brunnée. 78 Jenkins, Ecologies of Grace, 9, n. 15 surveying part of this literature. Phrase from 12. 79 E.g., George of Trebizond, Preface to his 1452 ed. of Plato’s Laws. Cunaeus. A relevant treatment is Porras, 641–60. “The providentialist doctrine of commerce, adopted by the early authors of international law, remains embedded in the structure of international law and cannot easily be dislodged. Until this doctrine is dislodged, however, international law will continue to be hobbled in its ability to address the urgent task of protecting the natural environment.” Although in this contribution Porras does not discuss the Christian sources and beliefs of “early authors of international law,” she notes in passing that their commodification of nature “complemented the Judeo-Christian belief that God had given dominion over the created Earth to human beings”: 660. 80 See Brosnan; see also Purdy. Purdy’s account runs from James Kent, Commentaries on American Law, vol. 3 (1828), through the Romanticism of Transcendentalists such as Thoreau and Emerson to the still-active Sierra Club.

380 81 82 83 84 85 86 87 88 89 90 91 92 93

94 95 96 97 98 99

100 101

Mark Somos and Anne Peters Purdy, 218. See Broder; see also Gore. Grotius, Truth of Christian Religion, I.iii.33, I.vii.36–37. Nagle. Nagle, 337, endorsing this phrase by Kari Konkola. Laudato si’, par. 40–42. Ibid., e.g., par. 56–61. Ibid., par. 59. See Braithwaite. See Northcott. Purdy, 173, passim. Inglehart and Baker. See also http://www.worldvaluessurvey.org/wvs.jsp. None of these categories is monolithic or constant. Laurel Kearns offers yet another taxonomy and genealogy of Christian environmentalism. Michael Northcott, Christianity and Environmental Ethics: environmental theologies can be anthropocentric, theocentric, or ecocentric. Jenkins 15n35. Laurel Kearns from sociological observation of US groups: ecojustice, Christian stewardship, and creation spirituality as 3 models. Jenkins 18n58. Warde. A point well made in McLaughlin. Austria (1988), Germany (1990), Azerbaijan (1999), Moldova (2002), Switzerland (2002), Liechtenstein (2003), the Netherlands (2015). The European Union (2008); France (2015); Portugal and Colombia (2016). Peters, “Introduction to the Symposium on Global Animal Law,” containing, inter alia, overviews of recent European trends of dereification, and US and Latin American endowments of animals with habeas corpus, and human right analogues. Weiss, on an important use of the secular moral norm of equity to prompt international environmental law to evolve. The opportunity for legal progress through moral contest is laid out in directly relevant general terms, without discussing religion, Blattner, 274–90. E.g., Jenkins, Tucker, and Grim. Laudato si’, par. 122–23.

Bibliography Allen, Michael. “Pythagoras in the Early Renaissance.” In A History of Pythagoreanism, edited by Carl A. Huffman, 435–53. Cambridge: Cambridge University Press, 2014. Aquinas, Thomas. Summa Contra Gentiles. Translated by Vernon J. Bourke. Notre Dame, IN: University of Notre Dame Press, 1975. Arnaoutoglou, Ilias. Ancient Greek Laws: A Sourcebook. London: Routledge, 1998. Augustine. The City of God. Translated by Henry Bettenson. New York: Penguin, 2004. Benvenisti, Eyal, and Georg Nolte, eds. Community Interests Across International Law. Oxford: Oxford University Press, 2018. Blattner, Charlotte E. Protecting Animals Within and Across Borders: Extraterritorial Jurisdiction and the Challenges of Globalization. Oxford: Oxford University Press, 2019. Bodansky, Daniel. “What’s in a Concept? Global Public Goods, International Law, and Legitimacy.” European Journal of International Law 23/3 (2012): 651–68. Braithwaite, Victoria. Do Fish Feel Pain? Oxford: Oxford University Press, 2010. Brett, Annabel. Changes of State: Nature and the Limits of the City in Early Modern Natural Law. Princeton, NJ: Princeton University Press, 2011.

Christianity and environmental protection

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Brett, Annabel. “Rights of and over Animals in the Ius Naturae et Gentium (Sixteenth and Seventeenth Centuries).” AJIL Unbound 111 (2017): 257–61. Broder, John M. “Climate Change Doubt Is Tea Party Article of Faith.” New York Times, October 20, 2010. Brosnan, Kathleen A. “Law and the Environment.” In The Oxford Handbook of Environmental History, edited by Andrew C. Isenberg. New York: Oxford University Press, 2014. Brunnée, Jutta. “International Environmental Law and Community Interests: Procedural Aspects.” In Community Interests Across International Law, edited by Eyal Benvenisti and Georg Nolte. 151–75. Cicero, Marcus Tullius. “On the Agrarian Law.” In Pro Quinctio. Pro Roscio Amerino. Pro Roscio Comoedo. On the Agrarian Law. Translated by J. H. Freese. Loeb Classical Library 240. Cambridge, MA: Harvard University Press, 1930. Cunaeus, Petrus. De Republica Hebraeorum. Leiden, 1617. Cooke, Steve. “Understanding Animal Liberation.” In Garner and O’Sullivan, Political Turn, 119–35. Depew, David J. “The Ethics of Aristotle’s Politics.” In A Companion to Greek and Roman Political Thought, edited by Ryan K. Balot, 399–418. Chichester: WileyBlackwell, 2009. Ephrem. Commentary in Genesis II.4. St. Ephrem the Syrian: Selected Prose Works, 99. Edited by Kathleen McVey and translated by Edward G. Mathews, Jr. and Joseph P. Amar. Washington, DC: The Catholic University of America Press, 1994. Evans, Edward Payson. The Criminal Prosecution and Capital Punishment of Animals (1906). London: Faber & Faber, 1988. Evrigenis, Ioannis. Images of Anarchy. Cambridge: Cambridge University Press, 2014. Feichtner, Isabel, and Surabhi Ranganathan. “International Law and Economic Exploitation in the Global Commons: Introduction.” European Journal of International Law 30/2 (2019): 541–46. Fischer, Michael. Tierstrafen und Tierprozesse: zur sozialen Konstruktion von Rechtssubjekten. Münster: Lit verlag, 2002. Francis, Pope. Laudato Si’: On Care for Our Common Home. Papal Encyclical. Rome: Vatican City, 2015. Garner, Robert. “A Defense of a Broad Animal Protectionism.” In The Animal Rights Debate: Abolition or Regulation? edited by Gary Francione and Robert Garner, 103–74. New York: Columbia University Press, 2010. Garner, Robert, and Siobhan O’Sullivan, eds. The Political Turn in Animal Ethics. London: Rowman & Littlefield, 2016. Girgen, Jen. “The Historical and Contemporary Prosecution and Punishment of Animals.” Animal Law 9 (2003): 97–133. Gore, Al. The Assault on Reason. New York: Penguin, 2007. Grant, Robert M. Early Christians and Animals. London: Routledge, 1999. Grotius, Hugo. Mare liberum (1609). Edited by David Armitage and translated by Richard Hakluyt. Indianapolis, IN: Liberty Fund, 2004. Grotius, Hugo. The Truth of Christian Religion (1625). Edited by Maria Rosa Antognazza and translated by John Clarke in 1743. Indianapolis, IN: Liberty Fund, 2012. Hagencord, Rainer, ed. Wenn sich Tiere in der Theologie tummeln: Ansätze einer theologischen Zoologie. Regensburg: Pustet, 2010. Harrington, James. The Censure of the Rota. London, 1660.

382  Mark Somos and Anne Peters Heltzel, P.G. “The World House: Prophetic Protestantism and the Struggle for Environmental Justice.” Union Seminary Quarterly Review 63/1–2 (2010): 26–41. Inglehart, R., and W.E. Baker. “Modernization, Cultural Change and the Persistence of Traditional Values.” American Sociological Review 65/1 (2000): 19–51. Irrgang, Bernhard. Christliche Umweltethik: Eine Einführung. München: Reinhardt, 1992. James, I. Political Writings. Edited by Johann P. Sommerville. Cambridge: Cambridge University Press, 1994. Jenkins, Willis J. Ecologies of Grace: Environmental Ethics and Christian Theology. Oxford: Oxford University Press, 2008. Jenkins, Willis J., Mary Evelyn Tucker, and John Grim, eds. Routledge Handbook of Ecology and Religion. London: Routledge, 2016. Jochemsen, Henk. “The Relationship Between (Protestant) Christianity and the Environment Is Ambivalent.” Philosophia Reformata 83 (2018): 34–50. Kaul, Inge. “Putting Climate Finance into Context: A Global Public Goods Perspective.” In Climate Finance, edited by Anil Markandya, Ibon Galarraga, and Dirk Rübbelke, 129–56. Singapore: World Scientific Publishing, 2016. Kotzé, L.J. Global Environmental Constitutionalism in the Anthropocene. London: Bloomsbury, 2016. Kymlicka, Will. Review of Robert Garner and Siobhan O’Sullivan (eds.), “The Political Turn in Animal Ethics.” Animal Studies Journal 6/1 (2017): 179–80. Lin, Albert. “Pope Francis’ Encyclical on the Environment as Private Environmental Governance.” George Washington Journal of Energy & Environmental Law 9/1 (2018): 33–44. Linzey, Andrew. Animal Rights: A Christian Assessment of Man’s Treatment of Animals. London: SCM Press, 1976. Linzey, Andrew. “Is Christianity Irredeemably Speciesist?” In Animals on the Agenda: Questions About Animals for Theology and Ethics, edited by Andrew Linzey and Dorothy Yamamoto. London: SCM, 1998. McDuff, Mallory. Natural Saints: How People of Faith Are Working to Save God’s Earth. New York: Oxford University Press, 2010. McLaughlin, Ryan Patrick. “Evidencing the Eschaton: Progressive-Transformative Animal Welfare in the Church Fathers.” Modern Theology 27/1 (2011): 121–46. Mickelson, Karin. “Common Heritage of Mankind as a Limit to Exploitation of the Global Commons.” European Journal of International Law 30/2 (2019): 635–63. Moloney, Brian. Francis of Assisi and His Canticle of Brother Sun Reassessed. New York: Palgrave Macmillan, 2013. de Montaigne, Michel. The Essays: A Selection, trans. and ed. M.A. Screech. London: Penguin, 1993. Nagle, John Copeland. “Humility and Environmental Law.” Liberty University Law Review 10/3 (2016): 335–69. Nolte, George. “The International Law Commission and Community Interests.” In Benvenisti and Nolte, Community Interests, 101–17. Northcott, M.S. “Reformed Protestantism and the Origins of Modern Environmentalism.” Philosophia reformata 83/1 (2018): 19–33. Nussbaum, Martha. “Animal Rights: The Need for a Theoretical Basis.” Harvard Law Review 114 (2001): 1506–49. Parry, Lucy. “Deliberative Democracy and Animals: Not-So-Strange Bedfellows.” In Garner and O’Cullivan, Political Turn, 137–54.

Christianity and environmental protection

383

Pasquale, Frank, ed. Care for the World: Laudato Si’ and Catholic Social Thought in an Era of Climate Crisis. Cambridge: Cambridge University Press, 2019. Passmore, John. Man’s Responsibility for Nature. London: Duckworth, 1974. Peñalver, Eduardo M. “Carbon Trading and the Morality of Markets in Laudato si’.” In Pasquale, Care for the World, 41–55. Peters, Anne. “Global Animal Law: What It Is and Why We Need It.” Transnational Environmental Law 5/1 (2016): 9–23. Peters, Anne. “Introduction to the Symposium on Global Animal Law (Part I): Animals Matter in International Law and International Law Matters for Animals.” AJIL Unbound 111 (2017): 252–56. Porras, Ileana. “Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations.” Leiden Journal of International Law 27 (2014): 641–60. Purdy, Jedediah. “American Natures: The Shape of Conflict in Environmental Law.” Harvard Environmental Law Review 36 (2012): 169–228. Rahe, Paul. “The Political Needs of a Tool-Making Animal: Madison, Hamilton, Locke, and the Question of Property.” Social Philosophy & Policy 22/1 (Winter 2005): 1–26. Remele, Kurt. Die Würde des Tieres ist unantastbar: eine neue christliche Tierethik. Kevelaer: Butzon & Bercker, 2016. Rosenberger, M. Der Traum vom Frieden zwischen Mensch und Tier: eine christliche Tierethik. München: Kösel, 2015. Schrijver, Nico. Permanent Sovereignty over Natural Resources: Balancing Rights and Duties. Cambridge: Cambridge University Press, 2008. Schroer, Silvia. Die Tiere in der Bibel: Eine kulturgeschichtliche Reise. Herder: Freiburg im Breisgau, 2010. Schwartz, Eilon. “Is the Tree Human?” In Trees, Earth, and Torah: A Tu B’Shvat Anthology, edited by Ari Elon, Naomi Mara Hyman, and Arthur Waskow, 83–105. Philadelphia, PA: The Jewish Publication Society, 1999. Scully, Matthew. Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy. New York: St Martin’s Griffin, 2002. Shaffer, Gregory. “International Law and Global Public Goods in a Legal Pluralist World.” European Journal of International Law 23/3 (2012): 669–93. Shimo, Alexandra. “While Nestlé Extracts Millions of Litres from Their Land, Residents Have No Drinking Water.” The Guardian, October 4, 2018. Somos, Mark. American States of Nature: The Origins of Independence, 1761–1775. New York: Oxford University Press, 2019, Stocker, Thomas F., et al. eds. Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. New York: Cambridge University Press, 2013. Vossius, Gerardus. De Theologia Gentili et physiologia Christiana, sive, De origine ac progressu idololatriae. Amsterdam, 1642. Warde, Paul. The Invention of Sustainability: Nature and Destiny, c. 1500–1780. Cambridge: Cambridge University Press, 2018. Weiss, Edith Brown. In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity. Dobbs Ferry, NY: Transnational Publishers, 1989. White, Lynn. “The Historical Roots of Our Ecological Crisis.” Science 155 (1967): 1205. Winter, Caroline. “Nestlé Makes Billions Bottling Water It Pays Nearly Nothing for.” Bloomberg Businessweek, September 22, 2017.

23 Christianity and the use of force Lex and Pax Christi Mary Ellen O’Connell

Humanity has relied on international law to foster peace since ancient times.1 International law, like all law, uses impartial principles as substitutes for violence and status in establishing social order. The principles always include a prohibition on the use of unauthorized force. The most extensive form of the prohibition on force is found today in United Nations Charter Article 2(4), which, together with other Charter provisions, aims “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”2 The Charter reflects centuries of effort by Christians and those of other faiths and philosophies to show respect for human life and the natural world by rejecting violence. The subject of this chapter is specifically the Christian influence on the Charter prohibition.3 The first section lays out a brief history of the Christian contribution starting with the early tradition of pacifism, then continues through the development of the Christian doctrine of just war and later natural law methodology that provided reasoned support for the doctrine’s limits on war as requirements of morality and law. The second section traces the subsequent decline of the just war doctrine as natural law methodology disappeared from jurisprudence with the emergence of the scientific method. By the mid-twentieth century, natural law was all but replaced by an amoral theory of positive law. Positivism holds that only affirmative acts reflecting voluntary consent can produce law of any kind. Under this theory, a sovereign state may withdraw consent to be bound, including to be bound by the prohibition on force. States regularly act on this conception, which helps explain the widespread, tragic incidence of war despite the UN Charter. The third section considers the possibility of reviving natural law teaching to re-animate the idea that some legal principles rest on a basis beyond consent. Natural law teaches that some legal norms are impervious to the rationalizations of aggressive states and positivist scholars. The conclusions of natural law are more consistent with the Christian teaching of peace, but any revival of natural law will require a theory that appeals to the whole of the richly diverse global community.

