Possibility of Religious Freedom: Early Natural Law and Abrahamic Faiths 9781108423953, 9781108539319

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the possibility of religious freedom At once a universally held human right and a flash point in the political sphere, religious freedom has resisted legal, political and scholarly efforts to define its parameters. Karen Taliaferro explores a different approach to the tensions between the aims of religion and the needs of political communities, arguing that religious freedom is a uniquely difficult human right to uphold because it rests on two competing conceptions of law, human and divine. Drawing on classical natural law, Taliaferro expounds a new theory of religious freedom for the modern world. By examining conceptions of law in Sophocles’ Antigone, Maimonides’ Guide of the Perplexed, Ibn Rushd’s Middle Commentary on Aristotle’s Rhetoric, and Tertullian’s writings, The Possibility of Religious Freedom explains how expanding our notion of law to incorporate natural law can mediate conflicts of human and divine law and provide a solid foundation for religious liberty in modernity’s pluralism. Karen Taliaferro is an Assistant Professor in the School of Civic and Economic Thought and Leadership at Arizona State University. She has held fellowships at Princeton University’s James Madison Program and Georgetown University’s School of Foreign Service-Qatar, as well as an NSEP Boren Fellowship in Morocco, where she served as a Peace Corps Volunteer.

LAW AND CHRISTIANITY

Series Editor John Witte, Jr., Emory University Editorial Board Nigel Biggar, University of Oxford Marta Cartabia, Italian Constitutional Court / University of Milano-Bicocca Sarah Coakley, University of Cambridge Norman Doe, Cardiff University Rafael Domingo, Emory University / University of Navarra Brian Ferme, Marcianum, Venice Richard W. Garnett, University of Notre Dame Robert P. George, Princeton University Mary Ann Glendon, Harvard University Kent Greenawalt, Columbia University Robin Griffith-Jones, Temple Church, London / King’s College London Gary S. Hauk, Emory University R. H. Helmholz, University of Chicago Mark Hill QC, Inner Temple, London / Cardiff University Wolfgang Huber, Bishop Emeritus, United Protestant Church of Germany / Universities of Heidelberg, Berlin, and Stellenbosch Michael W. McConnell, Stanford University John McGuckin, Union Theological Seminary Mark A. Noll, University of Notre Dame Jeremy Waldron, New York University / University of Oxford Michael Welker, University of Heidelberg The Law and Christianity series publishes cutting-edge work on Catholic, Protestant, and Orthodox Christian contributions to public, private, penal, and procedural law and legal theory. The series aims to promote deep Christian reflection by leading scholars on the fundamentals of law and politics, to build further ecumenical legal understanding across Christian denominations, and to link and amplify the diverse and sometimes isolated Christian legal voices and visions at work in the academy. Works collected by the series include groundbreaking monographs, historical and thematic anthologies, and translations by leading scholars around the globe.

books in the series The Possibility of Religious Freedom: Early Natural Law and the Abrahamic Faiths Karen Taliaferro Catholic Social Teaching: A Volume of Scholarly Essays edited by Gerard Bradley and E. Christian Brugger

The Immortal Commonwealth: Covenant, Community, and Political Resistance in Early Reformed Thought Davey P. Henreckson Great Christian Jurists in American History edited by Daniel L. Dreisbach and Mark David Hall Great Christian Jurists and Legal Collections in the First Millennium Philip L. Reynolds English Ecclesiastical Lawyers: A History of Their Life and Work R. H. Helmholz Law, Love and Freedom: From the Sacred to the Secular Joshua Neoh Great Christian Jurists in French History Olivier Descamps and Rafael Domingo Church Law in Modernity: Toward a Theory of Canon Law between Nature and Culture Judith Hahn Common Law and Natural Law in America: From the Puritans to the Legal Realists Andrew Forsyth Care for the World: Laudato Si’ and Catholic Social Thought in an Era of Climate Crisis edited by Frank Pasquale Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties John Witte, Jr. Great Christian Jurists in Spanish History Rafael Domingo and Javier Martı´nez-Torro´n Under Caesar’s Sword: How Christians Respond to Persecution edited by Daniel Philpott and Timothy Samuel Shah God and the Illegal Alien Robert W. Heimburger Christianity and Family Law John Witte, Jr. and Gary S. Hauk Christianity and Natural Law Norman Doe Great Christian Jurists in English History edited by Mark Hill, QC and R. H. Helmholz Agape, Justice, and Law edited by Robert F. Cochran, Jr and Zachary R. Calo Calvin’s Political Theology and the Public Engagement of the Church Matthew J. Tuininga God and the Secular Legal System Rafael Domingo How Marriage Became One of the Sacraments Philip L. Reynolds Christianity and Freedom (Volume I: Historical Perspectives, Volume II: Contemporary Perspectives) edited by Timothy Samuel Shah and Allen D. Hertzke The Western Case for Monogamy Over Polygamy John Witte, Jr. The Distinctiveness of Religion in American Law Kathleen A. Brady Pope Benedict XVI’s Legal Thought Marta Cartabia and Andrea Simoncini

The Possibility of Religious Freedom early natural law and the abrahamic faiths KAREN TALIAFERRO Arizona State University

University Printing House, Cambridge C B 2 8B S , United Kingdom One Liberty Plaza, 20th Floor, New York, N Y 10006, USA 477 Williamstown Road, Port Melbourne, V I C 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108423953 D O I : 10.1017/9781108539319 © Karen Taliaferro 2019 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2019 Printed in the United Kingdom by TJ International Ltd. Padstow Cornwall A catalogue record for this publication is available from the British Library. ISBN

978-1-108-42395-3 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To Freya and Zeyneb, memory eternal.

Contents

page xiii

Preface

xviii

Acknowledgments 1

Religion and Law in Late Modernity Modernity, Reason and Law Law as Human: A Story of Modernity and Rationality Adrift in Modern Freedom: Tocqueville, Authority, and the Role of Religion Liberalism, Democracy, and Religious Freedom Religious Freedom: Where Are We Today? Freedom of the Person or the Community? Liberal Neutrality Epistemological Divergence: Hobbes and Higher Knowledge The Dilemma of Religious Freedom Democratic Solutions, Democratic Complications Natural Law Natural Law as Mediating Law Natural Law and Religious Freedom: A Proposal Objections to Natural Law Conclusion

2

Antigone: The Tragedy of Human and Divine Law A Tale of Two Laws Hubris’ Two Faces Antigone’s Readers Hegel: Conflict to Achieve Right Antigone’s Agonistic Politics? The Impossibility of Antigone The Impossibility Thesis: Sophocles’ Gods and Ours Natural Justice in Aristotle’s Interpretation of Antigone ix

1 2 2 5 7 7 11 13 17 19 21 23 23 25 28 29 32 34 36 44 44 46 48 49 53

x

Contents

Ismene: Democracy’s Peril and Promise Antigone, Natural Law, and Religious Freedom 3

Maimonides’ Middle Way: Teleology as a Guide for the Perplexed From Alluding to Articulating: Aristotle and the Formation of Natural Law Theory Kala¯m, Philosophy, and Maimonides’ Method Maimonides and Natural Law Classes of Law Saadya’s Alternative Conclusion

4

Between Sharı¯ʿa and Human Law: Ibn Rushd and the Unwritten Law of Nature The Need for Islamic Natural Law Philosophy Ibn Rushd and Philosophy Ontology of the Unwritten Law Ibn Rushd’s Unwritten Law and Aristotle’s Natural Justice Epistemology of Ibn Rushd’s Natural Law: Elite Knowledge and Common Knowledge Ibn Rushd’s Unwritten Law and Islam The Natural Law as Real Law Un-Islamic Unwritten Law? Unwritten Law, Obligation, and Voluntarism: Natural Law in Jurisprudence and Theology Natural Law in Jurisprudence: Maslaha and Reason in Creation ˙ ˙ Natural Law in Theology: Al-Aslah and Voluntarist Justice ˙ ˙ Conclusion

5

Arguing Natural Law: Tertullian and Religious Freedom in the Roman Empire Why Tertullian? Tertullian’s Epistemology: Reason without Philosophy The Uneasy Relationship between Athens and Jerusalem Believing the Unbelievable: Credibile Quia Ineptum Est Reason, Revelation, and Nature The Father of Western Religious Freedom Natural Law, Human Rights, and Tertullian’s Defense of Religious Freedom Divine, Human, and Natural Law in Tertullian’s Defense of Religious Freedom Beneficial Religion Mediating Human and Divine Laws

57 59 61 61 65 70 72 76 81

83 83 85 86 87 89 93 93 96 99 99 101 102

104 104 107 107 110 112 115 115 117 120 121

Contents

Tertullian in Contemporary Perspective: Faith and Reason in the Public Sphere Conclusion: Paradox and the Possibilities of Religious Freedom Appendix: Abbreviations for Tertullian’s Works Conclusion: Natural Law, Modernity, and Aporia Beyond Religious Freedom: Natural Law and Other Human Rights Beyond Political Theory: The Study of Nature Beyond Theory: The Practices of Natural Law and Religious Freedom in Society Moving Forward: Religious Freedom and the Way of Aporia Epilogue: Religious Freedom in Qatar

xi

123 124 126 128 132 133 136 139 142

Bibliography

145

Index

154

Acknowledgments

I am indebted to three remarkable scholars for guiding this project from its first life as a dissertation to its present form. Joshua Mitchell’s mentorship, from the early days of Plato’s Republic at Georgetown to the desert of Doha (and eventually that of Tempe), is unmatched, and I hope to carry the education I received from him to my own students. Tim Shah provided unwavering support and encouragement at every step of this book, and his own personal and professional commitment to religious liberty remains an inspiration. Charles Butterworth’s cheerful support and collegial but firm commitment to intellectual engagement with thinkers past and present, in addition to his foremost expertise in Islamic thought, were indispensable supports to both this project and my formation. This book benefited greatly from a manuscript workshop in my home department at Arizona State University, for which I am grateful to Owen Anderson, Matthew Franck, Terry Kleven, Joshua Parens, and Luma Simms, as well as to Paul Carrese and Carol McNamara for the support in making such an event possible. I thank also my colleagues at the School of Civic and Economic Thought and Leadership; the life of the mind in a community of friends and colleagues is not to be taken for granted. Sincere thanks to John Berger and John Witte, Jr. at Cambridge University Press for taking on this project and seeing it to completion, as well as to Alwyn Harris and Derek Gottlieb for their superb editing and indexing support. An earlier version of Chapter 4 appeared in the Journal of Islamic Studies (“Ibn Rushd’s Natural Law: Mediating Human and Divine Law,” Volume 28, Issue 1, January 1, 2017, pp. 1–27) and is reprinted here with the permission of Oxford University Press. Numerous friends and colleagues have left their stamps on this manuscript. Nadia Oweidat’s untold generosity in providing Arabic instruction in person and from across the world cannot go unacknowledged, but her devotion to Islamic thought has remained an inspiration and springboard for thought throughout my work. Julia Schwarz’s willingness to read earlier drafts was a labor of love, and I could have asked for no better editor, nor comrade in arms, along the way. Bruce Douglass’ patient viii

Acknowledgments

xix

guidance was crucial in organizing my thoughts and the book’s argument. Greg Forster has generously loaned his time and mind for years, and I remain grateful for his ongoing mentorship. Robert Louis Wilken graciously shared portions of his manuscript of Liberty in the Things of God: The Christian Origins of Freedom, and my own chapter on Tertullian is better for it. Paul Marshall and Nina Shea provided the spark that would become an idea for a dissertation later on. Father Alan Crippen helped inspire much of the work that would culminate in this book, and I am thankful for his outstanding friendship, shining example of Christian love and civility, and tireless mentorship throughout the decades. Kathryn Stejskal, Lorraine McCrary, Cindy Searcy, Maggie Perry, and Natalie Peters deserve special mention for their roles in the formation of this book (and its author). Finally, the ideas in this book were conceived in the distant, in space and character, village of Tilouguite in the Atlas Mountains of Morocco during my Peace Corps service. I owe a very real debt of thanks to my dear friends and colleagues there, who will never know the fruits of our conversations and life together. The James Madison Program’s Thomas W. Smith postdoctoral fellowship at Princeton University was immensely valuable, and the intellectual and personal friendships from that year remain a treasure. I am grateful for the support of the Bradley Foundation, a grant from which provided a very fruitful year of uninterrupted research and writing without teaching duties. The Institute for Humane Studies of George Mason University as well as the Acton Institute and the Intercollegiate Studies Institute also provided financial and professional support, and I thank the staff and donors of these organizations. I owe a great personal and professional debt to the community at Georgetown University’s School of Foreign Service in Doha, Qatar, where I benefited from a year with excellent support in every way for completing this project; we remain grateful for their friendship and support in a difficult time. Saving the best for last, my husband Carlos deserves volumes of thanks. His unwavering love and his faith in me, in addition to the very real sacrifices he continues to make for my intellectual and professional path, deserve more pages than the book itself. He and our living children, Isaac and Vera, are beautiful signs of divine presence in human life.

1 Religion and Law in Late Modernity

“Each party’s lifestyle is completely antithetical and antagonistic toward the other.”1 So declared a New York State Supreme Court Justice regarding Naftali and Chavie Weisberger in a 2015 ruling. The Weisbergers, a Hasidic Jewish couple and parents of three children, had divorced in 2008 in a religious court (beth din), and though Chavie had initially been granted primary custody of the children, she was bound by the agreement to raise them in the ultra-Orthodox Hasidic Jewish faith.2 By 2012, however, her lifestyle, including her home life with the children, no longer reflected ultra-Orthodox Jewish practice, and Naftali sued Chavie for custody in civil court. Naftali won custody on the grounds that Chavie was not upholding the religious divorce agreement, which the secular court considered to be as binding. The decision was later overturned by another civil court, and the children are being raised with both secular and Hasidic influences in their lives.3 This case raises not a small number of difficult questions, few of which yield clear answers. What it does expose, however, is the precarity of a world in which the only categories of law are human and divine. The case portrays the tragedy of a clash between divine law, which Naftali sought to follow in raising the couple’s children as Hasidic Jews, and human law, which allows a person such as Chavie to leave her faith without thereby losing her children. With only these two categories of law, however, no middle ground was possible; “each party’s lifestyle” – including which law one invoked – was antithetical to the other. Something more is needed. In a world in which “law” can only mean “human law” or “divine law,” religious freedom becomes especially complicated, for it leaves unanswered the question of which authority is higher – the divine law to which a religious person owes allegiance, or the human law that declares religious freedom a legal, or even 1

2 3

Sharon Otterman, “When living your truth can mean losing your children,” New York Times, May 25, 2018, www.nytimes.com/2018/05/25/nyregion/orthodox-jewish-divorce-custody-ny.html. Hasidism is a subset of ultra-Orthodox Judaism. Otterman, “Living your truth,” and WBUR Boston, “For those trying to leave ultra-Orthodox communities, courts can play major role,” Here and Now, June 14, 2018, www.wbur.org/hereandnow/2018/ 06/13/leaving-ultra-orthodox-community; Weisberger v. Weisberger, 2017 NY App. http://nycourts.gov /reporter/3dseries/2017/2017_06212.htm.

1

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The Possibility of Religious Freedom

human, right in the first place. The central claim developed in this chapter is that religious freedom as a legal concept has a tension – even conflict – built into its very essence, for it represents human law’s acceptance of the legitimacy of a discrete divine law. Thomas Hobbes recognized this; this is why the Church of England had to be subsumed by his Leviathan. This tension has only been exacerbated in subsequent centuries, for – as in Hobbes’ day but to a much greater degree – religious pluralism increases the number of divine laws active in society, multiplying the potential for conflicts between human law and any number of sources of divine law. Hence, the greater the religious pluralism, the greater the challenges of religious freedom. This is not to denounce religious pluralism; rather, it is a call to recognize the challenge of religious freedom for what it is, which is essentially the challenge of reconciling two (or more) competing sets of law, human and divine. My account of religious freedom, then, proceeds in three parts: first, I discuss law in the modern and late modern contexts, in which both reason and law are understood in exclusively human terms, arguing that the ever-expanding array of choices and the loss of traditional strictures on social life actually leave humans more, rather than less, in search of religious moorings – yet also committed to expansive freedoms. Secondly, I discuss religious freedom in the context of liberalism and democracy, showing how the latter two phenomena contribute to what I term the “dilemma of religious freedom,” in which one must choose between the sovereignty of human law or that of divine law. Finally, I suggest that the best available basis for religious freedom in the late modern era is an expanded conception of “law” meaning not only human law, nor human and divine law only, but also, crucially, natural law, which mediates the perennial conflict between human and divine law and provides an end and order to law itself.

MODERNITY, REASON, AND LAW

Law as Human: A Story of Modernity and Rationality The separation of law from nature is a modern phenomenon. To ancient Greeks, as early as the Presocratics, nature, divinity, and law were intimately intertwined; as one commentator puts it, “nature was divine, physis was nomos.”4 The medieval linkage of human, divine, and natural law is well known; cursory knowledge of the Treatise on Law in Aquinas’ Summa Theologica provides the clearest, but by no means exclusive, picture of medieval confidence in reason’s ability to know about not only human law but of about God through natural law. This does not preclude early positivists; indeed, Thrasymachus’ insistence in Plato’s Republic that justice is 4

Tony Burns, “Sophocles’ Antigone and the history of the concept of natural law,” Political Studies 50 (2002), 548, quoting Victor Ehrenberg, Sophocles and Pericles (Oxford: Blackwell, 1954), 35.

Religion and Law in Late Modernity

3

the interest of the stronger reflects early, serious engagement with the idea that justice and law are human constructs only. Still, legal positivism (i.e., the idea that law is a strictly human creation) remained for most of history a minority view.5 Modern historical and intellectual developments would change this. The separation of law from tradition and, most importantly for our purposes, from the will or mind of God, gained traction in early modernity, ushering in with it social contract theory and birthing much of modern political philosophy as we know it.6 This legal and philosophical innovation seemed initially to liberate societies to govern themselves rather than be tied to the sometimes inscrutable will of God. In hindsight, though, this liberation came at a price. Ultimately a rejection of metaphysical foundations, untethering law from the will of God has meant that it is tethered only to the will of humans – and as with the law of God, the law of humans turns out sometimes to be a frightening thing. This ascent of legal positivism paralleled the ascent of philosophical rationality, as understood in a peculiarly modern sense. Just as law became human only, rather than human and divine and natural, so too did reason trim its sails. No longer the quasi-divine reason residing in the immortal soul, as, for instance, Plato’s analogy of the charioteer might suggest,7 post-Enlightenment reason effectively immanentized the quest for truth, erasing its divine aspects (Greek, Christian) and harmony with nature (Stoicism). This newer version of rationality, which underwrites modern law, is the exclusive purview of human beings rather than a spark of the divine, a purely immanent rationality worthy of its own Enlightenment cult. Reason understood as such – what I henceforth refer to as “rationality” or “rationalism,” as distinguished from the older understanding of “reason” I want to deploy in discussions of natural law – typically, though not necessarily, promotes a progressive vision of life, morality, and law that seeks to cure suffering and overcome all obstacles to human desire and happiness; after all, if all rationality is man’s, then it is for man to determine his own ends. White refers to this concept as “immanent infinitude,” that is, the idea that human rationality can be called upon to “subdue 5

6

7

In the twentieth century, legal positivism is most famously associated with H.L.A. Hart’s The Concept of Law, but its origins continue back through modern history through Jeremy Bentham (1748–1832), John Austin (1790–1859), David Hume (1711–1776), and Thomas Hobbes (1588–1679), the last of whom I address in this chapter. Though these thinkers vary considerably in their concepts of law, they share the idea that law, for human purposes, is a human creation – whether explicitly, through the command of the sovereign (Austin, Bentham, and Hobbes), or simply through the removal of any metaphysical or religious aspect (Hume). Importantly, none of this requires a denial of the existence of a divine, but simply the position that in human society, law does and should come exclusively from humans. This is not to disagree with John Finnis’ chronology, in which the idea of positive law originates far before the modern era in French theological humanists’ writings of the twelfth century and in the thirteenth in the works of Thomas Aquinas. See John Finnis, “The truth in legal positivism,” in Robert P. George, ed., The Autonomy of Law (Oxford: Clarendon Press, 1996), 195–214. Still, these writers, while recognizing positive law as a valid form of law, did not assert law as such to be limited to positive law. See Phaedrus 246a–254b.

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nature and reform the recalcitrant qualities of self and society.”8 And indeed this rationality has made good on much of its promise; no one can deny the tremendous gains in medicine, technology, and even social norms that have occurred since this revolution of reason. Still, if the problem with retaining the divine aspects of reason and law was that the gods were too cruel and controlling, then reducing them to human constructs alone has not solved the problem. If rationality is purely human, there seems to be little standing in the way of a calculating, utilitarian ethic in social life, an ethic easily translated into human law. Unsurprisingly, therefore, this modern confidence in human rationality has in more recent decades been met with the postmodern suspicion that reason and law are nothing more than the will to power, a mask for the strong to dominate the weak under the guise of a supposedly universal Reason that isn’t truly universal, nor, perhaps, truly reasonable.9 When the smoke has cleared from modernity’s exaltation of reason and postmodernity’s deconstruction of it, though, it is difficult to see what, if anything, is left. If the Enlightenment relieved us of God, and man’s distinguishing feature, reason, proved to be nothing other than the will to power, there seems to be little remaining basis for law, ethics, and politics – or, indeed, for knowledge at all. These already murky epistemological waters become yet more opaque in matters of religion. Modernity’s embrace of purely human rationalism attempted to eradicate the perennial tension between knowledge and faith by subsuming all knowledge under the umbrella of science, whether social or natural. But while that science and rationalism have cast doubt on the mythical, metaphysical, and mystical elements of religion, they have not managed either fully to supplant the personal and social roles that religion has always filled, or provide an answer to the deepest questions concerning what human beings can, in the final analysis, know. At the same time, however, a postmodern deconstruction of the idea of truth seems both undesirable and self-defeating as the only alternative to a strong modern rationalism, for without the possibility of discernible knowledge, discourse, even though itself, breaks down. In such epistemological quicksand, there is no publicly available way to ascertain true religious faith, doctrine, practice, or heritage. The twenty-first century, then, perhaps finds us chastened, having gained epistemological humility: we see that a strong rationalism cannot save us, but radical skepticism leaves us wanting both as souls and societies. This humility can lead to an expansiveness of religious horizons, creating an exhilarating sense of liberation from inherited patterns, traditions, and dogmas, for we realize that we cannot claim certainty on any given creed. But whether this ends in formal secularism, as in 8

9

Steven K. White, Ethos of a Late-Modern Citizen (Cambridge, MA: Harvard University Press, 2009), 12. White cites Foucault, Horkheimer, and Adorno as leading the postmodern rejection of modern rationalism, but I would locate the shift further back, in Marx’s thought, with a more developed version in Nietzsche’s. See White, Ethos, 11–12.

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France or Turkey, or in pluralism, as in the United States, with this expansiveness often comes a great deal of tension on a given social fabric. This is because the proliferation of religious and value systems – the “alternatives” of which Taylor writes – at once pluralizes the erstwhile common base of a society’s mores and laws and increases the demands for religious accommodations to existing legal and social norms. In other words, late modernity’s epistemological humility increases religious pluralism, which heightens the need for religious freedom because we cannot know, or at least agree upon, ultimate truths, so there must be freedom for a wide swath of religious communities and practices. Adrift in Modern Freedom: Tocqueville, Authority, and the Role of Religion Already, then, we can see how the rise of human rationality and human law ended in a world replete with demands for greater religious freedom. The story doesn’t end here, however, for the same epistemological humility that leads to expansive freedom can also create a tendency to clamp down on freedom. Humans are social and political creatures, we have learned over and over, and unbounded freedom and options tend toward a felt need for mooring in a society that senses itself to be increasingly untethered from any common core of values on which to base public discourse and shared life, law, and politics. On this human need for moorings, Alexis de Tocqueville wrote that human beings, while they love freedom, have a deep psychological need for that freedom to have boundaries. In a democratic age, he wrote, hierarchies in both religion and politics disappear – a scenario at least as familiar in our own time as it was in Tocqueville’s. “Where there is no authority in religion or in politics,” then, “men are soon frightened by the limitless independence with which they are faced.”10 Tocqueville recognized the human need for boundedness, yet he saw its decay in a democratic age marked by freedom and equality. Without the restrictions of place, social role, and class that accompanied past eras, the democratic citizen is freed from constraints. His desires proliferate accordingly, until he is left in the misery of chasing them aimlessly: “A man will build a house in which to pass his old age and sell it before the roof is on; he will plant a garden and rent it just as the trees are coming into bearing; he will . . . settle in one place and soon go off elsewhere with his changing desires.”11 Religion, however, serves as an “essential palliative for the democratic soul that is prone to attend singularly but without satisfaction to the immediacy of desire.”12 It provides an authoritative framework of understanding and acting in the world that not only cuts off certain behaviors and ways of life by imposing moral rules, but also 10

11 12

Alexis de Tocqueville, Democracy in America, trans. George Lawrence, and ed. J. P. Mayer (New York: Harper Perennial, 1988), 444. Tocqueville, Democracy in America, 536. Joshua Mitchell, The Fragility of Freedom: Tocqueville on Religion, Democracy and the American Future (Chicago, IL: University of Chicago Press, 1999), 201.

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subordinates one’s desires and channels them toward an (at least perceived) higher good. Of course, this mooring is also one of the functions of law: law provides clear lines about how people, individually and together, are to act. In this light, the rise of conflicts over religion, including religious freedom, is wholly unsurprising. The search for mooring is universal; the chosen means of mooring are at odds. That is, those whose confidence lies in human reason will seek to clamp down on the uncertainties of late modernity through human law and politics, whereas those who find ultimate meaning in religion will seek boundaries through its means. Either way, however, both sides may seek to impose their own limits on others. Thus it is no surprise that the twenty-first century has seen a rise not only of nationalist movements in advanced liberal societies but also of what are termed “strong religions” (i.e., religions that make substantial demands on their adherents).13 This is what Joshua Mitchell refers to as “the paradox of freedom and obedience,”14 namely, the idea that greater freedom leads humans to seek greater obedience. For in a world shorn of strictures, if Tocqueville is correct, human beings will seek something to provide mooring, boundaries – perhaps especially those dealing with the perceived metaphysical or divine aspects of life. Still, it is clear that there is no going back. The religious and moral homogeneity of premodern life are no longer tenable, having been eroded by various encounters with science, philosophy, and an increasingly globalized world in which technology renders insularity impossible. Religious pluralism and religious freedom are both facts and demands of late modern life. What remains to be answered, then, is how such varied individuals and communities can live together, settling differences and cooperating in society, in a world in which knowledge and consensus prove so elusive. For barring the possibility of discernible truth and common knowledge, politics becomes an arena of power plays, an endless ago¯n with no clear starting points for cooperation or pursuit of the common good. From epistemology to ethics to politics, then, contemporary citizens find themselves on uncertain ground when it comes to religion and its role in the public sphere, including religious freedom. It is against this epistemological and religious backdrop that I situate the following project. If I am right, and the struggle of religious freedom is the struggle between two competing sets of laws, divine and human, then harmonizing them is perhaps, in the final analysis, impossible. In short, humans will never arrive at a perfect union of reason and revelation, church and state, religion and politics; efforts to prioritize one over the other as a matter of principle typically erode, rather than advance, the gains in equality and freedom achieved by the very liberalism that gives rise to religious freedom. To seek a perfect harmony would be to remove ambiguity from what are usually deeply complex and 13

14

See Gabriel A. Almond, R. Scott Appleby, and Emmanuel Sivan, Strong Religion: The Rise of Fundamentalisms around the World (Chicago, IL: University of Chicago Press, 2003). Mitchell, Fragility, 194.

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often oblique moral questions. This sort of moral certainty is neither epistemologically nor politically tenable in our late modern era. What I propose instead, then, is a re-examination of traditions of natural law that, because they lie between the heaven of divine law and the earth of human law, may be not only our best but our only option for retaining some of the comfort, the structure, and the guidance of law in an era in which certainty is elusive but unbounded freedom is frightening, even chaotic, while resisting the artificial certainty – and violence – of law as exclusively human or exclusively divine.

LIBERALISM, DEMOCRACY, AND RELIGIOUS FREEDOM

Religious Freedom: Where Are We Today? Contemporary engagement with the idea of religious freedom can be grouped into three roughly hewn and overlapping categories, which I term “Jurisprudential,” “Liberal,” and “Critical-Theoretical.” The Jurisprudential theorists, such as Michael McConnell, Micah Schwartzman, Richard Garnett, Kathleen Brady, Steven D. Smith, Christopher Eisgruber, and Lawrence Sager, deal primarily with American law as it interacts with religion, usually focused on First Amendment jurisprudence. Liberal approaches are characterized by assumptions of autonomy and human choice as the basis of freedom; in this category one finds such thinkers as John Rawls, Ronald Dworkin, Brian Leiter, William Galston, and Martha Nussbaum. Finally, the Critical Theory school of thought, which has evolved over the past few decades, includes some overlap with the Liberal school but questions some of its fundamental assumptions, including its structural secularism and a focus on the individual over the community.15 Elizabeth Shakman-Hurd, Saba Mahmood, Peter Danchin, and, to some extent, Ce´cile Laborde belong to this cohort, among others. I primarily address the ideas of the latter two groups in the present chapter, as the philosophical and ideological disagreements between the Liberal theorists and the Critical Theorists account for a great deal of the legal controversy that eventually makes its way downstream to questions of jurisprudence and legal interpretation, but without making explicit these disagreements and conflicting assumptions about the nature of law, justice, and religion, the jurisprudential aspect of religious freedom can only be marked by conflict and confusion. The title of this book recalls Winnifred Sullivan’s seminal The Impossibility of Religious Freedom, which argued that legally ensconcing religious freedom is both conceptually and practically impossible because human law cannot comprehend 15

David DeCosimo has written critically but helpfully on what he terms the “new genealogy” of religious freedom and its proponents; see “The new genealogy of religious freedom,” Journal of Law and Religion 33 (2018), 1–39. His category of the New Genealogy overlaps with my Critical Theorists, and what he terms “foundationalists,” while not discussed at length in the article, would encompass both the Jurisprudence and Liberal schools in my terminology.

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the experiential nuances of religion and should therefore shift to the “accommodation of difference” more generally.16 Sullivan further clarified her rationale for claiming that religious freedom is legally impossible in her self-described address to American liberals in the wake of the 2014 US Supreme Court decision of Burwell v. Hobby Lobby. The decision of this case states that closely held companies objecting on grounds of conscience to the provision of certain contraceptives need not provide such health services in their insurance policies, pursuant to the Religious Freedom Restoration Act.17 To Sullivan, this decision illustrates perfectly her thesis in The Impossibility of Religious Freedom, namely that the judgment of what constitutes acceptable religious practice vis-a`-vis religious freedom laws is necessarily arbitrary. In her words: The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system’s right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis.18

In other words, and assuming, pace Sullivan, that the law is nothing more than a human construct (i.e., all law is human law), the parameters of religious freedom are necessarily arbitrary and unprincipled because human law lacks the epistemic resources to discern true or good religious practice.19 Given these difficulties, 16

17

18

19

Winnifred Sullivan, The Impossibility of Religious Freedom (Princeton, NJ: Princeton University Press, 2005), 149. A 1993 law, henceforth referred to as RFRA, as amended by the 2000 Religious Land Use and Institutionalized Persons Act. Winnifred Sullivan, “The impossibility of religious freedom,” The Immanent Frame, July 8, 2014, http://blogs.ssrc.org/tif/2014/07/08/impossibility-of-religious-freedom/. Emphasis added. As a slight aside, one is left wondering why Sullivan does not bother considering the harm principle as a basis on which to decide which religious claims are granted protection. Similarly, she disregards the RFRA’s standard of allowing all religious practice except that for which there is a compelling state interest to regulate, which then must be regulated by the least restrictive means. Whatever their shortcomings, these are at least intelligible standards by which to adjudicate claims of religious freedom, such that it can hardly be said that there are no principles by which to distinguish acceptable from unacceptable practices. However, it would seem that perhaps any legal interference in one’s religious practices is unacceptable to Sullivan. In the 2001 Florida case detailed in Sullivan’s book (Warner v. City of Boca Raton), for instance, the plaintiffs were required to remove cemetery memorials beyond a certain size for their loved ones that were, while religiously inspired, not considered by the court to be required practices in their respective religions. While it is disputable whether the regulation was necessary, it hardly seems that the decision was entirely unprincipled – the plaintiffs selected this cemetery for their loved ones’ burials, which entailed a contract between them and the cemetery, the regulations of which were presumably made available at the time of plot purchase. Furthermore, the plaintiffs’ religions – Orthodoxy, Catholicism, Judaism, and Protestant Christianity – were by no means without intelligible teachings and traditions, even if the individual consciences of the plaintiffs could not be so clearly discussed. The regulations and even the court’s decision are certainly disputable, but Sullivan’s claim that this sort of decision must necessarily lack a principled basis strikes the reader as exaggerated.

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Sullivan’s prescription is to give up on the concept of religious freedom altogether. She asks, “What would be lost if law focused not on the special case of religion but on the accommodation of difference generally?” Her answer: Not much. To Sullivan, religion as an entity or composite set of beliefs, practices, rituals, et cetera, should not be singled out for protection. Instead, it can – and indeed should – be parceled into its constituent parts such that religions would be protected de facto, but not de jure: “Without an explicit protection for religion, guarantees of freedom of speech, of the press, and of association would continue to protect most of those institutions, including religious ones, usually thought necessary for a free democratic society.”20 This is a striking statement; religion, in this reading, is not only implicitly primarily institutional, but is also only worth protecting insofar as it is “necessary for a free democratic society,” not on its own terms. Sullivan writes from the vantage point of late modern liberalism, a tradition inaugurated by John Rawls21 and tweaked by Ronald Dworkin.22 This is an intellectual tradition that argues for, and sometimes assumes, the necessity of not only the proverbial “wall of separation” between church and state but even the shuttering of the public square’s doors to religious belief at all. Brian Leiter, for instance, echoes Sullivan in calling for the end of legally protected religious freedom, though he proposes in its place protections for conscience more than speech, assembly, and press. Leiter asks whether the difference between religious and nonreligious beliefs and practices is substantial enough to warrant special legal protection for the former. His conclusion is strikingly similar to Sullivan’s above: “there is no principled reason for legal or constitutional regimes to single out religion for protection.”23 To arrive at this, Leiter first identifies what he takes to be the defining features of religion, features that build on the modern notion of purely immanent rationality: religion produces categorical demands on action; it does not “ultimately answer to evidence and reasons,” it includes a “metaphysics of ultimate reality,” and it produces “existential consolation.”24 But these traits, he claims, do not make religion special – these things could be said about any number of other types of belief. There are, 20 21

22

23 24

Sullivan, Impossibility, 149. In both his earlier A Theory of Justice and his later works, including Political Liberalism, Rawls theorizes that the use of directly religious reasons in the public sphere is illiberal because such reasons are not publicly intelligible and therefore accessible to all citizens. From this necessarily follows what is commonly referred to as the “privatization” of religion (i.e., the idea that religious belief pertains to the individual and to belief, not to the community and to reason). As such, it is both inaccessible to and inappropriate for the public sphere, which is governed by reason and which concerns the common, not individual (only) good. I have in mind Dworkin’s more general framing of the public sphere as one of individual choice and autonomy most significantly evaluated in the priority of the right – and indeed, of rights – over the good. However, his call in Religion without God (Cambridge, MA: Harvard University Press, 2013) for a conception of religious freedom grounded in a general “right to ethical independence” (p. 133) rather than in any sort of conception of religion qua religion, indicates the depth of the divide he envisions between religion and the public sphere. Brian Leiter, Why Tolerate Religion? (Princeton, NJ: Princeton University Press, 2012), 66–67. Leiter, Why Tolerate, 34, 47, 52.

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however, both epistemic and utilitarian justifications for allowing the liberty of conscience. Citing John Stuart Mill’s “epistemic libertarianism,”25 Leiter grants that there may be occasions in which we should tolerate beliefs that are held despite their incompatibility with the “standards of evidence and reasons that have been vindicated a posteriori since the scientific revolution.”26 It is not clear on what grounds Leiter concedes this point, however, for he ultimately holds that “religious belief . . . really is marked by its insulation from the only epistemically relevant considerations.”27 In other words, there can be no relevant epistemic standards by which we determine which anti-scientific beliefs might be acceptable and which are not, so why should conscientiously held irrational beliefs ever be tolerated? His only answer appears to be the Rawlsian, deontological one, namely that individuals in the original position would agree that we should have this liberty.28 This is tangential to the point at hand, however; what matters is that people hold many such unjustified beliefs, and though we may have to put up with such beliefs, it is unclear to Leiter why we should single out from among them religious beliefs for special legal protections.29 Leiter and Sullivan, then, while they arrive at the conclusion by different means, agree that religion qua religion should be jettisoned as a legally protected entity. Nor are they alone; Martha Nussbaum, likewise, has suggested avoiding the controversies of religion by shifting our eyes from the import of religion to the necessity of equality as the basis for liberty of conscience.30 While I disagree that religion cannot (or should not) be legally protected, this conclusion needs to be taken seriously, as all three writers are pointing out – explicitly or implicitly – a contradiction at the heart of liberalism, under which guise the right to religious freedom has historically been understood. The liberal conception of religious freedom rests fundamentally on the idea that all humans have a right to choose their religion and exercise it freely, assuming it does not harm another person without her consent. But this means that a person may very well choose a system of belief that rejects liberalism and choice entirely, thus undermining the very freedom she is enjoying. For example, she may freely choose a religion that forbids exit, denies gender equality, or demands strict censoring of speech. In other words, she has chosen a religion that rejects the system that gave rise to her freedom to choose a religion in the first place. Furthermore, when all law is human law, even such legal concepts as “harm” and “compelling interest”31 become highly contestable terms, concepts that take on different 25 26 27 28 29 30

31

Leiter, Why Tolerate, 56. Leiter, Why Tolerate, 57. Leiter, Why Tolerate, 57. Leiter, Why Tolerate, 55. Leiter, Why Tolerate, 67. See Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008). I refer to the “compelling interest test” as developed in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), which requires any state-imposed burden on a fundamental right to be justified by

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meanings depending on whether or not one admits of the metaphysical aspects of life that religion presumes. Freedom of the Person or the Community? Late modern liberalism also ignores the distinction, both conceptual and historical, between the freedom of the person (libertas personae) and the freedom of the religious community (libertas ecclesiae). But this latter aspect, which liberal theorists largely (though not universally) ignore, carries implications for how one practices religion. In addition to the ever-present tension between human law and divine law, then, there exists an internal tension within religious freedom between the freedom of the religious person and that of the religious ecclesia.32 Pakistan’s constitution provides a fine illustration of this inherent tension, declaring both: (a) every citizen shall have the right to profess, practice and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.33 Pakistan’s constitutional protections guarantee both the freedom of the individual (“citizen”) to practice his religion as he sees fit, and the authority of religious bodies (“denomination” and “sect”) to “manage” their religious institutions – which, importantly, incorporate religiously affiliated individuals. On the theoretical level, these are, strictly speaking, incompatible: either the individual practices his religion according to his conscience (libertas personae), or his religious body has authority over him to “manage” its religious institutions (libertas ecclesiae). Furthermore, we see that in practice, freedoms tend to accumulate on one side of the persona/ecclesia divide. Pakistan’s blasphemy laws forbid “wounding the religious feelings of any person,” an amorphous category of offense into which can easily fall the normal religious beliefs and practices of a member of a differing faith.34

32

33

34

a “compelling state interest”; it was later ensconced into law in the Religious Freedom Restoration Act of 1993. Nowhere is this personae/ecclesiae tension seen more clearly than in controversies over proselytism: Is it the right of the individual to propagate his faith, or is it the right of the religious community to protect its people from outside influence? What if proselytism is intrinsic to a religious community’s beliefs and practices (Mormons, Jehovah’s Witnesses, Evangelical Christians, etc.)? Does this type of speech, offensive to the religious practices of many, become a fundamental right for the individual adherents? For a helpful discussion of the complexities surrounding debates on anti-proselytization laws, see Gerard V. Bradley’s post “Proselytism and religious freedom,” The Immanent Frame, April 28, 2010, http://blogs.ssrc.org/tif/2010/04/28/proselytism-part-ii/. See Pakistan Constitution, Part II Chapter 1 Section 20, entitled “Freedom to Profess Religion and to Manage Religious Institutions,” www.pakistani.org/pakistan/constitution/. See Pakistan Penal Code, Act XLV of 1860, as amended by: Protection of Women (Criminal Laws Amendment) Act, 2006, Criminal Laws (Amendment) Act, 2004 (I of 2005), Criminal Law (Amendment) Ordinance (LXXXV of 2002), Criminal Laws (Reforms) Ordinance (LXXXVI of 2002), etc. §295-A, www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html.

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Likewise, defiling the name of the Prophet Muhammad is punishable by death,35 which in practice all but guarantees a chilling effect against all speech related to the Prophet.36 Of course, the rejoinder is that defiling the key figure of a religion, in itself, is hardly to be considered a right. But it is nevertheless the case that either proselytism or simply the religious expression of a non-Muslim almost automatically falls under this category inasmuch as such activity denies Mohammad’s status as Messenger of God. Thus the attempt to protect both the individual and the religion here strongly favors the corporate aspect of religion, with severe consequences for the individual, whether a dissident within the religion or an outsider. But an imbalance on the side of a personal rather than corporate religious freedom falls short in several respects as well. Sullivan’s book depicts a court case in which the various religiously motivated burial practices at a municipal cemetery were in question. The judge, in Sullivan’s telling, “tried to work out his own view of what religion is and what particular religious traditions demand of their adherents with respect to burial. You could also see him working, however, from within what is a basically Protestant understanding of authority. It is the individual who decides. And he does so by reading the Bible.”37 As Sullivan points out, this is a familiar mode of reasoning about religious authority for most Americans.38 Yet it fails to take into account the development of many religions’ practices, doctrines, and rituals, such that a freedom of religion in only this individualistic sense is a freedom that favors individualistic religions, to the detriment of many, if not most, of the world’s religions. A particular dialogue between the judge and an Orthodox Jew expert witness illustrates the difficulty at hand: THE COURT:

THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS: 35 36

37 38

I believe that you said that there’s nothing in the law that prohibits it but you’re referring to tradition, right? . . . About walking on a grave . . . Walking on a grave is a violation of Jewish law. Jewish law. What Jewish law? The classic law code recounts that it is improper to walk on a grave site. Well, let’s start with the Torah, there is nothing in the Torah – There is nothing in the Torah. The Torah does make mention of the fact that Jacob put up a monument for Rachel.

Pakistan Penal Code, Act XLV of 1860, §295-C. On this point, see Paul Marshall and Nina Shea, Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (New York: Oxford University Press, 2011). Sullivan, Impossibility, 133. Sullivan writes that “the Modern religio-political arrangement has been largely, although not exclusively, indebted, theologically and phenomenologically, to protestant [sic] reflection and culture. Particularly in its American manifestation . . . Religion – ‘true’ religion some would say – on this Modern protestant reading, came to be understood as being private, voluntary, individual, textual, and believed. Public, coercive, communal, oral, and enacted religion, on the other hand, was seen to be ‘false.’” Impossibility, 7–8.

Religion and Law in Late Modernity

THE COURT: THE WITNESS: THE COURT: THE WITNESS:

13

Does that create a precedent? It creates a custom. He also had two wives, so you don’t recommend that as a custom? Absolutely not, your Honor, this is, of course – the gristmill of Jewish law is determining does [sic] the conduct of the patriarch rise to the level of something that we should imitate and when it does not.39

And so on. The Court here is attempting to glean a clear, textually based law concerning burial from the amorphous but nevertheless real tradition within Orthodox Judaism of what constitutes proper religious observance. The witness, on the other hand, attempts to convey a sense of the obligation of certain acts as understood through the interpretation of not only texts but exemplars throughout the generations. This is a task that is not done in whole by any one individual but which requires the participation of an entire community, across space and time, to determine for itself what its religion is and entails. But recognizing the freedom of the ecclesia to make such judgments opens the door for illiberal groups in society, and we remain in a dilemma: either autonomy and choice are limited by some form of coercion, such that one is not free to join an illiberal group (and, we might add, the state is likely to decide which groups are sufficiently liberal), or one is free to do so, and a liberal society risks corrosion of its liberal ideals. Liberal Neutrality Some will object to my characterization of the liberal version of religious freedom by asserting that such a choice on the part of our illiberal religious believer need not restrict the choices of others; in other words, exercising an individual right that restricts that individual’s freedom does not necessarily pose a threat to the freedoms of others. William Galston has written persuasively about the merits of Berlinian “value pluralism,” understood to refer to a form of liberalism that, while it rejects relativism and considers some goods to be basic and nonnegotiable, defends a “range of legitimate diversity” in which a “zone of individual liberty, and also of deliberative and democratic decision making” can thrive.40 In value pluralism theory, it is “not obvious . . . that civil society organizations within liberal democracies must be organized along liberal democratic lines.” In other words, liberal democracies can and indeed should make room for illiberal groups if they are truly to be considered pluralistic.41 On first glance, then, it would appear that the religious believer above, who has freely chosen to limit her freedoms by virtue of the religious community she has joined, fits perfectly well within a liberal democratic society. As Galston 39 40 41

Sullivan, Impossibility, 134. William Galston, Liberal Pluralism (Cambridge: Cambridge University Press, 2002), 6. Galston, Liberal Pluralism, 16.

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eventually admits, however, “in practice, ways of life reflecting different orderings of value cannot always exist in the same social space.”42 Indeed, a selfgoverning liberal polity will choose its priorities, and those with differing “orderings of value” may find themselves required to conform. When these values are religious values, it is not clear that Galston’s value pluralism has the resources to uphold the religious freedom that any such liberal society would, in theory, endorse. In such cases, he writes, “the structure of particular contexts of decision . . . necessarily limits the ability of some individuals to pursue ways of life that are fully defensible in theory.”43 In other words, the maintenance of liberal democratic life requires the sacrifice of some defensible ways of life. Even if those defensible ways of life are religiously based, it would appear that they must bend to the liberal society’s will. The French law prohibiting conspicuous religious symbols – popularly known as the “headscarf ban” – would seem an apt illustration of this principle. Even if Galston would reject the rationale behind the ban because of his resistance to government coercion in religion, it is difficult to see how value pluralism provides a firm argument against it, precisely because it refuses to create “a comprehensive hierarchy or ordering among goods.”44 While such a refusal is critical for Galstonian (and Berlinian) pluralism, it ultimately serves to reduce religion to yet another preference among many in society, which removes religious practice out of the protected realm of human rights and places it in the realm of negotiable, even disposable, desiderata. It would seem, then, that liberalism cannot have it both ways. If it aims for neutrality among ways of life, then it cannot limit “the ability of some individuals to pursue ways of life” that they freely choose, for this is not neutral. If, on the other hand, it chooses to prioritize some “orderings of value” over others, it opens itself to either force or fracture; again, as Galston admits, not all systems of values can coexist peaceably in a given space, so outliers must either be made to conform or find ways to exit. Of course, few liberals claim absolute neutrality toward any and all ways of life; most concede that liberalism may and must exclude some values and ways of life, and that it in fact is not value-neutral but upholds freedom and equality as ideals. This is true, but as Patrick Deneen has recently argued, modern conceptions of freedom tend ultimately to be vacuous, a “freedom from” rather than “freedom for” that ends in alienation and unwitting slavery.45 Equality, as well, requires a heavy hand to enforce it – which may be desirable but certainly encroaches on liberty;

42 43 44 45

Galston, Liberal Pluralism, 59. Galston, Liberal Pluralism, 59. Galston, Liberal Pluralism, 6. See Patrick Deneen, Why Liberalism Failed (New Haven, CT and London: Yale University Press, 2018), esp. 31–34.

