Why Religion? Towards a Critical Philosophy of Law, Peace and God (Law and Religion in a Global Context, 2) 3030354830, 9783030354831

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Law and Religion in a Global Context 2

Dawid Bunikowski Alberto Puppo Editors

Why Religion? Towards a Critical Philosophy of Law, Peace and God

Law and Religion in a Global Context Volume 2

Series Editor Frank S. Ravitch, College of Law, Rm 315, Michigan State University, East Lansing, MI, USA

Law and Religion in a Global Context will focus on law and religion issues from a global perspective at a time when that field is of increasing importance and relevance around the world. Designed to be broad, the scope allows for books on the relationship between religion and government as well as on religious law. Focus will be placed on comparative law issues, but also on issues within single countries. Representative areas of focus will be: • the relationship between government and religion ranging from laicete to theocracy • religious freedom in pluralistic societies • the relationship between religious freedom and other freedoms such as freedom of speech and sexual freedom • regulation of religion by government • original contributions on religious law The series seeks to highlight up and coming voices in the field alongside those of established scholars. We encourage scholars from a wide range of geographic perspectives to apply. Purely doctrinal analysis of law and religion is not preferred. Nor is analysis of religious law issues without any original contribution or insights. The only exception to this rule might be books on legal doctrine from a region that has been under analyzed in English language literature.

More information about this series at http://www.springer.com/series/15625

Dawid Bunikowski Alberto Puppo •

Editors

Why Religion? Towards a Critical Philosophy of Law, Peace and God

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Editors Dawid Bunikowski State University of Applied Sciences in Wloclawek Wloclawek, Poland

Alberto Puppo School of Law ITAM Mexico City, Mexico

Law and Religion in a Global Context ISBN 978-3-030-35483-1 ISBN 978-3-030-35484-8 https://doi.org/10.1007/978-3-030-35484-8

(eBook)

© Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To Nina and Matteo Michele To Ignacy and Stanisław

Foreword

In recent years, multilateral cooperation and international institution-building have come under increased pressure. This affects a broad variety of political areas, from climate politics to arms control and from trade liberalization to human rights. The concomitant crisis of global institutions—such as the UN, the ICC, the WTO, and the WHO—has encouraged renewed attempts to look out for actors and agents who might contribute to filling the resulting gaps. Can religious communities play a stronger role in this regard? For decades, faith-based organizations, alongside secular civil society organizations, have cooperated in UN human rights forums and other international settings. And yet, new initiatives, like the “Faith for Rights” initiative taken by the UN Office of the High Commissioner for Human Rights (2017), indicate a growing awareness that much more needs to be done. At any rate, the potential of religious communities to mobilize broad support for peace, sustainable development, and human rights is back on the political agenda. The renewed focus on religions as potential factors and actors in international political arenas does not find unanimous applause. Critics fear that dearly won “secular” achievement—secular standards and secular institutions in international politics—could thereby be jeopardized. Not least because this affects human rights, which are “secular” rights in the sense of not—or not directly—being based on specific religious presuppositions. However, the fact that all major international human rights instruments include the right to freedom of religion or belief demonstrates an acknowledgement that for many people, existential convictions and concomitant practices constitute an indispensable part of their individual and community-related identities. Freedom of religion or belief thus reminds us that the secularity, which defines the human rights approach, needs further qualification: it is an “inclusive secularity” rather than an ideology of purging the public sphere of the visible presence of religiosity. Indeed, freedom of religion or belief provides the positive normative basis of a secularity that aims at keeping public spaces and public institutions open for the rich diversity of human life. The secular right to freedom of religion or belief presents challenges for all sides of the debate. It urges religious communities to come to terms with their own traditions of authoritarianism, narrow-mindedness, and intolerance. In particular, vii

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those communities that wish actively to participate in international political forums have to acknowledge the existing and further emerging religious, ethical and political diversity, as well the norms and institutions, which back up the due respect for everyone’s equal dignity and freedoms. Likewise, those who defend and promote the secular nature of international norms and institutions should recognize that from a human rights perspective, such secularity should not be mixed with policies of forced privatization of religiosity. To put it in a nutshell, secularity must mean openness rather than emptiness. This should especially guide international standards and institutions. The contributions put together in this book come from a broad range of academic disciplines, and they represent quite different viewpoints. What they have in common in the aspiration to build bridges between religion and law, between spirituality and international diplomacy, and between religious heritages and future challenges. While such efforts of bridge-building are much needed, they cannot succeed without putting the presupposed pillars to a relentless critical scrutiny. May the book attract a broad readership in academia and way beyond. Erlangen, Germany

Prof. Dr. Dr. h.c. Heiner Bielefeldt Former UN Special Rapporteur on freedom of religion or belief

Contents

Introduction: Philosophical, Legal and Political Significance of a Critical Assessment of God, Ethics and Religions . . . . . . . . . . . . . . Dawid Bunikowski and Alberto Puppo

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Peace Through Religion in Moral Philosophy and Natural Law Jurisprudence Is About Both Divine and Human Things . . . . . . . . . . . . Dawid Bunikowski

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Arthur F. Utz’s Thomism: Domestic Peace as Social Justice . . . . . . . . . Giorgio Baruchello

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Philosophical and Theological Aspects in the Thought of Johannes Althusius . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gerson Leite de Moraes and Daniel Francisco Nagao Menezes

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Living Well Together: Insights from a Philosopher, a Theologian and a Legal Scholar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Diana Ginn and Edward R. Lewis

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Secular Peace Through Universal Religions A Theological Justification for Freedom of Religion and Belief as a Universal Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Jessica Giles Islam, Europe, and the Problem of Peace . . . . . . . . . . . . . . . . . . . . . . . 137 Zachary R. Calo Humanity as the Ground for Universal Human Rights in Islamic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Recep Şentürk

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Peace and Religious Beliefs in International Jurisprudence The Sollen as Otherwise than Being. Notes on Hermann Cohen, Hans Kelsen and Emmanuel Lévinas . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Alberto Puppo From Rosa Luxemburg to Hersch Lauterpacht: An Ostjüdische Heritage in International Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Reut Yael Paz Law, Secularism, and the Evolution of the ‘Human’ in International Legal Discourse and Global Governance . . . . . . . . . . . . . . . . . . . . . . . . 225 Joanna K. Rozpedowski The Political/Religious Dimension of Dramatic Social Events Blake’s Dialectical Theism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Bernard Wills Some Remarks on “Adulthood” in Walter Benjamin’s Experience and Poverty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 Daniel R. Esparza The Dreyfus Affair and the Rise of Political Religion in France . . . . . . . 281 Anna Budzanowska and Tomasz Pietrzykowski

Contributors

Giorgio Baruchello Faculty of Humanities and Social Sciences, University of Akureyri, Akureyri, Iceland Anna Budzanowska University of Silesia, Katowice, Poland Dawid Bunikowski State University of Applied Sciences in Wloclawek, Wloclawek, Poland; University of the Arctic Thematic Network on Arctic Law, Rovaniemi, Finland; Centre for Law and Religion, Cardiff School of Law and Politics, Cardiff University, Cardiff, UK; Ronin Institute for Independent Scholarship, Montclair, NJ, USA; IGDORE—Institute for Globally Distributed Open Research and Education, Stockholm, Sweden; School of Theology, Philosophical Faculty, University of Eastern Finland, Joensuu, Finland Zachary R. Calo Hamad Bin Khalifa University, Doha, Qatar; Notre Dame Law School, Sydney, Australia; The Open University, Milton Keynes, UK; Research Scholar in Law and Religion, Valparaiso University, Valparaiso, USA Gerson Leite de Moraes Center for Education, Philosophy and Theology, Mackenzie Presbyterian University, São Paulo, Brazil Daniel R. Esparza Department of Religion, Columbia University, New York, USA Jessica Giles SFHEA, Barrister, The Open University, Milton Keynes, UK Diana Ginn Schulich School of Law, Dalhousie University, Halifax, NS, Canada Edward R. Lewis Schulich School of Law, Dalhousie University, Halifax, NS, Canada

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Daniel Francisco Nagao Menezes Faculty of Law, Mackenzie Presbyterian University, São Paulo, Brazil Reut Yael Paz Public Law, International and European Law, Faculty of Law, Justus-Liebig-Universität Gießen, Giessen, Germany Tomasz Pietrzykowski University of Silesia, Katowice, Poland Alberto Puppo School of Law, ITAM, Mexico City, Mexico Joanna K. Rozpedowski School of Government and International Affairs, Durham University, Durham, UK Recep Şentürk Ibn Haldun University, Istanbul, Turkey Bernard Wills Chair of Humanities, Grenfell Campus, Memorial University, Corner Brook, Canada

Introduction: Philosophical, Legal and Political Significance of a Critical Assessment of God, Ethics and Religions Dawid Bunikowski and Alberto Puppo

Abstract The moral discourse characterising the ethics of human rights is not enough, and – what is more important and the source of a real worry – it has demonstrated its incapacity of motivating human conduct. This invites us to a humble and serious multidisciplinary enterprise. The starting point of this book is to take such a shared feeling seriously. Is something religious? Is something grounded in God? Is it a sort of necessary element of our past and contemporary legal systems in order to achieve international peace? This book is an attempt to construct a form of interdisciplinary research in which the international legal scholar, the moral philosopher, the philosopher of religion, the theologian, and the political scientist can contribute to the construction of the necessary bridges; such bridges are necessary to understand the complex connection between religions and peace. Many scholars can protest against such a statement as “peace through religion”. Their argument would probably be: religions have been and are the main cause of most wars. Such a reaction is precisely one of the reasons of this book. The disagreement with such scholars is not about the existence, as a social fact, of many domestic and international conflicts, today and in the past, in which the name of God is invoked by the belligerents. But have they the semantic monopoly about the use of the term “God”? Are they the more authoritative interpreters? What is really dangerous in religions? Is it God or people having misunderstood their task as commanded by (their) God? If it was necessary D. Bunikowski (B) State University of Applied Sciences in Wloclawek, Wloclawek, Poland e-mail: [email protected] University of the Arctic Thematic Network on Arctic Law, Rovaniemi, Finland Centre for Law and Religion, Cardiff School of Law and Politics, Cardiff University, Cardiff, UK Ronin Institute for Independent Scholarship, Montclair, NJ, USA IGDORE—Institute for Globally Distributed Open Research and Education, Stockholm, Sweden School of Theology, Philosophical Faculty, University of Eastern Finland, Joensuu, Finland A. Puppo School of Law, ITAM, Mexico City, Mexico e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_1

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to apply some label to our project, it would probably be “sacred legal philosophy”; to this end, a provocative title for the book could have been “Taking God Seriously”.

God, religion, law, ethics, and peace: legal philosophy is probably the best placed academic discipline to address the question of the complex relationship between such fundamental moments of our cultures; it is not because legal philosophy has some intrinsic advantage over other disciplines; its humble advantage is probably exemplified by the present book: it can only be envisaged from a legal-philosophical point of view. This is because this book is an attempt to construct a form of interdisciplinary research in which the international legal scholar, the moral philosopher, the philosopher of religion, the theologian, and the political scientist can contribute to the construction of the necessary bridges, but above all, can contribute to shed some fresh light on existing theoretical and normative constructions. It is necessary to clearly highlight that the book is not about the construction of a political theology or a secular religion; if it was necessary to apply some label to our project, it would probably be “sacred legal philosophy”; to this end, a provocative title for the book could have been “Taking God Seriously”. The essence here is that in order to explain the legal phenomena, the concept of God could be considered as a fundamental conceptual tool. It is not just that, as it is very common, God is a legitimate moral source when the evaluation of the normative content of a given positive law is at stake; in our opinion, the relevance of God is not only normative but above all conceptual. As Thornton Wilder, a well known American writer, writes in his famous novel The Bridge of San Luis Rey (1927), “[t]here is a land of the living and a land of the dead and the bridge is love, the only survival, the only meaning”.1 Without leaving the land of the living, our book is to build bridges in order to understand others and to know and evaluate their convictions as well as their theories. It is to understand and create synergies between disciplines to bring about a collaborative advantage, something greater than the individual parts.

1 It

means that some people have to die (like in catastrophes such as the collapse of an Inca rope bridge in Peru) but others have to live, and no one knows why some have had to die and others are still alive. Nor sins neither ways of life matter here: no one knows why it is as it is (i.e. why some of us die in accidents), maybe only God knows it. In Wilder’s fictional story, there is a friar who witnesses the bridge accident. What the friar does is simple: he goes about inquiring into the lives of the victims, analyses their lives and sins and seeks cosmic answers to the question of why each of the victims had to die. The friar writes a book/long diary about the victims and their moral lives. But surprisingly, it appears that there is no logic in those deaths. Deaths and accidents are not about sins. Both good and bad (and, both young/old and poor/rich) people die, also suddenly while in accidents. So if there is not some sort of cosmic (or rational/logical) answer to the question of a (sudden) death, then what remains and where the truth is? Wilder claims that all what remains after us and our lives is love, not memory or memories. Memories disappear (because people forget people), but love lasts forever. Love remains in our good actions towards others. Love is the most important value. This is a very philosophical and, paradoxically, cosmic or mystical attitude.

Introduction: Philosophical, Legal and Political Significance …

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1 A Legal-Philosophical Construction: Beyond Love and Naïve Cosmopolitanism Our legal-philosophical construction is built on fertile ground nourished by at least three different kinds of philosophical insights: the reflection developed in the field of love and law, the introduction into the traditional legal-philosophical discourse of the concepts of God and religion, and the critical and historical reflection developed by international legal theorists.

1.1 Love and Law: God’s Command to Love the Other If—as lyrically suggested by Wilder—love is a key piece in the construction of bridges, it is perfectly understandable why in recent years three important books have been published on the topic of love and law.2 Certainly, moving from inside the well consolidated field of law and religion, these three books put at the center of the legal analysis—practical as well as theoretical—the concept of love: “is there a place for love in the establishment and application of law? (…) Is there any role at all for love in law? And, if so, what is that role?”.3 That probably is the main question addressed. Of course, the word ‘love’ is extremely ambiguous and for that reason one of these books is explicitly dedicated to the concept of agape that, “[i]n contrast to the other forms of love, (…) is ‘other-regarding care,’ ‘unclaiming love,’ and ‘universal benevolence’”.4 One feature of agapic love is extremely relevant when love is assessed from a legal perspective: “Divine Gift-love in the man enables him to love what is not naturally lovable; lepers, criminals, enemies, morons, the sulky, the superior and the sneering. Finally, by a high paradox, God enables men to have a Gift-love towards Himself”.5 This is interesting, from a legal-philosophical perspective, for several reasons; first, because this kind of love is not natural; it is the object of a command to love, and not something natural. It is not a natural love and, because of this, one could suggest that the traditional theory of natural law would not be able to find a place for this kind of love. Agape and positive law seem then to share their subordination to an

2 See

the following edited books: Cochran and Calo (2017a); Babie and Savi´c (2018a); and the more recent monograph by Neoh (2019). This is not to say that before these books the topic was not important, but no doubt that its importance has been consecrated by them. 3 Babie and Savi´ c (2018b), p. 6. 4 Cochran and Calo (2017b), p. 3, footnotes omitted. The concept itself of agapic love is also ambiguous as brilliantly reconstructed by Wolterstorff (2017), pp. 103 ff., where he distinguishes several types of agapism. 5 Lewis (2010), p. 128, partially quoted by Cochran and Calo (2017b), p. 3.

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act of will.6 Natural law, in contrast, if based on love, could only take into account the natural expression of love: natural because it is produced by human sensibility, or natural because it is constituted and discovered by human reason. Agapic love is typically a commanded love, and this command seems to establish a strong unity between monotheisms.7 As perfectly recalled by Cochran, “Jesus’ teaching about agape was built on a foundation laid in the Hebrew Scriptures. He summarized the Mosaic Law as love of God and neighbor, quoting provisions of the Mosaic Law”.8 Secondly, it is not only a command but also a form of enabling to love; paradoxically, the command to love the Other also means the authorization to give to himself the Gift-love. Such a paradox is not new for legal theorists given that, when approaching the ultimate foundation of a legal system, of its Constitution, many authors, including Kelsen9 and Hart,10 seem to invoke a fundamental norm11 having a double dimension: it authorizes some first legal authority but at the same time it addresses a command to the legal supreme authority itself. In Kelsen’s case such a paradox or, at least, ambiguity on the ultimate foundation of law generated a very long and endless debate.12 Our opinion is that such kind of debate on ultimate foundations could learn a lot from a genuine and potentially secular reflection on the sources of the first command as God’s command to love your neighbor as yourself13 ; a command that, in the case of the Old Testament, can also be interpreted as a norm enabling a people as the first historical international normative subject, on the one hand, and as the first international liable subject on the other hand. This is not to forget that the addressee of God’s command was a given historical people; but the command to love does create a duty with respect to everyone and not only with community members. In this sense, the chosen people is chosen as universally liable.14 6 It

is to note that some Christian’s understanding of the working of the Holy Spirit would disagree with our characterization of agape. We thank Jessica Giles for pointing out this possible source of disagreement. 7 See Peters (2005). 8 Cochran (2017), p. 13. 9 See, at least, Kelsen (1960). 10 See Hart (1994). 11 Paulus (2009), p. 74, clearly summarizes the function of a Constitution and the classical explanation of its authority: “In a formal understanding of the term, a constitution is the document or even point from which all other authority is derived; it is the center of a hierarchical system in which the lower rules derive their authority from higher ones, to the point where the constitution itself rests on an ultimate ‘rule of recognition’ (Hart) or Grundnorm (Kelsen) that can be derived only from extralegal sources of legitimacy, either religious (God) or civic (the pouvoir constituant or people power or constitutional moment)” (footnotes omitted). 12 See at least Paulson (2012), where he discusses Raz’s thesis on Kelsen and suggests that the “enabling” dimension is stronger than the “commanding” dimension. Our intuition is that the point is not to choose between these two dimensions, but to understand the way in which commanding and enabling can be unified as far as they are conceived under the light of the God’s first command to men. 13 See for instance Leviticus 19: 17–18. 14 For this interpretation, see Cohen (1919).

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More broadly, a more basic fact on love and law is taken for granted: “the revival of religion as a source of meaning and values for many people”; specifically, the influence of religious love seems to be at work to the extent that “every major religion offers its own approach to encountering the Other in a positive, constructive, affirming way”.15 This is particularly relevant today, because the Other is often conceived as a source of fear, that is, in an opposite way; in the battle between love and fear, fear seems to have gained the upper hand, and the politics of a large majority of States, affected by the problem of refugees or migrants, is clearly the legal-positive proof of that.16 The question of the Other is not only a topic inscribed in the discourses on love, law, and religion, but also a fundamental piece of contemporary moral philosophy, as the well-known second-personal ethics proposed by Stephen Darwall demonstrates.17 Nevertheless, such a moral philosophy, even if mainly centered on the notion of respect, seems to ignore any religious dimension; it also gives relatively low importance to the religious-moral philosophy of the Other as, for instance, the philosophy proposed by Emmanuel Lévinas.18 Love and religion scholars would say, probably with reason, that such absence is due to the excessive focus on the autonomy of the Self instead of the love for the Other: too much Kant and not enough Jesus! However, the recent academic panorama has not been exclusively enriched by the above-mentioned books, flowing from the general field of law and religion.

1.2 Dworkin and Kelsen on Religious Atheism and Secular Religions In some way surprisingly, two well recognized authors in the field of legal philosophy—Kelsen and Dworkin,19 probably, the most influent legal philosophers of the 20th century—showed their concern about the relation between morality and religion on the one side, and between political theories considered as political theologies and religion on the other. In fact, their last and valedictory books—respectively Secular Religion, withdrawn by the author from printing in 1964 and published posthumously in 2012,20 and Religion without God, published in 201321 —placed God and

15 Babie

and Savi´c (2018b), pp. 4–5. a radical and critical postures claiming an authentic cosmopolitan politics on migrants, see Caraus and Paris (2018). 17 See, at least, Darwall (2013a, 2013b). 18 Barber (2008) insists on the difference between Darwall’s and Lévinas’ conceptions. 19 See Kelsen (2011) and Dworkin (2013). Another proof of that is Jeremy Waldron—one of the more influential contemporary legal philosophers—who dedicated three lectures to A Religious View of the Foundations of International Law. See Waldron (2011). 20 Kelsen (2011). 21 Dworkin (2013). 16 For

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religion around a table in which such topics were not usually invited. Both philosophers—the first, the symbol of legal positivism and, the second, the symbol of legal anti-positivism—shared a non-naturalist approach to law and, in the case of Dworkin, to ethics, so that they are not natural law scholars. In the same vein, the title of Waldron’s last lecture dedicated to international law and religion does insist on the fact that natural law is not enough.22 Why are these publications relevant? The main reason is that the topic of religion has traditionally been absent from the theoretical debates dominating the legalphilosophical discourse.23 In fact, one of the fundamental points of disagreement between positivistic and non-positivistic legal theories was the connection between law and morals. The silent “secular” agreement was that religion has nothing to say in order to elaborate a better explanation of legal phenomena. As recalled by Berman, [l]egally, religion has become the private affair of individuals; it has largely dropped out of legal discourse. And today it is not evident what new fundamental beliefs have replaced orthodox religious beliefs as a foundation on which our legal institutions rest. Consequently, our legal discourse, our network of legal values, lacks the power and vitality that it once had.24

From different perspectives, with different aims, both Dworkin and Kelsen contributed by pointing out the necessity, even beyond the field of law and religion, of an extension of the theoretical reflection on law. Kelsen addressed the following question: is the expression ‘secular religion’ meaningful? Is a religion without God conceivable? Or, is “religious atheism”—an expression used by Stanley Fish25 while reviewing Dworkin’s book—possible? Kelsen opposed any trends or tendencies towards a “new” de-secularization or theologization (of law and/or the state) as equating to the danger of totalitarianism and of rejection of the separation of state and religion; Dworkin, instead of this, opposed any trends towards seeing God (“a Sistine God”) as a personal spiritual being. Although he appreciated the “religious attitude” to life, he definitely rejected religious institutions and the conceptual necessity of God. What is really interesting is that in no way can Dworkin and Kelsen be considered as scholars belonging to the field of law and religion. The main intuition of the present book, as previously explained, is that there is a bridge under construction: the bridge potentially connecting the theoretical work characteristic of the law and religion field with the theoretical work traditionally developed by analytical, and especially positivistic, legal philosophy. What is clearly common is the reference to positive law as the object of such discourses. On the one side law and religion scholars focus on the way in which religion contributed, historically, to the fashioning 22 Waldron

(2011). their Introduction, Cochran and Calo (2017b), p. 1, recall that the majority of modern and contemporary legal theories “have also divorced law from the deeper sources of moral meaning that informed legal thought in the past”. 24 Berman (2003), p. x. 25 Fish (2013). 23 In

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of positive law,26 as well as on the way positive law regulated and regulates religious matters. The more recent reflections on law and love do probably assume a stronger normative perspective, to the extent that they suggest that agapic love should exert a real influence on positive law in order to attend some very critical problem of contemporary societies. On the other side a refreshed legal philosophy—that gives its place to the religious dimension—should try to rethink the very fundamental concepts assumed by legal theorists, such as the concepts of norm, legal subject or legal system, as potentially determined by religious concepts, the first of them is clearly the concept of God. To such extent, legal philosophy is not really interested in how religion can be regulated by law or in how religious contents are incorporated by positive law; its interest could rather be on the potential religious dimension of the foundation of law and legal language.27 The third field, clearly drawing a sort of permeable border between legal philosophy and law and religion discourses, is the theory and science of international law.28

1.3 The Questioned Secular Nature of International Law International law, at least from a Kantian or Kelsenian perspective, is conceived as a cosmopolitan order, so that its understanding is, historically, linked to the universalist religions, and, conceptually, to the concepts of legal monism and humanity. It is a fact that the founding fathers of the international legal science were Spanish jesuits, such as de Vitoria or Suarez, trying to provide a legal justification of the conquest of America by the Spaniards, essentially grounded on the idea of natural universal rights29 ; it is also a matter of fact that the German legal science, first inspired by Lutheranism and then globalised by Kant, was the theoretical ground on which the 26 In this sense, the following is an obvious and shared statement: “the legal systems of many (…) societies emerged from religious sources”. See Babie and Savi´c (2018b), p. 5. 27 On this aspect, see Waldron (2011). 28 For an example of the mainstream global constitutionalist conceptions, see Runoff and Trachtman (2009); for a critical and historical perspective, focusing on the religious dimension, see Koskenniemi et al. (2017). See also Reed (2013). 29 On the founders of international law, see, at least, Gomez Robledo (1989) and the very recent Keys (2017) reconstructing the theoretical contribution of the Salamanca School on the basis of the Augustinian City of God. According to Koskenniemi (2017), p. 8: “The link between the politics of human rights and Christian moral theology are obvious but insufficiently studied”. By the way, there is the opposite opinion about the founders of modern international law and their justification of the colonisation process in America. This was expressed by Shaw (2008), pp. 22–23, according to whom, both Suarez and de Vitoria were “progressive”: they perceived American indigenous peoples as “nations” and thought that there shall have been a “just cause” to make a war against these people. Our intuition is that these Spanish thinkers were not so progressive, in fact. However, there were brave people like the Dominican theologian and lawyer Bartolomé de Las Casas, who defended the colonised aboriginals.

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contemporary international legal institutions have been conceived and progressively implemented. Both facts suggest that the separation between the religious or sacred dimension and the secular one has to be questioned, at least, when the nature of international law is at stake. As said, our aim is to demonstrate that such reflection can only be interdisciplinary, to the extent that the legal international scholar, the legal philosopher and the law and religion scholars need to share their theoretical tools and approaches in order to provide a better and comprehensive understanding of the complexity of law, and specifically, of international law. For that reason we cannot accept, at least not without a serious assessment, a central presupposition of (secular) international constitutionalism, according to which, on the one hand, “public authority cannot be derived from a god” and, on the other, “the normative point of this holistic foundational construction of public authority is its reference to the idea of free and equal persons”.30 Such a naïve idea of free and equal persons is implicitly questioned by one of the main purposes of the works included in Paul Babie and Vanja-Ivan Savi´c’s edited book, that is, to “explore the rules which particular religions have adopted about how to treat and interact with non-members of their faiths”.31 Such interest is fundamental because it is grounded on the idea, opposed to the mainstream universalist ideas, that the concept of “non-member” is crucial. If, according to the Universal Declaration of Human Rights, we are all members of the same family, humanity, then it is impossible to take seriously into account the problem of “non-membership”. The question is not, abstractly, to state that there is just one community—global, religious or whatever— but, concretely, to accept that there are borders, differences, conflicts (like rich people oppressing suffering poor people), and, at the same time, to question them in order to constructively and—from a messianic perspective: optimistically—rethink them. Taking as a starting point the concept of love, the biblical agape, is a really provocative and refreshing way to think differently. International law, shaped as it is on the naïve conception memorialised in the UN Declaration of Human Rights words,32 has demonstrated its incapacity to stop the states’ policies based on fear. The reason of that is not that States are bad, or that, euphemistically speaking, they do not really comply with international obligations; the reason—as sharply captured by Berman’s sentence quoted above—is that “our legal discourse, our network of legal values, lacks the power and vitality that it once had”.

30 Kumm

(2009), p. 322. Such conclusion is not surprising when connected with the following premise: “the reason why neither Christian theology nor the idea of a sovereign nation should be the cornerstone of constitutional practice is that these tend to lead to pathologies that ultimately undermine both the values people care most about and the integrity of a constitutional practice that takes as basic the idea of free and equals governing themselves” (p. 314, emphasis added). 31 Babie and Savi´ c (2018b), p. 6. 32 This naive conception is clearly at work even in one of the finest and most critical versions of global constitutionalism; see, for example, Kumm (2009), p. 314.

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Nevertheless, despite the sharing of the inner project, it is plausible to remain skeptical about the real possibility that the “secular state law can encourage and support the achievement of a standard of ‘good mutual living’ for all”.33

2 From the Myth of Secular Ethics to the Conceptual Necessity of God Is a secular state really “secular”?34 If the secular state is not really secular, it seems plausible to think that its way of encouraging the standard of ‘good mutual living’ could not be neutral at all. Not only the secularism of a secular state can be questioned; also, the same concept of State can be put under theoretical scrutiny. Before analysing how a secular state can promote “loving standards”, it is therefore necessary to investigate both the notion of secularism and the notion of State. Both concepts have a long history and certainly have shared their last portion: the contemporary western constitutional State has been erected on the ground of a clear separation between secular and religious spheres on the one hand, and have established a strong protection of the freedom of religion on the other. The Christian evolution toward accepting the primacy of conscience over doctrine began with the Reformation, which in the name of conscience rejected important aspects of what had been until then traditional beliefs (…) received another powerful impetus from the Enlightenment, which granted reason absolute priority over belief, and found its political fulfillment in the American and French Revolutions’ creation of a secular state where religion was a private and, from the state’s perspective, decidedly secondary concern.35

Nonetheless, secularisation has been qualified as a Christian myth36 ; to the extent that “[while] religion certainly included what we would call interior states, like fear of God’s justice or trust in his mercy, it was more often judged in terms of practice, more specifically, of ritual practice or worship”,37 it is understandable that the first secular effort was directed against its ceremonial aspect. Yelle’s strong thesis—secularism as a Christian myth—is based on a very intriguing analogy, according to which “[t]he Christian identification of certain Jewish laws as ‘ceremonial’ anticipated the modern distinction between the ‘secular’ and the ‘religious’”.38 Such a premise makes perfectly intelligible the following reading: [s]ecularism (…) reflected a two-pronged strategy. “Religion” was redefined as spiritual (“revelation and redemption”) as opposed to the “old law” of Jewish ritual. Simultaneously, “law” itself was redefined as secular and positive—as a disenchanted, bureaucratic technology that excluded “mysticism” or Jewish mystery. These newly redefined concepts of 33 Babie

and Savi´c (2018b), p. 6. a problematisation of the concept of ‘secular’, see Sullivan et al. (2011). 35 Peters (2005), pp. 307–308. 36 Yelle (2011). 37 Peters (2005), p. 4. 38 Yelle (2011), p. 28. 34 For

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D. Bunikowski and A. Puppo “religion” and “law” were compatible with each other, as the one was spiritual, the other concrete and positive. They formed a new spiritual economy that was incompatible with the old one based on ritual.39

Using a similar approach, it is also possible to qualify the traditional conception of the modern secular State as a myth. Before analysing the relation between law, love and religion, it is probably useful to come back to the relation between law and State, with a particular focus on international law, and to investigate how secularism is also linked to religious traditions different from Christianism.40 In plain words: if Christianity played a very central role in fashioning our modern fundamental concepts of secularism as well as of State, this fact should not hide how other religious traditions contributed to their genesis and, in the contemporary debates, how they can help to develop constructive criticism. This enterprise is not new as is demonstrated by the monumental work by Harold Berman.41 Among the several suggestive insights, one has to be briefly recalled. Religion has influenced not only the evolution of positive law and social institutions, but it has also contributed to the constitution of legal science, that is, to the methods used to describe and reconstruct positive laws. One of the more influential conceptions of legal science, proposed by Hans Kelsen, and grounded on the neo-Kantian transcendental method as refined by Hermann Cohen,42 seems to lead to a double genetic link. Judaism as well as Protestantism seem to have conjointly contributed to the evolution of the German legal science; Berman exhaustively reconstructs how Lutheranism played an important role in the establishment of a new legal method, based on what is now a mainstream concept of a legal system: Lutheran legal philosophy is congenial to—and in fact in sixteenth-century Germany led to— a new legal science consisting of the massive classification and systematization of the rules of public and private law, coupled with a flexibility in their application based on conscience and called equity.43

Cohen clearly suggested that Protestantism and Judaism, idealistically integrated, or even assimilated, in the context of German idealism, can be conceived as a harmonic path in order to think of humanity as an ethical and legal concept. Cohen insists that “authentic Judaism is rationalist Judaism, a Judaism free of any mystical or superstitious commitments”; on the other hand, “Germanism is cosmopolitan, the

39 Yelle

(2011), p. 34. the role of Islam, see, in this book, Calo’s chapter. 41 Berman (2003). 42 On the transcendental method that apparently Kelsen borrowed from Cohen, see Paulson (1992). 43 Berman (2003), p. 99. It is interesting to note that, in contrast with the extreme formalist trend having characterized the continental legal science until, at least, the anti-formalist reaction of the second half of the 19th century, the formal systematisation characterizing the method described by Berman is coupled with the flexibility of the application of law, typical of the realistic jurisprudence. Legal systematisation was developed, for instance, by important natural legal scholars and political theorists as the Calvinist Johann Althusius (see pp. 125–126). More broadly, on the philosophical and theological aspect of Althusius’ conception, see, in this book, Moraes and Menezes’ chapter. 40 On

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language and culture of the highest human ideals, of the culture of Kant, Goethe, and Beethoven”.44 Thus, it is necessary to add that: For Cohen, what is of central significance about the Reformation is that it had nothing to do with race or ethnicity but rather was purely concerned with the universality and purity of thought and culture. (…) Germany can become—or, for Cohen, is—the spiritual homeland for Jews all around the world. (…) Protestants, given their attachment to the Old Testament, must also recognize—at least if they are to have intellectual integrity—their spiritual kinship to the Jews.45

Related to this, more recently, Reut Paz demonstrated that German international legal science, having played a stronger part in the construction of contemporary international law and institutions, was fundamentally animated by Jewish legal thinkers.46 From Luther—and the method of continental legal science—to contemporary international legal theory, passing through the Cohennian religion of reason, it seems to us that a religion incompatible with a secular and scientific approach to positive law is only its superstitious and mystical component and not its inner and divine rationality. From another perspective, the legal knowledge itself seems to have been rooted in a religious path or, at least, it seems to have been nourished by the reflection on the normative meaning of the sacred text. Even if, according to Kelsen, it is meaningless to imagine a secular religion, it was—and it is—perfectly meaningful to develop a modest secular, that is, neither mystical nor dogmatically ritual, reading of the texts formulating the (assumed) will of God: the sacred texts. In other words: a too strong secular claim cannot be really secular, precisely because of the risk of becoming a dogma; instead of this, a critical approach to the concept of God and a critical reading of the sacred texts, starting with the one common to all the monotheist traditions, can paradoxically be a fruitful ground in order to rethink the place of religion in our apparently secular legal cultures. Such a fruitful starting point could be, paraphrasing the title of Alasdair McIntyre’s famous book—Whose Justice? Which Rationality?,47 —to focus on the following questions: Whose God? Which religion? And, above all: which relation does exist between God and religion? The purpose of the present book is obviously not to provide some answers to such disturbing questions but to make these questions clearer and to provide the necessary tools in order to avoid any prejudice or misunderstanding. Misunderstandings seem to have been a central feature of the legal-philosophical contributions, mentioned above. In his above-mentioned book, Dworkin starts by announcing that the “theme of [his] book is that religion is deeper than God”.48 Such a statement is problematic to the extent that its meaning clearly depends on how God and religion are conceived. Accepting that in these very complicated matters there is neither an obvious nor a 44 Erlewine

(2016), p. 18. (2016), pp. 21–22. 46 See Paz (2012). 47 MacIntyre (1988). 48 Dworkin (2013), p. 1. 45 Erlewine

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right answer, the need of clarifying how legal philosophy can introduce the concepts of God and/or religion seems to us to be of the first importance. The evidence of how relative the answer transpires is provided by Hans Kelsen, who seems to have thought in an opposite way: a religion without God would be meaningless. But Kelsen was not so sure of how he conceived the concept of religion, and such a doubt probably justified his decision not to publish his book (at least during his life).49 Dworkin’s approach to the idea of God seems unproblematically constructed on the existence of a belief in God, and his main point is that, even if we accept that the most important role played by God is to fill “the world with value and purpose”, he thinks that “the conviction that a god underwrites value, however (…) presupposes a prior commitment to the independent reality of that value. That commitment is available to nonbelievers as well”.50 This last statement makes values autonomous with respect to the belief in God; to agree or disagree with it does depend on the meaning attributed to the belief in God. Is this a matter of faith? Is faith a matter of rational or irrational hope? Or: is the belief in God the belief in the existence of God as we can have beliefs on the empirical existence of whatever thing? Western philosophy has deeply questioned the concepts of belief and existence; philosophers of religion as well as theologians have particularly questioned if and how these concepts can be used with respect to God. Dworkin’s aim is to question the great divide between an atheist and a theist; his point is that, in moral matters, they can share a lot, even if they do not share belief in God: “they feel an inescapable responsibility to live their lives well, with due respect for the lives of others”.51 In this respect, Dworkin provides some interesting analysis of Spinoza,52 a philosopher often cited by Einstein, who was considered by Dworkin as (paradigmatically) being both deeply religious and an atheist.53 The example of Einstein, one of the greatest scientists of the Western world, is very illustrative of a culture in which God and religion have been exposed to the hard criticism of the Enlightenment and, then, nihilism. Even if it is beyond the scope of this introduction to develop a deep analysis of Spinoza’s atheism, it will be useful to sketch out some philosophical difficulties—incorporated in Dworkin’s analysis—as the evidence of the need of a conceptual refinement. The need of this short digression allows us to introduce the thought of the Ostjude Salomon Maimon, a radical secularist, considered, in Berlin during the last decades of the 18th century, as the dark twin of the very respected Moses Mendelssohn.54 His reconstruction of Spinoza allows us to shed some light on the classic statement, affirmed or denied, about “the belief in the existence of God”. 49 See

Métall (1969), p. 91. (2013), p. 1. 51 Dworkin (2013), p. 2. 52 Dworkin (2013), pp. 38–44. 53 Dworkin (2013), p. 3. Dworkin points out how “Einstein often cited Spinoza as a predecessor: he said that Spinoza’s god was his god as well” (p. 40). 54 Biale (2011), p. 30. 50 Dworkin

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Maimon noted, in contrast with the mainstream pantheistic interpretation of Spinoza, also adopted by Dworkin, that “far from reducing God to the world, Spinoza’s God actually swallowed up the world. In other words, Spinoza was not an atheist, since he did not deny the existence of God but the existence of the world”.55 Such a conclusion is grounded on what Maimon thought about the above-mentioned statement: the statement “God exists” is no more meaningful than the statement “God does not exist”. In this world, we mean by existence something that could or will go out of existence. Such a meaning cannot be applied to God; it is a category mistake (…) The existence of God is beyond rational proof since the very concept of existence cannot be predicated of God. Since both belief and disbelief in God’s existence are self-contradictory, the philosopher cannot be an atheist.

This reference to Maimon is also interesting because he can be considered as the precursor, with respect to the concept of God, of Cohen’s idealism56 ; according to Maimon, “[f]rom God’s vantage point, there is no matter, only ideas. Thus, when we see something that seems to contradict the laws of nature, we are responding to our limited view of the world”.57 It is important to recall here the more salient feature of agapic love, its being not natural; when someone does not understand how it is possible to love what is (naturally) unlovable, we probably face the same limited view of the world.

3 God as Historical and Interpretive Moral Concept The first obviousness resulting from the previous analysis is that in any historical and philosophical moment people arguing for or against religion and God have some actual experience and understanding of what religion and God are and should be.58 To think about religion or God in the 13th or the 20th century is not the same; thoughts about God and religions in the context of a theocracy or of a secular state are not the same. Human images (of God) and ways of thinking (of God) change. Thus, the God of Abelard is not the same as the one of Al-Farabi but, maybe, also of John Paul II. Time and place matter. Such an actual experience is both individual and social (or political): the public— political as well as academic—space can be occupied by religions or not, and/or dominated by a given religion or not. Depending on this first fact, individual religious experiences can acquire a strong autonomy with regard to the dominant religious culture, and so on. But, independently of which combination of individual and public 55 Biale

(2011), p. 32. (2011), p. 33. On Cohen, see infra and Puppo’s chapter. 57 Biale (2011), p. 34. 58 In this sense, we agree with Dworkin (2013), p. 7, on the interpretive nature of the concept of religion: “‘religion’ is an interpretive concept. That is, people who use the concept do not agree about precisely what it means: when they use it, they are taking a stand about what it should mean”. 56 Biale

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religious experience occurs, the general historical context largely determines the concepts at work. As suggested by Hermann Cohen,59 the concept itself of a unique God, the master piece of any monotheism, was produced in a given historical context, i.e. during the division of the people of Israel among several tribes.60 In order to preserve the unity of the people, the invention of the notion of a unique God was conceived as a guarantee of such unity. On the opposite hand, if we take Nietzsche’s famous statement “God is dead”, a suggestive reading can interpret this statement as referring to the death of some (conception of) God, probably, the Christian one; probably, the Christian God venerated, with or without reason, by some typical bourgeoisie or old aristocracy.61 Taking another example: when Gershom Scholem—in his lecture on Nihilism as a religious phenomenon62 —reconstructs the history of nihilism as a religious phenomenon, it is relatively common to find the confrontation between a true God and a false God. So even nihilism can be interpreted not as a movement against God but against some conception of God. Given such a background, the questioning of the relation between religion and, respectively, jurisprudence, God, and peace, does invite to the following methodological suggestion: in order to elucidate a possible role religion can play in the contemporary world, it can be useful to analyse religion by associating it with other concepts such as peace and jurisprudence. Why peace? Because peace can possibly be considered as the most valuable promise of religions63 and, certainly, the biggest worry in the contemporary world 59 Cohen

(1919), ch. 1. does not matter here whether other historical reconstructions are possible; nevertheless, one of them has to be mentioned. According to Freud (1939), the unique God was an Egyptian invention and Moses, who was also an Egyptian, after the disappearance of (his) monotheist Pharaoh, guaranteed the survival of monotheism by the election of the Israelite tribes living in Egypt with whom he engaged in the Exodus. Freud also explains that the God of monotheism was in fact two different Gods, the Egyptian Elohim and Yahveh, originally a local god of the Sinai peninsula. The unification resulted, not without some narrative incoherencies, from the sacred texts, that is, through a literary and a posteriori intervention. This explanation completely corresponds to what is usually registered by the interpreters of the Old Testament. See, for instance, Peters (2005), p. 12, who recognizes how, even if in some occasions “God is called Yahweh Elohim, perhaps ‘the divine Yahweh,’ (…) the two names often appear apart as individual names of God, with Yahweh usually translated into English as ‘Lord’ and the plural Elohim as ‘God.’”. 61 See Schrag (2002), pp. 46–47. 62 Scholem (1974). 63 Someone could contest this statement, saying that some religions (like Islam) seek to become a dominant hegemony. By the way, also Jesus, the founding father of Christianity, was not—as he said—to bring peace to the world (see Matthew 10:34–35: “Do not think that I have come to bring peace to the earth; I have not come to bring peace, but a sword. For I have come to set a man against his father, and a daughter against her mother, and a daughter-in-law against her mother-in-law; and one’s foes will be members of one’s own household. Whoever loves father or mother more than me is not worthy of me; and whoever loves son or daughter more than me is not worthy of me”). Jesus demanded a radical change of life: deep spirituality, religious modesty, authentic faith and high moral standards stood against materialism, egoism, ritual hypocrisy and human pleasure. On 60 It

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(e.g. because of some religiously motivated terror or violence, especially or recently in the Islamic world; vide: the Islamic State and, previously, Al-Qaida). Why jurisprudence? Because, as expressed in the title of Kelsen’s famous book, Peace through Law,64 peace is usually understood as something achievable by international legal instruments. But what if we replace Peace through law by Peace through religion? Does law as an instrument for achieving peace incorporate some religious dimension? Is law, ultimately, a religious and normative construction oriented to peace, to the protection of humanity, in order to keep the human out of the violence of nature? Is the hope for peace rational, or just a question of faith? Is religion itself a question of faith or a rational choice? Is the relatively recent legal concept of “responsibility to protect” a secular expression of the oldest duty of men? Peace through religion is an intriguingly interesting concept. First, is any law, or legal theory, inspired by the religious backgrounds of legal scholars or philosophers involved in building international law and organisations as well as domestic peaceful societies? Secondly, is peace possible to be made through religion? Or is religion about any exclusivity of Truth and therefore necessarily connected with violence and war? As a stronger statement, one can claim that there is no peace without (some) religious thinking. This is to reverse the common sense view, according to which the cause of wars is often a religious conflict. It is the opposite, maybe. According to Lévinas,65 the Sein—including the Sein of States—calls for its preservation, and violence and war are the only possible scenarios. If religion is conceived as a duty with the Other, as the command to love the Other, the most important human duty is to retain dignity in the Other. Eventually, another statement is that a religious approach understood in purely normativist terms, and potentially without any anthropomorphic and dogmatic conception of God, would be the only way to change the “ontological” eternal fight for the accumulation of “more Sein”. Kelsen’s pacifism could be interpreted in this way, too. On the practical side, one can claim that the factor generating international conflicts, in causal terms, is more about the way how the States or other organised political/military/religious groups treat people (migrants, refugees, minorities etc.) than religious differences. Many scholars, acting in good faith, can protest against the statement “peace through religion”. Their argument would probably be: religions have been and are the main cause of most wars. Such a reaction is precisely one of the reasons of this book. The disagreement with such scholars is not about the existence, as a social the other hand, he brought spiritual peace (see John 14:27: “Peace I leave with you; my peace I give you. I do not give to you as the world gives. Do not let your hearts be troubled and do not be afraid”). In this narrative, we have to remember that Jesus’ concept of peace is different from the concept of worldly peace. Thus, Jessica Giles (2018) argues that, even if religions can be engaged as peacebuilding tools, this does not mean that religions promise peace. Nevertheless, we think that religions, at least the main and most important traditional religions, do promise peace. Religions bring love as a value, and peace is about the mutual respect and/or love demanded by religions. 64 Kelsen (1944). 65 This is a leitmotiv in Lévinas’ thinking, even if often implicit, from 1934 to 1984. See Lévinas (1934, 1935, and 1984).