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Christianity and the natural law prohibition on force For three centuries, the first Christians accepted that to follow Jesus Christ required a life of humility and strict nonviolence.4 As the church grew, theologians began to develop exceptions justifying force in some situations. Eventually, using natural law methodology, theologians and jurists formed arguments justifying resort to force even by Christians. The arguments came to be known as the just war doctrine. By the seventeenth century, the great Protestant theologian and jurist Hugo Grotius saw the need for what became a secular version of the just war doctrine to overcome the Catholic-Protestant divide.5 His effort helped create a secular law to govern relations among states, but it also led to the subsequent decline of natural law, with grave implications for the prohibition on the use of force. The early Christian embrace of pacifism was based principally on Christ’s two commandments, to love God and to love one’s neighbor (Matthew 22:37–40). If a Christian is struck, she is to turn the other cheek to her attacker, rather than strike back (Matthew 5:39). Peacemakers are called “blessed” and “the children of God” (Matthew 5:9). When Christ was arrested by the Jewish and Roman authorities, his disciple Peter sliced off the ear of one of the high priest’s servants (John 18:10–11). Christ restored the man’s ear and admonished his disciple to put away his sword (Luke 22:51). These are among the most direct references to forgo violence. Indirect indications are plentiful as well. In general, the Gospels depict Christ as a gentle teacher and healer. He cared about the birds of the air and the lilies of the field and “suffered the little children” to come unto him (Matthew 19:14). These scriptural indications led members of the “early Christian Church [to refuse] to accept war as moral in any circumstances and until 170 ce Christians were forbidden to enlist” in the military.6 At the turn of the third century, the theologian Tertullian taught that Christians could not be soldiers by asking, “how will a Christian man war, nay, how will he serve even in peace, without a sword, which the Lord has taken away?”7 This stance began to change, however, as more people within the Roman Empire—a polity built through war—became Christians.8 Rather than seeking to end acceptance of the use of force by the growing numbers of converts, theologians developed new interpretations to permit war in limited form. While self-serving, this development also responded to a serious problem facing Christians. As pacifists, they would not defend themselves from attack and proved to be easy targets of nonbelievers and heretics. St. Augustine, bishop of Hippo in North Africa, introduced the first version of the just war doctrine to persuade Christian communities to act in self-defense when attacked. His diocese was victimized by members of a heretical sect known as the Donatists. They interpreted scripture strictly and concluded that Christ’s admonition to put away swords meant that other weapons, such as clubs, could be used.9 The Donatists embraced violence for, among other purposes, promoting their own version of

386  Mary Ellen O’Connell Christ’s teaching. Augustine responded by arguing that Christians facing attack could defend themselves without committing a sin. He did not, however, limit his argument to self-defense. Drawing on Greek and Roman philosophy and jurisprudence, he developed the view that force to reestablish conditions of order and peace can be morally justified.10 He included the restoration of stolen property and the promotion of Christianity as causes justifying force. He won adherents to his views with his poetic depiction of the goal of society as the collective establishment of tranquility in order.11 Yet his interpretations had much in common with those of the Donatists he opposed. Over time, Augustine’s arguments for the right to use force proved highly flexible. They were invoked to justify uses of force that had little to do with restoring order. Christians waged war to convert the world to Christianity, arguing that in an eventual global Christian order, there would be no need for fighting. War became widely accepted as a necessary evil, a tool to build the City of God—the end came to justify the means.12 By 800 ce, Christian warriors had succeeded in establishing the Holy Roman Empire. Centuries later, they launched the Crusades and eventually established vast overseas empires, treating native peoples with unspeakable cruelty. After the Reformation, Christians fought each other over theological differences, though most wars likely had more to do with the acquisition of material power and simple greed. Europe’s wars of religion finally came to an end with the signing of the Peace of Westphalia in 1648. During this long period, scholars continued to develop the just war doctrine. The most influential medieval proponent of the doctrine, St. Thomas Aquinas, systematized Augustine’s work, turning his justifications for resort to force into a legal code. Aquinas recognized the centrality of peace in Christian doctrine but also the need for limited force at times to reestablish order.13 He identified core conditions for a just war: (1) the cause had to be just; (2) the individual declaring war had to have the legal authority to do so; (3) he had to have the right intention in declaring war; (4) the war had to be necessary, in that it was a last resort and likely to succeed; and (5) the injury caused by the war had to avoid harming civilians and be otherwise proportional to the harm of the triggering cause.14 In his Treatise on Law (Summa Theologiae, I–II, 90–108), Aquinas developed these restrictions on resort to war using natural law method, which had evolved over centuries of philosophical, legal, and theological inquiry. It incorporates three aspects. People (1) use cognitive reasoning capacity to acquire meaning from (2) observations of the natural world, including human nature, in light of (3) inspiration drawn from noncognitive knowledge sources, including emotion, memory, contemplation of beauty, and discernment of divine command.15 Aquinas recognized that most law is created through consent-based positive law mechanisms, but he saw natural law method as necessary for understanding why consent binds and what restrictions should be placed on positive law to ensure a just legal order. Like Aristotle before him, he took as his starting point the insight that human beings are fundamentally social and desire to live together without violence. Nevertheless, in their fallen nature, people are prone to act in selfinterest, even to the point of violence against others in pursuit of venal ends. Law

Christianity and the use of force 387 is an aid in countering such tendencies. It fosters peaceful resolution of disputes, helping to create the conditions for virtue.16 Law supports humanity’s positive, other-oriented social order. International law serves the same purpose between communities. Grotius expressly conceived of international law as the law that supports peace at the inter-communal level.17 He followed Aquinas and other Scholastic thinkers in understanding the just war doctrine as part of international law, known in his day as the law of nations. His 1625 book on the law of war and peace became the blueprint for establishing and ordering the system of coequal states that emerged in Europe at the end of the Thirty Years’ War in 1648. Like Aquinas and Aristotle, Grotius saw the social side of human nature as dominant and considered this characteristic the “mother of the law of nature.”18 Peace is required for social life to flourish. Grotius therefore understood limits on resort to war to be a necessary part of international law and essential to the Christian commitment to peace.19 To make his interpretations acceptable to both Catholics and Protestants, Grotius asserted that international law would be no different even if there were no God. This hypothetical apparently allowed both Protestants and Catholics to cease disputing the theology of international law and instead to accept it as embodying neutral principles for peaceful dispute settlement. Though once referred to as “the Protestant science” by the Vatican, international law did become accepted by people throughout the world regardless of religious confession. Still, Grotius’s idea of law without God also began to have negative consequences for natural law. Until that point, natural law theory relied on theology for the noncognitive aspect—the knowledge and insight gained from spiritual, emotional, and other transcendent, nonmaterial sources. Without theology, legal reasoning became largely reduced to rational observation of the material world. From this narrower perspective, human beings appear selfish and prone to violent competition. It is a view belonging to Grotius’s contemporary Thomas Hobbes, who believed that human beings require coercive government control to live orderly lives. Between communities where no government exists, it is the war of all against all. Grotius’s hypothetical and Hobbes’s pessimism helped to elevate individualism and materialism over society and transcendence. The decline of the authority of the Holy Roman emperor and the pope during this era also contributed to the rise of sovereign state absolutism and the decline of natural law, including the just war doctrine. Prominent international law scholars working in the century following Grotius were generally European and Protestant. Samuel Pufendorf tried to exclude theology in favor of the emerging scientific method for analysis of international law. He relied exclusively on observations of nature and cognitive reasoning, removing the nonmaterial aspect of classic natural law method. He wanted to demonstrate that international law is a “ ‘solid science’ alongside the natural sciences.”20 Emerich de Vattel did even more than Pufendorf to undermine the natural law and, with it, restrictions on resort to war. In The Law of Nations (1758), Vattel endorsed the just war doctrine but left interpretation and compliance with it up to each sovereign’s individual examination of conscience.

388  Mary Ellen O’Connell Vattel argued that no one else, including the collectivity of other sovereigns, could judge whether a peer had formed the right intention in declaring war. For Vattel, the justice or legality of war depended on a ruler’s intentions, which were knowable only to God. Thus, it was not possible to criticize a use of force as unlawful.21 Understandably, Vattel was popular with sovereigns. His view that they were beyond earthly judgment, together with the work of political theorists such as Hobbes, added to the growing intellectual trend conceiving of law as solely the result of affirmative or positive action by sovereigns and legislatures. Nevertheless, natural law, which does not rely on voluntary action of sovereigns or otherwise, did not disappear entirely with the rise of positivism. The just war doctrine of Aquinas and Grotius was rooted in a deeply held human desire for social harmony and the inspired belief in the human capacity for altruism that is as strong as the pull of self-interest.22 A sense that there was some sort of law that existed above the mere will of sovereigns persisted throughout the nineteenth century. Such a notion could rest only on natural law. National leaders continued to declare that they were fighting in just causes—that their resort to war was a last resort, or that measures they had taken actually fell short of war. Moreover, the Catholic Church continued to teach the just war doctrine and its basis in natural law. Still, the next century would experience the effects of a weakened commitment to the moral-legal prohibition on the use of force, as the world exploded in total war, rampant civil war, terrorism, and the glorification of militarism. The century began, paradoxically, with an attempt to create a positive law against war.

Positivism, realism, materialism, and the unrestricted use of force Leading international law scholars at the start of the twentieth century worked diligently to rid international law of any vestige of natural law. As there was no positive law form of the prohibition on the use of force, this also meant that these scholars accepted the unfettered right of national leaders to resort to force as a sovereign prerogative. Even when governments adopted positive law against war, it seemed not to be really binding on militarily powerful states. Unlike areas of mutual benefit, such as trade agreements, there was little for powerful states to gain from agreements restricting resort to force as a general matter. The struggle of positivism to create a generally respected, binding prohibition on force opened international law to heavy critique from the world of political realists. Lassa Oppenheim was a leading figure in the campaign to eliminate natural law, including the just war doctrine, from international law. Oppenheim began his academic career in Germany teaching criminal law, but when advised to move to England for his health, he took up international law first at the London School of Economics, then as the Whewell Professor of International Law in Cambridge. Oppenheim followed a “ ‘hard’ sources-based legal positivism.” He wrote, “We know nowadays that a real Law of Nature does not exist. . . . Only a positive Law of Nations can be a branch of the science of law.”23 Oppenheim recognized,

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however, that positive law provided no real answer in legal theory as to how a sovereign could be bound by any rule, let alone the prohibition on force. If the law relies on consent to be made, it can be unmade by withdrawal of consent. Oppenheim apparently had no answer to this issue of existential concern to international law. He could only conclude that the decision to go to war was beyond legal regulation.24 For the rest of international law, Oppenheim apparently followed his German colleague Georg Jellinek in the quixotic theory of “self-limitation” or autolimitation. On this view, once states “consent to submit themselves to a rule of international law, [they] are bound by such rule to the same extent and degree as subjects are bound by rules of the municipal law of their state.”25 This conclusion, of course, only begs the question. H.L.A. Hart, the renowned Oxford professor of jurisprudence, argued much the same but with one gloss: law is binding because people believe it to be binding, whether regular citizens or government officials on behalf of the state.26 Hart’s answer has provided two post–natural law generations of lawyers with an apparent answer to the riddle of the binding nature of law. His insight was persuasive, given that Hart presented himself as an ardent positivist, who famously debated the Harvard natural law scholar Lon Fuller, but Hart’s point about acceptance of law is decidedly not drawn from positivism. “Acceptance” is not an affirmative act evidenced by material proof. Hart provides no details as to the legal quality of acceptance but appeals, it seems, to our common sense or intuition. In fact, positivists generally avoid explaining extrapositive aspects of law.27 The answers, in fact, lie in natural law theory. Yet natural law scholarship continued to fade throughout the century. Antiwar advocates moved generally in two directions. They championed new procedures, such as international courts, for the peaceful settlement of disputes, and they sought substantive prohibitions on the use of force. The lawyers they worked with looked to positive law but did not explain how these initiatives could truly bind sovereign states beyond vague notions of honor or acceptance. State officials could and did find reasons of national honor to break treaties. The Hague Peace Conferences of 1899 and 1907, for example, increased positive law limitations on using force and provided means of alternative dispute resolution, but these advances played no role in preventing the outbreak of World War I in August 1914. Many Christians worked strenuously to prevent and then end the First World War. Jane Addams, a social worker and committed Christian pacifist from Chicago, rose to great prominence as a leader of the international peace movement when the Great War began. She cofounded the Women’s Peace Party and other groups to advocate for a mediated end to the war and to campaign against US participation. Addams lobbied US President Woodrow Wilson to step in as a trusted, impartial figure and mediate between Germany and Great Britain.28 Another Christian leader, Pope Pius X, strove to avert the catastrophe. In July 1914, the pope sent a letter to the Austro-Hungarian emperor, Franz Joseph, expressing the urgent need to settle the Serbian crisis peacefully. Pius X died days after the outbreak of the war, some say of grief. His successor, Pope

390  Mary Ellen O’Connell Benedict XV, then worked with determination to end the war. When Benedict died in 1922, the president of the Swiss Confederation honored him in a speech to the League of Nations: “If mankind manages one day to get rid of war—and that day is perhaps as yet far distant—it will owe that priceless achievement to the principle of arbitration as proposed by Benedict XV.” Pope Benedict XVI, in his first general audience after his election in 2005, explained that he chose his name in part to recall “the courageous prophet of peace.” In addition to these Christian leaders who spoke out against the war, thousands of antiwar Christians refused to support the war effort. When conscription was introduced in the United States for the first time since the Civil War, Mennonites, Amish, and Quakers were sentenced to prison or harsh alternative duties for refusing to comply. President Wilson called war resisters “stupid” for not understanding the necessity of war. When the war finally ended, government officials at the peace negotiations sought to send the message that the war had not been in vain. Yet, the war’s opponents were ultimately vindicated in popular opinion. At the Paris peace talks, delegations strove to address the causes of the conflict. The resulting Treaty of Versailles included a variety of measures to prevent and end war. Most importantly, the treaty established the League of Nations, but it also restricted resort to force and provided for the establishment of an international court open to all states for peaceful dispute settlement. The United States did not join the League or the new court, the Permanent Court of International Justice, but in an effort to promote peace it joined France in drafting the 1928 Treaty for the Renunciation of War, better known as the Kellogg-Briand Pact. The pact fully and simply prohibited war with the assumed exception for self-defense. The leading international law scholar of the time, the Austrian Hans Kelsen saw in the Treaty of Versailles, the Covenant of the League, and the Kellogg-Briand Pact a reflection of the just war doctrine.29 He was likely attempting to infuse the new restrictions with the normative quality of the just war doctrine to counter the sense of sovereign state entitlement that had triggered the war in the first place. He also argued that state sovereignty, a theory closely related to positivism, explained states’ declining respect for the legal prohibition on the use of force.30 To help reverse the decline, however, Kelsen needed to expand his thinking beyond positivism. The world would not see a return to the natural law prohibition on force for many decades, not from Kelsen and not from the pro–international law/antiwar camp. The American Protestant theologian Reinhold Niebuhr, for example, had been a Christian pacifist prior to World War I. During the war, he abandoned this stance to dispel suspicions of disloyalty on account of his German heritage.31 He returned to pacifism for a few years after the war, but by 1934 he was on his way to creating his concept of “Christian Realism,” an internally contradictory idea given realism’s core tenet that only material power counts in life, not the spiritual, emotional, or other aspects. For realists, extramaterial concepts such as law or fairness are nonsense because they are based in the principle of equality of subjects before the law, regardless of physical strength, military assets, or wealth. One of the founders of political realism, E.H. Carr, derided international law because

Christianity and the use of force 391 it is not based on “the inherent logic of international politics, where the strength of the individual states ha[s] to be considered a crucial factor in the solution of conflicts of interest.”32 Realism departs substantially from Christianity. Carr and his fellow realists urged re-armament to ensure no military disadvantage in the inevitable competition with other states for global domination. Similarly, Carl Schmitt, the German Catholic legal and political scholar, advised the German government to reject any international law that stood in the way of national self-interest. He argued that Germany should not allow itself to be dominated by other states by allowing them to interpret Germany’s obligations under international law.33 No government, it seems, wanted to dispense wholly with international law; rather, officials wanted to pick and choose the rules they preferred. Meanwhile, communities suffering under colonial control were increasingly divided in their views of achieving liberation. On one hand, international law provided some official support for colonized peoples with its peaceful principle of self-determination. On the other hand stood the examples of oppressed peoples under the Ottoman, Austro-Hungarian, and tsarist empires who had contravened the prohibition on force and achieved liberation through war. When World War II began, Pope Pius XII called for commitment to the common good understood as peace, “tranquility in order.” Striving to counter the materialist ideologies fueling the war, he extolled the idea of equality before the law. His call preceded the brief revival of natural law at the end of the war, when legal theorists exposed the susceptibility of positivism to manipulation by the powerful.34 German courts had willingly applied positive law adopted by the Third Reich in pursuit of authoritarian control at home and abroad. The first and most important international law developments after the war, the Nuremberg and Tokyo Tribunals and the United Nations Charter, had their foundations in natural law, not in positivism.35 The natural law prohibition on force was re-instated as a norm of international law through Article 2(4) of the Charter. Article 2(4) has succeeded in a way that no treaty provision prohibiting force after the First World War did. No third world war has yet occurred, and conquest has come almost to a complete end.36 Since 1945, few fully sovereign states have suffered foreign military intervention resulting in de facto foreign control of territory, and only Russia and Israel have purported to annex the territory. In both cases, states have generally refuse to recognize the change of sovereignty as lawful.37 Outside of Europe, many peoples have achieved selfdetermination without violence, most notably in India, thanks to the leadership of Mahatma Gandhi. Nevertheless, within a decade of World War II, natural law with its religious “overtones” was again “suspect in a scientific and secular age.”38 The Soviets had built an atheist, authoritarian state with global influence. US leaders shifted their interest in international law and institutions to the realist promise of security through military hegemony. Already in his 1951 book American Diplomacy, the prominent American diplomat George Kennan advocated abandoning the “legalistic-moralistic approach” in American foreign policy, championing a policy of Soviet containment through arms races and proxy wars. The United States and