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hence Tocqueville’s famed dictum that a democratic people would end by “preferring equality in servitude to inequality in freedom.”46 With no recourse to anything higher than human laws and norms, then, logically liberalism must logically reflect either power or consensus, for these are the only bases of law that are exclusively human. Indeed, according to the former Executive Director of Amnesty International USA, the norms of today’s human rights laws “reflect either the views of those who are at the moment holding the power, or the principles that have managed to claim a consensus among enough people that the powerful dare not challenge them.”47 In short, either power or popularity determines the content of human rights, including religious freedom. This is precarious. I do not mean to suggest that there is an easy, or even superior, alternative to liberalism; I believe that liberalism has very likely resulted in the betterment of the lives of millions of people, including in the protection of their religious freedom. I mean rather to say that liberalism is not in itself an adequate theoretical basis for religious freedom because it rests on either, and sometimes both, human consensus, which can vote away divine law’s relevance, and/or coercion, which can enforce away free exercise. This, in fact, is precisely the contention of Sullivan and the Critical Theorists, and on this score, I agree. Overall, it is my objection that liberal conceptions of law, in which law is understood exclusively as a derivative of human consensus, ultimately render impotent the legal right to religious freedom, for liberalism has neither the competence nor the authority to declare what does or does not constitute good or true or right religion. This is because, as mentioned in the Preface, it was in part to avoid, rather than confront, the inherent problem of the joint authority of human and divine laws over human beings that liberalism arose as a political theory in the first place. As Hobbes made clear in the opening of Leviathan, human law’s epistemological resources are empirical ones that cannot on their own deal with the supernatural realm religion claims for itself. Religion involves faith about ultimate meanings, metaphysical truths, supernatural deities, and the like; it also often presupposes divine revelation. As Hobbes wrote, “no man can infallibly know by natural reason that another has had a supernatural revelation of God’s will, but only a belief.”48 Furthermore, as mentioned above, to many religious adherents, a positivist system of law defies the order on which is premised the very notion of religion49 by placing the temporal, human realm of state above the eternal realm of God or religion. Something is needed to mediate these two worlds. 46 47

48 49

Tocqueville, Democracy in America, Volume II, Book 2, chapter 1. Janet Holl Madigan, Truth, Politics and Universal Human Rights (New York: Palgrave MacMillan, 2007), 52, quoting William Schulz, Executive Director of Amnesty International USA in a roundtable discussion. See William Schulz, Robin Fox, and Francis Fukuyama, “The ground and nature of human rights: another round,” The National Interest, June 1, 2002, http://nationalinterest.org/article/ the-ground-and-nature-of-human-rights-another-round-1156. Hobbes, Leviathan, 86. It is important but tangential that I am referring specifically to religion, which (if it is what it claims to be) is divine in origin, rather than ideology, which is human in origin. This distinction also supports

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In the end, then, liberalism’s purported solution to the problem of religious freedom, of human and divine law, only pushes the problem one step back: it exalts human law – indeed, all of human affairs – over the divine and religious realm, and ends as simply a mutation of the Leviathan’s authority over religion. It sidesteps, rather than confronts, the heart of the problem of religious freedom. By its nature, the problem of religious freedom is not one that can be solved by an asymptotic increase in either equality (Critical Theorists) or neutrality (Liberals). In fact, it cannot be solved by human law alone, for it is fundamentally a problem of competing realms of obligation and authority, human and divine. The resultant tension, furthermore, is not epiphenomenal, much less a product of liberalism’s efforts to separate church and state or sacred and secular realms. Rather, it replicates itself throughout the history of political society, from Antigone’s appeal to “the gods below” against Creon’s command to Christ’s “render unto Caesar” dictum, from religious minorities’ distinct legal authorities under Ottoman rule to contemporary sharı¯ʿa courts within dual legal systems.50 Political power and religious authority are two distinct entities, even as they overlap in jurisdiction: the state looks to peace and material well-being in the “City of Man,” to borrow from Augustine, whereas religion looks to the well-being of the soul and at least in part to the hereafter.51 The result of these overlapping jurisdictions is that one is neither fully free to obey religion, for she is constrained by political society, nor is she fully free to obey the state in all matters. Simply put, conscience and religion sometimes bind the citizen in manners contradictory to human law. If and when conflict occurs, one cannot avoid the choice between her religion and her political

50

51

the need for religious freedom over and above (though by no means replacing) freedom of conscience. One may object to this point that it is by no means clear that religion does indeed exist in the manner in which most religious people conceive of it, viz., in which a divine or supernatural order does exist and, in some manner, govern worldly affairs. I do not attempt to settle that question, but my point is that if we are to grant freedom of religion, it cannot be premised upon the assumption that what religious people conceive of as religion is false. For example, Nigeria, Kenya, Tanzania, Lebanon, Indonesia, and the UK, with variations amongst each. See Toni Johnson and Mohammed Aly Sergie, “Governing under sharia,” Council on Foreign Relations, 2014, www.cfr.org/backgrounder/islam-governing-under-sharia. Even when political and religious authorities are embodied in one institution, the divine-human authority tension persists. For instance, the medieval Christian church and state, often thought to be fused, represented discrete, though overlapping, authorities: the king represented Christ’s rule on earth – pedes in terra – and the religious authority represented Christ’s rule in heaven – caput in caelo [“feet on earth” and “head in heaven,” respectively. Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (Wilmington, DE: ISI Books, 2003), 221. Islam, also often thought to collapse the distinction between political and religious power, has nevertheless always permitted and regulated the presence of religious minorities within its political boundaries, introducing the same challenge of competing religious and political authorities. That is, the state, however much it overlapped with the Muslim religion, only claimed political, not religious, jurisdiction over the ahl al-dhimma, or protected religious minorities. Modern Islamic states also affirm secular constitutions that endorse international law, yet mix human law with sharı¯ʿa, creating potentially conflicting bases of authority.

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authority – the very scenario a legal right to religious freedom is intended to prevent.52 In short, if religion sets up a competing moral authority to political authority, as I argue it does, then it is naı¨ve to believe that religious liberty is an unproblematic freedom. For if one is free to choose her religion, then she is free to choose a religion whose tenets contradict the governing political authority, or even undermine the very liberal democracy and human rights that gave rise to this freedom in the first place. Liberalism and democracy themselves, then, cannot resolve the tension. In this light, the conflict between human and divine authority is a radical one, and we are tempted to conclude with Sullivan that religious freedom is indeed impossible. Epistemological Divergence: Hobbes and Higher Knowledge That divine and human laws are distinct and ever-present is one thing, but that they must clash is another matter. Why can religious and human affairs not be brought to accord? Partisans of the rationality of religious belief, including many early liberals, have a storied history, from Locke’s The Reasonableness of Christianity to Kant’s Religion Within the Boundaries of Mere Reason. Contemporary scholars also have attempted to eliminate the controversy as much as possible; Ju¨rgen Habermas, perhaps most famously, has suggested that religious beliefs be “translated” into 52

I mentioned above that this divine law-human law tension should not be confused with the modern liberal sacred-secular divide. This is true on two accounts: first, as recent scholarship on secularism is increasingly making clear, the idea of a strict divide between sacred and secular realms is a convenient fiction, but a fiction nonetheless. Saba Mahmood’s recent contributions on religious minorities make clear that, far from simply the absence of religion or a metaphysically neutral starting point, secularism “is itself a historical product with specific epistemological, political, and moral entailments.” See Saba Mahmood, Religious Difference in a Secular Age (Princeton, NJ: Princeton University Press, 2016), 3. On secularism having positive political and conceptual force rather than being understood as the mere absence of religion, see also, e.g., Talal Asad’s seminal Formations of the Secular (Stanford, CA: Stanford University Press, 2003), Elizabeth Shakman-Hurd’s The Politics of Secularism in International Relations (Princeton, NJ: Princeton University Press, 2007), and Mahmood’s Religious Difference). Beyond this, however, the modern liberal divide between sacred and secular realms, even if it could be granted, attends primarily to the institutional aspects of religion and politics. That is, in disestablishing religion from state, liberal attempts to privatize religion do not – and indeed cannot – address the powerful metaphysical, psychological, and existential conflicts that religious persons and communities confront when their society’s human laws, written or unwritten, conflict with their religious obligations and traditions. In other words, even if the state is formally separate from any religion, one cannot escape the felt obligations of human and divine laws. Sullivan’s book illustrates the point aptly in detailing a trial over whether certain burial displays at a municipal cemetery count as valid exercises of various religions for – as I discuss in the following chapter on Antigone – the burial of the dead is at once intensely sacred and undeniably profane. Jack Phillips, the famed “Colorado Cake Baker” who refused to bake a cake for a gay couple’s wedding, lives in a state and country in which religion and state are disestablished, and he belongs to a religion (Evangelical Christianity) that recognizes little institutional authority. Yet even such pervasive institutional divides between religion and state cannot overcome the deeper and more intransigent, metaphysical, and opaque conflict of human and divine law.

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secular language and concepts when employed in the public sphere.53 This translation does expand the space the religious believer occupies in the public sphere, as opposed to the Rawlsian injunction against “comprehensive doctrines” as a basis for a public conception of justice (and policy),54 but, with Rawls, it leaves as superior the judgment, concepts, and framework of secularity. So to assert that divine and human laws can be brought into harmony with one another almost always means that one side can be brought into harmony with the other – not, importantly, that the clash itself can be resolved. I submit that these clashes are inevitable because the competing human and divine authorities rely on different conceptions of knowledge. Divine authority ascribes to itself knowledge that, while it certainly incorporates human rationality to varied extents, is based ultimately not on empirical observation but on revelation, faith, and tradition. Political power, on the other hand, because it is concerned chiefly with the immanent safety and well-being of citizens, is typically based on rational, empirical knowledge. It may or may not take a stand on moral or religious matters, but if it does so, it is not for the metaphysical standing of their souls in the afterlife but for temporal peace, stability, and other political, this-worldly goals. The liberal impulse to divide the world into sacred and secular, then, makes a good deal of prima facie sense, for the realm of rationality and empirical data is one that can, in principle, be universalized,55 whereas religious knowledge is hyper-particularized, deriving not only from different texts and/or traditions but with widespread disagreement on the very role that those texts and traditions play in the production of knowledge. 53

54

55

Habermas holds that at the formal legal level, in a democracy, “all laws, all judicial decisions, and all decrees and directives must be formulated in a public language that is equally accessible to all citizens and that they must, in addition, be open to justification in secular terms.” However, Habermas is open to religious reasons at the informal level, in the “political public arena . . . below the threshold at which the institutional sanctioning power of the state can be invoked.” Religious citizens are thus free to employ religious reasons so long as they recognize the “institutional translation proviso” between the informal and formal levels, which is “the epistemic ability to consider one’s own faith reflexively from the outside and to relate it to secular views.” Ju¨rgen Habermas, Between Naturalism and Religion (Cambridge and Malden, MA: Polity Press, 2008), 5, 9–10. This institutional translation proviso is essential for a just form of secularism, for Habermas: a “secularization that does not annihilate is brought about as a kind of translation.” From “Faith and knowledge,” Habermas’ speech at the acceptance of the Peace Prize of the German Publishers and Booksellers Association, Frankfurt, October 14, 2001, https://www.friedenspreis-des-deutschen-buchhandels.de/sixcms/media.php/1290/ 2001%20Acceptance%20Speech%20Juergen%20Habermas.pdf See Rawls’ Political Liberalism. Expanded Edition (New York: Columbia University Press, 2005) and “Justice as fairness: political, not metaphysical,” Philosophy and Public Affairs 14, no. 3 (Summer 1985), 223–251. That reason can be universal is, of course, a controversial claim, and I do not intend to enter fully into the debates except to point out that even to critics of the position, there is a concession that the public, political sphere is one of rationality. See, e.g., Bonnie Honig’s discussion of Antigone’s defiance against the “logocentric polis” as defiance against the universalizing rationality that dominates the political sphere. “Antigone’s two laws: Greek tragedy and the politics of humanism,” New Literary History 41, no. 1 (2010), 1–33.

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Still, even as the state operates by a fundamentally different epistemology, the exigencies of political life require that it have some authority concerning religion, for it is clear that not all actions justified in the name of religion can be sustained or tolerated within the confines of society. In other words, human law must make judgment calls about what constitutes acceptable religion. This point was not lost on Thomas Hobbes, who famously dealt with the clash of human and divine law by wholly subsuming religion under the power of the state. Hobbes, too, was concerned with the epistemological divergence between human law and divine law, which is clear from the very opening pages of Leviathan. There, in his chapter entitled “On Sense,” Hobbes discards the ages-old Aristotelian notion that what one understands by the senses is but one aspect of a larger reality containing also unseen, unheard, unintelligible aspects. In its place he asserts a radical epistemology in which all thought, and therefore all knowledge, originates in sensory perceptions of external objects.56 This empirical epistemology forms the basis of the state’s justification for power. Part III, on the other hand, entitled “Of a Christian Commonwealth,” begins by stating that the “Word of God delivered by Prophets is the main principle of Christian Politics.”57 Knowledge concerning God and Christianity, far from having a basis in empirical knowledge or sensory perception, is revealed directly to us through the prophets, according to Hobbes. Such knowledge relies on faith that the Word of God is indeed from God, not to mention an existing faith that God exists and that His prophets are indeed sent by Him. Religious knowledge, then, is different from all other forms of knowledge, and the difference is a radical one. Hobbes recognized that this epistemological divergence is the core problem of church and state; that is, the state deals in empirical knowledge and the church in divine revelation. But for political authority to function effectively, for Hobbes, one power must be subsumed by the other – in his case, church by state. He thus solved the problem of competing human and divine authorities in a wholly illiberal way by eschewing the freedom of citizens to choose and practice religion freely, or even to acknowledge a competing moral authority to that of the state. Transforming all knowledge into empirical knowledge, he at once undermined the church’s voice in the public sphere and made necessary an all-powerful Leviathan in order to tame religion’s potentially disruptive authority among the citizens. The Dilemma of Religious Freedom Hobbes’ approach does more or less resolve the tension between church and state that lies at the heart of challenges to religious freedom; indeed, it all but eliminates this tension by collapsing the competing authorities into one all-powerful state. It 56

57

All references the Leviathan come from Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis, IN and Cambridge, UK: Hackett, 1994). Here pp. 6–7, I.i. Hobbes, Leviathan, 245, quoting the marginal summary of Section 1, chapter xxxii, part III.

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The Possibility of Religious Freedom

does not, however, solve the problem of religious freedom, for it discards a fundamental aspect of religious freedom – that of choosing and practicing one’s religion – in favor of stability and security. What Hobbes contributes to the present discussion is thus not a solution to but a crystallization of our dilemma; he demonstrates the reason why religious freedom poses a perennial problem. In short, religious freedom requires that the spheres of human and divine law be kept distinct to some degree, each retaining its proper authority, but as Hobbes observed, society does not easily accept competing realms of authority. If religion is left as a free and autonomous power, it invariably poses a threat to the authority of the state; this is why his Leviathan had to subsume the Church of England.58 Alternatively, if the state is given ultimate power over religion, as with the Leviathan, it stands as a constant, even if subtle, threat to religious freedom. The dilemma thus becomes clear: either the state/human law stands above the church/divine law, which makes religious freedom precarious at best, or religious freedom is guaranteed but citizens recognize competing authorities as sovereign – some the state, some this religion, some that, some none at all. Of course, both horns of this dilemma are undesirable. Just as the Hobbesian option buys political order at the price of religious freedom, the other horn, that of placing religion outside the reach of human law, opts for religious freedom at the price of political order. In other words, to set religion outside of the reach of human law – or even above it – creates a separate system of obligation or law, and this undermines the rule of human law and thereby democracy itself. Yet to place religion and divine law under human law is to deny the very premise of religion, viz., that there is something higher than the temporal realm to which we owe allegiance; this is what Sullivan objects to. Still, one cannot serve two masters; logically speaking, one law must be the higher law. In subsuming religion under the state, Hobbes declared the latter to be the sole sovereign, and the modern era followed suit by ascribing to human law alone the status of real “law.” This implicitly places the civil authority (the holder of human law) over divine law and religion, and Sullivan et al. are right to identify this as a threat to religious freedom. That they are nevertheless wrong to call a thicker version of religious freedom “impossible” is the ultimate argument of this book. I part ways with them at the fundamental understanding of law, which I argue must return to one in which human law, undergirded by consensus and force, exists in tandem with divine law, with natural law mediating the two. This allows a wider arena of the free exercise of religion but prevents the pendulum from swinging toward the supremacy of divine law, which is equally capable of undermining human rights. 58

Numerous contemporary examples in Islam come to mind as well; Egypt’s relationship with Al-Azhar, one of the most influential Islamic institution in the world, as well as Saudi Arabia’s exported religious curriculum and Qatar’s state-sponsored mosques, are but a few.

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Democratic Solutions, Democratic Complications The rejoinder to my rather pessimistic analysis above is that religious freedom lies somewhere between the extremes of either human or divine law as the supreme law. That is, neither can the state be wholly free to co-opt religion or deny its sphere of authority, nor can religion, or the religious person, be wholly unaccountable to political authority. On such premises has American religious freedom been adjudicated, and not without success. Whether through the “compelling interest” test59 or the “generally applicable law” standard,60 judges have found fairly reliable ways to discern what can and cannot count as protected religious practice in the United States. The current two-tiered test of whether a state restriction on religion both pursues a legitimate government interest and uses the least restrictive means to do so61 is indeed a promising one, and there is no reason to assume that other polities might not have their own similar paths. This human legal approach is a feasible, even perhaps admirable, one, and that a high level of religious freedom has endured in America’s increasingly pluralized society testifies to its flexibility and practicality. One wonders, however, how long such an approach can endure as both pluralism and globalization increase. Humans, by nature political animals, require the cooperation of fellow citizens; cooperation, in its turn, needs some set of shared values. But as Plato pointed out, as democracies move toward greater and greater levels of freedom and equality, they tend to increase in what we might today refer to as moral pluralism, including religious pluralism. Speaking of the citizens of a democratic regime, Socrates asked, “In the first place, then, aren’t they free? And isn’t the city full of freedom and free speech? And isn’t there license in it to do whatever one wants? . . . It is probably the fairest of the regimes . . . just like a many-colored cloak decorated in all hues” (Rep. 557bc). The democratic urge to throw off the strictures of what were once shared moral codes is readily observable in our own era, for these moral codes are part and parcel of “the experience of limitation, which the delinked man of the democratic age feverishly desires to overcome, in religion and in everything else.”62 This is not always a bad impulse; throwing off the moral code that upheld slavery and then segregation, to give but one example, is a deeply humanizing move. But the urge for increased freedom does not always distinguish between those mores that have preserved a society and those that have corroded it or done violence to it, and as shared moral codes break down in the name of freedom – or sometimes, in Plato’s 59

60 61

62

Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), as reinforced by the Religious Freedom Restoration Act of 1993. Employment Division v. Smith, 1990. This is the standard enforced by the Religious Freedom Restoration Act (RFRA) of 1993. See 42 U.S. C. §2000bb-l(b) (Supp. V 1993), as quoted in Douglass Laycock, “RFRA, congress and the ratchet,” Montana Law Review 56, no. 1 (1995), 148. Joshua Mitchell, Tocqueville in Arabia: Dilemmas in a Democratic Age (Chicago, IL: University of Chicago Press, 2013), 164.

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terms, in the name of “license . . . to do whatever one wants” – the cooperation that upheld a democracy becomes increasingly difficult. This democratic impulse is today held in tandem with a globalizing impulse, in which the values of the world’s societies – again, including and as influenced by religion – are no longer the province of distant peoples alone. Thanks to commerce, technology, international political institutions, and a new era of war and security crises, the business of one nation becomes the business of many nations. This makes a difference for standard liberal arguments. For instance, the “same social space” that Galston mentions citizens sharing now has increasingly permeable boundaries; one is a member of one geographic social space but his multinational employer is governed in a different space and his online presence brings him into rapidly evolving, indefinable spaces. The combined result of these two impulses, the democratizing one and the globalizing one, is both a smaller set of shared mores (because of value pluralism) and a larger set of issues requiring cooperation (because of the globalization of political life). Thus, while late modernity pays lip service to exactly the kind of pluralism Plato described, it cannot be denied that social fracturing often accompanies it, thus undercutting the ability to deal with the challenges and opportunities of a rapidly shrinking world. The effect of these democratizing and globalizing trends on religion is substantial. Because of the need for increased cooperation – or even the need to replace the lost cooperation that used to feed on mores no longer shared by its citizens – the state increases in size and power to effect the required cooperation.63 Religious freedom thus faces challenges hitherto unknown: a greater need for more cooperation among more people with more varied values and religions governed by more powerful states with an ever-increasing ability to regulate the lives and choices of citizens. It is worth recalling that after the democratic regime, Plato believed, came a tyrannical regime: “And they [i.e., democratic citizens] end up, as you well know, by paying no attention to the laws, written or unwritten, in order that they may avoid having any master at all . . . this is the beginning, so fair and heady, from which tyranny in my opinion naturally grows” (563de). For Plato, the greed for ever-increasing freedom that he believed to be endemic to democracy ultimately destroys the very freedom that is essential to its maintenance (562bc), because citizens lose the ability to rule themselves (562e–563b). Into this vacuum, then, “the people . . . set up some one man as their special leader and . . . foster him and make him grow great” (565c). Likewise, Tocqueville noted of democratic citizens, in their search for mooring, that “Not only will they let their freedom be taken from them, but often they actually hand it over themselves.”64 Plato’s and Tocqueville’s warnings illustrate my concern for the endurance of a strictly human legal approach to religious freedom. For while the variety and 63

64

This is, in essence, Alexis de Tocqueville’s prediction for democratic societies in Democracy in America. Tocqueville, Democracy in America, 444.

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pluralism of democracy make it appear for a time to be nothing but “the fairest of regimes,” the other side of the democratic coin is an increased variety of opinions – faction, one could say – about the religious, cultural, and jurisdictional parameters that sustain democracy. With fewer shared mores and religious or cultural beliefs and practices, human law takes on a greater role in effecting social cooperation. Because of this expansion of the human law’s role, those who adhere to divine law sense an increased encroachment on their ability to live according to religion or conscience; in other words, the confrontation between human law and divine law grows. Negotiating religious freedom through human law alone is therefore less likely to endure as democracy continues on its march and pluralization continues. Yet to remove the law from the picture entirely – i.e., reducing our “attention to the laws, written or unwritten” – is to invite tyranny.65 Notably, this could just as easily be tyranny based in religion as tyranny based in human law, but as Hobbes knew, at some point, either human or divine law must bow to the other.

NATURAL LAW

Natural Law as Mediating Law For religious freedom not to be impossible, there must be some way of reconciling the clash of human law with divine law, ideally something that is built into the nature of law itself. It is this role that I am suggesting natural law can fill. The idea of law as a more holistic entity than mere human fiat is, of course, not a new concept; traditions of natural law have informed legal theory for centuries, but they largely fell out of fashion in modernity in favor of a human-centric, or positivist, conception of law. I argue that a more robust theory of law that takes into account not only human, but also divine and, critically, natural law, would make room for a more solid understanding of religious freedom. The scope of this project precludes favoring any one particular version of natural law, for I am attempting to articulate an understanding of law that can incorporate diverse systems of both human and divine laws.66 Still, it is surely evident that I have 65

66

Hittinger expresses this well: “Anyone who sets up an opposition between law and freedom, and then takes the side of freedom, not only underestimates the need for law but also misrepresents the nature of freedom.” First Grace, 28. This should not be taken to imply that there are not better and worse versions of natural law and natural law theory. Rather, I mean to say that the argument of this book does not extend to that question; it simply aims to convince the reader that our modern understanding of law stands in need of some version of natural law if it is to avoid the conflicts between human and divine law that pose such challenges to religious freedom. Once this is established, each legal community would, presumably, look within its own traditions for theories of natural and unwritten law. This diversity is necessary because of the link between natural and divine law – if God is the author of nature, and therefore of natural law, then the Christian version of natural law will likely not be suited to Islamic cultures, etc.

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been borrowing Aquinas’ categories of law as found in the Treatise on Law in his Summa Theologica (I–II, q.90). There, Aquinas locates the Eternal Law, defined as “the Divine Reason’s conception of things” (q.90.a.1.co), as the source of all law.67 From this Reason come the natural, divine, and human laws. These are not competing sources of law; rather, they are of the same substance, so to speak, as the eternal law but revealed in different ways and consequently contain different, though not contradictory, precepts. Aquinas describes each of these forms of law as a “participation” in the eternal law; thus, divine law is revealed directly from God (Ten Commandments, sharı¯ʿa, etc.), human law is that which humans craft, and natural law is that portion of the eternal law that can be known through natural reason. More precisely, natural law is the “participation of the eternal law in the rational creature [i.e., human being]”; it is that which the rational creature has through “its share of the Eternal Reason, whereby it has a natural inclination to its proper act and end” (ST I–II.q.91.a.2.co). As we can see, in linking “eternal reason” to the ends and actions of human beings, natural law as a concept makes reference to both transcendent and immanent aspects of life. It is this characteristic that renders natural law responsive to the demands of both human law and divine law and therefore so indispensable for religious freedom. The contemporary literature on natural law, both neo-Thomist and otherwise, is vast, and I discuss some of these contributions in the conclusion. But for the purposes of this book, it is less important that we establish the finer points of what “the natural law says” on any given topic and more important that we establish that there is a natural law to be consulted at all, as well as how we might know it or operationalize it. Robert Sokolowski has written helpfully on this point, noting that confusion arises from the mistaken tendency to view natural law as a uniform set of laws and rules. When we think of natural law as “a kind of codex, a set of imperatives that could be formulated in a purely theoretic, systematic exercise, identifiable and arguable apart from any moral tradition,” he writes, we immediately perceive that there could be no such universal set of theoretical rules that can simply be applied to any situation whatsoever.68 Rather, following Francis Slade, he suggests the simple yet surprisingly comprehensive definition of natural law as “the ontological priority of ends over purposes.”69 Ends, according to Sokolowski, are given; an end or telos “belongs to a thing in itself . . . Ends . . . are there apart from any human wishes and deliberations. They are what the thing is when it has reached its best state.” A purpose (or intention), by contrast, is “something we wish for and are deliberating 67

68 69

Clearly, in Thomas’ Christian context, this “divine reason” is divine in a Christian sense; however, as an adaptation of the ancient Greek conception of reason (discussed earlier in this chapter), there is no immediate reason why it can only obtain in a Christian context. Robert Sokolowski, “What is natural law?” The Thomist 68 (2004), 522. Sokolowski, “What is natural law?”, 522, citing Francis Slade in conversation but also Francis Slade, “On the ontological priority of ends and its relevance to the narrative arts,” in Beauty, Art, and the Polis, ed. Alice Ramos (Washington, DC: The Catholic University of America Press, 2000), 58–69.

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about or acting to achieve.”70 A human being, according to Aristotle, has the natural end (telos) of living well (eudaimonia). This is unchangeable, for it is in her very nature. She may, however, set out whatever purposes or intentions she chooses; she may adopt the purpose of studying, farming, or committing bank fraud. But in only the first two might she be considered to be prioritizing her end over her purposes, so long as we assume that committing bank fraud is inconsonant with living well. To act in accord with the natural law, then, is to act in such a way that what we set out to do – whether for ourselves or to a thing – serves those given ends, whether our own or those of other people or things. Of course, this is no small feat. As Sokolowski points out, even if we accept the classic Aristotelian notion of happiness as the “that for which” all else is done (i.e., the telos or end of human life), we have a good deal of difficulty in agreeing on what happiness is or entails. Furthermore, ends are not always obvious in the first place, and often we are not easily able to distinguish our purposes from the ends of something. Still, it is my contention that attempting this harmony of natural ends with purposes (i.e., following the natural law where it leads), is indispensable in our current political moment – and indeed for social and political life more generally. For to do otherwise is to eliminate ends and thus to reduce the world to purposes alone (i.e., to disregard the givenness of the ends inherent in human life – not to mention nonhuman life and even nonliving things, as Sokolowski points out). This ultimately brings us to the war of all against all, for who is to arbitrate between conflicting purposes? Natural Law and Religious Freedom: A Proposal While this cursory glance at natural law theory may seem at first to have little to do with religious freedom, on closer examination, it is apparent that human law and (at least human perceptions of) divine law, abstracted from natural law, quickly devolve into mere purposes devoid of ends. The secular citizen worries that religious citizens invoke religious freedom in order to simply do what they want (discriminate, avoid taxes, etc.) while religious citizens worry that human law will run roughshod over their religious practices in the name of the will of the people. How, then, can their conflicting purposes be settled, except by recurring to ends? Put another way, how can the conflict of divine and human law be resolved unless there be an intermediary aspect of law that is valid in both divine and human realms? I suggest that natural law can be just such an intermediary. To take seriously what I am proposing, then, would mean that human legislators would craft human law not as mere positive law based only on consensus or human command, but also taking into account natural law. Such law, it is posited, comports with divine law, having been created by God. This thus imbues or infuses human 70

Sokolowski, “What is natural law?”, 508–509.

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law with a divine justice that at once protects the realm of human legislating – there need be no endorsement of a specific sectarian law or religion – as well as the consciences of religious people, who are protected from the overreach of an encroaching state, because the Leviathan must be held accountable to natural law. We can be more specific by borrowing from Aquinas. Traditionally, in Thomist natural law theory, the written law is understood as a determination (determinatio) of the unwritten law. These determinationes are either (1) sanctions in positive law of what is already sanctioned by natural law (e.g., that one ought not to steal or murder); (2) specifications of what natural law leaves indeterminate (e.g., one ought not to steal, but what is the penalty for stealing?); or (3) methods for additional legislation, enforcement, or adjudication (of positive law, all of which, again, will be determinationes of unwritten law). In all of these cases, “positive law . . . makes (moral) norms of practical reason determinate in the political community.”71 Thus, one may know by nature or by natural law that it is wrong to take another’s property. However, what constitutes “property” will be left for human law to discern, and this will vary from place to place: “But those things which are derived from the law of nature by way of particular determination, belong to the civil [i.e., human] law, according as each state decides on what is best for itself” (ST I–II.q.95.a.4.c). Human law, then, comprises “particular determinations, devised by human reason” (ST I–II. q.91.a.3.co) of natural law, assuming that the required characteristics of law (an ordinance of reason made for the common good by him who has charge of the community, and promulgated [see I–II.q.90.a.4.co]) are met. Divine law, on the other hand, is particular to Christianity for Aquinas – it was necessary to reveal a divine law (e.g., the Ten Commandments) because humans are not competent to judge all moral matters on their own (see ST I–II.q.91.a.4.co). I use the category to indicate law revealed directly by God, whether that be the Christian God or another. It is, crucially, not necessary that legislators themselves acknowledge a divine law; it is enough to recognize natural law, for to those who accept a divine creator, that creator is the author of nature and natural law as well; those who do not, need only accept “the ontological priority of ends over purposes” in crafting, interpreting, and executing law.72 This permits natural law to work within conditions of pluralism. At 71 72

Hittinger, First Grace, 51. I admit that for those who accept natural law but reject the existence of a higher authority than nature (such as divine law), it is difficult to explain how the natural law would have normative, rather than descriptive, force. But this is a fundamental problem of law, and removing natural law from the picture only exacerbates the problem. For instance, legal positivists, from Austin to Hart, claim that the law is law because it reflects the norms of a given society; it has been posited and accepted as such. This is fine as far as it goes, but it does not explain from whence comes that first norm that says that the law is to be obeyed. Thinkers from Hobbes to Rousseau to Rawls have attempted to provide explanations for this fundamental principle of the authority of law, but the very variety and incoherence of these explanations merely demonstrate the point I am arguing, that without a higher-thanhuman authority, the obligation to obey the law, whether human or natural, is remarkably difficult to explain. (This does not, however, mean that merely asserting “God” as the source of obligation doesn’t create problems at least as difficult. I merely mean to say that for those who accept a divine sovereignty

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the same time, it is unrealistic to expect a universal conception of law to emerge from natural law theory; human conceptions of reason, nature, and the divine are simply too diverse. This is why this book tackles three important religious traditions, traditions that collectively cover over half of the world’s population, for out of them emerge diverse versions of human, natural, and divine law – yet all three aspects appear in each of them. The succeeding chapters of this book, then, examine and advocate an alternative approach to the problem of religious freedom, one of integrating various natural and unwritten law traditions into our modern conception of law, especially as it concerns religious freedom. These traditions exist across time, cultures, and religions, and in many ways bridge the gap between positive human law and revealed divine law. Traditions of natural law permit a robust religious freedom in a pluralized society better than secular approaches because they combine the secular advantage of access through human reason, as distinguished from law that must be revealed directly by God, yet they resist the kind of “annihilating” secularism that Habermas warns against.73 These traditions invoke reason without denuding it of its metaphysical, mysterious, even religious aspects, yet they also avoid simply duplicating revelation. They do not claim to provide us with everything that we need to know for either justice in the soul or justice in society, but they do insist that natural reason can take us part of the way there. They enrich our sense of justice from the paucity of either purely secular rationalism or the strictly positivist fideism of divine law revealed without any role for human participation. Natural law theories can thus tap into the common-sense morality of human beings as well as serves as a check against the rigidity of human law’s sense of justice, just as human law renders natural law operable by its explicit terms. How can theories of natural law do this? As Robert Sokolowski reminds us, part of the task of natural law is to discern the natural, given the ends of both humans and other things in the world. In doing so, it helps us distinguish our individual desires and purposes and to subordinate them to the ends inherent in human life and activities. Failing to do so (i.e., insisting on pursuing only our own purposes, whether human or divine, rather than reconciling those purposes with the demands imposed on us by our own nature and the nature of other entities in the world), in Sokolowski’s terms, “would amount to a war of all against all. This is where the apotheosis of autonomy and choice leads.”74 I made a similar point above: liberalism, with its emphasis on autonomy and choice, is unable to provide a basis for religious freedom because it does not give us guidance as to what the ends of our

73

74

over human and natural life, the question of “why obey” is less troublesome.) Natural law, however, if it exists, has the advantage over human law that the proposition “one ought to respect nature” is a more plausible basis for law than “one ought to respect human X’s will because she happens to be in power.” See footnote 53, supra, which quotes Habermas as saying that a “secularization that does not annihilate is brought about as a kind of translation.” Sokolowski, “What is natural law?”, 516.

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choices ought to be. Our options are to recognize the ends inherent in people and things and to adapt our purposes and actions to those ends – that is, to live by natural law – or, on the other hand, to accept only our purposes and refuse to see ends. In such a case, the arbitration of conflicting purposes and desires is “the establishment of a will that is overwhelmingly powerful, the sovereign or Leviathan, who pacifies by decree and not by evidence, and for whom there are no ends or natures in things.”75 Both individual humans, with their varied purposes, desires, and actions, and the ruler, with his power, must be held accountable to something outside of themselves. Natural law theories posit that this “something” is found in respecting the natural ends of things. Objections to Natural Law Modernity has left behind natural law; some say, with good reason. It is entangled in metaphysical and religious baggage, on the one hand, or it is riddled with ugly, Hobbesian law-of-nature connotations on the other. I deny none of these charges outright, yet I maintain that a return to natural law is the best we can hope for when it comes to law and justice in a late modern era. This claim unfolds itself throughout the course of this book, but at present I would point out that the modern turn away from anything more-than-human has not proven entirely successful, with twentiethcentury secular regimes proving at least as bloody as the religious regimes that waged war in earlier centuries. It is, I believe, a valid critique of natural law theories, at least as they have been employed since World War II, to call the religious person’s bluff. Natural law is not neutral territory; this is religious faith, and often Catholicism, in pseudophilosophical garb. But of course, this critique is only valid if the claim is that natural law is in fact neutral, or secular, or uncontroversial, etc. It is not, and I make no such claim in this proposal. Referring to the Catholic tradition of natural law, Hittinger writes that natural law can be understood only if one takes into account three foci – natural order in the world, order in one’s mind, and the ordinance of a divine lawgiver.76 That is, natural law is not law simply because reason perceives it in nature; it is law precisely because it is related to something higher. The same could be said of natural law in any other religious – or, and this is important, nonreligion-specific – setting. Even if we disagree on what or who that something higher is, natural law retains the force that it does because it is perceived to be (or really is, if these traditions are correct) somehow related, or at least in accordance with a Lawgiver. Why does this not change my thesis, then? Am I not, after all, attempting to resolve the dilemma of religious freedom without going all the way to the religious end of 75 76

Sokolowski, “What is natural law?”, 516. Hittinger, First Grace, 4.

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the secular-religious spectrum? My answer is, in large part, that it is a step in the right direction to admit that human law must answer to something higher than humans themselves. This really only leaves divine law and natural law, and at the risk of oversimplifying matters, natural law, rather than strictly divine law, seems a better candidate in late modernity. True, this pushes the fight up one level of law rather than settling it definitively, but at least it allows humans the freedom to have that fight, both in society through freedom of speech and in their souls through a robust freedom of religion. Furthermore, as I hope I have made clear, I am proposing a general, not specific, natural law (i.e., what it means to reintroduce natural law into legal thought will look quite different in a traditionally Muslim, Christian, Hindu, or secular society). The other objection is that of the atheist. If the atheist believes there is no god, is it a violation of her conscience to base human law on natural law? Unfortunately, there is no easy answer to this. One can either admit of at least the possibility of a higher-than-human law or deny its existence categorically; it is impossible epistemically to have it both ways. For law to take a formal atheistic stance is at least as discriminatory as taking a formal religious stance. Still, to accept natural law is to accept the existence of ends (teloi), not of a deity per se. Furthermore, I argue that the practice of supporting human law with traditions of natural law – diverse as these traditions are – will ensure more just systems of law and politics, and there is no reason why the atheist would not find a home in such a system, as many religious and ideological minorities do throughout the globe. The alternative is the path of the twentieth century: solipsistic legal positivism, answering to human forces alone, which means answering to those humans who find themselves in power. There may perhaps be a case for retaining this course of action and continuing to disregard the older, more robust conceptions of law that included natural and unwritten law. But the history of the heyday of secular regimes in the twentieth century – by far the bloodiest on record – provides scant evidence for this.

CONCLUSION

A return to traditions of natural law will not resolve entirely the tension between divine and human law, and it will please no one fully, but it is my argument that this is our best option for justice both for religious and secular citizens. Traditions of natural law are robust, accessible to natural reason, and exist across cultures and times, which I illustrate in the chapters that follow. The remainder of this book, then, begins with Sophocles’ Antigone, which shows us not only that there is a higher law than the king’s but that this higher law, which I frame as divine law, stands in conflict with human law. It then presents three examples of natural law in each of the Abrahamic faiths, beginning with Maimonides’ grappling with the link between teleology and law in the Guide of the Perplexed, skipping ahead to Ibn Rushd’s (Averroes’) “unwritten law of nature” in Islam, and then moving back in time to

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Tertullian’s application of natural law theory in articulating a universal right to religious freedom. I selected the particular sources for this book out of a desire to represent traditions of natural law in varied contexts in order to prescind from the notion that attention to natural law will give rise to identical legal norms everywhere. This need not – and indeed should not – be considered a cosmopolitan or otherwise universalist project, except in one aspect. Traditions of natural law invoke reason and experience rather than revelation as their primary tools. They thereby remain accessible to all citizens regardless of creed without denuding religion of its metaphysical, even mystical, aspects. They leave room for the discursive aspect of law and, while accessible to natural reason, also leave space for metaphysical speculation and belief. In other words, they can respond to the need for public reason without reducing it to a strictly secularist rationalism that requires religious citizens to translate their concepts into nonreligious ones. I in no way intend to portray these traditions as a panacea to all of our problems of human rights and justice, not even to those pertaining to religious freedom. These will always prove contested and contestable, and utopian solutions to human rights problems are more wisely approached with suspicion than enthusiasm. Rather, I mean to show that natural law traditions provide rich resources for discerning a concept of justice that transcends both human and divine law. If my analysis of the current state of religious freedom is correct – i.e., if religious freedom is indeed “impossible,” or at least highly unlikely, by means of human, positivist legal protection alone – then these resources could be invaluable in our deeply pluralized late modernity. Proposing the revival of these legal traditions is ambitious. Modern political and legal theory has for centuries resisted the metaphysical components that natural law embraces or assumes. Nevertheless, I argue that this path is our only option if we are to retain a meaningful understanding of religious freedom. If Strauss is right that “it is impossible to grasp the distinctive character of human things as such without . . . some understanding of the divine or natural things,”77 then we will only understand human rights and human law if we take into account the natural and divine laws as well. Where does this leave us? And where does it leave natural law? Returning to Sokolowski’s definition, natural law as it concerns man is expressed in the mode of living in accord with his natural end – an end, importantly, which he does not choose but to which he can choose, or not, to align his purposes. But as Sokolowski reminds us, these rules of life are not abstracted from particular moral or, we might add, religious traditions. Each society can only do its best in working out the proper 77

Leo Strauss, Natural Right and History (Chicago, IL: University of Chicago Press, 1953), 122. The full quotation reads: “it is impossible to grasp the distinctive character of human things as such without grasping the essential difference between human things and the things which are not human, i.e., the divine or natural things. This, in turn, presupposes some understanding of the divine or natural things as such.”

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ends of man, or if one prefers, the “general character of the good life,” in Strauss’ terms.78 Such moral reasoning at once elevates humans to an end that is given, an end that is, in some sense, outside of themselves, and also brings religion and freedom into a realm in accord with man’s flourishing, with the good life. It will necessarily vary community by community, as the perceptions of the ends of human life vary. But to admit this is a far cry from claiming that there are no such ends and, consequently, no such parameters of the good life that constitute the natural law. This variety of conceptions of the good life and with it, variety of conceptions of religious freedom, exists uneasily in the highly interconnected, pluralistic environment that globalization has given us, for it resists the urge to universalize standards. If religious freedom is to survive, it is likely that one of two things will happen. Either we will see a gradually homogenized and enforced concept of “religion” at elite, global institutional levels, with penalties for those who do not adhere to it, or we will splinter into many nuanced versions of this human right, versions determined at local, regional, or state levels. The former route, an elite-driven consensus on what religious freedom entails, only duplicates at a political level the problem that Sullivan pointed to in a legal setting, namely the imposition of a particular understanding of religion and religious practice. The alternative, the latter option of developing pluralized understandings of religious freedom, may be the more desirable – but also risky – one. Taking this path would mean gradually disentangling ourselves from the universalizing aspirations of liberalism, settling questions of religious freedom within more localized contexts – a sort of “rights of Englishmen” over “rights of man” approach. This leaves substantially more space to define such thorny terms as both “religion” and “freedom” in ways respectful to those who will live under the relevant laws and incorporate appropriate traditions of divine and natural law. This will undoubtedly prove offensive to the modern, universalizing spirit, and indeed it likely heightens the risk that real injustice will be permitted under the guise of respect for local or cultural norms. The question, however, is whether it is more desirable nonetheless. It is my argument, and to some extent my wager, that it is.

78

Strauss, Natural Right and History, 127.

2 Antigone: The Tragedy of Human and Divine Law

If human law and divine law are indeed bound to conflict, as I suggested in Chapter 1, and if a world without natural law, as defined by the priority of ends over purposes, is as tragic as I have argued, then we would expect to see this clash appear not only throughout recorded human history but also in its drama and literature. Indeed, as early as Sophocles (496–406 BCE), we find such a record. Sophocles’ Antigone gives us a glimpse into the agonistic politics of a world of purposes without ends, in which the legitimate purposes of human law come into conflict with the equally legitimate divine purposes of burying the dead. I argue that the play portrays a truly tragic clash of human law, represented by Creon, and divine law, represented by Antigone, as well as the tragic consequences that follow when the idea of law is shorn of natural law as an intermediary, or when purposes exist without ends (teloi). However, the play, as I show, also hints at its own resolution, suggesting that law may be more than what the king decrees or the gods declare, setting the stage for a more robust conception of natural law to be developed in centuries to come. Modern interpretations of Antigone were for years dominated by a humanist tradition in which Creon’s failure to heed Antigone’s prophetic voice marks the play’s singular tragedy. In such readings of the play, Antigone’s purported “right” to bury her brother Polynices amounts to a claim of a higher law than that of King Creon, one that predates – and trumps – any legal claims on the part of the political community to her brother’s life or body. This tradition paints Antigone as a heroine of conscience, even, in the twentieth century, invoking her as inspiration for political resistance against unjust political regimes from Nazi Germany to apartheid.1 Goethe’s interpretation, as well, rendered Antigone a quasi-divine character whose superior morality was contrasted with Creon’s baseness. He described Antigone as one of the “few eminently gifted minds” that “manifested their divine nature . . . won the love of man, and powerfully attracted them to reverence and emulation.”2 Her moral purity and nobility, while always present, were not visible 1

2

See Bertolt Brecht’s Antigone and Athol Fugard, John Kani, and Winston Ntshona’s The Island, respectively. Johann Wolfgang Von Goethe and Johann Peter Eckermann, Conversations with Eckermann (1823–1832), trans. John Oxenford (San Francisco, CA: North Point Press, 1984), 149.

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until contrasted with Creon’s “odious” character.3 Antigone is a pure heroine who rightly obeyed conscience over law; Creon is pure villain. Hegel’s interpretation, by contrast, ultimately reads the tragedy out of Sophocles’ play, viewing it not as a triumph of conscience but as a picture of the necessary conflict of human and divine law. In the Hegelian framework, the clash of Antigone and Creon is the clash of divine and human laws, the resolution of which requires the destruction of both thesis and antithesis, Creon and Antigone: “Only in the downfall of both sides alike is absolute right accomplished, and . . . omnipotent and righteous Destiny steps on the scene.”4 According to Hegel, Antigone and Creon – the divine and human laws, respectively – contain the seeds of each other, yet neither can express the fullness that their joint demise and resurrection into synthesis would achieve. In this respect, the play is not a tragedy as we might use the term, for though it took the destruction of both characters, the right was achieved and the progress of justice carried on. My own interpretation borrows from both traditions yet ultimately disagrees with each. The humanist reading, I argue, reflects a modern bias in its interpretation of the play as one of natural rights or the freedom of conscience. The play, it seems to me, deals with law, not (at least not at all directly) with rights. As Brian Tierney writes, “Sophocles’ Antigone did not assert a God-given right; she found herself bound by an inexorable law.”5 (The concept of right, dike¯, did exist in Sophocles’ time, but it carried the meaning of what is right, i.e., justice, not the modern conception of natural or human rights that attach to individual persons.) Antigone invoked divine law, not natural rights, in refusing to obey the human law. Sophocles exhibited no interest in the rights of man but rather wrote about two forces that were – and are – current in political, social, and ethical life: the city’s (human) law and the will of the gods. Thus, and tempting as it may be in a book on religious liberty, we cannot see in Antigone a modern rights-bearing individual who defends the primacy of conscience over law. Rather, when we take Antigone at her word, it becomes clear that she believed that her obligation lay with the gods, not with any abstract conceptions of freedom, nature, or cosmopolitan humanity. Having said that, as I explain below, I do agree with the humanist idea that natural justice is indeed present and plays a vital role in the drama. This leads to the problem, as I see it, with the Hegelian idea that the play’s ending resolves the thesisantithesis struggle and achieves justice. Unlike the Hegelian school, I leave the tragedy unresolved, arguing that it was Creon’s and Antigone’s particular forms of hubris that led them to misapprehend the nature of law and thereby bring calamity 3 4

5

Goethe and Eckermann, Conversations, 149. G. W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Clarendon Press, 1977), VI.a.472, p. 285; see also Donald A. Hester, “Sophocles the unphilosophical: a study in the Antigone,” Mnemosyne 24, no. 1 (1971), 16. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150–1625. Volume 5 (Grand Rapids, MI: Eerdmans, 1997), 45.

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on themselves and their city. For Hegel, this clash had to occur, because Antigone and Creon’s laws were fundamentally opposed and irreconcilable. This reading seems implausible, though, for by the end of the play, Creon has converted and regrets his foolish disregard for Teiresias’ counsel. The path of reconciliation between Creon and Antigone, human and divine law respectively, was offered and rejected. In other words, whereas for Hegel, the apparent tragedy of clashing human and divine laws is in fact a necessary means to the end of achieving the right – and thereby no real tragedy at all – I argue that the play is tragic, but that it is so because of the hubris of Creon and, to a lesser extent, Antigone. Perhaps the clash of human and divine law was indeed necessary, as Hegel would have it, but as Haemon’s speech intimates, there is a larger, unified justice that could have comprehended both sides, had hubris not blinded the characters to it. Overall, then, I argue that the play presents a conflict of two legitimate forms of law – human law, as represented by Creon, and divine law, as represented by Antigone – then points to a natural justice that might have served to mediate the conflict and avoid the tragic ending. Unlike Goethe and other humanists, who see Antigone’s manifestation of the divine nature as an uncomplicated good, I argue that Antigone’s purist view of law as divine law actually contributes to the tragedy, just as Creon’s overwrought devotion to the human law proves his, and Antigone’s, undoing. Creon, in this light, is not in the play only to set into greater relief Antigone’s justice; rather, he portrays the legitimate6 force of human law in an excessive form, just as Antigone represents a myopic focus on the divine law.

A TALE OF TWO LAWS

Without rehearsing the complete storyline of Antigone, it is worth recalling the basic plot so as to set the stage for the play’s clash of laws. It is the earliest of the three extant plays of Sophocles’ Oedipus cycle, the others being Oedipus the King and Oedipus at Colonus. Antigone begins in the aftermath of the conflict of Oedipus’ sons 6

Creon’s command, in the context of the ancient polis, would have been considered more or less proportionate to the crime of treason. Seth Benardete writes: “There cannot be anything painful or disgraceful in Creon’s decrees, since Zeus failed to inflict no evil that could possibly arise from Oedipus, and Antigone has seen every disgrace and pain there could be as already among the evils that are Ismene’s and her own” (Sacred Transgressions: A Reading of Sophocles’ Antigone [South Bend, IN: St. Augustine’s Press, 1999], 3). Hester writes: “from the point of view of political justice, Creon’s edict was not intended to be distinguishable from his correct course of action – in effect, it was his correct course of action, and the audience would have viewed it as such” (“Sophocles the unphilosophical,” 21). Also, we must keep in mind that Polynices, due to his role in the siege of the Seven Against Thebes, was understandably, though perhaps not entirely justly, considered a traitor to the city. (It is usually taken for granted that Polynices was the traitor Creon imagined him to be. In a longer work on the topic, it might be worth asking whether Polynices, who was denied the rulership promised him by Eteocles in their accord following Oedipus’ death, was in fact such a traitor. This is not especially important for the case at hand, however, as it seems to be the intent of Sophocles that the edict is taken as a matter of course and its justice qua edict is not questioned; it is in its application to Polynices’ sister that justice enters the picture.)