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fact, of many domestic and international conflicts, today and in the past, in which the name of God is invoked by the belligerents. But have they the semantic monopoly about the use of the term “God”? Are they the more authoritative interpreters? What is really dangerous in religions? Is it God or people having misunderstood their task as commanded by (their) God? Hilary Putnam, in his book Jewish Philosophy as a Guide to Life, evokes the thought of Wittgenstein about religion and the Enlightenment. According to Wittgenstein, in Putnam’s words, “to consider religion as essentially “prescientific thinking”, as something that must be simply rejected as nonsense after “the Enlightenment”, is itself an example of a conceptual confusion [...], an example of being in the grip of a picture”. Putnam’s conclusion sheds a magnetic light on this book’s raison d’être: “It is not that Wittgenstein was against enlightenment (without the capital E); it would be more accurate to say that he attacked the antireligious aspect of the “Enlightenment with a capital E” in the name of enlightenment itself”.66 Thus, our project tries to doubly resist: the force of the “enlightened” anti-religious attitude on the one hand, and also the force of dogmatic religious attitudes on the other. How can such an ambitious task be achieved? First, by giving voice to different monotheistic traditions; secondly, and more importantly, by analysing religion under the several dimensions in which it determines our cultures: as a set of rituals, as a source of moral norms, as a universal project for peace, as a political discourse, etc. So how does this book start, continue and end? The book starts with philosophy and ends with politics, from the most abstract theoretical speculation to the most practical political events: this path is probably also the path taken by Hermann Cohen when he moved from ethics to religion. It is interesting to note that, in Cohen’s ethical reflection, religion and God were present from the beginning. But religions were essentially perceived as an obstacle for the construction of a critical ethics, and God was introduced as a mere methodological idea, necessary to guarantee, or constitute, the conceptual link between the Sein of the world and the Sollen of/for humanity.67 Cohen’s attitude is crystalline evidence of the difficulty posited by the relation between God and religions on the one hand, and by the relation between ethics and God on the other. More generally, Cohen is the perfect example of the difficulty to find a place, in a system of philosophy constructed on the basis of the Western rationalist culture, for God and religion, without losing the necessary critical approach. Cohen’s movement from ethics to religion was progressive: first, he found a place for the concept of religion in his system of philosophy, and finally, he demonstrated the possibility of a religion of reason as opposite to a religion of myths.68 Following Cohen, what is wrong with ethics? Or, more precisely, what was wrong with ethics as ethics was usually conceived by philosophers until the beginning of the 20th century, when Cohen wrote? The main characteristics of Kantian ethics, for

66 Putnam

(2008), p. 11. Cohen (1904), especially Chap. 9, “Die Idee Gottes”. 68 See, respectively, Cohen (1915, 1919). 67 See

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instance, is that the ethical subject is unencumbered; the equality Kantian or Cohennian ethics, as well as, for instance, Rawls’ theory of justice or the UN Universal Declaration of Human Rights,69 grants among humans has a cost: the ethical subject cannot perceive the individuality of others; no real empathy or compassion is possible, if all the human and moral subjects are conceived as equal. How to take into account the others’ poverty, the others’ sufferance? The Old Testament mentions the widow, the orphan, and the foreigner as paradigmatic vulnerable subjects, imposing duties on all the other people. Today we would speak, generically, of vulnerable groups; on the top of the list, we could place refugees; without surprise, refugees posit the most difficult question for political communities. The response a national legal system could provide to the social problems generated by armed conflicts all around the world is probably the most significant response, a real proxy of the conception of law dominating in a given political community. The shift from the universal ethic(s) to a universal religion, for example in Cohen, was precisely justified by ethics’ incapacity to provide a concrete motivation in order to respond to the call of suffering individuals. As brilliantly reconstructed by Sophie Nordmann, it is a sort of dilemma: “To see, in the other, a suffering being, does mean to go beyond ethics; but if I did not see, in the other, a suffering being, I would not act ethically to establish, or restore, the ideal equality of all the members of humanity: such is the paradox in which, in Cohen’s eyes, ethics is taken”.70 How to achieve, for instance, peace, if ethics cannot allow the experience of the extreme vulnerability of other people? In religions, exactly like in legal positive systems, concrete conduct is required, and the moral duty can be reinforced with the weight of punishment. To what extent do religions and legal positive systems share this motivational aspect, from an ethical perspective? Where does the border between religion and law have to be drawn? Is religion a matter of principle and the law a matter of rules? Is religion a set of norms for human souls, and the law a set of norms for human bodies? Any legal philosopher and/or theologian can answer these questions in several ways. In this introduction, it will be more than enough to put on the table a truism: both religions and legal systems are, even if not exclusively, cultural phenomena,71 and any intention to improve the capacity of a given social and political culture to efficaciously face the most pressing crises affecting the contemporary world— including the environmental and refugee crises (but not forgetting other problems like financial or economic crises, persecution of minorities, natural disasters, religiously motivated terrorism and other issues)—has to deal with both. The moral discourse characterising the ethics of human rights is not enough, and—what is more important 69 Rawls

(1971). (2017), p. 21. 71 Some Christian legal scholars can argue that it would be more appropriate to write that religions “have cultural manifestations”. Why? In this narrative, first, religions have an essential/fundamental and unchangeable core. Secondly, religions have an accompanying tradition which enables them to adapt over time according to the cultures in which they exist (see Giles 2018). According to this narrative, the ethical principles underlying political philosophy (or constitutional law) based on religion remain constant over time. As we can think, (moral) universalism and (epistemological/moral) objectivism might be involved in that way of thinking. 70 Nordmann

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and the source of a real worry—it has demonstrated its incapacity of motivating human conduct. This invites us to a humble and serious multidisciplinary enterprise. The starting point of this book is to take such a shared feeling seriously. Is something religious? Is something grounded in God? Is it a sort of necessary element of our past and contemporary legal systems in order to achieve international peace?

4 Peace Matters: Legal, Ethical and Theological Approaches Part I of the book, “Peace through religion in moral philosophy and natural law”, reflects an intuitive thought. The more spontaneous reference, when approaching the relation between religion and law, is to the great constructions of natural law theorists. In their conceptions, philosophical and theological aspects are often inseparable; nonetheless, that does not mean that the theological perspective cannot be distinguished from a legal or moral perspective or that some concept cannot be usefully exported from a theoretical framework to another in order to construct a better understanding of the relation between jurisprudence, God and peace. Thus, in his general paper, Dawid Bunikowski (Chap. 2) focuses on jurisprudence understood as a science in Justinian’s tradition: it is about both “divine and human things”. Not only religious inspirations of chosen contemporary legal scholars (such as Patrick Devlin, John Finnis, Zenon Ba´nkowski and Norman Doe) are shown in the text, but also it is claimed that jurisprudence might be understood as “divine” at two levels: at the micro level (the level of regulation of life) and at the macro level (the regulation of the cosmos). Giorgio Baruchello (Chap. 3) analyses Arthur F. Utz’s Thomism. The author perceives domestic peace as social justice: so if there is domestic peace, then individuals may live freely and choose responsibly whatever life-plan each has. The Thomist conceptions of justice and social peace are discussed. It shall be noted that Utz was a major 20th-century Thomist, but his main works have remained unknown for the Anglophone reader. Utz confronted the idea of social justice with the liberal economic order. Gerson Leite de Moraes and Daniel Francisco Nagao Menezes (Chap. 4) stress philosophical and theological aspects in the thought of Johannes Althusius. Althusius was a German jurist and Calvinist who was academically and politically active in the sixteenth and seventeenth centuries, in a time of social and religious turbulence, and has received less attention in recent times. To him, the main principles of a just society organised in an organic way were rights and the dependence of people on each other and on God. In the last Chapter of this Part, Diana Ginn and Edward R. Lewis (Chap. 5) think of “living well together” and take “insights from a philosopher, a theologian and a legal scholar”. The authors discuss the writings of the philosopher Charles Taylor,

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the theologian Rabbi Jonathan Sacks, and the legal scholar Harold Berman. This is to show why it is relevant and imperative to think of positive relations between religion, law and peace, instead of speaking only of science. The authors answer the questions “Why religion?”, and “Why religion and law?”. To sum up, all four chapters of Part I consider how to build a more peaceful world. However, different philosophical or legal inspirations/scholars are put on the table in each paper. Part II, “Secular peace through universal religions”, reflects an incontestable social fact: religion has certainly changed its status in modern thought, at least in part because of the Enlightenment. The interaction of secular and religious attitudes has probably characterized a substantial part of what our cultures are nowadays. The question at stake is then how can a secular view be constructed on a religious basis. Probably, God is not the obstacle when trying to achieve international peace; the obstacle is arguably a dogmatic conception of God, a Religion with capital R, fighting not only for the uniqueness of God, but for the uniqueness of a particular truth about God. In this part, Jessica Giles (Chap. 6) presents a theological justification for freedom of religion and belief as a universal right. The author claims and shows that there are many restrictions on the fundamental right to freedom of thought, conscience and religion around the world. There is a lack of universal application for freedom of religion and belief. Her work’s aim is to address this gap between “aspirational rights”, norms, and practice. A theory grounded in reformed (Christian) theology is considered. Thus, she presents the traditional Calvinist doctrine of Common Grace; her approach then “takes a step beyond this”: identifying that all traditions, religions and people can contribute to the understanding of both freedom of religion and the common good. This religious approach enters into an ongoing dialogue. Zachary Calo (Chap. 7) speaks of Islam, peace, and the idea of secular Europe; his aim is to show how Islam has played a significant role in the European debate about secular law and secular identity. The author’s argument is that there is no doubt that the question of Islam has been important in European debates and reflections on the fundamental nature of the liberal state and, above all, on the possibilities of peace. His work, explicitly referring to recent decisions of the European Court of Human Rights, reconstructs how law is being employed “to control and transform Islam and indeed the experience of being Muslim”, and on this ground, it analyses the possibility, in the contemporary legal context, of a “secular” peace. Recep S¸ entürk (Chap. 8) shows the reader the Islamic legal concepts of a¯ damiyya (humanity) and ‘is.ma (the right to inviolability that concerns life, property, religion, expression, family/progeny and honour/dignity). This is to think of humanity as the ground for universal human rights in Islamic law. Different Muslim scholars from the Middle Ages (such as Ab¯u H.an¯ıfa) to the end of the Ottoman Empire are presented in the chapter. What is fundamental seems to be the thought of those Muslim jurists who have considered humanity (¯adamiyya) as the ground for human rights. It is the universalist human rights tradition. Human beings have rights by virtue of being human (e.g. Abd al-Ghan¯ı al-Mayd¯an¯ı). Also, the implementation of the universalist idea in Islamic history as well as chosen “democratic” legal reforms from the 19th

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and 20th centuries in the Ottoman Empire are explored. The author claims that the current legal and political discourses facing human rights challenges in the Islamic world might go back to this universalist approach. Furthermore, it seems relevant to highlight that Part II helps one to realize how important it is that legal schools in Islam, as well as the fundamental Islamic concepts, should be known and discussed. Just as the natural law tradition has in Greek philosophy a common background, the Jewish, Islamic and Christian human rights traditions found their first literary and/or legal source in the Old Testament.72 Instead of focusing on the sources of conflict, usually the product of a given political framework, grounded on the antagonistic pathetic picture of religion against religion, the study of the conceptual framework of a given religious tradition can help better understand the concepts of another monotheism as well as, as it will be shown in the next Part, apparently secular concepts such as the legal international concepts of peace, war, and responsibility. When opposing a secular view to a religious one, on the secular side international law certainly is, at least since the First World War—when the fight for peace is at stake—the biggest protagonist. Part III is dedicated to “Peace and religious beliefs in international jurisprudence”. The reference to international jurisprudence, and not only to international law or practice, is justified by the weight of international legal theorists acquired in the most difficult as well as promising moments of contemporary history. Is international law (and/or legal discourse) really secular? The question is not new, and as such it will not be addressed, for at least one main reason: it is not clear at all what ‘secular’ means, at least from the age of secular religions. It is more interesting to explore how international jurisprudence is, from a historical perspective, not secular at all, and to take this as a starting point and not as a proud conclusion. The practice of international law is somehow distanced from the effective use of force; its force is not the force of weapons but the force of beliefs and hope, the force of an alternative social project for humanity. International rhetoric seems to share with religious discourse much more than the concern for peace. The international system of beliefs seems to be historically biased: international law reflects, at the same time, the ‘civilised’, sovereign, masculine, white, Christian and Western domination, and the strongest promise for the whole humanity. Such a double face, probably shared with religions, is a significant obstacle to understanding humanity and to achieving peace. However, it would be too easy to conclude with such a critical and skeptical conclusion. A new path, drawn by Hermann Cohen’s and Emmanuel Lévinas’ philosophies of the Other, clearly leads to a refreshing, social—and possibly messianic—reading of international law and theory. Alberto Puppo’s work (Chap. 9) aims to provide a reading of the famous legal theorist Hans Kelsen in the light of Hermann Cohen’s ethics; his goal is to show that Kelsen was motivated by an authentic struggle against the unavoidable end—imperialism and wars—of an international history written by sovereign states; Kelsen’s legal theory has to be read in the light of his pacifism. 72 On

this common source, and on what it implies, see Peters (2005).

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Reut Yael Paz’s contribution (Chap. 10) unpacks some of the possible implications of the East/West European divide to the manner in which we approach “the international” by coupling two Ostjüdische—East European Jewish—protagonists: Rosa Luxemburg (1871–1919), the firebrand of German Socialism, and Hersch Lauterpacht (1897–1960), one of the most important international lawyers, along with Kelsen, of the 20th century. Joanna K. Rozpedowski’s (Chap. 11) traces the historical evolution—characterised by the struggle between religious and secular forces and ideologies—of the cosmopolitan sensibility and the conception of ‘human’ subjectivity; she then delineates “the evolving human-centered, as opposed to the traditionally state-centered, understanding of international law, international adjudication, and their cumulative impact on state behavior and global governance”. The study of the impact of international theory on global governance opens the last Part of this book, “The political/religious dimension of dramatic social events”, centered on the unavoidable political dimension and consequences of the moral and legal discourses about universal values, states’ duties, and people’s moral aspirations. It is a trite statement that religious beliefs and religious policies have been the cause of many changes in societies over time. What is less trivial is to construct a philosophical and religious reading of some great and often dramatic historical moment, a religious reading that is both philosophical and political, to the extent that it is at the same time the product of its time and the expression of some general philosophical framework. From the American Revolution to the Dreyfuss affaire, the connection between political revolutions, crisis or transitions, on the one side, and philosophical and religious perspectives on them on the other, is a key aspect in order to deepen the relationship between religion, law and peace. In his work (Chap. 12), Bernard Wills explores the conception of God in the work of William Blake. His exploration links a conception of God with Blake’s prophetical reading of the American Revolution. Blake’s poem America suggests “that there is a prophetic and Christian politics that transcends the opposition between rebellion and reaction”. Thinking about revolution is probably one of the biggest philosophical worries of Walter Benjamin writings as well. Daniel R. Esparza (Chap. 13) analyses the concept of Adulthood in Benjamin’s Experience and Poverty. Beyond the classical divide between two kinds of Benjaminites—revolutionaries and theologians—the author proposes a Kantian reading: he tries to figure out “if Benjamin’s references to adulthood are related to the Kantian exhortations one finds in Was ist Aufklärung; specifically, those claiming for the coming of age of mankind”. Such a reading clearly establishes a bridge between Part III and IV, between international legal theory that revindicates the Kantian tradition, centered on cosmopolitanism and the primacy of humanity, and the political discourse aiming to generate social change, potentially a socialist revolution. Even when the possibility, or the risk, of a revolution is not at stake, the day-to-day political and judicial life of liberal states shows the importance of the states’ duties to preserve the freedom of religion.

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Linked to Jessica Giles’ contribution, Anna Budzanowska and Tomasz Pietrzykowski’s work (Chap. 14) reconstructs the Dreyfus affaire as symptomatic of, and revealing, “two opposing visions of the state—the reactionary and the republican”. This affaire was paradigmatic not only as an expression of the latent antisemitism characterizing the apparently liberal European societies at that time, but also as evidence of the need to fight for the respect of fundamental rights, particularly of religious freedom, a fight that leads to the famous French doctrine of Laïcité. This book could have started with this last chapter, precisely because the Dreyfus affair brings out all the questions that European culture leaves unresolved, both judicially and politically. If it is true that the long and strong natural law tradition firmly claimed the existence of universal and fundamental rights that no state can violate, it is also true that such tradition has historically been incapable of limiting the sovereign power of both the secular and the religious political institutions. The fact that, according to the 18th and 19th centuries’ famous declarations of human rights, all humans are equal, did not represent an obstacle to the expansion of antisemitism, in Europe, and other forms of racism, especially in colonised lands. It was only after the odious crimes of the Second World War that international law started to play a real political role, not only through the first international criminal trials, but also by the creation of regional human rights courts. Nonetheless, it was still insufficient: the evolution of international law certainly led to a multiplication of treaties and international agreements as well as international institutions; however, all this essentially remains a reality standing very far from the real suffering people. Secular Europe and, more generally, the Secular World, seems to have failed. But, maybe, reconsidering Kelsen’s work, it failed precisely because it was not really secular, because secularism became a new religion, but—paradoxically and dramatically—a religion having lost its original focus, clearly at work in all the monotheisms: to ground a universal duty whose correlative rights are the rights of suffering people, all around the world, no matter their nationalities or religions. Acknowledgements We are extremely grateful to Jessica Giles for her comments, formal as well as substantive, on a previous version of this Introduction.

References Babie P, Savi´c V-I (eds) (2018a) Law, religion and love: seeking ecumenical justice for the other. Routledge, New York/Abingdon Babie P, Savi´c V-I (2018b) Introduction: law’s love. In Babie and Savi´c (eds) (2018a), pp 1–12 Barber MD (2008) Autonomy, reciprocity, and responsibility: Darwall and Levinas on the second person. Int J Philos Stud 16(5):629–644 Berman HJ (2003) Law and revolution II: the impact of the Protestant Reformations on the Western legal tradition. Harvard University Press, Cambridge, MA Biale D (2011) Not in the heavens: the tradition of Jewish secular thought. Princeton University Press, Princeton

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Caraus T, Paris E (eds) (2018) Migration, protest movements and the politics of resistance. A radical political philosophy of cosmopolitanism. Routledge, London/New York Cochran RF Jr, Calo ZR (eds) (2017a) Agape, justice, and law: how might Christian love shape law? Cambridge University Press, Cambridge Cochran RF Jr, Calo ZR (2017b) Introduction. In: Cochran and Calo (eds) (2017a), pp 1–10 Cochran RF Jr (2017) Jesus, agape, and law. In: Cochran and Calo (eds) (2017a), pp 13-37 Cohen H (1919) Religion of reason out of the sources of Judaism. Translated and with an Introduction by Simon Kaplan, Introductory essays by Leo Strauss, Introductory essays for the second edition by Steven S. Schwarzchild, and Kenneth Seeskin. Oxford University Press, Oxford, 1995 Cohen H (1915) Der Begriff der Religion im System der Philosophie. Töpelmann, Gießen Cohen H (1904) System der Philosophie. Zweiter Teil: Ethik des reinen Willens. Bruno Cassirer, Berlin Darwall S (2013a) Morality, authority, and law: essays in second-personal ethics I. Oxford University Press, Oxford Darwall S (2013b) Honor, history, and relationship: essays in second-personal ethics II. Oxford University Press, Oxford Dworkin R (2013) Religion without God. Harvard University Press, Cambridge Erlewine R (2016) Judaism and the West: from Hermann Cohen to Joseph Soloveitchik. Indiana University Press, Bloomington Fish S (2013) Deeper than God: Ronald Dworkin’s religious atheism. September 23. https://opinionator.blogs.nytimes.com/2013/09/23/deeper-than-god-ronald-dworkins-religiousatheism/. Accessed 15 November 2018 Freud S (1939) Moses and monotheism (trans Jones K). The Hogarth Press and The Institute of Psycho-Analysis, London Giles J (2018) Tradition as a peacebuilding tool. In: Giles J, Pin A, Ravitch F (2018) Law, religion and tradition. Springer International Publishing AG, Cham, Switzerland Gomez Robledo A (1989) Fundadores del derecho internacional. Vitoria, Gentili, Suárez, Grocio. UNAM, Mexico Hart HLA (1994) The concept of law. Clarendon Press, Oxford Kelsen H (2011) Secular religion: a polemic against the misinterpretation of modern social philosophy, science and politics as ‘new religions’. Edited from the estate of Hans Kelsen by Robert Walter, Clemens Jabloner and Klaus Zeleny. Springer, Wien/New York Kelsen H (1960) Reine Rechtslehre, 2nd ed. Deuticke, Vienna. English edition: Kelsen H (1967) Pure theory of law, 2nd ed (trans Knight M). University of California Press, Berkeley Kelsen H (1944) Peace through law. The University of North Carolina Press, Chapel Hill Keys MM (2017) Religion, empire, and law among nations in The City of God: From Augustine to the Salamanca School, and back again. In: Koskenniemi et al. (2017), pp. 64–86 Koskenniemi M (2017) International law and religion. No stable ground. In: Koskenniemi et al. (2017), pp 3–21 Koskenniemi M, García-Salmones Rovira M, Amorosa P (eds) (2017) International law and religion: historical and contemporary perspectives. Oxford University Press, Oxford Kumm M (2009) The cosmopolitan turn in constitutionalism: on the relationship between constitutionalism in and beyond the state. In: Runoff et al (eds) (2009), pp 258–324 Lévinas E (1984) Paix et proximité. Les Cahiers de la nuit surveillée 3. English edition: Lévinas E (1999) Peace and proximity. In: Alterity and transcendence. The Athlon Press, London, pp 131–144 Lévinas E (1934) Quelques réflexions sur la philosophie de l’hitlérisme. Esprit 26:27–41. English edition: Lévinas E (1990) Reflections on the philosophy of Hitlerism. Crit Inq 17(1):63–71. Retrieved from http://www.jstor.org/stable/1343726 (21.11.2018) Lévinas E (1935) De l’évasion. 2nd edition: Fata Morgana, Montpellier, 1982. English edition: Lévinas E (2003) On escape. Stanford University Press, Stanford Lewis CS (2010) The four loves. William Collins, Glasgow (1st edition: 1960)

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MacIntyre A (1988) Whose justice? Which rationality? University of Notre Dame Press, Notre Dame Neoh J (2019) Law, love and freedom: from the sacred to the secular. Cambridge University Press, Cambridge Nordmann S (2017) Levinas et la philosophie judéo-allemande. Vrin, Paris Paulson SL (1992) The Neo-Kantian dimension of Kelsen’s pure theory of law. Oxford J Legal Stud 12(3):311–332 Paulson SL (2012) A ‘Justified Normativity’ thesis in Hans Kelsen’s pure theory of law? Rejoinders to Robert Alexy and Joseph Raz. In: Klatt M (ed) Institutionalized Reason: The Jurisprudence of Robert Alexy. Oxford University Press, Oxford, pp 61–112 Paulus AL (2009) The international legal system as a constitution ruling the world? Constitutionalism, international law, and global governance. In: Runoff et al (eds) (2009), pp 69–110 Paz RY (2012) A gateway between a distant god and a cruel world. Martinus Nijhoff, Leiden/Boston Peters FE (2005) The monotheists: Jews, Christians, and Muslims in conflict and competition, vol I. Princeton University Press, Princeton Putnam H (2008) Jewish philosophy as a guide to life: Rosenzweig, Buber, Levinas, Wittgenstein. Indiana University Press, Bloomington Rawls J (1971) A theory of justice. Harvard University Press, Cambridge Reed ED (2013) Theology for international law. Bloomsbury, London Runoff JL, Trachtman JP (eds) (2009) Ruling the world? Constitutionalism, international law, and global governance. Cambridge University Press, Cambridge Scholem G (1974) Der Nihilismus als Religiöses Phänomen. Ernas Jahrbuch 43:1–40 Schraq CO (2002) God as otherwise than being. Toward a semantic of the gift. Northwestern University Press, Evanston Shaw MN (2008) International law. Cambridge University Press, Cambridge Sullivan WF, Robert A, Yelle RA, Taussig-Rubbo M (eds) (2011) After secular law. Stanford University Press, Stanford Waldron J (2011) A religious view of the foundations of international law. The 2011 Charles E. Test lectures at Princeton University. Available at https://www.peacepalacelibrary.nl/ebooks/files/ 363357696.pdf Wolterstorff N (2017) Love, justice, and love. In: Cochran and Calo (eds) (2017a), pp 101–124 Yelle RA (2011) Moses’ Veil. Secularization as Christian Myth. In: Sullivan et al (2011), pp 23–42

Peace Through Religion in Moral Philosophy and Natural Law

Jurisprudence Is About Both Divine and Human Things Dawid Bunikowski

Abstract The paper focuses on jurisprudence (philosophy/foundations of law) in Justinian’s sense in order to rethink its current “irreligious” status. The question is whether Western jurisprudence is about both divine and human things as it was stated in Justinian’s Code. Obviously, to everybody, jurisprudence is about knowledge of law. However, in Justinian’s heritage, jurisprudence as the science of law is supposed to have been “the knowledge of things divine and human; the science of the just and the unjust”. In the first part of the paper, I focus on different legal scholars’ (or philosophers’) religious inspirations and an “axiological struggle” (of different moral factors, schools, and ideologies) in jurisprudence. To present religious inspirations in legal scholars’ academic careers and works, there are used some contemporary cases of (Western) legal scholars, such as Devlin, Finnis, Ba´nkowski, Doe. In the second part of the paper, I try to combine “both divine and human things” and reconcile these in one theory (it might be seen as a prolegomena to this theory). Although today jurisprudence is secular, jurisprudence might be understood as “divine” at two levels: at the micro level (the level of regulation of life) and the macro level (the regulation of the cosmos). This is the primary understanding of divine jurisprudence. Also, it might be “divine” in terms of scholars’ inspirations, and this is the secondary understanding. Both understandings are interdependent. We touch the Sacred while covering problems of both human life and the cosmos. This concept of divine jurisprudence is different from Thomasius’s though. I claim that we still need two kinds of legal scholars and two “factors”/ideas in our science about Justice: those who represent human things and those who represent divine things. D. Bunikowski (B) State University of Applied Sciences in Wloclawek, Wloclawek, Poland e-mail: [email protected] University of the Arctic Thematic Network on Arctic Law, Rovaniemi, Finland Centre for Law and Religion, Cardiff School of Law and Politics, Cardiff University, Cardiff, UK Ronin Institute for Independent Scholarship, Montclair, NJ, USA IGDORE—Institute for Globally Distributed Open Research and Education, Stockholm, Sweden School of Theology, Philosophical Faculty, University of Eastern Finland, Joensuu, Finland © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_2

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1 Introduction and Thesis In our book, we talk about links between jurisprudence, religion, and peace. Some time ago, I read an interview (in “National Catholic Register” from the US1 ) with Cardinal Gerhard Mueller (the Prefect of the Congregation of the Doctrine of Faith in Vatican), who, quite interestingly and refreshingly for me, said in this way: (1) the essence of mission of the Church is not to bring peace or social justice; (2) these are only positive consequences of the activities/mission of the Church, but (3) the role of the Church is to focus on our Catholic faith and to believe in Christ, who is the living God/Messiah, not to focus on politics or diplomacy. This is a kind of hasty contemporary stereotype that all religions are about bringing peace. The aim of this legal-philosophical paper is to focus on jurisprudence (philosophy of law) in Justinian’s sense and to make some references to its current “irreligious” status. The research question is as follows: is Western jurisprudence about divine and human things? This paper is to say that jurisprudence is about both divine and human things. My first thesis is that although today jurisprudence is secular, jurisprudence might be understood as “divine” at two levels: at the micro level (the level of regulation of life) and the macro level (the regulation of the cosmos). This is the primary understanding of divine jurisprudence. We touch the Sacred while covering problems of both human life and the cosmos. Also, it might be “divine” in terms of scholars’ inspirations, and this is the secondary understanding. Both understandings are interdependent. My second thesis is then that some of the legal scholars might be inspired by their religious backgrounds and beliefs, and these inspirations are necessary in jurisprudence as they show some transcendental, quasi-mystical and spiritual aspect of law that shall be more civilised, humanitarian, good, and sacred also in this sense. My third thesis is, thus, that we still need two kinds of legal scholars and two “factors”/ideas in our science about Justice: those who represent human things and those who represent divine things. These two ways of thinking are important because they are complementary and make jurisprudence richer and fuller. Thus, this is also correct to build a comprehensive theory of human and divine things. Such a theory would be to create a practical and quasi-mystical social order - the order based on diversity, respect, and peace. Jurisprudence of the two wings (divine v. human) may be treated as a science/knowledge about divine and human things. This opens up new horizons and new/old narratives as well as their reconfigurations and reinterpretations. The paper structure is simple. First, I will explain the terms used and speak about the sense of jurisprudence for Justinian’s lawyers for whom jurisprudence was both about divine and human things. Secondly, I will present four contemporary cases of (Western) legal scholars (Devlin, Finnis, Ba´nkowski, Doe) and an “axiological struggle” in jurisprudence to show how legal scholars might be inspired by religion. Thirdly, I will critically define the sense of jurisprudence nowadays. Fourthly, I will 1 The

Cardinal (2017)

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present my theory of the two wings in jurisprudence: the human and the divine. Finally, I will make conclusions. The language and the style of writing try to keep up with the current array of the standards of the academia, however, the reader has to bear in mind that this piece is critical, unconventional, polemical, and multidisciplinary. This borrows some significant inspirations from two traditions: one is very old and seems metaphysical (metaphysical considerations on law and life), and the second is more modern, or just postmodern, and seems more deconstructionist.

2 Explanation of Terms The Oxford Learner’s Dictionary2 defines the term “divine” as “coming from or connected with God or a god”. E.g. divine law/love/will. In the old fashioned meaning, it might be also “wonderful; beautiful”. “Sacred” means “connected with God or a god; considered to be holy” or “very important and treated with great respect”. E.g. sacred image/scared life. “Human” is about “of or connected with people rather than animals, machines or gods” or “showing the weaknesses that are typical of people, which means that other people should not criticize the person too much”, or “having the same feelings and emotions as most ordinary people”. E.g. human life/human error/human touch. “Jurisprudence” means “the scientific study of law”. It is a very Austinian approach to law (compare: Austin3 ). But that was also Cicero’s dream to make law a science.4 The term “thing” is the most difficult. It has diverse meanings. We can focus on those: “the general situation, as it affects somebody”, “what is needed or socially acceptable”, “all that can be described in a particular way” or even “a living creature”. It might be about persons, actions, materials, norms as rules of behaviour, and ideas or values as required or desired state of things. Anyway, the meaning of the term might be close to the Aristotelian meaning where things are objects per se or being as such. The concepts used, especially, the concepts of both “divine things” and “divine jurisprudence”, will be more widely presented in Sect. 5–7. By the way, are contemporary human rights human or sacred, or human-sacred? Declared as sacred by humans? Or, in fact, deeply rooted in the heart of everyone? And, in this sense, sacred as divine? In which sense? As regarding the most fundamental moral values, universal values, the most fundamental axiology?

2 See

The Oxford Learner’s Dictionary. Austin (1832), p. v. 4 Stein (1999), pp. 79–80. 3 See

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3 Justinian’s Jurisprudence Jurisprudence is about knowledge of law. In Justinian’s heritage, jurisprudence as the science of law is “the knowledge of things divine and human; the science of the just and the unjust”.5 This endeavor was the foundation of Western jurisprudence for centuries: from ancient times or the early Middle Ages to the Enlightenment. Precisely speaking, it was stated: “Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust” (Iustitia est constans et perpetua voluntas ius suum cuique tribuens. Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia). It reads so in Justinian’s Compilation (535 AD), the Institutes, Book I, Of Persons, I. Justice and Law.6 In Aristotelian and Thomistic traditions, law is certainly related to virtue, a good moral life. Thus, jurisprudence has to speak about virtue (this will be hold high by John Finnis). The history of both philosophy and jurisprudence knows such considerations. First of all, the concept of virtue is visible and important in Plato’s book 4 of The Republic.7 One of the The Dialogues of Plato, Phaedo, covers practical problems of the exercise of virtue.8 Afterwards, Aristotle analyses the concept of virtue in books I–VI of Nicomachean Ethics.9 St. Thomas Aquinas does the same with the concepts of intention, promise and “acting unfaithfully” in Summa Theologica (see, e.g., ST, II-II, q. 110, a. 3, ad. 5 and ST, II-II, q. 61, a. 3).10 It seems that other than the concept of virtue—but important for lawyers—ideas, such as the concepts of justice, promise and contract “are strictly related to the concept of virtue”.11 Also, it is clear that virtue as a concept/moral idea is crucial in the theory of action (voluntary actions v. involuntary actions). Moreover, it is necessary to remind the reader of the fact that Aristotelian theories and methods were explained and developed by St. Thomas, who made his own theories of justice and action. Importantly, the Aristotelian background was the foundation of legal science by the 18th and 19th centuries.12 However, there is no room for going to details in Aristotle, St. Thomas, the canonists, and all the ius

5 See

Justinian’s Compilation, the Institutes. Compilation, the Institutes. 7 See Plato (1888). 8 See Plato (1892). 9 See Aristotle (1893). 10 See St. Thomas Aquinas (1947). 11 Bunikowski (2016), p. 50. 12 See Bunikowski (2016), p. 50. To be honest, in this paper here, I develop many ideas from the 2016 book (Bunikowski 2016) and make many references to my long chapter in the 2016 book. In the process of conceptualisation of the present book idea, this previous (2016) book was like a starting point for me and Professor Alberto Puppo, who is the co-editor of this present book. We start here as we finished the last project here but we go further to explore new links—not about European legal culture only anymore but thinking more widely, i.e. about jurisprudence, religion, and peace. 6 Justinian’s

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commune jurisprudence (there are many relevant books in this field: for example, by Tierney,13 Pennington,14 but especially, Bellomo15 and Gordley16 ). What was the aim of Justinian’s jurisprudence? First of all, it was to discover natural laws. Secondly, this was to discover God’s truth. In addition, there appeared the famous distinction between ius and lex.17 Some rules are written and human (lex), but there are also higher principles that are unwritten and universal (ius). Like in the great slogan by Celsus repeated by Ulpian: ius est ars boni at aequi (from Digesta 1,1,1), law is the science of what is good and equitable/fair; the law is the art of goodness and equity. Of course, Roman contract law operated concepts with axiological connotations (like wrongdoing, dishonesty). These were later interpreted by Justinian’s lawyers who were Christian: “In Justinian’s definition of jurisprudence, there is also something like a transcendental approach to law. There is a divine, religious, rather Christian, context of making legal rules”.18 Medieval legal culture that based itself on Justinian’s Compilation (Code) was important also for other reasons: the canonists made the language of rights both at a theoretical and practical level (feudal relations, contracts, ownership, inheritance etc.). Thus, “this is Medieval legal culture I call Justinian’s jurisprudence, as Medieval scholars started working with Justinian’s Code”.19 So what is the sense of law at all, bearing in mind Justinian’s jurisprudence? To be divine, moral or virtuous? The aim of law is social peace and harmony: law is to defend public morality and to integrate a given society around the so-called “shared morality” of this society (is this not close to Patrick Devlin’s ideas?). The concept of virtue has something important to do with “something” divine and cosmic or transcendental: the final sense of our life, human fulfilment, and flourishing (moving beyond the confines of our simple happiness).