392  Mary Ellen O’Connell Soviet Union both took advantage of the yearning for self-determination and democracy among oppressed peoples everywhere, providing weapons and training in exchange for loyalty. Law and Christianity posed obvious obstacles to using military force to implement policies, even benign ones. Many Christians supported the new United Nations and other institutions designed to promote peace, international law, human rights, and global cooperation. Christians were active in opposing the use and proliferation of weapons of mass destruction. In 1963, Pope John XXIII issued his encyclical Pacem in Terris, in which he extolled the United Nations and its Charter rules against resort to military force. In 1965, Pope Paul VI pleaded at the UN for “no more war, war never again! Peace, it is peace which must guide the destinies of people and of all mankind.”39 The predominantly Protestant World Council of Churches also took a pro–United Nations and antiproliferation stand.40 In the US sphere of influence, however, the arguments of Niebuhr and Morgenthau were far more influential. Both men saw the higher moral duty of US leaders to be one of amassing military strength, not promoting international law and institutions. Morgenthau, a German Jewish international law scholar highly influenced by Oppenheim, had sought asylum in the United States during the war. He was the ideal person to make the case that the United States should consider restraint on military force to be legally infeasible and, therefore, immoral for the president to pursue. Niebuhr, like Morgenthau, believed that human beings are overwhelmingly selfish and that, therefore, international order must rest upon the threat of force against rival states. “Peace among nations ‘is gained by force and is always an uneasy and an unjust one. . . .’ Conflict is inevitable, and . . . power must be challenged by power.”41 Of course, in this sort of system, the goal is hegemony, to be the state with the most military power able to dictate to others. As a respected theologian, Niebuhr could credibly argue to Americans for the moral superiority of the United States, and thus claim that the United States was ordained to retain military superiority. In Niebuhr’s concept of “Christian Realism,” the use of force is justified to counter communism, whatever the purported requirements of international law.42 His ideas in the post-1945 era helped shift the Christian position from viewing war as always immoral but justifiable in limited situations of true necessity to the view that war in pursuit of virtuous causes is itself virtuous. Nevertheless, both Cold War superpowers did take some care to support the UN Charter prohibition on the use of force as a matter of legal doctrine.43 The United States even acknowledged the peremptory or ius cogens status of UN Charter Article 2(4) in the case brought against it by Nicaragua at the International Court of Justice for the use of unlawful military force. When the Cold War ended, however, the concept of war for good causes gained new strength. James Turner Johnson, a scholar of Christian and Islamic just war theory, has called war “a tool to be employed in the proper exercise of government to combat evil and other forms of injustice in the service of the public goods of justice, order, and peace.”44 Jean Bethke Elshtain, a theologian at the University of Chicago Divinity

Christianity and the use of force 393 School, aligned herself with the secular just war theorist Michael Walzer in supporting the use of war as a tool for achieving preferred policy objectives, such as arms control, human rights protection, promotion of democracy, and terrorism suppression. She defended the 2003 invasion of Iraq on just such moral grounds despite the almost uniform conclusion of international lawyers that the invasion was a flagrant violation of the UN Charter prohibition on the use of force.45 Belief in war as an instrument of good is quite apparent in Nigel Biggar’s book In Defence of War.46 Biggar, an Oxford theologian and Anglican priest, argues that, as a moral matter, “natural justice” trumps the law prohibiting force. Similarly, the Roman Catholic priest Drew Christiansen has argued that states have not only a moral right but a moral duty to use military force in the interest of human rights.47 This is the sort of reasoning that moved President Obama to authorize NATO’s intervention in Libya in 2011. He was “motivated by a noble, open-hearted sentiment . . . in the spirit of Reinhold Niebuhr . . . to combat evil.”48 In the case of Libya, the UN Security Council had authorized military force to protect civilians, but NATO went far beyond the mandate, joining forces with militants fighting to depose the government. This broader intervention helped to trigger a catastrophic civil war that was continuing to drag on after a decade. So, despite the Council’s authorization, in Libya the asserted moral end was used to trump the law. Moral arguments in favor of military force by Christian scholars have plainly had an impact on the contemporary understanding of the legal prohibition on force. Governments go to war today citing moral justifications more often than legal ones. They disregard the legal prohibition’s dual nature as a supreme legal and moral norm. One case exemplifies the problem: in April 2018, world media drew attention to the use of chemical weapons during the Syrian civil war. Within days of one such incident, France, the United Kingdom, and the United States attacked Syria with more than 110 cruise missiles. UK Prime Minister Theresa May was the only leader of the three countries to even issue a legal justification for the action. Her office said the UK attacked to “alleviate humanitarian suffering.”49 No suffering was alleviated by bombs and missiles. The fact that France and the United States put forward no justification underscores the diminished standing of a peremptory norm.50

Reviving natural law, renewing the prohibition on force Even as states approach a point of showing no perception of legal constraint on the resort to force, the Christian commitment to nonviolence may be reemerging after a century of decline. At the same time, international lawyers are rediscovering natural law, which bodes well for a renewed understanding of the durable and superior quality of the prohibition on the use of force. This section turns to the revival of natural law and what it may portend for the prohibition. Scholars are again turning to natural law, as evidenced by the inclusion of entries on natural law in the Oxford Handbooks on the theory and sources of international law as well as the Max Planck Encyclopedia of Public International

394  Mary Ellen O’Connell Law.51 Less directly, discussions of aspects of international law that rely on natural law are burgeoning. The ius cogens category of legal norms is drawing ever increasing attention, and, as Jerzy Sztucki has written, ius cogens is a category of natural law: “In a number, if not a majority, of writings supporting the category of an international [i]us cogens, this category is understood—explicitly or implicitly—as one of natural rather than of positive law.”52 In addition to ius cogens, scholars critiquing the realist and materialist assessment of humanity nature have turned to natural law for an alternative approach. Cambridge University’s Philip Allott, a Catholic, has exposed the fascination that world leaders have with war. He posits the possibility of finally ridding the world of the madness of war by seeing humanity’s capacity for selflessness, for prioritizing the common good. Wars, he says, are “the work of states,” and there is nothing necessary about their continuation: States are systems of ideas which include sophisticated justifications of war. . . . [T]he sordid justifications of war persist and, in the 21st century, are being strengthened by the emerging of new forms of old atavisms. They can only be overcome by a revival of the ancient idea of the essential unity of humanity.53 The idea of human unity is a natural law idea. It incorporates belief in the human capacity to live in peace under the rule of law. To revive the idea of unity will require persuading a multicultural world of the possibility. Grotius already understood this when he looked to Chinese, Hindu, Jewish, Islamic, classical Greek, Roman, and Christian sources to underpin international law, including, most importantly, the prohibition on force. Sri Lanka’s Judge Christopher Weeramantry, a Buddhist, advocated much the same approach in his 2004 book Universalizing International Law. Beyond the world’s religions, natural law can be revived through secular philosophy. Aesthetics, for example, offers proof that human beings are social by nature and capable of living selflessly with and for one another. Human beings can temper their self-interest in empathy and in the recognition of the equality of others. From this capacity, people have been able to construct legal systems within and between societies, establishing order by limiting force and providing peaceful means of dispute resolution. Aesthetic philosophy provides nonreligious proof, in support of religious teaching, that peace is the most fundamental of legal principles. Peace depends on both procedures for settling disputes without violence and a prohibition on resort to force. It is possible once again to think of the positive law as set in a frame of natural law that uses reason, observations of the natural world, and transcendent inspiration as the ground for accepting the good of law compliance, regardless of personal benefit or detriment. Interpreting the prohibition on the use of force from a natural law perspective once again reveals important differences from the positivist perspective. First, positive rules may be altered by treaty or the evolution of state practice. Scholars

Christianity and the use of force 395 regularly try to dilute the Article 2(4) prohibition by interpretations that would justify force in cases far beyond those contemplated by the Charter’s drafters. Diluting the reach of a ius cogens prohibition through interpretation is indistinguishable from derogation through creating a new treaty or claiming a new rule of customary international law. When peremptory norms are newly discerned, the discovery may lead to the invalidation of existing treaties and rules of custom.54 Similarly, interpretation can lead to greater restrictions where aggression, genocide, torture, or another peremptory prohibition is concerned, but it is not possible that an accurate interpretation can lead to lesser restrictions. In any case of doubt as to a prohibition’s reach, the presumption favors treating conduct as restricted. The other natural law norms restricting force include the principles of necessity, proportionality, and attribution. These are also durable, changing only to restrict, not permit, more violence in the world. This analysis will sound radical to many, even many Christians. For nearly a century, just war scholars, theologians, and lawyers—all influenced by realists— have sounded the louder claims, holding that amassing large armies and large economies are the only rational policy goals. The national leader who seeks a different path is supposedly exposing her society to enslavement and annihilation by stronger powers. The truth is that people live more fully through cooperation and the pursuit of legal means to resolve disputes. Humanity needs “order in tranquility,” not war.

Conclusion The greatest Christian contribution to the law governing the use of force is the fundamental concept that the resort to war is immoral. This conviction was at its purest among most Christians in the first centuries after Christ. Then exceptions developed as the church grew in size and ambition. Nevertheless, by the time of the emergence of modern international law, the Christian belief that war is abnormal and to be avoided, except in situations of true emergency—basically self-defense—remained the teaching of the church as reflected in the just war doctrine. The doctrine held that even when a just cause existed, force could be used only if necessary, proportional, and when declared by a person with authority holding the right intention. During the Christian schism known as the Reformation, Hugo Grotius concluded that the world needed a secular body of legal principle to support world order. He did much to build this secular order, which incorporated the just war doctrine. Nevertheless, Grotius opened the way for the great challenge to legal restraints on the use of force that has plagued humanity since the mid-twentieth century. The challenge would migrate to respect for law in general. Law depends on the belief that human beings can live for the good of others, not just themselves. Without this belief, law is indistinguishable from other means of creating order, principally violence, wealth, and status. Most religions, including Christianity, teach the possibility of acting for reasons of altruism. Indeed, Christ taught above all else that his followers should love God and their

396  Mary Ellen O’Connell neighbor. With Grotius’s secularization of law, the traditional rationale for why selflessness is important all but disappeared from legal analysis. It was replaced with the perspective of men like Thomas Hobbes who do not see people as capable of acting solely for the good of others—they focus on individuals and see them as capable only of self-interest based on the scientific notion of the survival instinct. With the rise of science and the decline of theology in public life in the West, law began to lose its transcendent character. It remains mostly as a tradition. In general, however, concepts of natural law have been lost in favor of positivism, which relies on the consent of the governed. When consent is withdrawn, no principle remains. Some positive law remains, however, and some sense of tradition, which means that most international lawyers are able to say the UN Charter Article 2(4) is binding. Yet fewer and fewer understand the prohibition on force as a robust form of carrying forward the Christian rejection of violence. It is that understanding which is needed to reverse the trend toward turning to military force for to solve a host of non-military challenges. To recapture the moral heart of the prohibition on force, a revival of natural law for a diverse world is needed. Only natural law explains why principles bind even powerful states that have withdrawn consent. A revival will require responses to realism, the ideology that grew up with the scientific revolution and that has largely replaced theological precepts in law. Today, realism, with its dependence on material power, has convinced politicians and even many Christians that military power is what counts. Christian realists believe the major violence of war can be used morally to accomplish good ends. A revival of natural law theory drawing on cross-cultural and cross-disciplinary sources can respond to the disrespect for law created by realism. Employing a natural law approach can reinfuse legal theory with the aspect of the transcendent, opening minds once again to the appreciation for beauty, harmony, and peace that should be integral to the understanding of law. Transcendence is a concept shared by all religious traditions and most philosophies across the globe. It is a unifying insight shared by humanity. One of the most important revelations of openness to transcendence is the social nature of human beings. People do strive to survive, but they are also capable of and delight in the flourishing of others. People are capable of forgoing force and employing nonviolent methods of legal dispute resolution. Despite selfish tendencies, humans are social beings, inclined toward cooperation and solidarity in recognition of our basic unity. These realities of human nature mean that law is possible. No legal system can rely on self-interest or punishment alone. It requires cooperation and even self-sacrifice. It requires a prohibition on the use of unauthorized force. It requires a presumption that when in doubt about the legality of a resort to force, nonviolence is required. The idea of reintroducing these concepts may seem daunting until it is remembered that they are the teaching of millennia, in contrast to the prowar advocacy of a century or two. Bryan Hehir, a Catholic priest and long-time Harvard faculty member, wrote in the immediate aftermath of the 9/11 attacks, “containing and capturing

Christianity and the use of force 397 terrorists is by definition a function of police and legal networks. War is an indiscriminate tool for this highly discriminating task.”55 This is true of most of the problems the world faces today, from poverty to climate change. False confidence in military force is sapping resources of every kind needed for the other problems that challenge society, especially protecting the poor and vulnerable. Christ knew the words of the Old Testament prophet and reflected them in all he did: And he shall judge among the nations, and shall rebuke many people: and they shall beat their swords into plowshares, and their spears into pruning hooks: nation shall not lift up sword against nation, neither shall they learn war any more. (Isaiah 2:4)

Notes 1 The standard account of international law in antiquity is Bederman. See also Neff, Justice Among Nations; Grewe; Nussbaum, 35. 2 United Nations Charter Article 1. Article 2(4) mandates that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” Among the important books on this law, see Gray. 3 While the subject of this volume is “global law,” I do not understand “global law” to be distinct from international law. International law is the system of rules, principles, and processes applicable to activity at the inter-state level. It includes principles and procedures for making, applying, and enforcing the law. Accordingly, this chapter focuses on the relationship between Christian reflection on law and force and the evolution of the international legal prohibition on the use of force. But see Domingo, The New Global Law. 4 Brownlie, 5. 5 Grotius, “Prolegomena.” 6 Brownlie, 5. 7 Tertullian, On Idolatry, ch. 19; “Concerning Military Service.” 8 Neff, 3–5, 10–11; Grewe, 108–11; Nussbaum, 35. 9 Grewe, 108. See also “The Donatists,” New World Encyclopedia, www.new worldencyclopedia.org/entry/Donatist. 10 See, e.g., “Augustine Letter to Boniface,” reprinted in Friedman, 7. See also von Elbe. Neff recounts similar but earlier ideas found in Confucianism: “War was seen as a last resort, to counteract antisocial conduct and reinforce the norms which integrated the society into a harmonious whole”: Neff, 10. 11 Augustine, De Civitate Dei, bk. 19, ch. 13. See also Thomas Aquinas, Summa Theologica, II–II, 29, i, ad 1. 12 Brownlie, 5–6. 13 See Aquinas, Summa Theologica, I–II, 96, iii. In De Regno and the Commentary on St. Matthew, for example, he writes explicitly of the province or kingdom as a cooperative union of city states in pursuit of peace. 14 Grewe, 109. See also von Elbe, 669, and Brownlie, 6. 15 O’Connell and Day, 562–80; Porter, 48–49. 16 Kaveny, 29, citing Aquinas, Summa Theologica, I–II, 91, iv. 17 Neff, 74, 78. See also Adeno. 18 Grotius, De Jure Belli ac Pacis, “Prolegomena.”