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Polynices and Eteocles over the right to rule Thebes, held by the latter, a fight that ended in both sons’ deaths (see Aeschylus’ Seven Against Thebes). Creon, brother of Oedipus’ mother-wife Jocasta, assumes the throne and punishes Polynices for raising an army against his brother by issuing an edict to his subjects, upon penalty of death, to “leave him unburied, leave his corpse disgraced, a dinner for the birds and for the dogs” (205–206).7 Against the counsel of her sister Ismene, Antigone, the daughter of Oedipus and Jocasta’s incestuous marriage, refuses to obey the edict, is caught, and is condemned to death. The townspeople take her side, and the blind priest Teiresias and Creon’s son Haemon (who is also Antigone’s betrothed) argue for clemency, but Creon is unmoved, and Antigone is sent to die in a cave. Haemon commits suicide in protest and grief, and Creon’s wife Eurydice follows suit out of sorrow at her son’s death and anger at Creon (1305). In what follows I detail two forms of hubris present in the play: Creon’s hubristic view of human law, and Antigone’s hubristic disregard for the concerns of human law in favor of the will and law of the gods. Still, Antigone provides a hint as to a possible resolution in her references to a form of justice that is distinct from the law of the gods yet transcends the human law; I argue that this is natural law. The figures of Teiresias and, to some extent, Haemon, who are the voices of prudence in the play, represent this path not taken, the path that acknowledges the validity of both human and divine law, yet brings some measure of reconciliation to the clash. This interpretation recognizes in Antigone an implied normative ordering of these discrete forms of human, divine, and natural law.8 It neither wholly embraces the path of Creon, inasmuch as he represents the priority of human law and 7

8

All Antigone quotations from Sophocles I: Antigone, Oedipus the King, Oedipus at Colonus, ed. Mark Griffith and Glenn W. Most, 3rd edition (Chicago, IL: University of Chicago Press, 2013). Antigone is translated by Elizabeth Wyckoff in this volume. Numbers in parentheses refer to line numbers. These three forms of law are, of course, taken from Aquinas’ four-part division of law in which the eternal law stands as the source of all law; indeed, it is effectively “the Divine Reason’s conception of things” (Summa Theologica I–II, q.90.a.1.co). I am not here examining the nature of the eternal law or the Divine Reason. I assume the reader to share my belief in some semblance of right and wrong in the universe, and it is in the working out of the implications of that belief or observation that the project lies. Below the eternal law, then, are the forms of law of interest to my project: the natural, divine, and human laws. These are not competing sources of law; rather, they are of the same substance as the eternal law but revealed in different ways and consequently contain different precepts, though not contradictory ones. Aquinas’ description is that each of these forms of law is a “participation” in the eternal law. For example, the natural law contains those precepts of the eternal law that can be known through natural reason. (Aquinas describes the natural law as that which a rational creature has through its “share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law,” ST I–II.q.91. a.2.co.) Thus, one may know by nature or by natural law that it is wrong to take another’s property. However, what constitutes “property” will be left for the human law to discern, and this will vary from place to place. See ST I–II.q.95.a.4.c: “But those things which are derived from the law of nature by way of particular determination, belong to the civil [i.e., human] law, according as each state decides on what is best for itself.” Human law, then, is comprised of “particular determinations, devised by human reason” (ST I–II.q.91.a.3.co) of the natural law, assuming that the required characteristics of law (an

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immanence, nor makes Antigone an uncomplicated heroine of transcendence and divine law. Rather, it chastises the hubris of human law when it fails to take into account divine law and natural law. At the same time, it asks that the divine law admit of some relationship with natural law, such that human law and divine law are not left without a common denominator. In other words, it is through natural law that divine law can interact with human law in a manner accessible to both Creons and Antigones. The upshot of this is that when one finds a clash of human and divine law, she need not rest her claim simply on divine voluntarism, as Antigone did in pitting the will of the gods against the will of the king (and admitting of no other evidence of the injustice of Creon’s edict). Rather, she can employ natural law alongside divine law and human law, as Teiresias and Haemon attempt to do, thus permitting a point of entry for both the political-legal and religious aspects of her claim. Hubris’ Two Faces Warnings against hubris appear throughout Antigone. Just after Antigone and Ismene’s opening dialogue, the Chorus inveighs against “the boasts of a proud tongue” as the hatred of Zeus (127). The chorus is here directly concerned with Polynices’ treachery in the Seven Against Thebes conflict, denouncing “He who had stood . . . gaping about our seven gates, with that circle of blood-thirsting spears: gone, without our blood in his jaws” (118–120). The Chorus then tells what comes of such daring: “[Zeus] struck with hurling fire him who rushed for the high wall’s top, hoping to yell out ‘victory.’” Again, the direct reproach is aimed at Polynices, but the context and placement – immediately following Antigone’s announcement that she will defy Creon’s orders – suggest that the Chorus is warning her not to follow in her proud brother’s footsteps. The Chorus’ warning, in which the god Zeus opposes the human Polynices’ hubris, hints at the nature of the conflict in the play. But it is Creon’s pride, not Polynices’, that is the focal point of the story Sophocles tells in this play. When Antigone insists on burying Polynices despite Creon’s decree, Creon summons her ordinance of reason made for the common good by him who has charge of the community, and promulgated – see ST I–II.q.90.a.4.co) are met. On the other hand, for Aquinas, divine law is particular to Christianity – it was necessary to reveal a divine law (e.g., the Ten Commandments) because humans are not competent to judge all moral matters on their own (see ST I–II.q.91.a.4.co). I borrow from Aquinas’ schema throughout this chapter in order to differentiate the different forms or modes of law. However, I do not mean to assume agreement with the overall Thomistic thesis. Rather, I assume that the reader differentiates between the sense of the term “law” used in such expressions as “canon law” or “sharı¯ʿa law” (both forms of divine law), in “cheating on taxes is an offense against federal law,” and various expressions of “law of nature” that occur throughout the history of political philosophy. Whether these overlap entirely with Aquinas’ understanding of the forms of law is an open question.

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and demands an account, prompting Antigone to assert the primacy of divine law and justice: For me it was not Zeus who made that order. Nor did that Justice who lives with the gods below mark out such laws to hold among mankind. Nor did I think your orders were so strong that you, a mortal man, could overrun the gods’ unwritten and unfailing laws [nomoi]. (450–455)

Antigone’s plea to obey the “gods below” rings hollow to Creon, who cannot comprehend law as anything other than what he commands. Sophocles repeatedly brings characters to Creon to implore him to recognize the folly of his insistence on executing his decree against his own niece. This is perhaps nowhere clearer than in the dialogue with Haemon, in which Creon refuses to submit to the wise counsel of his son largely out of pride at the prospect that he should “rule by other mind than mine” (736). The overarching theme of the dialogue is Creon’s hubris, which leads him to shame Haemon for his attempt to counsel his father out of his stubborn insistence on Antigone’s punishment. It begins with Creon presenting his son two options in response to his treatment of Antigone: either Haemon is “maddened against [his] father” or he is “friends [with Creon], whatever [Creon] may do” (633–634). The stark options Creon offers his son imply that he cannot conceive of a friendship that includes disagreement or anger: if Haemon is angry with his father for condemning his bride-to-be, there is no friendship between them. Here we begin to see the voluntarist9 aspects of Creon’s philosophy of law: what he wills is all that counts in the matter of justice; disagreement with him is the same as enmity. Justice exists only in the ruler’s will or command. Haemon’s reply at first seems to affirm his loyalty to, and even agreement with, Creon: “My father, I am yours. You keep me straight with your good judgment, which I shall ever follow” (635–636). Emboldened, Creon deepens the divide between his two options for Haemon: not only must Haemon choose between loyalty to his father the king and siding with Antigone, but, to Creon, the latter option must mean that Haemon is overcome by a lust for her that misleads his mind (648). That there might be justice independent of Creon’s will or mind that would unite Haemon with Antigone is not considered. Even truth, in this speech, is selfreferential: “I shall not now proclaim myself a liar, but kill her” (657–658). That is, Creon claims that by virtue of following through on his word, he avoids lying. Even if it commits him to folly or cruelty, to Creon, truth is the fulfillment of his word. Likewise, right and wrong are concepts defined by the command of the king. Creon states that the ruler’s command must be obeyed “when it is right, and even when it’s not” (667). This is voluntarism at its finest. Obedience to a command that lacks righteousness is still better than the alternative: “There is no greater wrong than disobedience” (672). Disobedience leads to disorder in the city, which will spread 9

Creon’s voluntarism bears important resemblance to the legal positivism critiqued in Chapter 1; the idea that law can be simply willed into being is the hallmark of both.

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itself abroad (659–660), and “this ruins cities, this tears down our homes, this breaks the battlefront in panic-rout” (673–674). Creon’s approach to law takes political order – brought about by human law only – as both necessary and sufficient. No higher standard of justice is necessary; law is equivalent to the king’s word. To Creon, because disorder, anarchy, and insubordination are the ultimate evils to be avoided; disobedience to “the man the state has put in place” (666) is the greatest wrong. Note here that Creon considers it to be the state, not the gods, that has put him in place. Earlier the chorus had referred to Creon’s appointment as having come about “by the gods’ new fate” (158), but Creon seems happily dismissive of the gods’ role in his rule. Note also that the ills to be avoided – disorder in the city and breaking of the battlefront – concern primarily the body rather than the soul, reflecting a preoccupation with what is immanent rather than transcendent. This is important, for it is a characteristic shortcoming on Creon’s part that will be mirrored by Antigone’s exclusive concern with the soul and the gods. At this point, Haemon, rightly sensing the hubris behind his father’s words, now gingerly begins to correct Creon’s mistaken belief in his support: he announces that he must side with the town and Antigone, bookending his speech by appeals to “good sense” (683, 724). One detects a theme of humility in Haemon’s words, first in his manner of speech but then at length in an appeal for Creon to adopt the virtue. He claims that he cannot argue with Creon’s remarks because he “couldn’t find the words” to do so; nevertheless, “someone else might bring some further light” (687), acknowledging at the very least a chimera of epistemic humility. His argument comes not from a claim of his own higher knowledge, but from the good sense that comes from the gods (683). Such good sense, according to Haemon, should lead Creon to bend his will and change his mind – there is no shame, he insists, in “learning more . . . from others when they speak good sense” (710, 724). Haemon implores Creon to relent in language that recalls Creon’s own words at two separate instances in the play. First, Haemon compares Creon’s unbending will to trees that will not yield to the storm torrents, trees that, Haemon points out, “perish root and branch” (715). This language is reminiscent of Creon’s words to Antigone: “These rigid spirits [i.e., such as Antigone’s] are the first to fall. The strongest iron, hardened in the fire, most often ends in scraps and shatterings” (474–476). Both Antigone and Creon, of course, will perish “root and branch,” with Creon’s son and wife dying prematurely, and Antigone’s life ending unmarried and childless, both victims of their respective forms of hubris: Creon’s devotion to his own man-made law and Antigone’s rejection of prudence in her devotion to the gods. Haemon’s second attempt to use Creon’s words against him employs a ship metaphor: “And so the ship that will not slacken sail, the ropes drawn tight, unyielding, overturns. She ends the voyage with her keel on top” (716–717). Here Haemon recalls the language Creon himself used for the fatherland in his inaugural

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speech to the council: “it’s she, the land, who saves us, sailing straight, and only so can we have friends at all” (188–189). Taken together, then, the fatherland makes political life (“friends”) possible, yet an unyielding spirit in its governance will overturn it. Creon apparently misses or ignores the meaning, however, standing firm in his judgment and failing to recognize the very hubris, the “unyielding rope,” that will be his own downfall. It is worth asking what it is that Haemon considers to be the substance of the “good sense” that opens and closes his appeal. Seth Benardete points out that it is not Haemon’s own good sense and wisdom that fills his speech; rather, it is replete with appeals to public opinion (i.e., the opinions of Creon’s subjects).10 He relates sympathetically the townspeople’s whispers that Antigone is “unjustly doomed, if ever woman was, to die in shame for glorious action done” (693–694). But it is clear that Haemon has some sense of a higher law that extends beyond mere public opinion. He eventually declares his father’s conclusions unjust (743), despite the threat this implies for his own well-being. He also refers to Creon’s judgment as “opinion” (706), which subtly suggests the need for reason, if Creon is to reach a true opinion about what is just. Above his epistemic humility, however, and even his belief in a higher standard of justice, is Haemon’s implicit belief in the unity of justice. Creon claims that he is acting justly because he is respecting his office – he is promulgating a decree and sticking to it. But to Haemon, Creon “doesn’t respect it, [because he is] trampling down the gods’ due” (745). In other words, justice is more than simply acting out of proper authority; it must respect “the gods’ due,” or, in Antigone’s words, “that Justice who lives with the gods below” (450). This Justice, moreover, is beneficial for Creon, Antigone, Haemon, and the gods; it is not mere partisan interest. When Creon attempts to dismiss Haemon as merely acting as a mouthpiece for Antigone – “Your whole long argument is but for her” – Haemon adds, “And you, and me, and for the gods below” (748–749). In other words, there is not one justice for Antigone and another for Creon; there is one, unified justice. Relatedly, in Haemon’s view – which, if followed, we must bear in mind, would have avoided the tragic ending – the king’s justice (human law) and divine justice (that owed to the gods) do not, in the end, conflict. There may be the appearance of a conflict, but this is because the human law needs to bend to fit “the gods’ unwritten and unfailing laws” (455). In this light, we might see Haemon’s appeal to the townspeople’s opinions as an intervention in the hubris of Creon’s determination to follow human law at any cost. But Creon persists, rejecting his subjects’ input: “Is the town to tell me how I ought to rule?” (734). His pride leads him to refuse Haemon’s advice wholesale, requiring no further consideration than his advanced age for certainty in his rightness: “At my age I’m to school my mind by his? This boy instructor is my master, then?”

10

See Benardete, Sacred Transgressions, 87.

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(728–729). In Haemon’s “good sense” Creon can see only treachery: “Your whole long argument is but for her [i.e., Antigone]” (748). Later in the play, the king’s counselor and prophet, the blind Teiresias, serves as another voice of reason juxtaposed against Creon’s hubris. Importantly, whereas Haemon’s appeal to Creon was on the part of the people, Teiresias’ counsel derives from the apparent impending wrath of the gods, who have made their displeasure known by rendering the altars of the city useless for sacrifice and refusing to accept of its priests (1017). This, I argue, signifies the mediating role that Teiresias and Haemon’s view of justice could have played in the play, had Creon relented – it is a justice that stands between humans and the divine, between the excesses of public opinion and divine voluntarism. On entering Creon’s presence, Teiresias states that there are “two of us looking through one pair of eyes. This is the way of walking for the blind” (989–990). He is referring literally to the physical eyes of his boy attendant, who led him into the room, but in fact it is the “eyes” of Teresias’ moral vision through which blind Creon must come to truly see. Teiresias advises Creon to “yield to the dead” (1029) and allow Antigone to bury Polynices. Teiresias charges that Creon has “confused the upper and lower worlds” (1068). This is true in the straightforward sense that Teiresias points out – Creon has left the dead Polynices above ground and banished the living Antigone to an effective tomb.11 But given Antigone’s and Haemon’s, as well as Teiresias’, allegations against Creon’s edict (that it defies the Justice that lives below, that it is an unjust deprivation of the gods’ due, and that it is more indicative of stubbornness and stupidity than of good ruling), we may just as easily take it to mean that Creon’s ruling confuses the priority of the law of man with that of the law of the gods. Or, to put it differently, it has confused a positive, uttered edict of man’s justice with the unwritten law of the gods’ justice. Still, with Haemon’s and Teiresias’ appeals to prudence in the background, it is the hubris of both Antigone and Creon that forms the focal point of the play. Creon’s hubris comes through in a particularly telling way in his dialogue with Antigone. Antigone refuses to disobey “the gods’ unwritten and unfailing laws” on the basis of “fear of any man’s proud spirit” (455, 457) – necessarily a reference to Creon’s proud spirit, as his is the only man’s spirit threatening her. But her choice of words is significant, because it is Creon’s pride that she opposes to the gods’ unwritten law, not, as we might expect, Creon’s edict, power, or will. For if the play is cast in its classic law-versus-conscience interpretation, Antigone would have to oppose the king’s law, or at least his office – but not his pride. Yet to her, the opposition is between the gods’ laws and the king’s proud spirit. Even more interestingly, Antigone professes to know that she “must die . . . even without your [Creon’s] edict” (460–461). That is, the tragedy would have come about simply by means of

11

See Benardete, Sacred Transgressions, 127.

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the opposition of Creon’s pride to the law of the gods. Creon’s hubris, it would seem, is powerful enough to indict her even without a crime. But we must ask whether Antigone, who so fiercely opposes the king’s pride, is not herself guilty of pride. Below I argue that, contrary to prevailing interpretations of Antigone as the “living embodiment of the law,” Antigone’s grasp of the law, while deeper than Creon’s, still insists on choosing sides: the divine law opposes the human law, and she chooses the former. But she does so with her own version of hubris by refusing to listen to counsel, refusing to employ reasoned persuasion in favor of fanaticism.12 According to Seth Benardete – and, we could add, humanist interpretations of the play as well – Antigone is the lived exemplar of the gods’ unwritten laws: the “purity of her devotion . . . is due to the law,” Benardete writes, and the very “law Antigone obeys shines through Antigone.”13 Not only does it shine through her, but Antigone is identified with the law itself: “Antigone is nothing but the law and nothing but her nature.”14 This intensity with which she follows the law makes her “the living embodiment of the law [such that] no violation of it could be unknown to her.”15 Antigone’s oneness with the law is contrasted with Creon, who “is in speech as passionate as Antigone when it comes to the law: but the laws he obeys do not shine through him, for he simply is not up to the degree of intensity needed to bring about such a transparency.”16 But does Antigone, pace Benardete, represent the highest understanding of law as Law, that is, not simply one law among many but an idealized, unified, even universal Law? In this view, there is one Law that rules the world, and human law participates in it to various degrees. Creon’s law falls short of this Law apparently because he is “not up to the degree of intensity” which 12

13 14 15 16

It is my own interpretation of the play, though I am not sure it is what Sophocles intended, that this course of reasoned persuasion and listening to counsel would have been the best one. It is not a theme Sophocles develops at great length in the play, but if we turn to Plato, especially the opening lines of The Republic, we see three possible paths for getting what one wants from someone: first, the person submits peacefully; secondly, forcible means; or the “third choice” of persuasion. (See 327b, in which Polemarchus addresses Socrates and Glaucon: “Well, you are going to have to choose between staying here peacefully or fighting us if you choose to get away.” Socrates: “How about a third choice in which we persuade you that you ought to let us go?” Polemarchus: “But could you persuade us if we don’t listen?”) In Antigone, Ismene chooses the path of least resistance (“staying here peacefully”), and we as readers at once neither fully approve of her choice nor fully blame her. Antigone chooses to fight, but importantly, so does Creon. What Plato is suggesting, though, is the inadequacy of both of these paths; the third choice of persuasion is the correct one. But this passage also raises a tremendously important question, even for the play: could Antigone have persuaded Creon if he would not listen? Or would she, like Socrates, nevertheless have been forced to choose her own death? I am not sure that the play lends itself obviously to one interpretation over the other – i.e., that Creon would have relented if Antigone had only attempted the path of persuasion, on the one hand, or that no matter how reasonable she might have been, Creon would have stubbornly stayed his course – but given that Socrates follows the above dialogue with ten books of attempted persuasion, it seems clear that one ought to try. Benardete, Sacred Transgressions, 20. Benardete, Sacred Transgressions, 64. Benardete, Sacred Transgressions, 55. Benardete, Sacred Transgressions, 28.

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Antigone possesses and which allows her to see more transparently the truths the Law attempts to communicate. This version of Antigone makes her something of a mystical seer, such that she comes to represent the embodiment of what we might term the higher law. This is, in effect, the classic Hegelian interpretation, which I discuss below. Benardete’s picture of law more or less follows a Thomistic division of law, that is, an eternally existing capital-L Law in which the divine, natural, and human laws participate in various ways. This is not the typical understanding of law in ancient Greek thought, but it was not unknown, either.17 If this vision of law is the correct one, and if Benardete correctly considers Antigone to be the “living embodiment of the law,” then for whatever reason, Antigone simply has a greater understanding of the divine law than does Creon (or Ismene, for that matter).18 An alternative position to what I am labeling a Thomistic one could perhaps fit roughly into an Augustinian City of God, City of Man schema. On this reading, Antigone may not represent the equilibrium, the higher aspect or perfect realization of a unified Law. Instead, there are discrete bodies of law, divine and human, and Antigone is to divine law what Creon is to human law: guilty of a hubristic epistemological certainty about the law. In other words, Antigone’s devotion to the divine law is as problematically one-sided, if not to the same degree then at least in the same way, as Creon’s devotion to human law. Which reading is correct? We can see that Antigone is wholly devoted to the law of the gods and is uninterested in either continuing to live in the city, as Ismene desires, or in reconciling the two laws as, perhaps, Haemon attempts to do.19 Furthermore, she seems in some ways almost to mimic Creon’s attitude toward the law, except that in her case, it is the divine rather than human law to which she obstinately clings. For Creon, for instance, there is “no greater wrong than disobedience” (672) – the law is the law, and to disobey it, even as an “act of grace,” is still a crime (514). Antigone, likewise, does not deliberate on whether she will obey the human law rather than that of the gods when she learns of Creon’s edict (451), nor does she attempt a sophisticated justification for avoiding civil disobedience while honoring the dead in some lesser way. She obeys the divine law, simply. She cannot conceive 17 18

19

See discussion p. 102. Ismene could be understood in different ways, but one interpretation of her begging forgiveness from “them beneath the earth” (65) is as an indication that perhaps she initially misunderstands the divine law just as much as Antigone does, but she lacks the courage to carry it out – courage she later musters in her plea to be killed as one who has disobeyed Creon’s edict (545). That Haemon might seek such reconciliation is suggested in his attempts to mitigate Creon’s decree while not wholly rejecting it. He denies finding fault with Creon’s speech concerning the importance of obeying the law (“I couldn’t find the words in which to claim that there was error in your late remarks,” 685), but he finds that in the particular case of Antigone, condemnation is unjust (693). He credits his view with “good sense” (684) and considers it in accord with “the gods below” (749), indicating that Creon’s law and the gods’ law, while not in harmony in this case, need not be intrinsically at odds, if only Creon listens to wise counsel (724).

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of dishonoring what the gods have honored, as Creon cannot, at least at first, conceive of undermining devotion to his human law. Antigone’s connection to the divine law enjoining burial transcends action alone; for her it is a question of identity. When Ismene declines to join her, Antigone responds, “Be what you want to; but that man shall I bury” (71, emphasis added), indicating that the choice to “honor what the gods have honored” (77) is in some way constitutive of one’s identity. It is also the defining feature of friendship – Ismene’s refusal to participate in the burial cuts her off from Antigone’s love: “I cannot love a friend whose love’s mere words” (543). Likewise, Creon repeatedly associates friendship with loyalty to the fatherland or law.20 On this reading, if Creon is a sort of tyrant, Antigone is a purist who takes the gods’ law literally and absolutely. She sees law only in light of its divine aspect, which preserves the man-god bond; she cannot see, as her sister does, the perhaps lower, yet crucial, human aspect of law that preserves the city. Instead of the transparent vision of the law that Benardete attributes to Antigone – and credits to her devotion – we have a figure who is blinded by her myopic understanding of law. She, like Creon, is a tragic figure because of her stubborn refusal to see the larger picture of justice, homing in only on the gods’ commands, or to listen to wise/prudent counsel (Ismene for Antigone, Haemon for Creon). I believe that both of these interpretations – what I am loosely describing as the Thomist and Augustinian schemas – are found in the play, but with different consequences attached to each. If human law (Creon) and divine law (Antigone) come from discrete sources and are simply bound to conflict (Augustinian schema), we will end with tragic, impossible conflict. On the other hand, if there is, as I argue, an overarching, unifying Law or justice lurking in the play’s shadows (Thomist schema), then there is hope for a potential reconciliation. For though Antigone alludes to unwritten laws of justice in her initial speech before Creon, she betrays faith only in – and rhetorically, ultimately relied only on – divine law as an autonomous form of law. She is not unaware of a greater justice – her references to the unknown origins of law and the “Justice that lives below” betray some inkling to this effect – but because her philosophical world does not acknowledge any sort of mediating natural law, her ending is, necessarily, tragic. My own interpretation is more akin to a Thomist one, as I have characterized it; namely, there is an apparent conflict between divine and human laws, but when natural law is brought into the picture, a richer, unified conception of law emerges. Prevailing interpretations, however, seem to fall more in line with the Augustinian schema above, portraying Creon with his law and Antigone with hers. This makes for a good tragedy, but not, I argue below, for good politics. 20

See, e.g., lines 182 (“And he who counts another greater friend than his own fatherland, I put him nowhere”), 188 (“Nor could I count the enemy of the land friend to myself”), and 634 (“Are you [Haemon] here, maddened against your father, or are we friends, whatever I may do?”).

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It hardly needs stating that Antigone has spurred generations of commentaries and interpretations, ranging from the humanist to the feminist, on topics as diverse as citizenship and psychoanalysis. I am hardly the first to focus on the themes of law and justice in the play, and I pause here to engage some of the most notable ideas, recent and less so, of the roles of human and divine law, as well as the conflict and tragedy of the play. As will become clear, beyond what I am positing as a mediating natural law, there seem to be few alternatives for resolving or averting the tragedy that Sophocles portrays in the clash of human and divine law. Hegel: Conflict to Achieve Right Hegel’s commentary on Antigone, while limited to a few pages in the Phenomenology of Spirit and subsequent comments in Lectures on Aesthetics and Philosophy of Right, has spurred an ongoing tradition of Antigonean interpretation that, like my own, sees in Antigone a clash of divine and human law. His treatment of the play in Phenomenology occurs in the context of a discussion on the ethical order (i.e., the order of law and right and wrong) and the family. To Hegel, the family is the “natural ethical community,” which is to say an intuited, “unconscious, still inner Notion [of the ethical order].”21 The family as a whole does not fully realize the ethical life, for its relations are mixed with natural affections, and a community can be “an ethical entity only so far as it is not the natural relationship of its members . . . for the ethical principle is intrinsically universal.”22 The ethical order is composed of universal principles, whereas the family is private and held together by natural bonds and affection rather than principle, in Hegel’s rendering. The male and female natures within the family also determine the potential for ethical action: “the feminine, in the form of the sister, has the highest intuitive awareness of what is ethical. She does not attain to consciousness of it, or to the objective existence of it.”23 Women, that is, have an intuitive grasp of the ethical life, even if they do not voice it in the explicit, universal ways in which human law is articulated. Women are associated with the internal family life, the divine law, and the household gods.24 Because the family is governed by the divine law, an intuited family duty such as burial, which Hegel discusses explicitly,25 is understood to be obligatory under the divine law. In this light, Antigone is following her Hegelian path perfectly by defending family and the gods whom her family worships. 21 22 23 24 25

Hegel, Phenomenology of Spirit, VI.a.451, p. 269, italics original. Brackets added by editor. Hegel, Phenomenology, VI.a.451, p. 268. Hegel, Phenomenology, VI.a.457, p. 274. Hegel, Phenomenology, VI.a.457, p. 274. See Hegel, Phenomenology, VI.a.452, p. 271: “The Family keeps away from the dead this dishonouring of him . . . and weds the blood-relation to the bosom of the earth, to the elemental imperishable individuality.”

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Men, on the other hand, attain the “self-conscious power of universality” through their citizenship, their life that is out in the open, so to speak, as contrasted with the interior, concealed, unarticulated life of the woman.26 The public man Creon thus represents the human law, while the private woman Antigone is to Hegel a “guardian of the divine law,” which she knows intuitively.27 Given this public-private divide, there needs to be something connecting the concealed, ethical life of the woman and the universalized life of the man. To Hegel, it is the sister-brother bond that transcends the natural ethical order of family; in other words, the brother-sister relationship breaks through the boundaries of female, private, intuited ethical life and gains access to the public, male realm of human law. While other relationships in the family are based, in part, upon natural feelings or desire – the bonds between husband and wife and parents and children both draw on natural affection or desire – the sister-brother bond is freed from desire and can therefore become a truly ethical relationship.28 For, according to Hegel, the brother is the figure “in whom the Spirit becomes an individuality which turns towards another sphere, and passes over into the consciousness of universality . . . he passes over from divine law, within whose sphere he lived, over to human law.”29 The brother thus serves as the sister’s link to the human law, for he comes from the same natural ethical order that is the family but passes into the public domain of the human law. When this sister-brother bond is broken, as in the death of Polynices, the sister loses her link to the human law. Thus, the “loss of the brother is . . . irreparable to the sister and her duty towards him is the highest.”30 Having lost, in Polynices, her link to the human law, Antigone can effectively see nothing but the divine law and her duty to Polynices that proceeds from it. Nor, in Hegel’s view, can either human law or prudence moderate her position: Since it sees right only on one side and wrong on the other, that consciousness which belongs to the divine law sees in the other side only the violence of human caprice, while that which holds to human law sees in the other only the self-will and disobedience of the individual who insists on being his own authority.31

Antigone can only see in black and white: there is the gods’ law, and there is lawlessness. The antithesis to Antigone is, of course, Creon. Creon interprets Antigone’s insistence on the divine law as nothing but “self-will and disobedience,” an assertive defiance of his right to enact and enforce human law. Whereas Antigone is the bearer of a concealed divine law that is expressed as “an inner feeling and the divine element” within her, Creon’s commands, the human law par excellence, carry 26 27 28 29 30 31

Hegel, Phenomenology, VI.a.457, pp. 274–275. Hegel, Phenomenology, VI.a.459, p. 275. Hegel, Phenomenology, VI.a.456, p. 273. Hegel, Phenomenology, VI.a.458–459, p. 275. Hegel, Phenomenology, VI.a.457, p. 275. Hegel, Phenomenology, VI.a.466, p. 280.

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a “universal, public meaning.”32 Man and woman, public and private, human and divine thus meet, and clash, in Creon and Antigone’s struggle. Although Hegel’s schema of family and law raises not a small number of feminist (and other) objections that exceed the scope of inquiry here, it does describe Antigone’s act quite aptly: she is most directly governed by the law of the gods, but she also intuits the right (ethical) thing to do. Where I part ways with the Hegelian reading, however, is in the form of the synthesis, as I discuss in the section below on law in Antigone. Antigone’s Agonistic Politics? While human laws may conflict with a higher law, perhaps even inevitably, this does not pose a theoretical problem. For if human laws were fundamentally unjust, we might need to go no further than the Augustinian principle that “an unjust law is no law at all.” In other words, the injustice of one law negates its very legality, thereby obviating the dilemma. The challenge then becomes purely practical (which is not at all to say easy), viz., practicing civil disobedience. In Antigone, however, the problem is a real one – a law that is legitimately and authoritatively aimed at the welfare of the city conflicts with divine law. We cannot simply ignore the human law, then, but neither can we dispense with divine law as, at best, a law subordinate to political concerns or, at worst, the remnants of an irrational age. For even if we disregard the deities, relying on the human law alone leaves us wanting for justice in both cases. Antigone, though innocent of treachery herself, finds herself punished by Polynices’ punishment, her beloved brother humiliated and shamed for eternity. This leaves the unsatisfying impression that no reconciliation between divine and human law could be achieved; rather, one side has simply won over the other. What are we to make of this? It seems that there are two potential – but opposed – lessons to draw from these conflicting commands of divine and written law. The first, corresponding to an agonistic view of politics, is that the demands of the law of the gods and those of Creon’s human law are bound to conflict, and we would do well to stop pretending otherwise. In practical, contemporary terms, this would mean that religious freedom is ultimately impossible. If Creon’s command was not a fundamentally unjust one and, at the same time, Antigone’s need to bury her brother, itself ordered by the gods,33 is in some way morally obligatory, then divine and human law are bound to conflict in the endless ago¯n of politics and law. This is not unrelated to the Hegelian interpretation in its necessity of conflict, but unlike Hegel’s reading, it avails of no final synthesis. 32 33

Hegel, Phenomenology, VI.a.457, p. 274 and VI.a.466, p. 280. At least, as Antigone understands it at 455 and as inferred from Teiresias’ interpretation of the gods’ reaction at 1000–1032.

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The second potential lesson, however, suggests a need for a natural law to mediate the human and divine laws, as they are perceived.34 In this case, we are to see in Antigone the hubris of exclusive reliance on either human law (Creon) or divine law (Antigone, for the most part), and are instead meant to integrate both with natural law. It is this latter approach that I favor, but first we turn to various readings of Antigone that tend toward the former. Bonnie Honig’s analysis of Antigone situates law and politics in a sphere of inevitable conflict. To Honig, interpretations of Antigone that focus on the ethics of her action fundamentally misunderstand the play:35 Antigone’s action does not signify obedience to a universal ethic or law of nature that is higher than the human law. Indeed, to Honig, Antigone’s import is not ethical at all but rather political. Honig recasts Antigone as a figure of agonistic politics, one whose final dirge “parodies, mimics, lampoons, and cites the stories, figures and speech of the powerful.”36 Her fight against power and her eventual suicide are acts of courage in the face of the “logocentric polis” – defiance against the universalizing rationality that dominates the political sphere.37 Honig’s interpretation is provocative to be sure, but we have to ask whether this take on Antigone’s act actually precludes either ethical import, or indeed the very universal law of nature that Honig wants to throw out with the ethical bath water. Surely Antigone’s act may be both a political one that signifies the inherently agonistic nature of the political sphere and an ethical one that makes a normative claim on competing sources of law. For the political ago¯n is a struggle for something – that is, there are competing normative or moral forces at play in the struggle. Political actors do not struggle for the sake of struggling. Antigone’s act may indeed lend itself to a profound political interpretation. But that act is so important in the political sphere precisely because it is an ethical act – the act of defying a human law to obey a competing law.38 If this is correct, then it is furthermore not clear that Honig has circumvented the law of nature thesis she opposes. Why would an agonistic political sphere preclude 34

35

36 37 38

I say “as they are perceived” because when natural law enters the picture and insists, as it does, that both human and divine law are in some way answerable to reason, perceptions of both forms of law often change. For instance, one may take her religion’s divine law to command inequality of women, but because this violates the natural law, she is forced to wrestle with interpretations of the divine law until she reaches one that allows an integration of natural and divine law. Human law, too, is susceptible to altered perceptions under natural law frameworks, but perception is less of an issue here because of the positive, explicit nature of most human law. In Honig’s case, this universal law is a fairly minimalistic one, reduced to the common fact that “we humans are and always have been, or had, mothers who mourn our mortality,” here extending the familial relation beyond the literal one in the play. See Bonnie Honig, “Antigone’s two laws: Greek tragedy and the politics of humanism,” New Literary History 41, no. 1 (2010), 2. Honig, “Antigone’s two laws,” 22. Honig, “Antigone’s two laws,” 22. This should not be taken as a denial of the political aspects of her act; rather, it is to accentuate the import of her act because it is at once ethical and political.

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the existence of a law of nature (or otherwise higher law) by which all political acts – whether of those holding power or those subjected to it – can be measured? I argue that the political nature of Antigone’s act actually lends credence to, rather than opposes, the idea that there is a higher law by which all political acts can be measured. For to accept Honig’s interpretation renders Antigone’s and Creon’s competing claims as ones of political interest rather than of ethical principle, and this is an implausible reading of either character’s motives. Antigone acts against her own interest in every measurable way; we have no reason not to take her at her word when she claims to act out of moral obligation to obey the divine law. Creon makes it clear that he believes it to be just to punish anyone who attempts to bury a traitor, even at the cost of his relationship with his son and heir. Both characters are claiming that their respective acts are the right thing to do, not simply – or in Antigone’s case, not at all – the self-interested thing to do. Honig, however, denies any ethical meaning to the play, eschewing questions of morality and rights in favor of a view of politics that, denuded of such ethical aspects, is left with naked interest. None of this should be understood to mean that an agonistic reading of Antigone requires a universal law of nature; rather, it simply should not be said that it precludes it, and the ethical claims Antigone and Creon make should not be rendered purely political. It is difficult to deny the presence of agonism in the play, but I argue that, far from disproving its presence, this is precisely because there is a law of nature lurking in the background. Perhaps not an uncontroversial or even immediately grasped one – in other words, such a law of nature could exist, even were people unable to agree on it or unwilling to heed it – but there is room left for such a law. The Impossibility of Antigone Still, while Honig is wrong to claim that Antigone leaves no room for an ethical law of nature, she is nevertheless correct that Antigone’s act does, in the end, defy the totalizing, logocentric nature of the political realm. In Seth Benardete’s reading, Antigone’s desire to bury her brother and honor the gods’ demands is an impossible desire, for in the context of the polis and its laws, that desire cannot be fulfilled. To Benardete, Ismene’s words to Antigone point out the impossibility, not mere imprudence, of her desired act: “You crave what can’t be done” (90); Antigone is “Wrong from the start, to chase what cannot be” (92) – not, that is, what is merely ill-advised or unlikely.39 Benardete speculates that “Antigone’s love of the impossible does not just accidentally express itself in an unrealizable attempt to obey the divine law [here, to bury one’s kin], but there is some connection between them.”40 That is, it is not accidental to Antigone’s predicament that what she loves and what the gods 39 40

See Benardete, Sacred Transgressions, 16–17. Benardete, Sacred Transgressions, 18.

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demand are both impossible; rather, the thing that Antigone loves is impossible precisely because she loves what the gods demand – and what the gods demand is, essentially, impossible. If the gods demand of humans what is impossible, then the city is practically by definition an ago¯n, the place where the man-divine and man-man bonds come continually to struggle and negotiate settlements. That is, the divine demands on a human (the vertical, human-divine bond) become impossible when the city’s laws are interposed; it would not be impossible for Antigone to bury her brother were there no city. But the city must be there because of the existence of man, or at least because of man-as-social-creature. That is, the horizontal, human-to-human bond exists as well as well as the human-divine bond, and, like the human-divine bond, demands governance and rules. That this is all impossible, if we follow Benardete’s reasoning, is premised on the assumption that the demands of the gods and the demands of man or society are not the same, but they are both necessary. Thus do we find Creon’s (reasonable, even just) law conflicting with the (also reasonable, just) divine law to bury one’s kin. This conclusion – the ultimate impossibility of justice in the city, this agonistic view of the city and its laws – is indeed plausible. Indeed, both Plato and Augustine seem, in various ways, to suggest this, by separating the world of shadows from the abode of the Good, or the City of Man from the City of God. If there exist both man’s law and God’s law, man’s city and God’s city, then the freedom of man to obey God as he sees fit is ultimately impossible, for man is still bound by the city’s law, and that law is by its nature and source not the same as divine law. The city, then, will remain a place of struggle – not only democratic struggle, between citizens, but also struggle between man’s law and God’s (or the gods’) law. Unless, that is, law is understood to comprehend not only human law but also natural and divine law. The Impossibility Thesis: Sophocles’ Gods and Ours Donald Hester makes a strong case for the “impossibility” thesis as the correct one to draw from Antigone – and it is a rather troubling one even today. Hester points out that the tendency to assume that there is conflict between justice and the will or command of the gods is a fundamentally modern one. “To Christian and Humanist alike,” Hester writes, “it has become impossible to believe in the existence of a divinity that commands men to do what is morally wrong.”41 But this notion developed much later than Antigone, so there is no reason for us to believe that Sophocles necessarily saw a resolution to the ongoing ago¯n of man and god. We must, says Hester, “pause and consider that Sophocles’ gods are not our gods.”42 In other words, the gods, to Sophocles, may very well command something that is not 41 42

Hester, “Sophocles the unphilosophical,” 41. Hester, “Sophocles the unphilosophical,” 41.

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only against human law, but even immoral: “Sophocles was not a Christian, and for him the question [i.e., of whether a god may command something immoral] may have appeared differently.”43 Ancient myths and even religious texts recount examples of what Hester describes as divine hostility toward man, whether by punishing children for the sins of their fathers or for making one unfairly disposed to sin, such as in the case of hardening Pharaoh’s heart (in Exodus 7),44 or the Greek notion that the gods would blind a man, induce him to do wrong, and then punish him for his wrongdoing.45 Moreover, we have to keep in mind that the gods themselves were not united; they fought constantly among themselves and unity of divine justice could hardly be assumed. At times Antigone certainly seems to think the gods no better than Hester’s characterization of them. Twice during her first speech before Creon, Antigone calls attention to the inscrutability of divine law, once concerning its genesis – “no one knows their [i.e., the gods’ unwritten and unfailing laws’] origin in time” (457) – and once concerning its content, when Creon asks how it could be that the gods would desire the burial of both brothers, good and bad alike – to which Antigone responds, “Who knows but this is holiness below?” (521).46 This is not just a shroud of mystery that surrounds a divinity; such mystical elements perhaps belong to nearly every god and religion. Rather, Antigone is pointing to gods that are of their very essence unknowable to man and unanswerable to reason. Antigone questions not just the knowability of the gods but their loyalty and goodness as well. In her final speech, having been condemned to a living death, she backs off from the certainty she has clung to throughout the play, asking whether indeed she is the “ally” of the gods that she had imagined herself to be: What divine justice have I disobeyed? Why, in my misery, look to the gods for help? Can I call any of them my ally? I stand convicted of impiety, the evidence my pious duty done. If the gods think that this is righteousness, in suffering I’ll see my error clear. But if it is the others who are wrong, I wish them no greater punishment than mine. (921–928) 43 44

45 46

Hester, “Sophocles the unphilosophical,” 41. As a note, even this act could, on some accounts, be taken as a just act. In a defense of man’s free will in Chapter VIII of the Eight Chapters, Maimonides explains this incident as itself a punishment for Pharaoh’s continuous and freely chosen refusal to let the Israelites go. In this case, he writes, it is not an unjust act on God’s part of setting man up to sin, then punishing him when he sinned as God had ordained. Rather, Pharaoh’s punishment for treating the Israelites as he did was the removal of the ability to repent. See Maimonides, The Eight Chapters of Maimonides on Ethics, ed., trans., and annot. Joseph L. Gorfinkle (New York: Columbia University Press, 1912.). Hester, “Sophocles the unphilosophical,” 43. Interestingly, Benardete points out both of these occurrences, though he insists that Antigone is the “living embodiment of the law.” See Sacred Transgressions, 68.

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Antigone took the path of piety and of loyalty to family and the gods, yet she is rewarded with misery, even the betrayal of the gods. She is no longer certain of her righteousness, or of the gods’ will; the “error” may be on either side. All of this is, again, quite troubling for modern politics and for the larger project of this book. For if we have no reason to suppose that the ago¯n of human law and divine law can be resolved in a unified justice, then this ago¯n, much more than Honig’s political one (which pits human against human rather than human against god), will foreclose the possibility of a robust religious freedom. If the gods are apt to command something unjust, then human law cannot permit that divine law. This means that human law must both arbitrate and trump divine law. The remaining hope is that Christianity and humanism have gotten it right and what the gods command cannot be unjust. The hope, then, is that there is some form of justice that comprehends and unites both human and divine law. Critically, this justice would need also to be answerable to reason; otherwise, it is largely inaccessible to human beings, or is at best another esoteric form of law available only to the chosen few. The hope, rather, is for something akin to the Thomist schema of law – that human law and divine law both participate in a higher law, known as the eternal law, and that all people, regardless of their particular divine and human legal jurisdictions, know something of this eternal law through the natural law, which is known by reason.47 While indeed Thomas’ God is not Sophocles’ god(s), as Hester points out, neither is this notion of law uniquely Christian (or humanist). First, as I discuss below, to the Greeks, the gods were distinct from divinity itself. Whereas the gods might be unjust, divinity was higher and, one assumes, more just than the gods. In Book I of The Republic, for instance, Socrates counters Thrasymachus’ endorsement of injustice in part by pointing out that “the gods will count the unjust man their enemy and the just man their friend,” precisely because they are themselves just (352ab).48 It is probably true that such a unified Law49 was a Socratic innovation, one that relied on and supported Plato’s Idea of the Good. But it is not accurate to claim that it requires a Christian or humanist paradigm to hold it. If Socrates and St. Thomas, Christianity and humanism, are wrong, though, and there is no such unity of law, we must ultimately be left with the rule of power rather than the rule of law, as Thrasymachus so aptly shows. For if justice is not unified, then reasoned persuasion is pointless – to what would it tend? There is a reason Thrasymachus tries to exit the conversation after making his point. There is no final 47

48 49

To be clear, I do not mean to suggest that this eternal law or unifying justice would ever be known clearly or perfectly; this schema allows a great deal of room for human error and limitations. What I portray as an aspirational form of justice, however, is just that – something which humans may aspire to understand, on the assumption that such a unified justice exists, rather than settling for perpetual conflict between human and divine law. Plato, The Republic, trans. Richard W. Sterling and William C. Scott (New York: Norton, 1985), 50. “Law” with a capital L, what Plato might have called the idea of law itself: a law that incorporates human, divine, and natural law in one unified eternal law.

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answer; there is only the ago¯n between man and god. We are thus left only with force to arbitrate such conflicts, as Antigone illustrates. In my view, then, the “impossibility” thesis that Benardete’s, Honig’s, and Hester’s readings in various ways support is not entirely faithful to the play, or to the possibilities of law. For tragedy comes in the play from Creon’s “stubbornness and stupidity” (1028) in refusing to yield until it is too late and Haemon and Antigone have killed themselves. The agonistic/impossibility thesis, however, has us believe that this was an inevitable tragedy, a conflict of earthly and divine laws that could end only in the death of those for whom the laws commanded a clash. If this is so, then the hubris and stubbornness of both Creon and Antigone are irrelevant – and does this make any sense of Sophocles’ work? In my reading, the hubris of both characters in fact plays the crucial role of eliciting tragedy by blinding them to the unified natural justice overarching their respective forms of law. Sophocles has Antigone allude to and intuit the natural law but ultimately reject it as a reliable guide. Had she chosen otherwise, it might have served to mediate the competing demands of both human and divine law in the play and thereby achieve a more uniformly just outcome. Had Antigone had at her disposal the resources to articulate her intuition and argue to the king and the Theban council that Creon’s law not only clashed with the gods’ law but violated natural law, it is possible that she (and Creon) might have avoided the tragic ending with which the play, as it stands, necessarily concludes.50 In other words, in rejecting the approach of pleading her case with natural law, Antigone rejects any potential reconciliation between the law of Creon and the law of the gods. Antigone’s pride, unlike that of Creon, does not lead her to commit the wrong act, for in this case, both the natural law and the divine law correctly command her to bury her brother. Nevertheless, on this reading, it contributes to the play’s tragic ending. Before we crow too loudly over Antigone’s fall from exegetical grace, though, we should guard against overstating the case. Even granting that both Creon and Antigone miss the mark in some way – Creon through his overwrought devotion to the human law, Antigone through her refusal to even attempt to reconcile divine and human justice – the play still reads with the stronger verdict against Creon. There are a number of reasons, admittedly speculative, for this. It could be because Creon is the one in the position of power that his act seems unduly cruel, or perhaps since family ties are stronger than civil ties, Antigone’s transgression is the lesser one. 50

H. S. Harris reaches a similar conclusion in his analysis of the play: But if Antigone had proposed the pleading policy at the first, the approach to the Council, and to Teiresias . . . Ismene would have supported it; and then the Unwritten Law would have triumphed . . . without anyone having to die for it . . . [T]he play shows that it is because of these megaloi logoi [i.e., of both Creon and Antigone] which we find so modern, that the Divine Law cannot be successfully integrated with the Human Law. See “Hegel and Antigone’s unwritten laws,” in Not Said But Shown (unpublished manuscript, 2007), 74, http://yorkspace.library.yorku.ca/xmlui/handle/10315/919.

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Finally, there is the Hegelian view that Antigone, being more in tune with divine justice, is a closer representation of the right than is Creon. My argument resembles Hegel’s in considering Antigone as closer to the right, but I argue that this is not a simple case of thesis-antithesis. Rather, Antigone paints a picture of a tragically failed would-be integration of the divine law with the human law, an integration that could have occurred by means of the unwritten, or natural, law. Below I elaborate on what this natural law looks like in the play. Natural Justice in Aristotle’s Interpretation of Antigone Of the early notable commentaries on Antigone, Aristotle’s stands out for our purposes because he refers to Antigone’s act as an example of natural justice, which is often equated with natural law: “For there is something that all people have a notion of as naturally just and unjust, even if there is no unanimity or agreement among them, and it is such a thing that Sophocles’ Antigone is obviously speaking of in saying that it is a just thing, though forbidden, to bury Polyneices, since that is just by nature” (Rhet. 1373b).51 That is, Aristotle saw Antigone as invoking a kind of justice that is neither human law nor convention, but is found in the very nature of the world. My own interpretation of the play is a qualified version of Aristotle’s. I cannot see that Antigone the character had at her disposal a theory of natural justice, so to the extent that she could be said to be “obviously speaking of” Polynices’ burial as “just by nature,” it is due to the fact that she collapsed what Aristotle means by “nature” into “the gods’ unwritten and unfailing laws.” That is, I interpret Antigone’s explicit claim of a higher justice to be the justice of the gods, not natural justice – even though it seems that to Antigone, the two are near synonyms. That said, there is a good deal of textual evidence that Sophocles was aware of natural justice and that he alluded to it in the play’s overall message. In writing the story as a tragedy precisely because neither Creon nor Antigone would admit of other aspects of the law than their favored ones, and by drawing attention to binding laws of unknown origin (450–457), Sophocles hinted at such natural justice as Aristotle saw in the play. Tony Burns rejects Aristotle’s reading of Antigone. Instead, he reads in the play a warning of the dangers both of tyranny, which is hubris on the part of the ruler (Creon), and of anarchy, which is hubris on the part of the governed (Antigone). Burns describes Sophocles as deeply conservative, pointing to the need for both the governed and the governor to stick to the city’s constitution, not to an abstract ideal of natural justice. As such, there is no need to go beyond this to see Sophocles,

51

Aristotle’s Rhetoric in Joe Sachs, ed., Plato: Gorgias & Aristotle: Rhetoric (Newburyport, MA: Focus Publishing, 2009).

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through Antigone, as in any way presenting a natural law.52 Burns charges Aristotle with a tendency, replicated by those who followed him, to conflate the tension represented by the fifth-century Athenian debate over physis and nomos (nature and convention, respectively), on the one hand, with the tension illustrated by “the symbolic confrontation of divine or unwritten law with human law, understood specifically as an edict or enacted decree,” on the other.53 That is, the fact that there is a human law-divine law conflict does not necessarily mean that there is a naturecustom conflict. In fact, to Burns, it does not even mean that there even exists such a natural law as interpreters are wont to discover in Antigone (i.e., a universal law that is “discoverable by the faculty of reason and which is considered to be applicable to all human beings at all times and in all places”).54 Rather, to Burns, Antigone grounds her claim upon “the immemorial laws, customs and traditions of the particular community of which [she] happens to be a member, which are considered to be sanctioned by the gods and therefore divine.”55 In this way, Burns sees Antigone as appealing to what Bernice Hamilton calls “sacred custom,” which, though sacred, is decidedly not universal but rather parochial – tied essentially to the community, and only accidentally to the gods whom that community serves. To Burns, the conflict in Antigone is between customary law, represented by Antigone’s insistence on the custom of burying family members, and statutory law or decrees, as represented by Creon.56 Puzzlingly, though, Burns simultaneously defends the statement that for Sophocles, “nature was divine, physis was nomos,” a view he describes as typical in the Athenian intellectual milieu even prior to the Presocratics.57 But if nature (physis) is both law (nomos)58 and divine, then in what sense is Antigone not invoking nature and natural justice when she invokes the will of the gods? Here Re´mi Brague’s discussion of the peculiar meaning of “divine” in ancient Greece sheds some light. Building on a fragment of Heraclitus as well as Platonic formulations of law, Brague explains that the Greek conception of the “divine,” as in “divine law,” corresponded to nature more than to the gods, whereas the gods themselves were particular manifestations of divinity. Nature, on the other hand, was in some important way emblematic of divinity itself. As such, divine law “takes on a broader extension than the gods themselves and can be used to describe, for example, what is 52

53 54 55 56 57

58

Tony Burns, “Sophocles’ Antigone and the history of the concept of natural law,” Political Studies 50 (2002), 552–553. Burns, “Sophocles’ Antigone,” 547. Burns, “Sophocles’ Antigone,” 547–548. Burns, “Sophocles’ Antigone,” 547–548. Burns, “Sophocles’ Antigone,” 552. Burns, “Sophocles’ Antigone,” 548, quoting Victor Ehrenberg, Sophocles and Pericles (Oxford: Blackwell, 1954), 35. I recognize that nomos can be rendered “custom” just as well as “law,” but in this case, the point would stand: if nature is both customary and divine (i.e., both human and god-like), then it is certainly like a law, for beyond gods, humans and nature, there is no other possible legislator left.