4 Cases: Devlin, Finnis, Bankowski, ´ Doe. Axiological Struggle To show religious inspirations in legal scholars’ academic careers, I use some cases of contemporary legal scholars. The chosen scholars belong to Western and Christian 13 See

Tierney (1997, 2014). Pennington (2008). 15 See Bellomo (1995). 16 See Gordley (1991). 17 Pennington (2008), pp. 569–591, makes the differences between ius and lex clear. Tierney (1997), pp. 43–77, explains the origins of natural rights language. Also, Tierney highlights the origins of individual rights; see: Tierney (1997), pp. 13–42. In another book (Tierney 2014), Tierney treats natural law “as affirming a realm of human freedom and understood as both freedom from subjection and freedom of choice”. See Bunikowski (2016), p. 27, in Footnote 26. 18 Bunikowski (2016), p. 27. 19 Bunikowski (2016), p. 33. 14 See

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traditions. Notwithstanding this, in this paper, I skip the Schmittian idea that all legal concepts are taken from theology or are in fact quasi-theological concepts (so State replaced God; crimes replaced sins; courts replaced divine punishment; constitutions replaced the Bible or God’s law etc.). I only guess here that religion, theology, and divine things are inspiring for jurisprudence, and jurisprudence needs those factors or such aspects and scholars. One has to remember about the distinction between Christian faith orientating the choice of topics of academics and the Christian faith informing the theory of the academics. These seem two different ways in which the Christian faith can be observed to influence scholars and academics. (I would like to thank Jessica Giles for discussing this distinction issue with me.) Very probably, for example, both Finnis and Devlin seem to have been inspired by their religious convictions. Is such a religious inspiration also visible in works of other scholars, such as Zenon Ban(´n)kowski or Norman Doe? I will present four cases of legal scholars, suggesting how religious beliefs might have influenced their scholarship. The first of them is Lord Patrick Devlin. Obviously, I do not know him personally. The second is John Finnis, whom I know, and we met in 2007 and 2015 in Oxford, and we have been in correspondence as well. The third is Zenon Ba´nkowski, whom I have met in Edinburgh twice and at the IVR congresses in Brazil and Portugal, and we have been in correspondence as well. The last one is Norman Doe from Cardiff, whom I know well and have met many times in Cardiff. Before I go to Devlin, I will explain what I mean by an “axiological struggle in jurisprudence”. So offhandedly, this struggle was explained by the author in the following way as a struggle of ideologies: Thus, “both jurisprudence (as a science) and Western law might be understood still as a struggle of different moral factors, schools etc. This is a real fight of many ideologies. The struggle is visible or has been at least”.20 Currently, jurisprudence is about foundations/philosophy of law. One may consider what yet or exactly is a part of this science, but generally, it is a general theory of law and state. The importance of jurisprudence as a science is remarkable in both education and politics. The problem is that in the beginning of the 21st century, to many legal scholars, this is controversial “to combine law with theology or Christian moral philosophy”. However, there are scholars for whom it is not a “shame” or “lack of professionalism” to do it (like Finnis, Witte, Alexander, Doe, Ba´nkowski). And, this is the axiological struggle in the legal science.21 This is not easy to make such combinations of law, theology and Christian moral philosophy and be taken seriously by the contemporary secular academia (or, better, academy) that is based on ideas of Western rationalism and supports constructivist (in fact, neo-Marxist or a-religious, even anti-religious) social theories. Some additional explanation must be provided in this place. What is the problem with jurisprudence then? Contemporary Western jurisprudence is “rotten” because metaphysics in law was “lost”.22 It happened after the domination of the Salamanca 20 Bunikowski

(2016), p. 80. Bunikowski (2016), p. 20. 22 See Footnote 21. 21 See

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school of natural law. How did it happen? For centuries, the concept of virtue focused on Thomistic Aristotelianism. This was “essentially redefined” by the Northern school of natural law (especially, Grotius, Pufendorf, Wolff, and others).23 Thus, it may look that “axiological consistency of Western law” is doubtful nowadays. Finally, jurisprudence is “broken”.24 For example, contract law is not about the exercise of virtue anymore but about the autonomous will of the parties of a given contract. To make it axiologically consistent, one has to go back to the origins of law in Europe. My view has been so far that there are three roots of these origins: Greek philosophy (like Aristotle and Plato), Roman law (considerations by Ulpian, Cicero, Gaius etc.) and Medieval jurisprudence and theology (works by St. Thomas Aquinas and Medieval jurists, like Accursius, Iacobus, Bartolus, Baldus, and the Salamanca school of natural law with Suarez, Molina, Lessius, Sanchez).25 This is obvious that “Western law conceptually was rooted in Christianity”.26 However, today jurisprudence “is more about human things, but almost not about divine things; God does not exist for the legislator and most of the legal scholars. God died, as Nietzsche said”.27 Today also, the mentioned great old idea Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1) looks like a euphemism.28 Moral philosophy does not seem “a mother of law” (from Baldus’s Commentaria to D. I.I.I.2) anymore. This is why there was a call about “the necessity of going back to the three roots and the true origins of jurisprudence, i.e. to the heritage of Areopagus, Colosseum, and Golgotha”29 because “This was and is Justinian’s heritage”.30 This has been my opinion on the roots of the European civilisation and Western law so far. Now I want to revise this statement. I think that another, and better, opinion can be made instead: Greek philosophy, Roman law and Medieval jurisprudence, theology and philosophy were chosen by our making narratives-ancestors as the ideal world of the past and the picture for the future (see about Greece’s heritage and its impact on the 18th- and 19th-century thinkers who chose “their preferred ancestors”: Calhoun’s sociological theory31 ), but in fact, I guess, these were and are—only and just—our main inspirations that constructed or, better, inspired us, our ways of thinking, our concepts, and our laws and philosophies (mostly, in Europe and North America but also the Antipodes etc.). These are our traditions that matter 23 See

Bunikowski (2016), pp. 20–21. Footnote 21. 25 See Footnote 23. 26 Bunikowski (2016), p. 21. 27 See Footnote 26. 28 See Bunikowski (2016), p. 21. But on the other hand, in Article 38 par. 2 of the Statute of the International Court of Justice of 1945, it is written that the Court may act ex aequo et bono, on the ground of the principle of equity, but only in very exceptional cases: “This provision [Article 38 par. 1 concerning sources of international law applied by the Court—DB] shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto”. In fact, this rule has never been applied in practice. 29 See Footnote 27. 30 See Footnote 27. 31 See Calhoun (2001), pp. 51–52. 24 See

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and do not essentially lose its force because of the fact they were constructed or were born somewhere or come from somewhere. On the other hand, this is empirically proved that Roman law in the form of Justinian’s Code that was the basis for the ius commune has been the universal tool of communication for lawyers in Europe since Medieval times.32

4.1 Devlin Lord Patrick Devlin was a Catholic believer and seems to have paid a lot of attention to his religion.33 Devlin was a conservative English philosopher of law. Devlin understood law as a phenomenon related to religion: “What is the connection between crime and sin and to what extent, if at all, should the criminal law of England concern itself with the enforcement of morals and punish sin or immorality as such?”34 Consequently, Devlin attacked the moral liberalisation of English law in the 1950 and 1960s. For Devlin, homosexual intercourses must have been forbidden and punished.35 Let us analyse these statements by Devlin on the importance and the influence of religion for/on law and morality: (1) “Morality is a sphere in which there is a public interest and a private interest, often in conflict, and the problem is to reconcile the two”, and “(…) most people would agree upon the chief of these elastic principles. There must be toleration of the maximum individual freedom that is consistent with the integrity of society”36 ; (2) “Morals and religion are inextricably joined—the moral standards generally accepted in Western civilization being those belonging to Christianity”37 ; (3) “No society has yet solved the problem of how teach morality without religion. So the law must base itself on Christian morals and to the limit of its ability enforce them (…) without the help of Christian teaching the law will fail”38 ; (4) “If morality is changed, the law can be changed”.39 Especially, Devlin’s considerations on religion and its link to morality show that his ideas of law and morality are based on Christianity. I am more than sure that if Devlin had not been a deeply believing Catholic, his philosophy of law would have been more liberal in terms of moral conservatism. (Of course, also atheists might be morally conservative and demand morally conservative laws.) On the other hand, 32 See

van Hoecke (2007), pp. 98–99 and Aarnio (2007), pp. 143–146. Morton (1992). 34 Devlin (1971), p. 25. 35 See Bunikowski (2016), p. 44. 36 Devlin (1971), pp. 39–40. 37 Devlin (1971), p. 28. 38 Devlin (1971), p. 48. 39 Devlin (1971), p. 37, in footnote 20, in fine. See also: Bunikowski (2016), p. 45. 33 See:

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Lord Patrick expressed the post-Puritan or post-Victorian attitude to public morality in England. I do not think that it was so strange for his fellows, except H.L.A. Hart and some others, as it is for many of us nowadays, in the 21st century. Devlin had put on the table important questions on the link between morality and law as well as between morality and religion. Unlike the famous American liberal moral philosopher Joel Feinberg claims,40 Devlin’s ideas on the disintegration of society or public order are actual. These are the questions for which we have to find out right answers if we want to keep up with the idea of a harmonious and peaceful society, in every time, in every state and society. Even Feinberg admits that “he does argue forcibly against liberals on the grounds that their nonmoralistic theories cannot account for certain features of our present criminal law that they would presumably be unwilling to have changed. Those arguments deserve our respectful attention”.41

4.2 Finnis John Finnis, an Australian scholar and one of the most important contemporary philosophers of law and of the representatives of the theory of natural law, is a Catholic believer and pays plenty of attention to the Catholic teaching. He criticises homosexual (same-sex) marriages, permissive abortion laws etc.42 In his writing,43 Finnis expressed a very strong attitude to the Catholic teaching “on the moral duty of individuals and societies towards the true values”.44 Finnis focuses on the Aristotelian-Thomistic doctrine. Jurisprudence is understood here as a “high” science and always in high ethical categories. His philosophy of law gets oscillated around “the categories of reason, social peace, and virtue”.45 Finnis wrote much about values, law and morality but also about legal and ethical aspects of marriage and sexual orientation. His works ideologically come from his “Thomistic belief in social peace and common sense, and reason (practical rationality)”.46 It seems to me that this approach “is deeply rooted in a transcendental approach to 40 See

Feinberg (1987), p. 249. Feinberg puts this criticism in this way: “To a reader two decades later, Devlin’s book has a strangely uneven quality. On the one hand, his responses to Hart’s critical arguments often seem feeble and perfunctory. On the other hand, when he turns his attack against Hart’s own views he argues with fresh vigor. Most present day readers will probably conclude that there is no salvaging Devlin’s social disintegration thesis, his analogies to political subversion and treason, his conception of the nature of popular morality and how its deliverance is to be ascertained, or the skimpy place he allows to natural moral change”. 41 Feinberg (1987), p. 249. 42 See more on Finnis’s attitude to public engagement and controversies in this interview: Oxford Conversations. John Finnis [available at: https://oxfordconversations.org/john-finnis-scholars/ (23.09.2018)]. 43 See e.g. Finnis (1991, 1995, 2011a, b). 44 Bunikowski (2016), p. 40. 45 Bunikowski (2016), p. 41. 46 See Footnote 45.

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human existence in relation to God”.47 Finnis’s theory is associated with his public actions in practice. He openly stands against many liberal legal projects concerning abortion or homosexuality around the world, especially in the Western, or AngloSaxon, world. Although not everybody may appreciate his position, it seems that it is at least honest or necessary to appreciate his public courage.48 Anyway, Finnis’s “ideas on public reason and references to Justinian are universal and important”.49 Finnis has been criticised for his moral-legal conservatism by many legal scholars like Brian Tamanaha50 but has not changed his attitude to law or morality. Finnis thinks, as I understand his point from our correspondence, that e.g. abortion on demand, euthanasia or homosexual marriages demoralise Western societies, but all these Western societies are axiology-empty, so, as he seems to think, they are not able to define their common moral values (or even to make such a debate to talk about these values) and to defend themselves. This proves that the European or Euro-Atlantic civilisation based on Christianity and (Justinian’s) Jurisprudence is over or at the stage of a slippery slope to die. Metaphorically speaking, it seems to me that Finnis wants to say to us that if “the spirit” (of values and ideas but also of religion) is over or weakened, then “the body” (of states, societies, laws) dies or is weak (at best).

4.3 Bankowski ´ Zenon Ba´nkowski is a legal scholar who is interested in religion.51 This seems to me that he is inspired by Christianity. In my previous book, I wrote about Ba´nkowski: “Another good example of the struggle in the science of jurisprudence is Zenon Ba´nkowski’s ideas on law and theology and love in law”.52 I would like to develop this idea. Ba´nkowski is a recognized British-Polish philosopher of law interested in theology and ethics. Unlike Devlin or Finnis, he is not a conservative philosopher of law. His way of thinking is rather liberal. He is an “open quasi-Christian philosopher of law,

47 See

Footnote 45. Footnote 45. 49 Bunikowski (2016), p. 41. See e.g. Finnis (2006). 50 See more: Bunikowski (2016), pp. 41–42. 51 He writes at his university website: “I look at Social and Legal Theory within an ethical and theological context”; he adds: “I look at Exchange, Compassion and Community. Seeing law is a key institution of market societies, I aim to examine the role such emotions as compassion, mercy, hope and love play in exchange and legal institutions in general, as contrasted with the rationalizing features of the market and law. This would involve examining contractual relations and relational theories of contract in the law on a comparative, religious and socio-cultural basis in the context of their public function of promoting mutual, welfare-maximising exchanges”. See: Professor Zenon Bankowski [available at: http://www.law.ed.ac.uk/people/zenonbankowski (23.09.2018)]. 52 Bunikowski (2016), p. 42. 48 See

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who finds out God in the second man and ethical institutions of law or in conceptualisation of the idea of the Good Samaritan”.53 Ba´nkowski speaks much about inclusion in the context of Christianity. According to Ba´nkowski, the New Message and the Christian Heritage show Europe that we should be open for the Other. It concerns also the incoming Muslims.54 Inclusion is a very important concept with Christian connotations then. Ba´nkowski is not afraid of such an inclusion and encourages the Europeans to be open like Jesus, who made this openness and love for another man the foundation of the religion. Ba´nkowski knows that inclusions also change “us” in a process of meeting with other cultures in Europe.55 Ba´nkowski notices that “the fear of immigration ‘destroying our way of life’ can be seen as a fear of dying”.56 And, this fear has to be overcome. Also, more generally speaking, “Ba´nkowski uses many references to the Christian God and Christ in his jurisprudence: his philosophy is somewhere or something on the borders of moral, political and legal philosophy”57 that is Christianity-inspired. To Ba´nkowski, the main concept is the Good Samaritan: this biblical person symbolises a hero who teaches how we shall treat another man.58 Also, a “crisis of faith” is an important topic in Ba´nkowski’s internal struggle: he admitted that he had been a left wing academic who had thought of law as something oppressive and symbolising God’s authoritarianism.59 Anyway, in doing his legal philosophy, he was trying to find God.60 Also, his writings on living lawfully and ethical institutions of law are fundamental to understand his point of view of God, law, justice, ethics, and the Other.61 53 See

Footnote 52. Bunikowski (2016), p. 42. However, during my talks with Ba´nkowski in Edinburgh in 2014 and 2015 I noticed that he may now consider his previous opinions from Bringing the Outside In… in this field as quite idealistic. 55 See Bunikowski (2016), p. 42. See also Ba´ nkowski (2007). 56 Ba´ nkowski (2014b), p. 25, Footnote 12. 57 See Footnote 52. 58 See Bunikowski (2016), p. 42. See also Ba´ nkowski (2014a). Ba´nkowski points out on page 7 of the manuscript: “The Samaritan story in particular is about the imagination necessary to use the transformative power of attention and encounter to see through patterns and to move to a transformation, and thus regeneration, of present categories of the law. It is about a movement beyond, about the possibility and the potentiality of connection. Attention, encounter, education, and movement and patterns are what this project interrogates”. 59 See Bunikowski (2016), p. 43. 60 See Bunikowski (2016), p. 43. See also Ba´ nkowski (2014b). Ba´nkowski explains on page 25 of the manuscript: “How then do we come to be able to see that other and connect with them and thus share our mutual vulnerability? I realize that question had and has always been at the heart of my soul and it was then brought to the centre again by what I can only describe as a crisis of faith. I thought that faith had gone and I had long sloughed off my Catholicism. I was a left wing academic with some success in his Marxist and anarchist inclined writings. But I still had, as I now see, my existential angst. The first Gulf War opened and the bombs started and it was all brought to a head. Here I am, I thought, spending my life teaching political and moral philosophy, looking at the way that we can live together, love each other and make the best possible world for ourselves. But what does it all mean?”. 61 Ba´ nkowski (2014b) admits on pp. 33–34 of the manuscript: “Goodrich said that Images was about destroying the ‘God of my Fathers’ for emptiness. In Living Lawfully I replaced Him but 54 See

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This is my main impression when I read Ba´nkowski’s recent or late papers that he tries to find out (the?) God in the Other. Also, his affirmation for the Polish religious poet Jerzy Liebert’s slogan (“Uczyniwszy na wieki wybór/W ka˙zdej chwili wybiera´c musz˛e”/The choice, once made for eternity,/At each encounter I must confront anew”62 ) shows his transcendental and quasi-religious attitude to the science of law he makes. It is very subtle though—”going beyond”: “(…) being open to the outside—always being ready to go beyond the limit although that limit is what at the moment defines our existence. Not doing this means a closed and totalising community”.63 There are some questions. Can we be open for the outsider or the Other? Can law be more ethical? Can law be more just? Can law be better? Can we be better for the Other? This is how I interpret Ba´nkowski’s dilemmas and his seeking the highest truth of human dignity in law.

4.4 Doe Norman Doe is a British/Welsh professor of canon law and an active member of the Anglican Church in England. He is also the Director of the Centre for Law and Religion at Cardiff University. Finally, he is the Leader of the Law and Religion Scholars Network in Cardiff. His works concern law religion relations and ecclesiastical law. Doe is a bit different case.64 Christianity is not visible in his theory: the Christian faith does not inform the theory of this academic. This is rather the case that the Christian faith orientates the choice of topics of the academic. However, I guess that Norman’s interest in law and religion scholarship is subtly inspired by his religious background as he is very close to institutional religion: he is a member of the Legal Advisory Commission of the Church of England, and is Deputy Chancellor of the Diocese of Manchester. He wrote e.g. Fundamental Authority in Late Medieval English Law,65 The Legal Framework of the Church of England,66 Canon Law in the with someone perhaps too Kantian. I now begin to feel my way to something different. Where and what is that God? That is where I am now. One thing I am sure of is that I find Him in that never ending and transformative space of mutual, self-giving and re-creation. There stability is not secured from a firm base inside with forays outside but paradoxically in the instability of continuous transformation”, and he adds on page 25: “But we still have to answer the existential question that Living Lawfully lead me to. Why bother to have such institutions of love? Why bother to work for them? What can make us to that? For that constant exchange, of self and community continually being changed and recreating themselves in perhaps completely different and unexpected ways, can be terrifying. The process can be likened to dying and being recreated as something different and of course we resist that sort of death and take steps not to allow it. How then do we come to be able to see that other and connect with them and thus share our mutual vulnerability?”. 62 See Ba´ nkowski (2014b) and this motto of “the long goodbye” lecture. 63 Ba´ nkowski (2014b), p. 23. 64 Doe does not speak about his religious convictions at his university website. See: Professor Norman Doe [available at https://www.cardiff.ac.uk/people/view/478847-doe-norman (23.09.2018)]. 65 See Doe (1990). 66 See Doe (1996).

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Anglican Communion,67 The Law of the Church in Wales,68 An Anglican Covenant,69 Law and Religion in Europe,70 Christian Law: Contemporary Principles.71 His academic or legal attitude to religion is rather friendly. Religion, to him, is an important part of a given society and shall be protected in good constitutional state church relations. State and religion (church) march together and their relations have to be regulated. Religion is an important part of history and this history is alive in a given state. Canon law is a good example that this law is not a dead letter. Not mention religious freedoms. The scientific study of law has to be interested in religion and theology. This is how I understand Norman’s philosophy of doing research in law. And, this philosophy probably is about why he got interested in law religion relations. This is necessary to make it clear that there are many lawyers who are “Christian lawyers” (e.g. David MacIlroy): their faith is visible in their theories and informs these theories.72 There are even organisations of such lawyers.

5 Jurisprudence Nowadays Finnis’s point of view of jurisprudence and its reference to Justinian’s ideals is as follows: “And Jurisprudence, Iurisprudentia, is entitled to the high status accorded it in that ecstatic sentence of the Digest, if it understands its object (subject-matter) of inquiry as to make fresh and meaningful, in every social and political context, the justice of such a relationship between, on the one hand, past and present facts and, on the other hand, present and future human good, and the injustice of mistaking or exploiting that relationship”.73 Of course, “This is what “Jurisprudence” should be. But what everyday “jurisprudence” is?”74 What is jurisprudence nowadays? There is some huge problem about the current state of jurisprudence. As I wrote in the following place, “Jurisprudence is secular, modern, technical, post-Pufendorfian, “scientific”, terminologically advanced, positivistic (legal-positivistic). On the other 67 See

Doe (1998). Doe (2002). 69 See Doe (2008). 70 See Doe (2011). 71 See Doe (2013). 72 McIlroy (2017), pp. 157–158, writes in his important paper about Catholic and Protestant approaches to human rights in this religious way: “Our very existence as a species, as members of our particular nations and families, as individuals is by grace alone. Our worth comes from the fact that we are good beings, created by a good God, with whom this God wishes to establish communion, and into whose experience this God stepped in the person of Jesus Christ, in order to offer us a fulfilment of the goodness of our being which surpasses our imagination. To none of this we did we have any prior right. Every aspect of our existence, including the obligations we owe to one another as human beings, and such rights as we have, exists, “paradoxically—by grace alone”. This is a truth which Christians, whether Catholic, Protestant, or Orthodox, can affirm together”. 73 Finnis (2006), p. 20, in fine. 74 See Footnote 20. 68 See

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hand, it is casuistic and very specific (scholars in so many branches of law!) or analytic and language-oriented”.75 It seems to me—this is necessary to repeat my statement from one of the previous parts—that “nowadays jurisprudence is more about human things” but “almost not about divine things”. It means that “God does not exist for the legislator” and most scholars. God died, as Nietzsche famously claimed.76 Today’s jurisprudence is interested in critical theory, literary studies, language philosophy and postmodernism over all, but not in religion, mysticism of both law and justice or the high and transcendental spirit of law. On the other hand, paradoxically, today’s jurisprudence formalistic and abstract considerations and features of some institutions of liberal democracy like the rule of law are almost treated as a new quasireligious dogma that one must not question. The same can be said about the concept of human rights and human rights themselves: they are understood as universal and inalienable, and unquestionable, coming from human dignity and discovered by human reason. A harsh critical thinker can ask: What is human dignity? Has anyone ever touched or seen this? It is just a belief: it is a new (religious, constructed) faith in secular (human-made) institutions. What is a human right? For different people in different cultural environments, it means different things. It is clear that human rights are not a-historical, a-cultural and ideologically neutral (see about universal human rights: Van der Veken’s theory77 ).

6 Two Levels of the Sacred in Law and the Science of Law This is claimed here that there are two levels of the Sacred in law and the science of law. One is related to the micro level, i.e. the level of regulation of life. The second concerns the macro level, i.e. the level of regulation of the cosmos. This is the primary understanding of divine jurisprudence. Another—the secondary— understanding/approach is works or actions of scholars who are religion/divinity/the Sacred-inspired. Both understandings are interrelated and interdependent as scholars speak about regulation (not only legislators do so).

75 See

Footnote 20. Footnote 26. 77 Van der Veken (1981), p. 154. Van der Veken points out: “(…) the so-called universal human rights are not all as universal as they may seem: they are not a-cultural or a-historical. They are the concrete form given to human possibilities which have emerged out of the only partly successful fertilization by christianity of specific culture (based on the Greek heritage, the Roman Empire, the European melting pot out of the 6th to 10th centuries, the Medieval world, the Renaissance, the Enlightenment, the French Revolution and the rise of social consciousness in the 19th century)”. 76 See

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6.1 The Level of Regulation of Life First, we, the jurists, are still to regulate the problem of life and death (abortion, euthanasia, human fertilisation, human cloning etc.) or of controversies of social life (pornography, prostitution, homosexual or same-sex marriages, bigamy etc.). Especially, the first category covers thanatological problems which are so sensitive and fundamental for human existence, i.e. life and death. Jurisprudence is about who we are. So jurisprudence is divine at the micro level (the level of regulation of life). Why? We still talk about divine things but we treat them as human things only. Certainly, when we speak about “the just”, it means only distributive justice (Welfare State), equal opportunities (job market and education, and diversity of lifestyles), and criminal justice. In my opinion, we touch the Sacred while covering problems of both human (only?) life and the cosmos (see Sect. 6.2). This is obvious for many religious people, but is it so also for non-religious legal scholars? Life is sacred, life is a gift, to many religious legal scholars. Life is about simple things like existence, friendship or happiness but it is also mysterious and sacred in this sense that we do not know why we are here and for how long exactly in our lifetime we are here. (Such interpretation is possible and might be appreciated by some religion/divinity/Sacred-inspired legal scholars as well.) Jurisprudence might be also called divine when it speaks about “the weakness” of human life and its life protection because of the demands of ordinary feeling of justice (e.g. in cases of the disabled, the poor, the sick, the innocent, the refugees, the children etc.). Thus, the weakness is understood in biological and physical-mental categories (unlike in Devlin’s theory78 ). Life is distinct. It is an intrinsic value, and its quality matters: obvious degradation of this quality shall be condemned with all means and outrage.

6.2 The Level of the Cosmos Secondly then, we are a part of the cosmos, the universe and its order. We do not know why we are but we are. We are to touch the Moon, explore Venus or Mars and regulate climate change and international order. Our considerations cover issues concerning the exploration of the universe, protection of the so-called sacred lands on Earth as well as protection of the environment at all. Our considerations also touch many problems concerning the place of a human being in the universe: from where we come, who we are, where we are going to—these are the three fundamental questions of the sense of human existence in the cosmos. Finally, our considerations 78 See

Devlin (1971), p. 36. Devlin’s understanding of human weakness is wider and concerns the weakness of a moral human character: “All sexual immorality involves the exploitation of human weaknesses. The prostitute exploits the lust of her customers and the customer the moral weakness of the prostitute. If the exploitation of human weaknesses is considered to create a special circumstance there is virtually no field of morality which can be defined in such a way as to exclude the law”.

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shall take into account the cosmological character of law79 in every legal action. So jurisprudence is divine also at the macro level (the level of the cosmos). We are a part of the cosmos. And, we have to say something about it, even by trying to regulate issues that are difficult to be regulated (e.g. because they belong to Nature, not to Culture). Sometimes we are too weak to regulate or control a given state of things but we still want to take control over it, having a fresh look at the plan, without blinkers. It sounds like in the Book of Genesis80 : “(…) and replenish the earth, and subdue it (…)”. There is some mystery behind (both our life and the cosmos). What is behind “behind”? Human rights, dignity, natural law, love? Quasi-religious myths? What is behind this veil of human ignorance? So jurisprudence is human in this sense that it says about human things. And, it is also divine in this sense that it says about divine things. It is divine jurisprudence (see also Thomasius’s definition below). Additionally, there are legal scholars who represent divine jurisprudence more than human jurisprudence. They hold their religious inspirations high while doing legal philosophy. They refer to these inspirations without hesitation also. I will go back to this in Sect. 7 and my conclusions.

6.3 The Concept of Divine Jurisprudence Historically speaking, it seems that the term “divine jurisprudence” was first used by Christian Thomasius (1655–1728). Thomasius (2011) in chapter II of “On Divine Jurisprudence” points out: §1. Divine jurisprudence is the prudence that is required for explaining the divine laws concerning the well-being of humans in this life and for applying them to the actions of humans. §2. All of this is obvious, as long as we explain which divine laws have the temporal well-being of man as their object. But that will be clear from the division of divine law. §3. It is generally taught that divine law is moral or ceremonial or forensic. We have said elsewhere why we are dissatisfied with this division.

79 See

Bunikowski (2017). I wrote in point 8 of the 2017 essay: “(…) in every act of making a law, interpretation of law, law application, we must take into consideration this cosmological character of law. Realization and conceptualisation of values of law requires the cosmology to fulfil the sense of the law, the sense of human life, the sense of all the communities. As a part of the universe, both a person and Earth, we are cosmologically obliged, to do so.” And, in point 4, I clarified: “Here, we talk about transcendental, over-human character of existence of values of law. It is sacred in the context of the universe, cosmos, logos. What do these values mean in this context, in this perspective? This is the question we must always raise”. 80 The whole paragraph 28 of the Book of Genesis, Chapter 1, is as the following: “And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moved upon the earth”.

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§4. We say that divine law is either natural or positive. The others say so, too, but in doing so they mean something different.81

Simply, Thomasius considers what we (should) know about what God wants us to do and behave. The idea/concept presented in this paper is different from Thomasius’s though. The term might be the same but the idea made by Thomasius is different and “old-fashioned” (with natural and positive divine law). It is also different from Aquinas’s famous distinction of divine law and human law. More contemporarily, De Sousa Santos uses the idea of cosmic law, regarding new ways of exploration and regulation of the cosmos. To him, it is human (as they say, he is rather a-religious neo-Marxist). To me, it might be “about divine things”. It is also a conceptual problem, not mention ontological and epistemological dilemmas and ethical loyalties and priorities. Twining analyses Santos’ theory, especially his seven types of legal transnationalisation. One is also about “cosmopolitanism and human rights” where besides traditional issues about the protection of human rights there are also considerations about universalism, cultural relativism or self-determination etc.82 Again: is it human? Or sacred-human? It is not only a linguistic problem. This is a problem of ethical and epistemological priority.83 Speaking of divine jurisprudence: I think that law is only some part of our civilisation—law is not the most important. However, “if law and the science of law (jurisprudence) are too far away from the roots of the civilisation, it means that we are lost”.84 Thus, “Maybe it is time for a moral revolution in jurisprudence right now: jurisprudence is about divine things and human things; jurisprudence is about Justice: everyone due to his or her share”.85 Are we ready for this?

81 For Thomasius, jurisprudence is related to ethical actions and virtue as we can read in par. 17 (“That prudence which is concerned with honest actions in general is jurisprudence in the broad sense, and that which is concerned in particular with the honest actions of others in the past is judicial prudence in the strict sense, or jurisprudence in the strict sense, or the third part of jurisprudence in the broad sense.”) and 19 (“If man directs these, as he should, toward honest actions, this is good and he remains prudent; if he does not do so, he is said to be astute or cunning”) of Book I, Chapter I “On Jurisprudence in General”. It has to be added that the term “divine jurisprudence” was used by Thomasius, but the concept/idea had been known before. For example, some important array of the idea might be found in Justinian. 82 See Twinning (2000), p. 240. 83 See more e.g. about law and grace: Etheredge (2016). Etheredge considers St. Thomas’s concept of (created) grace as power and “‘the Uncreated grace which God is’”, referring to Fr. Richard Conrad’s “juxtaposition of Uncreated and created grace” and giving Conrad his own voice on page 155 in footnote 9: “God’s gift of Himself can be called uncreated grace; the transformation in us which makes us divine, our sharing in God’s life, can be called created grace, since it is a reality in us worked by God” (this is a citation from Conrad’s work of 1993, “Grace and Justification”, p. 35). 84 Bunikowski (2016), p. 81. 85 See Footnote 84.

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7 Jurisprudence of the Two Wings. The Two Wings of Jurisprudence: The Human and the Divine I claim that we still need two kinds of legal scholars and two “factors” in our science about Justice: those who represent human things and those who represent divine things. These two ways of thinking are important. Jurisprudence is richer due to this attitude. It focuses more on values, ideas, and deeper understandings of justice then. It is more philosophical or quasi-theological than only analytical.86 Even liberal-democratic slogans on the rule of law or constitutionalism are taken for granted as an “irreligious” religion or dogmas that cannot be changed: the dogmas which are interpreted by “holy” lawyers and “high” judges in the almost mystical name of (the) “Majesty”, “Crown” or “State”. What is the difference then? If one wishes to leave some room for uncertainty of (divine!) ontology of our norms, where is the problem? It does not imply that this one wants to apply Sharia law or Catholic law in a given state. It is only to leave some room for “a new veil of ignorance” where God may live in. And, this opportunity or knowledge is taken into consideration in divine jurisprudence. That’s all. It is the opportunity of the existence of God and the opportunity of deeper understanding of justice in the context of the cosmos or even in the context of the Other (is it not visible in E. Levinas or D. Boenhoffer?)—all that is or might be behind our (legal) norms. This attitude to things divine and things human always reminds me of the Polish Constitution of 1997’s Preamble87 : (…) We, the Polish Nation - all citizens of the Republic, Both those who believe in God as the source of truth, justice, good and beauty, As well as those not sharing such faith but respecting those universal values as arising from other sources, Equal in rights and obligations towards the common good - Poland, Beholden to our ancestors for their labours, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and in universal human values (…) Desiring to guarantee the rights of the citizens for all time, and to ensure diligence and efficiency in the work of public bodies, Recognizing our responsibility before God or our own consciences (…) Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities [my italics - DB]. 86 Linguistic and analytical approaches in philosophy of law are important but not the most important.

Per analogiam, Ludwig Wittgenstein says in “Preface” to his “Tractatus Logico-Philosophicus”—in the context of solving linguistic and analytical problems in philosophy—that “how little is achieved when these problems are solved”. See Wittgenstein (2001), p. 4. Also in point 6.522, he admits: “There are, indeed, things that cannot be put into words. They make themselves manifest. They are what is mystical” (p. 89). 87 The Polish Constitution of 1997.

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Moreover, it is necessary to claim that the four cases of the scholars (Sect. 4) show that this (“religious”?) attitude makes Western jurisprudence richer and fuller or more comprehensive these times. This is not so because I wish to see jurisprudence in this way (because I am a Catholic or Muslim)—this is what I see and describe and this is what/how shall be. There are and shall be the two wings of jurisprudence: the human and the divine. They are complementary, even if they seemingly or prima facie look contradictory. My attitude is complimentary to this. Why? We see new aspects, perspectives, and horizons of law by divine jurisprudence—not only in departments of theology or philosophy. First, it is Justice that should be higher and better: more perfect in every aspect of legal or social life (legal interpretation, law application, legislation/social happiness and order). Secondly, this is Freedom that would be fuller and more human in the cosmic and divine order of the universe. It sounds idealistic but it opens up the new box of Pandora of horizons of justice of law and its justification or legitimacy. Of course, who is able to build a comprehensive theory of human and divine things, nobody knows.88 Such a theory would be to create a practical and quasimystical social order—the order based on diversity, respect, and peace. It does not matter how utopian it sounds for now: if this works in practice, it will be brilliant. Paradoxically, even the famous liberal legal and social philosopher Ronald Dworkin in his last book with a title “Religion without God”89 claimed in this style: what is important in life seems a religious attitude, not an institutional religion. Was he starting going this way a bit that I describe here? Is it also divine jurisprudence? Was it not like Spinoza’s God without religion?90 Was this all not a kind of seeking the constant and perpetual wish to render every one his due—Justice? So even if we claim also that we lost metaphysics, especially in contract law (I follow Gordley’s critique, who admits that nowadays contract law is based on the autonomous will of the free individual but not on the exercise of virtue anymore91 ), I think that we lost something else: the high spirit in “law” in the old (religious, ethical, transcendental) sense. No transcendence is the principle in (post-) modern, democratic, liberal, pluralistic but secular societies based on the rule of law and freedoms. It looks like these days law comes from law, legitimacy comes from legitimacy. Values are not objective for Western legislators these times. But really? This spirit is still re-invented, it seems. I think that even in these societies we always need legal fictions and myths or “spirits”: abstract constitutions with high constitutional values, common imaginations of just laws, proud courts, “well-dressed” judges representing almost divine wisdom (because what is human is full of errors), high or lofty legal stories, all that (sometimes mysterious) stuff full of prestige but necessary to believe in, in fact, (“rational” or rationalised) mysticism of law. And, this all is to keep up with that idea of a peaceful society. Why? This new spirit means faith in social order. And again, here come Devlin, Finnis, and others… Maybe they have noticed that 88 See

Bunikowski (2016), p. 82. Dworkin (2013). 90 See Wettstein (2013). 91 See Gordley (1991). 89 See

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mystery and mysticism are behind any law; that this is divine, sacred. Like religion. Why? Because it (law/belief in law) brings social order and peace. Because people are spiritual (not only material): they have to believe in values which they are not able to touch. This is intangible. They can touch codes and constitutions but neither values of these acts nor wisdom in courts or public administration. So this is also why I pay attention to divinity in law. Of course, people cannot see or touch electricity but electricity is not sacred, divine. It is countable (coming from the laws of nature). Wisdom, justice, and virtue as values, ideas, and imaginations/patterns of good and just law—not described in mathematical patterns—are behind our (only Western?) law. To go to Justice is to go to divine things, the just. Justice is made by religious or irreligious humans in the name of a higher ideal. This ideal might be called “divine”. This is how it might have been interpreted by Justinian or might be understood by his followers like natural lawyers nowadays.

8 Conclusions If truth is discoverable, as the philosophical outsider Steve Patterson points out,92 do we have epistemological tools to reject “divine things” in jurisprudence? Even scepticism may tell me that I do not know what is behind “behind”. If we do not know the truth, why do we reject “divine things” in jurisprudence, limiting the science to its analytical or postmodernist (often, quite neo-Marxist) versions? To me, law might be interpreted as a tool of theology or Justinian’s philosophy/”the science of the just and the unjust, the knowledge of things divine and human” in departments of theology, philosophy, law, anthropology or even astronomy. Divine jurisprudence pretends to be a new astronomy of law and opens up new horizons of cosmic (and sacred, divine) understanding what law is. Western jurisprudence can benefit from this. In non-Western legal traditions, considerations about law and cosmology or law and divinity are quite normal. For example, there is analysed the cosmology of law in Buddhist Tibet, i.e. there are studied “the relationship between secular law and Buddhist law” as well as “the relationship between traditional and modern concepts of civic religion”.93 Such concepts as “the jurisprudence of the mind” or “the mandala of law” are put on the table. Mandala94 is “the root metaphor” for the cosmos and a “central symbolic structure for the entire legal system”; beyond “the secular outside” and “the sacred Buddhist core”, this is “to map directly on the levels 92 See

Patterson (2016). (1995), p. 97. 94 French (1995), p. 101, also explains the mandala concept more widely: “The Tibetan mandala presents the entire universe and all realms within a single essential plan, representing at one and the same time the constancy of movement in/out, up/down, the cyclical nature of rebirth, reified social and spatial hierarchy, the universalized path of individual mental conscience and the ultimate union of the sacred and the secular in a single cosmic design. The mandala is also the root metaphor for the levels of the legal administration (…)” [my italics—DB]. 93 French

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of legal administration from the periphery to the core culminating in the central administration”.95 A good scholar does not laugh at Finnis’s lofty words about the high (divine) status of Jurisprudence from Justinian’s Code,96 nor does he or she laugh at scholars like Muñoz Batista,97 a Mexican Christian philosopher, who speaks about freedom and equality in the world history and in the “mystery” of both the world and a human being. Ba´nkowski’s words “But what might that mean to the more secularly minded and those from other traditions?” after his reference to the concept of death in 1 Corinthians 15:55 seem a good question.98 Having found difficulties with focusing too much on political theory/legal reasoning and having sought “the existential question” and “something more”, Ba´nkowski agreed to Simone Weil, “who says that behind all the talk of law and rights is a cry for justice and we have to learn respond to that. The cognitive tasks of what to do how to build societies is all very well and important”99 (my italics—DB). So, “Why bother to have such institutions of love? Why bother to work for them?”100 Scholars’ job is to always try to understand the truth but they are not enforced or expected to take one of the views/positions (divine v. secular), if any, for granted. This attitude may make jurisprudence as a science about divine and human things possible. This makes the science of law open for new horizons and new/old narratives or inspirations as well as their reconfigurations and reinterpretations. Finally, I think that so we need a society of both believers and non-believers living in peace and harmony as we need both divine jurisprudence and human jurisprudence: scholars who are more to religion and those who do not have religious opinions and inspirations. To avoid accusations of both quasi-religious romanticism of jurisprudence and moral sentimentalism of/in law in doing legal theory, I claim that this theory presented here is rational—it comes from a human reason that is open for the human and the divine. This study is a short prolegomena to more deeper and wider considerations to come on this topic in the future (in order to reinvent the academia).

References Aarnio A (2007) Who are we? On social, cultural, and legal identity. In: Gizbert-Studnicki T, Stelmach J (eds) Law and legal cultures in the 21st century. Diversity and unity. Wolters Kluwer Polska, Warszawa Aristotle (1893) The Nicomachean ethics (trans: Peters FH), 5th edn. Kegan Paul, Trench, Truebner & Co., London. http://oll.libertyfund.org/titles/aristotle-the-nicomachean-ethics. 2 Mar 2016 95 French

(1995), p. 114. Finnis (2006). 97 Batista (1981), p. 275, highlights: “La historia es resultado de una masa enorme de necesidades y fatalismos acumulados, en la que las intervenciones de la libertad tambien se hacen oir”. 98 Ba´ nkowski (2007), p. 215. 99 Ba´ nkowski (2014b), p. 21. 100 Ba´ nkowski (2014b), p. 25. 96 See

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Austin J (1832) The province of jurisprudence determined. John Murray, Albemarle Street, London. http://www.koeblergerhard.de/Fontes/AustinJohnTheprovinceofjurisprudencedetermined1832. pdf. 2 Mar 2016 Baldus (1991) Commentaria to D. I.I.I.2. In: Gordley J (aut) The philosophical origins of modern contract law. Oxford University Press, Clarendon Press, Oxford Ba´nkowski Z (2007) Bringing the outside in: the ethical life of legal institutions. In: GizbertStudnicki T, Stelmach J (eds) Law and legal cultures in the 21st century. Diversity and unity. Wolters Kluwer Polska, Warszawa Ba´nkowski Z (2014a) The space to see: law and the ethical imagination (Paper written in a research project). Sent by the author via email in 2014. Also available at http://www.doktoranckie.prawo. uni.wroc.pl/sites/default/files/Bankowski%20The%20space%20to%20see.pdf. 26 Dec 2018 Ba´nkowski Z (2014b) The long goodbye: (a) life in and out of the law (Public, “farewell” lecture by Ba´nkowski.) Sent by the author via email in 2014. Also available at https://www.researchgate. net/publication/291993725_The_long_goodbye_A_life_in_and_out_of_the_law. 26 Dec 2018 Bellomo M (1995) The common legal past of Europe, 1000–1800. Catholic University of America Press, Washington, D.C Bunikowski D (2016) Historical and philosophical foundations of European legal culture. Cambridge Scholars Publishing, Newcastle upon Tyne Bunikowski D (2017) The cosmology of ontology of axiology of law (short outline of my argument). https://www.researchgate.net/publication/304022950_The_cosmology_of_ontology_of_ axiology_of_law_short_outline_of_my_argument. 5 July 2017 (The) Cardinal Muller Report’ Expands on Christian Hope. National Catholic Register, June 21st, 2017. http://www.ncregister.com/daily-news/the-cardinal-muller-report-expands-onchristian-hope. 15 Mar 2018 Calhoun C (2001) The virtues of inconsistency: identity and plurality in the conceptualization of Europe. In: Cederman L-E (ed) Constructing Europe’s identity. The external dimension. Lynne Rienner Publishers, Inc., Boulder, USA; London, UK, pp 35–56 Devlin P (1971) Morals and the criminal law. In: Wasserstrom RA (ed) Morality and the law. Wadsworth, Belmont Doe N (1990) Fundamental authority in late medieval English law. Cambridge University Press, Cambridge Doe N (1996) The legal framework of the Church of England. Clarendon Press Oxford, Oxford Doe N (1998) Canon law in the Anglican Communion. Clarendon Press Oxford, Oxford Doe N (2002) The law of the Church in Wales. University of Wales Press, Cardiff Doe N (2008) An Anglican Covenant: theological and legal considerations for a global debate. Canterbury Press, London-Norwich Doe N (2011) Law and religion in Europe. Oxford University Press, Oxford Doe N (2013) Christian law: contemporary principles. Cambridge University Press, Cambridge Dworkin R (2013) Religion without God. Harvard University Press, Cambridge, MA, USA; London, UK Etheredge F (2016) From Truth and truth: Volume I—faithful Reason. Cambridge Scholars Publishing, Newcastle upon Tyne Feinberg J (1987) Some unswept debris from the Hart-Devlin debate. Synthese 72(2):249–275 Finnis J (1991) Moral Absolutes: Tradition, Revision, and Truth (Michael J. Mcgivney Lectures of the John Paul II Institute). Catholic University of America Press, Washington, D.C. Finnis J (1995) Law, morality, and “sexual orientation”. Notre Dame Law School NDL Scholarship Scholarly Works 1995, Paper 205. http://scholarship.law.nd.edu/law_faculty_scholarship/205. 2 Mar 2016 Finnis J (2006) On ‘public reason’. Notre Dame Legal Studies Paper No. 06-37; Oxford Legal Studies Research Paper No. 1/2007. SSRN: https://ssrn.com/abstract=955815 or http://dx.doi. org/10.2139/ssrn.955815. 12 Sept 2018 Finnis J (2011a) Natural law and natural rights, 2nd edn. Oxford University Press, Oxford

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Finnis J (2011b) Philosophy of law: collected essays, vol IV (Collected essays of John Finnis), 1st edn. Oxford University Press, Oxford French RR (1995) The cosmology of law in Buddhist Tibet. J Int Assoc Buddhist Stud 18(1):97–116 Gordley J (1991) The philosophical origins of modern contract law. Oxford University Press, Clarendon Press, Oxford (van) Hoecke M (2007) European legal cultures in a context of globalisation. In: Gizbert-Studnicki T, Stelmach J (eds) Law and legal cultures in the 21st century. Diversity and unity. Wolters Kluwer Polska, Warszawa Justinian’s Compilation (535), the Institutes, Book I, Of Persons. I. Justice and Law. The Latin version of the text: http://www.thelatinlibrary.com/justinian/institutes1.shtml. 12 Sept 2018 McIlroy D (2017) Catholic and Protestant approaches to human rights. Law Justice Christ Law Rev 179:135 Muñoz Batista J (1981) Reflexiones sobre los Valores de Libertad e Igualdad (Aspecto Filosofico y Social). In: Memoria del X Congreso Mundial Ordinario de Filosofia del Derecho y Filosofia Social (I.V.R.), volumen III. Universidad Nacional Autónoma de Mexico, Mexico City Morton J (1992) Obituary. Lord Devin. The Independent, 11.08. https://www.independent.co.uk/ news/people/obituary-lord-devlin-1539619.html. 23 Sept 2018 Patterson S (2016) Square one: the foundations of knowledge. Creative Commons Pennington K (2008) Lex Naturalis and Ius Naturale. The Jurist 8:569–591 Plato (1888) The republic. Oxford. http://oll.libertyfund.org/titles/598. 2 Mar 2016 Plato (1892) The dialogues of Plato, vol 2 (Meno, Euthyphro, Apology, Crito, Phaedo, Gorgias, Appendix I—Lesser, Hippias, Alcibiades I, Menexenus, Appendix II—Alcibiades II, Eryxias). Oxford, London. http://oll.libertyfund.org/titles/plato-dialogues-vol-2. 2 Mar 2016 (The) Polish Constitution of 1997’s Preamble. The text available at http://www.sejm.gov.pl/prawo/ konst/angielski/kon1.htm. 4 July 2017 St. Thomas Aquinas (1947) Summa Theologica, translated by the Fathers of the English Dominican Province. http://www.sacred-texts.com/chr/aquinas/summa/. 2 Mar 2016 (The) Statute of the International Court of Justice of 1945. The text available at http://www.icj-cij. org/en/statute. 16 Mar 2018 Stein P (1999) Roman law in European history. Cambridge University Press, Cambridge Thomasius Ch (2011) (first published in 1688) Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. http://oll.libertyfund.org/titles/institutes-ofdivine-jurisprudence-with-selections-from-foundations-of-the-law-of-nature-and-nations. 5 July 2017 Tierney B (1997) The idea of natural rights: studies on natural rights, natural law, and church law, 1150–1625. William B. Eerdmans Publishing Company, Grand Rapids/Michigan / Cambridge, UK Tierney B (2014) Liberty and law: the idea of permissive natural law, 1100–1800. Catholic University of America Press, Washington, D.C. Twining W (2000) Globalisation and legal theory. Cambridge University Press, Cambridge Van der Veken J (1981) The philosophical mediation of Christian values. In: Memoria del X Congreso Mundial Ordinario de Filosofia del Derecho y Filosofia Social (I.V.R.), volumen III. Universidad Nacional Autónoma de Mexico, Mexico City Wettstein H (2013) Ronald Dworkin, Religion without God. Harvard University Press, 180 pp. Reviewed by Howard Wettstein, University of California, Riverside. http://ndpr.nd.edu/news/ religion-without-god/. 5 July 2017 Wittgenstein L (2001) (first published in 1921) Tractatus Logico-Philosophicus. Routledge, New York, London

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Other sources Oxford Conversations. John Finnis (Review). https://oxfordconversations.org/john-finnis-scholars/. 23 Sept 2018 (The) Oxford Learner’s Dictionary. https://www.oxfordlearnersdictionaries.com/. 12 Sept 2018 (The) Book of Genesis, Chapter 1. https://www.wordproject.org/bibles/parallel/polish/index.html. 6 July 2017

Arthur F. Utz’s Thomism: Domestic Peace as Social Justice Giorgio Baruchello

Abstract In this text I offer a Thomist account of domestic peace qua requirement of social justice, aka general or legal justice. First of all, the Thomist conception of justice is outlined succinctly with reference to the German-Swiss philosopher, theologian, Dominican friar, and founding member of the Pontifical Academy of Social Sciences, Arthur Fridolin Utz (1908–2001), and especially to his 1994 book Wirtschaftsethik. Social justice is then contrasted with commutative justice within the liberal economic order, to better explain its meaning and illustrate its legal and political implications. Finally, following Utz, it is argued that domestic peace ought to be rendered to human communities at large, so that each individual member may pursue freely and responsibly her own life-plan. While making its case, this text introduces ipso facto the Anglophone reader to a major 20th-century Thomist, whose chief works have, to date, circulated only in German, French, Spanish, Italian, Japanese, and Latin.