398  Mary Ellen O’Connell 19 Neff, 141; Lauterpacht, 31, citing Grotius, De Jure Belli ac Pacis, “Prolegomena,” 23. 20 Samuel Pufendorf, The Law of Nature and of Nations (1672), quoted in Porter, 27–28. See also d’Aspremont and Kammerhofer. 21 Vattel, 302. 22 Von Elbe, 684. 23 Kingsbury, 424; also Oppenheim, International Law, 92. 24 Oppenheim, International Law, 55–57; Kingsbury, 431. 25 Oppenheim, “The Science of International Law,” 332. See also Nussbaum, 234–35. 26 Hart, 227. 27 O’Connell and Day. 28 Farrell, 140–41, 150–53. 29 Kelsen, 330. 30 Ibid. 31 Childress, 467–68. 32 Carr, 186–88. 33 Schmitt, 176–80. 34 See the discussion of Gustav Radbuch’s linkage of Germany’s crimes to positivism in Fuller. 35 See Luban, Strudler, and Wasserman, 2352. 36 See Hathaway and Shapiro, esp. ch. 13, “The End of Conquest.” 37 O’Connell, “The Crisis in Ukraine—2014.” 38 Akehurst, 25. And see ch. 1 more generally. 39 See Pope John XXIII, Pacem in Terris; and Pope Paul VI. 40 See, e.g., Williamson. 41 See Elie. 42 Niebuhr, 111. 43 During the Cuban Missile Crisis, the Kennedy administration took care to make arguments that would not diminish Soviet legal duties in the area of use of force. See Chayes, 67–68. 44 See Johnson. 45 Elshtain, “The Third Annual Grotius Lecture”; Just War Against Terror. 46 Biggar, esp. ch. 6, “On not always giving the Devil the benefit of law: Legality, morality, and Kosovo.” 47 See Christiansen. 48 Brooks, “The Defection Track.” See also Brooks, “At War in Libya.” 49 Prime Minister’s Office, 10 Downing Street, Syria Action—UK Government Legal Position, April 14, 2018. 50 The US Department of Justice issued a memo arguing the President had authority under the US Constitution to attack without Congressional authorization. 51 See O’Connell and Day; Koskenniemi; Geoff Gordon; and Orakhelashvili. 52 Sztucki, 59. 53 Allott, 269. 54 Vienna Convention on the Law of Treaties, Art. 64. 55 Hehir.

Bibliography Adeno, Addis. “Imagining the International Community.” Human Rights Quarterly 31 (2009): 145–50. Akehurst, Michael. A Modern Introduction to International Law. New York: Atherton Press, 1970.

Christianity and the use of force 399 Allott, Philip. “Beyond War and Diplomacy: A Giant Step for Mankind.” German Yearbook of International Law 60 (2017): 269–313. Bederman, David. International Law in Antiquity. Cambridge: Cambridge University Press, 2001. Biggar, Nigel. In Defence of War. Oxford: Oxford University Press, 2013. Brooks, David. “At War in Libya.” New York Times, March 21, 2011. Brooks, David. “The Defection Track.” New York Times, April 1, 2011. Brownlie, Ian. International Law and the Use of Force by States. New York: Oxford University Press, 1963. Carr, E.H. The Twenty Years’ Crisis 1919–1939. London: The Macmillan Company, 1939. Chayes, Abram. The Cuban Missile Crisis: International Crises and the Role of Law. New York: Oxford University Press, 1974. Childress, James F. “Reinhold Niebuhr’s Critique of Pacifism.” The Review of Politics 36/4 (1974). Christiansen, Drew. “How to Think About Humanitarian Intervention.” National Catholic Reporter, August 22, 2014. www.ncronline.org/blogs/ncr-today/how-thinkabout-humanitarian-intervention. D’Aspremont, Jean, and Jorg Kammerhofer. “Introduction.” In The Oxford Handbook on the Sources of International Law, edited by Samantha Besson and Jean d’Aspremont, 12–13. Oxford: Oxford University Press, 2017. Domingo, Rafael. The New Global Law. Cambridge: Cambridge University Press, 2010. Elie, Paul. “A Man for All Reasons.” The Atlantic, November 2007. Elshtain, Jean Bethke. Just War Against Terror: The Burden of American Power in a Violent World. New York: Basic Books, 2003. Elshtain, Jean Bethke. “The Third Annual Grotius Lecture: Just War and Humanitarian Intervention.” American University International Law Review 17/1 (2001): 10. Farrell, J.C. Beloved Lady: A History of Jane Addams’ Ideas on Reform and Peace. Baltimore: Johns Hopkins University Press, 1967. Friedman, Leon, ed. The Law of War: A Documentary History. New York: Random House, 1972. Fuller, Lon L. “Positivism and Fidelity to Law—A Reply to Professor Hart.” Harvard Law Review 71 (1957): 630–72. Gordon, Geoff. “Natural Law in International Legal Theory: Linear and Dialectical Presentations.” In Orford and Hoffmann, The Oxford Handbook of the Theory of International Law, 279–305. Gray, Christine. International Law and the Use of Force. Oxford. Oxford University Press, 2018. Grewe, W.G. The Epochs of International Law. Edited and translated by Michael Byers. New York: Walter de Gruyter, 2000. Grotius, Hugo. De Jure Belli ac Pacis [The Law of War and Peace]. Translated by Francis W. Kelsey. Buffalo: Liberal Arts Press, 1995. Hart, H.L.A. The Concept of Law. Oxford: Oxford University Press, 1961. Hathaway, Oona A., and Scott J. Shapiro. The Internationalists: How a Radical Plan to Outlaw War Remade the World. New York: Simon & Schuster, 2017. Hehir, J. Bryan. “What Can Be Done? What Should Be Done?” America, October 8, 2001. www.americamagazine.org/content/article.cfm?article_id=1066. John XXIII, Pope. Pacem in Terris. Encyclical of Pope John XXIII on Establishing Universal Peace in Truth, Justice, Charity, and Liberty, April 11, 1963.

400  Mary Ellen O’Connell Johnson, James Turner. “Just War, as It Was and Is.” First Things, January 1, 2005. Justenhoven, Heinz-Gerhard, and Mary Ellen O’Connell, eds. Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science. London: Nomos, Bloomsbury, 2016. Kaveny, M.C. Law’s Virtues: Fostering Autonomy and Solidarity in American Society. Washington, DC: Georgetown University Press, 2012. Kelsen, Hans. General Theory of Law and the State. Translated by Anders Wedberg. Cambridge, MA: Harvard University Press, 1945. Kingsbury, Benedict. “Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law.” European Journal of International Law 13 (2002). Koskenniemi, Martti. “Transformations of Natural Law, Germany 1648–1815.” In Orford and Hoffmann, The Oxford Handbook of the Theory of International Law, 59–81. Lauterpacht, Hersch. “The Grotian Tradition in International Law.” British Yearbook of International Law 23 (1946): 1–53. Luban, David, Alan Strudler, and David Wasserman. “Moral Responsibility in the Age of Bureaucracy.” Michigan Law Review 90 (1992). Neff, Stephen. Justice Among Nations: A History of International Law. Cambridge, MA: Harvard University Press, 2014. Neff, Stephen. War and the Law of Nations: A General History. Cambridge: Cambridge University Press, 2005. Niebuhr, Reinhold. Moral Man and Immoral Society: A Study in Ethics and Politics. New York: Charles Scribner’s Sons, 1932. Nussbaum, Arthur. A Concise History of the Law of Nations. New York: The Macmillan Company, 1954. Revised 1962. O’Connell, Mary Ellen. The Art of Law in the International Community. Cambridge: Cambridge University Press, 2019. O’Connell, Mary Ellen. “The Crisis in Ukraine—2014.” In The Use of Force in International Law: A Case-Based Approach, edited by Tom Ruys, Olivier Corten, and Alexandra Hofer, 855–72. Oxford: Oxford University Press, 2018. O’Connell, Mary Ellen, and Caleb Day. “Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-Positive Norms.” In The Oxford Handbook on the Sources of International Law, edited by Samantha Besson and Jean d’Aspremont, 562–80. Oxford: Oxford University Press, 2017. Oppenheim, Lassa. International Law, A Treatise. Vol. 1. London: Longmans, Green, and Co., 1905. Oppenheim, Lassa. “The Science of International Law.” American Journal of International Law 2 (1908). Orakhelashvili, Alexander. “Natural Law and Justice.” In Max Planck Encyclopedia of International Law, edited by Rüdiger Wolfrum. Oxford: Oxford University Press, 2007. Available online. Orford, Anne, and Florian Hoffmann, eds. The Oxford Handbook of the Theory of International Law. Oxford: Oxford University Press, 2016. Paul VI, Pope. Address of His Holiness Paul VI to the General Assembly of the United Nations 4 October 1965. Vatican City: Tipografic poliglotta vaticana, 1966. Porter, Jean. Nature as Reason: A Thomistic Theory of the Natural Law. Grand Rapids, MI: Wm. B. Eerdmans Publishing Co., 2004.

Christianity and the use of force 401 Schmitt, Carl. Positionen und Begriffe im Kampf mit Weimar-Genf-Versailles 1923– 1939. Berlin: Duncker & Humblot, 1940. Reissued 1988. Sztucki, Jerzy. Jus Cogens and the Vienna Convention on the Law of Treaties: A Critical Appraisal. Vienna: Springer, 1974. Vattel, Emer de. The Law of Nations or the Principles of Natural Law, Applied to the Conduct and the Affairs of Nations and of Sovereigns. Translated by Charles G. Fenwick. Washington, DC: Carnegie Institution of Washington, 1916. Von Elbe, Joachim. “The Evolution of the Concept of the Just War in International Law.” American Journal of International Law 33/9 (1939): 665–88. Williamson, Roger. “Justice, Peace and the Integrity of Creation, the Message of the World Council of Churches.” Security Dialogue 18/3 (1987): 399–414.

24 Christianity and international criminal law Johan D. van der Vyver

International criminal law has had a checkered history. Having considered 312 international conventions some years ago, Cherif Bassiouni found that only 27 contained language indicating criminal sanction, such as “international crime” or “crime under international law,” and that “indirect enforcement” of treaty-based obligations that are backed by criminal sanctions is invariably the rule.1 The establishment of specialized tribunals to try persons perceived to be war criminals is nothing new.2 The prosecution and conviction in 1474 of Peter von Hagenbusch by Austrians for crimes against “God and man” following his reign of terror over the citizens of Breisach3 is often referred to as the first recorded international criminal tribunal.4 In more recent times, international criminal tribunals were likewise established on an ad hoc basis, and in the context of international humanitarian law almost invariably by the victorious power, following the conclusion of an armed conflict, to bring to trial members of the defeated enemy. The tribunals in question were in that sense not truly international, and were in any event not permanent judicial institutions. The establishment of a permanent international criminal tribunal for the prosecution and punishment of perpetrators of the most heinous crimes rendered punishable by international law has been long overdue. This objective was finally achieved when, on June 15 through July 17, 1998, the United Nations Diplomatic Conference of Plenipotentiaries was held in Rome, Italy, with a view to “finalizing and adopting a convention on the establishment of an international criminal court.”5 The Rome Conference culminated in the adoption, by majority vote, of the Statute of the International Criminal Court (ICC Statute),6 and the establishment of the International Criminal Court (ICC) when the ICC Statute entered into force on July 1, 2002. The adoption of the ICC Statute is perhaps the greatest achievement in international relations since the founding of the United Nations Organization in 1945. Its creation was truly “a historical milestone in the development of international criminal law and international law generally.”7

Christianity in the infancy of international criminal law Prior to the Rome Conference, the influence of Christianity in the development of principles of criminal justice to be applied within the arena of international law was not particularly spectacular. It is fair to say that the post-World War II

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development of international criminal law under auspices of the Nuremberg and Tokyo trials contributed tremendously to the development of international criminal law. Bruce Broomhall singled out a number of outstanding features which Nuremberg contributed to the development of international criminal law: holding the individual immediately liable under international law for certain core crimes (genocide, crimes against humanity, war crimes, and crimes against the peace); establishing the principle that official capacity does not exonerate the perpetrator from liability for those crimes; declining to recognize authorization of the international crime by national law as a ground of justification; opening the door for the creation of other international tribunals and for the exercise of universal jurisdiction by national courts to bring perpetrators of crimes under customary international law to justice; and establishing a historical, practical, and doctrinal link between the core prohibitions of international criminal law and the postwar international order.8 This development also brought about a certain tension in international relations, confronting, on one hand, the Westphalian tradition and its emphasis on state sovereignty with, on the other, the Nuremberg legacy that tended to subordinate state sovereignty to demands of the rule of law.9 Since the early 1990s, this dramatic development of international criminal law has received further impetus through the creation and jurisprudence of a number of ad hoc and hybrid criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). Although it would be fair to say that the principles of criminal justice developed and applied by these tribunals were in general in conformity with the perceptions of justice and equity based on Christian convictions, attributing the adoption and application of those principles to the influence of Christianity would constitute a stretch of the imagination. But this is not the case as far as the development of many aspects of international criminal law by the Rome Conference is concerned.

The initiatives of Christianity at the Rome Conference The influence of Christianity in proceedings that culminated in the founding of the ICC can perhaps be subdivided into two main categories: • •

Participation of the Faith-Based Caucus in the NGO Coalition for an International Criminal Court;10 and perhaps more prominently, Contributions of the Holy See in the drafting of important provisions in the ICC Statute.11

The NGO Coalition for an International Criminal Court On February 25, 1995, when the Ad Hoc Committee on the Establishment of an International Criminal Court was about to commence its initial deliberations, William Pace, the executive director of the International Secretariat of the

404  Johan D. van der Vyver World Federalist Movement, convened a meeting of interested nongovernmental organizations (NGOs) at its offices in New York with a view to coordinating the efforts of civil society to promote the establishment of the ICC. From this meeting emerged the creation of the NGO Coalition for the International Criminal Court (CICC), with Pace as its convener.12 Participation in that first meeting was confined to twenty-five NGOs only, but during the final phases of the pre-Rome deliberations, the numbers of active participants in the CICC increased dramatically, and in the end, altogether 134 NGOs (represented by approximately 235 activists) were accredited by the UN Secretary-General’s office to participate in the Rome Conference. Those participants represented a wide range of regional and thematic interests, including human rights, international law, women’s rights, children’s rights, victim’s rights, the right of the accused to a proper defense and the due process of law, peace and disarmament, humanitarian relief, and also religion and faith. The Faith-Based Caucus, which had already been active in New York, was reconvened in Rome during the course of the conference. An outstanding feature of the proceedings for the drafting of the ICC Statute was without doubt the positive role of the CICC. Recording the outcome of proceedings of the Preparatory Committee in New York, Christopher Hall thus mentioned the “constructive working relationship” between government representatives and NGOs, and expressed the opinion that NGO recommendations had a significant impact on proposals advanced by government representatives concerning the text of the ICC Statute.13 Subsequent to the Rome Conference, William Pace and Jennifer Schense noted that “the Coalition’s impact at the Rome Conference has been the subject of consistent high praise from governments, the UN, the media, and others.”14 According to the testimony of Bruce Broomhall, the CICC “proved to be a leading force at the [Rome] Conference,” and he noted that, overall, “the Conference displayed an unprecedented level of integration of NGOs into the process of negotiation.”15 Adriaan Bos, who chaired the Preparatory Committee up to its final session before the Rome Conference, testified that “the [NGO] Coalition’s spokespersons displayed wide-ranging expertise, and were immensely helpful and effective in bringing the [ICC] Statute into the world.”16 Secretary-General of the United Nations Kofi Annan, speaking at the World Conference of Civil Society in Montreal, Canada, spoke of “the new functional diplomacy” of NGOs that had resulted in the success of the Land Mines Convention and the Rome Conference, and expressed the opinion that a partnership between civil society and the United Nations “is no longer an option but a necessity.”17 These are but a few of the almost endless testimonies of the constructive role of NGOs in the drafting of the ICC Statute. It is difficult to assess, though, how far the Faith-Based Caucus contributed to that constructive role. My own impression was that its members overall maintained a rather passive role. On one occasion, the chair of the caucus blocked the distribution of a position paper that, inter alia, opposed the American insistence (at the time) on the competence of the Security Council of the United Nations to stifle prosecutions in the

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ICC, because—according to the coordinator of the Faith Caucus—the Unitarian Church, which she represented at the Rome Conference, “has many members in the United States who might be offended by critique of the US. position.” By and large, though, it could rightly be said that “the NGOs present . . . [were] united in their support for a successful completion of these negotiations on the establishment of a permanent International Criminal Court.”18 It might be noted for the record that attempts by the United States to subordinate prosecutions in the ICC to Security Council approval (so that the United States can veto the indictment of American nationals) was not successful. The Security Council can refer situations to the ICC for further investigation19 and can also request the ICC to defer investigations or prosecutions for a (renewable) period of twelve months in cases where the ICC and the Security Council are seized with the same situation.20 But that is it!