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‘natural.’”59 In this characterization, the classic opposition of nomos and physis melts into a unified Law encompassing both custom and nature because, in Brague’s description of certain Greek conceptions, “the law is intrinsically divine.”60 It would seem that this Law, this fusion of nomos and physis that is linked to divinity itself, is what Aristotle saw in Antigone’s act, whereas Burns sees only custom and the particular, local gods. What I am arguing is that while Antigone does indeed ultimately invoke the gods, it is precisely because her gods’ laws are not the divine physis-nomos Law that the play ends in tragedy. Antigone, forced by her own narrow construction of law and justice to choose between sacred law and the king’s decree, fails to see this greater, unified justice in which nature, divinity and law are intrinsically liked. Had she seen it, that is, had her gods’ laws been linked to this physis-nomos Law, she might have been able to reason with Creon by pointing to the nature of law itself, which, on this view, cannot contradict divine nature. In other words, I agree with Burns that Antigone does not invoke the natural law; she ultimately invokes the gods and custom. However, I disagree that Sophocles was endorsing this position, as Burns holds; rather, I argue that the play shows that both Antigone’s and Creon’s failures to see the law as this physis-nomos Law are what give rise to the tragedy. Burns, who wants to resist the humanist urge to paint Antigone as a heroine of conscience, nevertheless paints her as a heroine of convention, which he claims was Sophocles’ object. He bases Antigone’s defense of her act on the fact that “the edict in question conflicts with this ancient customary law, which she considers to be divinely sanctioned.”61 Sophocles, he writes, was “essentially aristocratic, backward looking, and . . . fundamentally religious,”62 which is why Antigone, who also fits this description, is the heroine. On this reading, Creon represents the “modern political ruler” juxtaposed against the aristocratic, religious, and conventional Antigone.63 One of Sophocles’ goals in writing the play, Burns argues, was to show that “even in a democracy the ancient constitution and the rule of law with which it has traditionally been associated ought to be respected by all alike – both by the rulers and by the ruled.”64 Antigone, then, does the right thing by 59

60

61 62 63 64

Re´mi Brague, The Law of God: The Philosophical History of an Idea, trans. Lydia G. Cochrane (Chicago, IL: University of Chicago Press, 2007), 23. Brague, Law of God, 23–24. In support of this conception of the law, Brague cites Plato’s Laws and the Republic as well as Aristotle’s Politics (1287a30): “He therefore that recommends that the law (nomos) shall govern seems to recommend that God and reason (nous) alone shall govern, but he that would have man govern adds a wild animal also.” Given the Platonic premise that what is most divine in us is the intellect, when Socrates points out that “our divine and admirable law (nomos) bears a name akin to reason (nous),” he assumes in some way that the divine, the intellect, and the law are all bound up in one inseparable entity. Brague, Law of God, 24, citing Laws 12, 957c6–7 and R. G. Bury’s translation from Laws (Cambridge, MA: Harvard University Press, 1961). Brague, Law of God, 24. Brague, Law of God, 548. Brague, Law of God, 552. Brague, Law of God, 553.

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respecting the ancient customs, and the play ends tragically because Creon, who represents democracy run amuck, does not. The text cannot fully support an interpretation in which Sophocles’ primary object in writing the play was a defense of convention, though. Recall Antigone’s first speech to Creon: “For to me it was not Zeus who made that order. Nor did that Justice who lives with the gods below mark out such laws to hold among mankind . . . Not now, nor yesterday’s, they always live, and no one knows their origin in time” (450–457). If we read into the order in which the various sources of obligation appear, we see that to Antigone, Zeus is first, then “Justice,” which is distinguished from Zeus and other gods. That the laws of this Justice derive their force from their customary nature is an unlikely reading, for Antigone claims that no one knows their origin. Rather, she invokes the eternal nature of these traditions – they “always live” and are “unfailing,” which can hardly be said of custom. While she does not use the term “natural,” it is nevertheless clear that whatever this justice is, it is neither human justice nor synonymous with divine justice in the sense of justice declared by the gods. It exists eternally, it cannot be overridden by a “mere mortal’s” edict, and no one knows its ultimate source. In short, it sounds a lot like a justice that exists naturally, or natural justice. Again, this is ultimately not what Antigone relies on – her defense crumbles in her final speech, and while the above lines give a clue that she has some awareness of the natural law, she takes recourse to a brittle divine law that simply will not be reconciled with human law. Nevertheless, the text is there to indicate that Sophocles, at least, was aware of something like natural law. Burns, in his concern with reading natural justice or natural law into Antigone, mirrors Aristotle’s concern about an abstract universal standard of justice which humans can thoughtlessly invoke rather than doing the hard work of applying phronesis, practical wisdom, to ethical and moral questions.65 Burns writes that it was not Sophocles but rather his radical egalitarian democratic opponents who used natural law reasoning: “Sophocles attaches more importance to practical wisdom (phronesis) than he does to the abstract reasoning of the natural law theorists who are criticized by Aristotle in his Rhetoric.”66 Something is amiss here, however, because Burns’ reading of Antigone actually leads to a decrease of phronesis: Burns sees Sophocles as proposing a reliance on the ancient customs and religion of the city when the human law fails, which is hardly a promotion of practical wisdom – quite the opposite. If Sophocles did indeed attach a great deal of importance to phronesis, Burns’ version of Antigone seems an unlikely way to promote it. While Burns seems, then, to take students of natural law to dismiss the need for phronesis, there is little reason to accept this judgment, at least as natural law theory has developed over the centuries. Aristotle, Burns rightly points out, did not see an 65

66

I have in mind Aristotle’s discussion of the need for equity, which requires judgment on the part of legislators to apply the principles of justice to particular cases, often going beyond the written law. See Rhetoric I.13, 1374a13–14. Burns, “History of natural law,” 554.

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abstract, universalized natural law as sufficient unto justice,67 but it is quite fair to say that Aquinas didn’t, either – the universal aspects of natural law are in fact quite limited in his eyes, and the application of it, which required prudence or practical reasoning, would vary from context to context, as the previous chapter’s discussion of determinationes showed.68 So a theory of law that incorporates natural law in no way needs to jettison moral reasoning to a purely abstract, universal level. Rather, if we are to take seriously both the lessons concerning obedience to the “unwritten and unfailing laws” and those concerning hubris as found within Antigone, it would seem that the natural law, whatever it is, enjoins the humility of submitting one’s abstract reasoning – e.g., “the divine law is such” – to practical wisdom – e.g., “in this case, the divine law and human law seem to conflict; I should consider the circumstances and understand the ultimate command to be thus.”

ISMENE: DEMOCRACY’S PERIL AND PROMISE

As with our discussion of religious freedom, so, too, in Antigone one may be tempted to recur to democratic solutions to the tragedy. The problem, on this reading, is not the clash of divine law and human law but rather that the people are not allowed to govern the city. As Haemon and Teiresias point out, the people of Thebes favor Antigone’s freedom; had their will prevailed, so the democrat might say, justice would have been served. Democracy is not a significant theme in Antigone, but it is not wholly absent, either. The relevant portion of text is Antigone’s opposition to Ismene in their dialogue at 49–75. In Benardete’s reading, Ismene’s line, “in defiance of the law we transgress against an autocrat’s decree or his powers” implies a conflation of law, decree, and power.69 That is, Ismene is speaking of a solitary act, that of burying Polynices, that would simultaneously transgress all three; she assumes law, decree, and power to occupy the same metaphysical space. As Benardete points out, the first conflation, that of law with decree, is a democratic assumption: law and decree both have their origin in the people, such that the law of the people reveals itself in 67

68

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Even as Aristotle conceded that “in our world, although there is such a thing as Natural Justice, all rules of justice are variable,” he insisted nevertheless that “there is such a thing as Natural Justice” (NE V.7.3). Thus, there can exist a natural justice even if it is not understood or practiced everywhere to equal degrees. As Janet Holl Madigan writes, “as we descend from the level of understanding universal principles to the application of those principles in specific situations, the natural law will prescribe different things. Thus, Thomas explains that the law of nations concerns ‘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 . . . But those things which are derived from the law of nature by way of particular determination, belong to the civil law, according as each state decides on what is best for itself’ (I–II.q.95.a.4.c.).” See Truth, Politics and Universal Human Rights (New York: Palgrave MacMillan, 2007), 159. Benardete, Sacred Transgressions, 10.

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decrees. More explicitly, though, Ismene’s democratic predilections reveal themselves in her refusal “to act in defiance of the citizens’ will” (77) – even though it is only the king who has expressed such a will. The king’s decree, then, must equal the citizen’s will. The democratic thesis is an appealing one for, as Jennet Kirkpatrick points out, Ismene’s prudence, if followed, might have made Sophocles’ story “less brimming with woe, destruction and violence” (if also perhaps a bit less interesting).70 Ismene’s path allows a furtive burial while avoiding martyrdom, thus allowing the family line to continue – all priorities Antigone rejects as unimportant at best or shameful at worst. Notably, while the “citizens’ will” at the beginning seems in favor of the king, by the time Teiresias and Haemon are imploring Creon, there are whispers that Antigone should be freed.71 Perhaps, then, if given enough time, the will of the people will achieve if not perfect justice, then at least the best possible justice: a compromise of both human law and divine law without the metaphysical messiness of ends and purposes. For all we know, this may indeed have been Sophocles’ intent, anachronistic though my presentation of it is. Before so concluding, though, it is worth noting Ismene’s second conflation, that of confusing law not only with decree but with power. As Benardete points out, this reflects an underlying Thrasymachean belief that justice is nothing other than the advantage of the stronger.72 That is, given that Ismene considers contravention of “an autocrat’s decree or his powers” to be equivalent to breaking the law – as well as an act that defies the will of the people – it would seem that the will of the citizens is only law when backed by power. Is this a necessary tenet of democratic theory? Perhaps not, but it does seem to form an essential part of Ismene’s thought: “in these things I am forced and shall obey the men in power” (67). Of course, we know that whatever Sophocles’ views about the perils or promise of democracy, it is not Antigone’s preferred way. She rejects Ismene’s concept of justice in its entirety – and her response brings into sharp relief the difference that her own view of justice portends. Whereas Ismene prioritizes the immanent at the expense of the transcendent – “I, therefore, will ask those below for pardon, since I am forced to this, and will obey those who have come to authority” (65) – Antigone insists that it is the afterworld and “what the gods in honor have established” that will endure: “For the time is greater that I must serve the dead than the living, since in that world I will rest forever” (75). Having chosen to “honor what the gods have honored” (77) over and above what the king has decreed, she attributes to herself “the crime of piety” (73) and calls it “justice” that the gods will hate Ismene for her inaction (94).

70

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Jennet Kirkpatrick, “The prudent dissident: unheroic resistance in Sophocles’ Antigone,” The Review of Politics 73, no. 3 (2011), 424. See, e.g., Haemon’s reference to Theban public opinion at 734. Benardete, Sacred Transgressions, 9–10.

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Antigone here “sets herself in opposition to Ismene’s understanding of law, nature, and strength” and “pleads a higher law.”73 That Antigone’s “higher law” is so closely linked to divine law – i.e., she is invoking both justice in the abstract and the gods themselves – is not accidental, nor simply a sign of what I have argued is her stubborn insistence on seeing only the divine law. In a sense, these lines, which open the play, convey what can only be described as a proto-antidemocratic tinge to devotion to the gods. The will of the citizens is subject to change, whether out of fear of the sovereign, as Hobbes and likely Creon would have it, or out of evolving conceptions and perceptions of justice. The will of the gods may not be so flexible, for better or for worse. Thus does religion both pose perennial challenges to democracy and provide indispensable mooring in the ever-changing sea of democratic opinion; in the course of Antigone, the divine will that the dead be buried seems to have played both roles. ANTIGONE, NATURAL LAW, AND RELIGIOUS FREEDOM

Antigone, then, illustrates the tragedy that follows from a failure to understand law as constituted by divine, natural, and human forms of law. The play, by casting a tragic character each for the human law and the divine law, portrays the need for a natural law to mediate the other two forms of law and to bond them into one larger conception of Law. I submit that a theory of natural law can bring us closer to a justice that transcends both the law of the ruler and the religious customs of the people, and I argue that the conception of law portrayed in Antigone supports this view. For what is especially interesting is that the play is not aporetic. As readers we sympathize with Antigone; we are not left wondering whether Creon or Antigone is the play’s hero. We sense that, in the end, Antigone was right to act as she did, even though we are given the strongest possible case against the existence of any such right. Polynices is a traitor to the city and fought against his own kin in order to assume rule over it. He is in many respects the last person we would expect to be a bearer of rights. Antigone would consequently have no right to bury him and, in addition, she would have openly rebelled against the city’s laws in a potentially destabilizing way. And yet we sense that Antigone does the right thing. How can this be? On close examination of the play, very few modern readers would advocate, as a general rule, clinging to the laws of the gods so unquestioningly as Antigone does. Yet they would still stand behind her act. I posit that we read the play in this way because, indeed, we recognize a natural law of justice that commands that family be allowed to bury their kin – regardless of whether the gods have so declared or not. In other words, and in keeping with Hegel, Antigone intuits the right thing to do, over 73

Benardete, Sacred Transgressions, 10.

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and above her devotion to the divine law. This is why, in my reading of the play as a clash of two laws, it is not the divine law that “wins” in the end. Rather, in this case, we know that the divine law is rightly understood because it aligns with the natural law. In such cases, it behooves the guardians of the human law to adapt it to fit the other forms of law.

3 Maimonides’ Middle Way: Teleology as a Guide for the Perplexed

FROM ALLUDING TO ARTICULATING: ARISTOTLE AND THE FORMATION OF NATURAL LAW THEORY

In Antigone we see the need for an intermediary aspect of law to address contradictions or conflicts between human and divine law. As I have argued, if there is no such mediating device – that is, if law is conceptualized not as a tripartite assemblage of human, natural, and divine law but rather as discrete sets of divine and human law that are always potentially in conflict – religious freedom will be plagued by the constant tug-of-war between human and divine law.1 Antigone gave us some insight as to what that mediating aspect of justice or law might be, but hers remained a pretheoretical version of natural law, invoking “that Justice who lives with the gods below” (452), unknown in origin and thereby conceptually distinct from divine law, as justification for her act in defiance of the human law. To the Greeks, however, this natural law remained largely just that – pre-theoretical – and Antigone ultimately sided with “those gods below,” whom she didn’t even consider reliable allies (921–923). Natural law loomed in the background, but Antigone couldn’t, in the end, give voice to it. Such allusions to natural law were common to Greek thinkers, yet fully theorized notions of it are wanting among them. The possible exception to this rule is Aristotle. In the Rhetoric, Aristotle noted that there is something resembling justice by nature that he observed in Antigone: “the general law . . . is based on nature, whereas the written laws often vary (this is why Antigone in Sophocles justifies herself for having buried Polynices contrary to the law of Creon, but not contrary to the unwritten law . . .)” (Rhet. 1375a15).2 Likewise, in the Nicomachean Ethics, he avers that “political justice is of two kinds, one natural, the other conventional. A rule of 1

2

It could be added that this binary conception of human and divine forms of law threatens human rights more broadly, for it presents no obstacle to an understanding of divine law that is wholly in opposition to their existence. If, for instance, one understands her religion’s divine law to command, say, gender inequality or slave castes by birth, or if it severely squashes freedom of speech, then the free practice of that religion undermines the very democratic system that, politically speaking, gives rise to religious freedom (and human rights more broadly) in the first place. All references to the Rhetoric come from Plato: Gorgias & Aristotle: Rhetoric, ed. Joe Sachs (Newburyport, MA: Focus Publishing, 2009).

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justice is natural that has the same validity everywhere, and does not depend on our accepting it or not” (NE 1134b1).3 Though it is not always easy, Aristotle wrote, “to see which rules of justice, though not absolute, are natural, and which are not natural but legal and conventional,” this does not change the fact that “nevertheless, there is such a thing as natural justice” (NE 1134b15–18). Whether this, together with a few related discussions, constitutes an Aristotelian natural law remains in dispute. What is clear, however, is that by the medieval period, natural law had become a fixture of philosophical reasoning, due in part to Stoic developments as well as this Aristotelian foundation.4 Law was understood to reflect what is (i.e., what exists naturally); the natural law merely articulated the proper ordering of things by nature. But natural law is limited to what humans can know through natural reason. This fits well within the confines of philosophy but perhaps less well within revealed religion, which purports to make clear the will of God. So what happens to natural law once God reveals Himself? Does not God’s explicit revelation override any other form of law, human or natural? This question is quite visibly in the background of this book’s argument, for to answer in the affirmative is to render natural law impotent to do what I am suggesting it can do, viz., bridge the human law-divine law gap. To answer in the negative, on the other hand, would seem to suggest that natural law is in some way superior to God’s revelation, which, apart from theological objections, is a claim that will do little to persuade religious people and communities to adhere to it. Therefore, if natural law is to contribute anything toward religious freedom, it must be able to work not only with natural reason but also from within the specific – and varied – confines of religions themselves; it must accept God’s self-revelation and still hold as law. For it is no solution to the problem of the conflict of divine and human law to simply assert a third, independent law; there must be a resolution for those people who consider themselves bound by both human and divine law but who find themselves, with Antigone, caught between competing laws.5 It is to such people that medieval Aristotelian philosophers may provide a way forward. It is a simplification, but not a wholly misleading one, to state that Christianity has its Aquinas, Islam its Ibn Rushd, and Judaism its Maimonides.6 3

4

5

6

All references to the Nicomachean Ethics come from Aristotle, Nicomachean Ethics, trans. Terence Irwin, 2nd ed. (Indianapolis, IN: Hackett, 1999). Cicero identified natural law with law itself: to him, law is the “the highest reason, inherent in nature, which enjoins what ought to be done and forbids the opposite” (De Legibus 1.18) See Marcus Tullius Cicero, The Republic and The Laws, ed. Jonathan Powell, trans. Niall Rudd (New York: Oxford University Press, 2008), 103. Indeed, the Stoic conception of law was so closely bound to the idea of a law of nature that, as Elizabeth Asmis writes, in “strict Stoic terminology, the addition ‘of nature’ is redundant.” Elizabeth Asmis, “Cicero on natural law and the laws of the state,” Classical Antiquity 27, no. 1 (April 2008), 3. This could be called the “existential warrant” for the existence of natural law, for which term I am indebted to Joshua Mitchell. Indeed, Leo Strauss also makes this point, albeit in a qualified way; see Persecution and the Art of Writing (Chicago, IL: University of Chicago Press, 1952), 7.

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These philosophers sought to harmonize their medieval faiths with Aristotelian philosophy, thereby “sav[ing] revelation from being reduced to reason, and . . . the law from being reduced to divine caprice.”7 This tradition of integrating faith and reason has survived differently in each of the faiths, but for Judaism, the influence of Maimonides (Moses ben Maimon) is difficult to exaggerate. Born in Cordoba in 1138, his family fled from Spanish Almohad rule in 1148 to Fez, Morocco, from where he would eventually be forced again to flee to Fustat, Egypt (Old Cairo). Despite these interruptions, he was able to produce his Treatise on the Art of Logic and Commentary on the Mishneh by the age of thirty, then his religious magnum opus, the Mishneh Torah, which remains one of the most influential works of Jewish law and teaching to this day. The focus of this chapter, however, is Maimonides’ philosophical masterpiece, The Guide of the Perplexed, completed around 1190, which has been studied continuously since Maimonides’ time both within and outside of Jewish circles. While its name may suggest a treatise or other systematic exposition of perplexing questions, it is instead in fact an extended letter, addressed, at least ostensibly, to a former student of Maimonides, Rabbi Joseph. Joseph had demonstrated exceptional curiosity and promise during his studies with Maimonides, but his precocity was evidently not easily satisfied, and after leaving the latter’s charge, he had moved on to study with the mutakallimu¯n, or dialectical theologians. But the ideas Joseph encountered in his studies with the mutakallimu¯n, in Maimonides’ description, led him to question whether the theologians’ methods were “demonstrative” (i.e., whether they could lead to certainty) – “and, if not, to what art they belonged.”8 Should these methods not be sound, Joseph was left wondering whether the theological training he was receiving needed to be jettisoned in favor of the philosophical training he had received from Maimonides – or, on the contrary, whether he needed to let go of philosophical speculation in favor of faith alone. Joseph therefore asked Maimonides “to make clear to [him] certain things pertaining to divine matters,”9 in essence inquiring as to the truth of the Jewish religion and how, if at all, that truth can be squared with philosophical investigation. As the Guide makes clear, Maimonides did not find the theologians’ methods sound, and he was eager “that the truth should be established in [Joseph’s] mind according to the proper methods.” Maimonides insisted that “certainty should not come . . . by accident” but rather by rigorous intellectual activity.10 Religious truth is discoverable, for Maimonides, and even some measure of certainty about God and the nature of the world. But arriving 7

8

9 10

David Novak, Natural Law in Judaism (Cambridge and New York: Cambridge University Press, 1998), 97. Maimonides, Guide of the Perplexed, trans. Shlomo Pines (Chicago, IL: University of Chicago Press, 1963), 4. Also Dala¯lat al-Ha¯ʾirı¯n, transcribed from Judeo-Arabic script into Arabic script by Husseyin Atay (Ankara: Ankara University Press, 1972), 4. References to the Guide hereafter note both Pines’ (English) and Atay’s (Arabic) paginations. Maimonides, Guide, 3; Atay, 3–4. Maimonides, Guide, Epistle Dedicatory, 4; Atay, 4.

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at truth, even (or perhaps especially) truth about God, necessarily takes the student through philosophy, which is what Maimonides sets out to do in his Guide. The Guide is in some ways a strange creature, for Maimonides had already labored to demonstrate the rationality of the Jewish faith in the Commentary on the Mishneh and the Mishneh Torah, where he illustrated the rationally discernible ends of Jewish law. The law, in other words, is not a collection of arbitrary divine commands; rather, it has specific aims, namely the welfare of body and the welfare of soul. Each commandment can be traced to one or the other end.11 So why did Maimonides add a later, separate work (and a lengthy one at that) to achieve essentially the same thing? The answer to this question, and the reason why Maimonides is a useful guide for the purposes of this book, involves the role of the mutakallimu¯n – and, even more fundamentally, the tension between religion and philosophy. I said above that it would be a simplification to align Maimonides with Aquinas and Ibn Rushd; part of the reason for this is that his meaning is far more elusive than those found in the works of these other Aristotelian religious thinkers. As Kenneth Seeskin points out, the Guide opens not by stating an argument but by presenting an intellectual conflict.12 One might add that this conflict, the aporia with which Joseph was apparently struck, is never fully resolved but instead endures throughout the book. Maimonides was thus a rationalist in the sense that he insisted on the rational ordering of the world, but not, as we see below, if one takes it to mean that all things can be explained through reason alone.13 Ralph Lerner describes Maimonides’ goal in the Guide as providing “remedial education . . . People need rather to recognize what philosophy has shown: That there is a world with a stable nature . . . That this world is subject to orderly, systematic investigation by science” – but also, “there are limits to human understanding and human efficacy.”14 Maimonides reflects this middling approach in the Guide’s introduction, albeit in a characteristically ambiguous way: “I do not say that this Treatise will remove all difficulties for those who understand it,” but then again, “it will remove most of the difficulties, and those of the greatest moment.”15 Even such purported clarity emerges only to a point, however, as Maimonides explicitly refuses to arrange his teachings “in coherent fashion,” for that would run counter to his purpose, which is “that the truths be glimpsed and then again be concealed, so as not to oppose that divine purpose . . . which has concealed from the vulgar among the people those truths especially requisite for His

11

12

13 14 15

See Kenneth Seeskin, “Maimonides,” Stanford Encyclopedia of Philosophy, ed. Edward N, Zalta, https://plato.stanford.edu/entries/maimonides/. Maimonides reiterates this claim in Guide III.27: “The Law as a whole aims at two things: the welfare of the soul and the welfare of the body.” Kenneth Seeskin, Searching for a Distant God: The Legacy of Maimonides (New York and Oxford: Oxford University Press, 2000), 12. I hasten to add that this latter point would hold as true for Ibn Rushd and Aquinas as well. Ralph Lerner, Maimonides’ Empire of Light (Chicago, IL: University of Chicago Press, 2000), 9–10. Maimonides, Guide, Introduction to the first part, 6; Atay, 6, emphasis added.

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apprehension.”16 The Guide of the Perplexed is first of all intended, then, only for those capable of true perplexity – those who, like Joseph, are intellectually able to hold two truths in tension with each other without rejecting one or the other out of hand, yet for whom that tension proves spiritually or intellectually troubling. But it seems equally clear that it was not meant to settle those tensions once and for all because, as we see below, Maimonides’ rationalism would not allow such bold confidence in rationality itself. KALA¯ M, PHILOSOPHY, AND MAIMONIDES’ METHOD

Kala¯m, the art of the theologians under whom Joseph was studying, was a form of theology prominent in medieval Islam but the methods of which became popular in Judaism as well, due to the era’s extensive intermixing of Muslim and Jewish theologians. Its methods, said originally to be taken from Christian theology,17 were marked by a dialectical approach rather than the apodeictic, or demonstrative, methods of philosophy. This gave rise to a dispute between philosophers and dialectical theologians (mutakallimu¯n, practitioners of kala¯m), a dispute to which Maimonides did much to contribute. At issue was the conflict between an Aristotelian view of the world, according to which causes imbued in the nature of the world dictated its order (including, to some extent, its moral order), and religion, in which God was the author and cause of the universe and its events. In other words, Maimonides was dealing with the “antithesis . . . between the God of religion who possesses a free will, in the exercise of which He is not bound to act in accordance with the order of nature, and the God of the Aristotelian philosophers, who is hamstrung by the immutability of this order.”18 The battle lines were drawn quite clearly: to the Aristotelian philosopher, kala¯m was intellectually dishonest, relying on those premises it had already accepted on faith rather than by reason, whereas to the mutakallimu¯n, philosophers were just as dependent on faith, for their own first principles could not be proved, and were thus at best in denial of the incompatibility between their discipline and religion. 16 17

18

Maimonides, Guide, Introduction to the first part, 6–7; Atay, 7. The Christian origins of kala¯m are generally accepted, but the specific path of transmission is one of speculation. Maimonides himself seems to indicate that mutakallimu¯n drew inspiration from the (pre-Islamic) works of John Philoponus/John the Grammarian (d. 570 CE; see Guide I.71), among others, whereas later scholars have speculated that kala¯m’s Muslim origins may have derived from apologetic works of John of Damascus (d. 749 CE). See M. A. Wolfe, “The origins of kala¯m,” Bulletin of the School of Oriental and African Studies 43 (1980), 32–43. Maimonides, Guide, cxxvii. Again, as Pines points out, this tension was perhaps most famously addressed in al-Gha¯za¯lı¯’s The Incoherence of the Philosophers (Taha¯fut al-fala¯sifa) and Ibn Rushd’s response, The Incoherence of the Incoherence (Taha¯fut at-taha¯fut). Al-Gha¯za¯lı¯ purported to show that the so-called demonstration of the fala¯sifa (Hellenizing philosophers) itself rested on a sort of epistemological faith, not on premises that their own standards of validity could admit. Ibn Rushd’s response then took al-Gha¯za¯lı¯’s arguments to task as being dialectic, rather than demonstrative, in nature.

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In the Guide, Maimonides provides his own genealogy of kala¯m, beginning with the Greek and Syrian communities “in which philosophy had first risen,” where the dawn of Christianity seemed to force a choice between the tenets of faith, which “are greatly and clearly opposed to the philosophic opinions,” and philosophy itself.19 Those Christians trained in philosophy thus took its tools and used them, not in the indifferent quest for truth, in Maimonides’ telling, but rather “to establish premises that would be useful to them with regard to their belief and to refute those opinions that ruined the foundations of the Law [sharı¯ʿa].”20 Later Muslim communities drew inspiration from these Christian apologists and adopted the same methods, selecting and defending those premises that supported their religion, “even if the later philosophers had already demonstrated the falseness of these opinions.”21 Kala¯m grew and expanded under Islam, especially as particularized notions of the law became prevalent – and thereby necessary to defend using kala¯m methods.22 That is, as the development of Islamic law progressed, so, too, had the mutakallimu¯n to progress in their defense of its precepts. But doing so meant being quite selective with the premises they employed in their arguments. Maimonides, who did not approve of such cherry-picking, charged the mutakallimu¯n with intellectual dishonesty; to him, the mutakallimu¯n were co-opting the tools of philosophy to argue for a world they believed in, rather than to understand the world as it is: “all the first Mutakallimu¯n . . . did not conform in their premises to the appearance of that which exists, but considered how being ought to be in order that it should furnish a proof for the correctness of a particular opinion, or at least should not refute it.” That is, the mutakallimu¯n began with their religious conclusions and reasoned backwards, creating the semblance of a valid syllogism but in fact engaging in a sort of smoke-and-mirrors illusion. For Maimonides, on the other hand, “that which exists does not conform to the various opinions, but rather the correct opinions conform to that which exists.”23 In other words, one must always begin with reality, the world as it is, in forming correct beliefs – even beliefs about religion, tempting though it may be to begin with revelation or prophecy. To illustrate the difference between his own methods and those of the mutakallimu¯n, Maimonides takes up one of the most pressing philosophical and theological questions of his era, that of the temporal creation of the world. The controversy turned on the idea that “if the world were created in time, there would be a deity; and if it were eternal, there would be no deity in existence.”24 Because Aristotle (among other ancient philosophers) held that the world was eternal, the stage was set for 19 20 21 22

23 24

Maimonides, Guide I.71, 177; Atay, 180–181. Maimonides, Guide I.71, 177; Atay, 181. Maimonides, Guide I.71, 178; Atay, 181. Maimonides, Guide I.71, 178; Atay, 181. Maimonides writes that “there arose in Islam assertions of the Law that were particular to the members of that community [a¯qa¯wı¯l sharʿiyya khası¯sa bihim] and that ˙˙ they necessarily had need to defend.” Maimonides, Guide I.71, 178–179; Atay, 181–182. Maimonides, Guide I.71, 180; Atay, 183.

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a conflict between religion and philosophy, and the mutakallimu¯n found themselves obliged to argue for the creation of the world in time. And so they did, according to Maimonides, choosing their premises accordingly, then establishing from the temporal creation of the world the existence of a maker, as well as his unity.25 Notably, even as he has just inveighed against the intellectual sloppiness of the mutakallimu¯n in defending religion, it is not their shoddy scholarship that Maimonides here derides. Rather, he objects to the very idea of an opposition between religion and philosophy in the first place – and, he seems to imply, it is the mutakallimu¯n who set up that opposition. This is not what we would expect from Maimonides, given his general criticism that kala¯m favors religion over philosophy, even as it dons a philosophical overcoat to lend itself legitimacy. Maimonides, however, charges that the mutakallimu¯n’s defense of religion is too weak, grounded as it is in an unprovable premise (i.e., the temporal creation of the world): “For every argument deemed to be a demonstration of the temporal creation of the world is accompanied by doubts and is not a cogent demonstration.”26 In other words, meeting the philosophers on their own ground is an unwise tactic if one’s goal – as, it seems, is Maimonides’ – is the defense of religious truth. What does he propose in its stead? Outdo the philosophers: “The utmost power,” Maimonides writes, of “one who adheres to a Law [mutasharʿı¯n] and who has acquired knowledge of true reality consists, in my opinion, in his refuting the proofs of the philosophers bearing on the eternity of the world.”27 This seems to suggest that the mutasharʿı¯n’s knowledge actually surpasses that of the philosopher, but the only way to demonstrate this (perhaps even to oneself) is to employ the methods of philosophy better than the philosophers. To do this is no small feat, of course, and the religious person has no guarantee that philosophy will ever work in favor of religious teaching. What is interesting, then, is how Maimonides models his own prescribed method. To show that the philosophers are wrong, he claims that they have simply gone too far: “everyone who . . . has acquired true knowledge of reality and does not deceive himself, knows that with regard to this question – namely the eternity of the world or its temporal creation – no cogent demonstration can be reached and that it is a point before which the intellect stops.”28 Maimonides thus distances himself from both the dialectical theologians and the philosophers for overstepping their bounds. The mutakallimu¯n have pretended to do philosophy when what they are really doing is defending undemonstrated premises, and the philosophers have claimed to prove the unprovable. There is a realm that exceeds the capacities of the intellect to grasp, and in that, neither theologian nor philosopher should dare claim certainty.

25 26 27 28

Maimonides, Guide I.71, 179; Atay, 182. Maimonides, Guide I.71, 180; Atay, 183. Maimonides, Guide I.71, 180; Atay, 183. Maimonides, Guide I.71, 180; Atay, 183, emphasis added.

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Crucially, however, this does not mean that one must give up on knowledge, or on philosophy as a means to knowledge. Maimonides has his own approach to this vital question, one which he describes to his pupil in terms we might today describe as deontological: “the world cannot but be either eternal or created in time. If it is created in time, it undoubtedly has a creator who created it . . ..” This, of course, was already accepted. But if the world has eternally existed, then “it follows necessarily” that there exists something other than the world itself, “an existent who is not a body and not a force in a body and who is one, permanent, and sempiternal; who has no cause and whose becoming subject to change is impossible.”29 This existent is, of course, God, and Maimonides considers that he has demonstrated that whether or not the world was created in time, God exists. In fact, when elsewhere he had set out to argue the existence of God, he did so from the premise that the world is eternal, rather than created, so as to persuade on the basis of demonstration rather than faith: The reason is not that I believe in the eternity of the world, but that I wish to establish in our belief the existence of God, may He be exalted, through a demonstrative method as to which there is no disagreement in any respect. Thus we shall not cause the true opinion, which is of immense importance, to be supported by a foundation that everyone can shake and wish to destroy . . . This method is particularly justified in view of the fact that these philosophic proofs . . . are derived from the nature of existence that can be perceived.30

Maimonides insists on beginning inquiry not from beliefs, nor from pseudophilosophical “demonstrations” of conveniently selected premises, but from “the nature of existence” itself. So confident is he that, to borrow from his contemporary Ibn Rushd, “truth does not contradict truth,”31 that he will even concede the nonreligious position, viz., the eternity of the world, in order to demonstrate the existence of God beyond dispute – philosophy, that is, does not pose a threat to religion. But here we may run into difficulties, for the science of Maimonides’ day is not the science of today; were he to argue for the logical existence of God in our own setting, he would have more to contend with than just the eternity of the world. That is, if Maimonides insists on beginning from “the nature of existence” and taking truth wherever it leads us, does not his method yield different results today, given that Aristotelian physics have been discredited? If modern science inclines us away from a world infused with final causes and toward one of chance and survival of the fittest, would Maimonides’ “reality-first” approach to philosophy incline him away from the Aristotelian – and religious – conclusions he draws?

29 30 31

Maimonides, Guide I.71, 181; Atay, 184. Maimonides, Guide I.71, 182; Atay, 184–185. See his Decisive Treatise Determining the Nature of the Connection between Religion and Philosophy, chapter 2.

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I believe that it would not, at least not necessarily. Maimonides returns to the issue of the eternity of the world throughout the Guide, going so far as to state that “everything is bound up with this problem.”32 For if one acknowledges the creation of the world in time, then God’s will and wisdom are supreme and any question about the law, revelation, prophecy, and miracles can be answered through recourse to these two factors. If, on the other hand, “the world is as it is in virtue of necessity,” as today we might interpret evolutionary biology to indicate, then, says Maimonides, the believer is in an awkward position; he has only “recourse to unseemly answers” to such questions, answers that deny the manifest meanings of the law in order to maintain the existence of God.33 Indeed, everything is bound up in this question. But here, too, Maimonides shows that he sides neither wholly with the philosophers nor blindly with religion. This is a somewhat surprising approach, for the Guide elsewhere conveys a confidence that knowledge of the truth is possible through demonstrative, that is, philosophical, means. Indeed, Kenneth Seeskin writes that in reading the Guide, one “is tempted to ask, ‘Is this the religion of the prophets or a philosophically sanitized religion concocted by a medieval thinker under the sway of Aristotle?’”34 In other words, it is easy to see Maimonides as committed first to philosophy, then to the reconciliation of religious beliefs with that philosophy – essentially, the reverse of the mutakallimu¯n, whose commitment to religion inclined them to bend philosophy to fit the needs of religious doctrine. And again, Maimonides seems at times so confident that philosophical demonstration will lead to conclusions that uphold, rather than challenge, religious beliefs that Seeskin’s suggestion is difficult to dismiss. Still, beneath the surface, Maimonides is more aporetic than his rationalism might first suggest. This is evident first in his interpretation of Aristotle, which draws a sharp line between the latter’s explanations of earthly matter and the heavens: Maimonides says that Aristotle “realized the feebleness of what he said in setting forth and expounding the ground and the causes of these things [i.e., heavenly spheres].”35 In claiming that Aristotle himself saw problems with his own explanation of the heavens, Maimonides manages, first, to salvage Aristotle’s philosophical judgment while maintaining his own belief in God and the creation of the world in time. But in doing this, Maimonides is staking a more general claim as to the limits of our ability to know causes. In asking why there is so much variety among the celestial beings (e.g., why some portions of the heavens contain ten stars and others none at all), he asks whether it is more rational to hold that all of this was necessarily so, as his Aristotle would have it, or whether “all this came about in virtue of the purpose of one who . . . made this thus.”36 His answer, which obviously must 32 33 34 35 36

Maimonides, Guide II.25, 330; Atay, 352. Maimonides, Guide II.25, 329–330; Atay, 352. Seeskin, “Maimonides.” Maimonides, Guide II.19, 307; Atay, 329. Maimonides, Guide II.19, 310; Atay, 331–332.

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be the latter, is nevertheless telling: “All this has been produced for an object that we do not know and is not an aimless and fortuitous act.”37 That is, there are indeed purposes to everything, even to the stars; he has not given up on final causes and teleology. Still, he stresses, the final causes of the matter above the earth are not for us to know. We see this same idea in the paragraphs leading up to the above-mentioned discourse on creation. At the close of a lengthy dialectical consideration of the merits of epicycles versus eccentric circles to explain astronomical motion, Maimonides launches an interesting charge against astronomers: arriving at a point of “true perplexity” at which eccentric circles and epicycles seem at once both necessary and mutually exclusive explanations, he abruptly asserts, “all this does not affect the astronomer.” This is because the astronomer, to Maimonides, is not interested in investigating reality but in explaining appearances: “his purpose is not to tell us in which way the [astronomical] spheres truly are, but to posit an astronomical system in which it would be possible for the motions to . . . correspond to what is apprehended through sight, regardless of whether or not things are thus in fact.”38 This is a stunning claim, for Maimonides has repeatedly stressed the need to begin from reality, from how the world really is, yet here we see him demote the best efforts of scientists and philosophers to mere speculation based on appearances. Maimonides’ charge, however, is not against all of science or all scientists; rather – and this is the illuminating aspect – he purports to limit both science and philosophy to their proper realms: “All that Aristotle states about that which is beneath the sphere of the moon is in accordance with reasoning . . . However, regarding all that is in the heavens, man grasps nothing but a small measure of what is mathematical.”39 That is, as he paraphrases (“in the manner of poetical preciousness,” in his own description), “The heavens are the heavens of the Lord, but the earth hath He given to the sons of man.”40 Maimonides thus combines the authority of reason in what he considers to be its proper realm (i.e., matters of the earth) with epistemological humility as it concerns anything beyond the earth.

MAIMONIDES AND NATURAL LAW

This exegesis marks our starting point in deciphering Maimonides’ epistemological commitments and approach to natural law. But beyond his commentaries on philosophy and science, Maimonides was also a halakhist, a jurist of Jewish law, who both legislated and judged case law.41 As with Ibn Rushd, the jurist-philosopher 37 38 39 40 41

Maimonides, Guide II.19, 310; Atay, 332. Maimonides, Guide II.24, 326; Atay, 348, emphases added. Maimonides, Guide II.24, 326; Atay, 349. Maimonides, Guide II.24, 326–327; Atay, 349, quoting Psalm 115:16. David Novak, “Jurisprudence,” in The Cambridge Companion to Maimonides, ed. Kenneth Seeskin (New York: Cambridge University Press, 2005), 221.

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of thirteenth-century Andalusian Islam, his treatment of both religious law and philosophical reasoning situates Maimonides at the crux of our difficulty as we reflect on religious freedom, namely, that divinely ordained practices and habits – matters of divine law – must be squared with human law, habits, and practices. It is my argument in this book that this difficulty can best – and perhaps only, at this juncture in history – be addressed using the resources of natural law traditions, traditions to which, I argue, Maimonides belonged. David Novak sees in Maimonides’ teleological view of the law the hallmarks of a natural law thinker, and I agree. Yet, as Novak points out, “natural law” is not a term Maimonides uses, and it is not my intention here to suggest that Maimonides had a hidden, fully developed theory of natural law. Still, I suggest that the teleological nature of Maimonides’ law merges easily with the idea of natural law as the prioritization of ends over purposes; in other words, Maimonides’ conception of law includes natural law. To Maimonides, the teloi of the law are, again, “the welfare of the soul and the welfare of the body,” meaning that all human purposes must be subordinated to these divinely ordained ends. But lest this be taken to mean that divine law trumps human law in a crude way, Maimonidean legal theory also leaves no room for religious fundamentalism of the sort that either commands harm or shuts down the intellect; the soul’s welfare, after all, “consists in the multitude’s acquiring correct opinions,” and the welfare of the body “comes about by the improvement of their ways of living one with another.”42 Knowledge and justice, then, are indispensable components of the soul’s health, which brings the divine law down from heaven, as it were, into the realm of human beings. In this way, Maimonidean law fulfills the betweenhuman-and-divine role that I propose for natural law throughout this book. Maimonides’ approach brings to mind Robert Sokolowski’s definition of natural law, discussed in Chapter 1, as the ontological prioritization of ends over purposes. Ends are naturally given; they are a part of what is, as opposed to purposes, which are what one intends to do, make, change, etc. Maimonides and Sokolowski share methodological affinities in that they both insist on beginning with that which exists, then interrogate its final cause or end, the “that-for-which-it-exists,” in the attempt to discover truth. What this inquiry yields, furthermore, must in both cases override whatever one might prefer in the matter of purposes: for Maimonides, this includes even dearly cherished customs that may seem to have the force of divine law.43 Of course, one may ask if this is really what Maimonides is up to. As with natural law theory itself, the reader may smell ulterior motives: is Maimonides really beginning with “the nature of existence,” or is he simply creating a clever critique of philosophy by arguing that it is incapable of demonstrating that which goes against Judaic teaching? Leo Strauss’ famous opposition of Athens and Jerusalem would mean that a Jew like Maimonides could not defend both Torah and 42 43

Maimonides, Guide III.27, 510; Atay, 577. Lerner, Maimonides’ Empire, 11.

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philosophy; still, due to the “precarious status of philosophy in Judaism,” he had to pay lip service to the former.44 It is a position worth taking seriously, given both the threat of persecution Maimonides faced during his lifetime and the obvious challenge of squaring free inquiry, beginning from “the nature of existence” itself, with the revealed law and Moses’ prophecy. One does not, it is clear, lead inexorably to the other. These questions, important as they are, must wait for later in the chapter. For the present, the salient point is that Maimonides’ approach to the study of philosophy and religion departed from that of the theologians of his time but also from that of philosophy, at once insisting that we take rationality as far as it can go while acknowledging when we reach the “point before which the intellect stops.”

CLASSES OF LAW

The law may be teleological; this is fairly uncontroversial for an Aristotelian thinker like Maimonides. But to claim that something incorporates natural law means that there must indeed be some element of nature to it; in other words, there is something about the teloi that is given by nature as opposed to ordained exclusively by either humans or God. Maimonides does explicitly link nature and law in at least one place in the Guide. At II.40 he states, “the Law [sharı¯ʿa], although it is not natural, enters into what is natural. It is a part of the wisdom of the deity [hikmat allah] with regard ˙ to the permanence of this species of which He has willed the existence, that He put it into its nature [tabı¯ʿatihi] that individuals belonging to it should have the faculty of ˙ ruling [qu¯wat tadbı¯r].”45 This needs some explication. First, to what does Maimonides refer by sharı¯ʿa? It is tempting to read this sentence as meaning that it is specifically divine law, in the sense of that which was revealed to Moses, which is not itself natural but enters into what is natural. I believe, however, that this would be misleading. In Maimonides’ usage, as I show below, sharı¯ʿa refers to Law with a capital “L” – law as such, as opposed to this or that particular law, or even to this or that particular type (human, natural, divine) of law. It is, as we will see, something divine, but not in the same sense as we might use to describe the contents of Leviticus as divine law. In fact, it would not be a stretch to say that inasmuch as something is law to Maimonides, it is sharı¯ʿa – in other words, all law is, ultimately, divine law. In the text surrounding the above quotation, Maimonides writes that he wants to provide the reader with “a criterion by means of which you will be able to distinguish between the regimens of nomoi [tada¯bı¯r al-nu¯wa¯mı¯s] that have been laid down, the regimens of the divine Law [tada¯bı¯r al-sharı¯ʿa al-ila¯hiyya], and the regimens of those who took over something from the dicta of the prophets [a¯qa¯wu¯ı¯l al-a¯nbı¯a¯ʾ], raised 44 45

Strauss, Persecution, 21. Maimonides, Guide II.40, 382; Atay, 415.

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a claim to it, and give it out as their own.”46 Thus there are three sorts of what we might call law: (1) human law, or nomoi; (2) truly divine law; and (3) what Maimonides calls “plagiarisms” (muntahala) of divine law.47 But Maimonides’ description of human ˙ law is illuminating here, for there are in fact two categories of nomos/human law: it describes either those laws “with respect to which those who have laid them down have stated clearly that these are nomoi [nu¯wa¯mı¯s] that they have laid down by following their own thoughts [wadʿu¯ha¯ min fikratihim]”48 or human law, which may be “a Law ˙ [sharı¯ʿa] the whole end of which and the whole purpose of the chief thereof [qasd ˙ raʾı¯suha¯, that is, the chief of this human law] . . . are directed exclusively toward the ordering of the city and of its circumstances and the abolition in it of injustice and oppression.”49 Importantly, Maimonides never refers to the first kind of human laws – those “with respect to which those who have laid them down have stated clearly that these are nomoi”50 – as sharı¯ʿa, only nu¯wa¯mı¯s.51 It seems, then, that there is an exclusively human law, the nu¯wa¯mı¯s, but also a form of human law that qualifies as sharı¯ʿa even though it is human in origin.52 Human law that is human in origin is not difficult to imagine, nor is it especially controversial; for example, few would claim a divine or even natural origin to traffic laws. But what is this human sharı¯ʿa, the sharı¯ʿa na¯mu¯siyya? Maimonides states that the sharı¯ʿa na¯mu¯siyya does not concern itself with “speculative matters” or “the perfecting of the rational faculty”; in fact, “no regard is accorded to opinions being correct or faulty.”53 This law has immanent, not transcendent, aims; in fact, its “whole purpose [is] . . . the arrangement . . . of the circumstances of people in their relations with one another and provision for their obtaining, in accordance with the opinion of that chief, a certain something deemed to be happiness.”54 In other words, the sharı¯ʿa na¯mu¯siyya is Law, sharı¯ʿa, with immanent ends. All of this is contrasted with sharı¯ʿa ila¯hiyya, divine law, which is: a Law all of whose ordinances are due to attention being paid . . . to the soundness of the circumstances pertaining to the body and also to the soundness of belief – a law that takes pains to inculcate correct opinions with regard to God . . . and that desires to make man wise, to give him understanding, and to awaken his attention . . . this Law is divine.55 46 47 48 49 50 51

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53 54 55

Maimonides, Guide II.40, 383; Atay, 416. Maimonides, Guide II.40, 383; Atay, 417. Maimonides, Guide II.40, 383; Atay, 416. Maimonides, Guide II.40, 383; Atay, 417. Maimonides, Guide II.40, 383; Atay, 416. Maimonides sets these nu¯wa¯mı¯s aside, claiming to “only want to give you knowledge concerning the regimens with regard to which the claim is made that they are prophetic” (II.40, p. 383, emphasis added), meaning that these admittedly human-in-origin nomoi do not qualify as such. On this point see also Miriam Galston: “it is not precluded that a nomos may be divine.” “The purpose of the law according to Maimonides,” The Jewish Quarterly Review 69 (1978), 32. Maimonides, Guide II.40, 383; Atay, 417. Maimonides, Guide II.40, 383; Atay, 417. Maimonides, Guide II.40, 384; Atay, 417.

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The human law, then, aims at happiness in this life only, whereas the divine law aims at both body and soul: happiness in this life and correct beliefs about God for the next. There is, finally, also the plagiarized law, or muntahala; such laws, which ˙ imitate divine law, come from a ruler who has received no revelation himself but has rather taken the laws from those who did – that is, he has plagiarized the law.56 Technically, then, Maimonides in fact conceives of four types of law: true human Law (sharı¯ʿa na¯mu¯siyya), illegitimate human law (nomoi that have been laid down by following human thoughts), truly divine law (al-sharı¯ʿa ila¯hiyya), and plagiarized divine law (muntahala). The question then becomes, how do we know the differ˙ ence between each type of law? To some extent, the text suggests that it is their origins that differentiate the types of law. Taking just the two types of human law as examples, the nu¯wa¯mı¯s originate in men’s own thoughts whereas the sharı¯ʿa na¯mu¯siyya comes from a chief (raʾı¯s) whose opinions align with the nature of true happiness.57 Likewise, the sharı¯ʿa ila¯hiyya comes from “a perfect man to whom a prophetic revelation . . . has been vouchsafed,” whereas muntahala comes from one who merely lays claim to, or copies, ˙ prophetic revelation.58 Nor is this the only section of the Guide to suggest that the nature – classification, really – of the political leader might matter. At II.37, Maimonides discusses three classes of “men of science,” distinguished by their types of knowledge, whether rational or imaginative or both. Those individuals who are perfected in the rational faculty, but not in the imaginative faculty, are “men of science engaged in speculation.” Those whose imaginative, but not rational, faculties are perfected are “those who govern cities,” a class including the somewhat surprising array of “the legislators, the soothsayers, the augurs, and the dreamers of veridical dreams,” as well as “those who do extraordinary things by means of strange devices and secret arts.” Those who are perfected in both the rational and imaginative faculties are prophets.59 In the above discussion of sharı¯ʿa na¯mu¯siyya, Maimonides notes that “the man who laid [the sharı¯ʿa na¯mu¯siyya] down belongs . . . to those who are perfect only in their imaginative faculty.”60 Thus, it is possible that law is classed, for Maimonides, according to the type of ruler who hands it down. I am not sure, however, that such an interpretation is ultimately sufficient. First, identifying the legislator as one who is perfected only in his imaginative faculty does not tell us whether what he gives us is sharı¯ʿa na¯mu¯siyya or mere nu¯wa¯mı¯s. But perhaps more tellingly, at II.40, Maimonides describes both true human law (sharı¯ʿa 56 57

58 59 60

Maimonides, Guide II.40, 384; Atay, 417. See Maimonides, Guide II.40, 383 (Atay, 417) quoted above: “the whole purpose of that Law being, on the contrary, the arrangement, in whatever way this may be brought about, of the circumstances of people in their relations with one another and provision for their obtaining, in accordance with the opinion of that chief, a certain something deemed to be happiness” (emphasis added). Maimonides, Guide II.40, 384; Atay, 417. Maimonides, Guide II.37, 374; Atay, 412. Maimonides, Guide II.40, 384; Atay, 417.