1 A Thomist Account of Social Justice Justice, as Aristotle (384–322 BCE) had already argued long ago, can be general as well as particular, and as the latter is concerned, it can be either commutative or distributive (Chroust and Osborn 1942). A self-declared follower of Saint Thomas Aquinas (1224–1274),1 who in turn was an ardent follower of Aristotle,2 the Thomist 1 As Utz (1994: 5) writes on his own choice of Aquinas qua thinker of reference: after “sixty-five years” of keen philosophical scholarship, “no other ethics” has proven to be nearly as “adequate in order to find the logical path leading from universally valid human norms to the correct solution of concrete practical problems”. (All English translations of Utz’s works in the present text are mine. I cannot claim any major proficiency in German, but I believe my competence to be adequate to the present task; see also Footnote 5 below). 2 So central was Aristotle’s to Aquinas that the latter refers in his works to the former as “the philosopher”.

G. Baruchello (B) Faculty of Humanities and Social Sciences, University of Akureyri, Akureyri, Iceland e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_3

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scholar Arthur Fridolin Utz3 OP4 (1908–2001) recovers and applies their conception of justice throughout his magnum opus, the five-volume-strong Sozialethik (1958– 2000; hereafter Social Ethics).5 In particular, Utz’s 1994 volume Economic Ethics addresses repeatedly both commutative and distributive justice, which are understood respectively as fairness in the commercial and contractual exchanges between particular individuals or groups (e.g. trade unions, professional associations), and fairness in the distribution of whatever socially acknowledged benefits and responsibilities there may be for the same particular individuals or groups (cf. especially Chap. 7).6 These are the two species of particular justice, i.e. that which is due to specific individual members of the community (e.g. certain customers, employers, spouses, etc.) or associations thereof. On the other hand, general justice means fairness toward the whole community, inside which the individual members operate and upon which they rely throughout. Whilst particular justice, whether commutative or distributive, is owed to particular members of society, i.e. to this or that person, legal justice is owed to all persons in general—hence its name—and is best expressed in abstract universal terms, such as ethical norms, moral maxims, constitutional provisions, basic laws, etc. Under this respect, Utz (1994) regularly refers to human rights qua paramount example. Following Aquinas’ 19th-century Jesuit scholar Luigi Taparelli (1793–1862),7 who is famous primarily for having mentored the two founding fathers of the social

3 Born

in Basel, Utz grew up in Germany and became a Swiss citizen in the 1950s (Spindler 2007).

4 Utz was a member of the Ordinis Praedicatorum (OP) i.e. the Dominican Order, to which Aquinas

belonged too. Within it, Utz is known as a member of the so-called “Walberberg circle”, which comprised four more Dominicans: Laurentius Siemer (1888–1956), Eberhard Welty (1902–1965), Edgar Nawroth (1912–2010) and Basilius Streithofen (1925–2006) (Ockenfels 2007). His Social Ethics is neither confessional nor clerical, however. It is philosophical, and specifically Thomist. 5 Utz’s Wirtschaftsethik (hereafter Economic Ethics) is the fourth instalment in the author’s monumental Social Ethics, which comprises: (1) Die Prinzipien der Gesellschaftslehere (i.e. Principles of the Social Doctrine, 1958; 2nd ed. 1964); (2); Rechtsphilosophie (i.e. Philosophy of Law, 1963); (3) Die soziale Ordnung (i.e. The Social Order, 1986); (4) Economic Ethics (1994); and (5) Politische Ethik (i.e. Political Ethics, 2000). All original versions, plus a partial Japanese translations of volume 5, are available online on the website of the Swiss foundation dedicated to Utz, i.e. Von Galen (1976). Concerning Economic Ethics, all references but to the preface are expressed by means of combinations of numbers separated by full stops: the first number indicates the chapter, the second the section, the third the sub-section and the fourth, when applicable, the sub-sub-section. I believe this to be an efficient solution for readers that may come across different translations of Utz’s volume (though none in English yet), as well as a clear indication of its systematic organisation. I owe this idea to Giovanni Salmeri, the Italian translator of Utz’s Economic Ethics, which in the German original employs respectively worded numerals, Roman numerals, Arabic numerals and letters of the Latin alphabet, though not always consistently. 6 In today’s Anglophone academia, the notion of economic ethics is commonly associated with the name of Peter Koslowski, who was familiar with Utz’s research (see Koslowski 2001: 26). On his part, Utz knew Koslowski’s work, which Economic Ethics mentions five times. 7 See Taparelli (1855): 243–256. All English translations are mine.

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doctrine of the Church of Rome,8 Utz (1994: para 5.2.6) refers to Aquinas’ “general” aka “legal” justice as “social justice”, and he claims it to have “priority over” particular justice, also in the economic sphere (i.e. “market law” or “commutative justice”). “Social justice”, as Taparelli (1855: vol. 1, para 354) writes, “means justice between man and man, …man being considered in the abstract, endowed exclusively with humanity’s requirements, as a pure reasonable animal… under relations of perfect equality”, i.e. under general rather than particular conditions, whereby “social justice” translates into “the fact that all men are to be rendered their human rights, given that the Creator made them equal in their nature; and that man, by following the norms of such a justice, fulfils the intentions of the one who created him.”9 Also, without the prior recognition of the common humanity of its members, there can be no viable society in which commutative and distributive justice truly apply. Quite the opposite, as Utz (1994) argues, the relations that should embody them turn far too promptly and far too easily into instruments of injustice. For example, when social justice is absent or hampered, “prices” and “contracts” can be formed devoid of “good faith”, e.g. unbalanced transactions occurring because of another person’s state of urgent need, such as “hunger” (Utz 1994: para 10.1).10 In this case, speaking of “free contracts”, “free trade” and “individual responsibility” is either naïve or hypocritical (Utz 1994: para 10.1).11 It is like accepting as valid “sport 8 These ‘fathers’ were Matteo Liberatore SJ (1810–1892) and the future Pope Leo XIII (1810–1903),

who issued the pivotal encyclical Rerum Novarum (1891), drafted by the former. Until then, there had been only a doctrina civilis but not socialis (see Barrera 2010: n8). Moreover, with the aid of Tommaso Cardinal Zigliara OP (1833–1893), they were instrumental in making the philosophy of Aquinas the official philosophy of the Catholic Church (see Misner 1991; Behr 2000). This was the meaning, in essence, of Leo XIII’s 1879 encyclical Aeterni Patris, in which the authoritative doctrinal sources of the Church are catalogued, summarised, analysed succinctly and assessed. Aquinas had been an important theologian of the Church already in his lifetime, but Aeterni Patris meant that the Catholic Church adopted his philosophy, that is to say, a neo-Aristotelian system of thought claiming that natural reason can grasp, unaided by faith, many truths about the world in which we live and, a fortiori, about ourselves qua worldly creatures. This encyclical, together with other measures, led to the standardisation of the curricula within Catholic educational institutions and seminars along Thomist lines that, in spite of inevitable swings over long stretches of time, are still de rigueur today (see Congregation for Catholic Education 2011). 9 I keep the masculine pronoun of the 19th-century Italian original, but “man” is here meant to apply to female human beings too. 10 For a recent example of this kind of behaviour, consider price gauging in 2017 hurricane-devastated Texas (Hiltzik 2017). 11 The same logic applies to international relations. For instance, Paul VI’s 1967 encyclical letter, entitled Popolorum Progressio, addresses the desperate plight of poorer countries “overwhelmed by debts whose repayment swallows up the greater part of their gains”, which is the result of unfettered liberal policies: “[T]he principle of free trade, by itself, is no longer adequate for regulating international agreements. It certainly can work when both parties are about equal economically… But the case is quite different when the nations involved are far from equal. Market prices that are freely agreed upon can turn out to be most unfair.” (paras 54 and 58). The Pope’s critique is not backed by Biblical injunctions, but by Thomist reasoning upon “justice”, whereby “the rule of free consent remains subservient to the demands of the natural law.” (para 59). Equality in the freedom to enter into a contract is no real freedom, if prior gross inequality in access to means of life, income and education subsists.

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performances” by athletes taking forbidden drugs, or the “legal order” established by “dictators” who violate “human rights” (Utz 1994: para 10.1). For the system of “commutative justice” known as the market economy to be justified, the conditions for “social justice” must be in place (Utz 1994: para 10.2).12 According to this line of reasoning, any society contravening the requirements springing off its members’ common humanity distances itself from God’s benevolent will. The priority of “social justice” is logical, practical and, for clergymen such as Taparelli and Utz, theological. Whichever rational justification may be the more fundamental, however, the practical conclusion is the same.13 Law and order, interpersonal and institutional trust, plus the material preconditions for cooperative social coexistence, must be in place for any fair system of commercial exchanges to be able to unfold, or any distribution of, say, legal privileges and duties to legitimately occur. In other terms, effective civil commons are the precondition for just commutations and distributions.14 For example, in modern society, a modicum of fiscal capital ought to be ensured whereby to provide universally life-enabling services and goods, so that all citizens can take part in the economic and civic life of their community.15 As US jurist Oliver Wendell Holmes Jr. (1841–1935), the ‘Great Dissenter’, famously stated: “Taxes are what we pay for a civilized society.”16 That social justice is prior to particular justice is no revolutionary or particularly original realisation, though it might sound somewhat radical in our time and age, 12 Although complete perfection is not possible in this life, the Catholic doctrine assumes the possibility of progressive improvement, or at least of worthy attempts in this sense. 13 “Simply as one of the facts that bulk big in history, it is true to say that Thomas was a very great man who reconciled religion with reason, who expanded it towards experimental science, who insisted that the senses were the windows of the soul and that the reason had a divine right to feed upon facts, and that it was the business of the Faith to digest the strong meat of the toughest and most practical of pagan philosophies. […] Those who, for other reasons, honestly accept the final effect of the Reformation will none the less face the fact, that it was the Schoolman who was the Reformer; and that the later Reformers were by comparison reactionaries. I use the word not as a reproach from my own stand-point, but as a fact from the ordinary modern progressive standpoint. For instance, they riveted the mind back to the literal sufficiency of the Hebrew Scriptures; when St. Thomas had already spoken of the Spirit giving grace to the Greek philosophies. He insisted on the social duty of works; they only on the spiritual duty of faith. It was the very life of the Thomist teaching that Reason can be trusted: it was the very life of Lutheran teaching that Reason is utterly untrustworthy.” (Chesterton 1933: Chap. 1). 14 Citing the “International Labor Organization”, Pope John XXIII’s 1961 encyclical letter Mater et Magistra offers very concrete examples: “[C]onsiderable thought must be given, especially by public authorities, to the suitable development of essential facilities in country areas—such as roads; transportation; means of communication; drinking water; houseing; health services; elementary, technical and professional education; religious and recreational facilities; and the supply of modern installations and furnishings for the farm residence. Such services as these are necessary nowadays if a becoming standard of living is to be maintained.” (paras 103 and 127). 15 Utz (1994) cites, inter alia, highly specific examples, such as unemployment benefits funded by a money pool in which “all enterprises” participate (paras 5.2.6 and 7.1.1), a tax-based “common fund” aimed at integrating the income of low-paid workers so that they are able to provide for “a family” (para 5.2.7), and a centrally administered monitoring and steering authority that, by means of “fiscal” dis/incentives, leads to “the productive use of the land” (para 7.7). 16 Holmes (1927).

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when libertarian stances receive much credit in political rhetoric, the current Pope is accused by popular media pundits of being a dangerous Marxist for recalling the Scriptures’ admonitions against greed and the wealthy’s culpable neglect of the poor,17 and individualistic self-maximising rationality is taken seriously qua foundational anthropological assumption in socio-scientific methodology.18 Pace Utz’s unswerving adherence to the long-lived Aristotelian-Thomist conceptions of the human being as inherently social and of the family qua fundamental social unit,19 many social scientists, especially in economics, operate today under the presumption that, somehow, Thomas Hobbes’ (1588–1679) thought experiment of a state of nature in which individual humans are merciless beasts of prey onto one another is candid enough a depiction of human nature, aspirations and relationships.20 However, such a state of nature has never existed prior to communal life, for we are social primates and require prolonged parental care, and can only subsist occasionally and for a very short time whenever pre-existing societies collapse, e.g. because of brutal internecine conflagrations like the British civil war witnessed by Hobbes in the 17th century.21

2 A Picture Is Worth a Thousand Words In all likelihood, most contemporary anthropologists, ethologists and ethnologists would testify to this truth, which Jean-Jacques Rousseau (1712–1778) had already identified in his 18th-century studies of allegedly ‘primitive’ yet remarkably peaceful 17 E.g.

Thomas (2015). Francis’ predecessor, Pope Benedict XVI, did not suffer as much media abuse, possibly because of his lesser status as a media celebrity. However, his 2009 encyclical Caritas in Veritate opposed vocally the standard conception of homo oeconomicus of orthodox economics and argued in an unsurprising Thomist fashion that “justice must be applied to every phase of economic activity, because this is always concerned with man and his needs. Locating resources, financing, production, consumption and all the other phases in the economic cycle inevitably have moral implications. Thus every economic decision has a moral consequence” (para 37). 18 See McMurtry (2011a). Back in the 1850s, Taparelli (1855) had already argued that human beings are not motivated solely by “economic interest”. They are also driven by “social” (e.g. forming a family and making friends, and spending time with them), “moral” (e.g. wishing not to have one’s fellow humans suffer needlessly), and “rational” interests (e.g. acknowledging and doing one’s duty, pursuing the truth). Which ones are predominant within society is also a matter of schooling, culture, worship, laws and other institutions. 19 These conceptions are still part of the social doctrine of the Church. Together with Austria’s Johannes Messner (1891–1984), Utz was a key-member of the German-speaking Catholic school of thought that, in post-war Europe, exercised considerable influence in its development, also known as Catholic Social Teaching, and its application qua social market economy, which was promoted by Christian-democratic parties first at a national level (especially in former Western Germany, Austria and Switzerland) and then at a continental level (i.e. in what we know today as the European Union). Other notable members of this tradition were Germany’s Joseph Höffner (1906–1987) and Oswald Nell-Brüning (1890–1991) (see Von Galen 1976). 20 See Slomp (2000), McMurtry (2011b). 21 Utz (1994) tackles Hobbes’ thought experiment in Chap. 6, where it is described as a dismal analogue of the early Church Fathers’ “paradisiac state” of humankind before the fall.

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Fig. 1 Ambrogio Lorenzetti, Allegoria del buon governo, Palazzo Pubblico di Siena. Source The Yorck Project (2002) 10.000 Meisterwerke der Malerei (DVD-ROM), distributed by DIRECTMEDIA Publishing GmbH

societies outside of Europe.22 Our forefathers knew it quite well too. Most certainly, they did so around the time of Aquinas, as literally visible in the Public Palace of Siena. In it, Ambrogio Lorenzetti’s (1290–1348) fresco The Allegory of Good Government (or Governance; 1338–1339; Fig. 1)23 captures visually how this conception of justice was commonplace back in Aquinas’ Italy.24 Specifically, the fresco depicts justice in the shape of a mighty woman sitting on a throne (top, left side). Inspired and crowned by divine wisdom, the allegorical reading is plain: justice ought to be the ruler in a community wishing to be good or, to cast the same idea in other words, rulers are legitimate if and only if they are just.25 The enthroned female personification of justice is general (aka legal aka social) justice. She is neither form of particular justice, both of which emanate instead from her, as shown in the fresco by the smaller angelic personifications set under the inscriptions “distributiva” and “comutativa”, and standing on the dishes of the scale held by general justice. The message is blatant: general justice has priority over particular justice—the latter cannot be given if the former is absent. Consistently with the articulate Aristotelian treatment of justice, this is not enough for Lorenzetti. Justice (“iustitia”) appears again in the fresco, once more as a female personification, this time as a cardinal virtue among others—peace, fortitude, prudence, magnanimity and temperance—i.e. as an essential trait of character to be 22 Rousseau

(2003). translation of “governo” into “governance” has led to applications of Lorenzetti’s characteristically medieval conception of the good State in today’s area of good governance and development studies, e.g. Wagener (2004), Dijkstra (2013). 24 See Rubenstein (1958): Lorenzetti’s views may not be identical to Aquinas’, but they are equivalent grosso modo. 25 The printed editions of the 2004 Compendium of the Social Doctrine of the Church carry Lorenzetti’s fresco on their cover. The Compendium is issued by the aptly named Pontifical Council for Justice and Peace. 23 The

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possessed by all the persons entrusted with the governing of the polity (right side, middle horizontal level). Without personal virtue, no institutional arrangement is safe. Bad individuals can betray good principles, corrupt good laws and pervert good institutions. Albeit allegorically expressed, the painter’s overall emphasis is unconcealed: a good community is a just one, consistently and throughout, whether at the level of guiding principles (top horizontal level), institutions (middle horizontal level), or inhabitants (bottom horizontal level). Without justice in all of its forms, a dysfunctional society unravels, which will inevitably fail the wellbeing of its individual members and their civic associations.26 Revealingly, among the cardinal virtues sits tallest the male personification of the common good: it is the City of Siena, whose head is encircled by the three angelic personifications of the theological virtues, i.e. love, faith and hope (top, right side). Bearded and majestic, he holds in his right hand the end of a rope, which has been passed to him by the citizens of Siena (bottom, centre), who received it in turn from Concord (bottom, left), who herself made the rope by joining the threads descending from both dishes of justice’s scale, i.e. distributive and commutative justice. If a community aims at the common good, i.e. the integral good of the human person now and in the future, then all forms of justice must be pursued. Justice, as the rope in the fresco, must run through all the levels of civic life. Conversely, justice is the most visible personified victim in the dysfunctional society that Lorenzetti shows in his mirror-like fresco, or Allegoria del cattivo governo (1338–1339; Fig. 2), where she is held captive and powerless (“iustitia”; no longer in the highest two tiers of a fresco, but at its bottom). The rope that was previously joining divine wisdom itself with all the members of a peaceful and prosperous community has now become a chain held by one man, depicted as a Satanic tyrant (“tyrannide”), who is inspired by the vices of greed (“avaritia”), pride (“superbia”) and vainglory (“vanagloria”; all three around tyranny’s horned head), not by virtues, and is accompanied (from left to right) by the personifications of cruelty (“crudelitas”), betrayal (“proditio”), fraud (“fraus”), fury (“furor”), disharmony (“divisio”), and war (“guerra”). Warfare is further emphasised as the manifestation and consequence of the fatal desertion of justice by the presence of soldiers at the feet of the Satanic tyrant and his malicious courtiers (bottom). Some are fighting over a new-born baby (middle-right), others have amputated and killed two citizens (far right), and two more at least (the fresco is damaged) threaten with arms a female companion of captive justice (left). Soldiers, men of violence and murderers seem the only persons prospering in an otherwise deserted city, which is surrounded by the dark flames of a fire consuming the countryside outside the city walls. No sign of economic activity, trade or commutations is left to be seen.

26 This dysfunctional society is what Lorenzetti shows in his mirror-like fresco, Allegoria del cattivo governo, where justice is bound, captive and powerless; the rope is there a chain held by one devilish-looking tyrant.

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Fig. 2 Ambrogio Lorenzetti, Allegoria del cattivo governo, Palazzo Pubblico di Siena. Source Photograph by: José Luiz Bernardes Ribeiro

3 A Thomist Critique of Liberalism A long-time adversary of Catholic thought, principles and institutions, Marxist socialism was seemingly defeated worldwide in the 1990s. As a consequence, Utz (1994) does not spend much time on it and takes issue instead with the liberal tradition, especially with reference to Adam Smith (1723–1790) and Friedrich Hayek (1899–1992), the latter being the declared intellectual inspirer of UK Prime Minister Margaret Thatcher (1925–2013) and her many epigones and emulators.27 On the one hand, Utz (1994: para 7.1) praises “the liberal vision… of the pure market economy” for “constructing logically” a “theoretically valid… argumentative 27 The distinctiveness of Catholicism with regard to both liberalism and socialism had already been established in political theory by a book that had been successful among conservative Catholics after the revolutionary wave of 1848, i.e. Donoso Cortés (2010). A progressive Catholic, Leo XIII nonetheless reinforced such a distinctiveness with Rerum Novarum, and launched a project for a ‘third way’ that has been variously undertaken by many politicians and political parties in the real world. The social doctrine of the Church has undergone many refinements, specifications and integrations over a relatively short life. Yet, a strong sense of continuity is built in each and all the encyclicals devoted to it, as also signalled by extensive cross-citations, recurrent publication dates (e.g. the 15th of May) and direct references in the titles [i.e. “on the fortieth year” and “on the hundredth year” (since the publication of Rerum Novarum)]. The most prominent contributions are Pius XI’s (1857–1939) Quadragesimo Anno (1931), John XXIII’s (1881–1963) already-cited Mater et Magistra and Pacem in Terris (1963), Paul VI’s (1897–1978) quoted Populorum Progressio, and John Paul II’s (1978–2005) Laborem Exercens (1981), Sollicitudo Rei Socialis (1987), Centesimus Annus (1991) and Evangelium Vitae (1995). In our century, in addition to Benedict XVI (2009), Francis’ Laudato si’ (2015) should be cited for tackling environmental issues above all else.

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scheme of the market economy” based upon “self-interest”. Utz (1994: para 7.1.1) stresses also the theoretical coherence leading from the 18th-century philosophical roots of “sensualism” and “individualism” to the mature political and economic 19thcentury doctrine of “liberalism”. It is upon the basis of such roots that “altruism” could be deemed inadequate to form the basis for a well-functioning “ramified network of interactions, particularly in the field of economic agency”, and the “self-interest” of “private” economic agents was therefore taken to be the prime “motive of human commitment” in society (Utz 1994: para 7.1.1). A vision of a system of “commutative justice alone” emerged gradually within the liberal canon, at least as this is understood in Europe, demanding “perfect competition” and “rational price formation” in order for “the goods required for the universal satisfaction of needs to be produced in the most economic manner”, that is to say, for the “parsimoniously” generated “supply” to meet most “efficiently” its own corresponding “purchasing demand” (Utz 1994: paras 7.1.1 and 7.1.2). Within this system, all “value”, hence “social value” too, comes to mean the “price” of goods and services supplied, as their price is determined by the demand of “purchasers or consumers” (Utz 1994: para 7.1.1). Value is then the price that a good can fetch in a market. This determination applies to all forms of “goods”, including “labour” (which for Utz means also “management” or entrepreneurship), “land” (meaning for Utz also vital ecosystem services) and “capital”, and must operate free from price-distorting State interference on both “national” and “international” levels (Utz 1994: paras 5, 7.1.2 and 7.1.3). Under this perspective, “private” agency is also paramount and preferable to that of public authorities at all levels, including “social security”, “unemployment” remedies, “pensions” and “expecting mothers’ protection on the workplace” (Utz 1994: para 7.1.4). Albeit a mere abstract “image” or “idea”, many liberals have believed this system to be “ethically justified because of its economic efficiency” and therefore worthy of being pursued in reality in a “total”, if not totalitarian, implementation, to the point of revising entire constitutional setups and legal systems in its light (Utz 1994: para 7.1.1). During the 1990s, when Utz’s Economic Ethics was published, the former Warsaw-Pact nations, advised by self-appointed international heralds of liberal democracy such as the OECD and the World Bank, were being transformed accordingly and experienced wave upon wave of privatisations, liberalisations and variously dubbed “reforms”, in a process of so-called “transition” that, in many cases, is yet to end.28 Were the liberals’ abstract idea real, in the Thomist sense of grasping the essence of things, then such an implementation could be a valuable operation. However, according to Utz, it is not.29 The liberal idea is gravely deficient. Liberals may 28 According

to economic experts affiliated with the United Nations (2016: 2), part of the Balkans, Georgia and the Commonwealth of Independent State, including the Russian Federation, are still “economies in transition”, almost thirty years after the collapse of the Soviet Block; their fate seems reminiscent of ‘developing’ countries, which have been described as such for decades, and never manage to become ‘developed’. 29 Consistently, Utz (1994) is critical of the Western-driven, if not dictated, post-communist transitions and Third-World development programmes. Under this respect, he speaks of “two stages” to be followed: “the general principles and the application to the concrete situation.” (para 2.4). First

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believe that they are depicting an image akin to the anatomist’s perfect abstraction of a healthy body, but in actuality their depicted body is a mutilated one. Utz (1994: para 7.1.5) believes “individualism” to be as old as the fall from Eden, i.e. to have firm roots in the human bosom, but also that its intensity can be increased or decreased through acculturation; under this respect, liberalism makes it more intense, as shown by the widespread “loss of honesty” for selfish motives characterising “the modern age”.30 In short, it cannot be excluded from view (as perhaps the Marxists would like to do), but it must not become the only or the paramount criterion for social organisation. When this happens, liberals end up leaving out of the picture many important aspects of human nature that allow for the notion of “common good” to be both intelligible and reasonable, pace Hayek’s protestations to the contrary (Utz 1994: para 7.1.5). Our natural sociability is a prime example of the common good being intelligible and reasonable. Without conjugal and parental relationships, which are both historically and logically distinct from individualistic market commutations, families would not be formed and societies would not come into existence; a fortiori, no economic order of any kind would subsist (Utz 1994: para 7.1.5).31 Though frequently done by liberals, Utz (1994: para 7.3.1) argues that it does not take much to realise that it is not possible to reduce “society” to the “individualistic… market only”, lest we wish to face unbearable contradictions. Emblematically, liberals have regularly neglected the participation of human beings in a greater ecological order, which cannot and must not be sacrificed to “unlimited growth” by individual self-maximisation as “the supreme end of political economy” (Utz 1994: para 7.1.5). Unless we intend to face worldwide environmental, social and, a fortiori, economic collapse, standard liberal economic criteria for “growth” must be revised radically (Utz 1994: para 7.1.5). No major novel scientific discovery is needed to understand this point: “That cars pollute was known since the beginning… The same goes for oil-powered heating” (Utz 1994: para 7.1.5).

of all, one must determine which abstract rules pertain to “human nature, in view of the universal common good”; then it will be possible to proceed to their application to specific national and international contexts, with due consideration for the “empirical data” that can be gathered (para 2.4). If insufficient caution is exercised with regard to such national and international specificities, then “unrealistic and excessive expectations” can be forced upon “a nation”, as exemplified by the one-size-fits-all approach of international financial organisations (para 2.4). 30 Individualistic rational self-maximisation does not seem to be the most salient ethos of clanbased cultures, ‘primitive’ tribes or religiously inspired communities (e.g. the Amish, Quakers and Mennonites in the Americas; Weiner 2013). 31 Reductions of family ties to orthodox economic categories are, in this sense, grotesque, equivocal and, nomen omen, reductionist, for they re-describe phenomena in such a way as to make them manageable by the desired conceptual apparatus but, in so doing, they leave out important aspects of those phenomena—aspects that make those phenomena what they are (e.g. Nobel-prize-laureate Gary Becker’s interpretation of children as durable goods and of marriage as a cheaper substitute for prostitution and paid domestic services; Boldizzoni 2013).

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Newer and better laws that steer for-profit economic agency in a life-enabling direction, i.e. towards the common good, are part of the solution.32 Pedagogical and cultural corrections are too: “the moral renewal of society is necessary to save the market economy” from sheer short-term self-interest, which has led to profitable venues being sought relentlessly without consideration for negative long-term personal, social and ecological effects (Utz 1994: para 7.2.4).33 According to Utz (1994: para 7.1.5), a viable “compromise” between standard self-interested economic behaviour and an enlightened notion of the common good should be pursued, which makes a sound use of “taxes[,]… interest rates” and “subsidies (contra the theory of the pure market economy)” in order to attain an “ethically correct growth” aiming “at the global human ends.” Pace the liberal idea of homo oeconomicus, Utz (1994: para 7.2.4) believes that “the individual must be able to think beyond her own self-interest in order to save the market economy” from itself. Fixated on sheer self-maximisation, humankind would cause, in the long run, its own downfall, as amply exemplified historically by massive financial crises, destructive warfare and violent revolutions, none of which is beneficial to the survival of any market economy whatsoever.34

4 Social Justice and Commutative Justice During the decade in which Utz’s Economic Ethics was published and translated, Harvard economics professor Lawrence Summers served as Chief Economist for the World Bank. In that privileged and distinguished position, he issued on the 12th December 1991 an internal memorandum, known as “The Memo” and later leaked to the public, in which he claimed that “the economic logic behind dumping a load 32 This steering may mean stopping the application of liberal principles when they may work against the common good. For example, Francis (2015) mentions how the necessities of life, which the encyclical casts in terms of “rights” (para 30), can be made scarcer by the combination of ecological devastation and private enterprises “maximizing profits” as an end in itself: “Even as the quality of available water is constantly diminishing, in some places there is a growing tendency, despite its scarcity, to privatize this resource, turning it into a commodity subject to the laws of the market. Yet access to safe drinkable water is a basic and universal human right, since it is essential to human survival and, as such, is a condition for the exercise of other human rights. Our world has a grave social debt towards the poor who lack access to drinking water, because they are denied the right to a life consistent with their inalienable dignity.” (para 109). 33 Utz (1994: para 7.1.5) notes how industrial “research” in market economies has been geared towards “the most powerful engines… the most comfortable heating systems”, not towards “renewable energy sources”. Thus, “industry” keeps resisting “change… because of the previous investments that have been made” and for “fear of unemployment”, the excessive presence of which threatens sustained profitability (para 7.1.5). 34 As Utz (1994: para 5.2.4) states, “the individual good must be integrated within the collective good”, that is, whatever businesses and jobs are in place, they must serve the natural aims of human life. It is only under such a rational, comprehensive regulatory framework, i.e. “a juridically ordered economic society”, that there can be “freely stipulated… labour contract[s]” and, more broadly, an ethically justified market order (para 5.2.4).

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of toxic waste in the lowest wage country is impeccable.”35 As Summers (1991) argued, the developing nations are countries in which the inhabitants are paid “the lowest wages” and die younger than “people” in richer nations, who instead “survive to get prostate cancer”, despite the developing nations’ natural environments being “UNDER-polluted… compared to Los Angeles or Mexico City”. Consequently, the same developing nations are also the countries in which “health impairing pollution” can be “done… [at] the lowest cost”, for such already poorer and shorter-lived populations have less to lose, i.e. they have lower “foregone earnings from increased morbidity and mortality” (Summers 1991). Summers (1991) does not address the fact that such an impeccable logic, if followed, would also be self-reinforcing, hence condemning shorter-lived populations to remain shorter-lived. Equally, the likely damages to the natural environments caused by the sort of trade advocated by Summers (1991) are not considered either, despite their obvious economic implications. Mired in growing polluted environments and worsened health, developing nations would never become developed, whilst developed nations would accrue an even bigger advantage over the developing ones.36 That human rights ought to apply equally and universally is also an absent point, which reveals the disconnection between liberal economic categories and the effective recognition of such rights. Finally, reconsidering the validity of economic categories of thought producing such an “impeccable logic” in light of their paradoxical implications is not something that Summers is willing to do.37 35 After the memo was leaked to the public in February 1992, Brazil’s Secretary of the Environment José Lutzenburger sent the following comments to Larry Summers: “Your reasoning is perfectly logical but totally insane… Your thoughts [provide] a concrete example of the unbelievable alienation, reductionist thinking, social ruthlessness and the arrogant ignorance of many conventional ‘economists’ concerning the nature of the world we live in… If the World Bank keeps you as vice president it will lose all credibility.” (Summers 1991). Lutzenburger lost his job shortly after writing his letter. Larry Summers, instead, was appointed in 1999 the U.S. Treasury Secretary, and later became President of his alma mater. Nonetheless, facing prolonged media inquiries and some political backlash, Summers has been trying to disavow it (Harvard Students 2001). Specifically, in the late 1990s, a former young member of Summers’ staff at the World Bank and soon-to-be colleague of his at Harvard—the economist Lant Pritchett—claimed to be the actual author of the memo, which he had merely shown and given to Summers to sign, its tone being sarcastic, its aim being to spur internal debate, and its leaked version having been used malevolently to discredit Summers and the World Bank (Toxic Memo 2001). Whatever the case, which reminds of the popular TV series House of Cards, the memo crystallises poignantly the callous character of laissez-faire liberalism and, whether sarcastic or not, it has been taken seriously by many scholars, including economists affiliated with the libertarian Cato Institute (Johnson et al 2007). 36 Compare Paul VI (1967: paras 44 and 49): “The rule, by virtue of which in times past those nearest us were to be helped in time of need, applies today to all the needy throughout the world. […] [T]he human and supernatural brotherhood of man, and present a three-fold obligation: (1) mutual solidarity—the aid that the richer nations must give to developing nations; (2) social justice— the rectification of trade relations between strong and weak nations; (3) universal charity—the effort to build a more humane world community, where all can give and receive, and where the progress of some is not bought at the expense of others.” 37 The inherent homicidal callousness of liberalism was a known phenomenon to Taparelli and other early Catholic critics of the economic order that liberals advocated. Consider, for example, the Drummond professor of political economy William Nassau Senior (1790–1864) who, when told

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What Summers does in his memo, instead, is to follow such categories of thought to the utmost and reduce the scope of conceivable socio-economic relations to shortterm, horizontal, two-party exchanges, that is, to commutations. A species of particular justice, commutative justice is all the justice that Summer can conceive of, precisely along the lines of Utz’s critique of liberalism. There is no awareness of the different allocations of resources, or of the rights and duties that would be required in order to level the playing field on which wealthy and poor nations enter into contractual exchanges. There is, in short, no awareness of the fair redistributions demanded by the other kind of particular justice, i.e. distributive justice (e.g. by means of international cooperation, productive credit provisions, fair trade, etc.). Nor is there any notion of general or social justice, whereby any community, in order to function properly, is owed first of all continued good environmental conditions, enforced good laws and adequate resources in view of both present and future common good (for Utz, insofar as social justice applies to the human being in abstracto, future generations must be considered too, even if they cannot currently exercise any money demand or express any preference). Such genuine goods can be obtained via well-meaning cooperation with other communities, not via the exploitative and likely lethal exchanges advocated by Larry Summers. Summers (1991) is actually so blind to this prior level of justice, as to write “‘[d]irty’ industries” between quotation marks, i.e. as though polluting and healthdamaging dirt were not as real an issue as the profits that the polluters can make, which instead are not cast between quotation marks. Similarly, Summers (1991) describes “a clean environment” and “pretty air” for “aesthetic and health reasons” as matters of “demand”, i.e. as tradable goods to be bought and sold by contractual parties, rather than as mandatory preconditions for a well-functioning society aiming at the common good. This is not a problem of Larry Summers alone.38 Most of contemporary economists assume the existence and motivated “rational” agency of “individual[s]”, who pursue their “self-interest” by way of commutations in the economic sphere (Utz that a million Irishmen had already died in the potato famine (1845–1849), famously replied: “It is not enough!”—the iron law of supply and demand had not yet run its full course (Hudson 2011). Or think of Adam Smith, who argued in his 1776 masterpiece, commonly known as The Wealth of Nations: “in civilized society it is only among the inferior ranks of people that the scantiness of subsistence can set limits to the further multiplication of the human species; and it can do so in no other way than by destroying a great part of the children which their fruitful marriages produce” (para I.8.38). 38 Summers’ stance is reminiscent of right-thinking liberals like Herbert Spencer (1820–1903) and his many followers, who had criticised loudly as unwarranted State ‘interference’ in market equilibria nearly all the primeval forms of welfare provision surfacing across the industrialising nations of their day: “[T]o administer charity, to teach children their lessons, to adjust prices of food, to inspect coal-mines, to regulate railways, to superintend house-building, to arrange cab-fares, to look into people’s stink-traps, to vaccinate their children, to send out emigrants, to prescribe hours of labor, to examine lodging-houses, to test the knowledge of mercantile captains, to provide public libraries, to read and authorize dramas, to inspect passenger-ships, to see that small dwellings are supplied with water, to regulate endless things from a banker’s issues down to the boat-fares on the Serpentine.” (Spencer 1960: 162).

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1994: para 2.1). According to Utz (1994: para 2.1), liberals would like to reduce all relevant economic (and sometimes social) considerations to this level, i.e. “contractual” interactions among assumedly free individuals, and forget any other form of justice and related duties.39 All the justice that liberals like Summers seek is, in essence, commutative.40 Socialists, on the contrary, typically subsume the existence and motivated rational agency of individuals under the higher level of social processes and collective values, which individuals are meant to serve in a more or less self-less manner. All the justice that they seek, then, is social. Utz (1994: para 2.2), in an unfailing Thomist fashion, stands between these two poles, for he assumes, in addition to “individualism”, the notion of “a common good to be realised through economic actions” undertaken willingly and responsibly by self-maximising individuals within a sensibly organised legal framework. Under Utz’s Thomist perspective, liberal economic categories are not rejected in toto, but must be reconsidered thoroughly, so that they be consistent with all the requirements (or ‘levels’) of justice, including social justice.41 For instance, “productivity” is not merely the entrepreneur’s or planner’s efficient use of available resources to meet existing demand, but also and above all the economy’s ability to meet “the integral needs of all members of society… for example health[,]… culture[,]… future ecological needs[,]… labour rights[,]… Sunday rest” (Utz 1994: paras 3 and 3.1). Similarly, a sound socio-economic “market order” would not simply tolerate and suffer “just social requirements” because of their political inevitability, but actually “stimulate… personal initiative and responsibility via-à-vis the establishment of real values” (Utz 1994: 3.1).42

39 E.g.

iconic liberal economist F. A. “Hayek” (Utz 1994: para 2.2). Fiore (2007). 41 As Francis (2015: para 189) states: “Politics must not be subject to the economy, nor should the economy be subject to the dictates of an efficiency-driven paradigm of technocracy. Today, in view of the common good, there is urgent need for politics and economics to enter into a frank dialogue in the service of life, especially human life. Saving banks at any cost, making the public pay the price, foregoing a firm commitment to reviewing and reforming the entire system, only reaffirms the absolute power of a financial system, a power which has no future and will only give rise to new crises after a slow, costly and only apparent recovery. The financial crisis of 2007–08 provided an opportunity to develop a new economy, more attentive to ethical principles, and new ways of regulating speculative financial practices and virtual wealth. But the response to the crisis did not include rethinking the outdated criteria which continue to rule the world. Production is not always rational, and is usually tied to economic variables which assign to products a value that does not necessarily correspond to their real worth.” 42 Utz (1994: para 3.1) describes the good (aka natural or rational) “values” as “teleological decisions based on nature”, so as to separate them clearly from mere individual preferences, which are subjective and can be bad (i.e. unnatural or irrational). 40 See

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5 Make Peace, Not War Whereas liberalism emphasises the notion of competition among individuals for jobs and profits, and Marxist socialism that of warfare between classes, Utz (1994: para 12.3) stresses the importance of “collaboration” within society. Instead of conflict, he preaches peace. Given that, in general, all families rely on some of their members’ employment in order to live and, if possible, lead a dignified life, Utz (1994: para 11.1) connotes “full employment” qua cardinal “principle of justice” and argues that jobs must be as broadly available as possible, even if their broad availability reduces the profits of the employers and eats in the salaries of the employees. Small, apparent, individual sacrifices may be required for the greater, real, common good. According to Utz (1994: 7), even a fast-growing economic order where a significant part “of the persons seeking employment is left out of the labour process” is not a “material success” in Thomist terms, pace standard liberal macro-indicators: overall productivity can well be on the rise; a minority can well become fabulously richer and richer; sizeable sections of the population may well enjoy job security; but the unemployed, their families and their communities would be pushed nonetheless into “moral degradation… crime [and] addiction to narcotics”. Not all is well, when unemployment persists, not to mention when it turns criminogenic. Via “full employment”, instead, each capable person can take lawful responsibility for her own self-perfection and participate constructively in the social generation of well-being in the economic sphere (Utz 1994: 7).43 Not any line of employment will do. Full employment must be sought in activities that are ecologically and socially sustainable in the long term, e.g. “humanised” working conditions allowing for the “reproduction” of the workforce and dignified family life, the denial of which leads to disruptive “uprisings” (Utz 1994: para 5.2.4). It must be personally meaningful, since “pay alone” is not enough: there is in fact a “spiritual root to all labour” (e.g. “the worker expects to achieve her own social integration” or “social status” through her labour; Utz 1994: paras 5.2.4 and 5.2.7). It must be consistent with the fundamental human needs (e.g. “family life… [and] culture”), aims (e.g. “self-realisation”) and dignity of each human person (Utz 1994: paras 5.2.3 and 5.2.4). That is why, in practice, there exist “labour legislation or workers’ protection”, e.g. binding norms on “free time[,]… safety[,]… hygiene[,]… prevention of accidents[,]… unemployment benefits[,]… [and] special protections for women and children” (Utz 1994: para 5.2.5). That is also why there exist internationally codified “universal human rights”, which include social, economic and cultural rights to be respected, protected and fulfilled, for they are much more than a 43 As

Pope Leo XIII (1891: para 32) had already stated: “The foremost duty, therefore, of the rulers of the State should be to make sure that the laws and institutions, the general character and administration of the commonwealth, shall be such as of themselves to realize public wellbeing and private prosperity. This is the proper scope of wise statesmanship and is the work of the rulers. Now a State chiefly prospers and thrives through moral rule, well-regulated family life, respect for religion and justice, the moderation and fair imposing of public taxes, the progress of the arts and of trade, the abundant yield of the land-through everything, in fact, which makes the citizens better and happier.”