The role of the Holy See Among the celebrated participants in the Rome Conference was the delegation of the Holy See, comprising eleven members under the leadership of Monsignor Renato R. Martino, at the time the permanent observer of the Holy See at the United Nations. The delegation was noted for its positive contributions to the crafting of the Rome Statute with its own Christian predilections as an exclusive guide. I propose to highlight some of those contributions in several particular areas: • • • • •

The concept of gender; The distinction between enforced and forced pregnancies; Privileged communications; The proscription of weapons of mass destruction; and Judicial appointments.

It would be wrong, of course, to assume that these areas were the only ones in which the delegation of the Holy See contributed toward the drafting of the ICC Statute. The delegation threw its weight behind many of the intricate problems that had to be negotiated, it provided assistance in the forging of compromises, and it spoke out strongly against positions that either defied the principle of equal justice for all and the equal protection of the laws or were in any other way not conducive to basic principles of criminal justice. It is perhaps important to note at the outset that the Holy See delegation played a particularly active role in the design of gender-specific crimes that constituted a particular focus of the Women’s Caucus for Gender Justice in the CICC at the Rome Conference. As far as international humanitarian law is concerned, offenses involving female victims were traditionally mostly confined to ill-defined generalities, such as “outrages against personal dignity” or “humiliating treatment.” Gender-specific crimes were committed quite blatantly and with almost complete impunity as a free-for-all activity in times of armed conflict.21 “Around

406  Johan D. van der Vyver the world,” said Kathleen Barry, “prostitution is considered a necessary and even patriotic service to ‘our boys in uniform.’ ”22 This history had to come to an end. Perhaps the greatest achievement of the Rome Conference was its positive response to a plea of the Women’s Caucus for Gender Justice to mention gender-specific crimes by name and to afford concrete substance to such crimes.23 As one analyst (a member of the Australian delegation in Rome) has observed: The criminalization of violent sexual and gender-directed acts in the [ICC] Statute . . ., while not without precedent, represents a significant step forward in the international community’s treatment of these crimes.24 Including gender-specific crimes as a distinct category of war crimes, and affording to them a separate place in the list of such crimes, represented a major achievement of the Women’s Caucus for Gender Justice.25 The successes of the Women’s Caucus went beyond this. They included the addition of “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”26 in the definition of crimes against humanity, and similar proscriptions in the definition of war crimes in the case of international armed conflict27 as well as armed conflict not of an international character.28 The legislative history of these crimes included elaborate deliberations with members of the Holy See delegation over the exact meaning to be attached to the concept of gender and the distinction between “forced” and “enforced” action.

The concept of gender The concept of gender features in several of the provisions in the ICC Statute. The interpretation and application of law to be applied by the ICC must be “consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender . . ., age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”29 The ICC Statute furthermore condemns as a crime against humanity “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.”30 The reference to gender as a component of the nondiscrimination clause was hotly debated at the Rome Conference. Concerns of the Holy See were centered upon the possibility that gender might be taken to include sexual orientation,31 and this could in turn implicate, as instances of persecution, disabilities attached to homosexuality by Roman Catholicism and perhaps most of the other mainstream religions, and indeed in many national legal systems. The concerns of the

International criminal law 407 Holy See were shared by several countries where Roman Catholicism predominates and by a number of Arab states. A definition of gender was carefully crafted in negotiations behind closed doors with the Holy See (and some other delegations) in order to ensure that gays and lesbians would not come within the enumerated groups protected against acts of persecution.32 The definition of gender decided upon provides: For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.33 The concerns that prompted the definition of gender were perhaps unfounded. The ICC Statute made the prosecution of the crimes within its jurisdiction subject to strenuous threshold requirements that would preclude mere discrimination against any group of persons because of their sexual orientation. To qualify as a crime against humanity, the action taken must be part of widespread or systematic attack against the group,34 and the actus reus constituting the crime of persecution must amount to a crime in its own right, such as killing members of the group, enslaving or deporting them, severely depriving them of their physical liberty, causing them to disappear, and the like.35

“Enforced” and “forced” pregnancies The Draft Statute for an International Criminal Court that was forwarded to Rome by the Preparatory Committee included the crime of “enforced pregnancy,” which—as noted by the Holy See delegation—could implicate the prohibition of abortions and thereby implicate doctrines of the Roman Catholic Church. Concerns of the Catholic Church in regard to the increasing liberalization of abortion laws in many countries of the world therefore prompted interventions by the Holy See delegation in Rome to secure precision in ICC usage so as to make it abundantly clear that the crimes within the jurisdiction of the Court would in no way contradict those concerns. At the Rome Conference, the delegation of the Holy See therefore raised the red flag in regard to the notion of “enforced pregnancy.” Prior to the Rome Conference, the terms “forced” and “enforced” in the context of gender-specific crimes were used interchangeably and without precise conceptual differentiation. But there is a difference. Whereas “forcing” someone to do or to forbear something includes the element of overpowering that person, “enforced” action denotes some form of legal or social authorization or superior order that compels or permits the observance or endurance of certain practices. Limitations of access to abortions prescribed by law or dictated by religious doctrine could therefore indeed amount to enforced pregnancy. Forced pregnancy, on the other hand, is imposed upon a woman by the person who actually makes her pregnant. The delegation of the Holy See was successful in persuading others

408  Johan D. van der Vyver that this was the case, and “forced pregnancy” was consequently substituted for “enforced pregnancy.” The pro-life lobby in Rome, particularly the Holy See, nevertheless wanted further guarantees. For that reason, a clause was inserted in the article dealing with crimes against humanity proclaiming that the definition of forced pregnancy must not be interpreted “as affecting laws relating to pregnancy.”36 A crossreference to this provision in the article dealing with war crimes37 was intended to reinforce assurances that the Rome Statute was not concerned with the question of abortion. The Holy See thus assumed the task of making doubly sure that the language used in the ICC Statute would not perhaps lend itself to abuse at some future date to contradict doctrines of the Roman Catholic Church. In the process, the Holy See initiated a refinement of terminology by distinguishing between forced and enforced action. This in itself constituted a significant contribution to the development of international law usage. One might rest assured that national criminal justice systems throughout the world will imitate this usage for the better administration of justice.

Privileged communications The principles of criminal justice to be applied by the ICC include elaborate rules for rendering privileged communications and information inadmissible. Inadmissible evidence includes incriminating evidence and communications protected by professional relationships, press freedom, and in the context of activities of the International Committee of the Red Cross. The ICC Statute thus upholds the principle of attorney-client privilege by affording to an accused the right to communicate freely and in confidence with counsel of his or her own choosing.38 The “Rules of Procedure and Evidence” specified the privilege more precisely by emphasizing that one is here concerned only with “communications made in the context of the professional relationship between a person and his or her legal counsel.”39 The “Rules of Procedure and Evidence” also make provision for upholding the confidentiality of privileged communications made in the course of a professional relationship between, for example, a person and his or her medical doctor, psychiatrist, psychologist, or counselor.40 In the context of the present survey, it is important to note that privileged communication within the religious context was of extreme importance to the Holy See, and its delegation worked at great lengths to ensure that the confidentiality of priest-penitent confessions be respected and upheld by the ICC. In consequence of those labors, the “Rules of Procedure and Evidence” now provides: The Court shall give particular regard to recognizing as privileged those communications made in the context of the professional relationship . . . between a person and a member of a religious clergy: and in the latter case, the Court shall recognize as privileged those communications made in the

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context of a sacred confession where it is an integral part of the practice of that religion.41 This means that the priest-penitent confession within the Roman Catholic Church will, as a matter of course, be recognized as privileged.

Weapons of mass destruction At the Rome Conference, the question whether or not nuclear weapons should be included in the list of prohibited weapons was particularly controversial.42 The Vatican’s opposition to weapons of mass destruction, attested to by the Holy See delegation at the Rome Conference, has been consistently acted upon since World War II. It was initially demonstrated through the symbolic ratification by the Holy See of the Statute of the International Atomic Energy Agency of 195643 and the signing of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968.44 The Holy See more recently signed the 1996 Comprehensive Nuclear-TestBan Treaty (on September 24, 1996), and ratified the 1980 Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (on July 22, 1997), the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (on February 17, 1998), and the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (on May 12, 1999). The Holy See also ratified and consented to be bound by the 1996 Protocol II to the Convention on Prohibition or Restriction on the Use of Land Mines, Booby-Traps and Other Devices (July 22, 1997) and (on the same date) the 1995 Protocol IV to the Convention (Entitled Protocol on Blinding Laser Weapons). The dispute as to the inclusion or exclusion of nuclear weapons in the ICC Statute was mainly centered upon the question whether their use is currently prohibited as a matter of customary international law.45 In 1996, the International Court of Justice (ICJ) received instructions from the General Assembly of the United Nations for an advisory opinion on the legality under international law of the use or threat to use nuclear weapons in armed conflict. The Court was equally divided (seven votes to seven) on the question whether the use or the threat to use nuclear weapons would in all circumstances violate the norms of international law relevant to armed conflict. With the casting vote of the president, the Court finally endorsed the following general proposition: The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However . . . the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme

410  Johan D. van der Vyver circumstance of self-defense, in which the survival of a State would be at stake.46 This opinion afforded to the superpowers, who were dead against proclaiming the threat or use of nuclear weapons a crime under international customary law, a peg to hang their hats on, and nuclear weapons were in the end not included in the list of prohibited weapons specified in the ICC Statute. Mexico has subsequently submitted a proposal to the Assembly of States Parties to include nuclear weapons in the list of prohibited weapons in international armed conflicts.47 The voice of the Holy See will—it is to be hoped—have a decisive influence on the outcome of this proposal. However, it should be noted that adoption of the Mexican proposal is not likely in the foreseeable future.48

Judicial appointments When the qualifications of judges of the ICC were debated, some delegations wanted to insert an age restriction that would disqualify persons who would otherwise be eminently qualified for serving in that capacity. The Holy See strongly, and successfully, opposed the age restriction since it would amount to discrimination pure and simple. The Holy See pointed out in informal negotiations that various forms of discrimination formed the basis of many crimes within the subject matter jurisdiction of the ICC, and that it would therefore be unwise to institutionalize a form of discrimination in a statute designed to provide legal redress against other instances of discrimination.

Concluding observations The focus of this chapter has been on the contributions of Christianity, particularly the Holy See, in norm-creating endeavors of the international community of states, with special reference to the drafting of the statute for a permanent international criminal court. There is one decisive aspect that attended those contributions which, in conclusion, requires emphasis: participation of the Holy See in international norm-creation does not rest upon the incentives of political self-interests, military power, or economic strength; it is based on a commitment to a particular brand of Christianity. The Holy See has been called “the moral conscience” of the world today.49 Its uncompromising commitment to the dictates of justice remained evident throughout the proceedings that attended the drafting of the ICC Statute and other instruments centered upon the creation of the International Criminal Court. And the Holy See has exercised its standing in international relations with distinction. The Roman Catholic Church has been characterized, with a view to its role in international relations, as belonging to a category of transnational institutions referred to by some analysts as transovereigns; that is, “powerful political entities that are less than fully sovereign states, but more than just individuals who presently comprise them.”50 The Catholic Church has assumed moral leadership

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in the world that by far exceeds the confines of its own ecclesiastical household, and which seeks to engage in activity “for the good of the international community.”51 It may rightly be said that, today, the diplomacy of the Holy See “is not only recognized in international law and within the order of international affairs, but its presence is sought after and its activity is appreciated.”52 In that respect, contributions of the Holy See at the Rome Conference stood in sharp contrast to those of many government delegations whose perceptions of self-interest trumped a commitment to the basic principles of criminal justice. Israel, for example, voted against adoption of the ICC Statute because it included in the subject matter jurisdiction of the Court a war crime comprising the transfer, directly or indirectly, by an occupying power of parts of its own population into the territory it occupies;53 France had a bee in its bonnet about the prosecution of French soldiers in an international criminal tribunal and brokered a compromise in terms of which a state, upon ratification of the ICC Statute, can submit a declaration that would exclude the exercise of jurisdiction by the ICC over any war crime committed by a national or on the territory of the declaring state for a period of (no more than) seven years;54 Australia added a declaration to its instrument of ratification of July 1, 2002, proclaiming that no person shall be surrendered to stand trial in the ICC unless the attorney general of Australia has issued a certificate authorizing his or her surrender, and so on. Clearly the most blatant defiance of the rule of law and the principle of equal justice for all came from none other than the United States.55 The United States proceeded on the assumption that the ICC was to be a court “for others, not for us.” It consequently insisted on strategies that would afford to the United States government the power to veto the indictment of American nationals to stand trial in the ICC. As stated by David Scheffer, ambassador at large for war crime issues and leader of the American delegation in Rome: Any arrangement by which a UN-sponsored tribunal could assert jurisdiction to prosecute Americans would be political poison in Congress.56 William Schabas has noted: “The International Criminal Court should go down in history as one of the great diplomatic failures of the United States.”57 The Holy See might of course also be said to promote its parochial self-interests. Interventions at the Rome Conference, such as those relating to the concept of gender, forced pregnancies, and confidentiality of privileged communications, were clearly informed by doctrines upheld by the Roman Catholic Church. But there is a difference. The doctrines concerned are founded on religious conviction and a moral consciousness and not on assumed self-interests that do not even have the semblance of the dictates of justice and fair play.

Notes 1 Bassiouni, 50. 2 See Hall. 3 As to the case against Von Hagenbusch, see Schwartzenberger, 462–66; Deschênes, at 250–52.

412  Johan D. van der Vyver 4 Bassiouni, n. 1, at 2; Cavicchia, 224; Marquardt, Constitutionality of an International Criminal Court,” Columbia Journal of Transnational Law 33 (1995): 76–77; Jamison, 421; Carpenter, 230–31; Karadsheh, 248; Lin, 757; Peter, 177; Brown, 766; Bos, “Recent Developments,” 41; Adriaan Bos, “A Perspective,” 465; McGoldrick, 13; also mentioning the prosecution in 1268 of Conradin von Hofenstafen for “waging aggressive war.” 5 G.A. Res. 52/160 of 15 Dec. 1997 (annex), para. 3, U.N. GAOR Supp. (No. 49), U.N. Doc. A/52/49, at 384. 6 Statute of the International Criminal Court, U.N. Doc. A/Conf.183/9 (July 17, 1998), reprinted in 37 I.L.M. 1002 (1998) (hereafter “ICC Statute”). 7 Zimmermann, 234. 8 Broomhall, 19–20. 9 Ibid., 2. 10 See Johan D. van der Vyver, “Civil Society and the International Criminal Court,” Journal of Human Rights 2.3 (2003): 425–39. 11 See Van der Vyver, “Civil Society and the International Criminal Court.” 12 Pace and Thieroff, 391; Pace and Schense, 110–11. 13 See Hall, “The Third and Fourth Sessions”; “The Fifth Session.” 14 Pace and Schense, n. 12, at 115; see Pace, “The Relationship Between the International Criminal Court and Non-Governmental Organizations,” 209 (speaking of “the extraordinary goodwill and trust that developed between the Coalition and governments”). 15 Broomhall, n. 8, at13. 16 Bos, “Recent Developments,” n. 4, at 45. 17 “Les ONG et les Nations Unies Veulent Travailler Ensemble,” Montreal, Agence France Presse: Informations Generales (Dec. 8, 1999). 18 “Welcome,” Terra Viva 5 (June 15, 1998). 19 ICC Statute, n. 6, art. 13(b). 20 Ibid., art. 16. 21 See Reynolds, 605–06; Streains, 358; Cottier, 249. 22 Barry, 59. 23 See Streains, 360–61; Cottier, 248–49. 24 Streains, n. 23, at 357. 25 Ibid., 364; see also Moshan, 180–81 (making the same point in the context of crimes against humanity). 26 ICC Statute, n. 6, art. 7(1)(g). 27 Ibid., art. 8(2)(b)(xxii). 28 Ibid., art. 8(2)(c)(vi). 29 Ibid., art. 21(3) (emphasis added). 30 Ibid., art. 7(1)(h) (emphasis added.) 31 See Salant, 216; Sadat, 180. 32 See Sadat, n. 31, at 160. 33 ICC Statute, n. 6, art 7(3). 34 Ibid., art. 7(1). 35 Ibid., art. 7(1)(h) (requiring that persecution is to involve “any act referred to in this paragraph or any crime within the jurisdiction of the Court”). 36 Ibid., art. 7(2)(f ). 37 Ibid., art. 8(2)(b)(xxii). 38 Ibid., art. 67(1)(b); see Kreß, 336–37. 39 Report of the Preparatory Commission for the International Criminal Court, Finalized Draft Text of the Rules of Procedure and Evidence, Rule 73(1), U.N. Doc. PCNICC/2000/INF/3/Add.1 (12 July 2000). 40 Ibid., Rule 73(3).