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na¯mu¯siyya) and true divine law (al-sharı¯ʿa ila¯hiyya) according to their ends: In the human case, “if you find a Law the whole end of which and the whole purpose of the chief thereof . . . ” and in the divine case, “If, on the other hand, you find a Law all of whose ordinances are due to attention being paid . . . to the soundness of the circumstances pertaining to the body and also to the soundness of belief.” In other words, we know the type of law more by its ends than by its origins – the ends either of happiness or of both happiness and correct belief.61 The only form of law that is not described by its ends is nu¯wa¯mı¯s, which comes from men’s own thoughts – and it is never called sharı¯ʿa. I mentioned above that Maimonides is no pure rationalist; this has been made clearer in the above discussion on law as always in some way is divine. Still, Maimonides is elsewhere even more explicit: in the Eight Chapters (part of the Commentary on the Mishneh), he denies the label, used by the mutakallimu¯n, of “rational laws” to describe those injunctions against behaviors that are generally or universally accepted to be bad, such as murder, theft, repaying evil for good, etc.62 Raymond Weiss finds in this denial a conflict with the idea of natural law; to him, Maimonidean Aristotelianism diverges from that which the West inherited through Aquinas and places a heavier emphasis on the need for a particular nation’s law over and above the “‘rational law’ [that] is the Thomistic teaching of natural law.”63 But this surely misunderstands Thomist natural law which, far from an abstract set of rules derived by reason alone, reveals the ends of human life: natural law marks the human being’s “share of the Eternal Reason, whereby it has a natural inclination to its proper act and end” (Summa Theologia I–II.q.91.a.2.co). Weiss acknowledges that while there is no set of “rational laws” as understood by the mutakallimu¯n, there are indeed “reasons” for the law, to Maimonides – but these reasons “are more precisely ‘causes’ in the sense of ‘final causes’.”64 In other words, even as Weiss wants to distance Maimonides from natural law, he asserts the deeply teleological nature of Law for Maimonides, which takes us quite quickly to natural law’s affirmation of ends over purposes. I am hardly alone in claiming that Maimonides’ law is teleological in nature; indeed, Novak devotes an entire chapter of Natural Law in Judaism to “Maimonides’ teleology of the law.”65 Novak begins his presentation much as Maimonides himself begins the Guide: with conflict as to how to understand the law in light of reason. Disputes over the meaning of the law necessarily arise, leaving the believer in limbo as to how to understand the ethical mandate. These disputes, to 61

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63 64 65

Maimonides, Guide II.40, 384; Atay, 417. See also Seeskin, Searching, 167 and Galston, “Purposes,” 31–32, in which Galston notes that divine law is characterized by its aims or ends, not by effects or even intentions. Raymond L. Weiss with Charles Butterworth, eds., Ethical Writings of Maimonides (New York: Dover, 1983), 79–80 (chapter 6). Weiss and Butterworth, Ethical Writings, 2. Weiss and Butterworth, Ethical Writings, 22. See Novak, Natural Law, chapter

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Maimonides, could formerly be settled by the religio-legal authority of the Sanhedrin, or “Great Court,” though Novak is quick to point out that even with such an authority reasons still needed to be given; the disputes and deliberations simply happened behind closed doors. But because the Sanhedrin vanished by sometime in the fourth century CE, now, according to Maimonides, legal disputes can only be answered by giving reasons.66 For Novak, as for Maimonides, this fact means that the law must perforce be rational – a deduction happily backed by Maimonides’ writings, perhaps most especially the Sefer ha-Mitsvot, or “The Commandments,” his systematic presentation of the 613 divine commandments. These commandments, according to Novak, are always “commanded for the sake of a more general reason (taʿam),” and furthermore, “the reasons of the commandments [taʿamei ha-mitsvot] [are] their purposes,” a position Novak attributes to a long rabbinic tradition of hermeneutics as well as to the fourth-century CE halakhist Rava, who refers to the “doctrine of purpose” (torat taʿama).67 Novak’s overall argument seems to rest more or less on the teleological nature of the law – in short, if Jewish law is teleological, and according to both Maimonides and larger rabbinic tradition it is, and if natural law is teleological law, which is another way of saying that natural law prioritizes ends, which it does, then Jewish law contains a natural law tradition. While this may at first seem simplistic, we do well to recall Novak’s description of Maimonides’ accomplishment: “By emphasizing the rationality of the law, without resorting to the totalizing rationalism characteristic of some modern Jewish thinkers, Maimonides saves revelation from being reduced to reason, and he saves the law from being reduced to divine caprice.”68 This is no small feat, but it cannot be denied that the fulcrum of all of this is indeed teleology. Merely asserting the rationality of divine law either fails entirely to convince, or else it removes the transcendent element of divine law and religion altogether. Likewise, any attempts to infuse human law with divine sanction by simple fiat either ends in divine caprice – why does God declare this human law to be just but not that one? – or else eventually is exposed as untrue. Without telos, there is no mediation between divine law and human law; with telos, both God and human reason have a place.

SAADYA’S ALTERNATIVE

Ralph Lerner once wrote, “It is not too much to say that for Maimonides philosophy is indeed the key to Scripture.”69 Given the picture that emerges from the Guide of Maimonides’ teleological approach to Jewish law, it is easy to see how this might have been so. But to understand what is at stake in Maimonides’ insistence on 66 67

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Novak, Natural Law, 93–95. Novak, Natural Law, 96–98. On the rabbinic hermeneutic tradition leading up to Rava’s doctrine, Novak cites especially the Babylonian Talmud, b. Sanhedrin 21a. Novak, Natural Law, 97. Lerner, Maimonides’ Empire, 10.

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philosophy, rather than kala¯m, as a means of understanding the Jewish faith, we need to examine the other option available to us from medieval Judaism. Saadya Gaon, known in Arabic as Saʿı¯d bin Yu¯suf al-Fayu¯mmi (892–942), provides perhaps the most plausible alternative to Maimonides in this respect, as well as being one of the most influential Jewish mutakallimu¯n of the era. His promise to “speak a language which is easy and not difficult” and to pave a path for “the believer who blindly relies on tradition . . . [to] turn into one basing his belief on speculation and understanding,”70 not to mention his self-proclaimed status as a member of “the race of mankind,” make him a highly appealing, proto-modern figure, and his apparently rational basis for all knowledge seems to distance him from the pitfalls that might plague Maimonidean teleology. Saadya was – and remains – a towering figure of Arab Jewish philosophy. Born in Fayum, Egypt, Saadya spent much of his life in Sura, Iraq, where he eventually became head (gaon) of the Platonist Academy there. Like Maimonides some 250 years after him, Saadya wrote in a time of great religious and intellectual perplexity. Rather than a forced choice between Aristotelian philosophy and Jewish faith, however, the confusion – and perhaps exhilaration – of Saadya’s time was that of the somewhat sudden mixture of creeds, philosophies, and newly discovered texts. Islam had burst onto the scene only a few centuries prior (Mohammed died just over 250 years before Saadya’s birth), and the Baghdad translation movement under Caliph al-Maʾmu¯n earlier in the ninth century had launched the “Islamic Renaissance” of Hellenistic philosophy. Beyond this, Zoroastrianism, Manichaeanism, and other systems of thought from the east were filling the philosophical and religious air of Saadya’s time, leading to an intensely fruitful, but also confusing, intellectual era.71 In this setting, Saadya wrote his greatest work, The Book of Doctrines and Beliefs (Kita¯b al-A¯ma¯na¯t wa al-ʿItiqa¯da¯t). This book, although today fairly obscure in comparison to Maimonides’ Guide, remains a landmark in medieval Jewish thought. The Kita¯b owes its existence at least in part to a struggle taking place between Rabbanite and Karaite Jewish thinkers over whether God’s law was handed down entirely in the Torah (the Karaite position) or whether the rabbinic oral traditions, as recorded in the Talmud and Midrash, should also count as a part of this law. Saadya’s insistence on the role of human rationality made a decisive contribution toward accepting the need for an oral tradition, and thereby a human role, in interpreting divine law; indeed, as Sarah Stroumsa writes, “after Saadya, hardly anyone questioned the legitimacy of the rationalistic approach.”72 70

71 72

Saadya Gaon, Book of Doctrines and Beliefs, trans. Alexander Altmann, in 3 Jewish Philosophers: Philo: Selections; Saadya Gaon: Book of Doctrines and Beliefs; Jehuda Halevi: Kuzari, ed. Hans Lewy, Alexander Altmann, and Isaak Heinemann (New York: Atheneum, 1977), 29, 26, 30. Altmann introduction to Saadya, Book of Doctrines and Beliefs, 11–13. Sarah Stroumsa, “Saadya and Jewish kalam,” in The Cambridge Companion to Medieval Jewish Philosophy, ed. Daniel H. Frank and Oliver Learman (Cambridge and New York: Cambridge University Press, 2003), 87–88.

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I limit my analysis of Saadya’s Kita¯b to his discussions on epistemology and on the classification of the law, for it is here, I believe, that we see the problem to which Maimonides, more than Saadya, provides a solution. Ultimately, while Saadya sidesteps the controversial issue of teleology that Maimonides embraces, his rationalist assertion concerning the law ends up as simply that – an assertion – leaving the believer with little recourse to divine caprice. To understand this, we must first grasp Saadya’s epistemology, which he lays out most explicitly in his Prolegomena to the Kita¯b. He classifies the law (sharı¯ʿa) as either rational or revelational (see Kita¯b 3.2), and he posits four “roots” of knowledge: sense perception (ʿilm al-sha¯hid, literally, “the knowledge of the witness”), rational knowledge (ʿilm al-ʿaql), and that which is necessarily inferred from these two bases (ʿilm ma dafʿat al-daru¯ra alayya wa nattabiʿ dhalik bisharh wa¯hid wa¯hid min ˙ ˙ ˙ ˙ hadhahi al-usu¯l);73 Saadya’s fourth source is explicitly “derive[d] from the three ˙ preceding ones” – it is “reliable Tradition” (literally “truthful report,” al-khabar alsa¯diq).74 Like inference, reliable tradition is “based on the knowledge of sense ˙ perception and the knowledge of Reason.”75 In a real sense, then, for Saadya there are actually two primary roots of knowledge, sense perception and reason,76 and two secondary ones, inference and reliable tradition. This means that when something is known, for Saadya, it is ultimately known from sense perception and through reason – a startlingly modern claim for a tenth-century religious leader. Perhaps even more startling is an earlier claim, translated by Altmann as “all ‘knowledge of Reason’ is based on knowledge derived from sense perception.”77 This is a somewhat loose translation;78 still, the idea remains that all plausible things find their basis in the senses – quite a remarkable claim, and one which, if I am correct, Saadya may not in fact follow consistently, as we see below. Nevertheless, he repeats such claims throughout the book, even going so far as to state that revelation serves essentially as a shortcut to knowledge which man could eventually arrive at through great effort: “God knew in His wisdom that the final propositions which result from the labour of speculation can only be attained in a certain measure of time . . . From 73

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Altmann’s extraordinarily readable translation of the Kita¯b’s difficult manuscript renders the section referred to here (Prolegomenon 3, in Altmann’s own division) as “We affirm then that there exist three sources of knowledge: (1) The knowledge given by sense perception; (2) the knowledge given by Reason; (3) inferential knowledge” (Altmann, Book of Doctrines, 36). As Altmann acknowledges, Saadya in fact uses the term mawa¯dd, or “subjects” or “matters,” for “sources” in the first instance (i.e., “three sources of knowledge”). See Book of Doctrines, footnote 1, 36. However, after introducing the mawa¯dd, Saadya immediately refers to them as usu¯l, “origins” (see Saadya, Kita¯b, 13). ˙ Saadya, 14; Altmann, Kita¯b, 37. Saadya 14; Altmann, Kita¯b, 37. This might better be described as one primary source of knowledge (sense perception) and one primary tool (reason). However, I keep Saadya’s classification so as to avoid distorting his meaning. Altmann, 26; Saadya, Kita¯b, 26. The term that Altmann translates as “knowledge of Reason” is maʿqu¯la¯t, which is more literally (if awkwardly) translated as “plausibilities” or “reasonablenesses” (it is not used in Modern Standard Arabic as a noun).

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all these troubles God (be He exalted and glorified) saved us quickly by sending us His Messenger, announcing through him the Tradition” (Proleg. 3).79 In essence, man’s reason would be sufficient, given enough time. Such an apparently rationalistic approach would seem to open Saadya to the criticism, later launched against Maimonides, that his religion is simply philosophy in religious garb. If all knowledge comes from sensory perception via reason, what can revelation or tradition contribute? What this rationalist veil conceals, however, is that Saadya in fact begins his reasoning with the presumed truth of revelation, then seeks to understand it by means of reason, as opposed to arriving at revelation through reason alone, as his rationalist premises above would seem to imply. He recreates the long journey by which reason might arrive at the same truths that revelation provides in its immediacy; this journey is meant to render human what would otherwise be only divine: “we inquire and speculate in matters of our religion . . . in order that we may find out for ourselves what we know in the way of imparted knowledge from the Prophets of God.”80 Note that we already have knowledge of these matters from prophecy, but we attempt to understand them in their fullness by examining them in the light of reason as well. As an illustration of this process, Saadya points out that we know by reason that we owe our benefactors gratitude.81 Then, knowing that “this is a dictate of Reason itself,” it is only “fitting for the Creator” to receive the same gratitude.82 But it is first from revelation that we know that we owe gratitude to God; Saadya describes this debt of gratitude as an aspect of the divine law that “speculation confirms as necessary.”83 Happily, however, we can find another basis for the same precept in Reason itself. In other words, “In regard to all the things which [God] commands us to do, He has implanted approval of them in our Reason,”84 and the divine law is thereby in accordance with what reason would dictate. Thus, as Daniel Frank writes, for Saadya, it is not abstract reason but rather “revelation [that] is a starting point for speculation.”85 All of the above, to reiterate, concerns that class of law that is known through reason, not revelation. There remains, then, the revelational law. Here the teaching is somewhat unclear, as Saadya seems to take both a divine voluntarism and a quasinatural law stance. He states that in this category of law, “That which belongs to the things commanded by God assumes the character of ‘good’, and that which belongs to the things forbidden by Him assumes the character of ‘evil’ on account of the 79 80 81

82 83 84 85

Altmann, 45; Saadya, Kita¯b, 24–25. Altmann, 44–45; Saadya, Kita¯b, 22. Strikingly, the same illustration offered by Ibn Rushd as a dictate of the sunan ghayr al-maktu¯ba in Talkhı¯s 1.13.8, discussed in Chapter 4. ˙ Altmann, 95; Saadya, Kita¯b, 114. Altmann, 95; Saadya, Kita¯b, 113, emphasis added. Altmann, 97; Saadya, Kitab, 115. From Daniel Frank’s introduction in Saadya Gaon, The Book of Doctrines and Beliefs, trans. and abr. by Alexander Altmann, with introduction by Daniel Frank (Indianapolis, IN: Hackett, 2002), 9.

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Service [i.e., to God] thereby performed.”86 That is, an act is good or evil entirely on account of whether it conforms to God’s command. These revelational laws are “of a neutral character from the point of view of Reason”; our motivation to follow them “is, of course, the command of our Lord and the happiness resulting from it.”87 But surely this is divine voluntarism – it is the “something is pious because the gods declare it to be so” horn of the Euthyphro dilemma.88 Is there, then, anything to prevent Saadya’s ethics from devolving into a pure divine-command form of voluntarism, so antithetical to religious freedom and problematic for a polity? Saadya, at least, would seem to answer “yes.” Because revelational law concerns those matters toward which reason is neutral, on the face of it, there need be no worry about divinely mandated killings or castes, for reason is not neutral on such matters. But what are these reason-neutral matters? Alexander Altmann writes that Saadya’s rational/revelational division derives from “the character of the Biblical law itself, which so clearly showed the two aspects of (rational) morality and (nonrational) ritual.”89 This does make intuitive sense – the prescription of a sacrificial goat for an individual member of the Hebrew community versus a bull for the community as a whole (Leviticus 4), for instance, is hardly something one would claim to arrive at by reason alone, whereas the proscription against adultery (Exodus 20:14) can easily find a basis in rationality. There is also copious textual evidence: in his examples of revelational laws, Saadya himself includes such topics as days of rest, the selection of priests, prohibited foods, abstinence, and so forth.90 Still, Altmann’s division shifts the basis of classification from an epistemological one – reason versus revelation – to a topical one (i.e., laws governing morality versus ritual), whereas Saadya clearly divides the law into laws which are accessible to reason alone and those which are both rational and revelational. The alignment may work for the examples cited, but it is a happy, rather than necessary, coincidence; there is no reason why God might not reveal moral laws that are not accessible to reason alone. I cannot see that Saadya’s rational/revelational legal division can ultimately prevent the voluntarism we find so worrisome in late modernity. First, even as he grants that revelational laws also include “reasons of usefulness” (i.e., advantages attached to them that are accessible to reason alone),91 Saadya intones, “God’s 86 87 88

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Altmann, 97–98; Saadya, Kita¯b, 115, emphasis added. Altmann, 100; Saadya, Kita¯b, 117. In the Euthyphro, Socrates poses the question of whether something is pious because the gods declare it to be so, in which case the gods may be capricious, or whether the gods command something because it is pious, in which case there is a standard of piety that is prior to the gods (and therefore something greater than the gods). This maps onto the rationalist/fideist dilemma of religious belief and practice: the rationalist must answer the question why, if God’s law is ultimately rational, religion or revelation is needed at all; the fideist, who does not require that religion or religious law be rational, must then answer that he must obey divine law even if it seems to run contrary to reason or even morality. Altmann, 96–97, footnote 4. Altmann, 100; Saadya, Kita¯b, 117. Altmann, 102, Saadya, Kita¯b, 118.

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wisdom (be He blessed and exalted) is above all this.”92 For the believer, indeed, this is and almost has to be true; were it not so (i.e., were man’s reason the highest measure), God would not be God. Still, this does not change the fact that in Saadya’s rational/revelational divide, there is no logical reason why God might not choose to reveal moral laws that do not seem to find their basis in rationality, and in such instances Saadya would be forced to choose between God or reason as the higher standard. The reader is left with little doubt as to which side he would choose: “God’s wisdom is above all this.” In the end, Saadya’s kala¯m cannot escape Maimonides’ charge against the mutakallimu¯n of beginning with religious conclusions and selecting premises that support it. Maimonides’ insistence on philosophy – and specifically teleology – as a key to understanding Scripture and Jewish law remains as the mediating way, a guide pointing the way beyond either purely human or purely divine law.

CONCLUSION

I should note here that my interpretation of Saadya parts with that of David Novak, who finds that Saadya does have a teleology, namely, that “everything is for the sake of the world.”93 For Novak, Saadya’s teleology – and even his theology – are too worldly, pushing God and religion out of the picture, whereas for me they run the risk of religious fundamentalism. Yet what I am attempting to show is that, barring such a teleological view of the world and of law as Maimonides exemplifies, these two undesirable options – i.e., a world without God (as Novak would have Saadya) or a God who can act against rationality (as I interpret him) – recur in any alternative approach. For the believer, there is a fundamental – and quite possibly irresolvable – tension at the heart of morality, ethics, and law; namely that both reason and God make demands on one’s conscience and life, and those demands are not always in harmony. This same tension lies at the heart of religious freedom, for it transfers easily to the sometimes-conflicting demands that life in human society and life in a religious community make on a person. The only middle ground between these would appear to be that of teleology, that of inquiring into the naturally given final causes or given ends to human and social life, to institutions, to creation and the artifacts and practices it yields. Take that away, and the ago¯n between God and man remains – an ago¯n in which most lose if one side alone wins. This insight also explains why the question I alluded to earlier in the chapter, namely whether Maimonides’ apparent integration of philosophy and Judaism was

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Altmann, 101; Saadya, Kita¯b, 117. Novak, Natural Law, 130.

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sincere rather than a ruse to escape persecution, is not ultimately germane.94 For whether or not Maimonides himself sincerely believed that philosophy and Judaism could be harmonized, his work and legacy suggest one way that they might. Furthermore, in keeping with his injunction to examine things “from the nature of existence,” the Aristotelian teleological mode of inquiry he advanced gives us a way to keep one foot firmly planted in each realm of human law and divine law. What exactly such a middle way could look like in a religion that, like Judaism, gives primacy to law rather than theology (as does Christianity), emerges in the following chapter, in which a notion of an unwritten law of nature emerges from the thought of a figure who was at once an Islamic judge and an Aristotelian philosopher.

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It is not, of course, an uninteresting or unimportant question nonetheless. Kenneth Seeskin sees in Maimonides’ equivalence of physics with the prophetic “account of the beginning” (maʾaseh bereishit), as well as the equivalence between metaphysics and Ezekiel’s vision of the chariot (maʾaseh merkavah), “the crux of Maimonides’ claim that philosophy is not and never was foreign to Judaism,” indicating that Maimonides’ project was a timeless, rather than occasional, one. See Searching, 15.

4 Between Sharı¯ʿa and Human Law: Ibn Rushd and the Unwritten Law of Nature

THE NEED FOR ISLAMIC NATURAL LAW PHILOSOPHY

It is often said that law in Islam, sharı¯ʿa, is a given, not constructed, entity, and as such cannot be molded to fit whatever one happens to find expedient or even to suit popular conceptions of justice. As the inspired word of God, sharı¯ʿa cannot be reduced to opinion or subjected to the whims of politics. It is accepted on faith, by this view, rather than arrived at by reason, so it is necessary that “those who accept this Law and believe in it do not speculate about it in the sense of asking where it came from or how it has evolved over the ages.”1 In other words, adherents accept, rather than theorize, the divine law; there is little to no room for a philosophy of law. Of course, questions of legal interpretation and even legal change inevitably arise. Viewed through the lens of history, this givenness of the law is less obvious; some theorizing becomes necessary in order to discern what law, in Islam, is. Late modern emphases on democracy, human rights, gender equality, and other non-prevailing norms of the seventh century would seem to render this task all the more urgent, for to uphold these norms while remaining faithful to source texts revealed in a radically different era requires some interpretive skill. The responses of contemporary jurists and scholars of Islam to this demand fall typically into two camps: a return to origins (i.e., varieties of neo-traditionalism) on the one hand, and legal and religious reform on the other. In a sense, the challenge can be framed (albeit perhaps simplistically) as a tension between divine law and human norms, with traditionalists opting for the divine law as the ultimate interpretive lens and reformers opting for human law and norms. Both approaches have their merits and drawbacks, and it is not this chapter’s object to enter into a debate on the matter. Rather, for those who find these two options unsatisfying for one reason or another, I propose a third way of attempting this balance, that of natural law as a mediator between divine and human forms of law. 1

Charles Butterworth, “Philosophy of law in medieval Judaism and Islam,” in Fred J. Miller and CarrieAnn Biondi (eds.), A Treatise of Legal Philosophy and General Jurisprudence, Volume 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics (Dordrecht: Springer, 2007), 249. Butterworth also writes that “the divine law is not questioned, not even by the philosophers.”

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That natural law is a useful resource for Islamic law is not a wholly new idea; Anver Emon’s Islamic Natural Law Theories, most notably, traces traditions of natural law in classical fiqh.2 I return to Emon’s work later, but it is important to note that his research addresses the jurisprudential tradition, whereas this chapter, in analyzing select texts from the Middle Commentary on Aristotle’s Rhetoric of Ibn Rushd, known in the West as Averroes, draws from the falsafa tradition of Hellenistic Muslim philosophy. Emon reveals a natural law tradition embedded in classical jurisprudence, and his work is vital for uncovering a richer understanding of Islamic law. However, it is important that a tradition of natural law be found within the philosophical heritage as well, not only within fiqh. Why? Falsafa, in one contemporary scholar’s terms, dealt “with the discovering of the truth concerning the nature of things and combining mental knowledge with the purification and perfection of one’s being.”3 This is to be juxtaposed with fiqh, which is concerned not with the use of reason to determine right and wrong from scratch but rather from the given starting point of the specific confines of the divine law.4 To borrow from al-Fa¯ra¯bı¯, “the jurist takes the opinions and actions declared by the founder of the religion as given and sets them down as fundamentals from which he infers the things that necessarily follow.”5 In other words, fiqh takes the divine law as a given, even as it may make use of natural reason as one of its tools. Falsafa, on the other hand, started from a prior point, looking at the universe as a whole and inquiring into its nature. Finding a tradition of natural law from within falsafa thus prescinds from begging the question as to whether there is a divine law or it should be obeyed; it begins, rather, with the reason that is common to all people. This chapter analyzes select texts from one of the more famous fala¯sifa (Hellenistic philosophers), Ibn Rushd. His Middle Commentary on Aristotle’s Rhetoric (Talkhı¯s Kita¯b al-Khata¯ba li Aristu¯, hereafter MCR)6 refers to “unwritten ˙ ˙ ˙ laws” (sunan ghayr maktu¯ba) that, I argue, constitutes the foundation of a theory of natural law within classical Islamic political philosophy, one that can fulfill the mediating role described above, and is ripe for visiting anew, for it speaks directly to

2

3

4

5 6

Anver M. Emon shows that such medieval jurists as al-Jassa¯s, al-Jabba¯r, al-Ra¯zı¯, al-Qara¯fı¯, and others ˙˙ ˙ considered natural reason, as directed toward human fulfillment, to be a source of sharı¯ʿa. See Islamic Natural Law Theories (New York: Oxford University Press, 2010). Seyyed Hossein Nasr, “The meaning and concept of philosophy in Islam,” in Seyyed Hossein Nasr and Oliver Leaman, eds., History of Islamic Philosophy, Part I (New York: Routledge Press, 1996), 24. Without delving into Ashʿarī Muʿtazilī debates over the relationship of right and wrong to the divine law, it should be pointed out that however one conceives of the divine law, fiqh requires a revealed divine law, and natural law does not. al-Fa¯ra¯bı¯, Enumeration of the Sciences V.5, as quoted in Butterworth, “Philosophy of law,” 250. All references to the Middle Commentary are from Ibn Rushd, Commentaire Moyen a` la Rhe´torique d’Aristote, trans. with commentary Maroun Aouad (Paris: Vrin, 2007) in three volumes (General Introduction, Edition & Translation, and Commentary on the Commentary, respectively.) Except where otherwise noted, all translations from the French and Arabic are mine, with gratitude to Nadia Oweidat for her assistance with the Arabic.

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the issues of reason and religion preoccupying so many Islamic thinkers and societies today.

IBN RUSHD AND PHILOSOPHY

Abu¯’l-Walı¯d Muhammad Ibn Ahmad Ibn Rushd (1126–1198) was born into, and died ˙ ˙ in the midst of, a period of great controversy in Islamic philosophy. In many ways, his life and works stand as the pivot point both for the relationship between philosophy and theology in classical Islam, and that between Islam and Western Christendom, as both concern the transmission of Aristotelian philosophy. A generation before Ibn Rushd, al-Ghaza¯lı¯ had attempted to derail much of the philosophical work taking place in Baghdad, particularly as it concerned metaphysical speculation, with his Taha¯fut al-Fala¯sifah (The Incoherence of the Philosophers). Al-Ghaza¯lı¯ was successful in furthering the Ashʿarı¯ turn away from philosophical rationalism as an acceptable means of arriving at theological truth.7 In some respects, though, this rationalist tradition, suppressed in the east, moved west to Cordoba, which had already become a center of Muslim learning, albeit with an on-again, off-again relationship with philosophy.8 In Cordoba, then, Ibn Rushd would rise to fame as “The Commentator,” due to his extensive, indeed almost exhaustive, commentaries on Aristotle’s works (the only work omitted from Ibn Rushd’s oeuvre of commentaries was the Politics). Working under the patronage of, first, Caliph Abu¯ Yaʿqu¯b Yu¯suf, then his son, Abu¯ Yu¯suf Yaʿqu¯b al-Mansu¯r, Ibn Rushd’s corpus included not only one of the most complete ˙ collections of commentaries on and summaries of Aristotle’s works known in his day but also extensive original writings in both philosophy and theology (including the famous Taha¯fut al-Taha¯fut, his rebuttal to al-Ghaza¯lı¯). Toward the end of his life, however, Ibn Rushd fell into relative ignominy, accused of everything from political insult (in naming the caliph the “king of the Berbers,” which can also be rendered “Barbarians”), to hinting at polytheism by referring to Venus as one of the gods.9 By the time he died, Ibn Rushd thus left behind not only his tremendous contribution to falsafa but an open question concerning the relationships among philosophy, reason, theology, and law. Because Ibn Rushd’s life and works often centered on critiquing Ashʿarı¯ theological positions on the extent to which reason and philosophical methods, as opposed 7 8

9

I discuss the Ashʿarı¯ turn below. According to Majid Fakhry’s account of this period, al-Hakam II, Caliph of Cordoba, built a library of ˙ some 400,000 volumes as a center of Andalusian scholarship, only for his son Hisha¯m to order the burning of books of “ancient learning.” See Majid Fakhry, Averroes: His Life, Works and Influence (Oxford: Oneworld, 2001), x–xi. Fakhry, Averroes, 2–3. Fakhry attributes the latter charge to al-Mara¯kushı¯’s al-Muʾjib fı¯ talkhı¯s akhba¯r ˙ al-maghrib, referring to the Brill 1881 edition, p. 175, and the former charge to Ibn Abı¯ Usaybiʿah concerning Ibn Rushd’s Book of Animals. This Fakhry attributes to Ernest Renan’s Averroe`s et l’Averroı¨sme (Paris: Michel Le´vy Fre`res, 1882), 444 and 452 (Appendix).

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to revelation alone, could reveal truth, he is an exemplary resource for contemporary debates on this timeless question. The task of achieving balance between reason and revelation is a perennial one, and it is my suggestion that the philosophy of natural law, as found in Ibn Rushd’s commentary on Aristotle’s Rhetoric, is an invaluable resource in this quest.

ONTOLOGY OF THE UNWRITTEN LAW

Ibn Rushd most clearly articulates what I take to be natural law in sections 13–15 of Part I of the MCR, where he writes of the existence of “unwritten laws” (sunan ghayr maktu¯ba, sometimes also called sunan ʿa¯mma, or general laws). These sunan comprehend “those [laws] that are in the nature of everyone,” laws of which “everyone, by his natural disposition, is of the opinion that they are just or unjust.”10 Ibn Rushd reveals in these passages both ontological and epistemological links between the unwritten law and nature; that is, the law both exists in the nature of humanity itself and is known through nature. Below I discuss, first, the ontology of Ibn Rushd’s “unwritten law,” showing that it is the functional equivalent of an Islamic natural law, one that can help to reconcile the conflicts of human and divine law that give rise to such debate and strife concerning the role of sharı¯ʿa. The discussion of the epistemology of the unwritten law follows later in the chapter. The clearest description of the unwritten law in the MCR occurs at 1.13.2 (also cited above), which reads: I mean by unwritten [laws, sunan] those that are in the nature of everyone [fı¯ tabı¯ʿat ˙ al-jamı¯ʿ]. They are the ones of which everyone, by his natural disposition [bi tabiʿhi], is of the opinion that they are just or unjust even if there is no accord or ˙ contract between each of them. These laws are also sometimes called general in light of this. It is not known when these laws were instituted, nor who instituted them. They often contradict the written laws in the sense that we use the unwritten law to persuade [others] that what is believed to be unjust according to the written law is not unjust.

What does this passage reveal about Ibn Rushd’s unwritten law, the sunan ghayr maktu¯ba? First, it appears that the sunan ghayr maktu¯ba are universal rather than particular to either a society or to Islam. Ibn Rushd’s term for “law” in “unwritten law” is sunan, plural of sunna, traditional law. That this could not refer to the sunan of the Prophet Muhammad is evident from Ibn Rushd’s assertion that “all humans” know something of justice and injustice by the sunan ghayr maktu¯ba. Were he referring to the Prophetic sunan, this would hardly make sense, as the Prophetic sunan were known in his time exclusively among Muslims. In some important sense, then, this unwritten law must be universal. 10

I am indebted to Charles Butterworth for his suggested translation of this passage.

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The notion of a universal law, however, can be taken in a number of ways, and it is important to prevent misunderstanding on this score. Confusion tends to arise when one conflates positive law with law as such, that is, when “law” is understood exclusively to mean positive law as declared by a legislator (whether human or divine). In this paradigm, any universal law would require an equally universally recognized authority. This is neither practically feasible nor, more importantly for present purposes, a plausible interpretation of Ibn Rushd’s sunan ghayr maktu¯ba. Rather, as I discuss in the following section, the universality to which Ibn Rushd refers is one of recognition and acceptance, not one issuing from a universally recognized authority; in other words, it is something everyone knows, by his very nature. At the risk of oversimplifying the matter, it is a law in the sense that it recognizes what is rather than what the legislator wills. In this sense, then, the universal unwritten law does not itself override written laws, as it might if there were a universal legislator; rather, one must bring together both written and unwritten laws in order to know justice more fully. In fact, Ibn Rushd envisions a dialectic of sorts between the two kinds of law at MCR 1.15.11: “The excellent judge must not limit himself to the written law [al-sunna al-maktu¯ba], but use the two laws [sunnatayn] at once so that the truth . . . is purified for him.” This dialectic is a means of arriving at justice in its fullest or truest form: “In effect, by this mode [of interpreting the law], the apparent contradiction between the two falls away and the joining [jamʿ] [of written and unwritten laws] becomes correct.” This interdependence of written and unwritten laws is a crucial point in considering Islamic natural law, for the written law, in Ibn Rushd’s context, would be the written account of revealed, divine law (i.e., the sharı¯ʿa as it had been interpreted through the jurisprudential heritage). From the above text, it is clear that Ibn Rushd does not envision unwritten law as a source of law that would be wholly separated from the sharı¯ʿa, at least not in such a way that one would be true and the other not. Rather, both are necessary to arrive at truth. Presumably such truth is, for Ibn Rushd and for Muslims, God’s truth. Attending to the unwritten law is therefore not optional, in Ibn Rushd’s schema, much less a distraction or hindrance to understanding God’s law. Rather, it is through the adaptation of the unwritten and written laws to each other that “the truth is purified.”

IBN RUSHD’S UNWRITTEN LAW AND ARISTOTLE’S NATURAL JUSTICE

Thus far, the passage from MCR 1.13.2 quoted above has indicated that the sunan ghayr maktu¯ba are universal and are interdependent with written laws. It is worth pointing out, however, that this same section also links Ibn Rushd’s “unwritten law” with what Aristotle termed “natural justice” in the Rhetoric. This portion of the MCR corresponds to the section of the Rhetoric in which Aristotle discusses Antigone’s insistence on burying Polynices in Sophocles’ Antigone. The similarity

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between Ibn Rushd’s words concerning the unwritten law and Aristotle’s description of natural justice is striking: according to Aristotle, “there is something that all people have a notion of as naturally just and unjust, even if there is no unanimity or agreement among them, and it is such a thing that Sophocles’ Antigone is obviously speaking of in saying that it is a just thing, though forbidden, to bury Polyneices, since that is just by nature” (Rhet. 1373b7–10).11 Just as Ibn Rushd described the unwritten law – i.e., as making known by “nature” or “natural disposition” (tabiʿhi) what is just, even without “accord or contract” among people – ˙ so Aristotle describes natural justice as something that “all people” recognize and that exists “by nature.”12 Interestingly, although he doesn’t mention Sophocles or Antigone by name in MCR 1.13.2, Ibn Rushd seemingly links his unwritten law not only to Aristotle’s natural justice but also directly to Antigone. His comment that “it is not known when these [unwritten] laws were instituted, nor who instituted them” is taken almost directly from Antigone’s mouth. In her speech concerning “the gods’ unwritten and unfailing laws,” Antigone claims that “they always live, and no one knows their origin in time.”13 In fact, at MCR 1.15.9, Ibn Rushd makes this link between Antigone and the unwritten law explicit. Here he reiterates that the unwritten law “is eternal and unchangeable because it is the nature of people, whereas the written laws are variable and changing.” He then uses as an illustration of this eternal and unchanging nature of the unwritten law “a famous Greek woman who defended a man who had been buried [in accordance with] something other than the written law, saying ‘I could not bury him according to a law which is current today and which will not be current tomorrow, but according to the law which never perishes.’” Ibn Rushd here clearly connects his unwritten law to the unwritten law of Antigone, which Aristotle took to be natural justice. Beyond similarity of phrasing, though, Ibn Rushd’s choice of categories of law provides further evidence that the unwritten law is meant to correspond with Aristotelian natural justice. This becomes clear when we compare them with Aristotle’s categories in the corresponding section of the Rhetoric. The context is Aristotle’s effort to categorize “all unjust and just acts.” He distinguishes acts that are just according to two different sorts of law, particular law and common law. By “particular law,” Aristotle is referring to law that is “determined by each group of people for themselves,” whereas common law is “that which comes from nature” 11

12

13

All references to the Rhetoric are taken from Joe Sachs, ed., Plato: Gorgias & Aristotle: Rhetoric (Newburyport, MA: Focus, 2009). Here p. 179. Aristotle also spoke of a “general law,” which “is based on nature, whereas the written laws often vary (this is why Antigone in Sophocles justifies herself for having buried Polynices contrary to the law of Creon, but not contrary to the unwritten law . . .)” (Rhet. 1375a15). This, too, seems to correspond conceptually with Ibn Rushd’s idea of the unwritten law. Antigone, translated by Elizabeth Wyckoff, in Sophocles I: Antigone, Oedipus the King, Oedipus at Colonus, ed. Mark Griffith and Glenn W. Most, 3rd ed. (Chicago, IL: University of Chicago Press, 2013), 455–457.

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(1373b2–7), that is, natural law. Aristotle’s common law, then, corresponds to Ibn Rushd’s unwritten law, while the particular law corresponds to the written law.14 Interestingly, though, Ibn Rushd does not wholly adopt Aristotle’s categories of law – and his choice of categories provides a further clue as to the nature of the sunan ghayr maktu¯ba. Aristotle’s typology includes both written and unwritten forms of the particular law (1373b6); the unwritten form of particular law would essentially be the set of customs among a particular people. Ibn Rushd, however, has no such category. To him, all unwritten law falls into the category of law that is “in the nature of everyone”; there is no category for unwritten laws that are particular to a people.15 This is an important omission, for it signals to us that Ibn Rushd’s unwritten sunan are more than mere traditions or customs; if it were otherwise, it would have made more sense to keep Aristotle’s category of unwritten particular law, which amounts to customary law for a specific people. No, Ibn Rushd seems to mean by the sunan ghayr maktu¯ba something much closer to Aristotle’s natural justice (i.e., “something that all people have a notion of as naturally just”).16 I do not want to pass entirely over the differences between Aristotle and Ibn Rushd, either in intellectual substance or in political circumstances. I nevertheless link Ibn Rushd’s concepts with those of Aristotle precisely because he was commenting on the very text that Aristotle himself wrote. This should not be taken to imply that each thinker had in mind exactly the same thing but rather that each, in his own context, believed there to be an unchanging law of justice that was based on nature. That is, the common thread throughout these sources – Antigone, Aristotle, and Ibn Rushd – is an ontological statement about the unwritten or natural law: it exists in nature, specifically in human nature, whether or not we recognize or obey it. These laws “always live” (Antigone) “in the nature of everyone” (Ibn Rushd), regardless of unanimity or agreement (Aristotle and Ibn Rushd).

EPISTEMOLOGY OF IBN RUSHD’S NATURAL LAW: ELITE KNOWLEDGE AND COMMON KNOWLEDGE

Accepting the existence of these laws is one thing, but knowing their content is quite another. That is, it is one thing for a law to be binding, and even for humans to know that it is binding, but it is quite another thing for them to know what it says. If the 14

15

16

This should not be taken to indicate that common law as the term is understood in the AngloAmerican tradition but rather simply those laws which are common to all. Sachs identifies it explicitly with Thomist natural law; see Sachs, Rhetoric, 167, footnote on 1368b7. This is especially curious in the Islamic context, for the Prophetic sunan would certainly be understood to apply to Muslims only. The astute reader may note my slippage between the concepts of “law” and “justice” here, associating Ibn Rushd’s concept of unwritten law with Aristotle’s natural justice. I should qualify my move here: I do not intend to say that they are indeed the same thing; rather, I mean that Ibn Rushd’s unwritten law – i.e., that which is “in the nature of everyone” – is similar to Aristotle’s natural justice in the sense that, like Aristotle’s natural justice, it “has the same validity everywhere, and does not depend on our accepting it or not.”

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natural law is binding and is known to exist but is inscrutable in its truths, this does us very little good at all. It is also important that the natural law be accessible to all by reason; otherwise, it would have to be accepted on authority, either human or divine, and this would reduce it to human law or divine law, which are both taken on authority, either that of the legislator or of God. Such a natural law would thereby fail to bridge the divine law-human law gap that is at the heart of this book’s project. At MCR 1.15.10, Ibn Rushd states that “the written law is of the order of opinion, given that it is received from another, whereas the unwritten law is not received from another and is known by nature [maʿru¯fa bi-l-tabʿ].” This unwritten law, then, is ˙ a form of law that is known, or at least knowable, by every humans by her very nature. But what, exactly, does this reason lead them to know? In other words, how does one know what the unwritten law prescribes or forbids in the first place? Ibn Rushd makes two apparently contradictory points concerning the accessibility of the unwritten law in MCR 1.15: As for following the unwritten laws and for determining [what they are] [taqdı¯riha¯], this belongs to those who possess deliberative reflection and to the elites among the people . . . Those who are named as judges in the cities are but those who know the written laws, not the unwritten laws, for, concerning the apprehension [idra¯k] of the latter, there is equality among all people [kullu al-jumhu¯r yastawu¯n fı¯ idra¯kiha]. (MCR 1.15.6, 1.15.18)

According to the first statement, the precepts of the unwritten law must be determined by the elites yet, according to the second, the unwritten law is equally apprehensible to everyone.17 How are these two positions to be reconciled? To answer this, recall the earlier discussion of the peculiar form of universality ascribed to the unwritten law. The universality of this unwritten law, to borrow from Maroun Aouad, is “a universality of approbation and not of discovery.”18 In other words, in these two quotations, Ibn Rushd is saying that although there is equality among all people in their apprehension or awareness (idra¯k) of the natural law, not everyone will be equally capable of determining (taqdı¯r) its exact precepts. Thus, the determination of the unwritten laws, which is available only to the elites, likely refers to the process of discovering and articulating the specific precepts of the natural or unwritten law by means of theoretical reasoning. The masses, on the other hand, may know – only or at least – its general contours. That is, all people will recognize the unwritten law’s general precepts or principles with approval, but this will remain a pre-theoretical approbation for most. Still, this elite-masses epistemological distinction seems to pose a challenge to the argument of this chapter. If there is a natural law but only the elites can know what it 17

18

In fact, Ibn Rushd seems to differentiate the elites from “those possessing deliberative reflection.” It is worth asking what the difference is between these categories and how the latter category of people relates to the masses, but the objective at hand is to determine the difference in access to the unwritten law between the masses and the elites. Aouad, MCR Vol. 3, 207.

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says, of what use is it over and above the written laws, which are also framed by elites? Would the two kinds of law not be redundant, both being articulated by elites? No. In fact, even were it the case that only elites had access to the truths of the natural law, this would not nullify the natural law’s importance, for it would (or should) still guide their legislation to conform to the laws of natural justice. In other words, the unwritten law of nature would ideally serve to check the power and interests involved in legislating, even if that task is left wholly to the elites. And, importantly, the unwritten law would serve as a check not only on those who would legislate according to purely human interest; it would also check those elites who would prefer to legislate directly from divine law. In this case, the unwritten law of nature would serve to mitigate the tendencies less of personal interest and power but rather those of puritanism and extremism, thus permitting greater flexibility, even pluralism. More to the point of the natural law’s epistemology, though, note that though it precludes universal knowledge of the specific determinations of the unwritten law, Aouad’s description of Ibn Rushd’s unwritten law does include “universality of approbation.” This means that while the masses may not have access to the theoretical demonstrations of the truths of natural law, they do have an innate sense that there is a natural law – though I would add that we would expect this often to yield a fairly thin level of unanimity when it comes to its specific, rather than general, precepts. Still, even the recognition of goods can prove pivotal in ethics, as both moral intuitionists and the so-called “New Natural Law” school of thought illustrate.19 For this approbation, inasmuch as it serves as a reflection of the unwritten law, has the ability to lead even non-elites to the discovery of right and wrong; here Antigone figures as the prime illustration of the unwritten law’s force, which Ibn Rushd acknowledges (see above in re a “famous Greek woman,” MCR 1.15.9). So what exactly is this approbation? To Ibn Rushd, it is linked to the good; it is not mere opinion: “For the good according to the unwritten law is [comprised of] the acts which, whenever a person increases them, without end, his praise and acclaim or dignity and status increase, [including] such [acts] as helping friends and paying back benefactors” (MCR 1.13.8). That is, in natural law ethics, those things which meet with universal approbation generally point to the good. But Ibn Rushd’s words should not be taken to mean that the good consists in that which is praised but rather that it is indicated by approbation; that is, when a person commits acts which are good according to the unwritten law, he will be praised. Recall MCR 1.13.2, in which Ibn Rushd writes that the unwritten laws exist “even though, taken one by one, there 19

Again, this is due to the fact that it is only the elites who will know the specifics of the unwritten law by means of theoretical demonstration. On the other hand, Grisez, Finnis, and others have built an entire moral theory on such universal approbation of certain goods. See, e.g., John Finnis, Germain Grisez, and Joseph Boyle. “Practical principles, moral truth, and ultimate ends,” American Journal of Jurisprudence 32 (1987), 99–151, and John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980). See also footnote 53 below.

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is neither agreement nor contract on this subject,” and MCR 1.15.10, in which he contrasts the written law’s place in the “order of opinion” with the unwritten law, which “is not received from another and is known by nature.” Ibn Rushd seem quite content to acknowledge that these laws exist and, in Aristotle’s words, that their validity “does not depend on our accepting it or not” (Nicomachean Ethics 1134b20). Still, while they certainly exist for all, not everyone needs to have elite-level knowledge of them. Rather, people will more or less universally approve of the unwritten laws’ general precepts.20 What I take Ibn Rushd to mean in all of this is that general approbation serves as an aid in deciphering or confirming the precepts of the unwritten law, but decidedly not as the determining factor of what those precepts are, which requires elite-level deliberative reflection. Another way to say this is that, as it concerns the unwritten or natural law, approbation helps point the way to the contours of the natural or unwritten law; it is theoretical demonstration, however, that reveals the fullness of the natural law, inasmuch as it can be known.21 Let us return to Ibn Rushd’s description of “the good according to the unwritten law” (MCR 1.13.8). In linking approbation to the content of the unwritten law, Ibn Rushd ascribes a relatively high standing to human reason, at least insofar as it is juxtaposed against revelation. A prevailing contemporary view of medieval Islamic philosophy holds that “without revelation, humans would not have any morality or law at all.”22 Ibn Rushd’s philosophy generally, but certainly this role for approbation specifically, belies that portrayal of what was in fact a far richer and more contested view of the human mind’s role in ethics and even law in medieval Islam. For instance, the jurisprudential tool of ijma¯ʿ (consensus), which included the consensus of all Muslims (at least, this was Ibn Rushd’s own conception of the term as well as the understanding of al-Sha¯fiʿı¯, the eponymous founder of the Sha¯fiʿı¯ school of 20

21

22

Al-Fa¯ra¯bı¯’s writings on the distinction between the elites and the masses in his Book of Religion may be useful here: “Rather, most people who are taught the opinions of religion and instructed in them and brought to accept its actions are not of such a station [i.e., “as to understand what is spoken about only in a philosophic manner”] – and that is either due to nature or because they are occupied with other things. Yet they are not people who fail to understand generally accepted or persuasive things.” In other words, the masses, not having the leisure and/or training of the elites, were not able to access theoretical demonstration and advanced philosophical reasoning, but this did not prevent them from recognizing truth on a more general level. For al-Fa¯ra¯bı¯, they were still open to dialectic and rhetoric “for defending, supporting, and establishing those opinions [i.e., of virtuous religion] in their souls.” See al-Fa¯ra¯bı¯, Abu¯ Nasr Muhammad Ibn Muhammad, “Book of religion,” in Alfarabi: The Political Writings, trans. and annot. Charles Butterworth (Ithaca, NY: Cornell University Press, 2001), paragraphs 47–48, p. 98. This is yet more clearly evinced in Ibn Rushd’s shorter commentary on the Rhetoric, the Summary, in which he exalts the syllogistic enthymeme as “more noble” than the “external matters” of rhetoric, which are the forms of persuasion that are not derived from logic, in which category he counted consensus. See Short Commentary of Aristotle’s Rhetoric, paragraphs 33, section 5 (p. 73) and 44 (p. 77) in Charles Butterworth, Averroe¨s’ Three Short Commentaries on Aristotle’s “Topics,” “Rhetoric,” and “Poetics.” Studies in Islamic Philosophy and Science (Albany, NY: State University of New York Press, 1977). Patricia Crone, God’s Rule: Government and Islam (New York: Columbia University Press, 2004), 263.

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law),23 involved the thinking of humans, including ordinary humans, in deciphering the law; it could even be considered a possible analogue to Ibn Rushd’s use of approbation. Still, even ijma¯ʿ, which provided the most expansive role for consensus in classical jurisprudence, was limited to the community of Muslims, not all human beings, and was a procedural source of law that was only taken into account once the jurist had already used the Qurʾa¯n, Sunna, and qiya¯s to arrive at a presumptive ˙ (zannı¯) outcome. Ibn Rushd, on the other hand, seems here to propose a much more ˙ exalted view of the utility of ordinary human reasoning in knowing, or at least recognizing, justice. Here we find the crux of the matter, for it is on the understanding of human reason that a theory of natural law stands or falls. If reason is not sufficient to know at least some truths about justice and injustice, then indeed “all morality [takes] the form of positive law enacted by God,”24 and the insufficiencies of the written law described by Ibn Rushd stand (viz., it is rigid and unable to adapt to changing circumstances, it leaves no room for forbearance, etc.).25 If, on the other hand, natural reason cooperates with the written law in understanding the unwritten law, then natural law is possible. This conception of natural law is able to tap into the common-sense morality of human beings and serve as a check against the rigidity of the written law’s sense of justice, just as the written law clarifies the natural law by its explicit terms.