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mere list of “individual rights”, but rather an articulate expression “of the collective duty to create the preconditions for the realisation of everyone’s fundamental rights”, hence for seeking the “common good” (Utz 1994: para 1.2.4).44 Though costly from the perspective of a firm’s bookkeeping, to do away with life-enabling binding norms and internationally codified universal rights would mean doing away with human dignity.45 No society and, a fortiori, no economic order could operate for long under such conditions, which would also destroy the humanity and hence the dignity of the workers’ exploiters and their academic legitimisers. A moral monstrosity—albeit rich, commonplace and comfortable—is nonetheless a moral monstrosity. “Manchester liberalism”, which Marx had rightly criticised in Utz’s (1994: para 5.2.2) view, has already been witnessed by our civilisation, culpable as it was for lacking “respect for the inseparability of labour qua factor of production” and “the moral essence of the human being”, thus causing the end of social peace within nations: “workers’ uprisings” and revolutionary dreams were the awful children of such an awful parent. 44 Most

explicit about human rights, including economic ones, is John XXIII’s 1963 encyclical Pacem in Terris (paras 9, 11, 19–21, 25, 38, 51, 85, 160), where the Church of Rome lists and defines the human being’s “rights and duties, which together flow as a direct consequence from his nature”, i.e. our being “person[s]… endowed with intelligence and free will.” As economic rights are concerned, the encyclical states: “Man has the right to live. He has the right to bodily integrity and to the means necessary for the proper development of life, particularly food, clothing, shelter, medical care, rest, and, finally, the necessary social services. In consequence, he has the right to be looked after in the event of ill-health; disability stemming from his work; widowhood; old age; enforced unemployment; or whenever through no fault of his own he is deprived of the means of livelihood.” Furthermore: “In the economic sphere, it is evident that a man has the inherent right not only to be given the opportunity to work, but also to be allowed the exercise of personal initiative in the work he does. The conditions in which a man works form a necessary corollary to these rights. They must not be such as to weaken his physical or moral fibre, or militate against the proper development of adolescents to manhood. Women must be accorded such conditions of work as are consistent with their needs and responsibilities as wives and mothers. A further consequence of man’s personal dignity is his right to engage in economic activities suited to his degree of responsibility. The worker is likewise entitled to a wage that is determined in accordance with the precepts of justice. This needs stressing. The amount a worker receives must be sufficient, in proportion to available funds, to allow him and his family a standard of living consistent with human dignity.” To these human rights, upon which persons’ dignity depends, the encyclical adds “The Right to Emigrate and Immigrate” qua legitimate member “in the human family” and citizen of “universal society” i.e. “the common, world-wide fellowship of men.” In all these cases, emphasis is not placed upon these rights being individual and the result of some hypothetical social contract, or even upon the historical horrors that led to their eventual institution (e.g. the Great Depression, fascism, World War II, Stalinism). Rather, the encyclical asserts that they are the formal expression in our times of “the moral order” established by God, i.e. His eternal law, and “the unfailing observance of its precepts” that our rational recognition of this order commands, i.e. “in accordance with the principles of the natural law”. Once again, Thomas Aquinas is cited as a key-reference on the subject. 45 The centrality of workers’ rights was clear in Leo XIII (1891: para 37), long before any international human rights jurisprudence came about: “Rights must be religiously respected wherever they exist, and it is the duty of the public authority to prevent and to punish injury, and to protect every one in the possession of his own. Still, when there is question of defending the rights of individuals, the poor and badly off have a claim to especial consideration. The richer class have many ways of shielding themselves, and stand less in need of help from the State; whereas the mass of the poor

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To counter life-destructive outcomes of this kind, the “right to labour” must be enforced, which is not the right to having jobs created ad hoc for each particular person (as many socialists have argued), but the establishment of a legal and socioeconomic order giving tangible expression to each person’s rights “to sustenance… self-affirmation within social cooperation… [and social] integration” (Utz 1994: para 5.2.3).46 The fulfilment of this right is to be attained by means of a rational, comprehensive regulatory framework that facilitates job creation and, therefore, sets proper incentives, disincentives, opportunities and limits to all economic agents, i.e. “invest[ors], entrepreneurs and… employed workers” (Utz 1994: para 5.2.3). Analogous considerations apply to the domain of “income” and workers’ “retributions” in particular (Utz 1994: para 11.1). Failure in respecting the cardinal principle of justice and seek constructive “collaboration” between classes is a recipe for disaster.47 It is not the exploitative desire for profits of the entrepreneur (Utz 1994: para 11.4), nor the ability for extortion developed by modern trade unions (Utz 1994: paras 11.4–7), that which should determine the income of employers and employees in a rational market order. If anything, the inability to consider lucidly the other party’s legitimate interests and their relevance for the long-term well-being of society are the chief source of frequent, deplorable and disruptive forms of “warfare” within market economies (Utz 1994: para 11.3), where the economic party enjoying “superior power” wins the day (Utz 1994: para 11.6). In earlier phases of capitalist history, workers had no other way to make their voice heard and their rights respected. As a result, they were crushed mercilessly, as amply and poignantly described by 19th-century novelists and parliamentary commissions.48 Today, in conditions of widespread prosperity, that justification no longer applies. Utz (1994) is vehemently critical of the legally accepted and judicially defended rights to workers’ “strike” and employers’ “lockdown” in the private sector (para 11.4), as well as of the unfair “double vote” of personnel in “the public sector”, whose “right to… political strike” blackmails “elected politicians” while harming “the public” that is supposedly to be served (para 11.5). In lieu of such “civil wars” (Utz 1994: para 11.6), “the supreme norm of justice” vis-à-vis “retributions” should be “the overall economic productivity” of whatever “economic system” is in place (Utz 1994: para 11.1), though keeping in mind how such a productivity is holistically understood in a Thomist perspective. have no resources of their own to fall back upon, and must chiefly depend upon the assistance of the State. And it is for this reason that wage earners, since they mostly belong in the mass of the needy, should be specially cared for and protected by the government.” 46 As Pope John Paul II stated in his 1981 encyclical Laborem Exercens (para 6), persons must be then “the subject of work”, not its “object”, as it results instead from “the various trends of materialistic and economistic thought” that reduce them to “an instrument of production” or “merchandise” to be bought and sold. 47 See John XXIII (1961: para 192): “First consideration must obviously be given to those values which concern man’s dignity generally, and the immense worth of each individual human life. Attention must then be turned to the need for worldwide co-operation among men, with a view to a fruitful and well-regulated interchange of useful knowledge, capital and manpower.” 48 See Dostoyevsky (1997).

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In order to facilitate the respect of “justice” in employer-employee relations and the consequent determination of due income, workers’ “unions” and entrepreneurs’ “cartels” must stop thinking of themselves as enemies (Utz 1994: para 11.2). Quite the opposite, “joint responsibility” in all aspects of entrepreneurial life, co-management, cooperative behaviour and “trust” within “the enterprise” must be maximised by any available channel, such as novel forms of “contractual autonomy”, Johannes Messner’s ideal plan for a technocratic “global economic organisation” independent of political pressures, or “collaboration in the formation of profit and capital, hence also in the entrepreneurial risk” (Utz 1994: paras 11.2 and 12.3).

6 Concluding Remarks Though steeped in Thomist categories of thought and overall forma mentis, Utz (1994) displays concerns and concepts characteristic of his time. The same can be said of Pope Leo XIII’s pivotal encyclical Rerum Novarum as well as each and every successive official statement issued by the Holy See. On the one hand, this much is obvious: each and every interpreter of past conceptions of the world can only do so in her own time and age; and may actually be motivated to do so because of the problems of her own time and age. On the other hand, there is a technical logic whereby making use of Aquinas in the 19th, 20th or 21st century makes perfect sense. Following Aristotle, Aquinas thought of ethical and legal-political principles of and for the good of humankind as abstract principles. These principles are ideas grasped through time- and place-specific contingent contexts but purified of them, i.e. reduced to their atemporal and universal contents, hence cast in such a way as to be applicable to a myriad of contingent contexts in other times and places. Therefore, as far removed from the 13th century as we may be today, Aquinas’ abstract principles of law and correct conduct can still find meaningful application in the contemporary world, including those principles that are meant to foster domestic peace as a duty of justice, whose fulfilment can secure all present and future living persons’ economic rights in view of their common good.

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Philosophical and Theological Aspects in the Thought of Johannes Althusius Gerson Leite de Moraes and Daniel Francisco Nagao Menezes

Abstract The objective of this work is to shed light on a theme that involves philosophical and theological aspects and that ends up in a political theory of resistance to despotic power. This is done from an analysis of some aspects of the work of the German jurist, Johannes Althusius. He was a Calvinist author who acted academically and politically between the late sixteenth and early seventeenth centuries, leaving a huge legacy in the legal and political field. His theory of rights thought of society in an organic way and focused on the dependence of men to each other and these to God. Without these principles, a just society would not be possible, in the view of Althusius. These Althusian assumptions were constructed from a cultural collection that may be termed the Calvinist system of thought, where the author in question figures as one of the great exponents of early modernity. However, for this to be a reality, Althusius used a series of Calvinistic presuppositions, from the clearly Calvinist ramistic thought in debate with the exponents of the scholasticism of that moment until a re-reading of the Theology of the Alliance that is at the base of the representative forms and federal government.

1 Historical Context of the Thought of Johannes Althusius At first, before working specifically on the thought of Johannes Althusius, it is of utmost importance to analyze the developments and radicalization of the Protestant Reforms in the context of the so-called wars of religion of early modernity, especially in the French environment. The episode known as Saint Bartholomew’s Night (August 24, 1572) further intensified the moods between Protestants and Catholics, G. L. de Moraes (B) Center for Education, Philosophy and Theology, Mackenzie Presbyterian University, São Paulo, Brazil e-mail: [email protected] D. F. N. Menezes (B) Faculty of Law, Mackenzie Presbyterian University, São Paulo, Brazil e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_4

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and in this context, among the Calvinists, appeared several defenders of the right of resistance to the Magistrate and the possibility of practicing tyrannicide. Three works are important in this context. These works can be defined as true treatises that go back to the general history of resistance theory. These treaties are: Francogallia, by François Hotman (jurist, historian and theologian), Du droit des magistrats, by Théodore de Bèze (theologian and successor of Calvin in Geneva), and Vindiciae contra tyrannos, most commonly attributed to Philippe du Plessis-Mornay. From a philosophical and political analysis, it can be seen that the treaties mentioned can be defined as true pillars, even if still in an incipient way, of a new political order. It is also seen that the treatises have a common source, which is John Calvin’s polysemous thought. It is noteworthy that this is seen by some as a solid foundation of democratic theories of government as well as seen by others as an unscrupulous tyrant who acted ironically in Geneva. In any case, there is no doubt that the possibility of resistance to the Magistrate and the contractualist notion of the government are important innovations for the European political scene of the sixteenth and seventeenth centuries. There is also no doubt that these activists, called monarcomas, guided the debate of the construction of political relations in the beginning of modernity. The French case is just one example of how the thought of Calvin and the Calvinists flourished in Europe and then in America. English Puritanism and American Republican thought are good examples of the strength of Calvinist thought in the Western world. Focusing specifically on the context of the wars of religion that ripped through France in the 16th century and caused countless deaths on both sides, the three works mentioned above were intended to justify the resistance of the Huguenots (French Calvinists) to the holders of power. The monarchs were radical defenders of the possibility of tyrannicide: Three of his best spirits took on the commitment to expand and expand the Huguenot arguments of resistance. These efforts culminated, in the 1570s, in the writing of three treatises that go back to the general history of resistance theory. These treatises are: Francois Hotman, Du droit des magistrats, Théodore de Bèze, and Vindiciae against tyrannos (Revide or Protest against tyrants), most commonly attributed to Philippe du Plessis-Mornay.1,2

François Hotman arrived in Geneva in October 1572 and began drafting the Francogallia and in June 1573 he obtained permission from the authorities in Geneva to publish the work. At the same time, Theodore de Bèze was beginning to write Du droit des magistrats and probably consulted Hotman about some elements present in his work. In the case of Francogallia, it can be said that: The book was both an attempt to describe “the old constitution” (Vetus Galliae institutum) and an appeal to restore it, whose adherents in France, politicians (politicici), up until then called for the convocation of the General States.3 1 Kingdon

(1970), p. XXVI. quotations made in this article have their originals written in Portuguese and have been translated by the authors into English for easy reading. 3 Kelley (1970), pp. 206–207. 2 All

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The Francogallia is a work of solid historical erudition. In her, Hotman4 sought to study the ancient constitution of France and to define still the powers legitimately attributed to the sovereign and reserved to the subjects. In the third edition of the work, six more chapters are presented, and the most anti-absolutist part is developed: “[She] devotes herself to clarifying the difference between what is of the king and what is of the kingdom. The doctrine of the real domain (dominium regium) distinct from crown goods (patrimonium regium) is very delicate and interesting”.5 Specifically in Chap. 9, entitled “The King’s Domain and the Appanage of His Brothers”, Hotman writes the following: In this definition there is a great difference between the patrimony and the real domain. The patrimony belongs to the king himself, but the domain belongs to the kingdom or, as is commonly put, belongs to the crown itself. […] The king has the possession of the community as usufruct, and for this reason, as we have already said, he has no power to alienate it. In his domain, the king has the same action and the same right that a husband has over the wife’s dowry.6

According to Hotman, the king is the head; the kingdom, formed by the people assembled in assembly, is the body of the Republic. This body can change its head at its discretion, for the simple fact that the king is mortal as any and every individual, since the kingdom, as universal (universitas), benefits from the perenniality of social forms. As can be seen, Hotman7 does not see in the figure of the king any special quality in the transcendent scope, as receiving his position directly from the hands of God, and this puts the king on a level of command, but which is the result of a power delegated by the body of persons assembled in assembly. The king is only the legitimate holder of sovereignty when his will is in harmony with that of the kingdom; its decisions must be taken and delimited by law. The king must accept the fundamental principles of the monarchical institution, which implies to maintain the order of established succession, to maintain the integrity of the domain, to respect the possession and change of the officials of the kingdom and nothing to change as far as the coins are concerned. Moreover, the king should still regard the Estates General as an assembly expressing the will of the people and therefore remember that it can not do anything without its express consent. Hotman’s work is a frontal assault on the real absolutism that prevailed at the beginning of modernity. Shortly thereafter, in 1574, the libellus “The Law of the Magistrates” on his subjects was published in French and in “Latin in 1576, and bears a certain resemblance to Francogallia”.8 In Droit des magistrats, by Bèze, the question of resistance to the tyrant appears in a more analytical and schematic form than in Hotman.9 This work clearly and 4 See

Hotman (1972). (1951), pp. 333–334. 6 Hotman (1972), pp. 255–257. 7 See Footnote 4. 8 Skinner (1996), p. 575. 9 See Kingdon (1970), p. XXXIX. 5 Mesnard

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convincingly exposes the theory that would justify the armed resistance of the French Huguenots to the French magistrate. The author is Théodore de Bèze, Calvin’s friend and right-hand man. In the work of the “Magistrate’s Law”, it is necessary to emphasize that Bèze, in dealing with resistance to tyrants, insists on qualifying them in two ways: There are two kinds of tyrants: those who come from the usurpation of power and whose origin is therefore suspect and unjust; the tyrant of origin causes, by his iniquity, a just national resistance extended to all citizens. The manifest tyrant, however, possesses titles in good standing: a legitimate king in theory, the opposition of his subjects could have no other purpose than to make it so practical and not to dethrone it; and everything would be in order and the state would return to its original balance.10

Bèze11 is part of a Christian tradition which recognizes that the magistrate receives his power directly from God, and therefore his limit of action would be the principles set forth in the Bible: I say in such a way that the authority of the magistrates, some great and powerful, is limited to two terminals that God himself has planted in them, namely, piety and charity, and even if they can go abroad, they must remember the words of the apostles: ‘It is better to obey God than to men’.

If it is better to obey God than to men, these, when they are magistrates and disobey the divine commandments, should be disobeyed: “O metron da ordem política só pode ser o divino, jamais humano, porque ‘nenhuma vontade a não ser a divina é perpétua e imutável, regra de toda justiça”.12 Bèze’s writing was intended to be a Calvinist response to episodes that specifically involved St. Bartholomew’s Night, but eventually went further and sanctioned among Calvinist groups the possibility of tyrannicide. In addition to criticizing the absolute power of kings, Bèze still works with the possibility not only of resisting the tyrant, but also of executing it: “Ele autoriza o particular à execução do governante tirânico e inimigo das ordens divinas, caso os magistrados deixem de cumprir seu dever 13 ”. And this was only possible because Bèze, in the sixteenth century, already had in mind the contractualist principle. One might say that Bèze’s political doctrine is democratic, or, as Robert Kingdon prefers,14 he would be better qualified as “uma justificativa embrionária para a revolução democrática”. In any case, it can be said that this theory has a democratic basis, because power originates in the people. Another book of great importance for the debate proposed here is published in 1579, under the title at a time of sound and tenebrous, very common for the time, of Vindiciae Contra Tyrannos, sive de principis im populum, populique im principem legitima potestate, by Sthephano Junio Bruto Celta (a pseudonym used to hide the real author). 10 Mesnard

(1951), p. 317. Bèze (1970) p. 4. 12 Romano (2008), p. 5. 13 See Footnote 12. 14 See Witte (2007), p. 105. 11 See

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As it was registered by Philippe Du Plessis-Mornay after the Night of Saint Bartholomew: The state split and shuddered after Saint-Barthélemy’s journey, and then, I say, that the prince’s confidence in subjects and subjects in the prince, who is the only cement which sustains the living states, was so affrontedly weakened.15

The expression Vindiciae Contra Tyrannos can be translated as “protest or revenge against tyrants”. The book is composed of four parts or, as the work itself says, four “questions”. They are the following (it is the authors’ own translation from Latin): • “If the subjects are obliged and must obey the princes when they order something contrary to the law of God”. • “Whether it is lawful to resist a prince who breaks the law of God or ruins the Church. Same to whom, how and to what extent it is lawful”. • “Whether it is lawful to resist a prince who oppresses or ruins the state, and how far this resistance extends. Same to whom, how and in what way is this lawful”. • “Whether the neighboring princes can or are obliged, by right, to succor the subjects of other princes afflicted by the true religion or by manifest tyranny”. The work is a vehement attack on Nicholas Machiavelli: It shows, then, that it is directed against the “bad practices, pernicious, false and maximum pests of Niccolo Machiavelli, Florentine,” which is pointed out as the main cause of the evils that troubled the time. Mentioned several times, Machiavelli is harshly accused, ‘for in his books he has not only stimulated the spirit of many to find the means of stirring up the state by favoring the authority of those who govern’, but ‘laid the foundations of tyranny […] as evidenced by the detestable precepts and teachings contained in them here and there.’16

The massacres committed against the Huguenots were understood by these as an impious and Machiavellian set of policies that were put into practice by Catherine de Medici and her government composed of “hateful Italians”. One cannot forget that Catherine is the daughter of the man to whom Machiavelli dedicated The Prince (Lorenzo II or Lorenzo de Medici). Queen Catherine is seen as one who was instructed at the feet of the atheist Machiavelli and transmitted these values to her children, who were thirsting to destroy the true religion from the perspective of the Huguenots. Back to the book Vindiciae Contra Tyrannos, it can be said that the first question raised—“If the subjects are obliged and must obey the Princes when they order something contrary to the law of God”—is that it completely guides the first chapter. The author brings up the issue of double contract. In using this expression, he had in mind the notion of a verbal contract of Roman law. It is also worth mentioning that the terms “alliance”, “covenant” and “covenant” appear interchangeably in the work. After reinforcing the idea that kings are instituted by God, the author works with the notion that this relationship resembles, that which was established between lord and vassal in the feudal context: 15 Laski

(1924), p. 22. (1960), p. 84.

16 Castro

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G. L. de Moraes and D. F. N. Menezes The vassal is bound by oath to his master and swears that he will be faithful and obedient to him. In the same way, the king solemnly promises to govern according to what is contained in the law of God. The vassal loses his fief if he commits felony, still losing, according to the law, all his privileges. So the king also loses his right, and sometimes even his kingdom is despised by God, he is compacted with his enemies and felony is committed against God. This will seem clearer as we consider the covenant that is contracted between God and the king, because God has bestowed upon His servants the honor of calling them associates. Now we know that there are two kinds of covenant in the consecration of kings: the first between God, the king, and the people, by which the people become the people of God; the second between the king and the people, namely, the people will faithfully obey the king who rules with justice.17

The notion of double contract appears very explicitly in this excerpt. In the first, of a religious character, an alliance is established between God, king and people, and the result of this creates obligations and privileges for all parties involved. God promises to care for this people by using their representative, who is the king, and the people automatically become God’s property. In the second, temporal, constitutional contract, there is a relationship between the king and the people, in which he promises to obey the God-made king’s duties—but this relationship is based on a reciprocity of fidelity, since both are mutually obliging debtors to the fulfillment of the promise made to the common creed, that is, God. Looking for elements in the Old Testament, the author shows that this covenant between God, the king, and the people is something very old and drawn from the Bible. The author reinforces the notion that the people are an active element in the covenant, for though the duty of obedience to the king is clear, this subsists only as long as the latter is faithful to God. If the king should follow God and fails his part in the covenant, it is the duty of the people, based on the established covenant, to resist the tyrant. It is therefore up to the magistrates, as representatives of the people and controllers of kings, to resist tyrants and not the people as a whole. It seems clear in the mind of the author that the experience of the Anabaptists in the context of the Lutheran Reformation, against which Calvin wrote very properly, should never be repeated. Resistance to the tyrant yes, but carried out by an aristocracy chosen to represent the people, after all she is the “representative” representative of the people, as officers of the kingdom or of the crown, and not of the king. The members of this aristocracy received authority from the people through assemblies of States and cannot be deposed except by them. The officers of the kingdom cannot be confused with the king’s officers, for they generally have no exemption and are flatterers of the king, whereas they should act with exemption and smoothness always thinking of the common good, as guardians of the current contract. The common people, the private, without the nobilistical qualifications, do not have the right to resistance. It is clear that the right to resistance and tyrannicide represent a reality in French Calvinism. If everything begins with an affront to religion, in which the contract is broken, and culminates in the defense of the property of the nobles, the possibility of resistance is forbidden for the common man. Experiences with the maddened and 17 Vindiciae

contra Tyrannos (1689), pp. 7–8.

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out-of-control mass are in the minds of both Calvin and the French Calvinists, and the best way to avoid this is to put the right of resistance into the hands of the people’s representatives. Undoubtedly, the three works mentioned above represent a great innovation in the field of politics in the beginning of modernity, and the Calvinist thinkers were the great protagonists of this moment because they were creating a true worldview. Some say that Calvinists only succeeded in bringing about these transformations in the field of politics because they were never a majority population (except in Geneva) anywhere in the world. Even if this is true, it can be said that Calvinism has its roots in political history. With an enormous capacity to metamorphose, Calvinism had to adapt to the most varied places in which it was present, adapting philosophical and political thoughts from its theological presuppositions. The hallmark of the Calvinist at this point in history is to be a pilgrim. This was the case of the Dutch Revolt, the Puritan Revolution, and the American Revolution, events in which Calvinist thought influenced and aided the political formatting of the contemporary Western world. Althusius is one of these Calvinists who left a huge legacy to think of the organization of the state, from philosophical and theological principles. According to Althusius, human society is articulated in a series of groups founded on mutual commitments (consociatio), the state being a federal structure resulting from the agreement of local political communities (villages and provinces), where its sovereign authority depends on the associated communities. The foundations of representative democracy and the power of popular sovereignty can be understood from the outset. Althusius was elected in 1604 to the position of administrator (mayor) of the city of Emden in East Friesland, an important center of European Calvinist refugees and a prominent place as a reference of high intellectual output. There, Althusius also had the opportunity to find in his Dutch neighbors and co-religionists a favorable environment for the application of his ideas, as well as a real situation in which he could put into practice his ceaseless struggle for municipal autonomy and against interference of the superior and tyrannical powers. His writings on the Dutch Revolt were not only apologetic in tone, but a recipe for how to build a good society were not only treaties claiming the right of resistance but full validation of the rights of people and peoples. Althusius spoke and fought against contemporary authors of the Catholic tradition, such as Jean Bodin, Pedro Gregório Tolosano, Fernando Vazquez, and other important thinkers, and he was a polysemous and seminal author, generally using the dialectical method of French Calvinism based on the logic of Pedro Ramus, mainly of the neo-scholastic of Salamanca. It may be said that Althusius’s work offers: (1) a “demonstrative theory” of natural law which emphasized the concordance between Christianity and the classics, and between biblical thought and rational teachings on law and authority; (2) a “symbiotic theory of human nature” that focused on man’s natural and necessary dependence on God, transposing this relational notion into a social structure, where in an inductive way, that is, from the particular to the universal, there was a series of ties that linked the minority to the greater part, which demonstrated the intertwining, for example,

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of neighbors among themselves to a relationship with the constituted powers, thus organizing society in general. In the sequence, a special emphasis will be placed on the philosophical and theological aspects of Althusian thought.

2 Philosophical Aspects of the Work of Althusius There are many philosophical aspects in the work of Althusius, but for the sake of space and purpose, there will be given prominence only to a thinker, Peter de la Ramée. First of all it is necessary to speak about the thinker who influences Althusius in the logical organization of his work entitled Politics. The logic in question is ramist, that is, it is derived from Pierre de la Ramée (or Peter/Pedro Ramus—1515–1572), a French logician, of Calvinist orientation, well-renowned in the sixteenth century, but also very controversial and who was dead in the aforementioned tragic Night of St. Bartholomew: The ramification was a mixture of scholasticism and humanism that spread in the sixteenth and seventeenth centuries through northern Europe and the British Colonies in North America. Avidly anti-Aristotelian, he promoted the simplification of all knowledge through a sort of noetic record, anti-iconographic in diagrammatic form, implemented by the new art of typography. His confident rationalism allied the ramification, Cartesianism, and encyclopaedism that followed.18

The complementary expression of the title, “Methodically presented” policy of the work of Althusius is a direct influence of ramista thought. Pierre de la Ramée can be seen as a thinker who tried to promote a reform of the liberal arts curriculum and the methodology of learning, where he valued dialectics, which until then had been seen as extremely useful for rhetoric but not for demonstrative sciences: Ramus asserted that dialectics had three components in all: nature, art, and practice: God would have endowed all human beings with the gift of ‘natural dialectic’, an innate capacity for knowledge; art or ‘artificial dialectic’ was the teaching of the procedures that reflected the activity of this natural reason; and practice was to exercise with the aid of examples.19

As can be seen, Pierre de la Ramée can be defined as an innatist thinker in epistemological terms, hence his critique of Aristotelian thought, both in its original form through the Stagirite and in its Christianized form by Medieval Scholastics. Pierre de la Ramée criticized Aristotle and his old and modern commentators because they had not anchored their methods in praxis and in examples that facilitated learning, because as time will demonstrate, the importance of the Calvinist logic will be centered almost exclusively on the pedagogical aspects. Since there is a natural dialectic, then Pierre de la Ramée devoted himself to organizing and demonstrating the possibilities of artificial dialectics: 18 Dictionary of the History of Ideas http://xtf.lib.virginia.edu/xtf/view?docId=DicHist/uvaGenText/ tei/DicHist4.xml;chunk.id=dv4-06. Accessed 29/05/2017. 19 Kusukawa (2007), p. 175.

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Following Agricultural’s subdivision of Ciceronian dialectics, Ramus dismembers his (artificial) dialectic into inventio (search for arguments) and judicium (organization of arguments). There are two types of organization of arguments: the syllogism is used to verify the truth or falsity of each of the arguments, whereas the method works with many arguments and orders the material through subdivision. Ramus assumes that the latter would be the Platonic method of definitio and division and the only method to present the material coming out of the most general and nature and nature to the previous and advancing to the more concrete. To ensure the inclusion of all relevant material, Ramus applies three rules that he borrows from Aristotle’s Later Analytica: sentences must be universally true (katà pantós), essentially true (kat ‘autó) and as general as possible (kat’ hólou proton). He recommends to his students, in addition, that they exercise this dialectic through the analysis (examination of disputes already made) and the genesis (composition of new disputes). Ramus views this dialectic as a logic, applicable to all areas of knowledge, from poetry to mathematics.20

Every time Althusius uses in his texts expressions such as “law of method” and “precepts of logicians”, there is a direct reference to the thought of Peter de la Ramée: The most unmistakable feature of the interpretation of the ramist interpretation of the provision is its emphasis on method. And then Althusius clearly appropriated. Ramus wrote that those who think wisely and methodically descend from the more general idea to the various divisions of it and from there to the particular cases it encompasses.21

It is also Analytica Posteriora, if Pierre de la Ramée, made use of the law, and these are the lex justitiae, the lex veritatisae and the lex sapientiae. In the first law, for example, the notion of law or justice indicates that each art or science has its own purpose and this serves as a principle for the determination of what is suitable for a given art: Althusius’s employment of the Ramist law of justice is first introduced in the Preface to the first edition, where he says that ‘it is necessary always to keep in mind the objectives and form, natural and true, of each art, and to pay careful attention to them, so that we do not exceed the limits established by justice for each art and so reap the fruits of another harvest’.22

The aim of politics is the maintenance of social life among human beings in Althusius’s view, and it is necessary to withdraw from this art a legal, theological and ethical material. “Politics is the art of bringing men together to establish a common social goal, to cultivate and conserve it”.23 It is with the above words that Althusius begins his great work. Contrary to what the phrase may suggest in a quick reading, we are not before a contractualist or, as some want, a naturalist. It is possible to define Althusius as a naturalist. Humans, in the view of Althusius, are compelled to join, are instigated to associate because of the state of weakness and lack in which they are. Here Althusius’s dependence on the pessimistic anthropology of Calvinism, which saw a man as being “dead in his trespasses and sins”, was unable to respond to the grace of God and 20 Kusukawa

(2007), p. 175. (2003), p. 17. 22 See Footnote 21. 23 Althusius (2003), p. 103. 21 Carney

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totally affected by the sin of Adam. The state of weakness and lack is the fruit of this anthropological condition that finds its deepest roots in the theology of the apostle Paul and in St. Augustine: To live this life, no man is self-sufficient (αταρκης) ´ or rather provided by nature. For man is born deprived of all assistance, naked and unprotected, as if he had lost all his possessions in a shipwreck, was thrown into the misfortunes of this life, and did not feel capable of attaining his mother’s breast by his own means; inclemency of the time, nor to move of the place where it was thrown. Alone in this terrible beginning of life, with so much weeping and tears, his future seems an enormous and miserable misery. Lacking advice and help that, nevertheless, he has no way of helping himself but with the intervention and help of others. Even if his body is well developed, he does not avail himself of the light of the soul; nor in adulthood, is able to find in himself and before himself those external goods which he needs to lead a comfortable and holy life.24

As can be seen, Althusius’s philosophical assumptions are real, but a Calvinist worldview that reinterprets all material analyzed and constructed, according to their references, filters them. The intention to present Pierre de la Ramée in this work is to show that there are innumerable philosophical presuppositions in Althusius, but all of them inherited from an eminently religious rereading.

3 Theological Aspects of Althusius’s Work As with philosophical aspects, we will also highlight an author and his influence on the thought of Johannes Althusius. It is possible to realize that there are many theological aspects in Althusius, but what matters here is that his theological references gave support to his legal theory: For Protestantism the boundaries of society are established in relation to the nation or to territorial property, while its nature is more of a State than a Church. Or, to repeat it differently, the medieval mind conceived its universal Church-State, with power finally fixed in the spiritual head, delimited by no territorial frontier; the Protestant mind places all ecclesiastical authority below the jurisdiction and subject to the control of the “pious prince,” who is omnipotent in his own domain. Thus it was until the exigencies of the situation forced the Presbyterians to claim independent rights of the State. […] In the first phase of the Reformation, it was the civil power that gathered all or almost all its fruits. The secularization of monastic property meant, on the one hand, an increase of wealth for the prince, on the other, it restored a great mass of inhabitants to the jurisdiction of ordinary authority.25

In Althusius, the theory of resistance and revolt against tyrants follows the logic of every Calvinist tradition. Like Calvin, Althusius calls “moderate”, “structured” and “orderly”, resistance to the tyrant, without popular insurrection or private regicide that could lead to anarchy. Like Bèze, he defines tyrants as magistrates who violated their political pacts or alliances with God and the people—particularly the foundations of God’s laws and nature and the fundamental rights of people and peoples. Like many 24 Althusius 25 Figgs

(2003), p. 104. (1960), pp. 45–46.

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Calvinist writers who worked on the theory of resistance, Althusius distinguished between power-grabbing tyrants and legitimate rulers who became tyrants. Usurpers are only private persons who can be resisted by anyone in the exercise of the right to self-defense. Legitimate rulers who have become tyrants, however, can only be resisted by organized efforts of representatives (éforos) who have been called to remove tyrants by means as ordered as possible—but with all war effort if necessary, as in the exemplary case of the Dutch Revolt against tyrannical Spain. Thinking of natural law, Althusius knew that she had many names that were given during the construction of the Christian tradition. It could be called godly law, divine law, moral law, natural justice, natural equity, law of conscience, common law, and others, all of which function as synonyms and are interchangeable. Althusius knew that the traditional formula of traditional scholastic thought and neo-scholasticism of his day was based on the idea that natural law is given to all people in an innate way or a natural knowledge of good and evil (called synderesis). Through pious exercise, people could understand this natural law and apply it in concrete cases: But Althusius also acknowledged that throughout history, people and peoples have attained different formulations and applications of natural law. Even in today’s recognized Christian societies, people have ‘different degrees of this natural knowledge and inclination. This law is not evidently inscribed equally in the hearts of all. The knowledge of this is communicated more abundantly to some and more moderately to others, according to the will and judgment of God.’ […] Communities have widely varying ‘customs, natures, attitudes and viewpoints’ which are affected by the ‘age, condition’, circumstances and education of ‘its members’. There is no universal code of natural law written to consult. So how can we be certain of the norms and contents of natural law? We can know the norms of natural law if we study the Scriptures and tradition, revelation and reason very carefully, argued Althusius.26

As can be seen in the quotation above, Althusius was suspicious of the natural law, for though it was innate, it might or might not be applied, and in seeking a solid principle to anchor its ideas, Althusius resorted to the old Protestant principle of Sola Scriptura. The principles of its intellectual construction were related to the Ten Commandments, the teachings of Moses and the Prophets, and, of course, the teachings of Christ and the apostle Paul. The so-called Covenant Theology, so dear to Calvinist circles, both in the Old Testament primarily and in the New Testament, refigured in the person and work of Jesus Christ, is of fundamental importance in understanding Althusius’s legal and political thinking: Alliance Theology is a framework for understanding the comprehensive plot of the Bible, which emphasizes that God’s redemptive plan and how his relationships with mankind are, without exception, drawn up in accordance with the covenants which He sovereignly established. Although the importance of divine covenants has been realized since the time of the early church fathers, Covenant theology was not articulated as a fully developed system, taking into account the full extent of biblical revelation, up to the days of the sixteenthXVII, as the influential Johannes Cocceius and Herman Witsius. The Westminster Confession of Faith is a seventeenth-century historical document which presents a robust and fully developed Theology of the Pact. Basically, Alliance Theology organizes biblical revelation 26 Witte

(2007), pp. 158–159.

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G. L. de Moraes and D. F. N. Menezes around three unified but distinct alliances: the Covenant of Redemption, among the people of the Trinity in eternity past, in which the Father promises to give a people to the Son as their inheritance, and the Son undertakes to redeem it; the Covenant of Works, which God imposed upon Adam in the Garden, solemnly promising him eternal life if he passed the probationary test in the Garden of Eden (also, many theologians of the covenant see the covenant given at Mount Sinai as being in a certain sense republication of the Pact of Works); and finally, the Covenant of Grace, which God first began with Adam immediately after the Fall, when he promised to send a Seed of the woman that would defeat the tempting serpent (Gen. 3:15). In the Pact of Grace, God promised a champion to fulfill the broken Pact of Works as the federal representative of his people and thereby earn their blessings in their behalf. All later covenants of the Bible, such as those which God confirmed to Noah, Abraham, David, and the New Covenant, which promise to fulfill these earlier covenants in the prophecies of Jeremiah and Ezekiel, are all organically connected, essentially being different administrations of the only everlasting covenant of Grace, which builds upon one another and is completed in the New Covenant which Christ inaugurated with his shed blood.27

The Theology of Althusius is amalgamated into biblical principles and naturally leads to the political organization of society. The breaking of the covenant, which in the case of Althusius is the biblical covenant, offers the opportunity of resistance to the tyrant. It is, therefore, a politically engaged theology. It is worth remembering that for Althusius society is symbiotic and constructed from the lowest level (family) to the largest (state), through representation and in a relationship of piety and obedience of the magistrate in relation to the will of God expressed in the Scriptures, therefore, when there is a breach of the pact on the part of the ruler, the people have the right of resistance. It is clear that the right to resist the evil works produced by a despotic government is a bitter but certainly effective remedy to combat who is causing damage to the social body: The nature of just and correct administration must have been sufficiently clear of all that has been said. Let us now clarify the opposite, which is tyranny, and we will add the remedies with which the community can free itself from this great evil and protect itself against it. Tyranny is the opposite of just and correct administration. The tyrant is one who, violating both the word and the oath, begins to shake the foundations and loosen the bonds of the associated body of the community.28

As can be seen, the theological aspects in Althusius reflect a position consolidated by the Calvinists who preceded it, but it is interesting to note that all have a common treasure, the Scriptures. It is from this that interpretations are extracted that will enable the construction of theories of resistance to tyrannical power. It is interesting to note how this political worldview spreads throughout Europe, leaving its mark in the field of political theory. In an attempt to practice a theology politically engaged and faithful to its theological presuppositions, three schools or universities become very important in this context for the Calvinists. They are the following: the University of Heidelberg, the Casimirianum and the Academy of Herborn. In them the alliance (foedus—federal) 27 See

https://www.monergism.com/thethreshold/articles/onsite/qna/covenant.html. 30/05/2017. 28 Althusius (2003), p. 349.

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theology with political implications found acceptance and space for development between the sixteenth century and, especially in the seventeenth century: The University of Heidelberg became a reformed school of theology between 1559 and 1561. The school was under state control, and so, when voter Otto Heinrich died in 1559, college appointments were left under the control of the successor, the Elector Friedrich III the Pious. Friedrich wanted to make the university a school that was distinctly Calvinist, and so in the following years he managed to attract men like Ursinus, Olevianus, Zanchius, Tremelius, Tossanus, and Junius to college. […] Johann Casimir kept the faith reformed and invited the students and professors of the Collegium Sapientiae in Heidelberg and the retired members and students of the Faculty of Theology at the University of Heidelberg joined him in founding a new school, the Casimirianum, located in Neustadt an der Hardt, one of the small towns of the Palatinate controlled by Casimir. […] In 1583, another school was founded by the House of Orange, which would continue with some of the teachings that had left Heidelberg. The Herborn Academy was sponsored by the House of Nassau, specifically by Count Johann von Nassau, or Johann der Ältere. The school taught theology and jurisprudence, among other subjects. His first professor of theology was Olevianus and Johannes Piscator, who had previously studied in Heidelberg. And the first teacher of jurisprudence was Johannes Althusius (1557–1638). The school was strongly marked by a reformed doctrine and adopted methodological techniques of the most modern, one of which was the Ramista Philosophy, which would have an important influence in the development of the federal theology. […] Federal theology emerged from these three schools, from where it spread throughout Europe.29

It is interesting to note how the reformed worldview of the early modernity sought to occupy some privileged spaces for the propagation of its values. The academic environment was one of these spaces, and the universities served as true laboratories for the application of theological lessons drawn from a type of biblical reading, which in turn shaped the other fields of knowledge. For these Calvinists, revelation occupied all the spaces of life, giving them a tone of sacredness that should submit to the general rule of Revelation. Althusius is a product of this mentality, for he was someone who sought to think the dilemmas of his time from an eminently theological worldview. Perhaps for this reason, its role has been so neglected by contemporary authors, which is undoubtedly a great injustice. Althusius, when read in his context and understood from his assumptions, may still be of great relevance to contemporary society.

4 Final Considerations Undoubtedly, Althusius was one of the great thinkers of the articulation and organization of the Modern State. His work still echoes and assists in understanding some contemporary problems. In this work, it was tried to show how the thought and the work of Althusius represent the convergence of several traditions. The works of the monarchs of the sixteenth century exerted a strong influence on the thought of the German jurist, who for once, made strong contributions to the newly independent Republic of the Netherlands. It is also important to point out that Althusius’s thought 29 Weir

(2004), pp. 123–125.

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expresses in a very peculiar way a strong influence of the Calvinist worldview at the beginning of modernity, either by the ramista influence (in the philosophical field) that is visible in all his work, or by the force of the interpretations of Theology of the Alliance or Federal Theology. It is these references that enabled Althusius to think and propose political, social and legal solutions for his time. It is interesting to note that his greatest cognitive strength became his greatest weakness, for as modernity advanced and left behind every religious legacy, Althusius’s thought was considered outdated and naively articulated. The aim of this work was to point out the outstanding influences of philosophy and theology on the thought and work of Johannes Althusius, in order to show that despite some obvious limitations imposed by time and circumstances, his work remains valid for contemporaneity because it lends itself to multiple layers of reading and interpretation.