International criminal law 41 42 43 44 45 46 47 48

49 50 51 52 53 54 55 56 57

413

Ibid. Sadat, n. 31, at 267; Bothe, 396–97. Statute of the International Atomic Energy Agency, 276 U.N.T.S. 3. Treaty on the Non-Proliferation of Nuclear Weapons, 729 U.N.T.S. 161. Kirsch and Holmes, 7. Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226, para. 105E. Mexico, in Assembly of States Parties to the Rome Statute of the International Criminal Court, Eighth Session, The Hague (November 18–26, 2009), Annex II, Report of the Working Group on the Review Conference, Appendix II (at 64). See Assembly of States Parties to the Rome Statute of the International Criminal Court, Eighth Session, New York (December 4–14, 2017), Report of the Working Group on Amendments, U.N. Doc. ICC-ASP/16/22, II. B. (para. 23) (November 15, 2017) (noting that “Mexico indicated that it would present an updated paper on its proposal after the conclusion of the United Nations Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons. Leading Towards their Total Elimination”). Migliore, 38. Terrell and McNamee, 460. Migliore, n. 49, at 38. Ibid., 36. See ICC Statute, n. 6, art. 8(2)(viii). Ibid., art. 124. France, as well as Colombia, attached an Article 124 declaration to their respective instruments of ratification, but both of those declarations were subsequently withdrawn. See Van der Vyver, “The International Criminal Court: American Responses.” See Lippman. Schabas, 424.

Bibliography Barry, Kathleen. Female Sexual Slavery. Engelwood Cliffs, NJ: Prentice-Hall, 1979. Bassiouni, M. Cherif. A Draft International Criminal Code and Draft Statute for an International Criminal Court. Dordrecht, Boston and Lancaster: Martinus Nijhoffm 1987. Bos, Adriaan. “The International Criminal Court: A Perspective.” In Lee, The International Criminal Court. Bos, Adriaan. “The International Criminal Court: Recent Developments.” In Hebel, Lammers, and Schukking, Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos. Bothe, Michael. “War Crimes.” In Cassese, Gaeta, and Jones, The Rome Statute of the International Criminal Court. Broomhall, Bruce. International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press, 2003. Brown, Daniel J. “The International Criminal Court and Trials in Absentia.” Brooklyn Journal of International Law 24 (1999) Carpenter, Allegra Carroll. “The International Criminal Court and the Crime of Aggression.” Nordic Journal of International Law 64 (1995). Cassese, Antonio, Paola Gaeta, and John R.W.D. Jones, eds. The Rome Statute of the International Criminal Court: A Commentary. Oxford: Oxford University Press, 2002.

414  Johan D. van der Vyver Cavicchia, Joel. “The Prospects for an International Criminal Court in the 1990’s.” Dickinson Journal of International Law 10 (1992). Cottier, Michael. “Rape and Other Forms of Sexual Violence.” In Commentary on the Rome Statute of the International Criminal Court, edited by Otto Triffterer. Baden-Baden: Nomos Verlagsgesellschaft, 1999. Deschênes, Jules. “Toward International Criminal Justice.” Criminal Law Forum 5 (1994): 249–78. Hall, Christopher Keith. “The Fifth Session of the U.N.’s Preparatory Committee on the Establishment of an International Criminal Court.” American Journal of International Law 92 (1998): 339ff. Hall, Christopher Keith. “Origins of the ICC Concept (1872–1945).” CICC Monitor 6 (Nov. 6, 1997). Hall, Christopher Keith. “The Third and Fourth Sessions of the U.N.’s Preparatory Committee on the Establishment of an International Criminal Court.” American Journal of International Law 92 (1998): 125. Hebel, Herman A.M. von, J.G. Lammers, and Jolien Schukking, eds. Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos. The Hague: T.M.C. Asser Publ., 1999. Jamison, Sandra L. “A Permanent International Criminal Court: A Proposal that Overcomes Past Objections.” Denver Journal of International Law and Policy 33 (1995). Karadsheh, Rose Marie. “Creating an International Criminal Court: Confronting the Conflicting Criminal Procedures of Iran and the United States.” Dickinson Journal of International Law 14 (1996). Kirsch, Philippe, and John T. Holmes. “The Rome Conference on an International Criminal Court: The Negotiations Process.” American Journal of International Law 93 (1999). Kreß, Claus. “Witnesses in Proceedings before the International Criminal Court: An Analysis in the Light of Comparative Criminal Procedure.” In International and National Prosecution of Crimes Under International Law: Current Developments, edited by Horst Fischer, Claus Kress, and Sascha Rolf Lüder. Berlin: Arno Spitz GmdH, 2001. Lee, Roy S., ed. The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results. The Hague/Boston/London: Kluwer Law International, 1999. Lin, Christa Tzu-Hsui. “The International Criminal Tribunal: Taiwan’s Last Hope.” Pacific Rim Law and Policy Journal 6 (1997). Lippman, T.W. “Ambassador to the Darkest Areas of Human Conflict.” Washington Post (Nov. 18, 1997): A19. Marquardt, Paul D. “Law without Borders: The Constitutionality of an International Criminal Court.” Columbia Journal of Transnational Law 33 (1995). McGoldrick, Dominic. “Criminal Trials before International Tribunals, Legacy and Legitimacy.” In The Permanent International Criminal Court: Legal and Policy Issues, edited by Dominic McGoldrick, Peter Rowe, and Eric Donnelly. Oxford and Portland: Hart, 2004. Migliore, Celestino. “Ways and Means of the International Activity of the Holy See.” In Church and State; Changing Paradigms. Monsignor W. Onclin Chair 1999. Leuven: Uitgeverij Peeters, 1999.

International criminal law

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Moshan, Brook Sari. “Women, War and Words: The Gender Component of the Permanent International Criminal Court’s Definition of Crimes against Humanity.” Fordham International Law Journal 22 (1998). Pace, William R. “The Relationship Between the International Criminal Court and Non-Governmental Organizations.” In von Hebel, Lammers, and Schukking, Reflections on the International Criminal Court. Pace, William R., and Jennifer Schense. “The Role of Non-Governmental Organizations.” In Cassese, Gaeta, and Jones, The Rome Statute of the International Criminal Court: A Commentary. Pace, William R., and Mark Thieroff. “Participation of Non-Governmental Organizations.” In Lee, The International Criminal Court. Peter, Matthew D. “The Proposed International Criminal Court: A Commentary on the Legal and Political Debates regarding Jurisdiction that Threatens the Establishment of an Effective Court.” Syracuse Journal of International Law and Commerce 24 (1997). Reynolds, Sarnata. “Deterring and Preventing Rape and Sexual Slavery During Periods of Armed Conflict.” Law and Inequality: A Journal of Theory and Practice 16 (1998). Sadat, Leila Nadya. The International Criminal Court and the Transformation of International Law: Justice for the New Millennium. Ardsley, NY: Transnational, 2002. Salant, Per. “International Criminal Law Principles.” In Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results. Schabas, William A. “The International Criminal Court: The Secret of Its Success.” Criminal Law Forum: An International Journal (2001). Schwartzenberger, George. International Law as Applied by International Courts and Tribunals. London: Stevens & Sons Ltd., 1968. Streains, Cate. “Gender Issues.” In Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results. Terrell, Timothy P., and Bernard L. McNamee. “Transovereignty: Separating Human Rights from Traditional Sovereignty and the Implications for the Ethics of International Practice.” Fordham International Law Journal (1994). Van der Vyver, Johan D. “Civil Society and the International Criminal Court.” Journal of Human Rights 2/3 (2003): 425–39. Van der Vyver, Johan D. “The International Criminal Court: American Responses to the Rome Conference and the Role of the European Union.” Rechtspolitisches Forum 19. Institut für Rechtspolitik an der Universität Trier (2003). Zimmermann, Andreas. “Israel and the International Criminal Court: An Outsider’s Perspective.” Israel Yearbook on Human Rights 36 (2006).

Index

Abraham 19 Action Française 158 Acton (Lord) 328 Adam 19 – 20, 22 – 3, 233 Adamus Exul see Grotius Addams, Jane 389 Adenauer, Konrad 178 agnosticism 237 Agrippa II 23 Albertus Magnus 52, 254, 256, 260, 263 Allott, Philip 394 Althusius, Johannes 112 – 24; on civil and positive laws 277; life of 112 – 13; political theory of 268, 279 – 80; Politica Methodice Digesta 276; Politics 112 – 13; on sovereignty 278; Theory of Justice 112 – 13; and universal natural law 113 Ambrose of Milan 32, 220, 235 – 6 American Civil War 390 American Revolution 326 – 7 Anghie, Anthony 80 animal: dominion over 217; human being as 43, 132, 148, 308; “natural inclinations” of 114; natural law governing 63; rights 370; sacrifice of 64; see also law animality 145 Annan, Kofi 40 Anschluß 329 Antichrist 102 Apocrypha 112 Apostle Paul see Paul the Apostle Aquinas, Thomas 51 – 66; and Augustine 386; on the common good 251; dicendum . . . dicitur 53 – 4, 64; dicendum quod 58 – 61; dicendum . . . supra dictum est 58; on human dignity 221, 222 – 4; legal theory of 52; on natural law 204; on personhood 225;

Quaestio 51; Summa Contra Gentiles 63; Summa Theologiae 51, 53, 62, 72, 76, 81, 85, 158; Treatise on Law 51; works of 85 Aquino, Landulf 52 Aratus 22 Arendt, Hannah 326, 355 Aristobulus 22 Aristotle 34, 66, 73 – 4, 88, 99; on common good and law 262; De anima 86; “friendships of utility” 314; and natural law ethics 130; Metaphysics 261; and natural science 225; Nichomachean Ethics 55, 87, 256, 260 – 1; Politics 309, 366; on rule of law 199; on slavery 244; on sociability 386; Thomas Aquinas, influence on 253 – 5 Arminianism 128 askesis (disciplina) 44 atheism 121, 160, 214, 237 Augustine of Hippo 254; City of God, The 32 – 4, 37 – 41, 43 – 4, 253, 386; and “the common” 36; and the common good 31, 36, 38 – 41; Good of Marriage, The 38; on natural law 35 – 6; On Free Will 36 – 7; Work of Monks, The 38 – 41 Austin, John 56, 61, 223 Bacon, Francis 100 Bainton, Roland H. 330 Baldus de Ubaldis 99 baptism 19, 223 Barbarossa, Frederick (Emperor) 52 Barilan, Yechiel Michael 214 Barrett, C. K. 23 Barry, Kathleen 406 Barth, Karl 339 Bartolists 5, 106

Index  417 Bartolus of Saxoferrato 99 Basel Accords 340 Bassiouni, Cherif 402 Baumgartner, Alois 303 Bayle, Pierre 127 beatitudo 55 Benedict XV (Pope) 390 Benedict XVI (Pope) 12, 288, 295 – 7, 390; Caritas in veritate 340; Deus Caritas est 309, 311; see also Joseph Ratzinger Benedictines 52 Bentham, Jeremy 206, 357 Berdyaev, Nikolai 160 Bergson, Henri 158, 185 Bernard of Clairvaux 54 Betts, Alexander 353 biblical law see law Biggar, Nigel 393 Blondel, Maurice 178, 292 Bodin, Jean: Six Books of the Republic 99, 271; on sovereignty 98, 103, 268, 273 – 4, 276 – 80; on violence 105 Boethius 254 Bos, Adriaan 404 Bourgeois, Léon 290, 293 Boutmy, Émile 327 Brentano, Lujo 180 Bretherton, Luke 357 – 8 Brett, Annabelle 325 Broomhall, Bruce 403 – 4 Brown v. Board of Education 239 Brown Weiss, Edith 369 Bruno, Giordano 100 Buss, Franz Josef von 308 Caesar 11, 23, 34, 186, 208, 219 Cajetan, Thomas 84 – 5, 92 – 3; see also Vio, Thomas de Calvinism 112 – 13, 120, 288, 326; orthodox 121, 128 Calvin, John 325 – 6, 346 canon law 55 – 6, 64, 98, 113; Althusius on 112 – 13, 119; animal rights per 366; Gentili on 100, 102; ius gentium, influence on 204; on papal power 274; utilitas, importance in 60 caritas see charity Carr, E. H. 390 – 1 Carter, Warren 33 Carthage 32, 39 Cascarelli, Joseph 52, 54 Catherine of Aragon 73 Catholic Church 180, 226 – 7, 327, 388, 408

Catholics, Catholicism 113; American 315, 332; charities 180, 342; Defensio Fidei Catholicae et apostolicae (A defense of the Catholic and apostolic faith) 85 – 6; education 179; environmentalism 366, 375; European 315; European Union 208; in France 121; and human condition/ dignity 214, 221; Maritain on 158 – 9, 161 – 2, 172; and Protestants 124, 136 – 7, 324, 328, 330, 385, 387; Roman 98, 178, 207, 314, 325, 328, 406 – 7; social doctrine 307; social teaching 311; social theory 304; social thought 226, 228, 305 – 6, 313 – 14; Trump, support of 332; World War II 329; writers 112 Catholic Social Teaching (CST) 287 – 8, 293, 298 Chappel, James 329 charities 245 charity 8, 12, 218 – 19, 290; Althusius on 117; as caritas 36, 41; Catholic 180; Christian 208 – 9, 288, 294 – 5, 299; and dignitas 221; and love 39, 186; Suárez on 86, 91 chiliasm 154 – 5 Christ see Jesus Christ Christian Democracy 185 – 7, 208, 329; Brazil 161; see also democracy Christianity: in Athens 21; Augustine’s conversion to 32; and global law 27, 72, 127, 129; history, role played by 72; in jurisprudential theorizing 26; schisms 139; see also international law: and Christianity 138; democracy; natural law: and Christianity 138 Christian Realism 390 – 2 Christiansen, Drew 393 Church of England 121 Cicero 34, 73, 99, 102 – 3, 254, 367 – 8; De Legibus 256; on dignitas 220; on persona 222 citizenship: ethics of 43; individual 281; of Paul 23 – 24; state 243 City of God see Augustine; civitas Dei civil law see law civic virtue see virtue civil war see war civitas 33, 56 – 7, 73 civitas Dei 44, 256 Clemens of Alexandria 220 Coalition for the International Criminal Court (CICC) 404; see also International Criminal Court (ICC)