IBN RUSHD’S UNWRITTEN LAW AND ISLAM

The Natural Law as Real Law I have argued that the unwritten law exists in and is known through nature, but as yet it is not clear in what way it is termed “law.” To label the unwritten law as “law” is 23

24 25

In support of the view that this was Ibn Rushd’s understanding of ijma¯ʿ, in the Decisive Treatise, Ibn Rushd assumes that the consensus of Muslims would be authoritative for answering the question of whether “all the utterances of the Law [are] to be taken in their apparent sense.” The answer to this particular question was a resounding “no,” as the consensus was that the Law admits of both an apparent sense and one requiring interpretation. However, even the object of consensus – in this case, the Law – was open to correction by demonstration. In other words, if Muslims had established by a non-certain consensus that some particular aspect of the law admitted only of its apparent sense, this opinion could still be overridden by demonstration. Thus, while Ibn Rushd acknowledged the authority of an expansive understanding of ijma¯ʿ, he nevertheless considered theoretical demonstration to be yet more authoritative in some matters. See Averroes, Decisive Treatise and Epistle Dedicatory, trans. Charles Butterworth (Provo, UT: Brigham Young University Press, 2001), section 14, lines 5–30. As a note on al-Sha¯fiʿı¯ and ijma¯ʿ, Hallaq argues that al-Sha¯fiʿı¯ himself was inconsistent in holding to universal ijma¯ʿ of the entire Islamic community if that consensus was to be understood as a solitary tradition (i.e., rather than resting on text). See Wael B. Hallaq, “The authoritativeness of Sunni consensus,” International Journal of Middle East Studies 18, no. 4 (1986), 432–433. Crone, God’s Rule, 264. See MCR 1.13.9, where Ibn Rushd writes that the “determined law . . . is not sufficient in that it determines relative to good and evil in the behavior of each individual human, in such a way that one needs to add to it or subtract from it something according to the unwritten law.”

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significant, for if it is correct, this would have profound implications on the methodology of fiqh – not only would it potentially constitute a fifth source of sharı¯ʿa, it would also radically alter the status of independent reasoning of both jurists and individual Muslims. This is startling, yet it is difficult to avoid the conclusion that Ibn Rushd does take the unwritten law seriously as a source of law. In MCR 1.15.11–12, he discusses the jurisprudential practice of jamʿ (addition, coming together), which refers to the various ways of reconciling apparently conflicting written laws.26 Ibn Rushd suggests, however, that it be used instead to adjudicate between written and unwritten law.27 Thus, Ibn Rushd did anticipate conflicts between the written and unwritten laws in such a way that the unwritten law, which is known by nature to all humans, was not there merely to be overridden or manipulated but to be taken seriously alongside the written law, as the two aspects of law were reconciled through jamʿ. When we assemble Ibn Rushd’s claims about the unwritten law, especially those concerning the role of approbation and his proposed use of jamʿ to reconcile the unwritten law with written law, the picture that emerges is a remarkable one. First, it has to be noted that Ibn Rushd posited the existence of a law that does not necessarily originate with God, for we cannot know its origins (“It is not known when these laws were instituted, nor who instituted them,” MCR 1.13.2). Elsewhere, in addition, Ibn Rushd held that to break the unwritten law was in fact more serious an offense than breaking the written law, for it is an offense against nature.28 In MCR 1.13.9, he describes this subordination of the written law to the unwritten in showing the former as a constituent part of the latter: “It must be that there is, in these unwritten laws, a written justice and something superior [tafaddul],” something that either adds ˙˙ to or subtracts from the written law. In other words, the unwritten law contains within itself a built-in corrective to the excesses or deficiencies of the written law. If the written law is taken to be sharı¯ʿa, Ibn Rushd’s claims seem quite subversive. For at least exegetical reasons, then, it is important to keep in mind that his writings were not intended to stand outside of mainstream Muslim opinions on law. In addition to his philosophical works, Ibn Rushd was a celebrated faqı¯h (Islamic jurist) and eventual qa¯dı¯ al-quda¯ʾ (high judge) of Seville. His statements on the unwritten ˙ ˙ law’s relationship to the written law, then, should not be hastily dismissed as fringe 26

27 28

See Aouad MCR Vol. 3, 207–208 for a discussion of the use of jamʿ in Ibn Rushd’s time. Explicit discussions by jurists of jamʿ are rare, as the practice encompasses a wide range of tools and approaches, but al-Sha¯fiʿı¯’s Risa¯la fı¯ Usu¯l al-Fiqh contains a section devoted to dealing with conflicting traditions ˙ (sunan) that illustrates the practice fairly well. It seems that jamʿ, at least to al-Sha¯fiʿı¯ (and according to Aouad, the Sha¯fiʿı¯ school was largely in agreement on the matter of jamʿ with the other Sunni schools, including that of Ibn Rushd, the Ma¯likı¯ school; see Aouad MCR Vol. 3, 208), incorporated such tools as abrogation (naskh) and specification of legal rationale (takhsı¯s al-ʿilla). See Mohammed Ibn ˙ ˙˙ Idrı¯s al-Sha¯fiʿı¯, al-Risa¯la fı¯ Usu¯l al-Fiqh: Treatise on the Foundations of Islamic Jurisprudence, trans. with ˙ introduction, notes, and appendices by Majid Khadduri (Cambridge: Islamic Texts Society, 1997), paragraphs 181–350. See Aouad, MCR Vol. 3, 208. MCR 1.14.11

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legal theory. For the same reason, though, they are not a means of erasing the dominant interpretation of centuries of usu¯l al-fiqh (jurisprudence) that God’s law is ˙ higher than any law, written or unwritten, human or natural. Rather, I interpret such statements as that above (“there is, in these unwritten laws, a written justice and something superior”) to indicate that interpretations of written law – including the entire written transmission of sharı¯ʿa – are prone to both excess and insufficiency and that the unwritten law of justice can serve to correct it when such instances arise. Even this may go too far for some, for the sharı¯ʿa must be left off-limits as it concerns correction. (Again, though, it should be stressed that what is at stake is not the ontological status of sharı¯ʿa but rather interpretations of it.) Nevertheless, from the text, it would seem that Ibn Rushd does indeed claim that the unwritten law serves this purpose. In MCR 1.13.11, Ibn Rushd moves fluidly from the topic of written and unwritten laws to that of written religion. There, having just finished a discussion on the occasional need to “add or subtract something” from the written law, he states that “this becomes clear in [the case of] the written religions [al-mila¯l al-maktu¯ba] of our time. To add or subtract something from them is not better unless it [i.e., the addition/subtraction] is enforced with dignity or honor.” In other words, adding or subtracting is permissible at least under some conditions. This is especially remarkable because the addition of “the written religions” is Ibn Rushd’s own; it is not found in the Rhetoric in either its Greek or Arabic versions.29 The written/ unwritten distinction now obtains not only in law but in religion as well. Ibn Rushd’s ensuing discussion of clemency in MCR 1.13.12 sheds some light on what he means by adding to or subtracting from the “written” religions, which one would assume would include religious law. Here, having defined clemency (alhilm) as “improving the written thing in its imperfection or increasing its stature ˙ when it [results in] commendation or praise,”30 he illustrates this idea of adding to or subtracting from the written law with an example from Islamic law: while ordinarily, according to sharı¯ʿa, the penalty for theft was having one’s hand cut off, in the event that the thief was in need of food, the penalty was waived. I return to this question of clemency below, but what is of note at present is that in taking a specifically Islamic case, Ibn Rushd indicates not only that (1) it is sometimes necessary to add to or subtract from “written religions of our time,” but also that (2) Islam is one of those religions. In Aouad’s words, “Does Averroe¨s here count, among the religions of his time, the religion of the Qurʾa¯n? The manifestly Quranic example of the end of [the case of the thief, MCR 1.13.12] seems to indicate it.”31 Aouad is right to point out that Ibn Rushd is taking a Quranic example in invoking the hudd penalty for theft, but this example adds an interesting layer to Ibn Rushd’s theory, for the very “subtracting” from the written law that it represents in fact stands within the Muslim legal tradition. Both Ma¯likı¯ legal doctrine generally and 29 30 31

Aouad, Commentaire, Vol. 3, 195. “tafaddul fı¯ nuqsa¯n al-shaı¯ʾal-maktu¯b aw rafaʿhu fı¯ al-mu¯dʿ al-ladhı¯ yalhaq dhalik madh a¯u¯ kara¯mah.” ˙ ˙ ˙˙ ˙ ˙ Aouad, Commentaire, Vol. 3, 195.

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the second caliph ʿUmar ibn al-Khatta¯b in a specific historic instance did, within the ˙˙ normal confines of fiqh, also modify or suspend the penalty.32 Thus we arrive at what I suggest is the role of Ibn Rushd’s unwritten law: it is indeed a form of law, and it serves to correct the written law, including interpretations of the sharı¯ʿa. But it does so not wholly from within nor wholly from without Islam. For the unwritten law finds its basis in nature, and just as nature is neither exactly an Islamic concept nor one that stands entirely outside of Islam (in that God is nature’s creator), the unwritten law is an always-already-there aspect of law to which, Ibn Rushd points out, we do well to attend. To summarize what has been established so far, Ibn Rushd is positing the existence of an unwritten law that inheres in the nature of the world and that serves as some sort of corrective to the written law, which, in Islam, will include both sharı¯ʿa and human law. After all, it is from the unwritten law that one would know how to add to or subtract from the written law in order to compensate for its “insufficiency.”33 The unwritten law is universal (MCR 1.13.2, also 1.13.10) and thereby unlike the written law, which is of a determined, prescribed, fixed nature, such that “it applies neither to every individual, nor in every time, nor in every place.”34 Ibn Rushd seems to indicate that this written law includes religious law – even, if we are to take his example to mean anything, specific precepts of sharı¯ʿa. Un-Islamic Unwritten Law? The theory of law I have attributed to Ibn Rushd above, however, may still not stand very easily within mainstream Islamic teachings about the origin and nature of law. In traditional Sunni Islamic jurisprudence, where there is no scripture to address a legal question, either directly or indirectly,35 one is left in a state of legal suspension (tawaqquf) without the epistemic resources to adjudicate.36 Ibn Rushd, on the other hand, holds that there is something beyond the written law, namely the unwritten or natural law, that tells us something about justice and injustice even when positive guidance is lacking from sharı¯ʿa for making such decisions. Is Ibn Rushd’s commentary on this unwritten law un-Islamic? I argue in this section that while the unwritten law Ibn Rushd sets forth does indeed serve as a corrective of sorts to interpretations of Islamic law, as discussed above, it also stands within the Islamic tradition – it is an Islamic natural law, whether or not it is recognized as such. To understand Ibn Rushd’s resolution of the apparent conflict between the unwritten law and Islamic law, it is helpful to note that it is conceptually possible 32 33 34 35

36

I am indebted to an anonymous reviewer for this point. MCR 1.13.9. See n. 26 above. MCR 1.13.9. That is, through a primary text or through secondary sources such as consensus (ijma¯ʿ), analogy (qiya¯s), reason (ʿaql), public interest (maslaha), or juristic discretion (istihsa¯n). ˙ ˙ ˙ Anver Emon, “Natural law and natural rights in Islamic law,” Journal of Law and Religion 20 (2004), 351.

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to hold to a divinely transmitted written Law that is unchanging and true without adhering to a strictly positivist understanding of the nature of law itself. Thomas Aquinas’ typology of law in Question 91 of the Prima Secundae of the Summa Theologica divides the eternal law (which exists in the mind of God) into the divine law (positive, known through revelation) and natural law (unwritten, known through reason). Thus, both types of law derive from the eternal, unchanging law. But they need not both be positive law, or words revealed in an historical instance. Ibn Rushd’s schema bears some resemblance to the Thomist schema, although similarities should not be overstated – for instance, Thomas’ written (“human”) law is not contained within his unwritten (“natural”) law, as it is for Ibn Rushd (see MCR 1.13.9: “It must be that there is, in these unwritten laws, a written justice and something superior [tafaddul]”). Rather, both human and natural laws participate ˙˙ in the eternal law, which exists in the mind of God.37 Nevertheless, that both schemas contain positive, changeable written law as well as an unchanging, unuttered natural law that is known through reason, is significant. Since the unwritten law is, by definition, not positive law, it requires certain points of establishment, or determinations, in order to form the written law.38 Aouad calls such determinations “a sort of stop in the infinite effort of adjusting the unwritten law – an implicit stop in certain circumstances.”39 Ibn Rushd discusses the process in MCR 1.13.9: “one needs to add to [the written law] or subtract from it something according to the unwritten law.” That is, it is the task of the written law’s legislator to make determinations of what the unwritten law says and to write, or adjust, the positive law accordingly. This characterization of the written/unwritten law distinction effectively makes the (somewhat idealized) task of the legislator one of codifying or establishing in definite legal terms that which is already in fact (unwritten, natural) law. In his discussion of this codification, however, it becomes clear that Ibn Rushd still intends to situate the unwritten law within an Islamic context. A particularly salient portion of the MCR in this regard occurs in the discussion of clemency (alhilm)40 at MCR 1.13.12–26, in which he delineates eleven premises leading to pardon ˙ by a judge.41 Ibn Rushd draws a direct correlation between Greek and Islamic examples of the deployment of the unwritten law to mandate clemency. In Aristotle’s example, a man could be punished under Greek law for raising his 37

38 39

40 41

This is, I grant, an important difference, for it adds a second category of particular/written law, the divine law, which cannot err, as opposed to human reason, which can err in promulgating human laws. Thus for Aquinas, both the unwritten natural law and the written divine law could serve as a measure of the justice of a written human law. See the discussion on p. 90 concerning the idra¯k of the natural law versus the taqdı¯r of its precepts. “une sorte d’arreˆt dans l’effort infini d’ajustement de la loi non e´crite – arreˆt implicite sur certaines circonstances” (Aouad, MCR Vol. 1, 139). The corresponding Greek term used by Aristotle in the Rhetoric is το επιειχες, “equity.” In Aouad’s interpretation, this discussion demonstrates serious thinking about the effort “to attenuate the rigors of the Islamic Law” by means of these premises. See MCR Vol. 1, 140.

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hand while wearing a ring, because the written law forbids raising one’s hand while carrying an iron object. (This was intended as a law against raising one hand’s while holding a weapon, but “weapon” was designated as the entire category of “iron object”; see Rhet. 1374a.) However, the unwritten law in such a case would require that such a man be pardoned, “such that pardoning him is justice” (fa-l-safh idhan ˙ ˙ ʿan mithl ha¯dha¯ ʿadl). He then writes that it “seems to be likewise with us” (ka-dha¯lik yushbihu an yaku¯na ʿindana¯) in that, as mentioned above, cutting off the hand of a thief is ordered by Islamic written law, but the unwritten law calls for forbearance, especially when the thief stole out of a need for food.42 In this way, the thinking would go, inasmuch as the Greeks could invoke a law outside of the positive one, so too could Muslims. Lest this law be taken too far, however, Ibn Rushd shows concern that the unwritten law not override Islamic tradition. In MCR 1.14.3, he delineates certain injustices that do not qualify for clemency (al-hilm).43 The passage merits quoting at ˙ length: As for similar injustices, I mean those against the houses of God and the walia (God’s close friends), there is neither pardon, nor clemency, nor tolerance, for the pardon and the clemency in these cases are not at all demanded by maslaha ˙ ˙ (interest), but, inevitably, the judge must, in such cases, execute the punishment, either in vengeance against the guilty part, or for [the sake of] the general interest [maslaha ʿa¯mma]. This is why our jurists have said that anyone who says about the ˙ ˙ Prophet – peace be upon him – that his clothing is soiled, must be killed.

This passage is important for two reasons: first, Ibn Rushd is taking pains to situate his system of unwritten law within an Islamic framework. Second, he does so without invoking Quranic authority or sharı¯ʿa. He is forbidding – and foreclosing the possibility of clemency for – acts that are specifically offensive to Islam by means of an Islamic but unwritten doctrine. In other words, to Ibn Rushd, “written religion,” like written law, may mask an unwritten aspect that is just as important for understanding its true nature. Ibn Rushd’s placement of the unwritten law’s relationship to the written law links both unwritten and written laws to the law of God, without collapsing the distinct categories into each other. That is, God’s will is accessible through both revealed law, sharı¯ʿa, and natural reason. This allows for a natural law of justice accessible through reason that does not contradict the divine law, but can rather attenuate the human understanding of it. It is important that none of this should be understood to discount the role of Islam in an Islamic natural law. The objective is not to secularize Islamic law but to enlarge the concept of law itself – that is, law as at once divine human, and natural.

42 43

MCR 1.13.12. See pp. 95–96 above. Aouad, MCR Vol. 1, 141.

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My point, then, is simply to illustrate that this theory of law that Ibn Rushd deploys is consonant with such a tripartite conception of law. Unwritten Law, Obligation, and Voluntarism: Natural Law in Jurisprudence and Theology Appearing, as it does, within a commentary on Aristotle’s Rhetoric, it is clear that Ibn Rushd’s unwritten law stands within the Islamic falsafa tradition, but as mentioned in this chapter’s introduction, the role of fiqh in determining the nature of the law is also essential. In order for the unwritten law to be taken seriously, we need more details on what it would look like within the jurisprudential, and not just philosophical, tradition. Beyond that, the tradition of dialectical theology, kala¯m, with which the fala¯sifa themselves had to contend, could pose further obstacles to the reception of natural law within the broader Islamic tradition. The following section addresses both of these disciplines, arguing ultimately that neither the jurisprudence nor theology of Islam precludes the natural law premise that right and wrong inhere in nature, thus leaving a legitimate space for a theory of unwritten or natural law such as that of Ibn Rushd. Natural Law in Jurisprudence: Maslaha and Reason in Creation ˙ ˙ The obvious issue that arises when one introduces natural law into Islamic jurisprudence is that of obligation. Natural law is ill at ease with fiqh, one may say, because it lacks a source of obligation; in Islamic law, it is God who obligates, not nature.44 An obligating force that is not identified with God himself violates the foundational Islamic doctrine of tawhı¯d, or the oneness of God. Yet the picture of unwritten law ˙ Ibn Rushd paints is one with an obligating force; this is how he can hold that an offense against the unwritten law is greater than an offense against the written law (MCR 1.14.11).45 This would, however, be wholly contrary to Sunni jurisprudence, in which the sources of obligating law are, first, the (written) Qurʾa¯n and Sunna, and then the (unwritten) sources of consensus (ijma¯ʿ) and analogical reasoning (qiya¯s). This is standard Sunni fiqh, and it leaves very little room for natural or unwritten law. But Ibn Rushd was, as mentioned above, a highly regarded and influential jurist as well as philosopher. What is one to make of his unwritten law, in this light? 44

45

According to Mohammad Kamali, the natural law tradition that developed in the West and Islamic divine law share the idea that right and wrong derive from an “eternally valid standard that is ultimately independent of human cognizance and adherence.” Kamali, though, differentiates between the two traditions: while from a natural law perspective, right and wrong inhere in nature, from an Islamic perspective, “right and wrong are determined . . . because God has determined them as such.” See Principles of Islamic Jurisprudence (Cambridge: Islamic Texts Society, 2003), 323. Ibn Rushd writes in 14.11: “Injustice in unwritten laws, I mean the transgression of these laws, is greater than injustice in the written laws. In effect, the unwritten laws are as if something were constraining man to follow them, for they are as that which is natural to him.”

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I suggest that maslaha is the key to understanding Ibn Rushd’s unwritten law in ˙ ˙ a jurisprudential schema. Maslaha, which translates as “interest” though it can be ˙ ˙ thought of as “common interest,” is linked philosophically to the notion of unwritten law in Ibn Rushd’s discussion of the limits of clemency in legal reasoning mentioned above. Both maslaha and natural law contain normative force yet lie outside the ˙ ˙ parameters of the written law. Both, too, are jurisprudential tools that require the use of reason for their application. What most closely links maslaha and unwritten law, though, is that both require ˙ ˙ a key naturalistic assumption in order to have obligating force (i.e., in order to move from an “is” to an “ought”), both the unwritten law and the notion of general interest must participate in some way in the will of God. On this point, Emon writes that inherent in the very concept of maslaha is “a sense of divine purposefulness that ˙ ˙ provides a normative quality to the underlying empirical observation.”46 He argues that both Abu¯ Bakr al-Jassa¯s, a Muʿtazilı¯ naturalist and Hanafı¯ scholar, as well as ˙ ˙˙ ˙ Shiha¯b al-Dı¯n al-Qara¯fı¯, a Ma¯likı¯-Ashʿarı¯ jurist and critic of the Muʿtazilı¯ school, took the Muʿtazilı¯ position to be that “empowered reason,” as an aspect of God’s creation, can obligate even as they agreed with legal positivists that all obligation comes from God alone.47 The reasoning of these Muʿtazilı¯ jurists proceeded as follows: – All of creation is created for humanity’s benefit. • This premise was based on Qurʾa¯n 2:29, which states that “[God] it is Who created for you all that is in the earth” (al-ladhi khalaqa lakum ma¯ fı¯ al-ardi ˙ jamı¯ʾan). – This being the case, God put nature at the disposal of humanity and it can be used in any way that benefits humanity.48 – Therefore, creation embodies the normativity of the divine will.49 In other words, because reason is a part of creation, it is infused with divine obligation, for creation is an expression of God’s will. Thus, natural law, which is known through reason, is suffused with divine obligation. Such was the Muʿtazilı¯ juristic position, and it is remarkably compatible with Ibn Rushd’s role for the unwritten law. That this view is not current in Islamic jurisprudence has much to do, at least initially, with the turn from Muʿtazilism to Ashʿarı¯ jurisprudence. The Ashʿarı¯ school developed in the tenth century in response to what Abu¯ al-Hasan al-Ashʿarı¯ and his disciples considered to be unorthodox or innovative ideas coming from the then-dominant Muʿtazilı¯ school. For the Ashʿarı¯, all knowledge of morality must 46 47 48

49

Emon, “Natural law and natural rights,” 360. Emon, “Natural law and natural rights,” 358. Emon here cites al-Jassa¯s, Usu¯l al-Jassa¯s: al-Fusu¯l fı¯ al-Usu¯l, ed. Muhammad Muhammad Tamir ˙˙ ˙ ˙ ˙˙ ˙ ˙ ˙ (Beirut: Da¯r al-Kutub al-ʿIlmiyya, 2000), n. 6 at 2:100. Emon, “Natural Law and Natural Rights,” 355–356.

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find its root in revelation, thus apparently precluding nature as a guiding source. Nevertheless, in keeping with al-Jassa¯s above, to consider nature to be infused with ˙˙ ˙ morality is not to remove the role of revelation; instead, it is simply to understand God to have revealed something of himself in the world he created. This is not an unknown perspective in Islam; beyond the Sufi mystics generally, including most notably Ibn ʿArabı¯, it finds expression in a hadı¯th in which the Prophet is said to have ˙ exclaimed, “Verily! In the creation of the heavens and the earth, and in the alternation of Night and Day, there are indeed signs for men of understanding.”50 Creation itself, including human nature, contains signs for those who seek understanding, but only because it is a form of God’s self-revelation. In this way, revelation remains a unified, but expanded, notion, one that includes nature as a form of revelation. Natural Law in Theology: Al-Aslah and Voluntarist Justice ˙ ˙ The Muʿtazilı¯ position on the nature of obligation was not limited to jurisprudence. In kala¯m debates, the question of obligation revolved around the proper understanding of the doctrine of al-aslah (literally, “the best,” used to indicate the optimal ˙ ˙ nature of whatever God does), which taught that God always does what is best for his creatures. A debate between two ninth-century Baghdadi theologians on the question of whether al-aslah obligates God to goodness or whether, on the other hand, it ˙ ˙ merely describes what he does, provides a window into these issues. One of the theologians, Ibra¯hı¯m an-Nazza¯m, suggested that God would be obligated by his own ˙˙ aslah,51 for although God does indeed always do what is best (aslah) for his creatures, ˙ ˙ ˙ ˙ God is not capable of committing an injustice because this would indicate an imperfection (naqs) on his part; injustice can only be committed by a “deficient” ˙ creature (duʿafa).52 Abu¯ al-Hudhayl, on the other hand, held that although it was “unthinkable” (muha¯l) that God would commit injustice (zulm, jawr), he must be ˙ capable of it, for to hold otherwise would be to charge God with a lack of power 53 (ʿujz). In other words, while one cannot conceive of God committing an act of injustice, he is capable of it; God is obligated by nothing. Which side of this debate one falls on carries implications for what one believes to be the nature of God’s justice – namely, whether it is a voluntarist sort (i.e., whether justice is whatever God declares it to be) or, on the other hand, whether justice can be characterized by an a priori, rationalist ethic.54 If aslah obligates God, there is ˙ ˙ a goodness or justice which can be invoked as prior to the goodness and justice 50

51

52 53 54

Volume 8, Book 73, Number 235 of Sahih Bukhari’s collection of aha¯dı¯th. Center for Muslim-Jewish ˙ Engagement, www.cmje.org/religious-texts/hadith/bukhari/. The later Abu¯ l-Qasim al-Balhi al-Kaʾbi (d. 931) argued this explicitly. See Robert Brunschvig, “Muʿtazilisme et optimum (al-aslah),” Studia Islamica 39 (1974), 11. ˙ ˙ Brunschvig, “Muʿtazilisme,” 10. Brunschvig, “Muʿtazilisme,” 6–7. This is an iteration of the Euthyphro dilemma: is what is pious so because it is declared so by the gods, or do the gods declare something pious because it is, in some a priori way, pious? If the former, the

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known through revelation (i.e., it is not voluntarist). If, on the other hand, aslah does ˙ ˙ not obligate God, then justice is that which God determines and declares it to be (i.e., it is voluntarist). It is not difficult to see that voluntarism is incompatible with a theory of natural law. While the context – ninth-century Baghdadi theological debates – should not be conflated with that of Ibn Rushd’s twelfth-century Andalusia, this issue of voluntaristic theology nevertheless has great import for the place of Ibn Rushd’s sunan ghayr maktu¯ba within Sunni theological history. For had the question been settled in favor of an-Nazza¯m’s position, then God would be immune to obligation, even to his own ˙˙ words or created norms. In such a case, whatever he declared would be the final word and there would be very little room for ijtiha¯d (effort in legal reasoning) – or indeed ʿaql (reason) – for one needs only as much interpretation or reason as is necessary to understand the very words of the divine command. This would render the sunan ghayr maktu¯ba quite useless, or perhaps call into question their very existence in the first place. If, on the other hand, al-Hudhayl had won the debate, then justice in any given case would be rather inscrutable, for God’s word could only get one so far – there would necessarily be a prior conception of goodness which would, presumably, inform the nature of justice. But what this prior standard would be remains unclear, as does its relation to the divine law. Perhaps the sunan ghayr maktu¯ba could fill the role, but Ibn Rushd himself makes clear that it is not to override the sharı¯ʿa, so this outcome seems equally unlikely. Interestingly, the debate was never settled definitively; the doctrine of obligation from aslah was eventually jettisoned from theological debates as inimical to the ˙ ˙ truth of God’s total power and total freedom.55 Perhaps on some level this was salutary, as both options outlined above are undesirable in their own ways. It is my suggestion in this chapter that a theory of unwritten law, such as that I believe is found in Ibn Rushd’s text, provides something of a third way between an-Nazza¯m ˙˙ and al-Hudhayl. For the justice inherent in nature, as the unwritten law affirms, is not exactly an a priori justice; creation, as al-Jassa¯s points out, is infused with God’s ˙˙ ˙ goodness. Yet neither is it reduced to a simple declaration of justice on the part of God (or his representatives). Rather, it is justice as it is found in the nature of the whole world – which includes God’s revealed declarations and those of his representatives.

CONCLUSION

I suggest in this chapter that there is a tradition of philosophy within Islam that incorporates divine, human, and natural law into its idea of what law, in its fullness, is. This is admittedly not the predominant view in most Muslim societies today. But

55

gods are capricious; if the latter, there is something greater than the piety of the gods and the problem is just pushed back one step. Brunschvig, “Muʿtazilisme,” 21.

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as the struggles that both underlay and followed the Arab Spring have made clear, the prevailing understandings of law and justice in Muslim societies are in flux, even in crisis. The unwritten law that Ibn Rushd theorized 850 years ago presents itself as a powerful tool within the Islamic tradition for mediating the demands of changing human law and the unchanging will of God. As we have seen, furthermore, Ibn Rushd suggested a means of mediating these conflicts between the law of man and the law of God. The unwritten law of justice, known on some level to all humans, can mitigate the rigidity of the written law, whether this written law is understood to be the sharı¯ʿa as the fuqaha¯ʾ (jurists) have interpreted it or the universal human rights laws that must be reconciled with centuries-old divine revelation. Recall Ibn Rushd’s discussion of jamʿ, the juristic tool of reconciling apparently conflicting texts. To Ibn Rushd, jamʿ will appear by means of a dialectic between the unwritten and written laws, thereby resolving the “apparent contradiction” between the two: “When [the judge] judges on one subject and the written law is the opposite of the unwritten law . . . the judge must sometimes use the ancient law – I mean the unwritten law – in one instance and withdraw it in another . . . In effect, by this means, the apparent contradiction between them falls away and the jamʿ becomes correct.”56 As Aouad points out, such a use for the unwritten law and jamʿ is thus far without practical instantiation in Islam.57 Still, the need for such a reconciliation is no less urgent today than it would have been in Ibn Rushd’s day. The process Ibn Rushd describes – that of carefully weighing the timeless, universal precepts of natural justice with the particular demands of either a people or a religion until reaching reconciliation between the two – is needed in order to arbitrate the conflicts between human law and divine law that we find at the heart of contemporary debates over the role of sharı¯ʿa. This process is by no means simple or formulaic, and for that reason it is often laid aside in favor of simply following a written law, whether that of the polis or that of the gods. But taking this simpler path eventually leads to natural injustice. To avoid the tyranny of either law, we do well to pay attention to Ibn Rushd’s unwritten law to shed light on the nature of natural justice.

56 57

MCR 1.15.11. Aouad MCR Vol. 3, 208.

5 Arguing Natural Law: Tertullian and Religious Freedom in the Roman Empire

Having seen the need for natural law in Antigone, then instances of early natural law in Jewish and Islamic medieval texts, we now turn back in time to perhaps the earliest linkage between the idea of natural law and the idea of religious freedom. Here, as with Ibn Rushd and Maimonides, a theory of natural law is present only in whisperings; Tertullian’s writings are the wrong place to look for a complete treatise on law. They are, however, a rich and underappreciated source of wisdom as it concerns the application of natural law as a mediator between divine law and human law – and, as it happens, an application that directly concerns the idea of religious freedom. This chapter differs from the preceding ones in that the focus is not limited to a single text but examines the better part of an author’s corpus. I am interested in how and on what grounds the third-century Christian theologian Tertullian agitated for universal religious freedom, as well as whether his methods and theories of natural law align with those I have drawn from the previous texts. His overall impact on religious freedom could not be restricted to the effects of a sole text; quantity of texts is necessarily purchased at the price of exegetical quality of any one text. I therefore beg the reader’s patience for what may, at times, seem like insufficient treatment of a given work. Likewise, Tertullian’s works and achievements require us to step back from the theoretical details of unwritten and natural law and look at the role it can play in negotiating religious freedom. Thus, this chapter takes a practical rather than strictly philosophical approach to the question of how natural law helps mediate the religious realm, including faith, ritual, and divine law, and the political realm of reason, pluralism, and human law.

WHY TERTULLIAN?

Quintus Septimius Florens Tertullianus, known as Tertullian (160–225 CE), was an early Christian theologian and apologist from Carthage, in present-day Tunisia. Few biographical details are known about his life,1 but his prolific writings and 1

Timothy Barnes dates Tertullian’s birth at around 170 CE with a death “before he reached old age.” But even his historical account of Tertullian contains little by way of biographical detail for sheer lack of historical record. Much of what has traditionally been said of Tertullian – e.g., that he was a priest, in

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multifaceted defense of the young Christian religion earned him the title of “Father of Latin Christianity.” He is famed for his articulation of the doctrine of the Trinity. A tireless apologist for the Christian faith to which he was himself a convert, Tertullian laid the foundations for much of Augustine’s work over a century later. He successfully opposed the Marcionite heresy, which declared the Old Testament God a separate God from that of the New, as well as defending Christianity to the Roman Empire. While not nearly as famous as several of his intellectual heirs, in the centuries following his death he was counted as an intellectual giant and remains so today for patristic scholars. Timothy Barnes, whose biography of Tertullian remains authoritative, traces an “undeniable” influence of Tertullian on such early Christian notables as Minucius Felix, Cyprian, and Arnobius, among others;2 even Gibbon cites him extensively in The History of the Decline and Fall of the Roman Empire.3 Besides laying the theological foundations for Christianity, however, Tertullian was also likely the first author to use the term “religious freedom” (libertatem religionis, Apol. xxiv.6),4 which he declared to be a “human right” (humani iuris, Scap. ii.2).5 This chapter unpacks Tertullian’s defense of religious freedom with a studied focus on his roles for human, divine, and natural law. Ultimately, Tertullian’s defense of religious freedom rested on a theory of natural law, representing a practical application of the theories we have seen thus far in this book. Tertullian named religious freedom a “human right” as early as 212 CE, centuries before religious liberty would receive extensive treatment in political or philosophical history. His full statement declares that it is “a fundamental human right [humani iuris], a privilege of nature [naturalis potestatis], that every man should worship according to his own convictions [quod putaverit colere]; one man’s religion neither harms nor helps another man” (Scap. ii.1–2). This statement is striking in its breadth. Humani iuris indicates that Tertullian saw a basis for religious freedom that could not be defined strictly as either divine law or human law, for it inhered in humanity itself, regardless of creed or political membership. Therefore, religious freedom was not to be limited by either political or religious/cultic boundaries. Naturalis potestatis indicates that the capacity or power to worship was legitimized

2 3 4

5

Jerome’s record, or that he was the jurist Tertullianus – is inaccurate. See Timothy Barnes, Tertullian: A Historical and Literary Study (Oxford: Oxford University Press, 1971), 2, 24–25, 58. See Barnes, Tertullian, 194. See, e.g., extensive citations in chapters 15 and 28 of Volume 1. See the Appendix to this chapter for a list of abbreviations of Tertullian’s works. All quotations of the Apology come from Tertullian, Apologeticus, trans. T. R. Glover, in Tertullian, Minucius Felix, trans. T. R. Glover and Gerald H. Rendall (Cambridge, MA: Harvard University Press, 1927). All English quotations of Ad Scapulam come from the Thelwall translation in The Ante-Nicene Fathers. Translations of the Writings of the Fathers Down to A.D. 325, ed. Alexander Roberts and James Donaldson. Revised and arranged chronologically, with brief prefaces and occasional notes, by A. Cleveland Coxe, 10 Vols. (Buffalo, NY: The Christian Literature Publishing Company, 1885–1896). The Latin comes from Ad Scapulam, ed. Dom Eligius Dekker. 2 Vols. (Turnhout: Brepols, 1953–1954).

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by nature, which, in the Stoicism of Tertullian’s background, implied normativity. In other words, this capacity for worship was not simply descriptive but was endorsed by nature as a good. The significance of Tertullian’s theory of religious freedom, however, is not simply that it invokes natural law; it is significant as well that he was operating from within a religion yet in the context of a pagan empire. In other words, Tertullian was dealing with religious difference, yet he did not resort to what we would term a secular or strictly philosophical defense of freedom of conscience. As I have argued throughout this book, religious freedom is a challenge fundamentally because of the conflicts, real or apparent, between human and divine law. Attempts to resolve these challenges through purportedly neutral secular frameworks, wellintentioned as they may be, typically miss the mark because in starting from a purely human, or immanent, discursive framework, they implicitly disregard an entire side of the conflict, thereby denying the validity of a real problem. In other words, to attempt to resolve the divine-human conflict through human means alone is fundamentally question-begging; it assumes the secular framework that is at the heart of the matter. Instead, with Tertullian we have a figure who worked from within the confines of his own religion, including its laws and mores, yet addressed a human audience that did not share it. As such, Tertullian’s historical and philosophical testimony is better able to evince the possibilities for religious freedom, for his appeal admits the validity of both human and divine law and wisdom operating simultaneously in the political and legal spheres. How did Tertullian achieve this? How did he manage to hold the sacred and secular, even faith and reason, together in one hand? We might expect him, as a Christian living in a non-Christian world, to have developed a mature theory of natural law. Later Christian natural law theorists, after all, would attempt to demonstrate the possibility of moral knowledge absent divine revelation, and such a tactic would seemingly have suited Tertullian’s ends. Furthermore, he was well versed in philosophy and steeped in the Stoic atmosphere of his time,6 which contained its own natural law tradition, so the fruit was ripe for picking. But this was not the case. Tertullian did, as I show below, deploy natural law reasoning; his defense of religious freedom relies almost entirely on it. However, he did not construct his own theory of natural law; in fact, he rarely engaged in systematic philosophy at any 6

The extent to which Tertullian was a Stoic thinker is debated. Jean Danie´lou presents a nuanced and persuasive case for a rather deep Stoic influence, especially as it concerns the notion of universal corporeity; see his The Origins of Latin Christianity, trans. David Smith and John Austin Baker (London and Philadelphia, PA: The Westminster Press, 1977), 209ff. Nevertheless, his obvious first commitment was Christianity, and he balked at the efforts of some Christian thinkers to retrofit their religion with past philosophical systems, all of which he considered to have been superseded by Christian revelation. See Pall iv.4 for this latter point; for his rejection of efforts to fuse Christianity and philosophy, see Danie´lou, Origins, 210–211. Tertullian’s approach is especially contrasted with that of Justin Martyr. Still, while the extent of his Stoic influence is debatable, its existence is not. See, e.g., An. v, in which Tertullian “call[s] on the Stoics also to help me”); his commitment to aligning the will with nature, as discussed below, is also an unmistakable mark of the Stoicism of his era.

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length. As detailed below, Tertullian more often eschewed, or claimed to eschew, philosophy altogether, linking it to heresy and hubris. Put simply, his explicit motivating concern was the Christian faith, not philosophy. This disdain for philosophy notwithstanding, Tertullian did not in any way abandon reason. In fact, he is interesting for our purposes precisely because he attempted to make human sense of divine mystery – and did so in a politically compelling way that did not require a common religion in the empire. He had a complex relationship with reason and inquiry, insisting at once on understanding the reason for belief (ratio is said to be his favorite word)7 as well as on the superiority of simple faith over philosophical speculation. While infamous for a statement he never made – credo quia absurdum – he did stand by his paradox that Christianity was credibile quia ineptum est (believable because it is foolish, Carn.8 v.4). Tertullian is, in several respects, a study in paradox, and his peculiar manner of resolving apparent paradoxes in faith and reason is quite helpful in our attempt to resolve the conflicts of human and divine law at the heart of issues of religious freedom.

TERTULLIAN’S EPISTEMOLOGY: REASON WITHOUT PHILOSOPHY

The Uneasy Relationship between Athens and Jerusalem It was due at least in part to his peculiar epistemology that Tertullian was able to offer such a sweeping defense of religious freedom for all people regardless of creed, even as he himself held to the Christian faith. This is a point that requires significant attention, for on account of his commitment to the Christian faith over philosophy, Tertullian has traditionally been understood as something as a fideist (i.e., that he began inquiry with faith rather than with reason); this might be akin to Maimonides’ charge against the mutakallimu¯n, for instance. It is indeed the case that he insisted on the truth of Scripture and, in many instances, denigrated philosophical reasoning. As Eric Osborn writes, for Tertullian, “inquiry is only possible when we follow our criterion, the rule of faith, which Christ taught and we confess.”9 This rule of faith, as Tertullian detailed it in De Praescriptionem Haereticorum xiii,10 is a basic 7

8

9 10

Eric Osborn, Tertullian, First Theologian of the West (Cambridge: Cambridge University Press, 1997), xv. All quotations of De Carne Christi come from the 1870 Holmes version in The Ante-Nicene Fathers. Translations of the Writings of the Fathers Down to A.D. 325, ed. Alexander Roberts and James Donaldson. Revised and arranged chronologically, with brief prefaces and occasional notes, by A. Cleveland Coxe, 10 Vols. (Buffalo, NY: The Christian Literature Publishing Company, 1885– 1896). Osborn, Tertullian, 39, citing Praescr. 13. The rule, in Tertullian’s words: Now the Rule of Faith – that we may here at this point make our profession of what we maintain – is unquestionably that wherein our belief is affirmed that there is but ONE GOD,

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Christian creed, and it is true that it served as his first principle of reasoning as that reasoning concerned religious truth. But is this fideism? Tertullian’s irrationalist reputation is perhaps due principally to his famous question, “What hath Athens to do with Jerusalem?” (Quid ergo Athenis et Hierosolymis?, from Praescr. vii.9), and his paradoxical statement that what is “inept” or foolish is believable (credibile quia ineptum est, from Carn. 5.4),11 both of which are understood to separate philosophy and reason from religion and faith. Furthermore, as mentioned, Tertullian quite evidently harbors very little affection for philosophy, calling it a “corrupt fountain” from which flows heresy, as well as a “rash interpreter of the Divine Nature and Order” (Praescr. vii). Philosophy corrupts the innocence of the soul and inclines men not to trust its natural wisdom (Test. i). It sometimes stumbles on the truth, but more often it perverts “that common intelligence wherewith God has been pleased to endow the soul of man” (An. ii).12 Though he was insistent on logical argumentation and would not concede the importance of reasoning, Tertullian considered philosophy itself to be a human creation that brings about more harm than good; indeed, “it is really better for us not to know a thing, because [God] has not revealed it to us, than to know it according to man’s wisdom” (An. i). This disdain for philosophy notwithstanding, more recent scholarship has pointed out the error of reading Tertullian as irrational or fideistic. Both explicitly and performatively, his works betray a Stoic commitment to reason,13 and it is impossible the Selfsame with the Creator of the world, Who produced all things out of nothing through His Word sent down in the beginning of all things; that this Word is called His Son, Who in the Name of GOD was seen under divers forms by the patriarchs, was ever heard in the prophets, and lastly was brought down by the Spirit and Power of GOD the Father into the Virgin Mary, became Flesh in her womb, and being born of her lived as Jesus Christ; that thereafter He proclaimed a new law and a new promise of the Kingdom of Heaven, wrought miracles, was crucified, and on the third day rose again, was caught up into the heavens, and sat down at the right hand of the Father; that He sent the Vicarious Power of the Holy Spirit to lead believers; that He will come with glory to take the saints into the enjoyment of life eternal and of the heavenly promises, and to adjudge the wicked to fire perpetual, after the resurrection of both good and bad has taken place together with the restoration of their flesh. This Rule, taught (as it will be proved) by Christ, admits no questionings amongst us, save those which heresies introduce and which make heretics.

11

12

13

All English quotations of De Praescriptione Haereticorum come from the T. H. Bindley translation in, On the Testimony of the Soul and On the “Prescription” of Heretics (London and New York: SPCK, 1914). This is commonly misquoted as credo quia absurdum est, “I believe what is absurd,” and misunderstood as a statement of fideist or even irrational faith. Osborn, Tertullian, 48. All English quotations of De Anima come from the 1870 Holmes translation in Volume III of The Ante-Nicene Fathers. Translations of the Writings of the Fathers Down to A.D. 325, ed. Alexander Roberts and James Donaldson. Revised and arranged chronologically, with brief prefaces and occasional notes, by A. Cleveland Coxe, 10 Vols. (Buffalo, NY: The Christian Literature Publishing Company, 1885–1896). Osborn, Tertullian, 28, inter alia. Osborn’s picture of Tertullian is one of a committed Christian apologist who used whatever philosophy was at his disposal to point to the truths of the Christian faith. Surely such a method has its shortcomings when it comes to discovering truth without prejudice, but it is not to be confused with irrational fideism.

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to read a single one of his works without observing its clearly logical, if rhetorical and at times polemical, nature. Nor did he deny the need for reason in textual, including Biblical, interpretation (in fact, he explicitly advocated it; see especially Praescr. xv– xvii). Still, while no fideist, Tertullian was no abstract rationalist, either. His works include vociferous appeals to the authority of common consent (de aestimatione communi aliquem, Apol. xxiv.3) as well to nature, which I discuss below. Perhaps no other text better evinces his epistemological commitments – a great trust in natural reason accompanied by suspicion of philosophy – than De Testimonio Animae. Here, anticipating Rousseau’s Second Discourse by a millennium and a half, Tertullian invokes the soul in its natural, unschooled state and enjoins his readers to seek what wisdom may be found within. Again eschewing philosophy, he asks the soul to share “those primal sparks you confer on man, those insights that you have learned from your own depths or from your creator, whoever he may be” (Test. i).14 It is the “simple, unfinished, untutored, unformed nature” of the soul that testifies to truth rather than the “libraries” or “Platonic and Stoic academies,” the unrefined soul such as it is found “at the crossroads, on the street, in the workshop” (Test. i) that “pronounces those things which God gave his creatures to know” (Test. v). This knowledge is reliable because it is taught to the soul by nature as to a pupil from his teacher, and nature’s teacher is God Himself (Test. v). I return to Tertullian’s reliance on nature below, but for the present it is worth noting that his larger point in separating Athens and Jerusalem is not to proclaim the worthlessness of philosophy. Again foreshadowing Rousseau, even as he disdains the overuse of philosophy, he builds his case on the foundation of his own philosophical training;15 as Barnes writes, though he “explicitly rejected a Stoic, Platonic or dialectical Christianity . . . in a wider sense, he had himself reconciled Christianity and classical culture.”16 Rather – and here the convergence with Rousseau stops – Tertullian’s apparent disdain for philosophy points to the fulfillment of all knowledge in Christ. As Osborn articulates Tertullian’s position, “The solution . . . lies in the perfection of Christ; when the perfect is come, that which is in part, like philosophy, must be done away.”17 To Tertullian, Christians have an elevated knowledge of the good compared with ordinary human knowledge, even advanced philosophy: “Man’s skill to make clear what is truly good is no more than 14

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All English quotations of De Testimonio Animae come from Q. Howe’s 2008 translation in conjunction with the Patristics Project at Faulkner University, available at www.tertullian.org/articles/howe_ testimonio_animae.htm. Much could be made of the extensive citation of philosophers in Tertullian’s works, perhaps most of all in the Apologeticum. As I note elsewhere, however, these references – “the long list of literary authorities . . . whom Tertullian triumphantly parades” – amount less to deep philosophical reflections and more to an effort, in Barnes’ description, to display erudition and impress his readers with the end goal of persuasion, not philosophical inquiry. See Barnes, Tertullian, 196ff. Barnes, Tertullian, 210. Osborn, Tertullian, 37.

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his authority to enforce it; the one may as easily be mistaken as the other despised.” All human knowledge is just that – human – and as such is prone to error. Christians, on the other hand, “have been taught by God; in its perfection we know [innocence], as revealed by a perfect teacher” (Apol. xlv.2, 1). Likewise, in De Pallio, Tertullian praises the Christian who dons the traditional philosopher’s garb (the pallium) on the grounds that Christianity has superseded philosophy: “Rejoice, pallium, and exult! A better philosophy has deigned you worthy, from the moment that it is the Christian whom you started to dress” (Pall. vi.4).18 Philosophy preceded Christian revelation and, as his extensive citations and quotations suggest, it is worth learning as foundational knowledge. But why, once Truth has been revealed by God Himself, would one cling to human efforts alone? Believing the Unbelievable: Credibile Quia Ineptum Est This principle that the incarnation and revelation of Christ has surpassed philosophical knowledge also helps explain Tertullian’s paradox concerning the credibility of foolishness (credibile quia ineptum est). The incarnation of Christ is at once “inept” and believable because it is inept: if the incarnation is indeed true, it could not possibly come about by normal means; miracles are, by definition, supernatural. In Osborn’s phrasing, “If God, who is wholly other, is joined to mortal man in a way which is not inept, then either God is no longer God or man is no longer man . . . Truth on this issue can only be achieved by ineptitude.”19 Of course, the entire incarnation could be a spectacular lie, but Tertullian’s point is that the ineptitude of the incarnation is not a point against it; rather, in the event that such a miracle has indeed occurred, that rational ineptitude is to be expected. In holding thus, Tertullian follows both the testimony and experience of countless Christians living in the century prior to his own, as well as St. Paul’s own paradox: “God chose what is foolish in the world to shame the wise; God chose what is weak in the world to shame the strong” (1 Corinthians 1:27). Again, however, this does not mean that Tertullian’s position was one of irrationality. As Osborn has pointed out, there is an interesting resemblance between Tertullian’s paradox and Aristotle’s use of enthymeme, or a syllogism with one premise missing, in Rhetoric 2.23.20 The context is Aristotle’s instruction on how to demonstrate a point using “things that are believed to happen but are hard to credit,

18

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For this point, see Geoffrey Dunn, Tertullian (New York: Routledge, 2004), 23. All quotations of De Pallio come from Vincent Hunink, Tertullian, De Pallio, A Commentary (Amsterdam: J. C. Gieben, 2005). Osborn, Tertullian, 58. Interestingly, this is the very same section which Ibn Rushd cited as exemplary of the immediate point of view, or that aspect of it that causes something to be believed shortly after it is said – viz., by supplying the missing premise. See Chapter 4; also Ibn Rushd, Commentaire Moyen a` la Rhe´torique d’Aristote, trans. with commentary Maroun Aouad (Paris: Vrin, 2007), 2.23.19, 20.