References Althusius J (2003) Política metodicamente apresentada e ilustrada com exemplos sagrados e profanos. Topbooks, Rio de Janeiro Bèze T (1970) Du droit des magistrats. Libraire Droz, Genève Carney FS (2003) “Introdução do Tradutor da Edição Americana”. In: Althusius J. Política metodicamente apresentada e ilustrada com exemplos sagrados e profanos. Topbooks, Rio de Janeiro Castro JORD (1960) O contratualismo ideológico das vindiciae contra tyrannos. [Tese de LivreDocência de Hisstória Política da Faculdade de Ciências Econômicas da Universidade de Minas Geais]. Belo Horizonte Figgs JN (1960) Political thought from Gerson to Grotius: 1414–1625: Seven Studies. Disponível em: http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/figgis/PoliticalTheory.pdf. Accessed 29 May 2017 Hotman F (1972) Francogallia. (Latin text by Ralph E. Giesey Translated by J.H.M. Salmon). Cambridge University Press, Cambridge Kelley DR (1970) Foundations of modern historical scholarship - language, law, and history in the French renaissance. Columbia University Press, London and New York Kingdo RM (1970) “Introduction”. In: BÈZE, Théodore. Du droit des magistrats. Libraire Droz, Genève Kusukawa S (2007) Pedro Ramo: Reforma e método. In: Blum PR (ed) Filósofos da Renascença. UNISINOS, São Leopoldo Laski HJ (1924) Introdução Histórica das Vindiciae Contra Tyrannos (em inglês). Washington Mesnard P (1951) L’Essor de la Philosophie Politique au XVIe siècle. Libraire Philosophique J. Vrin, Paris Romano R (2008) Os monarcômacos. Disponível em: https://robertoromanosilva.wordpress.com/ 2010/03/11/os-monarcomacos/. Accessed 26 June 2013 Skinner Q (1996) As fundações do pensamento político ocidental moderno. Companhia das Letras, São Paulo Vindiciae contra Tyrannos (1689) A defence of liberty against tyrants or on the lawful power of the Prince over the people, and of the people over the Prince. Printed for Richard Baldwin, London Weir DA (2004) The origins of the federal theology in sixteenth-century Reformation thought. Oxford University Press, New York Witte J Jr (2007) The reformation of rights: law, religion, and human rights in early modern Calvinism. Cambridge University Press, Cambridge

Living Well Together: Insights from a Philosopher, a Theologian and a Legal Scholar Diana Ginn and Edward R. Lewis

Abstract The writings of a legal scholar (Harold Berman), a philosopher (Charles Taylor) and a theologian (Rabbi Sacks), are used to illuminate the relationship among jurisprudence, religion and peace. These authors negate the assumption that religion is disappearing from the world, or at least from Western civilization. All three contend that religion, understood broadly as a yearning for transcendence, continues to resonate in today’s world. This yearning is deeply relevant to questions of peace. Of course, religion’s influence is not always benign, and these authors assert that since religion has sometimes been used to fuel and justify violence, religious voices must offer alternative, peace-affirming understandings of faith. For some among the faithful, it seems likely that voices speaking from within their religious tradition will carry more weight than secular pleas for peace. Berman, Sacks and Taylor also emphasize that both law and religion speak to how we are to live in community. Moving away from violence will require a re-orientation towards peace in domestic and international law and in the law that is written upon our hearts—that is, in our fundamental understandings of how we are to live and flourish together. Neither Berman, Sacks nor Taylor are naive about the challenges involved in this task of re-orientation, but reading these three authors in concert illuminates the possibility of a positive relationship among jurisprudence, religion and peace.

1 Introduction One response to the juxtaposition of religion and peace might be to ask, “why religion?” Surely, some will exclaim, we would be better calling on reason, science, philosophy, or the creative arts—in fact almost anything other than religion—when seeking ways to build a more peaceful world. And, even if one were persuaded of the

D. Ginn (B) · E. R. Lewis Schulich School of Law, Dalhousie University, 6061, University Avenue, 15000, Halifax, NS B3H 4R2, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_5

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relevance of religion, it might still be asked: “Why religion and law? Why consider these in the same breathe, when thinking about peace?”. The writings of philosopher Charles Taylor,1 theologian Rabbi Jonathan Sacks,2 and legal scholar Harold Berman,3 offer a number of inter-related insights on why it is relevant—in fact, imperative—to consider how a positive relationship might be fashioned between religion, law and peace. The first insight is that religion, broadly understood as a yearning for the transcendent, forms part of the human condition and fundamentally affects how we behave towards each other—whether in life-affirming or destructive ways. Further, because of the on-going presence in the world today of religion, widely-defined, and because religion has played a role in encouraging and justifying violence, religions have a duty to look within their traditions and offer alternate, peace-oriented paths for the faithful. This is not only an ethical imperative but, pragmatically speaking, is the most effective way of responding to religious calls for hostility and bloodshed. Finally, both religion and law respond to questions about how we are to live in community, and so should have something to say to each other on the topic of how to live together more peacefully. All three authors offer broad definitions of religion. In The Interaction of Law and Religion,4 Berman characterizes religion as reflecting “society’s intuitions of and commitments to the ultimate meaning and purpose of life”.5 In Not in God’s Name,6 Sacks describes religion as responding to “the three questions every reflective individual will ask at some time in his or her life: Who am I? Why am I here? How then shall I live?”7 These queries find their echo in Taylor’s A Secular Age,8 which has been described as addressing the continued relevance of questions such as: “[W]hat is the most compelling account of what makes life valuable and what is the normative status of this way of life? What is it that grounds our sense of obligation, that inspires us to affirm and commit our lives to certain values, and that empowers or motivates us to realize such commitments?”9 Taylor suggests it is the drive to answer these questions which maintains the ongoing significance of religion in many people’s

1 Philosopher,

professor emeritus at McGill University, former holder of the Chichele Professorship of Social and Political Theory at Oxford, and 2007 winner of the Templeton Prize which “honors a living person who has made an exceptional contribution to affirming life’s spiritual dimension, whether through insight, discovery, or practical works.” http://www.templetonprize. org/abouttheprize.html. 2 Former Principal of Jews’ College, later the London School of Jewish Studies, Chief Rabbi of the United Hebrew Congregations of the Commonwealth between 1991 and 2013, winner of the 2016 Templeton Prize. 3 Professor, Harvard Law School and Emory University School of Law, described in a New York Times obituary as having “altered thinking about Western law’s origins”. Martin (2007). 4 Berman (1974). 5 Berman (1974), p. 12. 6 Sacks (2015). 7 Sacks (2015), Chap. 1, p. 47. 8 Taylor (2007). 9 Morgan (2008).

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lives, even in the supposedly secular West.10 Or, at least this is the case so long as religion is understood as more than “the great historic faiths, or even … explicit belief in supernatural beings”.11 Taylor would “include a wide range of spiritual and semi-spiritual beliefs” and even “cast [his] net … wider and think of someone’s religion as the shape of their ultimate concern.”12

2 A Yearning for the Transcendent Religion as defined by Berman, Sacks and Taylor is not likely to disappear anytime soon. In A Secular Age, Taylor analyzes and ultimately casts serious doubt on a powerful narrative which situates modern and post-modern understandings of Western civilization in a place of unbelief—a “subtraction” narrative which sees the decline of religion and the rise of atheistic worldviews as the “unshackling” of human beings, thanks to the influence of empirical science. The subtraction theory has not, in Taylor’s view, been borne out. While he acknowledges the “move from a society where belief in God is unchallenged and indeed, unproblematic, to one in which it is understood to be one option among others, and frequently not the easiest to embrace”,13 Taylor does not accept that religion, broadly speaking, has declined nearly to the extent that the subtractive account tends to posit. Taylor is convinced that this is because, even in secular societies, questions about the purpose of life, and the purpose of one’s own life, reflect a “religious longing”14 for some form of transcendence. As Craig Calhoun notes, “The contrast between immanence and transcendence is … one of Taylor’s main organizing themes. Immanence locates both our sense of reality and our sense of the good within the world around us; transcendence gives us a sense of something beyond.”15 While this sense of “something beyond” could be understood, at least in some faiths, as referring to life after death, it also, more relevantly for our discussion, relates to the search for deeper meaning in this life, an awareness of something beyond self-interest, beyond the “getting and spending”16 and the (often inherited) grievances and antipathies that inform our daily lives. This need for “something beyond” is also reflected in Berman’s statement that “a people can’t live for long without engagement, without enthusiasm, without struggle, without faith”,17 and in Sacks’ reflection that it is “hard to live without meaning. That is why no society 10 Berman’s definition of “the West” is helpful here; he characterizes the West as made up of “those civilizations which see Israel, Greece and Rome as their “spiritual ancestors”. Berman (1983), p. 2. 11 Taylor (2007), p. 427. 12 See Footnote 11. 13 Taylor (2007), p. 3. 14 Taylor (2007), p. 530. 15 Calhoun (2008). 16 Wordsworth (1807). 17 Berman (1983), p. 12.

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has survived for long without either a religion or a substitute for religion”.18 In fact, Sacks argues that “[a]gainst all expectations, [the world’s religious communities] have emerged in the twenty-first century as key forces in a global age”.19 The writings of Taylor, Sacks and Berman serve to remind us that it is part of the human condition to yearn for intimations of transcendence, for the possibility of “something beyond” breaking in upon the here and now. The realization that human beings hunger for a narrative which gives shape to their lives and to the world around them and which tells of an ultimate purpose, is a necessary corrective to the subtraction theory of secularization, and the related notion that faith has little to offer to the serious endeavor of trying to build a more peaceful world. In fact, religion is profoundly relevant to issues of peace, since our “intuitions of and commitments to the ultimate meaning and purpose of life”20 influence how we behave. Taylor emphasizes the link between “[a] belief in a transcendent reality … and the connected aspiration to a transformation that goes beyond ordinary human flourishing”.21 While the longed-for transformation might be entirely inwardlooking, clearly it has the potential to affect how we treat each other, whether for good or for ill. Contemplation of the questions enumerated by Sacks—“Who am I? Why am I here? How then shall I live?”22 —might nudge us to ask, not just “How may I achieve the good life?” but also “How may I help my neighbour to achieve the good life”? Taylor raises the possibility that a search for the “something beyond” may create a sense of “communitas”—that is, “the intuition we all share that, beyond the way we all relate to each other through our diversified coded roles, we also are a community of many-sided human beings, fundamentally equal, who are associated together”.23 Of course, there is also the danger that a hunger for transcendence might tempt us to ask, “How can I force my neighbour to live by my understanding of the good life?” Relatedly, where individuals or groups feel harmed by others’ understanding of the good life, this may create a profound sense of injustice, resulting in “social disintegration”24 and even, as Berman describes in his study of the series of revolutions which shaped and reshaped the West, “violent apocalyptic transformation[s] of society”25 aimed at righting those injustices.

18 Sacks

(2015), Chap. 1, p. 48. (2002), p. 4. 20 See Footnote 5. 21 Taylor (2007), p. 510. 22 Sacks (2015), Chap. 1, p. 47. 23 Taylor (2007), p. 49. 24 Berman (1983), p. vii. 25 Berman (1983), p. 25. 19 Sacks

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3 Alternate Visions of Faith The acknowledgement that a sense of “something beyond” does not automatically make for peace is sadly evident in the many instances throughout history where a more powerful religion has supressed more vulnerable religious communities, or where religion has fueled the fires of sectarianism and hatred, where apocalyptic visions have called for the transformation of society in brutal and bloody ways, or where resistance to the attempted transformations has been equally brutal and bloody. Whether one looks to the crusades of the 11th century, the internecine bloodletting of Tudor times, Canadian attempts through the Indian Act 26 and other policies to supress indigenous spirituality and replace it with Christianity, the religiously-aligned violence of Northern Ireland’s “Troubles”, or the more recent attempts to build an Islamic caliphate, to eradicate the Rohingya in Myanmar, or to stoke a virulent form of Hindu nationalism in India, it is clear that religion can be used to repress and to foment violence. As Sacks so compellingly states: “Religion leads to violence when it consecrates hate.”27 In fact, according to Sacks, “the greatest threat to freedom in the postmodern world is radical, politicized religion”.28 He makes the disquieting point that, globally, the religion most on display today is “religion at its most adversarial and aggressive, prepared to do battle with the enemies of the Lord, bring the apocalypse, end the reign of decadence and win the final victory for God, truth and submission to the divine will”.29 This kind of religion can lead otherwise ordinary people to commit acts of what Sacks calls altruistic evil: “evil committed in a sacred cause, in the name of high ideals”.30 This leads to the crucial awareness that because religion has played a part in justifying violence, there is a corresponding duty on religious voices to offer other understandings of faith, offering alternatives to violence, as well as to the aggression and suspicion which may continue to simmer long after overt violence has been quelled. While Taylor acknowledges that it is impossible to predict where spirituality will go in our age,31 he clearly hopes for a future that acknowledges our shared sense of a transcendent reality, and which also jettisons procrustean and/or demonizing narratives that can arise out of retrospective religious worldviews (or, indeed, absolutist modern ideologies). Taylor suggests that it is this type of religion, broad in definition and more flexible in its approaches to doctrine and orthodoxy, which might 26 Indian

Act (R.S.C., 1985, c. I-5). (2015), Chap. 14, p. 15. 28 Sacks (2015), Chap. 1, p. 51. Sacks also argues that “Most conflicts and wars have nothing to do with religion, whatsoever. They are about power, territory and glory, things that are secular, even profane. But if religion can be enlisted, it will be.” Sacks (2015), Chap. 2, p. 55. 29 Sacks (2015), Chap. 1, p. 49. 30 Sacks (2015), Chap. 1, p. 31. Sacks does not claim that all such evil stems from religion. He recognizes that nonreligious ideologies can also lead to atrocities, citing regimes under Hitler, Stalin, Mao and Pol Pot. 31 In fact, Taylor thinks it unlikely that “any general theory can truly be established in this climate.” Taylor (2007), p. 679. 27 Sacks

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lead us to a more peaceful social arrangement. In a similar vein, in The Dignity of Difference, subtitled “How to Avoid the Clash of Civilizations”, Sacks makes “a plea … for tolerance in an age of extremism”,32 arguing that because “[r]eligion can be a source of discord”33 religion must “also be a form of conflict resolution”.34 Since religions have emerged as one of “the key forces in a global age”,35 this obligates “[t]he great faiths … [to] become an active force for peace and for the justice and compassion on which peace ultimately depends”.36 In The Dignity of Difference, and Not in God’s Name, Sacks does not simply make a generalized plea for religions to take peacebuilding seriously; he identifies concrete ways in which religion is well suited to contribute to reducing violence, and encouraging individuals and communities to contemplate living into a shared future. In particular, he suggests that religion can teach forgiveness, can warn against the destructive dualism of Us and Them, and can reinterpret sacred texts which been used to validate hatred and violence. On forgiveness, Sacks argues that it is, “in origin, a religious virtue”,37 and “a stunningly original strategy”38 for conflict resolution. In Sacks’ view, forgiveness comes from the breathtaking realization that “[w]rongs can be rectified, and harm healed”,39 which “means that we are not destined endlessly to replay the grievances of yesterday. [Forgiveness] is the ability to live with the past without being held captive by the past”40 ; it is the place where “law and love, justice and mercy, join hands.”41 Sacks speaks of “the power of a religious vision to reframe history, liberating ourselves from the otherwise violent dynamic of revenge and retaliation”.42 A significant focus of Not in God’s Name is on the dangerous propensity of humans to divide the word into Us and Them, which at its worst allows us to convince ourselves “that evil committed in a good or sacred cause [i.e. against the Other] is justifiable, even noble”.43 Sacks suggests that seeing the world as Us and Them is to some degree embedded in human nature: “We are social animals. We hand on our genes as individuals, but we survive only as groups”.44 This means that we learn to cooperate within groups, and to compete with other groups: “… the very act of creating an ‘Us’ simultaneously creates a ‘Them’, the people not like us.”45 32 Sacks

(2002), p. vii. Footnote 19. 34 See Footnote 19. 35 See Footnote 19. 36 See Footnote 19. 37 Sacks (2002), p. 180. 38 Sacks (2002), p. 178. 39 See Footnote 37. 40 Sacks (2002), p. 179. 41 Sacks (2002), p. 181. 42 Sacks (2015), Chap. 8, p. 61. 43 Sacks (2015), Chap. 5, p. 65. 44 Sacks (2015), Chap. 2, p. 14. 45 Sacks (2015), Chap. 10, p. 11. 33 See

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Sacks does not, however, advocate universalizing tendencies directed at dissolving all sense of group identity. Rather, he believes the religious response to the UsThem conundrum should be to find ways to “honor both our commonalities and our differences”.46 His fundamental thesis is that “we must learn to feel enlarged, not threatened, by difference”,47 and that religions must lead the way in instilling this non-intuitive insight, by recognizing the humanity and worth of those who differ from us. Sacks calls on each faith to “search—each faith in its own way—for a way of living with, and acknowledging the integrity of, those who are not of our faith”,48 and makes the compelling argument that “The idea that we fulfill God’s will by waging war against the infidel, or by forcing our specific practices on others, so that all humanity shares the same religion is an idea that … owes much to the concept of empire and little to the heritage of Abraham, which Jews, Christians and Muslims claim as their own.”49 Learning to experience an encounter with the Other as a blessing, rather than a threat50 will not be easy, but Sacks suggests that sacred stories may offer a way forward, contending that the Biblical narratives “forc[e] us to enter into the humanness of the Other”.51 In his view, “The Hebrew Bible is a unique attempt to find a way out of the dilemma by showing how the unity of God can co-exist with the diversity of humankind”.52 To illustrate this, Sacks refers to two key stories within the Judaeo-Christian tradition—the Flood,53 and the Tower of Babel54 —which he describes as “precisely matched accounts of the two great alternatives: identity without universality and universality without identity”.55 Sacks explains: “The Flood is 46 Sacks

(2015), Chap. 11, p. 52. Footnote 32. 48 Sacks (2002), p. 5. 49 Sacks (2002), p. 201. 50 See Footnote 32. 51 Sacks (2015), Chap. 10, p. 14. 52 Sacks (2015), Chap. 11, pp. 23–24. 53 Bible, Genesis, 6: 5–8. 5 The Lord saw how great the wickedness of the human race had become on the earth, and that every inclination of the thoughts of the human heart was only evil all the time. 6 The Lord regretted that he had made human beings on the earth, and his heart was deeply troubled. 7 So the Lord said, “I will wipe from the face of the earth the human race I have created— and with them the animals, the birds and the creatures that move along the ground—for I regret that I have made them.” 8 But Noah found favor in the eyes of the Lord.” 54 Bible, Genesis 11: 1–8 “Now the whole world had one language and a common speech. 2 As people moved eastward, they found a plain in Shinar and settled there. 3 They said to each other, “Come, let’s make bricks and bake them thoroughly.” They used brick instead of stone, and tar for mortar. 4 Then they said, “Come, let us build ourselves a city, with a tower that reaches to the heavens, so that we may make a name for ourselves; otherwise we will be scattered over the face of the whole earth.” 5 But the Lord came down to see the city and the tower the people were building. 6 The Lord said, “If as one people speaking the same language they have begun to do this, then nothing they plan to do will be impossible for them. 7 Come, let us go down and confuse their language so they will not understand each other.”8 So the Lord scattered them from there over all the earth, and they stopped building the city.9 ” 55 Sacks (2015), Chap. 11, pp. 13–14. 47 See

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what happens when there are Us and Them and no overarching law to keep the peace. The result is anarchy and violence. Babel is what happens when people attempt to impose a universal order, forcing Them to become Us. The result is imperialism and the loss of liberty”.56 On the same theme, Sacks points out that the Biblical narrative sets out two great covenants between God and humanity: the first, after the Flood, is made with all humanity; the second is made with Abraham and his descendants. He suggests that these stories can help us to understand that “You cannot love God without first honouring the universal dignity of humanity as the image and likeness of the universal God”.57 Sacks’ rejection of a dualism that allows religion to be used as a justification for hating, or even killing, those who hold different understandings of God’s will resonates with Taylor’s study of secularity. Taylor opens A Secular Age with an overview of various theories of secularity,58 and in the end encourages a narrative where no one understanding of the good life can dominate by demanding the acquiescence of all. Taylor reminds us that “we cannot help but be aware that there are a number of different construals [of the world through belief or unbelief], views which intelligent, reasonably undeluded people, of good will, can and do disagree on.”59 Besides calling for forgiveness and underscoring the humanity of the Other, religions have a duty to respond to religiously-justified conflict by emphasizing those texts and practices within the tradition which speak of love, compassion, and welcome to the stranger. Even more challenging, Sacks calls on the world faiths to fundamentally reinterpret those parts of their tradition which appear to glorify and justify inhumane treatment of those who are Other. Sacks states, in relation to the “hard texts”60 of the Abrahamic faiths: “the very texts that lie at the root of the problem, if properly interpreted, can provide a solution. This, though, will require a radical re-reading of those texts, through an act of deep listening to the pristine voice of monotheism”.61 A significant portion of Not in God’s Name is devoted to a profound and nuanced object lesson in the kind of scriptural reinterpretation which Sacks is advocating. Sacks argues that Judaism, Christianity and Islam all suffer 56 Sacks

(2015), Chap. 11, p. 21. (2015), Chap. 11, p. 53. 58 A Secular Age is described in the Economist as “A vast ideological anatomy of possible ways of thinking about the gradual onset of secularism”. Para 5. Taylor begins by setting out three general characterizations of secularity: (1) the emptying of common institutions (particularly political/state ones) of religious content; (2) the general decline in conventional religious beliefs and practices, and (3) the conditions of belief, which Taylor describes in more detail as “the whole context of understanding in which our moral, spiritual, or religious experience and search takes place.” Taylor (2007), p. 3. 59 Taylor (2007), p. 11. 60 One of Sacks’ strengths is that he does not shy away from the fact that “The sacred literatures of Judaism, Christianity and Islam all contain passages that, read literally, are capable of leading to violence and hate.” Sacks (2015), Chap. 12, p. 55. These texts in his view are neither to be excised nor to be read literally (Sacks makes the wry comment, “Fundamentalism reads texts as if God were as simple as we are. That is unlikely to be true.” Sacks (2015), Chap. 15, pp. 2–3); instead, his constant theme is that they must be re-interpreted. 61 Sacks (2015), Chap. 1, p. 94 (emphasis in the original). 57 Sacks

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from a form of sibling rivalry, each claiming to be the true heir of Abraham (and the Abrahamic covenant with God). He suggests that the Genesis stories of Cain and Abel, of Ishmael and Isaac, of Esau and Jacob, and of Joseph and his brothers, which on their face seem to tell of one brother being favored and the other rejected, actually carry within them a powerful counter-narrative of a move from rivalry to reconciliation. Thus, Sacks gives the Biblical Book of Genesis a reading that is, ultimately “God’s reply to those who commit violence in his name. God does not prove his love for some by hating others.”62 From this, those of the Abrahamic faiths are called to understand that “Neither, if we follow him, may we.”63 Sacks’ call for reinterpretation of hard texts has two dimensions. First, there is the sense of ethical duty: the argument that since religion is implicated in violence, world faiths have an obligation to “become an active force for peace and for the justice and compassion on which peace ultimately depends”.64 Building on this, there are also pragmatic reasons why attempts to build peace must include religious voices. Where religion has fostered violence, reconciliation is unlikely without an understanding of the religious claims being made, both in terms of religious perceptions of the wrongs being resisted, and religious justifications for the use of violence as part of this resistance. For instance, Berman characterizes revolutionary narratives as frequently harkening back to a mythological, golden past.65 If we look to the religiously-justified violence that is prevalent today, believers are called to reject the decadence of the modern world, and return to the purer ways of a mythological and glorified past. Where violence is validated by reference to religious narratives and metaphors, it is religious voices which are most suited to offer an alternative vision of the faith. Voices from within a religious tradition offering peaceful readings of problematic texts, and condemning brutal interpretations, will have more chance of resonating with believers than will criticisms of religious violence from those who have no experience living in that tradition; those whose imaginations have been fired by a violent construal of the faith are unlikely to be persuaded to reconsider by appeals from outside their faith tradition.66 Whether or not one attributes any religious meaning to the stories of Genesis, it should surely be clear that, for those who do hold those stories as sacred, Sacks’ approach to reinterpretation is more likely to be compelling than any secular alternative. Secular alternatives such as simply ignoring the stories (thus leaving them to be the sole purview of those who offer far less generous readings) or using them to prove that, once again, religion has shown itself to be nasty and discordant will not be persuasive to those of faith. Similarly, one does not have to share Sacks’ belief in “the pristine voice of monotheism”67 62 Sacks

(2015), Chap. 9, p. 54. Footnote 62. 64 Sacks (2002), pp. 4–5. 65 Berman (1983), p. 15. 66 Sacks argues that the “new atheists”, emerging after 9/11 to decry religious extremism, “ruined their case by caricature, making the claims, palpably false, that all religion leads to violence and most violence can be traced back to religion”. Sacks (2015), p. 54. 67 Sacks (2015), Chap. 1, p. 94. 63 See

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to understand that re-interpretations of sacred texts offered by voices devoted to, and deeply conversant with, those texts have more hope of counteracting harmful interpretations of Christianity, Islam or Judaism than do critiques by those who have never belonged, or have chosen to reject, the relevant faith tradition. There is, therefore, a pragmatic, as well as a moral and ethical dimension, to involving religion in peacebuilding.

4 Living in Community Even if one is persuaded that religion, broadly defined, is still a force to be reckoned with in today’s world and that religious perspectives must be part of peacemaking efforts, there is nevertheless the question of why this book examines both law and religion in relation to peace. Why examine the relationship between religion, law and peace, rather than simply looking at the contributions that theology alone, or jurisprudence alone, might make to peace? Perhaps the simplest answer to this question is the realization that, ultimately, both law and religion speak to how we are called to live in community. Moving away from violence will require a re-orientation towards peace in domestic and international law and in the law that is written upon our hearts68 —that is, in our fundamental understandings of how we are to live together. In A Secular Age, Taylor reasons that there is a link between belief (intuition) and behaviour (the creation of structures and processes). In The Interaction of Law and Religion, Berman advances the idea that “law and religion are two different but interrelated aspects, two dimensions of social experience”.69 He goes on to say, “… in all cultures … law and religion share certain elements, namely, ritual, tradition, authority, and universality”.70 Berman clarifies: “I am speaking of law and religion in the broadest sense—of law as the structures and processes of allocation of rights and duties in a society and of religion as society’s intuitions of and commitments to the ultimate meaning and purpose of life.”71 Thus, law is more than simply a set of rules; it allocates rights and responsibilities, resolves disputes, and builds “channels of cooperation”.72 Similarly, religion is more than simply a collection of doctrines; at its core, it is “a shared intuition of and commitment to transcendent values”.73 In the introduction of The Interaction of Law and Religion, Berman notes, regarding the series of lectures on which the book is based, “Some listeners were concerned

68 Bible, Jeremiah 31:33 “‘This is the covenant I will make with the people of Israel after that time,’ declares the Lord. ‘I will put my law in their minds and write it on their hearts. I will be their God, and they will be my people’.” See also Hebrews 10:16. 69 Berman (1974), p. 11. 70 Berman (1974), p. 13. 71 See Footnote 5. 72 Berman (1974), p. 24 (italicized in original). 73 See Footnote 72.

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that more emphasis was not placed on the conflicts between law and religion”.74 Berman clarifies that he is not trying to argue that they are one and the same; rather he is attempting to highlight the dangers of failing to understand that the underlying impulses in law and religion are related. Berman’s insightful commentary suggests that, at their core, both law and religion are about relationships—with each other, with the community, with perceptions of the common good. The recognition that religion and law share an interest in how to live together in community begs a series of questions. We might ask ourselves: Who belongs within the community? Who does not? Is the border between belonging and not belonging porous or closed? Are rights and obligations shared equitably within the community, or do the structures of law and religion allow some to enjoy greater rights and require others to shoulder greater burdens? Are the established rules of the community viewed as set for all time, or is there room for evolution and reformation? Are deviations from the rules to be met with harsh punishment, or with opportunities for transformation and restoration? Does the community repress dissent, or is there room for debate about what most contributes to human fulfilment, dignity and flourishing? Perhaps most importantly of all: How are those outside the community to be treated? The answers which a society provides to these question will flow, as Berman theorizes, from “intuitions of and commitments to the ultimate meaning and purpose of life,”75 whether or not these are articulated in overtly religious terms. And, the answers which a society provides to these questions will influence the legal framework of that society. Certain frameworks will allow for movement (however slow or lurching) toward peace and justice (or even holiness, for those for whom such language has meaning). Different answers, and different legal frameworks, will tend in the opposite direction. Berman reminds us that if law becomes simply those rules that the more powerful can impose upon the less, rather than a framework developed to encourage a more just society, or if religion becomes simply subjective sentiment, unaligned with any concern about the common good, neither is likely to contribute to peacemaking. Taylor makes a related point when he notes that different understandings of secularism (which differ in the space permitted for the transcendent) will translate into differences in jurisprudence; and that different approaches can either enhance or diminish the scope for peaceful coexistence. While transforming societies into “network[s] of agape”,76 to use Taylor’s compelling phrase, will always remain aspirational, rather than fully achievable, some choices are more likely than others to create the possibility of peaceful resolution of conflicts. The goal of peacemakers in any violent conflict is first to end the carnage and the killing, and then to assist enemies in contemplating the possibility of a shared future. By encouraging each of us to see the divine spark in each other, even in our enemies, and to imagine new and better ways of living into the future together,

74 See

Footnote 69. Footnote 5. 76 Taylor (2007), p. 158. 75 See

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religion (or those that are so minded within each faith tradition, since none is monolithic77 ) can offer hope for a more peaceful future.78 While law cannot enforce the highest duties which religious faith calls forth, it is an important tool in minimizing violence and hatred, and in enhancing equity and justice. As the Reverend Martin Luther King Jr. declared in response to the argument that hearts cannot be changed through legislation: Now the other myth that gets around is the idea that legislation cannot really solve the problem and that it has no great role to play in this period of social change because you’ve got to change the heart and you can’t change the heart through legislation. You can’t legislate morals. The job must be done through education and religion. Well, there’s half-truth involved here. Certainly, if the problem is to be solved then in the final sense, hearts must be changed. Religion and education must play a great role in changing the heart. But we must go on to say that while it may be true that morality cannot be legislated, behavior can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also. So there is a need for executive orders. There is a need for judicial decrees. There is a need for civil rights legislation on the local scale within states and on the national scale from the federal government.79

5 Conclusion Reading Berman, Sacks and Taylor together suggests pertinent questions to ask of both religion and law, and illuminates the possibility of a positive relationship between jurisprudence, religion and peace. They argue persuasively that, even in more secular societies, there is a hunger for the transcendent, a hunger which has the potential to create a sense of shared humanity, or to inspire dualistic thinking about Us and Them which allows “altruistic evil” to flourish. Religiously justified hatred and violence are most effectively combatted by religious voices offering alternate, peace-oriented, visions of the faith, and religions are under a positive obligation to offer these alternate understandings of scripture and practice. Finally, both law and religion are, at their core, about living together in community. At their best, both law and religion call forth a recognition of the inherent dignity of each person, and work toward a sense of communal, not simply individual, flourishing. At their worst, both can oppress and exclude. Berman suggests that “Law has to be believed in, or it will not work”.80 Creating legal frameworks which those of different faiths and no faith can believe in is no easy task, but Sacks, Taylor and Berman encourage reflection on how the interaction of religion and jurisprudence might allow us to glimpse new paths toward peace. 77 Sacks

(1974), Chap. 15, p. 45 (emphasis in original). distinguishes between hope and optimism as follows; “Optimism is the belief that things will get better. Hope is the faith that, together, we can make things get better.” Sacks (2002), p. 206. 79 Martin Luther King Jr. (1963). 80 Berman (1974), p. 14. 78 Sacks

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References Berman H (1974) The interaction of law and religion. Abington Press, Nashville/New York Berman H (1983) Law and revolution, formation of the Western legal tradition. Harvard University Press, Cambridge, MA Cahoun C (2008) A secular age: going beyond. Posted on the immanent frame: secularism, religion and the public square. https://tif.ssrc.org/2008/01/28/going-beyond/ King ML Jr. address at Western Michigan University, December 18, 1963. https://www.workingminds.com/MLKquotes.htm Martin D (2007) Harold J. Berman, 89, Who altered beliefs about origins of Western law, Dies. 18 Nov 2007. https://www.nytimes.com/2007/11/18/us/18berman.html Morgan ML (2008) Review of Charles Taylor, A secular age. Notre Dame Philosophical Reviews 2008.08.10. https://ndpr.nd.edu/news/a-secular-age/ Sacks J (1974) Sacks notes that “The real clash of the twenty-first century will not be between civilizations or religions, but within them” Sacks J (2002) The dignity of difference: how to avoid a clash of civilizations. Continuum Press, London/New York Sacks J (2015) Not in God’s name: confronting religious violence. Schocken Books, New York Taylor Ch (2007) A secular age. Belknap Press, Cambridge, MA The Bible, New International Version. https://www.biblegateway.com/versions/New-InternationalVersion-NIV-Bible/ Wordsworth W (1807) The world is too much with us. https://www.poetryfoundation.org/poems/ 45564/the-world-is-too-much-with-us

Secular Peace Through Universal Religions

A Theological Justification for Freedom of Religion and Belief as a Universal Right Jessica Giles

Abstract Globally there are high levels of restrictions on the fundamental right to freedom of thought, conscience and religion (FoRB). In the light of this evidence, this chapter explores the extent to which FoRB can still claim to be a universal right from a theoretical perspective. To address the gap between aspirational rights norms and practice this chapter then considers a theory grounded in reformed theology to support FoRB as a universal right. The theory presented proceeds on the assumption that plural living together, subject to certain safeguards, is the context in which humans can best flourish. Further that, as a legal tool, FoRB both requires and facilitates plural living together. The chapter analyses whether, in support of a plural approach, the claim to universalism for FoRB could be better supported by a multivalent dialogic approach to freedom of religion and belief. Bearing in mind that rights frameworks do not sit altogether easily in some non-Western constitutional frameworks the chapter works towards a proposal for the application of FoRB in both Western and non-Western contexts, arguing for universalism but against uniformity. To address the problem consequent upon FoRB, namely the clash between faithbased moral frameworks inter se and the clash between faith-based frameworks and non-faith based frameworks, the chapter considers the application of a theoretical basis for FoRB in conjunction with the political philosophical theological approach to normative pluralism put forward by Dooyeweerd, more recently refined by Chaplin. This provides a contextualized tool for resolving clashes between FoRB and other fundamental rights as well as a mechanism for situating FoRB in non-Western constitutional contexts. The overarching aim is to support the use of FoRB as a tool to facilitate peaceful plural relations in civil society.

J. Giles (B) SFHEA, Barrister, The Open University, Milton Keynes, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_6

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1 Introduction As one of several first-generation civil and political rights written into post World War II rights frameworks, freedom of thought, conscience and religion (FoRB) is designated a universal right. As such it is a tool in the armoury of rights that has been used to protect against societal degeneration into the abusive and degrading conditions that were prevalent in Europe prior to and during WWII. Coupled with European economic integration through the legal mechanism of the European Union, rights frameworks have facilitated stability in Europe, at least between members of the EU, for over half a century. Witte, however, traces these recent claims to universalism of rights, in particular for the group of civil and political rights written into the post WWII international and regional rights frameworks, back to the European Reformation1 and explores their influence in the framing of constitutional landscapes in Europe and America. Despite their long and distinguished history, increasingly the claim to universalism is being challenged both within Western and non-Western contexts, in particular in relation to FoRB. FoRB as a universal right can be seen as problematic on various grounds. This is because the enjoyment of FoRB is dependent upon some form of pluralism as a condition of civil society2 whereas in a somewhat contradictory fashion increasingly rights frameworks are becoming an exclusive political ideology in and of themselves.3 They are supported, in some instances, by strong concepts of secularism manifesting as ‘neutrality’, whereby religion is excluded from all spheres of public life.4 In addition, religious freedom is seen in Western and non-Western cultures to clash with equality rights. In Western cultures this can result in the preferancing of equality rights over and above religious freedom: in non-Western cultures this can lead to the refusal to accept rights frameworks as indivisible. This can result, in the later case, in only some fundamental rights finding acceptance. Furthermore, FoRB can be perceived in non-Western contexts as an attempt to impose forms of Western liberal democracy or ideology on cultures unsuited to or unready for this form of governance and public living together. In order to argue that FoRB ought still to be regarded as a universal right and to propose its use as a tool to facilitate peaceful relations in civil society, this chapter first identifies FoRB in its national, international and supranational legal context. 1 Witte

(2007). Witte traces the development of rights themselves back even further to 313 and the Edict of Milan. According to Lorenzen (2000), p. 52, a similar argument was made by the German jurist Georg Jellinek (1851–1911). Lorenzen points out that for Jellinek the concept of human rights as a universal concept sprung from the struggle for religious freedom during the 16th and 17th centuries in England and was taken up in the colonies in America. 2 For a discussion on the advantages of pluralism as a condition of civil society see Giles (2018a), pp. 154–160. 3 See, for example, Hauerwas (2015). Hauerwas challenges the idea that rights frameworks provide a basis for moral reasoning in and of themselves and argues that it is necessary to acknowledge that there are prior claims to a common good. 4 For example, see Achbita and another v G4S Secure Solutions NV (Case C-157/15) OJLR 2017 6(3), pp. 622–623 and discussions of that case in Weiler (2017) and Giles (2017, 2018b).

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After exploring the historic and theoretical basis of its existence as a universal norm, the chapter then identifies the challenges to this claim both in academic literature and empirical research. The chapter then turns to a theoretical approach grounded in reformed theology to support the universalism of FoRB, taking a dialogic approach in order to engage in multivalent reasoning building towards consensus to establish grounds for using FoRB as a tool to facilitate peaceful living together. The aim is to enable various cultures and constitutional systems to retain their faith or secular integrity while still enabling those within their borders to profess and practice their own faith. It then proposes Dooyeweerd’s theory of normative institutional pluralism as a mechanism for resolving rights clashes that arise as an inevitable consequence of the constitutional entrenchment of fundamental rights.

2 FoRB as a Universal Legal Right FoRB has been established in international instruments as a universal fundamental right. The preamble to the UDHR recites at §1, 3 and 65 : Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world (…). Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law (…). Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms (…).

The declaration is then made that: Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 18 of the UDHR sets out freedom of thought conscience and religion as one of the universal fundamental rights. This is mirrored in article 18 of the International Covenant on Civil and Political Rights. That covenant includes in its preamble §4: ‘Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms’.

5 See

http://www.un.org/en/universal-declaration-human-rights/ (date accessed 12 May 2019). Adopted by the UN General Assembly 10 December 1948.

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177 countries have acceded to the ICCPR.6 This is 91% of all the countries in the world. Reservations to article 18 have been made by 3 countries including the Maldvies,7 Mauritania8 and Pakistan because of sensitivities towards the application of Sharia within their borders. In 1981 the UN adopted the Declaration on Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.9 By resolution 48/141 the UN General Assembly decided that the High Commissioner for Human Rights was to ‘be guided by the recognition that all human rights (…) are universal, indivisible, interdependent and interrelated’. Subsequently on the fundamental right to freedom of thought, conscience and religion the Office of the High Commissioner of Human Rights promoted a process leading to the Rabat Plan of Action on the prohibition of

6 See

https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4& src=IND#bottom (date accessed 25 July 2018). 7 “The application of the principles set out in Article 18 of the Covenant shall be without prejudice to the Constitution of the Republic of Maldives.” Although objections were made to this reservation by some countries: see http://www.bayefsky.com/html/maldives_t2_ccpr.php (date accessed 12 May 2019). 8 “The Mauritanian Government, while accepting the provisions set out in article 18 concerning freedom of thought, conscience and religion, declares that their application shall be without prejudice to the Islamic Shariah”. See https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en& mtdsg_no=IV-4&src=IND (date accessed 25 July 2018). Objections were raised by some countries to this reservation: see http://www.bayefsky.com/html/mauritania_t2_ccpr.php (date accessed 12 May 2019). The Mexican government although it did not make a reservation, made an interpretative statement: “Article 18: Under the Political Constitution of the United Mexican States, every person is free to profess his preferred religious belief and to practice its ceremonies, rites and religious acts, with the limitation, with regard to public religious acts, that they must be performed in places of worship and, with regard to education, that studies carried out in establishments designed for the professional education of ministers of religion are not officially recognized. The Government of Mexico believes that these limitations are included among those established in paragraph 3 of this article.” See https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src= IND#EndDec (date accessed 12 May 2019). Qatar, although it did not make a reservation, made the following statement: “2. The State of Qatar shall interpret Article 18, paragraph 2, of the Covenant based on the understanding that it does not contravene the Islamic Sharia. The State of Qatar reserves the right to implement such paragraph in accordance with such understanding.” See https://treaties. un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND (date accessed 12 May 2019). 9 For an explanation of the history and role of the Special Rapporteurs and other Charter-based human rights mechanisms by which the UN promotes respect for human rights see Bielefeldt et al. (2016), pp. 41–48. Additional instruments include the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992); Principles of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes

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advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.10 This recommended national anti-discrimination legislation with enforcement mechanisms and emphasised the need to protect minorities and vulnerable groups. It was proposed that there should be collective responsibility held by public officials, religious and community leaders, the media and individuals. A focus on social consciousness, tolerance, mutual respect and intercultural dialogue was proposed. The plan also contains a six-part threshold test for forms of speech prohibited under criminal law. This was followed by the Istanbul Process, a series of inter-governmental meetings to promote and guide implementation and work towards countering religion or belief-based intolerance. It was commended to the international community as a key normative framework by Bielefeldt, the UN Special Rapporteur on freedom of religion or belief in his final report. 11 This was followed in 2016 by action taken within the Muslim community led by His Highness, King Muhammad VI of Morocco, in Marrakesh in the Kingdom of Morocco. The Ministry of Endowments and Islamic Affairs of the Kingdom of Morocco and the Forum for Promoting Peace in Muslim Societies, based in the U.A.E., jointly organized a conference. It focused on the following areas12 : 1. grounding the discussion surrounding religious minorities in Muslim lands in Sacred Law utilizing its general principles, objectives, and adjudicative methodology; 2. exploring the historical dimensions and contexts related to the issue; 3. and examining the impact of domestic and international rights. The conference produced the Marrakech Declaration on the Rights of Religious Minorities in Predominantly Muslim Majority Communities.13 By this declaration the Muslim community gathered at Marrakech declared its ‘firm commitment to the principles articulated in the Charter of Medina’ and most notably that: (1994); UNESCO Declaration on Principles of Tolerance (1995); Final Document of the International Consultative Conference on School Education in Relation to Freedom of Religion or Belief, Tolerance and Non-Discrimination (2001); Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools (2007); United Nations Declaration on the Rights of Indigenous Peoples (2007); The Hague Statement on “Faith in Human Rights” (2008); Camden Principles on Freedom of Expression and Equality (2009); Human Rights Council resolution 16/18 on Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence and Violence against, Persons Based on Religion or Belief (and Istanbul Process, 2011); Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (2012); Framework of Analysis for Atrocity Crimes (2014); Secretary-General’s Plan of Action to Prevent Violent Extremism (2015); as well as the Fez Declaration on preventing incitement to violence that could lead to atrocity crimes (2015). 10 See https://www.ohchr.org/EN/NewsEvents/Pages/TheRabatPlanofAction.aspx 21 February 2013 (date accessed 25 July 2018). 11 Bielefeldt (2015), paras 91–92. See http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/ 31/18 (date accessed 30 July 2018). 12 See http://www.marrakeshdeclaration.org (date accessed 12 May 2019). 13 25–27 January 2016: see http://www.marrakeshdeclaration.org/marrakesh-declaration.html (date accessed 12 May 2019).

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The objectives of the Charter of Medina provide a suitable framework for national constitutions in countries with Muslim majorities, and the United Nations Charter and related documents, such as the Universal Declaration of Human Rights, are in harmony with the Charter of Medina, including consideration for public order.