418 Index Cochrane, Charles Norris 276 Cold War 178, 209, 323, 330 – 1, 293; post- 202, 208 Collegio Romano 85 Collinson, Patrick 326 colonies, colonialism 78 – 80, 124, 130, 337, 391; expansion 207; postcolonial states 203, 269, 281 Commission on Human Rights 167 Committee on the Philosophic Principles of the Rights of Man 167 “common bad” 252 common concern model 203 common good 39; and Albertus 261; and Althusius and 119 – 20; and Aristotle 34, 260; and Augustine 31 – 44, 253; bonum commune 54; in Centessimus Annus 294; and communal spirit 40; eschatological dimension of 34; and Finnis 251; and Habermas 256 – 7; in Libertas Conscientia 293; in Laudato si’ 297; and Maritain 161 – 2, 169 – 71;and marriage 39; vs material good 36 – 7; natural law 257; natural law theories of 256 – 63; and political theory 252; principle of 251 – 64; and Rawls 251; and Schuman 188; and Sorokin 292; and Thomas Aquinas 54 – 7, 64, 66, 222, 251, 253 – 6, 262 common law of humanity see humanity commonness, constraint of 257 common, the 36 commonwealth: Christian 75; global 73 – 80; individual 76; political 73, 77 communism: Christian 41; “spiritual” 42 Communism 160, 329, 339 communitarianism 222, 231 Considerations for an Ethical Discernment Regarding some Aspects of the Present Economic-Financial System (Vatican) 340 Consolidated Version of the Treaty on European Union 9, 304 Constantine (Emperor) 231, 275, 333 Convention on the Elimination of All Forms of Discrimination against Women (1979) 242 Convention on the Rights of the Child (1989) 243 Convention on the Rights of Persons with Disabilities (2006) 242 Convention Relating to the Status of Refugees (1951) 353; 1967 Protocol 353 Cooley, Charles Horton 292

corporate social responsibility (CSR) 345; see also economic order corporatist order see economic order: corporatist Corpus iuris 99, 103 – 6 cosmopolitanism 146, 148, 150, 244; anti 204; Christian 357; Stoic 209 Council of Trent 121, 136 Courtenay, William 274 Covenant of the League 390 creation 35, 37; eschatological redemption of 19; ex nihilo 279; Genesis, book of 356; as/by God 55; human stewardship of 371 – 2; interconnectedness and 373; and Locke’s political theory 236 – 7; myths of 217; Paul’s understanding of 18 – 20, 25; and redemption 221; Thomas Aquinas’ understanding of 222, 254; underlying equality of 376 crime 62; Althusius on 118 – 20; animals’ inability to commit 367; gender-specific 405 – 6; international 402 – 3; military force to address 396; punishment for 270; war 215; see also humanity Crimea 391 criminal law see law Crockaert, Pieter 72 cura 54 – 5 Damian, Peter 62, 254 Dante Alighieri 275 death 19 – 20; of Frederick William II 155; of Gentili 99; of Grotius 136; of an innocent 93 – 4; of Pico della Mirandola 224; as punishment 118, 219; of Schuman 183; sin and 25; soul, fate after 128; of Vitoria 72 Decalogue 113, 116 – 21, 277 Déclaration des droits de l’homme et du citoyen see Declarations of the Rights of Man and Citizen Déclaration international des droits de l’homme 163, 166 Declaration of Human Rights see Universal Declaration of Human Rights (UDHR) Declaration of the Rights of Man and Citizen (1789) (France) 166, 224, 327 Declaration on Principles of Equality 232, 242 Deism 151, 338; see also theism deisidaimonesteros 21 De Iure Belli ac Pacis (The rights of war and peace, or DIB) see Grotius

Index  419 De Iure Praedae Commentarius (Commentary on the law of prize and booty, or DIP) see Grotius De Koninck, Charles 162 Delbos, Victor 292 democracy 216, 261, 393; and Christianity 185 – 7, 208, 227; liberal 257; social 202; Tocqueville’s views on 310 “Democracy and Authority” (Maritain) 161, 163 De Peigny, Esther 100 Descartes 5, 84 – 5 De Soto, Domingo 85 De triplici virtute theologica, fide, spe et charitate (A work on the three theological virtues faith, hope and charity) see Suárez, Francisco Dicey, A.V. 199 dignitas 38, 219 – 22; see also dignity dignity 26, 122, 255; Catholic social teaching on 293, 298; Christian tradition of 222 – 4, 333; concept of 216, 221; democracy and 185; in Enlightenment thought 225 – 6; God and 220; human and/or the human person 160, 163 – 5, 168 – 9, 208, 214, 217 – 18; and imago Dei 356 – 7; as a legal term 216; principle of 214 – 27; in scholasticism 224 – 5; and universal human rights 208, 215, 231, 240, 323, 332; violations of 219; see also Pico della Mirandola divine love see love Döllinger, Ignaz von 328 dominion 93, 130, 371; in Genesis 217, 365 – 6; and imago Dei 222; sovereign 270, 275; see also stewardship Domingo, Rafael 209 – 10, 267, 279 Douglas, Mary 355 Dudley, Robert (Earl of Leicester) 99 – 100 Dulles, John Foster 330 Duns Scotus, John 54, 131, 222 – 3, 274 Durkheim, Emile 290 – 2 Dutch East India Company 129 Dworkin, Ronald 236 Economic and Social Council (ECOSOC) 164 – 5, 167 economic order 205, 297; Christianity and 337 – 47; corporatist 337, 344 – 45, 47; global 337 – 46 Edict of Fontainebleau 121 Edict of Nantes 121

Elizabeth I (Queen) 99 – 100 Elshtain, Jean Bethke 275 Endangered Species Act 372 environmental racism 370 Ephrem the Syrian 368 equality 34, 165; aequalitas 122; before/within the law 162, 166, 234, 237 – 9, 241; in Christian political tradition 235 – 7; in Christian scriptures 233 – 5; democratic 185; Maritain’s views on 169; political 162; principle of 231 – 46; of rights 184; sovereign 75, 201 – 2, 268 – 9; of states 206; substantive 242 – 4; three limits to 244 – 6 Equal Rights Trust 232 Erasmus 102 eschatology 155 Euhemerus 367 – 8 European Coal and Steel Community (ECSC) 178 European Convention for the Protection of Human Rights and Fundamental Freedoms (2000) 239 – 40 European Convention on Human Rights 182 European Court of Human Rights 239 European Economic Community 182 European Union 178, 183 – 4, 186, 188, 208; Britain’s departure from 337, 341; and global order 339 European University Institute 184 Eusebius of Caesarea 275, 333 Evangelical Environmental Network (EEN) 373 evil 144 – 6 exempla 101 Faith-Based Caucus 403 – 4 fascism 160, 252, 329, 337 felicitas 55 – 6 Festus (governor) 23 Fimister, Alan Paul 179 Finnis, John 257 – 9, 261 – 3 force, prohibition on 390, 393 – 5 Fouille, Alfred 293 Fourth Lateran Council 55 Fourth Republic (France)181 France, Anatole 239 Franco-Prussian War 179 Francis of Assisi 366 Francis (Pope) 288, 296 – 8, 356, 360, 365 – 6; Laudato si’ 371, 374 Franz Joseph (emperor of AustroHungary) 389

420 Index Frederick William II 155 Freddoso, Alfred 53, 62 French Revolution 327 Friedman, Thomas 337 Gadamer, Hans-Georg 25 Gaius (Roman jurist) 102 Gandhi, Mahatma 391 Garner, Robert 372 Gaulle, Charles de 159, 181 183 Gaullism 183 Gemeinschaft and Gesellschaft 291 gender 215, 231, 233; concept of 405 – 7, 411; definition of 407; equality 242, 246; theory of 242 gender-specific crime see crime Genesis, book of 22, 216 – 18, 220, 313, 356; Francis’ understanding of 366; see also dominion Gentili, Alberico 98 – 106, 205; De armis Romanis libri duo 100; De iure belli libri tres 100 – 1; De legationibus libri tres 100 – 1; De nuptiis 105; De veritate religionis Christianae 139; Hispanicae Advocarionis libri duo 100, 102; law of nations, approach to 102 – 4; other important works by 102; societas gentium 103 Gentili, Scipio 102 Gierke, Otto von 180 Gilby, Thomas 53 Glanville, Luke 269 globalism 337, 340; anti- 341 global economic order see economic order global law 1 – 2, 267, 332 – 3, 370; Christianity and 231 – 46, 267 – 81; concept of 32; and equality, principle of 267 – 81; and humanity 267; formation of 127, 129; of/ for migration 351 – 360; Schuman’s contributions to idea of 187; and universal rights 77 – 8; Vitoria on 72 – 3, 75, 79 – 80; see also sovereignty global rule of law 197 – 210 God see love God, image of see imago Dei good, the (agathon) 260 goodness: art of 105; Althusius’ understanding of 114; Aquinas’ conception of 251, 254; and dignity 223; and equality 245; and God 251, 254; moral and legal 130; Murphy’s understanding of 257 Gospel 18, 23 – 5, 68, 117, 178; message of the 341 – 2; theology 29

Gospels 64, 147; John 218; Luke 147; Matthew 39, 147 Gracchi, the 33, 45 Great Schism 223, 395; see also Reformation Gregory, Brad 324 Gregory of Nazianzus 220 Gregory of Nyssa 220 Grim, John 371 Grotius, Hugo 98 – 9, 127 – 39, 368, 374; Adamus Exul 128; De Imperio Summarum Potestatum circa Sacra 128 – 9; De Iure Belli ac Pacis (The rights of war and peace, or DIB) 86, 99, 129, 131 – 9, 205, 367; De Iure Praedae Commentarius (Commentary on the law of prize and booty, or DIP) 129, 131 – 9; De veritate religionis Christianae 129; etiamsi daremus passage 134, 138; “fixed order of teaching” 139; and international law 387, 395 – 6; and international trade 338; ius naturale and lex naturalis 130; “just war” doctrine 385, 388, 394; law of nations, influence on 131, 385 – 8; life of 127 – 9; and Luther 135 – 9; and natural law 94, 129 – 39; and Suárez 84, 86, 91 – 2; theism of 138; theological works by 129 Gui, Bernardo 52 Gundlach, Gustav 305 Guyer, Paul 147 – 8, 154 Habermas, Jürgen 256 – 7 Hagenbusch, Peter von 402 Hague Peace Conferences (1889, 1907) 289 happiness 55, 132, 225, 256; as supreme good 260 Harnack, Adolph von 42 Hart, H. L. A. 56 Hayek, Friedrich 199 Hegel, Georg 279 Hehir, Bryan 396 Henry IV 128 Henry VIII 73 Herborn Academy 112 Hiroshima 93 Hobbes, Thomas 73, 144, 199, 274, 396; on consent 205; Leviathan 256, 272 – 3, 281; and the realist legal tradition 207, 252 Holland (country of) 128 Holland, Thomas Erskine (Sir) 99

Index  421 Holy See 403, 405 – 11; 1801 Concordat with 189n14; Maritain as ambassador to 159 Hostiensis (Henry of Segusio) 274 Hotman, Jean 100 Hueglin, Thomas 276 Hugh of St. Victor 64 human condition 26 – 7, 316; Augustine’s views on 42; Kant’s views on 144; Thomas Aquinas’ views on 55, 63 human dignity see dignity human good 260 humanism, humanists 42, 98 – 9, 205, 224, 323; Augustinian 43 – 4; Christian 178; and human dignity 222 – 4; personalist 158, 168; Principes d’un politique humaniste (Maritain) 163; progressive 209; rational 208; see also Maritain, Jacques Humanisme intégral (Integral Humanism) see Maritain, Jacques humanity 185, 187 – 8; Arendt’s views of 355; Augustine’s views of 34, 43; Benedict XVI’s views of 295; challenges facing 299; Christ and 226; Christian theology and 352 – 9; cities of 333; common law of 127, 162, 168, 170 – 1, 173; crimes against 403, 406 – 8; and destiny 289; dominion and 22; Enlightenment views of 144; environment/alism and 365 – 6, 370; global law and 267; God and 43, 105 – 6, 216, 222, 224; evil propensities of 145, 147; interconnectedness of 340; “laws of” 58; of migrants 355; moral goals of 150 – 2, 203; love and 309; Paul’s views of 19, 22, 25; as persons not states 351; Pico’s views of 224; selflessness of 394; social dimensions of 292 – 4, 299, 305, 314; state of 31 – 3, 36; Thomas Aquinas’ views of 55, 225; see also Kant human nature 87 – 9; Althusius’ views on 113 – 15; Augustine’s views of 33, 36 – 7; darker elements of 42, 144, 147; Grotius’ views on 133 – 4, 138; John Paul II’s views on 294; Kant’s views on 144, 147, 149, 151, 155, 225; and libido dominandi 281; Maritain’s views on 162 – 3, 169; natural law and 58, 63, 65 – 6; self-interestedness of 386; Sorokin’s views on 293; Thomas Aquinas’ views on 130, 204 human rights 159 – 64, 168, 170 – 2; Arendt’s views on 355; Christianity

and 323 – 33; regional 202; international 167; see also Maritain, Jacques; Universal Declaration of Human Rights human worth 237 Hume, David 127 humility 39, 385; epistemic 369, 374 – 5 idolatry 18, 21, 23, 367 imago Dei 216 – 18, 222, 356, 358 Index of Prohibited Books 102 inequality 36 – 7, 42, 72; and equality 236; Old Testament 233; reducing 246; slavery as expression of 242; world 203 Inquisition 121, 124 Institut du Droit International 206 International Covenant on Civil and Political Rights (ICCPR) 237, 243 International Convention on the Elimination of all Forms of Racial Discrimination (1965) 239 International Criminal Court (ICC) Statute 402 – 11 international criminal law 402 International Criminal Tribunal for Rwanda (ICTR) 403 International Criminal Tribunal for the Former Yugoslavia (ICTY) 403 International Law Commission (ILC) 370 International Secretariat of the World Federalist Movement 403 – 4 Inter-Parliamentary Union 145 Iraq, US invasion of 393 Isensee, Josef 303 – 4, 308 – 9, 311 Isidore of Seville 89 Islam 205, 207, 392, 394 Israel 18, 217; ancient 117; contemporary 411; God of 19 – 20, 22 – 3; laws of 358; Old Testament 233, 358; New Testament 234; people named 25; scriptures of 22 Israelites 38, 113, 233 – 4 ius ad bellum 92 ius civile 209 ius cogens 394 – 5 ius commune 101, 116 ius gentium 35 – 8, 206 – 7, 209; Althusius on 116; continental conception of 206; doctrinal work 207; Gentili on 98; Grotius on 98; Maritain on 160, 163, 169 – 70; natural law and 35 – 6; roots of 209; slavery and 43; Suárez on 84 – 91; Thomas Aquinas on 204; Vitoria on 76 – 7, 79, 98

422

Index

ius gentium europaeum 206 ius humanum 101 ius in bello 92 – 3, 101 ius maiestatis 278 ius naturale 116; Grotius on 130 – 5 ius positivum 64 ius publicum europaeum 206 ius regni 278 ius religionis 101 ius scriptum vs ius non scriptum 95n11 iustitia animata 57 iustitia positiva 64 Janet, Paul 327 Jaspers, Karl 183 Jellinek, Georg 327, 389 Jenkins, Willis 371 – 2, 375 Jerusalem: Christian community in 41, 235, 253; Heavenly 38, 40; Paul’s escape from 25; Temple of 23 Jesus Christ 11, 18, 20 – 4, 26; birth and ministry 234; death and resurrection 19; disciples of 344; and money 346; New Testament 40, 218 – 19; order of 105; and Paul 324 Jesuits, Jesuit order 84; education 85; Gundlach 305; Lecler 330; NellBreuning 304; Suárez 205 Joan of Arc 180 John XXIII (Pope) 12, 288, 305; Pacem in Terris 288, 331, 392 John Chrysostom 220 John Damascene 220 John of the Cross 181 John Paul II (Pope) 288, 292, 294, 331 Johnson, James Turner 392 Jordan, Mark 63 Judaism 207, 366, 368 juridical law of Moses 113, 118 – 19; see also law; Moses Justice, Peace, and Integrity of Creation movement 372 Justinian (Emperor) 98 – 9; Corpus iuris of 103, 105 – 6; Roman law 102, 106 just war 74, 84 – 94, 106, 161, 386, 393; see also war Kant, Immanuel 39, 127, 143 – 55; on community 150 – 4; Conflict of the Faculties 155; Critique of Judgement 152 – 3; Critique of Pure Reason 152; on evil 144 – 6; and human dignity 221, 223, 225 – 6; on peace 146 – 50, 152 – 4, 209; Perpetual Peace 143,