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because they would not have been believed if they had not been the case” (1400a5).21 He writes that things that seem incredible but that people believe to be true can indeed be believed as true, since “it is not on account of likelihood or credibility that it is believed to be so” (1400a7). Hence, there must be some missing reason to believe the incredible, and that it is believed despite its incredulity is at least a prima facie reason to accept it. Importantly, though, Aristotle is not suggesting that something be believable merely because it seems incredible yet is believed. His illustration of the point – Androcles’ speech attacking Athenian law, in which he states that “the laws need a law to correct them” – inserts a tacit second condition for accepting the incredible, namely an added premise. Androcles’ statement was absurd to his listeners, who jeered him accordingly, so he illustrated his point using the examples of fish and olives. On the face of it, it is incredible to believe that fish, coming as they do from saltwater, would need salt, or that olives, the source of olive oil, would need olive oil (1400a10–15). Yet both needs are real and true. As Ibn Rushd would point out concerning the same passage, Androcles was in fact omitting some information – fish, when removed from saltwater and when we want to preserve or eat them, need salt, and olives, when mashed and preserved, need oil added to them. “Without that [information], to say that what is in salt has need of salt and that that which has oil in it needs oil is not persuasive.”22 Thus, Aristotle is not proposing that anything that is believed to be true but seems incredible must necessarily be true; rather, he is suggesting that when such an event arises, we do well to suspend our disbelief and look for a missing premise or other missing information. For Aristotle, in such cases the benefit of the doubt belongs with those who believe the incredible. Similar, then, is Tertullian’s credibile quia ineptum est paradox. In this case, the missing premise to the syllogism is the truth of Scripture: Scripture announces – and many believe – the incredible teaching of Christ’s incarnation and crucifixion; Scripture is divinely inspired and true; therefore, that which is inept or incredible is true. Therefore it is not because of but in spite of the incredulity of Christ’s incarnation and crucifixion that Tertullian finds this mystery credible, even as that very incredulity also gave it a prima facie reason for acceptance. A final note on Tertullian’s paradox: as Osborn points out, Tertullian did not universalize his claim about the credibility of the inept (i.e., with Aristotle, he was not claiming that all incredible things are true simply because they are inept/ incredible). Rather, it is in this particular case that “truth . . . can only be achieved by ineptitude.” For if God, who is not man, becomes man “in a way that is not inept, then either God is no longer God or man is no longer man, and there is no true incarnation.”23 We return to this paradox later, when we see that Tertullian’s 21

22 23

Quotations of the Rhetoric are taken from Joe Sachs, ed., Plato: Gorgias & Aristotle: Rhetoric (Newburyport, MA: Focus Publishing, 2009). See Ibn Rushd, Commentaire Moyen, 2.23.20. Osborn, Tertullian, 58.

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tendency to paradox suits well the conundrums we face in contemporary problems of religious freedom. Reason, Revelation, and Nature Although Tertullian held Christianity in higher esteem than the philosophy that preceded it, then, he hardly rejected reason as such. Rather, reason was to him the contribution of the soul that renders man “supremely receptive to awareness and knowledge” (Test. i) – including the knowledge of Christ. To Tertullian, this epistemology elevated rather than degraded reason, for it incorporates both what man can know by nature as well as that which is revealed to be true by God. In other words, he did not ask for man to set aside reason but rather to enlarge it, so as to gain understanding of the things of both heaven and earth. Yet for all this, Tertullian did not expect everyone to accept the rule of faith or to reason as Christians; rather, his insistence on Scripture and apostolic authority was intended for those who already were Christians.24 For those who are not Christians, reason and nature are the available epistemic resources. In De Virginibus Velandis,25 Tertullian details a theory of the progressive revelation of justice and the consequent levels of knowledge in his epistemology: first came nature, then the law and the prophets, then the Gospel, and finally the “Paraclete,” or the Holy Spirit, in his revelation in the New Testament and the Church’s teachings (Virg. i.7). Likewise, the soul itself testifies to the truth as it is taught by nature (Test. v).26 Though knowledge of Christ and of the Paraclete supersede past knowledge, this is not to say that the first two sources of revelation – viz., nature and the Mosaic law/ prophets – are obsolete. Rather, natural knowledge and former prophecy are fulfilled in rather than supplanted by the Holy Spirit’s revelation: “Scripture establishes the law, nature is called to witness [to it], [ecclesiastical] teaching carries it out” (Virg. xvi.1). These three sources of revelation mutually support each other so that knowledge is made more certain: “Scripture is of God. Nature is of God. [Ecclesiastical] teaching is of God. Whatever is contrary to these is not of God. If Scripture is uncertain, nature is clear, and about its testimony Scripture cannot be uncertain. If there is doubt about nature, [ecclesiastical] teaching shows what has been more approved by God” (Virg. 16.1–2). 24 25

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See, e.g., Praescr. xxi. All quotations of De Virginibus Velandis (Virg.) come from Geoffrey Dunn, Tertullian (New York: Routledge, 2004). Danie´lou traces a similar developmental theme in Tertullian’s writings. For him, the process begins with the transition from natural law to the Mosaic law depicted in Jud. ii.3–5, and the law undergoes a radical change between the Old and New Testaments in the Adversus Marcionem. This does not, importantly, make it a different law for, in Danie´lou’s terms, the development of the law happens “as a growth from a seed.” Finally, De virginibus velandis depicts a fully matured righteousness through the means of the Paraclete. Danie´lou attributes a proto-“theology of development” to Tertullian, one which pointed ahead to Augustine’s theology of history. See Danie´lou, Origins, 221–223.

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In fact, nature and unwritten law remain relevant even to Christians. The unwritten law serves not only to correct human knowledge in its error (Test. v, vi) but also to confirm religious practices that do not find a basis in scripture or written law. In one of his lesser-known works, De Corona Militis,27 Tertullian expounds at length on the importance of unwritten traditions (traditio nisi scripta).28 This work, occasioned by the refusal of a Christian Roman soldier to wear a military garland during a ceremony, thus exposing himself as a Christian and bringing upon all Christians the risk of persecution,29 inquires “whether or not a tradition without a written source should be accepted” as authoritative for Christian practice (Cor. Mil. iii.2).30 Before examining Tertullian’s answer to this, it should be noted that although he is dealing with authoritative traditions within Christianity more than their authority in the public sphere, this work still suggests that natural law can help mitigate apparent conflicts between divine and human law because, in discussing a Roman soldier who abstains from a civic custom on account of religious custom, Tertullian employs the unwritten law to test whether the believer has correctly understood and acted on the divine law. It thereby provides an excellent case study to test my thesis. Put another way, natural and unwritten laws are often considered to be resources within the public sphere to test the justice of a human law; that is, for natural law theorists, it is a valid critique of a human law that it contravenes or contradicts the natural law. But as we see below, Tertullian is here testing what is perceived to be a divine law and finding that it is not supported as such. In this particular case, the practice in question is supported by natural law, but whether it was or was not so supported is in fact beside the point. Rather, to overstate it slightly, the point is that the natural law can serve as something of a touchstone not only for human laws, but for divine laws as well. Tertullian launched his defense of traditio nisi scripta by recounting the customs, at that time, surrounding baptism – professing a vow to disown the devil, three immersions in the water, refraining from bathing for a week there-

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All English quotations of De Corona Militis are from Robert D. Sider, ed., Christian and Pagan in the Roman Empire: The Witness of Tertullian (Washington, DC: The Catholic University of America Press, 2001). Latin references come from Q. Septimi Florentis Tertulliani De Corona (Sur la couronne), ed. Jacques Fontaine (Paris: Presses Universitaires de France, 1966). “Unwritten tradition” is, as we saw in Chapter 4, the literal translation of Ibn Rushd’s sunan ghayr almaktu¯ba (“unwritten law”). I endeavor to show above, however, that as with Ibn Rushd, these “traditions” are binding in a way unworthy of the term “unwritten law.” The fear was presumably that Christians would appear unpatriotic or incapable of military service, which would only further damage the burgeoning cult’s reputation among the Romans. Of course, here, as elsewhere, Tertullian argues that Christians should not serve in the military in the first place, equating military duties to “going over to the enemy,” “To leav[ing] the camp of Light and enlist[ing] in the camp of darkness” (Cor. Mil. xi.4). In this way, it resembles the Warner case discussed in Chapter 1, which also sought to determine which laws, written and unwritten, bound a believer’s practices.

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after, etc. If one “demand[s] a precise scriptural precept for these . . . practices,” he pointed out, “you will find none” (Cor. Mil. iii.3). Rather, they originate in tradition, are strengthened by custom, and observed by the faith. These traditions can even be binding in a law-like manner: other practices, such as not kneeling in worship on Sundays, “We consider . . . to be unlawful,” even though they are nowhere forbidden in writing (Cor. Mil. iii.3). But lest such practices become arbitrary, unfair, or otherwise undesirable, “reason [rationem] will support tradition, custom and faith” in these and other such practices (Cor. Mil. iv.1). The insertion of reason enables evaluation and debate of these practices and precludes a problematically conservative approach to tradition – viz., the idea that because a particular tradition has always been in place, it ought automatically to be a binding practice. Rather, it would seem, one gives a certain level of deference to these long-standing unwritten traditions – whether religious or civic – yet continues to employ reason to evaluate them. It is not, however, unwritten law or tradition alone that gives us right practice: “The rational basis of Christian [unwritten] customs is strengthened when it is supported by nature, which is the prime rule by which all things are measured” (Cor. Mil. v.1). According to Tertullian, “Neither God nor nature is capable of lying” (Test. vi), implying an inherent bond between the two. Tertullian even goes so far as to imprint the divine law onto nature herself: “If you demand a divine law, you have that common one prevailing all over the world, written on the tablets of nature” (Cor. Mil. vi.1). Indeed, the Apostle Paul himself suggests both “the existence of natural law and nature founded on law” in Romans 2:14 by “affirming that the heathen do by nature those things which the law requires.” For the Christian God is “the Lord of nature” (Cor. Mil. v.1) and God Himself is first known though nature (Marc. i.18; Cor. Mil. vi.1). Nature is, furthermore, a guide for both Christians and pagans: “anything that is against nature deserves to be branded as monstrous among all people; we, surely, should also consider it as a sin of sacrilege against God, the master and author of nature” (Cor. Mil. v.4, emphasis added). The witness of nature in man is the soul, which “make[s] of mankind a rational animal” (Test. i), and “the testimonies of the soul are as true as they are straightforward” (Test. v) for, again, nature does not lie. Tertullian calls upon “the authority of Nature herself” to dispel the rumors about Christians and testify to the truth (Apol. vii.13). Such paeans to nature are typical of Stoicism but fit seamlessly both within Tertullian’s Christianity and his epistemology. In the religious sense, recall that Tertullian considers Christian revelation to be a progressive phenomenon: God revealed His justice “first in a trial state . . . by reason of nature. From there it advanced to infancy through the law and the prophets. From there it fermented into adolescence through the gospel. Now it is brought to maturity through the Paraclete” (Virg. i.7). Nature serves as the first indicator of who God is – “I postulate that a god ought first to be known by nature, and afterwards further known by

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doctrine” (Marc. i.18).31 Relatedly, Tertullian’s epistemology sees no conflict between God and nature, for God teaches nature just as nature teaches the soul (Test. v), and Scripture, nature, and Church teaching cooperate to reveal the whole of the Law (Virg. xvi.1). Thus, nature and natural reason are indispensable for both Christian and pagan.

THE FATHER OF WESTERN RELIGIOUS FREEDOM

Natural Law, Human Rights, and Tertullian’s Defense of Religious Freedom Tertullian’s epistemological role for nature in revealing justice becomes clearer as the basis for his arguments for religious freedom unfold. Perhaps the most interesting aspect of Tertullian’s defense of religious freedom is his extension of it to all people, which is remarkable for his era. Rather than defending mere tolerance of Christianity, Tertullian called it “a human right [humani iuris], a privilege of nature [naturalis potestatis, literally a ‘capacity of nature’] that every man should worship according to his own convictions [quod putaverit colere]” (Scap. ii.1–2). Given the primacy of Christianity in his writings – the constant justification of the truth of Christian doctrine, warnings against heresy, and such statements as that in Praescr. xxi, declaring that all doctrines which are not “derived from the tradition of the Apostles . . . come of falsehood” – Tertullian is a somewhat unexpected defender of a universal human right, especially the right to choose one’s religion. While Stoic in upbringing, Tertullian was no ordinary cosmopolitan, nor was he a systematic philosopher on the nature of man or natural law. Yet it is he who first referred to a libertas religionis that is owed not just to Christians but to all humans. How does this come about, and on what grounds does Tertullian make his case for religious liberty? Tertullian’s writings on religious freedom appear primarily in the Apologeticum and his letter Ad Scapulam. The Apologeticum was composed around 197 CE and directed, at least ostensibly, at “the magistrates of the Roman Empire” (Apol. i.1).32 Its principal aim was to defend Christians against purported accusations of a number of practices33 – cannibalism (vii.1ff), adultery (e.g., xxxv.6), incest, etc. – as well as to “protest the injustice of [the Romans’] hatred of the Christian name” (Apol. i.4). The persecutions that the Christians endured, Tertullian claimed, stemmed from hatred born of ignorance (Apol. i.4–6), and much of the first part of the Apologeticum is an 31

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All quotations of Adversus Marcionem are from Evans’ translation in Tertullian: Adversus Marcionem, ed. and trans. Ernest Evans. 2 Vols. (Oxford: Oxford University Press, 1972). According to Barnes, however, both audience and purpose had a second aim: “If Tertullian appeared to invoke Roman magistrates and to address the pagan world, most of his statements were also designed to encourage Christians.” Tertullian set himself up as a confident and courageous spokesman for the persecuted minority “who could prove [the Christians’] respectability, both social and intellectual, by his very existence.” See Barnes, Tertullian, 110. Sider speculates that at least some of these claims were exaggerated. See Christian and Pagan, 2.

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effort to set the record straight on the true nature of Christian practice. He also set out to show the insufficiencies of the Roman gods and point to the necessity of one supreme being over them all, which he likened to the “Emperor . . . of the universe” (Apol. xxiv.3). If Roman gods are indeed gods, he averred, then “you must allow there is a God more sublime, true owner in his own right (so to say) of deity, who made the gods out of men” (Apol. xi.2).34 This quasi-monotheistic view is, according to Tertullian, how “most men apportion divinity: they hold that the control, the supreme sway, rests with one,” and it is this supreme divinity that Christians worship (Apol. xi.2). It is somewhat surprising, in this context of a defense of Christianity as the one true faith, that Tertullian turns to a defense of religious freedom as a human right for all people. For the preceding paragraphs – indeed, the whole of the Apologeticum up until this point – has pointed to the truth and superiority of Christianity, not to an embrace of religious pluralism. Even as he accuses the Romans of “neglect of the true religion of the true God” (Apol. xxiv.2), Tertullian articulates an appeal for freedom of conscience, proto-modern in spirit, that professes indifference toward which god one chooses to worship, so long as he does it freely: “Let one man worship God, another Jove; let this man raise suppliant hands to heaven, that man to the altar of Fides; let one (if you so suppose) count the clouds as he prays, another the panels of the ceiling; let one dedicate his own soul to his god, another a goat’s” (Apol. xxiv.5). Tertullian’s understanding of religious freedom was remarkably expansive for his time; it even included what we would today call freedom from coercion in matters of conscience. Immediately following the above call for tolerance, he defended religious freedom on another basis, namely, that coerced worship is no worship at all. He enjoined his Roman magisterial readers to consider whether it would be just “to do away with freedom of religion [libertatem religionis], to forbid a man choice of deity, so that I may not worship whom I would, but am forced to worship whom I would not. No one, not even a man, will wish to receive reluctant worship” (Apol. xxiv.6). He had earlier argued along similar lines: “no one may lie about his religion. For in the very act of saying he worships something other than he does worship, he denies what he worships; his worship and his reverence he transfers to another and by the transfer ceases to worship the God he has denied” (Apol. xxi.27). What are we to make of this? Tertullian’s calls for religious freedom are unexpectedly inclusive for such an ardent defender of the tenets of a particular faith; it seems an abrupt shift to proceed from calling the Roman gods “demons” (Apol. xxiii.9) to then enjoin such expansive religious freedom as the equal right to worship God or Fides, sacrifice his own soul or a goat’s. 34

Tertullian elsewhere defends the necessary unicity of God, especially in Ad Marcion (“God is not God if he be not one,” Ad Marcion 1.3.1). His argument here presupposes the same logic – surely the panoply of Roman deities must reside under some greater deity that unites them; this, then, is the only creature worthy of the name God.

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I argue that Tertullian’s defense of religious freedom is based on a theory of natural law. He was an occasional writer rather than a professional theologian; as such, his rhetorical tactics shift according to the point he is making. For example, Adversus Marcionem, directed against a fellow (if heretical) Christian, builds its case almost entirely on Christian Scriptures, as the dispute between Tertullian and Marcion revolved around the person of Christ, and knowledge of His nature comes from revelation. Ad Nationes, on the other hand, relies on classical sources – Virgil, Homer, Plato, etc. – to argue the injustice and absurdity of Roman treatment of Christians; this work is directed at educated Roman pagans. The Apologeticum, likewise, ignores Christian revelation. It is my contention that his call for tolerance and religious freedom is based also on an argument about the nature of the law – human, divine, and natural. Tertullian’s use of natural law as a basis for religious freedom is not entirely straightforward; he did not explicate a theory of natural law and show how religious freedom derives from it. To see how he arrived at this particular defense of religious freedom, then, we begin with his claim that there is something higher than human law by which human law is measured. Foreshadowing Augustine’s claim that an unjust law is no law at all (De Libero Arbitrio i.5), as well as Ibn Rushd’s belief that human law must be measured by something higher,35 Tertullian argues that law not backed up by justice is “mere force, an unjust tyranny from the citadel . . . if you say a thing is not lawful simply because that is your will, and not because it ought not to be lawful.” The human law can “rightly forbid” what is bad, but it is able to make mistakes and has in the past tended toward untold excesses, even tyranny (Apol. iv.4, 5, 7–9, 13). There must, then, exist a higher standard or law than the human law. So far, though, Tertullian has not revealed the standard one should use to determine what “ought to be lawful.” It is clear that Tertullian’s appeal for universal religious freedom was not based on human law; Christianity was illegal in the Roman Empire at the time he wrote the Apologeticum. It is equally clear that his basis for this “human right [humani iuris] . . . to worship according to [man’s] own convictions” was not a strictly religious concept, for he extends it to the right to worship the Christian God, Jupiter, Fides, etc. So from what ius did Tertullian derive the libertas religionis? Divine, Human, and Natural Law in Tertullian’s Defense of Religious Freedom In the event that the human law “has made a mistake” by forbidding that which is good, we must keep in mind that this law is “the creation of man; it did not come down from heaven” (Apol. iv.5). At first glance, this statement seems to imply that Tertullian simply considered divine law – that which came down from heaven – to be a higher law than the human. Given a conflict, in this case, one’s loyalties would 35

See Ibn Rushd, Commentaire Moyen 1.13.9 and discussion in Chapter 3.

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lie with his religion rather than with worldly laws. In one sense, this is accurate – Tertullian did consider his religion’s divinely revealed laws to be higher than Roman law. As discussed above, Christ represented the fulfillment of all knowledge for Tertullian, and ultimately any questions pertaining to the truth must find their source in Him. But the fact that this was his own belief – which, Tertullian would be the first to acknowledge, is an article of faith rather than philosophy – in no way need incline us to think that he had ambitions for the public supremacy of divine law, nor was he making any such case in the Apologeticum or elsewhere. No, in his arguments concerning the political sphere – justice, rights, and the law – Tertullian appealed to “common consent” (Apol. xxiv.3), not the authority of his religion’s divine law. “What recommends a law,” he writes, is “its equity and nothing else,” and when a law is cruel, “common agreement” should be allowed to modify it (Apol. iv.9, 10). Recall also the role that he ascribed to innate human knowledge, purportedly shared by all people. Robert Sider locates in De Testimonio Animae a close affinity with the Stoic conception of communes sensus, or “common ideas” in his rendering, that are “shared instinctively by all human beings, even those left untouched by learning.”36 This teaching held that the soul is divine in origin and carries with it some level of awareness of divine truth. Tertullian’s appeal to man’s simple, uneducated insights is thereby an appeal to the divine spark that he would have believed to be present in all people. While this is in perfect keeping with Christian teaching – the Christian “could affirm that though sin has distorted the original integrity of the soul . . . there are moments in life when the soul is led to acknowledge the divine truth with which it entered the world”37 – in De Testimonio Animae Tertullian relies on the soul itself, not Christian revelation, to lead man to truth, whether that soul is “divine and eternal as many philosophers attest . . . [or] not divine” (Test. i).38 Nevertheless, when he turns to the issue of religious freedom in the Apologeticum (xxiv), it is now less surprising that he does so with an eye to all of humanity rather than to his Christian sect alone. Rather than take Tertullian’s devout faith as a bias or weakness in his argument, we should consider that it is all the more striking that one who so ardently believed in the truth of one religion could agitate for religious freedom in the public sphere on the basis of consensus. Christian Scripture and the Paraclete’s revelation were Tertullian’s highest source of truth, so it took a great deal of imagination, as well as respect for the Roman other, to invoke instead shared beliefs on the nature of equity and the law (Apol. xxiv.3; also iv.9, 10). But of course, this was also necessary, 36 37 38

Sider, Christian and Pagan, 72. Sider, Christian and Pagan, 73. As Sider points out, this is a fairly generous claim for communes sensus, for it “ascribes to the common ideas some of the central Christian doctrines: that God is one; . . . that souls exist after death; and that there will be a future resurrection,” all of which one might question as a type of intuitive knowledge. See Christian and Pagan, 73.

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as his Roman audience would not take seriously Tertullian’s strictly religious sources. In short, for its efficacity in the public sphere, it was crucial that Tertullian’s argument in no way invoked Christianity or the Christian God’s law, but for its efficacity among Christians it was crucial that he took seriously the possibility of the divine law’s ultimate superiority. This is not to say that Tertullian’s rhetoric is merely utilitarian, a rhetorical tactic intended to gain protection or advantages for Christians even though he does not actually believe his own claim that all men should be free to worship whom they will. For one thing, while not an ordinary Stoic, Tertullian does retain something of a Stoic cosmopolitanism. “One state we know,” he writes, “of which all are citizens – the universe” (Apol. xxxviii.3); likewise, “we are your brothers, too, by right of descent from the one mother, Nature” (Apol. xxxix.8). Elsewhere, writing on “the universality of nature,” he waxes multicultural, striking a modern chord in some of his language: “One humanity comprises all races, although the name varies. There is a single soul, but language is various. There is a single spirit, but speech is various . . . God is everywhere and the goodness of God is everywhere . . . the testimony of the soul is everywhere” (Test. vi). This Stoic confidence in nature and concomitant belief in some degree of homogeneity, if not equality, among all (free) people made it no stretch for Tertullian to consider that which he took to be a right for himself to be a right for all people. He believed in nature’s divine origins (e.g., Apol. xlviii.11 inter alia) as well as its ability to bring the truth into the light: “It is well that time reveals all, as your own proverbs and wise saws witness, and does it by the law of nature, which has so ordained that nothing long lies hid” (Apol. vii.12). In his later work Ad Scapulam (212 CE), Tertullian returns – even more pronouncedly – to this role of nature in determining justice. In this short letter to the Proconsul of Africa, Tertullian asserts both “a human right [humani iuris] and a privilege of nature [naturalis potestatis] that one should worship according to his own convictions [quod putaverit colere]; one man’s religion neither harms nor helps another man” (Scap. ii.1–2). As mentioned above, the fact that Tertullian located the ius and potestas in nature and in humanity itself legitimizes it on naturalist grounds; Tertullian was unequivocally placing the justification for religious freedom within the realm of nature itself. It is not religion-specific, time-specific, or subject to human regulation; it is a right of every human by nature. From this confidence in nature itself, it was a small step to natural law. As in Corona Militis, in Adversus Judaeos Tertullian explicitly invokes the natural law: “Again, I contend that before the law of Moses was written on stone tablets there was an unwritten law, which was understood naturally and was kept by the ancestors.” On what other basis, he asks, would Noah have been declared righteous “if the justice of a natural law had not come before the law of Moses?” Or Abraham, who was “counted a friend of God” – and this before the revelation of the law. How could

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such judgment be made, “if not from the fairness and justice of natural law?” (Jud. 2.7).39 Tertullian’s reliance on nature, custom, and unwritten tradition strengthens the case for the utility of the natural or unwritten law in religious freedom. Certainly, Tertullian didn’t need to invoke unwritten law; he provided a plethora of other reasons to end Christian persecution that together would have been adequate to make his case without an appeal to natural rights. To name a few: first, the Romans used a legal double standard in persecuting Christians (Apol. ii.15–17); their hatred was based on ignorance (Apol. i.4–6) and even confusion about the object of Christians’ worship (Apol. iii.5); Christians were charged with a name rather than with the acts associated with the name; and, finally, there was no basis to the charges laid against their acts (Apol. iv.11–13). Beyond this, according to Tertullian, Christians were honest and known “for righteousness, for purity, for faithfulness, for truth” (Scap. iv.8). By both legal reasoning and the proof of experience, Tertullian had a strong case for an end to the persecution of Christians. Yet Tertullian chose to make a case for the human right to religious freedom, not just for Christians, and he did so using evidence from unwritten traditions and natural law. He made claims about the nature of religion as such – that it ought to be free, whether one worships Jupiter or the Christian God – and that worship must be offered in truth; otherwise it ceases to be worship (Apol. xxiv.6, xxi.27). He was not merely making a case for an end to persecution, then, as Apologeticum and Ad Scapulam are usually taken to be, but was laying the groundwork for religious freedom’s development and expansion for years to come.40 Beneficial Religion Tertullian’s weakness lies, perhaps, in failing to recognize just how difficult a task this expansive sense of religious freedom can be. For it is one thing simply to declare that “one man’s religion neither harms nor helps another man” (Scap. ii.2), but it is quite another to embrace the influence of another’s religious norms and doctrines – or secular ones – on one’s own life, family, and society. We can hardly expect a thirdcentury religious minority living in the Roman Empire to have anticipated modernity’s radical pluralism, so in one sense we might overlook this deficiency. But perhaps more importantly, it is possible that Tertullian did anticipate this difficulty and hinted at a criterion for the sorts of religious practices he believed ought to be extended freedom. In Apologeticus, he objects to those Romans who deride as “silly” the Christian beliefs on death and resurrection. According to Tertullian, had they 39 40

Quotations of Adversus Judaeos (Jud.) taken from Dunn, Tertullian. For evidence of this, we may look to Tertullian’s intellectual progeny, Lactantius (c. 240–320 CE). Lactantius, another early Roman Church father living a generation after Tertullian, continued the latter’s work and defended religious freedom in similar terms: “nothing is so much a matter of free will as religion” (Lactantius, Divine Institutes, V.19–20).

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come out of the mouths of philosophers, these beliefs would have been considered “unique genius” (Apol. xlix.1–2). His complaint, though, was not only that the Roman mockery of Christianity was unfair and biased but also that these teachings would, if true, be “beneficial” to humanity, so they ought to be permitted. Furthermore, “even if they are false and silly, they are harmful to no one.” Therefore, let no one condemn – “on any grounds” – teachings that are beneficial (Apol. xlix.2–3). This is a fascinating insight. Tertullian, whose life and works reveal the singular aim of defending the truth of Christianity, here held up a standard of tolerance for any religious belief or practice whatsoever: Is it beneficial? If so, tolerate it. Even if not, does it harm anyone to permit believers to persist in it? If not, then tolerate it, no matter how wrong its adherents may be.41 Of course, this does not answer what “beneficial” and “harmful” mean, and therein lies the rub. One may object that this simply pushes back the question of what constitutes acceptable religious practice, and that we are no further than we were in Chapter 1 of this book, with Winnifred Sullivan objecting to state interpretations to determine the parameters of religious freedom. This is not the case, however. For the same natural law theories outlined in this book may provide epistemic resources for these questions as well, such as Ibn Rushd’s immediate point of view, Aristotle’s endoxic method, or Tertullian’s own reliance on common ideas. Adherents to the New Natural Law school of thought of John Finnis, Germain Grisez, Robert P. George, and others will point out that their theory could rationally account for the terms “beneficial” and “harmful” by providing a foundation for the defense of so-called “basic goods” that does not rely on revealed religion. These fundamental goods of human life are the “reasons for acting which need no further reason; these are goods, one or more of which underlie any purpose.”42 This is not the place to address in full the strengths and weaknesses of New Natural Law theory, but it should be noted that benefit and harm can be meaningful concepts from within a natural law theory. Mediating Human and Divine Laws In the preceding chapters of this book, the natural law appears as something that can stand between the human and divine laws, if not resolving the tension between the 41

42

It should be noted that this was not Tertullian’s standard for errors or “silly” beliefs within Christianity; in other words, he held a different standard for arbitrating disputes within a religion than among religions. I address this at greater length in the Introduction, but I maintain that this is perhaps a prudent practice. Germain Grisez, Joseph Boyle, and John Finnis, “Practical principles, moral truth, and ultimate ends,” American Journal of Jurisprudence 32 (1987), 103. It should be added that Islamic law has developed understandings of these concepts over the centuries (through the legal categories of mubah, permissible, and haram, prohibited); as such, an Islamic society will likewise not be at a loss to follow Tertullian’s rule of tolerating that which is not harmful.

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two, then mitigating the tendency of either law toward rigidity or harshness. Can Tertullian’s natural law serve as such an intermediary? In short, yes. But it should be noted that Tertullian does not, to my knowledge, treat this question directly – i.e., the relationship of the natural to the human and divine laws. Rather, we must glean the intermediary role that natural law plays through the epistemological function Tertullian assigns to nature. Recall, Tertullian was not a systematic philosopher or even a theologian but an occasional writer and an apologist of the Christian faith. His defense of religious freedom came about as a defense of Christians, though it reveals one of, if not the, earliest articulations of the universal right to religious freedom. Thus, Tertullian is not a natural law theorist, at least not properly speaking. His writings betray an unmistakable confidence in nature and a conviction that the natural law exists, but it would be wrong to place him in a category with St. Thomas Aquinas; his is not a fully developed and articulated natural law theory. Rather, the utility of Tertullian’s natural law is in its practicality: Tertullian invoked the natural law and unwritten traditions as a means of reaching those who did not share his religious commitments, an approach that is sorely missing in much of the religious freedom discourse today. Tertullian understood that, in conditions of pluralism (even, in his case, in the context of a tiny minority of Christians in an otherwise homogeneous society of Roman religion), one must maintain a language that is accessible beyond one’s own religious community. What sets him apart, however, from such modern theorists as Rawls or even the more closely related Habermas is his very substantial role of nature in addressing the religious other. Natural knowledge, or the “testimonies of the soul” that spring from nature (Test. v), points to a higher truth that is beyond man and even beyond nature itself, viz., the Christian God, creator of both nature and man. Yet while the soul is naturally receptive to divine knowledge, it does not naturally know God Himself; it is not “born Christian” (Test. i). This fullness of knowledge, which the Christian alone possesses (Apol. xlv.1), is a gift of the Paraclete, the Holy Spirit (Virg. i.7). The mediating role of nature, then, bridges the gap between those who would cling to human knowledge alone – which in Tertullian’s case would be the philosophers – and those who insist that all knowledge must be revealed directly from God, whom he addresses in his treatment of unwritten traditions (Cor. Mil. iii–v), as well as throughout his discussions of natural knowledge and natural law treated throughout this chapter. Nature helps to reveal truth in general (Test. i, v), right practice (Cor. Mil. iii–v), and even the nature of God (Test. v). But this is, in essence, another way of describing the natural law: that which is known to be right according to nature.43 43

This point merits more attention than the present space affords, but I do not mean to enter into debates over the distinction between or relative merits of natural right versus natural law. Without collapsing the two, I simply intend natural law as an expression of what is right by nature; I use “law” in

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Thus, what I earlier described as an epistemological intermediary could also be a mediating device between human and divine laws.

TERTULLIAN IN CONTEMPORARY PERSPECTIVE: FAITH AND REASON IN THE PUBLIC SPHERE

Lurking in the background of this book is the question of what reason is, or, more concretely, what constitutes knowledge based on reason as opposed to knowledge from faith or revelation. The modern public sphere, where such issues as human rights and religious freedom are negotiated, is thought to be one of rationality, whereas religion itself is considered extra-rational, perhaps even sentimental. This division is not without reason – religion resists scientific, even rationalist, categories and can hardly be described in the same terms as, say, economics. But in most ways, this division is highly unsatisfactory. First, it reduces reason to the empirical realm, confining anything that cannot derive from sensory knowledge to the sphere of opinion. This frustrates attempts to understand seriously such nuanced categories of human life and experience as family, love, religion, weakness, ability, advantage, etc. Secondly, it results in the very problem of religious freedom outlined at the beginning of this book: if religion cannot be discussed in rational terms, how can it be ascribed any legal standing or protection? In short, it is true that religion deals in categories that many find uncomfortable in the public sphere – belief, mystical knowledge, divine law. Nevertheless, we should recall that it was not until the Enlightenment era that faith and reason were considered inherently opposed, and this strict division has never been established as a real one. This, then, is why Tertullian is such an interesting – and useful – figure for the modern conundrums of religion in the public sphere. It is precisely because Tertullian refuses to reduce Christianity to yet another philosophy that he is so valuable. He admits that religion is irreducible to reason alone – so much so that he is often accused of fideism – yet he is able to speak in political, not only religious, terms about its role in society to a hostile audience. Tertullian is a classical thinker for the modern era, defending the rights of a religious minority in the globalized setting of the Roman Empire, without either conceding tenets of his faith or demanding the majority’s conformity to his beliefs. He gives us politics without either sacrificing one’s own theological commitments or demanding that others adopt them – a difficult achievement in religious and cultural pluralism, whether that of Carthage under Roman rule or twenty-first-century America. Finally, Tertullian is important because his articulation of religious freedom does not fall prey to a common error in modern religious freedom theories. Many advocates of religious freedom mistakenly assume that religious freedom is simply the moral sense analogously to the physical sense that gravity is described as a “law,” viz., as an expression of the order of nature.

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one among the many human rights. Were this the case, a well-theorized defense of human rights qua human rights would suffice to defend religious freedom as well. Human rights theories place a primacy on human law for the protection of these rights, and all other interests and obligations must bow to such law. Thus, if religious freedom is simply one of these rights and nothing more, the question of how best to protect it would be a question of legal theory – that is, of human legal theory. As I argue in Chapter 1, however, religious freedom is the only human right that recognizes two distinct realms of authority, human and divine. As such, to reduce it to a purely immanent human right does violence to the very nature of religion, and therefore of religious freedom. A religious person whose religious liberty is circumscribed first by her obligation to human law will recognize immediately an artificial authority. For from St. Peter (“We must obey God rather than man,” Acts 5:29) to Antigone (“Nor did I think your orders were so strong that you, a mortal man, could overrun the gods’ unwritten and unfailing laws,” Antigone 450–455) to Ibn Rushd (for whom there could be “neither pardon, nor forbearance, nor tolerance” for offenses directed against God Himself, MCR 1.14.3), to have a god is, most often, to have an ultimate authority higher than the state or human law – and an authority that can have much to say about the nature of human rights in the first place. Religious freedom is therefore distinct among the human rights because as one such right, it must answer to human law, but for it to have authority with religion and religious people it must answer to divine law. All other human rights relate inherently only to human law, at least directly. A purely secular defense of religious freedom – of freedom of conscience – simply won’t do, for it fails to recognize the authority of the divine law, thereby (apparently) obviating the problem in the first place. Thus, when Tertullian, as a decidedly Christian apologist, offers a concept of religious freedom that is universal in scope – i.e., for all humans, not only Christians – we do well to pay heed.

CONCLUSION: PARADOX AND THE POSSIBILITIES OF RELIGIOUS FREEDOM

It is often said that Tertullian is a master of paradox. Not only did he “believe the inept,” he insisted on the high epistemological standing of both faith and reason, holding in tandem the two forces often considered to be inherently at odds. He uncovered inconsistencies in his opponents’ arguments and used every rationalist tool in the box to argue for both the legality and truth of Christianity. Nevertheless, he refused to reduce Christianity to another philosophy; the inspiration of the Paraclete should not rest on the same plane as the knowledge of men, however wise. Paradox was yet more deeply engrained in Tertullian’s mind than this; for him, it was inscribed into the very nature of the universe, emanating from God Himself. God’s reason ordained “that all things should consist of a unity made of rival natures,

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such as void and solid, animate and inanimate, tangible and intangible, light and darkness, yes! of life and death, too” (Apol. xlviii.11). But the pervasiveness of paradox hardly meant, for Tertullian, that the world is absurd; rather, all things find their resolution in Christ, who is Himself both paradox and its resolution. “He is invisible, though He is seen; incomprehensible, though by grace revealed; beyond our conceiving, though conceived by human senses” (Apol. xvii.2), and “in one respect born, in the other unborn; in one respect fleshly in the other spiritual; in one sense weak in the other exceeding strong” (Carn. v.7). Yet as the one being in whom meet heaven and earth, He is also the resolution of all paradox: “This property of the two states – the divine and the human – is distinctly asserted with equal truth of both natures alike, with the same belief both in respect of the Spirit and of the flesh” (Carn. v.7). Paradox was both expected and resolvable because of the person of Christ. To return to the problem of this book, though, how does Tertullian help us make sense of a world in which many find themselves subject to both human and divine law? I submit that Tertullian’s tendency toward paradox in fact renders him better suited to this task, because the idea of competing obligations was not an inherently illogical concept to him. Rather, he saw an overarching unity both in nature and, ultimately, in Christ. His Christianity meant that he would not sacrifice faithfulness for human law. Like Antigone, Tertullian insisted on the superiority of divine law over human edict; he reminded his Roman rulers that they were “under the rule of another” (Scap. iv.1) just as Antigone defied Creon’s claim to override “that Justice that lives with the gods below.”44 With Ibn Rushd, Tertullian believed in a higher law existing in nature itself that could correct human laws’ excesses (e.g., Apol. iv.9, 10) and even, in Cor. Mil., help decipher the divine law’s meaning. His insistence on rationality, as well as his confidence in the pedagogical role of nature, allowed him to function effectively in a society that rejected his views. Yet in one regard, Tertullian surpasses these others, for he built on the foundation of the unwritten laws of nature a human right to religious freedom – not just for his own religious community, but for all people. His libertas religionis would recognize the freedom of both Antigone and Ibn Rushd to act according to their respective codes – “the gods’ unwritten and unfailing laws” and Islam, even sharı¯ʿa – alongside his fellow Christians “rais[ing] suppliant hands to heaven.” Again, to assert such freedom in society is hardly the same thing as to practice it, and in the Conclusion I suggest more concrete ways of practicing this liberty in society. But that Tertullian arrived at this universal human right to religious freedom without relying on either his own religion’s divine laws or on a “secularization that annihilates” is promising. That he did so using a theory of natural law similar to both those of the pagan Antigone and Muslim Ibn Rushd is cause for giving natural law a second look. 44

Antigone, translated by Elizabeth Wyckoff, in Sophocles I: Antigone, Oedipus the King, Oedipus at Colonus, ed. Mark Griffith and Glenn W. Most, 3rd ed. (Chicago, IL: University of Chicago Press, 2013), 452.

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Tertullian is not without his weaknesses. In many respects he appears unable or unwilling to acknowledge the possibility of imperfection within his own religion. For instance, though quite ready to point out the excesses and conceits of human law (e.g., Apol. iv.7–9), he does not anticipate the possibility of excesses, or at least unjust application, of Christian revelation and law. One wonders what his writings would have looked like in, say, medieval Italy rather than late-classical Carthage, for the fusion of temporal and heavenly realms that Christendom attempted may have proven too tempting to resist the enforcement of Christianity over all other religions and ideologies. Furthermore, in my estimation he betrays an overly dismissive attitude toward philosophy, or at least philosophy postdating the advent of Christian revelation, as a means of finding truth. Such disregard for secular means of pursuing truth is unlikely to be tolerated in a contemporary milieu, for understandable reasons. Philosophy, to Tertullian, was not a distinct discipline or mode of inquiry with perennial value but instead a precursor to Christianity; the measure of philosophical truth was its level of conformity with Christian belief. He admitted that “philosophers have sometimes thought the same things as ourselves,” but explained this not by ascribing a measure of respect to philosophy; rather, he compared the discovery of philosophical truth to a ship stumbling across a harbor in the “confusion” of a storm, “by some happy chance . . . through blind luck alone” (An. ii). We cannot know, of course, how – or if – Tertullian would have changed his tone, attitude or beliefs were he a twenty-first-century theologian, nor what he would have done in medieval Italy. Still, we have his writings as a voice of a religious minority in a pagan imperial age, defending universal religious freedom as a human right centuries before it would be accepted even rhetorically as such. His devotion to his religion suggests that a natural-law defense of religious freedom is possible even in the most religious – and perhaps even religiously diverse – societies. The secular alternative of privatizing religion or downplaying the role of divine revelation and law need not be the only alternative. Indeed, if Tertullian’s defense succeeded – as history suggests it ultimately did – we have good reason to return to his approach today.

APPENDIX: ABBREVIATIONS FOR TERTULLIAN’S WORKS

An. Apol. Carn. Cor. Mil. Jud. Marc.

De Anima Apologeticum De Carne Christi De Corona Militis Adversus Judaeos Adversus Marcionem

Arguing Natural Law

Pall. Praescr. Scap. Test. Virg.

De Pallio De Praescriptione Haereticorum Ad Scapulam De Testimonio Animae De virginibus velandis

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Conclusion Natural Law, Modernity, and Aporia

To force all men in step toward the same goal – that is a human idea. To encourage endless variety of actions but to bring them about so that in a thousand different ways all tend toward the fulfillment of one great design – that is a God-given idea.1 Alexis de Tocqueville, Democracy in America

Religious freedom today faces a conundrum that is at once perennial and peculiarly modern. Human law and divine law both exert power over human beings but, inevitably, the two forces come into conflict in social and political life. This conflict both occasions the need for and interferes with religious freedom. It occasions the need for it in that it is only when one’s obligations to divine law conflict with human law that there is a need to invoke religious freedom at all; if we could ensure that no such conflict would take place, we would not need to recognize religious freedom. This is fundamentally the Hobbesian approach to divine and human law, for by subsuming all religion under the state, Hobbes ensured that no divine law reached the subject but what was mediated by the sovereign. In conflicts of human and divine law, one simply must obey the human law, even if it goes against one’s beliefs: the citizen is “bound, I say, to obey [the human law], but not bound to believe it.”2 This denial of religious freedom is clearly undesirable, at least to liberal ears, but it serves as a cautionary tale for those tempted to eradicate, rather than mediate, the tension between human and divine law. The conflict of human and divine law also interferes with the very religious freedom it necessitates, ensuring that religious freedom will never be realized fully. No society can afford to weaken the social fabric to such an extent that each person can obey his or her conscience and religion with no accountability to human law. Nor is the problem solved by simply removing religion from the picture and granting freedom of conscience, or perhaps of press and assembly and speech, rather than of religion. Doing so merely pushes the problem one step back, leaving unanswered the question of how to deal with competing obligations. Perhaps 1

2

Alexis de Tocqueville, Democracy in America, trans. George Lawrence, ed. J.P. Mayer (New York: Harper Collins Perennial Modern Classics, 2006), Appendix I.Y, 735. Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis, IN and Cambridge: Hackett, 1994), 187.

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more importantly, though, this tactic – which might be termed a “secular” approach to religious freedom – removes any competing authority to the state: without religion, only the state exercises authority over the individual. In the end, this is nearly indistinguishable from the Hobbesian option; in both cases, there is the citizen, and there is the state, but no other authority. This problem of religious freedom, then, is ineradicable and perduring. From Antigone to Hobbes, we see that man cannot serve two masters. Man, however, seems to persist in seeking a second master. Whether it is the enduring power of religion itself, the perennial appeal of such literature as Antigone, or the retraction of the so-called “secularization thesis” by some of its very authors,3 history itself testifies to humanity’s need to recognize something higher than the human law. What that something higher will be, however, is the pivotal question, and this is the aspect of the problem of religious freedom that is peculiarly modern. The history of modern philosophy in the West is, with some important exceptions, a history of skepticism about metaphysics. Political theory, too, has largely nudged any transcendent truth claims, which are intrinsic to much of religious teaching and life, into the private domain. In place of debate over the nature of God and the good we find competing social contract theories, from Rousseau to Rawls. Divine law is thought to be too inaccessible to human reason in late modern epistemology and is therefore inadmissible in the rationalist liberal regime that underwrites such human rights as religious freedom in the first place. This is because it is thought, and not without reason, that taking recourse to divine law in political society breaks down unity and order, for the divine law cannot be known in the same way that the human law can be known. Hence, it is over this issue that religious wars have been fought and totalitarian regimes have sought to eradicate allegiance to anything but the state. Our impulse in the late modern era of democracy, so scarred from failing to protect vulnerable minorities and persons from abusive majorities and regimes, is to elevate the individual conscience as the utmost authority, eschewing the divisive nature of religion and all things metaphysical. This is how we arrive at the pervasiveness of the humanist interpretation of Antigone as well as the trend in recent literature to move away from freedom of religion and toward the freedom of conscience. But again, if there are only individuals and their beliefs, on the one hand, and the state to determine which of these beliefs can be acted upon, on the other, the outlook is grim for the protection of those beliefs and consciences. In its pure form, furthermore, this settlement is fundamentally unworkable. From a theoretical perspective, the submission of the divine law to the human law means that when human and divine law clash in the modern nation-state, claims for religious freedom are settled by human law alone. Yet this very process denies the religious party her premise that she answers to a power that is higher than the state. 3

See, e.g., Peter Berger, The Desecularization of the World: Resurgent Religion and World Politics (Washington, DC: Ethics and Public Policy Center, 1999); Jose Casanova, Public Religions in the Modern World (Chicago, IL: University of Chicago Press, 1984).

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Alexis de Tocqueville foresaw this quandary of modern democracy through simple observation of the American experiment in modernity’s earlier days. He observed that religion was a democratizing force, for it effected unity without the use of law by informing men’s mores;4 it thereby stood as a mediating institution between the citizen and the state. Tocqueville wrote that even absent laws to the same effect, Americans’ Christianity prevented them from acting in ways detrimental to society: “Thus, while the law allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare.”5 Practically speaking, then, removing religion and submitting divine law to human law will only expand the sphere of human law to effect social cooperation. We arrive at both Hobbes’ and Winnifred Sullivan’s point: religious freedom is impossible if everything falls under the purview of the state. There is a distinct, democratic advantage of the social arrangement that Tocqueville described: disputes over social norms take place not at the level of an allpowerful sovereign and an intrusive bureaucracy, but nor are they purely private questions, which would tend toward both alienation and the breakdown of cooperation and trust. Rather, citizens themselves work out their social mores in face-to-face interactions, building on their shared religious faith. There are, of course, other forms of mediating institutions – civic organizations, clubs, charities, etc. – and these, too, aid in maintaining a level of cooperation and trust among citizens without requiring the force of centralized law and bureaucracy. This is a very important point. The latter institutions, however, do not serve as authorities in the way that religion does. For Americans, then, Tocqueville considered religion to be “the first of their political institutions” because it “facilitates their use of [liberty]” by permitting them to work out the norms that govern society without recourse to the law to enforce morality.6 When religion’s authority on citizens is undermined, then, whether by legal force or by social trends, the mores that previously held society together begin to disappear, and law must take their place.7 This is observable in a general way: American culture war rhetoric no longer revolves around, say, the content of television and music but around Supreme Court cases and Congressional legislation. But similar insights have appeared through the ages. Plato predicted that the “many-colored cloak” of democracy, in which every lifestyle and belief found a home, would be followed by top-down, even tyrannical, force. Tocqueville declared squarely that “Despotism may be able to do without faith, but freedom cannot.”8 He held, and 4

5 6 7

8

Tocqueville defined mores, moeurs, as “the whole moral and intellectual state of a people.” See Democracy in America, 287. Tocqueville, Democracy in America, 292. Tocqueville, Democracy in America. I should note that by “authority,” I do not have in mind only, or even primarily, an institutionalized form of authority. Indeed, Tocqueville was writing of “men who, having shaken off the authority of the Pope, acknowledged no other religious supremacy.” I refer primarily to the moral authority of religion. Tocqueville, Democracy in America, 294.

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I agree, that “partisans of freedom . . . should hasten to call religion to their aid, for they must know that one cannot establish the reign of liberty without that of mores, and mores cannot be firmly founded without beliefs.”9 When religion provides a context for liberty rather than a wall against it, it is a guarantor of political freedom against a state that is often only too happy to take over the role of establishing moral norms. From an empirical standpoint, Jonathan Fox concludes from a 152-country study of the relationship between religion and state that “It is precisely in those states where modernity has most undermined the traditional community that religious elements within the state are most likely to try and legislate religious morals and traditions that were previously enforced at the social level.”10 This is what Tocqueville referred to as the “artificial strength of laws” to effect religious cooperation – always a failing tactic, in his estimation.11 To prevent the encroachment of an all-powerful state – or even of religious institutions turning to the state to enforce their standards – we do well to allow religion, and not just conscience, to live freely among our democratic selves. This is especially true in late modernity; as Fox also noted, “it is precisely the most modern states that have the greatest ability to interfere in the daily lives of their citizens.”12 If Tocqueville is correct, then absent religion, the only forms of authority will be the individual and the state – and in light of the state’s interests, the integrity of any given individual’s life and conscience may not always weigh so heavily. So, when faced with the question of what the higher authority will be, individual conscience is insufficient at the political level. This does not mean, however, that the pendulum should simply swing in the direction of religion and divine law as the ultimate authority in society, however. First, the obvious practical obstacle of pluralism in late modernity means that the enforcement of one creed’s or sect’s divine law would erode the equality to which such societies also typically aspire. Beyond this, some religious commitments would themselves undermine the system of human rights that gives rise to the protection of religious freedom in the first place. Whether by leaning into human law or relying on divine law, then, the conflict of human and divine law admits of no clear resolution. The alternative to this strict dichotomy of human law and divine law is to step back and see a larger picture of law that integrates both forms together with the natural law, which participates in both human nature and divine creation, or, if one prefers, deals in categories of both reason and revelation. Such was the project of this book. Antigone illustrates why the mediating form of law is necessary: human law and divine law conflict and without a mediator, force will prevail, eventually with 9 10

11 12

Tocqueville, Democracy in America, 17. Jonathan Fox, “World separation of religion and state into the 21st century,” Comparative Political Studies 39 (2006), 562. Tocqueville, Democracy in America, 297. Fox, “World separation,” 562.

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tragic results. Maimonides gave a legal, philosophical, and religious framework for interpreting divine law in light of natural law, and Ibn Rushd carefully theorized a possibility for such a mediating law, an unwritten law of justice that inheres in nature, to which all men have access. Tertullian showed how this natural law of justice can be used in the public sphere, even when religious difference is present.