And further that: NOTING FURTHER that deep reflection upon the various crises afflicting humanity underscores the inevitable and urgent need for cooperation among all religious groups, we AFFIRM HEREBY that such cooperation must be based on a “Common Word,” requiring that such cooperation must go beyond mutual tolerance and respect, to providing full protection for the rights and liberties to all religious groups in a civilized manner that eschews coercion, bias, and arrogance.

The Declaration called upon Muslim scholars and intellectuals to establish a jurisprudence around the concept of ‘citizenship’ to include diverse groups and to: Call upon representatives of the various religions, sects and denominations to confront all forms of religious bigotry, vilification, and degeneration of what people hold sacred, as well as all speech that promote hatred and bigotry; AND FINALLY, AFFIRM that it is unconscionable to employ religion for the purpose of aggressing upon the rights of religious minorities in Muslim countries.

This was followed in 2017 by the Beirut Declaration on ‘Faith for Rights’.14 This built on the Rabat Plan of action, galvanising religious leaders and groups to support an expansion of the plan of action to the spectrum of fundamental rights. It contains 18 Faith for Rights Commitments including the avoidance of using state religion to discriminate against minorities. The declaration starts with the following statement: We, faith-based and civil society actors working in the field of human rights and gathered in Beirut on 28–29 March 2017, express the deep conviction that our respective religions and beliefs share a common commitment to upholding the dignity and the equal worth of all human beings. Shared human values and equal dignity are therefore common roots of our cultures. Faith and rights should be mutually reinforcing spheres. Individual and communal expression of religions or beliefs thrive and flourish in environments where human rights, based on the equal worth of all individuals, are protected. Similarly, human rights can benefit from deeply rooted ethical and spiritual foundations provided by religions or beliefs.

The first of the 18 commitments reads as follows: Our most fundamental responsibility is to stand up and act for everyone’s right to free choices and particularly for everyone’s freedom of thought, conscience, religion or belief. We affirm our commitment to the universal norms and standards, including Article 18 of the International Covenant on Civil and Political Rights which does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms, unconditionally protected by universal norms, are also sacred and inalienable entitlements according to religious teachings.

FoRB is also protected as a universal fundamental right in conventions and standards adopted by regional bodies including the European Convention on Human 14 See

https://www.ohchr.org/Documents/Press/21451/BeirutDeclarationonFaithforRights.pdf (date accessed 25 July 2018).

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Rights, the Charter of Fundamental Rights of the European Union and the Final Act of the Conference on Security and Co-operation in Europe (which contains a commitment to freedom of thought, conscience and religion). The Organisation on Security and Co-operation in Europe (OSCE)) and the Office for Democratic Institutions and Human Rights (ODIHR) have an Advisory Panel of Experts on Freedom of Religion or Belief to provide support and expert assistance to participating states. The inter-American convention, the American Convention on Human Rights, includes in article 12 the right to freedom of conscience and religion. This incorporates the right to change one’s religion or belief. The African Charter on Human and Peoples Rights (Banjul Charter) by article 8 protects freedom of conscience and the profession and free practice of religion. It does not refer to the term ‘belief’ and does not specifically protect the freedom to change one’s religion. The Association of South East Asian Nations agreed by article 22 of the ASEAN Human Rights Declaration that ASEAN governments were committed to protect against ‘all forms of intolerance, discrimination and incitement of hatred based on religion and beliefs’. They created the ASEAN Intergovernmental Commission on Human Rights to promote human rights within that region. In its Five-Year Work Plan 2016–2020 the Commission plans to initiate a thematic study on freedom of religion and belief. After consultation it will disseminate its findings as part of human rights education and raising awareness and to build AICHR’s visibility.15 The right to freedom of thought conscience and religion is also protected within national constitutional frameworks in many constitutions in the world.16 This does not prevent states preferancing one religion above others. According to the Pew Research Centre,17 for example, nine countries in Europe have Christianity as an official state religion. In Europe, the Middle East and North Africa 42 countries have either official (26) or preferred (16) religions. Seven sub-Saharan countries favour a religion, while five have an official state religion (one Christianity, four Islam). In the Asia-Pacific region 10 countries have an official state religion and nine have a preferred or favoured religion. 8 countries in the Americas have a favoured religion and 2 have an official state religion. There is thus overwhelming evidence in national, international and regional legal instruments that freedom of thought, conscience and religion is, aspirationally at least, a universal right. The evidence in terms of its application, enjoyment and enforcement paints a very different picture. The detrimental effects of this gap between aspirational right and its application in practice has been the subject of research. This demonstrates that where religious freedom is restricted, a general deterioration in the socio-economic well-being of a nation state tends to follow. This in turn 15 Mandate 4.12, Five-Year Work Plan of the ASEAN Intergovernmental Commission on Human Rights (2016–2020), p. 9: see https://aichr.org/key-documents/ (date accessed 12 May 2019). 16 See Human Rights Resource Centre (2015). Over 120 countries protect individuals from unequal treatment on grounds of religion: see https://www.constituteproject.org/search?lang=en&key= equalgr6 (date accessed 25 July 2018). See also the US Department of State’s International Religious Freedom Report 2017: see https://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#wrapper (date accessed 25 July 2018). 17 Pew Research Centre (2017b).

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can affect the stability of civil society.18 It is therefore arguably pressing that fresh impetus is provided to support the practical application of FoRB. Before doing so it is suggested here that establishing an acceptable rationale for FoRB will assist in ensuring its acceptance, particularly to those cultures most resistant to it.

3 Theoretical Underpinnings of FoRB Universalism as an attribute of fundamental rights frameworks is often located in post-World War II theories of rights. Others locate the cradle of modern universal rights in the enlightenment. Witte, in his masterful account of the development of rights within the reformed tradition, describes this “Straussian’ account of the Enlightenment origins of Western rights’ as having ‘persisted, with numerous variations, in many circles of discourse to this day’.19 For many FoRB is as much about freedom from religion (not to believe) as it is freedom of religion (to believe and manifest a religion or form of religion of one’s choice). Hence the situating of FoRB’s roots in enlightenment attempts sparked by Spinosa’s attack on Roman Catholic tradition, seeking to free society from religion. Alternatively, it will be located in Luther’s and Calvin’s attempts to free society from confessionalism and oppressive church practices during the Reformation. Speaking of the development of human rights, Witte describes them as: Human rights, we often hear, were products of the Western Enlightenment – creations of Grotius and Pudendorf, Locke and Rousseau, Montesquieu and Voltaire, Hume and Smith, Jefferson and Madison. Human rights were the mighty new weapons forged by American and French revolutionaries who fought in the name of political democracy, personal autonomy and religious freedom against outmoded Christian conceptions of absolute monarchy, aristocratic privilege, and religious establishment. Human rights were the keys that Western liberals finally forged to unlock themselves from the shackles of a millennium of Christian oppression and Constantinian hegemony.20

Witte21 himself locates the formation of a universal system of rights in the Reformation, in particular in Calvinism, as developed by Beza, Johannes Althusius, John Milton, Nathanial Ward, John Winthrop, John Cotton, Thomas Hooker, Samuel Willard, Richard, Increase and Cotton Mathers. Their theory of rights was grounded in natural law theory and Scripture. Witte explains that these ideas were built on by John Adams (1735–1826) in America and by Calvinist political theologians in Europe and South Africa. They took the basic rights to life, liberty and property, as well as opposition to absolute power in the monarch, established in Magna Carta (1215), and developed a theory of rights and governance. Freedom of religion in this

18 Grim

and Finke (2011). (2007), p. 22. 20 Witte (2007), p. 20. 21 Witte (2007). 19 Witte

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context arose from the struggle of Reformation theologians to free believers from the hegemony of state religion. Witte explains how the Reformation was key in the struggle, in particular, for religious liberty, but also developed a broader public theology incorporating rights. He identifies that both the Reformation and the Enlightenment built in their turn on classical Roman thought and medieval Catholicism, citing the Edict of Milan (313) which protected the freedom of religion guaranteed to Christians and others. He writes: While medieval canonists grounded rights in natural law and ancient charters, and while Protestant Reformers grounded them in biblical texts and theological anthropology, Enlightenment writers in Europe and North America grounded rights in human nature and the social contract. Building in part on the ancient ideas of Cicero, Seneca, and other Stoics of a pre-political state of nature, as well as on Calvinist ideas of social, political, ecclesiastical and marital covenants, John Locke, Jean Jacques Rousseau, Thomas Jefferson, and others argued for a new contractarian theory of human rights and political order. Each individual person, they argued, was created equal in virtue and dignity, and vested with inherent and unalienable rights of life, liberty and property.22

Witte23 identifies the modern concept of universal rights as grounded in human dignity and along with Glendon,24 Hauerwas25 and others explains that rights talk has become a ‘dominant mode of political, legal, and moral discourse in the modern West and well beyond—sometimes too dominant when it drowns out other critical forms of moral and political discourse.’26 As such it has been impoverished by the loss of its theoretical and importantly its theological roots. This leads to a potential for the expansion of rights at the will of either Courts or governing authorities. This expansion of rights can lead to conflicts between religious groups and various social institutions, including those providing goods and services or individuals representative of specific causes.27 Witte,28 McCrudden29 and others anticipating the ideals 22 Witte

(2007), p. 29. (2007), p. 33. 24 Glendon (1991). 25 Hauerwas (2015). 26 Lorenzen (2000), pp. 55–56, argues that: ‘unless a universally valid moral foundation for human rights is discovered and agreed upon, human rights will be increasingly emptied of their validity and authority, and they will continue to be functionalized to serve national, economic, and other ideological interests. Perhaps the dawning awareness that all of humankind is in the same boat and needs to face the challenge of a human and humane survival together will provide the necessary motivation to arrive at moral foundations that can provide both legitimacy and content to human rights’. He argues there is a suspicion that human rights have been functionalised to protect and advance the interests of the strong “rather than empowering those in need”. 27 For example, where pharmacists, bakers or photographers are asked to dispense drugs, ice cakes or take photos for events or causes which they claim would cause them to act contrary to their religious conscience or where religious individuals seek to manifest their religious belief by wearing symbols of their religion: see Hirschberg (2018, 2019), Sorkin (2018), Garahan (2016) and Giles (2016, 2018b). 28 Witte (2007). 29 McCrudden (2011). 23 Witte

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propounded in the Marrakech and Beirut Declarations and the Rabat Plan of Action, call for human rights norms to be critically re-grounded in religious narratives. Witte writes: Religions must thus be seen as indispensable allies in the modern struggle for human rights. To exclude them from the struggle is impossible, indeed catastrophic. To include them, by enlisting their unique resources and protecting their unique rights, is vital to enhancing the regime of human rights. Conversely, religious narratives need human rights norms both to protect them and to challenge them.30

Thus, religion is seen by Witte as indispensable to rights frameworks and Calvinism, in particular, is regarded as supportive of FoRB as a foundational right. His view is that by the same token rights frameworks need to be taken more seriously by religions. It is they, as intermediate institutions and leaders within society, that play a vital role in facilitating understanding and encouraging compliance with fundamental rights frameworks. This mirrors the views of Bielefeldt31 in his support of the Marrakech and Beirut Declarations. Theoretical foundations for universal rights grounded in natural law and human dignity thus, according to Lorenzen,32 Witte,33 Vorster,34 McCrudden,35 Finnis,36 Kipper,37 Lenzerini,38,39 Slotte,40 and others, have a long and distinguished history in theological as well as philosophical thought. Universalism presupposes that moral judgments can be grounded in universal principles and that there are some basic rights which all individuals possess regardless of cultural or social particularities. The universalism of FoRB presupposes that freedom of religion or belief, including freedom to change one’s religion as well as freedom from religion, is a universal good for individuals and societies. This is supported by research from, for example, the Grims’41 which has demonstrated that religion can be said to be in the interests of the common good from a socio-economic perspective. Although Davie,42 as a sociologist of religion, cautions that it is necessary to understand religions in their particular context in order to assess their benefits or otherwise for any given 30 Witte

(2007), p. 335. (2015). 32 Lorenzen (2000). 33 Witte (2007). 34 Vorster (2010). 35 McCrudden (2011). 36 Finnis (2011). 37 Kipper (2012). 38 Lenzerini (2014). 39 Lenzerini, in fact, locates universalism, supported by a theory of rights based in human dignity, in the writings of Cicero and Seneca. 40 Slotte (2017). 41 Grim and Grim (2016). 42 Davie (2018). 31 Bielefeldt

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society. Laborde,43 writing within the discipline of political philosophy, has recently addressed the question of religion within Western and non-Western societies, disaggregating religion into its various parts in order to better understand the good of its various elements so as to make a case for its protection under law. As is demonstrated in the following section, although enjoying powerful support in academic thought, these views are far from universally accepted or practiced both within and outside Western legal traditions. Two of the greatest challenges in modern thought to a theoretical grounding of FoRB as universal are the theory of relativism (both cultural and religious) and the principle of equality.44 With regard to the former, attempts are being made to find a middle way to identify rights as universal while still accounting for cultural pluralism.45 The former can potentially be addressed by considering a multivalent dialogic approach to building consensus on a core content for FoRB, while accounting for (constitutional) contextualization in the operation of the right. The debate over the balance between religious freedom rights and equality is likely to prove problematic for the concept of FoRB as a universal right for some time to come, both within Western and non-Western traditions. A mechanism needs to be established in order to better resolve these disputes in a manner that does not simply engage the ad hoc nature of litigation which focuses on the individual and individual rights. Instead what is needed is a mechanism to consider the broader implications for particular civil societies, of the resolution of rights clashes, particularly given their impact on faith groups. What is proposed in this chapter, after identifying the evidence demonstrating a lack of universal application of FoRB in practice, is to address the issue of relativism by putting forward a dialogic theological approach to rights frameworks which takes up the call of Witte, Bielefeldt and the international community in the Marrakech/Beirut declarations, to seek to find a theological approach to FoRB in order to build a dialogue with both secular and religious traditions which accords religion a place at the table. In doing so it will identify FoRB as aspirationally and intentionally universal, acknowledging the work of political scientists such as Lerner46 and Bâli and Lerner47 in this area who have explored ways of incorporating FoRB 43 Laborde

(2017). sometimes related to cultural relativism, for example in those religious cultures which have a distinctive view of women and their role, equality also poses its own unique challenge to universalism, for example, in Western cultures where religious freedom rights clash with same-sex rights. Western states accept the universalism of rights frameworks and couch the equality debate in terms of the balancing of rights claims. The resolution of these clashes are addressed either by the Courts using legal reasoning balancing rights claims or structurally in forms of reasonable accommodation of religious or conscientious objection claims. In contrast to this, non-Western states may make reservations to their international obligations or fail to apply rights frameworks as universal. In some cases only a limited attempt may be made to recognise equality or religious freedom: see for example: Choudhury (2015) and Stopler (2003). 45 For example, Rosenfeld (1999), Al-Daraweesh and Snauwaert (2015), Dahre (2017). 46 Lerner (2011). 47 Bâli and Lerner (2017). 44 Although

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into constitutional structures allowing FoRB to sit aspirationally within entrenched legal structures. This avoids FoRB otherwise creating a stumbling block to peaceful co-existence because its entrenchment proves too alien or legalistic a concept for some cultures to incorporate or successfully accommodate.48 This is particularly important in those states which have suffered civil society breakdown. This is not to give way to cultural relativism but to recognise that, for some states, steps need to be taken towards implementation. The proposal here is that while acceptance of the universalism of FoRB may be obtainable on a policy level, practically, formulation of entrenched legal norms may not. What is needed is a dialogic approach building consensus on a core universal concept, which keeps the process towards enforcement live and engages religious traditions in this process. It is this that distinguishes the current approach from relativism which would seek to adapt FoRB to given cultures potentially to the extent that it becomes unrecognisable as a universal norm.

4 FoRB—The Lack of Universal Application Before proceeding to outline the theoretical approaches proposed in this chapter, a brief overview of the evidence demonstrating lack of a universal approach to FoRB will be presented. This will assist in analysing the extent to which the theoretical approaches presented can be said to address the issues which challenge the universal application of FoRB. There is evidence that, despite multi-layered recognition within both Western and non-Western contexts, FoRB restrictions are ongoing globally.

4.1 Empirical Evidence Dr. Ján Figel’ the Special Envoy for Promotion of Religious Freedom Outside the EU explains that the guarantee of freedom of religion is a litmus test within a state for the guarantee of other rights and freedoms.49 He explains that where a state abuses that right then abuse of other rights follows. The cry then that comes from those within states with high levels of rights abuses, and in particular from those who are forced to flee as a result of their faith, is understandably: ‘there are no human rights’. This was the cry of Mar Nicodemus Sharaf, Archbishop of Mosul50 speaking in 2016 to the Institute of Cultural Diplomacy when he recounted the murder of Christians, the seizure of his cathedral by ISIS and his forced exile from his homeland, Iraq. Horrific

48 See,

for example, Schonthal et al. (2016) and Künkler et al. (2016). Ján Figel’ speaking at the Institute of Cultural Diplomacy 2016: see https://www.youtube. com/watch?v=iimjLKoGk6g (date accessed July 2017). 50 See https://www.youtube.com/watch?v=FZqm0lpWGgg (date accessed July 2017). 49 Dr.

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rights-abuses, documented and undocumented, still go on despite there having been rights frameworks in place at an international level for over 60 years.51 Restrictions on FoRB are evidenced in regional and global reports from Asia, America (the Pew Research Centre and the US Department of State), the United Nations and NGOs such as OpenDoors and Aid to Churches in Need.52 Despite the fact that 84% of the global population adheres to a faith,53 in over 50% of 196 countries surveyed (almost all the countries in the world) there was persecution of religious groups.54 When considered with the figures on Christian martyrdom alone there is strong evidence that religious freedom is far from universally enjoyed. The Vatican puts the figure of Christian martyrs at 100,000 a year.55 OpenDoors puts the figure at 322 Christians per month, with 772 per month suffering some form of violence.56 Research puts the figure of Christians martyred since the time of Jesus at 70 million.57 This is greater than the population of the United Kingdom (65.64 million (2016)). As can be seen, statistics can vary considerably. The problems that arise in obtaining statistical evidence on religious freedom are addressed by Bielefeldt and Wiener58 in their sophisticated analysis of religious freedom. They explore case studies on restrictions on religious freedom, explaining that the causes for such restrictions are multifaceted. They identify that what is seen and documented is only the tip of an iceberg of restrictions which occur in day to day life in many places and, that such restrictions can often be difficult to document. They also argue that a far more indepth analysis of available data is required in order to draw inferences on it concerning the state of religious freedom in any given place.

4.2 Evidence from Case Law Even in jurisdictions where FoRB is constitutionally protected as a fundamental right and which provide enforcement mechanisms for individuals to assert that right, there

51 For

example, see the rights abuses highlighted in D’Souza et al. (2007). Research Centre (2012, 2018), HRRC (2015) FN 12, US Department of State (2017); the annual reports of the UN Special Rapporteur on freedom of religion or belief, in particular UN Special Rapporteur on freedom of religion or belief (2017) which focuses on the increase in religious intolerance. Studies by NGOs also support this finding in specific areas. For example, OpenDoors (2019), Aid to Churches in Need (2016); see also for the conditions arising as a result of ghettoization of religious and cultural minorities: the Casey Report (Casey L (2016)), OpenDoors Germany (2016). 53 Pew Research Centre (2017a). 54 Aid to Churches in Need (2016). See also Pew Research Centre (2017a). 55 Alexander (2013). 56 OpenDoors (n.d.). 57 Martin (2014). 58 Bielefeldt and Wiener (2019). 52 Pew

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is evidence, according to authors such as Dingemans59 and Martinez-Torron60 , that FoRB protections are less than satisfactory. There is also recent evidence in case law that restrictions are on the increase when balanced against same-sex claims or claims by the state or business that they should be entitled to implement a policy of ‘neutrality’.61

4.3 Theological Challenges There are only limited reservations within international legal instruments in respect of FoRB as an international fundamental right (in recognition of the operation of Sharia law within a nation state). Nevertheless, Islamic states both individually and within the Organization of Islamic Cooperation can take an approach to FoRB which does not sit comfortably with Western liberal democratic models. This occurs where the preferring of Islam over other religions results in the oppression or exclusion of religious minorities in an Islamic state. Although its purpose is to advance human rights and fundamental freedoms in OIC states and for Muslim minorities in nonmember States, article 1 of the OIC Charter sets out its objectives as: 11. To disseminate, promote and preserve, the Islamic teachings and values based on moderation and tolerance, promote Islamic culture and safeguard Islamic heritage; 12. To protect and defend the true image of Islam, to combat defamation of Islam and encourage dialogue among civilisations and religions (…).

Where this is interpreted as an exclusive theoretical basis for Islamic civil society building this principled approach can undermine the universal application of FoRB which requires a pluralistic approach to civil society building. Theoretical opposition to FoRB also comes from Asian and African states where community or family interests take precedence over individual rights claims, including FoRB.62 Coupled with the restriction of FoRB on public security grounds there remains some way to go before it can be argued that FoRB is a universally accepted or applied right, even if it is enshrined in law at multiple levels. Bielefeldt et al.63 identify a number of reasons for lack of universal application of FoRB including fear of freedom itself. That is the fact that rights: ‘challenge legal privileges, monopolies of power, traditional gender roles, and cultural or religious hegemonies.’ 59 Dingemans

(2010). (2012). 61 Some examples include Preddy v Bull (Liberty intervening) [2013] UKSC (2014) OJLR 3(2) 362; Achbita v G4S Secure Solutions NV (Case C-157/15) OJLR 2017 6(3) 622; Mme Fatima X, épouse Y v Association Baby Loup (2013) OJLR 2(2) 478 and (2014) OJLR 3(3) 521; (Eweida) Chaplin, Ladele and McFarlane v United Kingdom (2013) OJLR 2(1) 218; SAS v France (2014) OJLR 3(3) 520; Ebrahimian v France (2016) OJLR 5(2) 365; Elane Photography, LLC v Willock (2012) OJLR 1(2) 538. For a critique of the policy of neutrality see Vanoni and Ragone (2018). 62 Sen (1997), Khong (1997) and Inoguchi and Newman (1997). 63 Bielefeldt et al. (2016: 1). 60 Martinez-Torron

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They identify that fear of freedom includes a fear of spiritual or moral decline and fear of a drive towards secular society, both used as a ground for opposing FoRB.64 Bielefeldt et al. also identify that fear of religion plays a role in hostility towards FoRB. Commenting on Glendon65 they point to a fear of ‘la revanche de dieu’ causing religion to re-emerge in public and political life. This is because of links to fanaticism, inequality and bigotry, undermining what many see as the ground gained under secular regimes towards more egalitarian, accepting societies. This view has been identified more recently in the writings of Stopler,66 Calo67 and McFaul.68 Thus, it is that, whilst FoRB is intended to protect those who adhere to religious beliefs and those who do not, opposition comes from within various traditions, religious and secular, as a result of fear of loss of that which they hold dear within civil society.

4.4 Conclusions on the Evidence These current restrictions and challenges are set against a long and chequered history of FoRB and plural living together in law and practice, as well as in political, theological and philosophical thought. A brief overview of the history of FoRB demonstrates that, although the concept of FoRB precedes the modern post-WWII forms it takes at international, supranational and national level by at least two millenia, it has been far from universal in its legal form or practical application. So, whilst history demonstrates a gradual development of FoRB and its ultimate recognition as a universal fundamental human right, its practical application demonstrates that despite it being legally enshrined in international, regional and national law, its application has been and still is far from universal. Empirical, jurisprudential, academic and historical evidence challenges the claims of FoRB to universalism. In the light of these challenges to its universal application, should FoRB still be regarded as a universal fundamental right and if so what would convince those states and bodies which oppose it to regard it as such? The approach taken in beginning to answer these questions in this chapter is a theoretical one. I have made suggestions as to the creation of a platform for dialogue to strengthen peaceful

64 By which they mean strongly laic forms of public living together pushing religion into the private sphere. Interestingly within European jurisprudence it is strong forms of secularism that appear to be driving religion out of public life in order to protect equality rights, or the right to conduct a business: Giles (2018b). Resistance to FoRB on grounds that it undermines public morality can be seen in some countries where Islam is the underlying impetus for law creation and adjudication: see for example Bakhshizadeh (2018) and Qureshi (2018). However, as Bielefeldt et al. (2016), p. 2, note it was not until 1965 during the Second Vatican Council that the Roman Catholic Church endorsed religious freedom. Thus opposition to religious freedom arises in more than one quarter. 65 Glendon (2015). 66 Stopler (2003). 67 Calo (2018). 68 McFaul (2018).

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civil society relations elsewhere Giles.69 This chapter considers how dialogic multivalent faith-based reasoning might be used to establish an underlying rationale for FoRB and build a consensus around its core content. This chapter develops a theological rationale stemming from Reformed theology to facilitate that consensus. It is accepting of rationales proposed by those of other faiths and none. This approach is grounded in plural living together as the optimum condition for civil society and human flourishing. It sees pluralism as necessary for FoRB and FoRB as necessary in order to foster plural societies. It aims to take account of fundamentally different and diverse cultural, legal and constitutional traditions.

5 A Theological Justification for FoRB as a Universal Right To avoid both the naturalistic fallacy70 and jurisprudentially71 stepping into the positivist camp, it is proposed to establish a theory to support the universalism of FoRB grounded in a dialogic theological approach which can enter into dialogue with nonWestern faith based and non-faith based theological and philosophical approaches. It does not provide the whole answer but proposes a process of building consensus in a manner which enhances the understanding of the importance of FoRB as universal. This approach is based on the rationale that faith-based cultures grounded in faithbased reasoning may well have more in common with other-faith based cultures, or at least with cultures accepting of faith-based reasoning, than with cultures which are based predominantly on secular (non-religious) rationales for rights. This is particularly so where secular rationales might otherwise come across as the imposition of a Western liberal democratic approach or even a form of colonialism. This assumes that those of one faith are able and willing to respect the integrity and understand the motivations of those of another faith, even if they fundamentally disagree with the particular doctrines of other faiths. Dialogic theology in this case is the tool whereby a discourse takes place because it provides more common ground than a dialogue stripped of theological content altogether. Its key requirement is that a given faith can recognise the need to accept some form of plural living together as a condition of public living together. It does not necessarily entail disestablishment, the avoidance of forms of theocracy or the preferring nationally of one religion over another. Given the number of countries globally that preference one religion over another or incorporate forms of establishment this would be an unrealistic task. It does regard as axiomatic that a predominant religious group makes space for other religions 69 Giles

(2018a). naturalistic fallacy would involve arguing an ‘ought’ (that FoRB ought to be universal) from an ‘is’ (for example, because it is claimed in legal instruments that FoRB is universal or because development of the right throughout history leads us to this conclusion, we ought to regard it as such). 71 Here jurisprudence refers to the philosophy of law rather than the body of case law giving rise to the creation of precedent. 70 The

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and, optimally, engages in dialogue, concerning the public good, law creation and adjudication, with them. Given the fundamentally different understandings of public living together amongst worldviews and faith traditions around the globe, support for a universal concept of FoRB—whether legally enforceable, political or aspirational, will necessarily require more than one single justification. It will also require that any given tradition is not requested to surrender the integrity of its foundational principles. Such an approach treads a fine line between universalism (albeit by a multivalent route) and contextualisation on the one hand and relativism on the other. In other words, it is necessary to build sufficient consensus around FoRB to legitimately be able to argue that its conceptualisation as a universal right remains intact. At the same time, it is necessary to find grounds to support its universalism and sufficient consensus around what FoRB consists of as a legal or policy concept within various traditions. It is argued here that by taking a dialogic and aspirational approach its application becomes workable, in particular in those societies which pose a challenge to it. Religions are particularly well-suited to this dialogic contextualised approach because by their very nature they tend to contain a body of core texts and principles and alongside this they formulate a body of rules enabling the religion to contextualise itself in particular societies over time. This will generally be the Tradition of a particular religion.72 Judaism and Christianity, for example, are recognisable as such globally and throughout history, based on enduring core doctrines. Each has, however, to a certain degree contextualised itself over time and within different cultures.73 In addition to the ability to contextualise, Glenn74 identifies an ability to hold together various strands within themselves as a key attribute that religions are able to contribute to civil society and law formation. The dialogic theological approach put forward in this chapter to justifying FoRB as a universal right feeds into and to a certain extent relies upon this ability to sustain diversity within religions. Christian theology has been supportive of the conceptualisation of rights frameworks around the concept of human dignity and hence, to some extent, responsible for the perception of rights as individualistic.75 This contrasts with its self-understanding 72 For

further discussion of this subject see Giles (2018a). exceptions to this would be, for example, the Amish communities in the United States of America and forms of orthodox Judaism. 74 Glenn (2014). 75 Roman Catholic theology has traditionally grounded rights in natural theology and human dignity. The Protestant tradition encompasses various strains of thought including the Lutheran tradition. This has taken a ‘two kingdoms’ approach towards human rights which distinguishes between the worldly realm governed by law and the realm of the gospel. Human rights fit into the schema as secular norms belonging to the realm of law and are based on human reason rather than on distinctively Christian norms which belong to the gospel realm. Human rights within Lutheran thought do not have a uniquely Christian foundation. Liberation theology and feminist theology identify the common human experience of oppression, and seek to discern how power is being manipulated. The link is then created between fundamental rights and the gospel call to liberation. According to Witte (2007), the reformed tradition has, since Calvin, developed a rights theory based on natural law theory, the concept of human dignity and the inherent worth of humankind. Different theological frameworks support a diversity of human rights. One approach common to 73 Notable

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which tends to be primarily and fundamentally communal in its approach to living together and outward looking in its approach to public living together. Coupled with their ability to contextualise themselves within various cultures over time and their philosophical theological approaches to public living together supporting pluralism and fundamental rights, some forms of Christianity contain within themselves the tools for re-engergising the concept of FoRB as universal.76 They are able to respond to the call of the Marrakech and Beirut Declarations and the Rabat plan of action to engage religious leaders and religious groups in peaceful plural living together. The approach within the Christian tradition explored in this chapter is rooted in the Reformed doctrine of common grace. This stems from Reformed Calvinist thought that, in addition to God’s special or saving grace bestowed upon believers, God’s common grace is bestowed on all human kind. It curbs the power of sin making forms of communal orderly life possible. Traditionally Calvinist thought has grounded human dignity in common grace.77 The approach I put forward takes a step beyond this, or rather takes a prior step in theological logic, and argues that if common grace is bestowed on all human kind then those within other traditions, religious or not, can contribute to the understanding of FoRB as universal and can contribute to the understanding of the common good. It is an approach which listens and enters into dialogue to build consensus on the basis that God will have given wisdom and understanding to those outside a particular faith tradition. It hears the arguments of those traditions which find FoRB a challenge and enters into dialogue with them. It is based on the understanding that common grace understands those outside the Christian faith to be equally as capable, and in some cases more capable, of understanding how to engender plural peaceful living together, including the living together of various faith groups. To give an example of how this might work, take a Christian citizen who is suffering from physical and psychological ill-health. They have been to a faith healer within their own tradition, but this has not brought about observable change. They go to a Jewish doctor/psychologist who gives them advice on how to change their a number of traditions is to identify a limited number of fundamental principles such as freedom, equality, solidarity, life and dignity. Alternatively, within the various traditions fundamental rights are focused in particular on human dignity and other rights are seen as outworkings of that dignity: see Atkin and Evans (1999). 76 Although some traditions, such as the Anabaptists advocate a withdrawal from public life, their beliefs still require strong protections within a constitutional framework, in particular the protection of religious freedom and religious minorities. They need to exist within plural systems even if they do not engage with them. Freedom of individual conscience and religious liberty, including toleration of divergence in religious matters, are therefore high on their agenda: see Lorenzen (2000), p. 53. Lorenzen (2000), p. 53, explains how Roger Williams, founder of the colony of Rhode Island, is perceived of as the father of religious freedom by the Baptists since he provided a haven in which religious freedom could be practiced. The colony attracted Quakers, Anabaptists and others. Lorenzen would, however, potentially take issue with Witte on the legacy of Luther, Calvin and Zwingli, accusing them of failing to promote religious liberty and of supporting one religion for one polity. Lorenzen argues that it was the Baptists who supported religious liberty and freedom of conscience, even when subject to persecution. 77 For a discussion of this see Voster (2010).

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lifestyle and provides therapy sessions based on principles within the Jewish faith. The Christian citizen changes their life style, works through the therapy and consequently enjoys good health. The very fact that the Christian citizen and the Christian faith healer are Christian does not necessarily give them the full understanding of how to enjoy good health. Similarly, the fact that rights frameworks are based either, as some would argue, on enlightenment thinking or, as others would argue, on Christian thinking, does not give the West, or Christian groups, exclusive competence to decide how they best operate to bring about peaceful societal relations, understand the common good and protect human dignity (in our example above, components of ‘health’). On the basis of the doctrine of common grace a healthy society understands that the ability to contribute to the discussion rests with various individuals and groups, it listens to those of various faiths and those of none—essentially it is a society in which there is religious and conscience-based freedom to develop approaches to societal needs and public living together. It is dialogic in its approach towards building consensus and accepting of multivalent rather than bivalent reasoning in order to accommodate various understandings leading to that consensus. This necessarily entails the ability of groups to meet and practice/worship in accordance with their doctrines and have space to formulate and discuss ideas intra se. A doctrine of common grace applied to public living together requires civil society groups and government to accept the need to listen to those from other faith traditions and those from none. It recognises that those of different faiths may have skills in healing (physical, psychological and societal) linked to but independent from their stance on salvation and/or eternal life.78 In this light, common grace as a doctrine, recognises FoRB as foundational or key to gain maximum collaborative advantage from the understandings of various faithbased and non-faith-based philosophical traditions and approaches in understanding how to engender peaceful relations in society and foster the common good. Only by allowing the free exercise of conscience and religious belief is it possible to create the dialogue that will draw the understanding needed from various groups and individuals. The following section explores the doctrine of common grace in more depth, and looks at the difference between common grace and special grace. The proposal here is to formulate a theological rationale for FoRB which is not intended to undermine the tremendous work undertaken on human dignity within and outside the faith traditions. Rather, it is to bolster it and argue for the acceptance of consensus around it and establish a preliminary rationale for FoRB based on the concept of gift. It goes a step further in its willingness to find multiple paths to building a consensus around the rationale and content for the right to freedom of religion and belief— it is not dependent on human dignity as foundational for rights frameworks but 78 Such

that saving grace, by which believers accept Christ as Lord and enjoy realised and future eschatological benefits (the Kingdom of Heaven on earth and eternally after death) operates distinctly from common grace whereby all human kind can enjoy certain benefits bestowed by God’s grace on all humankind.

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completely accepting of it. In this sense it addresses the deep concerns expressed over the individualistic nature of rights frameworks—it can take into account concerns about communal as well as individual interests.

5.1 Common and Special Grace In order to understand the concepts of common and special grace it is first necessary to understand the concepts of grace, redemption, salvation and the operation of Trinitarian theology. The Christian theological concept of grace is divine favour or gift given through Christ.79 Christian theology teaches that the Trinitarian God (Father, Son and Holy Spirit) created the earth and humankind. God placed humankind in the Garden of Eden, but humankind sinned (Eve gave Adam the forbidden fruit and Adam ate it) and they were cast out of the Garden. Humankind’s constant tendency, having offered and eaten the forbidden fruit and gained a knowledge of good and evil, is towards sin. As a consequence, humankind was in need of redemption from this sinful state needing salvation in order to live and enjoy a redeemed life on earth (realized eschatology which gives the believer a taste of what is to come) and enjoy resurrection life (future eschatology). Christian theology explains that as a result of the death and resurrection of Jesus Christ humankind, by acknowledging their sinful state, confessing their sins and accepting Christ as their saviour, can be redeemed from their sin, can live a life empowered by the Holy Spirit to do God’s will, and ultimately will be saved to be with God in eternity. Redemption explains how humankind can be forgiven for sins, soteriology explains how humankind is saved from sin and its consequences for present and eternal life. Trinitarian theology posits how God can be three in one: The Father God, the Son, Jesus Christ, and the Holy Spirit (Creator, Redeemer, sustainer). Christian theology explains that it is by God’s grace—that is by an undeserved act of giving and divine favour—that God saves humankind and by His grace that once an individual has a relationship with Christ, the Holy Spirit works within that individual so that they can partake in the redeemed life.80 Reformed theology makes a distinction between special grace and common grace. Special grace is the operation of grace outlined above, that is effectual to redeem humankind, fundamentally to enable a relationship between God and his people. Common grace is that grace by which humankind is created. It is given to all humankind and necessary for them to live and flourish. Common grace does not have soteriological effect. It sustains humankind throughout their earthly life. It acts

79 Mcfarland

et al. (2011), p. 292, ‘Grace’. is a long-term debate within the Calvinist tradition over the extent to which individuals play any part in deciding whether to accept Christ as saviour or whether God predestines them and then acts in them to bring about the relationship with Christ. This debate pertains to saving grace and is beyond the scope of this chapter. 80 There

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to hold the total depravity of human nature in abeyance to the extent that humankind accepts its operation, operating whether or not an individual has accepted Christ. Common and special grace should be distinguished from prevenient grace, a doctrine based in Armenian theology and in earlier Catholic theology, that God by his divine grace chooses to act in an individual demonstrating his love such that an individual, exercising their free will, can then make a choice as to whether or not to accept or reject that love and consequently a relationship with God through Christ. The doctrines of common and special grace stem from a seeking for understanding amongst Reformation theologians from the early to mid 1500s onwards as to why, in a world where those who have committed their life to Christ live alongside those who have not, equal advantages and at times greater benefits and advantages are bestowed upon non-believers compared to believers. Similarly, how there could be good, truth and beauty in the unredemptive life and order in the world despite the fact that the world lies under the curse of sin. The question for reformed Christians was how could those outside the covenant relationship with God have an understanding of right and wrong and live a virtuous life that accords with those within the covenant?81 The doctrine of common grace responds with the explanation that such is God’s love for humankind that by His grace he sustains not only those who have committed their life to Christ, but those who have not accepted Christ as their saviour. This is unconditional love.

5.2 Pre-Reformation and Roman Catholic Theology Pre-Reformation theology based on Augustine (354–430) and, following on from this, post-Reformation Roman Catholic theology, maintains that God’s grace can only act in a redemptive capacity within those who accept salvation and live a redeemed life. The distinction is not made between common and special grace in the manner later adopted by reformed theologians. Augustine emphasized the fallen state of humankind, their inability, in the absence of the grace of God’s renewing power, to do any good and the dependence of humankind on God’s redeeming grace: something that could not be earned, but which was a gift. Augustine perceived acts of the unredeemed as sinful because they were not undertaken out of love for God and did not seek the glory of God.82 During the Middle Ages the Augustinian concept of the lost state of humankind gave way to the theory that prior to the fall humankind was created righteous. This kept the lower nature under control. Consequent upon the Fall humankind tendended towards sin but was still capable of good and true acts. Roman Catholic theology articulated moral virtues through which humankind could develop humility, obedience, meekness, liberality, temperance, chastity and diligence. Humankind’s endeavors in these areas could also be assisted by sanctifying grace for those who were saved. This 81 Berkhof 82 Berkhof

(1958), p. 432. (1958), p. 433.

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contrasted with moral virtues of the faithful which included faith, hope and charity, bestowed by sanctifying grace83 alone. Grace was seen as capable of bringing the natural (created) capacities of the saved to perfection. It is the concept of natural capacity in humankind generally, endowed on humankind at the point of creation, that remains key to Roman Catholic theology today. God’s grace is not seen to operate to sustain or enhance the natural capacities of individuals outside the soteriological operation of the Holy Spirit in those who are saved.

5.3 Reformation Theology Luther,84 instigating the European Reformation in order to call believers back to what he defined as biblical truth rather than what he perceived in the Roman Catholic Tradition encompassing pious but unbiblical practices, made a distinction between the lower earthly sphere and the higher spiritual sphere. He maintained that while humankind in their fallen state were able to do good in the lower sphere, they were incapable of doing so in the spiritual sphere.85 Zwingli,86 also a key figure in the European Reformation, writing on the concept of grace and the state of human nature in Switzerland, understood sin as pollution rather than guilt and therefore conceptualized grace as sanctifying (cleansing) rather than pardoning (forgiving). He determined that sanctifying grace could influence not only those who had accepted Christ, but also to some extent those who had not. For Zwingli it was this sanctifying grace rather than the natural goodness of humankind that accounted for the good in the world. Calvin, also based in Switzerland and instrumental in the European Reformation, held a different view to both Luther and Zwingli. He maintained that humankind on their own are incapable of doing any good whatsoever and that saving grace was particular to those accepting Christ and living the redeemed life (thus far his teaching is in line with the original Augustinian view and we are back to the total depravity of humankind). Unlike Augustine, Calvin also developed a doctrine of God’s common grace. This grace neither pardoned nor cleansed the individual, nor did it have soteriological impact. According to Berkhof’s account of Calvin’s doctrine of common grace: It curbs the destructive power of sin, maintains in a measure the moral order of the universe, thus making an orderly life possible, distributes in varying degrees gifts and talents among men, promotes the development of science and art, and showers untold blessing upon the children of men.87

83 In

reformed theological terminology special grace.

84 1483–1546. 85 Augsburg

Confession Article XVIII.

86 1484–1531. 87 Berkhof

(1958), p. 434.

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The doctrine was accepted as part of reformed theology although it was only taken up seriously in theological writings more recently by Abraham Kuyper,88 Herman Bavinck,89 Louis Berkhof,90 Cornelius Van Til91 and others.

5.4 Common Grace and FoRB as a Universal Right Despite differences between various Christian traditions there are understandings of grace common to both Roman Catholic and reformed theology. There are several common themes to mention: first, that grace originates exclusively in the life of the Trinity: ‘rooted in the eternal love of the Father, manifest in the life, death, and resurrection of the Son, and poured forth on creatures through the power of the Holy Spirit’. Second, grace is free and is a gift, based in divine love and never necessary for God’s wellbeing. However, it is not cheap, given that it is based in the sacrifice of Jesus Christ, according it an infinite cost.92 The essential difference between the reformed doctrine of common grace and other Christian traditions is that the reformed doctrine of common grace holds that God is deemed to work on an ongoing basis in the lives of non-believers as well as believers. Other traditions base their concept of the capacity of humankind outside of the redeemed life, in natural theology. This is on the basis of God’s imprint in humankind at birth, grounding rights in human dignity or human ability to reason. The implications of the doctrine of common grace and its intersection with FoRB is that it translates into the willingness to hear and engage with those of all faiths and none accepting that by God’s grace their voice is both capable of and essential towards building consensus. From this point of view, this makes FoRB a foundational or core right because it supports and requires the multivalent approach necessitated by this understanding of God’s grace towards humankind. This is because the starting point for peaceful living together, a goal towards which FoRB is engaged, is respect for and listening to the voice of others.

6 What Can the Doctrine of Common Grace Add to the Debate? The implications for the application of the doctrine of common grace to FoRB go further than establishing it as a core or foundational right. It can also facilitate contexualisation of rights frameworks. This is important because taking a country too far 88 1837–1920.

Kuyper et al. (2016).

89 1854–1921. 90 1873–1957. 91 1895–1987. 92 McFarlane

Van Til (1972, 1977). et al. (2011), ‘Grace’.