146 – 150, 152 – 3, 155; political philosophy of 143; predispositions 145; Religion within the Bounds of Mere Reason 143 – 4, 149, 152, 155; religious themes 143; and Thomas Aquinas 207, 222; Zum ewigen Frieden 154 – 5 Kellogg-Briand Pact 390 Kelsen, Hans 390 Kempshall, M. S. 261 Kennan, George 391 Ketteler, Wilhelm Emmanuel von 307 – 9, 313 Khaitan, Tarunabh 239 Kohler, Josef 180 Königswinter Kreis 305 Koskenniemi, Martti 204, 206 Koslowski, Peter 303, 315 Krijtenburg, Margriet 179 Kuttner, Stephan 64 Laband, Paul 180 Lactantius 231 – 2, 367; Divine Institutes 235 Land Mines Convention 404 Laplace (Marquis de) 237 Las Casas, Bartolomé de 79, 328 law 63; animal 365 – 77; antidiscrimination 238 – 40, 242 – 3, 245 – 6; biblical 35, 113, 115 – 17, 119; civil 88, 95, 103 – 4, 113, 119, 123, 137, 223, 277, 368; common 113 – 19, 160, 162, 170, 368; criminal 64 – 5, 403; customary 60 – 1, 268, 270, 409 – 10; divine 55, 58, 103 – 4, 223; eternal 55; and equality 166; feudal 119; fundamental law (lex fundamentalis) 113; human 87 – 90, 94, 223, 272, 277; international 145, 165, 204, 209, 270, 273, 279, 288, 355; interstate 279; Justinian 106; manorial 119; moral 17 – 27, 116; Mosaic 113, 117 – 19, 217; national 103; positive 64, 76, 113 – 19; private 76, 123; public 76, 98; Roman 24, 103, 105, 119, 275, 368; “soft” 340; theory of 171; urban 119; of war 99; see also canon law; global law; natural law; St. Paul law of nations 88 – 90, 100, 102 – 4; secularization of 104 – 6; see also Gentili, Alberico; ius gentium law of nature 95, 103, 135, 272 League of Nations 145, 206, 390

Index Lecler, Joseph 330 legal theory: of Althusius 112 – 13, 124; of Grotius 129, 139; of Maritain 169; natural 387; of Thomas Aquinas 52, 65 – 6 Leibniz, Gottfried Wilhelm 84 – 5 Lejeune, René 179 lex 384 – 97 lex aeterna 204 lex divina 277 lex humana 204 lex fundamentalis 113 lex naturalis 58, 130 – 1, 135, 204, 277 lex positiva 61, 64 – 5 Libya 393 Lincoln, Abraham 307 Liszt, Franz von 180 Locke, John 85 – 6, 144, 222, 309; on the commonwealth 277; political theory 236, 252; Second Treatise 256; toleration, defense of 325 Lombard, Peter 54, 72, 274 Louis IX 56 love 37; 1 Corinthians 254; Benedict XVI on 309; brotherly 152, 185; and charity 39, 186; Christianity and 188; democracy and 185; divine 43, 275; filial 38; God’s 44, 237, 288, 291; of God 116–17, 218, 234, 253; Gospel of John 218; mutual 89; of neighbor 116, 234, 288, 313, 357–8; self- 314; uniting power of 293; virtuous living and 54 Lücker, Hans August 179 Lutheran church, Lutheranism 121, 127, 158, 189, 288 Luther, Martin 99, 102, 127, 325; Bondage of the Will, The 25; and Grotius 135 – 9 Machiavelli, Niccòlo 99, 306 Macintyre, Alasdair 331 Maduro, Nicolás 332 Mair, John 72, 85 Mann, Thomas 183 Marcus Aurelius 219 Maritain, Jacques; life of 158 – 9; Du régime temporel et de la liberté 158 – 9; droits de l’homme et la loi naturelle, Les 162 – 3; Humanisme intégral (Integral Humanism) 159 – 62; human rights, views on 159 – 64, 168, 170 – 2; Principes d’un politique humaniste 163; Universal Declaration on Human Rights, role in 164 – 73

423

Maritain, Paul 158 Marxism, Marxists 290, 326, 331, 338 materialism 387, 388 – 93 Maurras, Charles 158, 160, 332 Mauss, Marcel 291 May, Theresa 393 Meilaender, Gilbert 219 Meinvielle, Julio 162 Melanchthon, Philip 99 Mendoza, Bernard de 100 migrants, migration 31, 355 – 6; forced 352, 354; international 351; “survival” 353, 358 – 60 Milbank, John 274, 276 Mill, John Stuart 329 Milton, John 128 Mittendorfer, Rudolf 179 modernity 309, 324; anthropology of 308; Christianity and 214; rejection of 226; opposition to 280; potestas absoluta of 279 modern state 56, 171, 279 – 81; European 104, 106 Molina, Luis de 79 Mommsen, Theodor 23 Monnet, Jean 178 Mosaic law see law Moses 115, 118, 306 Mounier, Emmanuel 160, 311 Moyn, Samuel 161, 208 Murphy, Mark C. 257 Nagle, John 374 nationalism 185, 244, 327, 333, 337, 373 nationalisme intégral (France) 160 National Labor Relations Act (NLRA) 312 natural law (ius naturale) 17, 19 – 20, 58, 103 – 4, 170 – 2, 204; Greco Roman idea of 98; Grotius on 129 – 35; and law of nations 129 – 131; reviving 393 – 5; “will of God for men” 113 – 14; see also Althusius, Johannes; Grotius, Hugo; ius naturale natural rights and liberties (iura et libertates naturali) 119 – 20 Nazi era 181; war criminals 58 Negretto, Gabriel 272 Nell-Breuning, Oswald von 288, 304 – 5, 309, 311, 316 New Testament 17, 113 Niebuhr, Reinhold 338, 393 Noah 324, 372, 373 non-governmental organization (NGO) 31, 326; Christian 342

424

Index

nongovernmental organization (NGO) Coalition for the International Criminal Court (CICC) 403 – 5 notitia 57 Nuremberg trials 403 Obama, Barack 393 Ockham see William of Ockham O’Donovan, Oliver 244 Oldenbarnevelt, Johan van 127 – 8 Oppenheim, Lassa 388 – 9 Origen 220 original sin see sin Oumansoff, Raïssa 158 – 9 Pace, William 403 – 4 Pacem in Terris (John XXII) 392 pacifism 384 – 5, 389 – 90 Padgen, Anthony 104 papal authority 74 – 5 Papinian 62 Pareto, Vilfredo 293 Parsons, Talcott 291 Passmore, John 371 Pastoral Constitution 226 Paul VI 159, 183, 288, 294 Paul the Apostle 17; Acts of the Apostles 17, 20 – 4; and “apostolic discipline 39; and Athens 21 – 3; to the Corinthians 235, 290 – 1, 358; freedom and slavery, views on 19; on individual and collective interests 33; and moral law 17 – 27; on love 254; and the mystical body of Christ 288; Philippians, letter to 254; Roman citizenship 23 – 4; Romans, letter to 17 – 20; teachings of 40; travels of 324; on salvation, universalization of 219; on slavery 235, 324; theological anthropology of 19; on Thessalonians 39, 234, 324 – 5; universal moral law, contributions to the question of 24 – 7; veritas in caritate 295; writings 218 Pausanias 367 Pax Christi 384 – 97 Peace of Augsburg 121 Peace of Westphalia 143, 205, 280, 386, 403 peace pacts 143; see also Kant, Immanuel Péguy, Charles 158 Pelt, Jean-Marie 179 Pennera, Christian 179 personalism 160, 208

Pesch, Heinrich 288 Pétain (Marshal of France) 180 – 1 Peters, Anne 365 Philip III 86 Pico della Mirandola, Giovanni 224; “Oration on Human Dignity” 224 Pinay, Antoine 183 Pinchot, Gifford 373 Pistoia, Cino da 99 Pius V (Pope) 85 Pius X 389 Pius XI (Pope) 288 Pius XII (Pope) 288 Plato 43, 130 Plotinus 33 Poidevin, Raymond 179 Pojman, Louis 236 – 7 political power 72 – 4 Pomponius 99 Pontifical Academy of Social Sciences (PASS) 297 populism 33, 208, 332 – 3; nativist 204 Populorum Progressio 288 Porphyry 33 positivism 158, 384, 388 – 93, 396 Post, Gaines 53 potentia absoluta 268, 271, 279 praeceptum 61 – 3 practicae rationis 58 predestination 128 pregnancy 405, 406, 407 – 8, 411; see also sterilization prostitution and human trafficking 1, 42, 342, 353, 406 Protestants 112 – 13, 206, 224; and Althusius 121, 124; and capitalism 338; evangelical 332, 372; and Grotius 136, 205; and human rights 325 – 30; see also Catholics; Reformation Pseudo-Dionysius 254 public authority 199; global 75 – 7; for war 93 Pufendorf, Samuel von 84, 338 Purdy, Jedediah 373 Rainolds, John 100 Ramus, Peter 112 ratio 63 – 5 Ratio Studiorum 85 Ratzinger, Joseph (Cardinal) see Benedict XVI Rawls, John 251, 257, 262

Index  425 realism 203, 388 – 93; national 208; see also Christian Realism Reed, Esther 358 Reformation 143, 206 – 7; CounterReformation 206 Refugee Convention 353 – 5, 359 Reid, Thomas 127 Renaissance 160, 221, 223 – 4, 368 Reynaud, Paul 181 rights and liberties: private 123; religious 120 – 1; social 121 – 4 Ritter, Moyn 330 – 1 Robert Schuman Centre for Advanced Studies (RSCAS) 184 Rochefort, Robert 179 Rome Conference 404 Rosenberger, Michael 372 Roth, François 179 Rousseau, Jean-Jacques 127 rule of law 144, 403; global 197 – 210; contestability of 198 – 201; justifications for 200; narratives of 197 – 8; secular understandings of 201 – 4; thin/thick 208 rule of men 199 Rule of St. Benedict 53 Sallust 34 Schabas, William 411 Schoenholtz, Andrew 354 Scholasticism 101, 114, 130, 204, 221, 324; and human dignity 224 – 5; and individual rights 325; and moral philosophy 324 School of Salamanca 72, 76, 78, 205, 224 Schmitt, Carl 206, 279, 391 Schmoller, Gustav von 180 Schuman, Robert 3, 178; life of 179 – 84 Schütz, Alfred 292 Scully, Matthew 371 – 2 secularization 204; Grotius on 139, 396; of the law of nations 104 – 6 Seneca the Younger 22, 99, 219, 367 Shakespeare, William 179, 181 Simmel, Georg 291 – 2 Simpson, John Hope 355 sin 20; original 144; pride (superbia) 35 slave labor 80, 217 slavery of humans 31, 34 – 6, 42 – 3, 407; Aristotle’s views on 244; and Christendom 219; Israel, rescue from 233 – 4; laws regarding 88, 91; Paul’s views on 235, 324; prohibition on 242; of prisoners 90; sexual 406

slavery of the soul 19 – 20, 25, 308 Smith, Adam 225, 338 Smith, Steven 244 social contract 113, 223, 231, 272, 277, 290 Social Gospel 288 socialism 287, 290 social theory 290 – 3, 295; Catholic 304 Socrates 21 solidarism 204, 287 – 8, 290 – 3 solidarity 185, 187 – 8, 203, 209, 360; in Catholic social teaching 293 – 9; and Christianity 287 – 99, 343, 356 – 59; idea of 287 – 8; framing and discussions of 290 – 3; networks of 312; principle 304, 313 – 4; subsidiarity and 306, 309, 315 – 16, 340 Sorokin, Pitirim 292 – 3 sovereignty 56, 79, 267 – 81; Althusius on 112, 120, 278; Bodin on 98 103, 271, 280; changing meaning of 279; and Gentili 98, 103 – 6; of God 120, 330; Hobbes on 272, 280 – 1; and international law 268 – 71; national 184, 337, 341, 362; permanent 370; political theory of 98; and power 275; and private property 207; and responsibility 378; of rule 144; territorial 185; see also state sovereignty Spanish Civil War 159, 329 Special Court for Sierra Leone (SCSL) 403 Spinoza, Baruch 256 Stark, Rodney 338 state sovereignty 103, 200, 204, 206; Gentili’s views on 106; and global law 267 – 70; Hobbes’ understanding of 272, 276, 280; and international legal system 355; and international migration 360; limitations imposed on 329; Kelsen’s argument 290; “modern” 56; Shuman’s views of 187; Oppenheim’s definition of 270; Westphalian emphasis on 403 Statute of the International Criminal Court (ICC Statute) see International Criminal Court (ICC) Statute sterilization 406 stewardship 369, 371 – 2, 374 Suárez, Francisco 84 – 94, 131; Defensio Fidei Catholicae 85 – 6; De legibus ac Deo legislatore 85 – 7, 90 – 1; De triplici virtute theologica, fide, spe et charitate

426 Index 85 – 6, 91; Disputationes metaphysicae 85; law of nations 86 – 91; life of 84 – 6; on just war 91 – 4 subsidiarity 187, 209, 288, 313 – 15; in Caritas in Veritate 296; in Centessimus Annus 294; and Christianity 303 – 16; in Sollicitudo Rei socialis 293; see also Isensee, Josef symbolic interactionism 292 synderesis 114 Synoptic Gospels 33, 218 Syria 39; civil war 393 Sztucki, Jerzy 394 Temple, William 338 Ten Commandments 116 – 17 terrorism 388, 396 – 7; suppression 393 terror: logic of 43; state 58 Tertullus 23 TeSelle, Eugene 33 Tertullian 99, 220 Teubner, Gunther 312 theism 6, 138, 151, 209, 224; monotheism 207, 210; polytheism 21, 217 Theodosius the Great 235 Theophilus of Antioch 220 Thessalonians see St. Paul Thirty Year’s War 137 Thomas Aquinas see Aquinas, Thomas Tierney, Brian 325 Tillich, Paul 338 Tokyo trials 403 Tocqueville, Alexis de 291, 310 – 11, 313 Torah 17, 19, 25 Treaty of Versailles 390 Treaty on the European Union 312 Troeltsch, Ernst 42 – 3 truth 18, 20, 295; Augustine on 34, 36 – 7, 254; Christian 21; of God 58; forsaking of 19; Maritain’s belief in 168, 171; partial 264 Tucker, Mary Evelyn 371 Ukraine 391 Ulpian 99, 102 UNESCO 159; Maritain and 165 – 8, 171 United Nations 145, 154, 201, 206, 402; Charter 243, 268 – 9, 391; Christian support of 392; General Assembly 164 – 5, 172, 243, 269, 351, 378, 409; and Maritain 159, 164, 158, 172; replacing 267

United Nations Diplomatic Conference of Plenipotentiaries 402 United Nations High Commissioner for Refugees 352 United Nations Security Council 404 – 5 United Nations Universal Declaration 329, 331 Universal Declaration of Human Rights (UDHR) 165 – 72, 328 universal rights 77 – 8 utilitas 59 – 60, 256 Vatican Council: First 328; Second 159 – 60, 221, 226 – 7, 330 Vattel, Emerich de 205, 387 – 8 Veracruz, Alonso de la 78 Verbum Dei 57 Vereenigde Oostindische Compagnie (VOC, or United East India Company) 136 Vermeule, Adrian 252 Vienna Convention on the Law of Treaties 268 – 9 Villey, Michel 324 – 5 Vio, Thomas de 84; see also Cajetan, Thomas Virgil 99 virtue 163; ethical 253; civic 3, 43 Vitoria, Francisco de 72 – 80; De potestate civilii 73; Gentili and 98, 102, 107; and global public authority 75 – 8; life of 72 – 3; and papal authority 74 – 5; on political community and power 73 – 4; see also ius gentium Waldron, Jeremy 198, 236 – 7 Walras, Léon 293 Walsingham, Francis (Sir) 99 Walzer, Michael 326, 393 war 37; Althusius’ views on 116; civil 43, 388; Gentili’s views on 101 – 2, 106; Grotius’ views on 136; justification of 131, 394; Kant’s views on 145 – 8; laws of 103; proxy 391; as a tool 106, 393; for religious reasons 106; Schuman’s views on 186 – 7; see also Cold War; just war water 246, 369 – 71 weapons of mass destruction 392 Weber, Max 291, 338 Wedderburn, Kenneth William, Lord of Charlton 303, 316

Index  427 Weeramantry, Christopher 394 Weiler, Joseph 208 Westphalia, Peace of see Peace of Westphalia White, Lynn 366 Whitman, James Q. 215 – 6 Wight, Martin 279 William of Ockham 54, 131, 134 Williams, Paul 342 Williams, Roger 225 William the Silent 225 Wilson, Woodrow 389 – 90 Wolterstorff, Nicholas 237 Women’s Caucus for Gender Justice 406

World Conference of Civil Society (Montreal, Canada) 404 World Council of Churches 372 World Federalist Movement 403 World War I, 145, 389, 178, 180 World War II 93, 145, 164, 178, 202 Schuman during 181 – 2, 184 xenophobes 333 Xenophon 99 Zeno of Elea 260 zoon politikon 308, 366 Zuckert, Michael 53 – 4 Zum ewigen Frieden see Kant