BEYOND RELIGIOUS FREEDOM: NATURAL LAW AND OTHER HUMAN RIGHTS

It is important to stress that what I am advocating is not a panacea to modernity’s religion-state difficulties. Natural law is a notoriously slippery concept, and even if we could all agree to abide by it, we would face a great deal of difficulty in agreeing on what it says. As I argued in the Introduction, however, given late modernity’s pluralism, it is likely the best option available for preserving freedom of religion. Absent natural law, for instance, in the face of increasing religious radicalism, who is to say what is off-limits for a religion or, more fundamentally, why it is off limits? Human law can and indeed must do so, but without any basis for saying what is good and what is bad, we have only human consensus on acceptable behavior in the public sphere. This does nothing to resolve the conflict of human and divine law; it proves in the end to be mere tyranny of the majority – hardly worthy of the term “religious freedom.” The same could be said for human rights in general; that is, human rights go no further than human law and are thus far more precarious than we like to admit. Absent natural law, what actually backs up human law other than force, whether the force of the majority’s will, the politician’s bank account, or the tyrant’s fist? Janet Holl Madigan makes the point succinctly: “Regardless of the various ways in which they are articulated or defended, human rights are meant to express the inviolable moral worth of the individual. We must recognize that there is simply no logically consistent way to defend such a concept apart from natural law.”13 Upholding the “inviolable worth of the individual” is historically an anomaly rather than the norm, and to simply assert it, even in seemingly powerful international human rights treaties or legislation, provides a weak defense against the encroaching interests of the majority. As an aside, even Hobbes, whose Leviathan subsumed every element of society, conceived of natural law as a real limit to the sovereign’s power: “nay, heaven and earth shall pass; but not one tittle of the law of nature shall pass, for it is the eternal law of God.”14 To Hobbes, if a judge errs in his interpretation of the law of nature, neither he nor any judge that follows him may consider that interpretation to be 13

14

Janet Holl Madigan, Truth, Politics and Universal Human Rights (New York: Palgrave MacMillan, 2007), 197. Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis, IN and Cambridge, UK: Hackett, 1994), 181.

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valid precedent – crucially, even though judges are “sworn to follow it [i.e., the human law in the form of precedent].”15 In other words, the judge, who is authorized by the sovereign to interpret both human and natural law, must not follow any judgment that errs in interpretation of the law of nature, such is his obligation to obey the natural law. Hobbes’ law of nature is not synonymous with what I have referred to as natural law,16 but it is striking that even Hobbes, who is lightyears away from advocating human rights and religious freedom, did not take the step that late modernity has taken by removing natural law from the idea of law itself. Returning to the relationship between natural law and human rights, Madigan is right to point out that we simply cannot have human rights without at least a natural law foundation. She is also right to admit that taking this step has tremendous ramifications for public life: “to acknowledge that natural law is an essential component of moral argument is no small concession – for it is to admit that the universe is ordered, and that this makes a difference to the conduct of human life.”17 Gone is Plato’s “fairest of regimes,” the “many-colored cloak” of democracy, in which all ways of life are considered equal. Rather, appetites exist not to be sated but to order human life to a particular end, to the good life. Understood in a robust way, the good life is not something that each person can define wholly for him or herself, but rather something which follows from human nature, from the application of right reason to observations of what conduces to flourishing and living well. Such a project is ambitious, to say the least. Indeed, a regime in which natural law is so prevalent is unlikely to take practical shape in any society, late modern or otherwise. This does not mean that we should disregard it entirely; rather, it is my modest claim that we should simply readmit natural law into the discussion of political and legal theory, especially as these concern human rights and religious freedom.

BEYOND POLITICAL THEORY: THE STUDY OF NATURE

I have, throughout this book, referred repeatedly to a “return” to traditions of natural law, and not without reason: whether in its Stoic formulation, Christian Scholastic version, or its Muslim variety and patterns of fiqh, natural law theories were at their most robust in centuries past. I find, however, that natural law theoretical 15 16

17

Hobbes, Leviathan, 181. Why Hobbes’ law of nature is not substantially the same as what I mean by natural law is a subject for another work. For present purposes, though, the crucial distinction is that Hobbes’ law of nature begins from the exclusive goal of survival, whereas mine, which follows from the earlier Thomist tradition, aims at living well rather than merely living. Beyond substance, for Hobbes, formally all interpretive authority of the law of nature lies in the judge, whereas in my schema, which aims to work with, rather than against, democracy, the fact that all people can by their nature know something of the natural law has implications for their political participation. For further clarification, I refer the reader to Chapter 1 on Antigone, in which I distinguish my natural law from the ancient right of kin. Hobbes, Leviathan, 181.

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commitments are indeed alive and well throughout the disciplines of political theory, philosophy, and even sociology, but they are concealed under different names. If this is the case, there is no need to resist what I have termed a “return” to natural law on the grounds that it is antiquated, unsuitable to modern academic discourse, or that it is ultimately reliant on a defunct and defeated Aristotelian physical universe.18 Rather, we can build on and clarify existing scholarship’s reliance on what is effectively natural law theory by another name. In The Orders of Nature, Lawrence Cahoone argues that “naturalism can be scientific yet pluralist”19 (i.e., neither reductive to physicality and thereby a narrow empiricism, on the one hand, nor requiring a heavy-handed metaphysics, on the other). Studying the nature of what is, he claims, allows us “to forge a metaphysics that aspires not to finality or the end of inquiry but to an adequate, yet corrigible, set of concepts for further inquiry, always vulnerable to our conceptual criticism and best empirical guesses about the world.”20 This kind of naturalism “needs to be local, claiming not that all being is natural or part of nature, but that of what does, has or will exist, nature constitutes the most robustly accessible elements.”21 Cahoone’s point is an important one: nature does not get us all the way there, if “there” is the answer to our political, philosophical, and legal quandaries. However, as a starting point for getting us out of those quandaries, it is perhaps the most publicly accessible yet still robust starting point for inquiry; as I have argued, nature, more than divine law, is accessible by human reason, yet not denuded of metaphysical aspects and therefore open to both divine and human affairs. Philosophically speaking, then, something akin to Cahoone’s approach underwrites the natural law theories I have attempted to defend in this book. In positing a “return,” I am, it is true, asking contemporary readers to consider the natural law theories that have been shelved for generations, and sometimes for centuries. But I am not asking that these theories be simply adopted wholesale and that the conceptions of nature on which they rest – Aristotelian physics, for example – be once again entertained. Rather, it is the fundamental approach to law and ethics embraced by natural law theories that I am advocating; to borrow from Strauss, I propose that “the rules circumscribing the general character of the good life,” as these can be known through our natural reason, be considered as part of our concept of law.22 Cahoone’s updated version of naturalism provides but one robust

18

19

20 21 22

How defunct that universe is, however, may not be as settled a question as it has been considered. See William M. R. Simpson, Robert C. Koons, and Nicholas J. Teh, Neo-Aristotelian Perspectives on Contemporary Science (New York: Routledge, 2018). Lawrence E. Cahoone, The Orders of Nature (Albany, NY: State University of New York Press, 2013), 3. Cahoone, Orders, 2–3. Cahoone, Orders, 6. Leo Strauss, Natural Right and History (Chicago, IL: University of Chicago Press, 1953), 127.

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foundation for beginning this “return” to what would nevertheless amount to a new approach to law and human rights in the late modern era. Christian Smith adopts this method for sociology, stating point-blank, “I am first of all assuming that human beings have a specifiable nature, that there is a real quiddity or ‘whatness’ about human personhood that can be known.”23 To ask what can be known about human nature would often, if not usually, form the first step in what I am proposing as a role for the natural law, and here Smith proposes that even in the more empirically inclined field of sociology, this not only can be done, but must. Smith goes on to discuss what we can know of what is “real,” which is often taken as synonymous with what is material. Reality, Smith claims, “has a deep dimension operating below the surface of empirical experience,” and that to ignore that dimension entails committing the epistemic fallacy of reducing what really is to what we can observe empirically.24 As I am attempting with this book, then, Smith too is dealing with human phenomena and actions, beginning from the question of what really is there – I would add, by nature – and prioritizing those natural ends over purposes. In political theory, I find that natural law has some affinities with the cluster of works loosely grouped into the category of “personalism.”25 This school of thought, while somewhat roughly hewn as a theory, also purports to provide a basis for human rights and dignity, and it attempts to draw together all of the elements of human life and the natural world into a human-centered political theory. It is a laudable and serious project, and in my opinion it is more convincing than some of the nonfoundationalist accounts of human dignity.26 I find, however, that personalism requires a comprehensive, universal conception of what the human being is. This is perhaps a product of its formative years, the bloody first half of the twentieth century, when seemingly universal wars inclined one to believe that nothing short of a cosmopolitan ideal, embraced and even enforced universally, would suffice to protect human rights. But the latter half of the twentieth century seems rather to suggest that one-size-fits-all political theories, even those purporting to define the seemingly universal rights of man, tend perhaps inevitably to reflect and perpetuate the ideas and interests of the strong. Although personalism has both secular and Christian versions, it requires a fairly robust answer to the question of “What is a person?”, which is likely to prove a nonstarter in many contexts. What I am 23

24 25

26

Christian Smith, What Is a Person? Rethinking Humanity, Social Life, and the Moral Good from the Person Up (Chicago, IL and London: University of Chicago Press, 2010), 9. Smith, What Is a Person?, 13–14. See especially Thomas R. Rourke and Rosita A. Chazarreta Rourke, A Theory of Personalism (Lanham, MD: Lexington Books, 2005). Non-foundationalist theories of human rights assert the existence, even primacy, of human rights as objects of protection but prescind from offering a robust theoretical foundation for such rights. I have in mind, e.g., H. L. A. Hart, “Are there any natural rights?”, The Philosophical Review 64, no. 2 (April 1955), 175–191; Richard Rorty, “Human rights, rationality and sentimentality,” in Obrad Savic´, ed., The Politics of Human Rights (London and New York: Verso, 1999); George Kateb, Human Dignity (Cambridge, MA: Harvard University Press, 2011).

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presenting as natural law theory in this book, on the other hand, may eventually have to make some anthropological commitments, but it does so within different contexts – post-Christian secular, ancient Christian, medieval Muslim, and so on – allowing a considerably greater degree of flexibility. The above approaches, then, reflect but are not identical to what I propose. Cahoone’s naturalism probably comes the closest as it concerns underlying suppositions, but it does different work – philosophical naturalism attempts to explain what is rather than what ought to be, as I seek to do with natural law in this book. But it is indispensable to what I propose, for political theory is ill-adapted to answer the former question, and natural law relies on an accessible understanding of nature’s normative aspects. Personalism, in my view, though helpful in providing an account of the rights that are due to human beings, is less than sufficient as a comprehensive tool for political theory more generally. Natural law, I suggest, can take us further in that regard.

BEYOND THEORY: THE PRACTICES OF NATURAL LAW AND RELIGIOUS FREEDOM IN SOCIETY

I have attempted to put some flesh on the bones of my idea of what natural law is rather than what it can do, the latter of which has assumed a greater role in the present project. I have also attempted to expand the link between natural law and religious freedom to include human rights more generally, arguing that natural law theories are our best hope for continuing to protect robust versions of human rights in a late modern, pluralizing, and globalizing context. But we must now ask, What would this schema of law look like in practice? In other words, what does it look like to live in a regime in which religious freedom and human rights are underwritten by natural law? First, it is important to stress that it would not be a simple matter of “translating” natural law into human law, with legislators or judges merely asking, “what does the natural law say?” and then writing or declaring the human law to be such. I propose natural law not as a wholly new legal regime but rather as a way to fill the void of a mediating role between human and divine laws. It enriches, rather than replaces, our current understanding of what law is. More concretely, at every stage in legal life – legislating, interpreting, and executing – one would ask what we can know from the nature of the thing in question (a community, workplace, family, human being), as well as what natural law teaches us about the relevant human and divine law. Still, written human law would continue to work alongside both written and unwritten divine law; what would be new (or “new”) would be the natural law’s role in making sense of both. Thus, natural law and the natural ends of things would be considered when crafting human legislation. At the level of the judiciary, for both secular and religious judges (e.g., Muslim jurists, or fuqaha¯ʾ) the natural law would provide

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a lens of interpretation rather than a means of innovation. This would preclude what I take to be a dangerous precedent on the part of judges to ask what the law ought to be and asking, rather, what the best and most complete interpretation of the law is, given the nature of the relevant things involved. This is what Sokolowski referred to as “distinguish[ing] our purposes from the ends of things,”27 and it obtains equally in the case of legislation and execution as it does in judicial matters, for the human tendency is to write, execute, or interpret the law as we think best, rather than as we are constrained to do given the nature of things involved. As far as the substance of the natural law is concerned, this must remain a question for the next stage of the current project. For present purposes, though, the essence of what I propose is a self-consciously teleological conception of nature (i.e., one in which both material and immaterial entities have ultimate aims or ends). We may not know these ends in full, but we can know something of them, and this, I submit, should be considered in ethical, political, and legal theory. Again, filling in the substance of such theories is work for a later project, but for now, a few candidates for starting points are worth mentioning. While what I have proposed in this book would take different forms in different settings, developments in philosophical naturalism, as discussed above, provide a promising basis for natural law theory. Other options do avail themselves, however. Readers may be familiar with the John Finnis-Joseph Boyle-Germain Grisez school of New Natural Law theory, which posits a number of basic goods inherent in human nature toward which one’s actions ought to be directed.28 This is one possible route if one is concerned with concrete precepts. While the Finnisian version of New Natural Law eschews creedal commitments as well as a teleological direction, it may hold sway with only a certain cohort of theorists, and it is important that, for others, there are alternative theories of natural law that can fill the role I have proposed for it in this book. Jonathan Crowe has recently, and quite helpfully, written on a post-Finnis future for New Natural Law in which the core claims of New Natural Law theory are distinguished from the socially conservative and Catholic tendencies of the original Finnisian version. The core claims, he writes, are two: “first, the plurality of both the basic forms of good and the associated principles of practical reasonableness; and, second, the logical priority of the good over the right.”29 These goods inhere in human nature, which is what accounts for the “natural” label, but the emphasis on pluralism (i.e., the plurality of goods worth pursuing) makes this a more flexible theory than its persistently 27 28

29

Robert Sokolowski, “What is natural law?”, The Thomist 68 (2004), 516. See, e.g., John Finnis, Germain Grisez, and Joseph Boyle. “Practical principles, moral truth, and ultimate ends,” American Journal of Jurisprudence 32 (1987), 99–151, as well as John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) and Robert P. George, In Defense of Natural Law (Oxford: Clarendon Press, 1999) inter alia. See Jonathan Crowe, “Natural law beyond Finnis,” Jurisprudence 2 (2011), 297.

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Catholic, conservative image has so far conveyed.30 A version of natural law based on the naturalism discussed above or on New Natural Law theory, then, could fairly naturally (as it were) take root in many Western societies. In Muslim societies, Anver Emon’s work31 on natural law theory in Islamic jurisprudence is an excellent point of departure. Emon’s work, mentioned earlier in this book, provides a historical and logical account of how and why “we can use our reason to investigate the world around us to form principles of normative ordering that reflect what God would want for us.”32 But his is not a purely theoretical project; rather, he demonstrates the work of several competing schools of premodern jurisprudence that made use of nature to establish reason as a source of sharı¯ʿa. From a political theory (i.e., rather than jurisprudential) perspective, Abdullahi an-Naim paints a picture of what a Muslim society might look like with an established role for natural law, though he does not use the term. An-Naim advocates the establishment of a secular state (“secular” in that the state is officially separate from religion, not a secular society in which religious commitment is necessarily low) based on principles distilled from early Islamic society as understood in the light of modern commitments to universal human rights. He follows the tradition begun by the twentieth-century Sudanese political and religious leader Mohammed Mahmoud Taha who, without wholly historicizing the text, distilled from the Qurʾa¯n a vision for an authentically Muslim society that adapts to the milieu in which it finds itself. This approach employs the very prudence and practical reasoning that are trademarks of natural law to understand the role of human and divine law in society. An-Naim’s theory and exegesis of the Qurʾa¯n is a creative but plausible undertaking; it cannot be said that it is either incoherent or merely wishful secular thinking. I raise his project here because one of an-Naim’s objects in it is “to shift the focus of human rights advocacy to a more ‘people-centered’ approach . . . the purpose [of which] is gradually to diminish reliance on international advocacy by progressively reducing the need for it through the development of the capacity of local communities to protect their own rights as the most effective and sustainable way.”33 This is exactly the type of approach that leaves room for the human law to take both natural and divine law into account, and vice versa. Still, when it comes to practical application of the theory of law I have propounded in this book, I resist attempting any easy solution. A robust right to religious 30

31

32 33

I am paraphrasing Crowe somewhat here, but Crowe does emphasize the degree to which “recent developments in natural law scholarship” that are not in agreement with the version Finnis espouses have “so far escaped widespread notice.” See “Beyond Finnis,” 296; see also 299–300. Anver M. Emon, Islamic Natural Law Theories (New York: Oxford University Press, 2010). See also Emon’s related work on Islam and human rights, e.g., Mark Ellis, Anver Emon and Benjamin Glahn, eds., Islamic Law and International Human Rights Law (Oxford: Oxford University Press, 2012). Emon, Theories, 11. Abdullahi an-Naim, Islam and the Secular State: Negotiating the Future of Shariʿa (Cambridge, MA: Harvard University Press, 2010), 116–117.

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freedom exists very uneasily as an abstract universal right when it comes to defining its features, and there will be tradeoffs involved in protecting religious freedom in the manner I advocate in this book. In practice, the particular versions of both human and divine law vary, and so will the settlements of religious freedom and natural law. In concrete terms, the use of natural law theory in actual jurisprudence on religious freedom might result in an increased use of the legal standard of “reasonable accommodation,” which has been widely applied to cases of disability but is quite new to the religious freedom landscape. Advocates of this approach, which is currently the predominant legal approach for religious freedom and human rights in Canada, claim that it is better equipped than courts to address the multifaceted, complex cases of religious freedom because it employs “constructive dialogue and negotiation”34 rather than traditional arbitration. Of course, this is but a formal tactic to permit the substance of natural law reasoning to enter the picture; dialogue and negotiation will lead nowhere if, like Creon and Antigone, the parties insist on purely religious or purely secularized principles. But it is a start. Again, there is a tradeoff – black-and-white principles give way to blurry gray lines when the question is “What is reasonable?” rather than “What does the human/divine law say?” Furthermore, what looks like religious freedom in one setting may be religious oppression in another; what is unreasonable restriction in one time or place may be necessary restraint in another. But the tradeoff may be worth it to ensure that the natural law keeps a place in the public conception of what the law is, for doing so may, in Tocqueville’s words quoted in the epigraph, allow freedom for humanity’s “endless variety of actions” without allowing that democratic variety to devolve into the tyranny Plato feared from democracy.

MOVING FORWARD: RELIGIOUS FREEDOM AND THE WAY OF APORIA

Meghan Sullivan has constructed an interesting typology for dealing with conflicts between reason and faith, and her terminology is useful for addressing the related conflicts of human and divine law that I have attempted to capture in this book. A believer who holds what Sullivan terms “thick faith” (i.e., one that makes specific historical, theological, philosophical, and moral claims) finds that his faith and his reason at times appear to conflict. He can respond to this in one of four ways: (1) dilute his faith, such that he parcels out only those uncontroversial aspects of it and identifies them with the whole of his faith; (2) fundamentalize his faith, that is, reject 34

Daniel Cere, “Religious freedom and reasonable accommodation,” Ecumenism 177 (2010), 19-20. Jocelyn Maclure and Charles Taylor’s short book Secularism and Freedom of Conscience includes a helpful discussion of reasonable accommodation in matters of religion. See Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience, trans. Jane Marie Todd (Cambridge, MA and London: Harvard University Press, 2011), chapter 7, “The legal obligation for reasonable accommodation.”

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those claims of reason that conflict with his faith; (3) separate faith and reason, believing both sets of premises at once but maintaining that they belong to discrete – and non-mingling – spheres; or (4) follow Sullivan’s favored way, the “Way of Aporia.” In this path, the believer accepts both the claims of reason and the claims of faith, though only on careful consideration and “with good reason,” and carries on until some way to resolve the conflict is found. Crucially, this may never happen, as the name “aporia” suggests. Still, it is in fact the only truly rational path, because if the premises of rationality and the premises of faith claims seem on their own grounds well-founded, as they do at least sometimes, then to reject one or the other is arbitrary. “The best thing to do is to admit that some part of [a faithful person’s] understanding is flawed (he doesn’t know which), that he needs to keep working to resolve the conflict, and that it is rationally acceptable to go on believing both until he finds a way to break the stalemate.”35 In broad contours and scaled up several levels from the individual to society, we can see that Sullivan’s proposed faith-reason schema captures much of the challenge of religion in the public sphere, including the conflict of divine and human law. The first path of diluting religious claims finds expression in those societies that may carry the shells of religious observance, but the controversial elements are whitewashed and eventually denied. This is, perhaps, the situation of Western Europe, in which the human rights and equality that arose in and from its Christian past are retained while denying the importance, or even validity, of the “thick faith” that birthed them. Second, and conversely to the religiously diluted societies, fundamentalist societies insist publicly not only on a religion’s worth but its specific tenets, rejecting whatever cultural, scientific, or political elements may threaten the maintenance of that religion’s tenets or practices. Third, Sullivan’s “Way of Separation,” in which faith and reason are simply kept separate as distinct – and ultimately incompatible – epistemic realms, perhaps captures many popular ideas of twenty-first-century American approaches to religion and politics, the famed “wall of separation” that asks religious people to privatize their beliefs. The neatness of this path makes it an appealing option on its face: religious freedom is nearly absolute within the private sphere, but religion and religious practice are fair game for human legal intervention in the public sphere. But this path is ultimately unsatisfactory for resolving the conflicts inherent in religious freedom, for it purports to exalt human law, at least in public life, over divine law, thereby feigning to nullify, rather than resolve, the inherent tension between the two. What, then, of the Way of Aporia? Is there a public version of this path of perpetual tension? I believe there is. As the preceding chapters illustrate, there is a tradition across times and cultures of holding the law as something more than a human creation. Even as the human authors recognize the reality of written law, they sense – and in some cases articulate – the much thicker understanding of law as something human, natural, and divine. 35

Meghan Sullivan, “Uneasy grace,” First Things, April 2014, 47–51.

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This more robust conception of law provides resources, both intellectual and spiritual, for resolving the seemingly intractable conflicts of human and divine laws and norms at issue in our struggle to understand religious freedom. It thereby avoids the joint tyrannies of religious fundamentalism and of “a secularization that . . . annihilate[s],” in Habermas’ terms.36 But to adapt our late modern notion of law as something more or less purely positive, whether human or divine, to a conception of law that is tied to the nature of the world and the nature of human beings is no small feat, either in effort required or in implication. Natural law means that human law answers to something higher than itself, but it also means that divine law is not the only means of understanding the order of the universe – and that all humans are able to know something of these ultimate truths. These traditions of natural law may very well make the sort of difference that can preserve the possibility of religious freedom. Perhaps, then, employing natural law as part of our conception of law would settle not on “religious freedom” but on “religious freedoms,” with some blend of a universal recognition of the importance of religious freedom together with localized understandings of what that freedom entails. Perhaps, paradoxically for such a globalized era, it will be local contexts that ultimately determine – whether through reasonable accommodation, a Muslim secular state, or another mechanism – what religious freedom looks like in the twenty-first century.

36

Ju¨rgen Habermas, “Faith and knowledge,” trans. Kermit Snelson. Acceptance speech for the Peace Prize of the German Publishers and Booksellers Association, Frankfurt, October 14, 2001, https://www .friedenspreis-des-deutschen-buchhandels.de/sixcms/media.php/1290/2001%20Acceptance% 20Speech%20Juergen%20Habermas.pdf.

Epilogue Religious Freedom in Qatar

I finished work on the first draft of this book in Doha, Qatar, in a society wrestling with questions of how to reconcile sharı¯ʿa with human law, especially the human laws in various international rights documents and the norms that they express. The arrival of a version of one of those rights, religious freedom, in a society dominated by Wahha¯bı¯ Islam is no small achievement, and it is worth taking a few moments to recount how that happened. Today, Qatari residents are guaranteed freedom of worship by the national constitution, although public worship is limited de jure to the Abrahamic faiths and de facto to Christianity and Islam. Non-Muslim proselytism remains illegal and there is no legal recognition of the substantial Hindu population’s faith. Still, the crowded “Church City” complex on the outskirts of the city, which is bustling with public religious activity every day of the week, is a testimony to how much has changed—and to how different the country is from its neighbor Saudi Arabia, where public worship by non-Muslims is punishable by prison. In The Knight and the Falcon, Dr. Joseph Ghougassian, former United States Ambassador to Qatar, details his role in the conversion, as it were, of Qatari religious authorities. The story that transpired of legal and cultural change, though apparently nearly overnight, is in fact one of patience and incremental progress, and of a reliance on shared culture and language rather than on abstract universal norms. Ambassador Ghougassian, an Egyptian-born and Lebanese-raised American, was appointed by President Reagan to serve in the then-obscure Gulf country, arriving in 1985. In 1987, a British Roman Catholic priest, Father Lezek Winniewski, approached him in the American Embassy asking for his support in the event that he should be arrested by the secret police, who were allegedly attempting to locate him at the time. He had gone into hiding, celebrating mass in different locations and on different days every week. According to Ghougassian’s account of Fr. Winniewski’s testimony, members of his small Catholic flock had already suffered punishments ranging from confiscation of property to jail and torture for praying in a group in public.1 Within a year of this meeting, Catholic mass would be celebrated 1

Joseph Ghougassian, The Knight and the Falcon: The Coming of Christianity in Qatar, a Muslim Nation (Escondido, CA: Lukas and Sons, 2008), 4.

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publicly at the American School of Doha, with full knowledge and permission of the Qatari authorities, even with state security officials guarding the event.2 Ambassador Ghougassian’s story is one of diplomacy, patience, and some measure of being in the right place at the right time. Still, the account in The Knight and the Falcon reads as a tale of three laws: first, human law, as represented both by the Qatari Ministry of the Interior and the various human rights instruments to which Qatar was signatory;3 secondly, divine law, as represented both by the Qatari sharı¯ʿa court authorities and the divine obligations of Catholics living in Qatar; and finally, natural law, which is not articulated as such but appears throughout the book as a sense that Christians were subject, in Ghougassian’s words, to “unjust and unfair treatment” by fellow human beings. Here we see natural law intervene at two levels: first, it mediates the conflict between human law – the Qatari law forbidding non-Muslim public worship – and the divine law of the Catholics, who were obligated to participate in mass every week. Secondly, it provided a framework for interpreting the divine law of Islam in a way that could integrate it with the various human laws found in multilateral human rights documents. As I have argued, natural law does not form a wholly new, competing body of law; rather, it integrates human and divine law by assisting our interpretation of the latter and crafting of the former. Ghougassian attributes Qatar’s position at the time of denying religious freedom to non-Muslims to the fact that the country “was following Saudi Wahhabi ideology to the letter.”4 But rather than advocating the realization of either an abstract natural law or of a universal human rights treaty, he drew upon his own—and, it would seem, his Qatari interlocutors’— sense of natural justice to draw out from within Islam an interpretation of divine law that supported what we would indeed recognize as a universal human right, the freedom of religion. This neither required the secularization of a strongly Islamic country, nor did it come exclusively from within the Muslim divine law—indeed, Ghougassian was a Catholic speaking to Muslim authorities as an official of the secular US government. The settlement relied rather on a recognition that if we take divine law to be such and craft human law accordingly, yet we sense the result to be an unjust outcome, perhaps we have misunderstood something. And perhaps natural law can help explain what that something is. Today, Qatar boasts not only the aforementioned Church City but also the quasigovernmental Doha International Center for Interfaith Dialogue, marking a prioritization rather than simple tolerance of interfaith relations. This is not the fullness of religious freedom, and one would be naı¨ve to celebrate Qatar’s standard as sufficient unto itself. I raise this story, then, because it is illustrative of the potential of natural law. In Ghougassian’s situation, neither human law in itself nor divine law —whether Catholic or Muslim—as it was understood could bring about a uniformly 2 3 4

Ghougassian, Knight and the Falcon, 46. See Ghougassian, Knight and the Falcon, 9. Ghougassian, Knight and the Falcon, 21.

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Index

Ad Marcion (Tertullian), 116 Ad Nationes (Tertullian), 117 Ad Scapulem (Tertullian), 105, 115, 119, 120 Adversus Judaeos (Tertullian), 119 Adversus Marcionem (Tertullian), 112, 115, 117, 126, 150 Aeschylus, 35 agonism, xiii, 6, 32, 46, 47, 48, 49, 51, 52, 81 Altmann, Alexander, 77, 78, 79, 80, 148 Anderson, Owen, xiv Androcles, 111 An-Naim, Abdullahi, 138, 145 an-Nazza¯m, Ibra¯hı¯m, 101, 102 ˙˙ Antigone (Sophocles), ix, x, 2, 16, 17, 18, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 61, 62, 87, 88, 89, 91, 104, 124, 125, 129, 131, 133, 139, 145, 146, 147, 149, 150, 151, 152, See also Sophocles Aouad, Maroun, 84, 90, 91, 94, 95, 97, 98, 103, 110, 145, 150, 151 Apologeticus (Tertullian), 105, 109, 115, 116, 117, 118, 120, 126, 149 aporia, 64, 140, 144, See also natural law Aquinas, Thomas, 2, 3, 24, 26, 35, 36, 51, 56, 57, 62, 64, 75, 97, 122 Aristotle, ix, x, 25, 53, 54, 55, 56, 57, 61, 62, 66, 69, 70, 85, 86, 87, 88, 89, 92, 97, 99, 110, 111, 121, 145 Arnobius, 105 Ashʿarı¯ theology, 85, 100 Augustine, 16, 105, 112, 117, 145 Austin, John, 3, 26, 146 Averroes. See Ibn Rushd

Bentham, Jeremy, 3 Book of Doctrines and Beliefs, The (Saadya), 77 Book of Religion (al-Fa¯ra¯bı¯), 92 Boyle, Joseph, 91, 121, 137, 151 Brague, Re´mi, 54, 55, 145, 152 Burns, Tony, 2, 53, 54, 55, 56, 150 Burwell v. Hobby Lobby (2014), 8 Butterworth, Charles, xi, 75, 83, 84, 86, 92, 93, 145, 146, 150

Barnes, Timothy, 104, 105, 109, 115 Benardete, Seth, 34, 39, 40, 41, 42, 43, 48, 49, 50, 52, 57, 58, 59, 145

Danchin, Peter, 7, 149 Danie´lou, Jean, 106, 112, 146 De Anima (Tertullian), 106

Cahoone, Lawrence, 134, 136 Catholicism in Qatar, 142, 143 natural law and, 28, 137 Christianity, iii, iv, xi, xvi, 3, 8, 16, 17, 19, 23, 24, 26, 28, 29, 36, 49, 50, 51, 62, 65, 66, 82, 104, 105, 106, 107, 108, 110, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 130, 133, 135, 136, 140, 142, 146, 147, 149, See also (Tertullian) Church of England, 2, 20 Cicero, 62 City of God, 42, 49 City of Man, 16, 42, 49 civil disobedience, 42, 46 class, 90, 91, 92, See also gender Commentary on the Mishneh (Maimonides), 63, 64, 75 compelling interest test, 8, 10, 11, 21 Concept of Law, The (Hart), 3 Corona Militis (Tertullian), 119 Critical Theory school of thought, 7, 15, 16 Crowe, Jonathan, 137, 138 Cyprian, 105

154

Index De Carne Christe (Tertullian), 107 De Corona Militis (Tertullian), 113, 114, 122, 125, 126, 150 De Praescriptionem Haereticorum (Tertullian), 107 De Testimonio Animae (Tertullian), 109, 118, 127, 150 De Virginibus Velandis (Tertullian), 112 Decisive Treatise (Ibn Rishd), 68, 93, 145 DeCosimo, David, 7, 151 democracy. See also modernity, liberalism Antigone and, 49, 55, 56, 57, 58, 59 dilemma of religious freedom and, 2, 9, 13, 14, 15, 17, 18, 20, 21, 22, 23, 61 modernity and, 5, 83, 129, 130 natural law and, 133, 139 pluralism and, 130, 133, 139 religion and, 130, 131 Deneen, Patrick, 14, 146 determinationes, 26, 57, 90, 91, 97, See also unwritten law dilemma of religious freedom, 2, 20, 80, See also religious freedom divine law. See also human law, religious freedom about, 35, 51, 80, 97 about the tension between human and, xiii, xv, xvi, 1, 2, 5, 6, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 29, 30, 47, 61, 62, 128, 130, 136, 138, 140 and religious freedom in Qatar, 143 Antigone and, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 Ibn Rushd and, 87, 90, 91, 95, 98, 103 Islam and, 83, 84, 86, 99, 100, 102 Maimonides and, 71, 72, 73, 74, 75, 76, 81, 82 modernity and, 31, 128, 129, 131, 132 Saadya and, 79, 80, 81 Tertullian and, 104, 105, 106, 113, 114, 117, 118, 119, 121, 123, 124, 125 divine reason, 3, 24, 35, See also eternal law divine voluntarism. See voluntarism Doha International Center for Interfaith Dialogue, 143 Dworkin, Ronald, 7, 9, 146 Eight Chapters of Maimonides on Ethics, The (Maimonides), 50, 75, 147 Eisgruber, Christopher, 7 Emon, Anver, 84, 96, 100, 138, 146, 151 enlightenment, 3, 4, 123, 147 equality, 5, 6, 10, 14, 16, 21, 83, 90, 119, 131, 140 eternal law, 24, 35, 51, 97, 132

155

eternal reason, 24, 35, 75, See also reason ethics in Antigone, 33, 44, 45, 47, 48, See also Antigone (Sophocles) Euthyphro (Socrates), 80 Euthyphro dilemma, 80, 102 Exodus, 50 Fakhry, Majid, 85 falsafa, 84, 85, 99, See also Islam al-Fa¯ra¯bı¯, 84, 92 al-Fayu¯mmi, Saʿı¯d bin Yu¯suf. See Saadya Gaon feminism. See gender fideism, 27, 80, 107, 108, 109, 123 Finnis, John, 3, 91, 121, 137, 138, 151, 152 fiqh, 84, 94, 96, 99, 133, See also natural law, Islam Foucault, Michel, 4 Fox, Jonathan, 131, 151, 152 Frank, Daniel, 79 fundamentalism, religious, 71, 81, 140, 141 Galston, William, 7, 13, 22, 73, 75, 146, 151 Garnett, Richard, 7 gender, 10, 44, 45, 46, 47, 83, See also class general law, 61, 86, 88 George, Robert P., 121 al-Ghaza¯lı¯, 85 Ghougassian, Joseph, 142, 143, 144, 146 Gibbon, Edward, 105 Glaucon, 41 globalization, xiii, xvii, 6, 21, 22, 31, 141, See also modernity Goethe, Johann Wolfgang von, 32, 34, 146 good life, 31, 133, 134 Grisez, Germain, 91, 121, 137, 151 Guide of the Perplexed, The (Maimonides), 29, 63, 64, 65, 66, 69, 74, 75, 76, 77, 147 Habermas, Ju¨rgen, 17, 18, 27, 122, 141, 146, 151, 152 Harris, H. S., 52, 147, 152 Hart, H. L. A., 3, 26 Hegel, Georg Wilhelm Friedrich, ix, 33, 34, 44, 45, 46, 52, 53, 59, 147, 152 Hester, Donald A., 33, 34, 49, 50, 51, 52, 151 History of the Decline and Fall of the Roman Empire, The (Gibbon), 105 Hittinger, Russell, 16, 23, 26, 28, 147 Hobbes, Thomas, ix, xiii, xvi, 2, 3, 15, 17, 19, 20, 23, 26, 59, 128, 129, 130, 132, 133, 147, See also Leviathan (Hobbes) Homer, 117 Honig, Bonnie, 18, 47, 48, 51, 52, 147, 151

156

Index

hubris, 33, 35, 36, 37, 38, 39, 40, 41, 47, 52, 53, 57, 107, See also Antigone (Sophocles) al-Hudhayl, Abu¯, 101, 102 human law. See also divine law, religious freedom about, 35, 51, 97 about the tension between divine and, xiii, xv, xvi, 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 29, 47, 61, 62, 128, 130, 136, 138, 140 and religious freedom in Qatar, 143 Antigone and, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 Ibn Rushd and, 83, 86, 87, 90, 97, 103 Maimonides and, 71, 72, 73, 74, 76, 81, 82 modernity and, 2, 3, 4, 128, 129, 131, 132 Tertullian and, 104, 105, 106, 113, 117, 121, 123, 124, 125, 126 human rights, 14, 15, 20, 61, 83, 103, 105, 115, 116, 117, 119, 120, 123, 124, 125, 126, 129, 131, 132, 133, 135, 139, 140, 143, See also religious freedom humanism, 3, 18, 32, 33, 34, 41, 44, 51, 55, 129, 151 Hume, David, 3 Ibn Rushd, x, xi, 29, 62, 64, 65, 68, 70, 79, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 102, 103, 104, 110, 111, 113, 117, 121, 124, 125, 132, 145, 151 ijma¯ʿ, 92, 93, 96, 99, See also Islam illiberalism. 13, 19, See liberalism Impossibility of Religious Freedom, The (Sullivan), 7, 8, 9, 12, 17, 149 impossibility thesis, 48, 49, 52, See also Antigone (Sophocles) Incoherence of the Incoherence, The (Ibn Rushd), 65 Incoherence of the Philosophers, The (Ghaza¯lı¯), 65, 85 Islam, 16, 20, 65, 66, 83, 84, 86, 87, 96, 97, 98, 99, 100, 101, 102, 103, 138, See also (Ibn Rushd) Islamic Natural Law Theories (Emon), 84, 138, 146 al-Jabba¯r, 84 jamʿ, 87, 94, 103, See also Islam al-Jassa¯s, Abu¯ Bakr, 84, 100, 101, 102 ˙˙ ˙ Judaism, 1, 8, 13, 62, 63, 64, 65, 66, 71, 72, 77, 81, 82, 83, 146, See also (Maimonides) kala¯m, x, 65, 66, 67, 77, 81, 99, 101, 151, See also Islam Kamali, Mohammad, 99, 147 Kant, Immanuel, 17 Kirkpatrick, Jennet, 58, 151

Kita¯b al-A¯ma¯na¯t wa al-ʿItiqa¯da¯t (Saadya), 77, 78, 79, 80, 81, 148 Knight and the Falcon, The (Ghougassian), 142, 143, 146 Laborde, Ce´cile, 7 Lactantius, 120, 147 law of nature, 36, 133 Laws (Plato), 55 Lectures on Aesthetics (Hegel), 44 legal positivism. See positivism Leiter, Brian, 7, 9, 10, 147 Lerner, Ralph, 64, 71, 76, 145, 147 Leviathan (Hobbes), xvi, 2, 15, 16, 19, 20, 26, 28, 128, 132, 133, 147 liberalism, ix, xvi, xvi, 2, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 22, 27, 31, 128, 129, 146, 148, 150, See also modernity, democracy, rationalism libertas ecclesiae, 11, 13 libertas personae, 11 Locke, John, xvi, 17, 153 Madigan, Janet Holl, 15, 57, 132, 133, 147 Mahmood, Saba, 7, 17, 147, 149 Maimonides, x, 29, 50, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 81, 82, 104, 107, 132, 146, 147, 148, 150, 151, 152, 153 Ma¯likı¯ legal school, 94, 95, 100 al-Maʾmu¯n (Caliph), 77 al-Mara¯kushı¯, 85 Maritain, Jacques, xv Marx, Karl, 4 maslaha, 96, 98, 100, See also unwritten law ˙ ˙ McConnell, Michael, 7 Middle Commentary on Aristotle’s Rhetoric (Ibn Rushd), 84, 86, 87, 90, 93, 94, 95, 96, 97, 98, 103 Midrash, 77 Mill, John Stuart, 10 Mishneh Torah (Maimonides), 63, 64 Mitchell, Joshua, xi, 5, 6, 21, 62, 148 modernity about, xiv, xiv democracy and, 83, 129 human law and, 2, 3, 4, 20 liberalism and, 9, 11, 14, 17 natural law and, xiii, 2, 7, 23, 27, 28, 29, 30, 31, 59, 132, 133, 134, 135, 141 pluralism and, xvii, 5, 6, 22, 30, 120, 131, 132 rationalism and, xiv, 2, 4, 6, 7, 9, 68, 80, 123, 129 rights and, 33, 123, 136, 138 tension between human and divine law and, xiii, xv, xvii, 12, 16, 49, 51, 52, 128, 129, 131

Index moral authority, 5, 17, 19, 130, See also political authority moral reasoning, xiii, xv, 31, 57, See also natural law Mohammad (Prophet), 12, 77, 86 mutakallimu¯n, 63, 64, 65, 66, 67, 69, 75, 77, 81, 107 Muʿtazilı¯ theory, 100, 101, See also Ibn Rushd natural justice, 53, 54, 56, 57, 62, 87, 88, 89, 91, 103, 143, See also natural law natural law. See also religious freedom about the tension between human and divine law and, 23, 24, 25, 26, 27, 28, 29, 47, 51 Antigone and, 32, 33, 34, 35, 36, 43, 44, 47, 49, 51, 52, 53, 54, 55, 56, 57, 59 critiques of, 28, 29 formation of the theory of, 61, 62, 97, 112, 122, 133 human rights and, 132, 133 Ibn Rushd and, 86, 87, 89, 90, 91, 92, 93, 95, 96, 97, 98, 99, 100 in modernity, 2, 3, 7, 131, 132, 133 in practice, 57, 136, 137, 138, 139, 143, 144 Islam and, 83, 84, 86, 87, 96, 98, 99, 100, 101, 102 Maimonides and, 70, 71, 72, 75, 76 religious freedom and the role of, xiii, xiii, xv, xv, xix, 2, 20, 30, 31, 35, 141 scholarship on, 133, 134, 135, 136, 137, 138 Tertullian and, 104, 105, 106, 113, 114, 115, 117, 119, 120, 121, 122, 125, 126 Natural Law in Judaism (Novak), 63, 75, 148 natural reason, 15, 24, 27, 29, 30, 35, 62, 84, 93, 109, 115, 134, See also natural law naturalis potestatis, 105, 115, 119 naturalism, 100, 119, 134, 136, 137, 138 New Natural Law school of thought, 91, 121, 137, 138, See also natural law Nicomachean Ethics (Aristotle), 61, 62, 92, 145 Nietzsche, 4 nomos, 2, 37, 54, 55, 72, 73, 74 Novak, David, 63, 70, 71, 75, 76, 81, 148 Nussbaum, Martha, 7, 10, 148 nu¯wa¯mı¯s, 72, 73, 74, See also human law Oedipus at Colonus (Sophocles), 34, 35, 88, 125, 146, 149 Oedipus the King (Sophocles), 34, 35, 88, 125, 146, 149 Osborn, Eric, 107, 108, 109, 110, 111, 148 Pakistan, 11, 153 Peace of Westphalia, xvi personalism, 135, 136, 152

157

Phenomenology of Spirit (Hegel), 33, 44, 147 Phillips, Jack, 17 Philosophy of Right (Hegel), 44 physis, 2, 54, 55 Pines, Shlomo, 65 Plato, xi, 2, 3, 21, 22, 41, 49, 51, 55, 61, 88, 111, 117, 130, 133, 139, 145, 148 pluralism, xiii, xvii, 2, 5, 6, 13, 21, 22, 23, 26, 31, 91, 104, 116, 120, 122, 123, 131, 132, 134, 137, 144, See also modernity Polemarchus, 41 political authority, 17, 18, 19, 21, See also moral authority Politics (Aristotle), 55, 85 positive law, 3, 25, 26, 87, 93, 97 positivism, xiv, 2, 3, 15, 23, 26, 27, 29, 30, 37, 97, 100 postmodernism, xiv, xiv, xv, 4, See also modernism practical reasoning, 26, 56, 137, 138, See also reason proselytism, 11, 12, 142 al-Qara¯fı¯, 84 Qatar, xi, 20, 142, 143, 146 Qurʾa¯n, 95, 98, 99, 100, 138, See also Islam rationalism, xiii, xiv, 3, 4, 9, 27, 30, 64, 65, 69, 73, 74, 75, 77, 78, 79, 80, 81, 85, 123, 124, 125, 129, See also reason, modernity Rava (Rabbi), 76 Rawls, John, 7, 9, 18, 26, 122, 129, 148, 151 al-Ra¯zı¯, 84 reason. See also modernity, rationalism Antigone and, 39, 40, 41, 50, 51, 54, 57 Ibn Rushd and, 85, 90, 92, 93, 97, 100, 102 Islam and, 83, 84, 85, 100 Maimonides and, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 81 meaning of, xiii, 3 modernity and, 2, 4, 6, 129, 133 natural law and, 26, 27, 28, 30, 35, 47, 51, 56, 57, 62, 97, 131, 134, 138, 139 public sphere and, 9, 18 Saadya and, 78, 79, 80, 81 Tertullian and, 106, 107, 108, 109, 110, 112, 114, 115, 120, 123, 124 way of aporia and, 139, 140 religious freedom about natural law and, xiii, xvii, 23, 24, 25, 26, 27, 28, 29, 30, 133, 134, 135, 136, 139, 141 about the tension between human and divine law and, xiii, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 81, 128, 129, 130 Antigone and, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59

158

Index

religious freedom (cont.) aporia and, 139, 140 Ibn Rushd and, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103 in Qatar, 142, 143, 144 liberalism and, xvi, xvi, 13, 14, 15, 16, 17 Maimonides and, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 modernity and, xv, 4, 5, 9, 31, 128, 129, 131, 132, 133 natural law theories in practice and, 136, 137, 138, 139 Tertullian and, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126 Religious Freedom Restoration Act, 8, 11, 21, 151 religious fundamentalism. See fundamentalism, religious religious pluralism. See pluralism Republic, The (Plato), 2, 41, 51, 55, See also Plato revelation, xiii, 6, 15, 18, 19, 27, 30, 62, 63, 66, 69, 74, 76, 78, 79, 80, 86, 92, 97, 101, 103, 106, 110, 112, 114, 117, 118, 119, 123, 126, 131, See also divine law RFRA, 8, 11, 21 Rhetoric (Aristotle), 56, 61, 86, 87, 88, 92, 95, 97, 110 Risa¯la fı¯ usu¯l al-fiqh (Sha¯fiʿı¯), 94 ˙ Rousseau, Jean-Jacques, 26, 109, 129 Saadya Gaon, x, 76, 77, 78, 79, 80, 81, 146, 148 Sachs, Joe, 53, 61, 88, 89, 111, 145 Sacred Transgressions (Bernardete), 34, 39, 40, 41, 48, 50, 57, 58, 59, 145 Sager, Lawrence, 7 Saudi Arabia, 20, 142 Schwartzman, Micah, 7 Second Discourse (Rousseau), 109 Secular Age, A (Taylor), xiv, 17, 147, 149 secularism, xiii, 3, 4, 7, 16, 17, 18, 27, 28, 29, 30, 106, 124, 129, 138, 139, 152 Seeskin, Kenneth, 64, 69, 70, 75, 82, 148, 153 Sefer ha-Mitsvot (Maimonides), 76 Seven Against Thebes (Aeschylus), 35 Sha¯fiʿı¯, 92, 93, 94, 148 Shakman-Hurd, Elizabeth, 7, 17, 148 sharı¯ʿa, 16, 24, 36, 66, 72, 73, 75, 78, 83, 84, 86, 87, 94, 95, 96, 98, 102, 103, 121, 125, 138, 142, 143, See also Maimonides, Islam Sherbert v. Verner (1963), 10, 21 Sider, Robert, 115, 118 Slade, Francis, xv, 24

Smith, Christian, 135 Smith, Steven D., 7 social contract theories, 3, 129 Socrates, 21, 41, 51, 55, 80 Sokolowski, Robert, xv, xv, 24, 25, 27, 30, 71, 137, 152 Sophocles, 2, 29, 32, 33, 34, 35, 36, 37, 41, 44, 49, 50, 51, 52, 53, 54, 55, 56, 58, 61, 87, 88, 125, 145, 146, 149, 150, 151, See also Antigone (Sophocles) St. Paul, 110 St. Peter, 124 stoicism, 3, 62, 106, 108, 109, 114, 115, 118, 119, 133, See also Tertullian Strauss, Leo, xv, 30, 31, 62, 71, 72, 134, 149 Sullivan, Meghan, 139, 140 Sullivan, Winnifred, 7, 8, 9, 10, 12, 15, 17, 20, 31, 121, 130 Summa Theologica (Aquinas), 2, 24, 35, 97 sunan ghayr maktu¯ba. See unwritten law syllogism, 66, 110, 111 Taha, Mohammed Mahmoud, 138 Taha¯fut al-Fala¯sifah (Ghaza¯lı¯), 85 Talkhı¯s Kita¯b al-Khata¯ba li Aristu¯. See Middle ˙ ˙ ˙ Commentary on Aristotle’s Rhetoric (Ibn Rushd) Talmud, 77 Taylor, Charles, xiv, 5, 139, 147, 149 teleology, xv, 25, 29, 70, 71, 72, 73, 75, 76, 77, 78, 81, 82, 137, See also natural law Ten Commandments, 24, 26, 36 Tertullian, x, xi, 30, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 132, 145, 146, 148, 149, 150 Thomism, ix, xv, 24, 26, 27, 43, 51, 52, 75, 89, 97, 133, 152, See also natural law, Aquinas, Thomas Thrasymachus, 2, 51 Tierney, Brian, 33, 150 Tocqueville, Alexis de, ix, 5, 6, 15, 21, 22, 128, 130, 131, 139, 148, 150 Torah, 71, 77 Treatise on Law (Aquinas), 2 Treatise on the Art of Logic (Maimonides), 63 unified justice, 34, 39, 51, 55 unified law, 41, 42, 43, 51, 52, 55 Universal Declaration of Human Rights, xv universal law, 47, 57, 86, 87, 90 unwritten law, 29, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 102, 103, 113, 114, 119, 125, See also Ibn Rushd, natural law, written law unwritten traditions, 113, 114, 120, 122

Index value pluralism, 13, 14, 22, See also pluralism Virgil, 117 voluntarism, 36, 37, 40, 79, 80, 101, 102 Warner v. City of Boca Raton, 8, 12, 13, 17, 113 Weisberger v. Weisberger, 1 Weiss, Raymond L., 75, 150 White, Stephen K., xiv, xiv, 3, 4

159

Wisconsin v. Yoder (1972), 10, 21 Wolfe, Christopher, xvii written law, vi, 7, 13, 17, 22, 23, 24, 26, 46, 61, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 103, 113, 114, 119, 136, 137, 140, See also human law, unwritten law Yaʿqu¯b Yu¯suf, Abu¯, 85 Yu¯suf Yaʿqu¯b, Abu¯, 85