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too fast in constitution rebuilding or transformation can simply result in civil society breakdown—this was acknowledged by the EU when it formed agreements with the former Eastern bloc countries in order to facilitate accession to the EU—it took up to 10 years to bring the legal structures and economic systems into a state of readiness. That model was adopted for states which were willing to take on board the Western liberal democratic model and free market economy. Thus, even where a government and its citizens are willing to adopt structures incorporating rights frameworks, time is required to carefully ensure these are entrenched both in legal and socio-economic forms and mindsets. Similarly, there is a danger that the rights frameworks can fail to account for fears or at least motivations behind a policy that drives a country to pursue extreme forms of neutrality whereby religion is excluded from the public sphere.93 European states take different policy approaches to dealing with the threat of terrorism and extremist violence—driving religion out of the public sphere is one such approach. Common grace acts as a theoretical basis of FoRB which emphasises FoRB as a foundational norm but also, in its dialogic approach open to understanding plural voices, it seeks to understand context and explores consensus building over time in the interests of the common good.

6.1 Ongoing Abuse of Human Rights How does common grace as a foundational theoretical basis for a fundamental right speak into ongoing situations of gross violations of fundamental rights? While rights frameworks may to some degree have facilitated peace between European member states, atrocities, including acts of genocide, continue around the globe. Common grace is based on the concept of the total depravity of human nature. One only needs to listen to the experience of refugees or read about or listen to victims of rights abuses in the Middle East and elsewhere to understand the extent of the depravity of human nature. Common grace steps in and names and supports an understanding of the horror of what victims have been through. It understands that terrible suffering is as a result of the rejection by those with power of any empowering goodness. It condemns such behavior as a deliberate rejection of that which is intended for humankind and, as an underlying rationale for FoRB, identifies a better means of organization of civil society—one in which humankind is protected from human depravity by the acceptance of a system of governance that accommodates difference rather than seeking to eliminate it.

93 France and Belgium, for example, are two countries currently imposing strong forms of neutrality

within the public sphere.

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6.2 Individualism In contrast to many secular and theological approaches to rights, the application of the doctrine of common grace that I propose perceives fundamental rights as a gift—given to humankind as an act of love. On this basis this gift does not stem from anything inherent in humankind and does not locate itself primarily in the individual but locates itself in the will of God and his good and perfect intentions for humankind. While its outworkings can be ascertained based on the concept of human dignity, its initiation is with God. It can therefore exist as a pre-foundational principle to other theories (whether Christian, secular, or based in other faiths). Its first question is what does God want for humankind? Its next question is—what is in the interests of the common good? This is a different starting point for discussion than the question of what human dignity or human worth requires. This approach can address the accusation made by cultures (such as the Japanese and African cultures94 ) which raise community interests above individual interests. It is not that it does not or cannot encompass the concept of human dignity—it can and it does. Before it does, it seeks to retain the integrity of its biblical foundation, while being open to hearing other positions, because it accepts that God can by his common grace care for all humankind individually and communally. It speaks through those of other faiths and none. It is dialogic—willing to accept that although by his special grace God has given illumination to those within the Christian faith, he has also by his common grace given illumination to those outside it. It supports an approach which accepts an individual, in community, where they are and which seeks to engage in dialogue about civil society in order to work towards that which is best for humankind generally and in given contexts.

6.3 Secularism and the Idolatry of Rights Theory As identified earlier in this chapter, European society and Western academia has increasingly seen a move away from public expressions of and public reasoning based on religion. In some quarters this has resulted in what might be termed the idolatry of rights whereby rights have become a moral framework in and of themselves. This has also been accompanied by a widening gap between cultures and nation states which are predominantly religious and those which are not.95 Rights theory sets a moral compass which is focused on the individual and on equality, this can downplay the role of religion and community—to some this approach to public living together is at best misguided and at worst incomprehensible and consequently unacceptable. Common grace speaks into this gap by providing a basis for arguing that there is a dialogue to be had between those of no faith, those of other faiths and those 94 For

a discussion of individualism and universalism of rights frameworks see: Tomuschat (2003), pp. 69–83. 95 I have commented on this more fully elsewhere: Giles (2019).

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within the Christian traditions. This approach supports the integrity of core doctrine but anticipates an ability and willingness to enter into dialogue on the basis that each voice is able to contribute to discussions on law creation, adjudication and public living together. It is supportive of freedom of conscience and belief, just as much as it is supportive of freedom of religion. It makes FoRB the foundational right because it establishes a basis from which discussion can begin in order to building consensus around other rights. It regards the enjoyment of FoRB in community as equally foundational.

6.4 Jurisprudence: The Forum Internum/Forum Externum Divide and Equality The dual conceptualisation of FoRB in academic literature and in jurisprudence is problematic. This is a form of reasoning whereby an individual’s right to believe (forum internum) is generally protected absolutely whereas the right to manifest one’s belief in public (forum externum) can generally be limited where it might infringe another’s fundamental rights. This can lead to clashes between rights claims and to clashes between ideologies and theological understandings of the common good. This occurs in particular where a religion does not countenance the division between the forum internum and the forum externum, but sees praxis as coterminous with belief. Weiler96 explores this problem in relation to the Muslim and Jewish faiths in an analysis of the Achbita and Bougnaoui cases. This dual conceptualisation of the right grants a licence to theologians, political philosophers, scholars of jurisprudence and legal practitioners to subsume theological conceptualisation of the common good (constitutional or otherwise) to secular or neutral understandings of the common good. This difference in outlook is clearly expressed in the opinions of Advocate General’s Sharpston and Kokott in the Achbita and Bougnaoui cases when exploring the importance of religion as a protected characteristic when balanced against the interest of a business. It is the opposing views of the nature of religion as a protected characteristic that mark this deep difference of ideology between the Advocate Generals. These are expressed as follows: Advocate Kokott in her opinion in Achbita at paragraph 11697 states: However, unlike sex, skin colour, ethnic origin, sexual orientation, age or a person’s disability, the practice of religion is not so much an unalterable fact as an aspect of an individual’s private life, and one moreover, over which the employees concerned can choose to exert an influence. While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employee’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.

96 Weiler 97 (Case

(2017). C-157/15) 31 May 2016.

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Advocate General Sharpston on the other hand at paragraph 118 of Bougnaoui98 states: Here, I emphasise that, to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith – its discipline and the rules that it lays down for conducting one’s life – are not elements that are to be applied when outside work (say, in the evenings and during weekends for those who are in an office job) but that can politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.

It is interesting to note that based on national and European jurisprudence (both within the European Court of Human Rights and the Court of Justice of the European Union), had the employees been seeking to assert LGBT equality rights, their equality claims would have succeeded in the national courts and the Court of Justice of the European Union—a company cannot exclude expressions of sexuality from the work place. Individuals are free, for example, to present as heterosexual, bisexual, gay or lesbian. Since, however, the claimants’ claims were religious equality claims they were not able to challenge a company’s general policy of neutrality—namely that no one could present any views, religious or otherwise, at work, although it was possible to challenge a single client’s desire not to have an employee attend their premises wearing a hijab. Thus denial of religious freedom to an entire workforce of a multinational company was acceptable, whereas denial of an individual employee’s religious freedom at the behest of a client was not. Conversely equality poses a problem outside as well as within Western liberal democratic traditions. Stopler,99 and Bakhshizadeh100 identify these issues in their writing as does Ghanea101 in her report for the US Commission on International Religious Freedom. In these cases orthodox or fundamentalist beliefs can result in religion being given precedence over equality rights, including women’s equality rights. The interpretation of the doctrine of common grace proposed in this chapter supports an approach which facilitates a dialogue around these issues and identifies that both extremes—that is fundamentalism in the form of neutrality or religion that does not accommodate difference in the public square—are contrary to that which is foundationally important, namely that civil society groups and government listen to and enter into dialogue with those of opposing views. Given that, if the opportunity for dialogue is opened up, opposing views will arise, the rights clashes consequent upon plural living together require a dispute resolution mechanism. Such a mechanism is proposed in the following section applying Dooyeweerd’s philosophical approach to balancing the interests of various spheres in society. 98 (Case

C-188/15) 13 July 2016. (2003). 100 Bakhshizadeh (2018). 101 Ghanea (2017). 99 Stopler

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6.5 Relativism Earlier in this chapter relativism was identified as one of the greatest challenges to FoRB as a universal right. The discussion in this section has demonstrated how my interpretation and application of the doctrine of common grace retains as its basis the requirement to hear the arguments and concerns of individuals and society groups. Further, that like religion, rights frameworks, and in particular FoRB are potentially capable of contextualization within given societies over time without foregoing a core content. The doctrine of common grace recognises that individuals, governments and civil society groups have the ability, through God’s grace, to discern the common good for their own groups and for society as a whole within given national contexts. Where the core content of FoRB requires at the very least that plural voices are heard within society, it can sit as an entrenched right on one end of the spectrum and as an aspirational right on the other. What is essential is that a consensus is reached around the core content of FoRB even if its operationalisation varies in different contexts.102

7 Where Does Dialogue Lead? Resolving Rights Clashes: Dooyeweerd and Normative Institutional Pluralism This chapter argues that the doctrine of common grace can support a multivalent dialogic theoretical basis for FoRB to support plural living together and consensus building. There are, however, still considerable barriers to acceptance of religious freedom as a universal right. These barriers are likely to stem from fear—fear that pluralism might pose a challenge to state adopted ideals and morals, fear of unrest, fear of difference and individual free will.103 A workable theory will need not only to foster consensus building, albeit by a multivalent route, but also to facilitate the resolution of differences and disputes. It will be required to address these fears openly while also ensuring a secure place in society for difference. In this way it is likely to be able to undergird a right to religious and conscience-based freedom in a global context. It is possible to address the theoretcial basis for religious freedom not only through rights discourse but through political philosophy. In this manner structural issues can be addressed not only to permit religious groups to form and flourish within civil society, but also to identify a means of resolving disputes. It should be born in mind, however, that while legal and political structures can facilitate peaceful living together, it is education about faiths, values, legal norms and structures that will ultimately be needed to enable individuals to understand and operate within the structures governing them. An example demonstrating this can be seen in Burma. Although restrictions on freedom of expression were recently lifted to some extent in 102 For

further discussion on the potential core content of FoRB see Giles (2019).

103 The EU Special Envoy for the Protection of Religious Freedom outside the EU adds intolerance

and indifference to the list of challenges to the implementation of FoRB.

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Burma—evidence demonstrated that authors were still self-censoring because they had never experienced freedom of expression and did not fully comprehend how to make choices enabling them to enjoy their right. In any regime that has restricted religious freedom—a legal or structural guarantee of the principle will not initially impact unless some form of education can be undertaken to help people understand how to enjoy that freedom. The question can be something of a chicken and egg situation—does one need to educate citizens and facilitate transformation from the bottom up or does one want to enter into dialogue with political and other leaders in order to facilitate change from the top down? Whatever the approach or combination of approaches, one needs to have a workable approach to resolving disputes when they arise, given that FoRB will inevitably give rise to clashes between those holding different religious or conscience-based positions. With this in mind this chapter will now consider briefly a theological-philosophical approach to organizing civil society and consider this as a supporting tool to establish and maintain religious freedom as part of a pluralistic social structure. It is argued here that the incorporation of this approach into the theoretical justification for FoRB itself is important. This is because FoRB cannot exist in a vacuum, its underlying rationale thus encompasses not only the justification for its inclusion in rights frameworks, but also a justification for, or rather explanation of, its use as a tool for peaceful living together.

7.1 Dooyeweerd and Normative Institutional Pluralism Chaplin104 entitles Dooyeweerd’s theory of civil society ‘normative institutional pluralism’, stemming from a group of theories based on normative pluralism. These theories identify, as of particular concern, the increasing tendencies for states, in the absence of public inter-religious discourse, to seek to draw power to the centre and universalize, often assuming for themselves the role of and being looked to by citizens as, the formulator of the moral compass for society. Chaplin writes: All were motivated by an anxiety about two characteristic features of modernity: first, the social and economic atomization produced by industrialization and the consequent disintegration of traditional institutions such as estates, guilds, and kinship communities; and second, the political centralization characteristic of the modern nation-state, dramatically accentuated in the aftermath of the French Revolution. Their interest in plural institutions standing between state and individual thus sprang from a concern about both the isolation of individuals from the supportive bonds of pre-capitalist society and the exposure of these unprotected individuals to the encroachments of a dangerously overweening state.105

The use by the state of rights frameworks as a moral compass in and of themselves, independent of the theological and/or philosophical underpinnings which for

104 Chaplin 105 Chaplin

(2011), pp. 14–15. (2011), p. 14.

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many were instrumental in placing such frameworks within an entrenched constitutional structure has already been identified as problematic. This has implications for democratic legitimacy of rights-based actions as well as for the proper theoretical grounding of rights theory and the ability of rights discourse to speak powerfully in non-Western contexts. Normative institutional pluralism identifies the need for intermediate institutions to act as a buffer between the universalizing tendencies of the state and the individualism of citizens. This type of individualism is particularly evident within rights-orientated Western democracies centered around the free market economy. Normative institutional pluralism encourages plural ethical reasoning to inform rule making at a subsidiary level with only limited interference by the state. As such it has particular relevance to the fostering of religious freedom.

7.2 Normative Institutional Pluralism and Enkaptic Interlacement Dooyeweerd’s political philosophy built on that of the reformed theologian and statesman, Abraham Kuyper. Kuyper identifies a theological-political-philosophical approach based on the concept of sphere sovereignty. Sphere sovereignty was formulated by Kuyper in the Netherlands in the 19th century within the context of the struggle for religious pluralism that was underway within that state. This theory establishes that society is made up of a variety of civil society groups or spheres. Sphere sovereignty is based on the concept that a healthy society requires a multiplicity of independent and distinct associations to enable humans to realise their capacity. There is no preferring of membership of the polis over membership of any other organization within society. It is the state’s role to actively facilitate and protect the independent functioning of these groups within society. The spheres have their areas of competence/responsibility and authority. Each sphere holds a position equal to other spheres. The state’s role is to regulate disputes between the spheres but not to interfere with or seek to dominate or dictate to them. At one level the philosophy is descriptive (ontological)—it outlines the structural principles governing the operation of various groups that operate and interact within society. It identifies, for example, the family, business organisations, faith groups, educational institutions, voluntary associations and sports organisations as groups within society capable to a certain extent of self-regulating. It sees the role of the state as limited but essential—in particular where it is necessary to resolve disputes between the spheres.106 To the extent that it views the role of the state as limited it resonates with the Roman Catholic principle of subsidiarity.107 Pius X in the 1931 papal social encyclical Quadragesimo Anno identified that the state had a subsidiary 106 For

an explanation of the concept of sphere sovereignty developed by Kuyper see for example: McGoldrick (2000), pp. 62–72. 107 Chaplin (2011) explores this further in his restatement of Dooyeweerd’s theory of Normative Institutional Pluralism.

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function, stating that higher social bodies were not to usurp the functions of lower bodies where the task could better be fulfilled by the lower bodies. The concept of sphere sovereignty differs to the extent that it is not hierarchical (like subsidiarity) and to the extent that subsidiarity may involve the devolution of power, power is never devolved from central to decentralized authorities within sphere sovereignty. The very sovereignty of the sphere means that power rests there in the first place. Dooyeweerd developed his own theory looking in more depth at the manner in which it is possible to classify different groups within society and how they interact. This is based on the understanding that societal health is grounded in social ontology—if one can map social institutions and understand how they interact one can create a theory which is correctly orientated to societal health. If one gets this wrong one can, for example, end up with the institution of the family governed by commercial agreements, the institution of sports clubs governed by the need to see justice done in society. Similarly, the interactions or as Chaplin108 terms Dooyeweerd’s theory, the interlacements, between institutions need to be accurately identified in order to ensure that they can be accurately prioritized and disputes can be resolved. Dooyeweerd establishes his definition of social structures by identifying a ‘structural principle’ which consists of two modal aspects (also referred to as functions). A social structure has a ‘qualifying’ function and a ‘founding’ function. This enables Dooyeweerd to then identify types of structures. In order to blunt the objection that this results in an essentialist view of social structures, Chaplin reconstructs Dooyeweerd’s theory to base it more firmly in ‘a clearly articulated conception of human flourishing’.109 Dooyeweerd claims that social structures are subject to core principles rooted in the created order. The role of social philosophy is to discern the particular principles relevant to specific structures and then contextualize them with data drawn from cultural and historic contexts.110 The core principles are identified through observing the normative principles that are essential to the operation of a given structure. This can be undertaken on the basis that however marred the image of a particular structure is when compared to the God-given ideal, humankind cannot in fact alter or corrupt the structural principle which makes its existence possible. While Chaplin criticizes the object of Dooyeweerd’s theory, it is nevertheless helpful to at least attempt the definitional exercise because it is particularly relevant to the settling of disputes between the structures, which is relevant to our current enquiry. Where, for example, a rights claim between a business corporation and an individual claiming protection of family life results in a clash of values—the essential definition of the structure within which the parties are located can assist in weighing the claims in the balance to decide which should prevail. In addition, establishing how the two structures interact and can foster human flourishing can also benefit the weighing exercise. If the qualifying function of a business corporation is defined as an economic one orientated purely around profit making and this comes into 108 Chaplin

(2011). (2011), p. 34 and Chap. 6. 110 Chaplin (2011), p. 86. 109 Chaplin

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conflict with the social structure of the family—defined by its moral nature—the question (put rather crudely here for the purpose of illustration only) is then: will society give more weight to the moral or economic claim?111 A balancing of rights claims would involve a more nuanced analysis, but this example demonstrates how such an exercise might proceed. This works with the legal norms enshrined in law and confronts legislatures and adjudicators with the essence of the decision in front of them, rather than being narrowly focussed only on the particularities of individual cases. It addresses, in particular, the complaints of individualism arising as a result of rights discourse and rights implementation since it forces a discussion to a higher level, considering the broader implications when claims arise. The balancing exercise outlined in the previous paragraph can also potentially accommodate different understandings (theological or philosophical) of the essence of a given sphere and accommodate societies where increase weight, for example, is given to family and communal values. For example, a court situated in a Westernliberal democracy, when adjudicating a dispute, will potentially weigh the claims of different spheres in such a way that the outcome will differ considerably to the outcome achieved by a court in a non-Western-liberal democracy. This is because different societies will accord value in different measures, in particular where the application of the principle of subsidiarity will result in plural values being taken into account in the adjudication of disputes. Neither dispute resolution is ‘wrong’, provided they account for plural living together and are built around a consensus of the core content of FoRB. The decisions are, however, contextualized. By mapping social structures in this way Dooyeweerd is able to consider how interlacement (interactions) occur between different spheres and identify how some relationships form enkaptic interlacements112 whereby one structure binds another structure in some manner without destroying the nature of that structure. In enkaptic interlacement each structure can potentially have different intrinsic destinations and so the interrelationship can potentially cause a clash of values or purpose. Enkapsis can also involve a part/whole relationship. The running of a business by a Christian family would result in a Christian business (closely held to use the American phrase). The family and the business independently have different intrinsic destinations. The family business could potentially find conflicts arising in reconciling the two. Dooyeweerd’s theory as restated by Chaplin is complex, but this is potentially a reflection of the complexity of the interactions within modern society. Judges in national courts are confronted daily with highly complex issues and, at times, when it comes to weighing or balancing interests in rights claims, having a framework or mechanism for taking a broader perspective on decision making could provide an invaluable tool. Similarly debates in parliament around law creation could take a step back from the particularities, encompass the views of a broader section of the population and could ensure elements of decision making accommodated the difference and independence of various communities and groups. This would foster an increase 111 This

is assuming that although the rights claims are made by individuals, the claims they make represent the particular spheres in which they, or at least their claims, are located. 112 This is a term used by Chaplin in his translation of Dooyeweerd’s work.

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in religious and conscience-based freedom within a plural civil society. Within this framework the state is responsible for establishing the basic norms applicable to all intermediate groups, beyond this groups are left to self-regulate. This creates the basis for plural living together envisaged by and necessary for FoRB to operate effectively. Dooyeweerd’s theory thus provides a mechanism to ensure FoRB is capable of functioning as a constitutional right within and outside Western-liberal democratic contexts where there is capacity to permit intermediate civil society groups to function.

8 Conclusion By taking an interdisciplinary approach to problems identified in the operationalisation of FoRB, integrating approaches from theology and law, this chapter has interpreted the doctrine of common grace to support a dialogic approach to bolstering the universalism of FoRB. It has proposed Dooyeweerd’s theory of normative institutional pluralism as restated by Chaplin as a means of fostering plural living together and in particular addressing clashes between rights claims. This chapter has sought to establish common grace as a foundational theory, not to obviate other theories, in particular those based in human dignity, but to engage at an earlier stage in discourse around the will of God and about the common good, to identify the gifting by God of that which can facilitate a peaceful way of living together for humankind. It suggests that freedom of religion is the foundational right upon which other rights depend. The doctrine of common grace proposed recognises that even for those who reject a faith-based approach—the ability to do so is in and of itself justification for this freedom as the primary universal freedom.

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Islam, Europe, and the Problem of Peace Zachary R. Calo

Abstract This chapter considers how Islam has informed debate about secular law and secular identity in Europe. It is argued that in ways both recognized and unrecognized, the question of Islam has shaped reflections about European identity, the nature of the liberal state, and the terms of peace amidst religious pluralism. In particular, it will explore how the liberal proposition that the modern state can manage religion and religious difference through the mechanism of secular law has been complicated and, to some extent, upended. Islam, as a reified other, has served an essential role in reimagining the nature, meaning, and ends of secular order. This chapter considers the ways in which ideas about Islam and Europe have participated in a shared ongoing project of contested self-definition. It explores this dynamic with particular reference to recent decisions of the European Court of Human Rights, which disclose the ways in which law is being employed to control and transform Islam and indeed the experience of being Muslim. In light of these developments, the chapter will offer conclusions on the terms and prospects of a “secular” peace within the contemporary European legal environment.

1 Europe and the Problem of Islam Ján Figel proposes that Europe is a community built on “respect for cultural diversity” and that “only by making this respect the guiding principle” will it be possible to “forge among the peoples of Europe a true sense of belonging to a common space.”1 1 Figel

(2017), p. 65.

Z. R. Calo (B) Hamad Bin Khalifa University, Doha, Qatar e-mail: [email protected] Notre Dame Law School, Sydney, Australia The Open University, Milton Keynes, UK Research Scholar in Law and Religion, Valparaiso University, Valparaiso, USA © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_7

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This respect for diversity, however, appears to reach its limits in the encounter with Islam. Rather than seeing Islam as a form of cultural diversity to be invited into the common European space, engagement has more commonly emphasized the existence of tension, incompatibility, and the need for Islam to transform itself. Europe pronounces its commitment to pluralism and diversity through law, but the presence of Muslims continues to pose a “problem” for which Europe has not yet cultivated an effective and coherent response.2 If anything, Jocelyne Cesari argues, wrestling with Islam has prompted in Europe “a reevaluation of the principle of cultural equality, and a redefinition of the very concepts of tolerance and pluralism.”3 The terms of peace between Europe and its Muslim minority remain elusive. There are, of course, many legitimate concerns that inform the way Muslims are being addressed in European law. There are concerns about demography and social isolation, with the huge number of immigrants that arrived during the refugee crisis intensifying already existing worries about the capacity of states to assimilate Muslim minorities.4 Terrorist attacks in Madrid, London, Paris, and Brussels among others have heightened concerns about security and terrorism. Pockets of radicalism in mosques have brought attention to Islamic leaders, education, and the training of Imams. Debates over religious hate speech, the recognition of legal decisions issued by Sharia counsels, limits on religious dress in public, and the building of mosques and minarets have all also galvanized public attention. But these particular considerations aside, the debate about the place of Islam in Europe more fundamentally concerns the very idea of Islam in the European imagination. The way in which Islam is understood has not only impacted matters of law and policy but, perhaps even more importantly, how Europe has come to understand itself, its history, and its ordering commitments.

2 Zaretsky (2015). In one such instance Robert Menard, mayor of the French town of Béziers, faced

charges of inciting hatred for stating that, “In a class in the city center of my town, 91 percent of the children are Muslims. Obviously, this is a problem.” 3 Cesari (2005), p. 49. 4 Douthat (2005), pp. 58–59, notes that “integrating even existing Muslim minorities already poses a serious cultural and political challenge for European society. The relatively small size of the Islamic population is counterbalanced by its concentration in a few Western European nations—particularly France, Germany, and the Low Countries—and by the tendency of Muslim immigrants to cluster around larger cities … often in neighborhoods and vast housing projects that are culturally and economically isolated form the wider society”. Other commentators have made the related claim that another challenge for integration is “the bond of the umma, the Islamic community.” This argument is based on the idea that Muslim identity, across ethnicity, creates a particularly strong form of solidarity. See Malik (2001), pp. 100–115. Five percent of the European Union population is Muslim and this number will rise consistently in coming decades. According to recent Pew Research Center data, higher birthrates mean that the Muslim population of Europe will rise to 7.4% by 2050 even if all migration were to stop. Depending on migration patterns, Muslims could constitute 14% of Europe’s population by 2050 (Pew Research Center, Europe’s Growing Muslim Population, November 2017).

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The image of Islam in the European mind is of a timeless monolithic other, an essentialized system of religious belief and practice, that is not and perhaps cannot ever exist comfortably within the bounds of European society.5 Headscarves, minarets, and the specter of Sharia law all serve as reminders of cultural divide between Europe and Islam. It is commonly asserted, for instance, that “Europe” and “Islam” are incompatible systems of meaning, embodiments of different patterns of civilizational order.6 The precepts of Islamic law are deemed incompatible with European law. One report notes, for instance, that “elements in Islamic law are seriously out of step with trends in Western legislation that derive from the values of the Enlightenment and are inherent in modern codes of human rights that are in force throughout Europe and in democratic countries elsewhere.”7 The basic problem, encapsulated in this concern over incompatible dueling legal systems, is that Islam embodies a totalizing way of being such that one cannot be fully Muslim and fully European. One who is faithful to Islam in its fullness holds loyalties to an alternative system of meaning. “Europe finds itself in a contest with Islam for the allegiance of its newcomers,” writes Christopher Caldwell.8 And if Islam cannot be assimilated and domesticated then it must be resisted and controlled. The impulse to define Islam as a problematic and threatening other is hardly unique to this historical moment. Europe’s “problem with Islam” is cited as going back to the fall of Constantinople, the reconquest of Spain, or the Siege of Vienna.9 The noted historian of the Middle East Albert Hourani observes that, “From the time it first appeared, the religion of Islam was a problem for Christian Europe.”10 Europe and Islam were defined then, as they continue to be now, on adversarial terms. This line of argument has been often and rightly criticized for caricaturing Islam in a manner that fails to recognize the vast diversity that characterizes its expressions in the lives of particular individuals and communities. As an alternative, what Ahmet Yukleyen describes as the “contextual approach to religion,” focuses on how Islam as a “social phenomenon” relates to embedded contexts.11 There has also been much work examining, at the level of both theory and practice, the compatibility of Islam and European liberal democracy, including constructive theological scholarship that explores ways in which the Islamic tradition can adapt to new circumstances and contexts.12 In the end, however, these considerations have had only a marginal influence in shaping the dominant social and legal position of Islam within Europe. The 5 Much

of the debate refers to “Europe” and “European Muslims,” as if they were monolithic groups. There is of course no unified European Muslim identity or experience any more than there is a common European identity or experience. That these simplistic categories are employed speaks all the more to ways in which the debate rests on a binary oppositional framework. See Hellyer (2009). 6 Yukleyen (2009), p. 115. 7 MacEoin (2009), p. 11. 8 Caldwell (2009), p. 349. 9 Laitin (2010), p. 429. 10 Hourani (1989). 11 Yukleyen (2009), p. 119. 12 See, for instance, the work of Ramadan (2004).

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Islam that is the object of legal action is an essentialized Islam that does not change or adapt. This essentializing impulse has not been unidirectional. Just as Islam has been reduced to an essentialized ahistorical construct, so too Europe has subjected itself to the same process. The experience of wrestling with Islam has reverberated back and provoked reflection on the meaning and durability of the concept of Europe. The idea that there exists a cultural reality called Europe, defined by a set of essential civilizational values, has been reinforced through this process. One notable expression has been the revived talk of Europe’s Christian identity, which is often expressly defined against an Islamic alternative. For some, this Christian character is not merely adjectival but speaks to the very possibility of Europe as an ongoing reality. In a 2006 address at Regensburg, Pope Benedict XVI juxtaposed the “absolutely transcendent” view of God in Islam with the Christian God who is self-limited by reason.13 These different accounts of God’s nature have, in turn, profound political and indeed civilizational consequences, for the encounter between Biblical faith and Greek reason lies at the heart of Western Christendom and its liberal democratic offspring. The Christian faith sustains this inheritance. As such, Islam is at some necessary tension with and, perhaps, threating to the achievement of Europe. It is thus not at all surprising that in other contexts Benedict speaks of the need to rediscover the “Christian roots” of Europe. In this framing of the situation, the problem with Islam is not reducible to concerns about politics, demographics, or assimilation. It is most elementally about a cultural problem, for the presence of Islam threatens to disintegrate patterns of understanding that must define the ongoing achievement of Europe. It is paradoxical that a sustained discussion of Christian identity has occurred in a largely secularized Europe. This phenomenon speaks to the powerful ways in which the Muslim minority has done for Europe what Christianity could not, namely to spark renewed interest in collective religious identity. In the end, what unites the sophisticated claims about Christian Europe from thinkers like Pope Benedict with more populist agitations is the centrality of Islam.14 The idea of Christian Europe almost always finds its meaning through a juxtaposition with Islam. Polish Catholics, for instance, recently organized a “Rosary at the Borders” event in which millions of the faithful gathered to pray. The event combined rhetoric of Christian Europe with concern about the growing presence of Muslim immigrants. Enthusiasm for the former was driven by fear of the latter. The Archbishop of Krakow spoke of the need for “Europe to remain Europe” and “return to the Christian roots of European Culture,” while one lay participant spoke of Islam wanting “to destroy Europe”

13 Pope Benedict XVI, Lecture at Aula Magna of the University of Regensburg, Faith, Reason and the University: Memories and Reflections (September 12, 2006), available at http://w2.vatican.va/content/benedict-xvi/en/speeches/2006/september/documents/hf_ben-xvi_ spe_20060912_university-regensburg.html. 14 Similar themes colored debate about Turkey’s potential accession to the European Union. See McCrea (2007), p. 12.

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and “turn us away from Christianity.”15 In this respect, rechristianization marks a response to a crisis in identity and a defensive reaction to perceived vulnerability. As M. A. Muqtedar Khan observes, the question of Islam has provoked non-Muslim Europeans to see themselves as an embattled minority struggling to preserve a sense of collective identity.16 Resurrecting the idea of Christian Europe has allowed for the restoration of a more stable sense of history and identity that definines Muslims on the outside. These dynamics have lead many commentators to frame the current situation in terms of a “clash of civilizations.”17 Although much has changed in the quarter century since Samuel Huntington wrote his influential essay of this title, his thesis continues to influence how people think about Islam and Europe.18 For Huntington, civilizations are defined by a number of factors—history, language, and culture, among others. Religion has a particularly important role in shaping the way a civilization understands “the relations between God and man, the individual and the group.”19 Even if religion no longer has a direct ordering influence on collective civilizational meaning, as for instance in a largely secularized Europe, civilizations maintain and transmute the imprint of theological forms through the way they understand “rights and responsibilities, liberty and authority, equality and hierarchy.”20 In a Huntingtonian framework, what is happening in Europe’s encounter with Islam is nothing short of a clash between irreconcilable civilizational forms. In this framing, the encounter between Islam and Europe is inevitably conflictual and inescapably religious. As Huntington observes, once “people define their identity in ethnic and religious terms, they are likely to see an ‘us’ versus ‘them’ relation existing between themselves and people of different ethnicity or religion.”21 Essentializing both Islam and Europe on civilizational terms encourages what Cesari describes as a “binary vision of Islam versus the West”.22 It presents a barrier to constructive engagement by heightening attentions to difference and rendering conflict inevitable. In other words, the inability of the existing dialogue to move beyond essentialized traditions proves a conversation-stopper, for it is assumes a timeless and insuperable chasm between the two. Under these prevailing conditions, peace will remain elusive.

15 “Polish Catholics Gather at Border for Vast Rosery Prayer Event,” New York Times (October 7, 2017); “Hundreds of thousands pray rosary at Polish border,” Associated Press (October 8, 2017). https://catholicherald.co.uk/news/2017/10/08/hundreds-of-thousands-pray-rosary-atpolish-border/. 16 Khan (2007), p. 19. 17 Taspinar (2005), pp. 329–331, Ozdemir (2004), p. 140. 18 Huntington (1993), pp. 22–49, Huntington (1997). 19 Huntington (1993), p. 25. 20 See Footnote 19. 21 Huntington (1993), p. 29. 22 Cesari (2013), p. 5.

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2 Islam and the Force of Law Law has had a particularly significant role in shaping the encounter between Europe and Islam. While law is only one factor, it is important to consider the ways in which law has structured the relationship between Europe and Islam and continues to exist as a barrier to more constructive forms of engagement. There is, of course, no one legal approach to Islam that defines the whole of Europe. There are diverse legal norms, processes, and values that reflect different underlying commitments, whether to laïcité, multiculturalism, or some other principle.23 There are also countless policies in place that facilitate, rather than obstruct, recognition and integration of Muslim communities.24 This includes funding of Muslim schools or public provision of Muslim chaplains.25 But the instances in which law gives cognizance to Muslim identity should not obfuscate the larger story unfolding in Europe in which law, including human rights norms more generally, is often employed as a tool of resistance, control, and erasure. Law is not invoked to negotiate competing sources of meaning nor to determine the terms of integration. It rather operates as an agent of violence against Muslim communities and Muslim identity. This is apparent when looking at the jurisprudence of the European Court of Human Rights, in which human rights norms emerge as a means of preserving liberal values against a Muslim threat. Looking to the European Court of Human Rights not only shines light on the problem that Islam is thought to pose liberal democratic order, but the ways in which the force of law is used to constrain and transform Islam. Muslims are constructed as “the enemy within liberal democracies” and law, in turn, as the tool by which liberal values are asserted against the alien threat.26 Yet, the encounter does not unfold on simple binary terms, in which law is offered as a crude redoubt to counter Islam. There are instances of this, to be sure. What aims are served in banning minarets, forbidding halal animal slaughter, or requiring the shaking of hands with persons of the opposite gender during citizenship ceremonies, other than to use law to define the Muslim as unwelcomed. Such crude and unnuanced forms of resistance, which generate headlines and galvanize populist energy, distract though from the real impact of law, which is at once more subtle and transformative. The impact of law on European Muslims comes not from pushing back against Islam in a nakedly aggressive way. Rather, the force of law is used to disappear Islam, to hide it from view, and to remove it as a meaning-making influence within the body politic. This goal is pursued not through the forcible removal of Islam as such, but by transforming the way Muslims experience their faith and ultimately by undermining the capacity of Islam to exist as an ongoing tradition. In so doing, the law does much

23 “No

European democracy has the perfect way to handle Islam,” The Economist (November 15, 2010). 24 See, for example, Vroom (2010). 25 Hellyer (2009), p. 110. 26 See Footnote 22.

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more than discriminate against Muslims. It erases Muslims from law’s order and protection.27 This use of law is particularly apparent in the legal approach to female religious dress such as head and face coverings. Much ink has been spilt analyzing various bans on Muslim dress in European law, especially as the issue has been addressed in judgments of the European Court of Human Rights. In many respects, these judgments are often rather banal in their legal analysis. Many of the judgments turn on an appeal to the margin of appreciation, deferring thereby to the member state’s determination of the need for such bans, and thus avoid more a substantive engagement with underlying questions of religious freedom. Yet, even if the legal reasoning proves unilluminating in isolation, these decisions continue to attract attention and demand further analysis. And this should not be surprising, for what might seem at first to be a marginal symbolic issue uniquely reveals the broader impulses shaping the place of Islam within the European legal order. The key to understanding these cases lies in the power of religious dress to shape the European imagination about Islam. For instance, former British Foreign Minister Jack Straw, addressing the matter of an Anglican school that suspended a teacher who wore the niqab, described the veil as a “visible statement of separation and difference.”28 Similar themes emerged in the government’s position in SAS v. France, where the fully veiled woman was described as “effaced,” that is cut off from the life of the public.29 The covering of the face, in other words, places the woman outside of society. It represents a refusal to be controlled and a bold reminder of unassimilable difference. The niqabi violates conventions of the liberal public sphere and seems even to delight in flaunting them. It is not what the headscarf does but what it represents that gives shape to the legal problematic. There is a gendered dynamic to these cases of which one must be particularly sensitive. That the most important body of the European Court of Human Rights cases concerning Muslims uniquely targets women, in particular the constitution of female citizenship and sexuality, is worthy of further attention. Yet these cases are not only about women but the legal status of Islam more generally, and they highlight the development of a sui generis jurisprudence specific to Islam’s place in Europe. These headscarf and veil cases ostensibly turn on balancing religious freedom and state claims concerning the necessity of a limitation. From this perspective, the decisions are revealing in the extent to which they are facially at odds with the Court’s stated commitment to democratic pluralism. Time and again, the European Court of Human Rights has upheld bans.30 What emerges out of these collective judgments 27 See

generally, Razack (2008). Straw on the Veil,” BBC News, available at www.news.bbc.co.uk/2/hi/uk_news/politics/ 5413470.stm. 29 SAS v. France, App. No. 43835/11, §77 ECHR 2014. 30 See, for instance, Dahlab v. Switzerland, App. No. 42393/98, ECHR (2001); Leyla Sahin v. Turkey, App. No. 44774/98, ECHR (2004); Dogru v. France, App. No. 27058/05, ECHR (2009); SAS v. France, App. No. 43835/11, §§82, 119 ECHR 2014; Ebrahimian v. France, App. No. 64846/11, ECHR (2015). For counterveiling judgments, see Hamidovi´c v Bosnia and Herzegovina, App. No. 57792/15, ECHR (2017); Lachiri v. Belgium, App. No. 3413/09, ECHR (2018). 28 “Jack

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is a sense that law exists not to protect the rights of religious manifestation by Muslims but the right of states to adopt laws that preserve liberal values against Islam. As Marcella Ferri convincingly argues, in a number of headscarf cases “the Court stated that the freedom of religion implies the states’ obligation to adopt the positive measures necessary to limit freedom of religion in such a manner as to ensure a balance between the interests of different religious groups.”31 In other words, it is not that the state has an affirmative obligation to protect the right of Muslim women to manifest religion, but rather that the state has an obligation to limit this right in support of religious freedom for all. As the Court frames the issue, liberal commitments to freedom, diversity, and difference are not threatened by these bans. They are being shielded from Islam through the imposition of law’s force. As such, protecting religious freedom from religious freedom is not incoherent. It is not even a tension that demands acknowledgement and resolution. It is a proper position to take in light of the problem of Islam. The way in which Islam is constructed within the European imagination allows it to be placed outside the ordinary boundaries and protections of law. Islam emerges as a legal exception that warrants being uniquely subjected to law’s force.32 The legal status of Islam is made all the more apparent in light of how some non-Muslim claimants have been treated by the European Court of Human Rights.33 It becomes clear that Islam is addressed uniquely in law because it is viewed as uniquely problematic for Europe. By upholding bans on headscarves and face coverings, the Court resists the projection of an illiberal Islam into the public. This represents a defensive liberalism in which European space is shielded from the visible presence of the Muslim.34 But the law also operates in an offensive capacity by seeking to free women from the burden of Islam. The force of law pushes back against religion in order to free women from religion. The debate about the ban on the full face veil in SAS v. France revealed this impulse with particular forthrightness.35 31 Ferri

(2017), p. 192.

32 There are differences in the legal treatment of Islam and other faiths, but this cannot be explained

solely by reference to prejudice against Muslims. The fact that, for instance, that the European Court of Human Rights upheld the display of the crucifix in Lautsi v. Italy is less indicative of a Christian bias in law than it is the extent to which the crucifix is already seen to be void of strong theological meaning that would make it problematic. See Lautsi v. Italy, App. No. 30814/06, ECHR 2011. Headscarves and the crucifix have different symbolic power in their given contexts. In certain respects then, the problem is not Islam as such but more generally strong forms of religion. See Calo (2018), pp. 135–151. 33 Eweida and Others v. The United Kingdom, Apps. No. 48420/10 36516/10 51671/10 59842/10, ECHR 2013. 34 Trispiotis (2017), p. 5, observes that invoking a wide margin of appreciation in these cases such as those involving headscarves and full-face veils “exacerbates the problem of existing and strong hierarchies that forge Islamophobia and social exclusion of Muslim communities.” Although such bans are often framed as promoting freedom and integration, they arguable reinforce these very problems. 35 The French government rested its defense of the ban in part on the grounds that it would help advance emancipation of women and promote gender equality. It its judgment, the European Court of Human Rights even noted that “the Government expressed surprise at the applicant’s statements

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It is sometimes argued that the Court’s treatment of Islam reveals a secular prejudice within law. There is certainly evidence of a general suspicion towards strong religion in the Court’s judgments. But we should not interpret these cases primarily as instances of secularization that only further privatizes and marginalizes religion. The language and concept of the secular fails to fully capture what is unfolding. Not only has law resisted the projection of certain forms of religiosity into public life, but it has actively aimed to undermine the tradition-forming power of Islam as manifested in the lives of women. Law pushes back against tradition so as to strip persons of their religious identity. In this respect, while these cases typically concern individual religious freedom, it is the Court’s jurisprudence that has the effect of creating individuals by cutting off points of connection to the communities which invest the veil with meaning. By freeing women of the veil, the law does not only preserve liberal values but actively seeks to form liberal persons. While the individualization of religious faith is sometimes identified with the secularization process, what is unfolding in the Court’s jurisprudence on Islam is something different altogether.36 Faith is not only being individualized but forcibly reconstructed. The Muslim citizen who is the object of law is offered a faith of a quite different kind. What is primarily at issue is not the right to manifest religious belief but, more fundamentally, to be present as a full self. The bans, and the response to them at the Europe Court of Human Rights, have the effect of erasing this self from public view, memory, and meaning. They seek to shape an account of Europe in which the Muslim is rendered invisible. The bans aim not at conversation but silencing the other who is present. Rather than creating legal preconditions for genuine religious pluralism, the bans aim to assimilate the Muslim only by first erasing her. While the bans aim to change how persons experience religion, there are also efforts to use policy and law to more directly change how persons believe and learn religion. A frequent concern is that Muslims hold to beliefs that are incompatible with western liberal values. As such, effective assimilation will require reforming what Muslims think, that is, changing the nature of Islam itself. Ali Aslan Yildiz and Maykel Verkuyten observe that much of the debate about Islam in Europe focuses on the need to develop a “Euro-Islam” or “Europeanised Islam.”37 This Euro-Islam domesticates the faith by encouraging new patterns of theological thought adapted to European values. The problem is not necessarily Islam as such, but the form which Islam takes. In order for Muslims to integrate and to the effect that the practice of wearing the full-face veil often denoted the woman’s emancipation, self-assertion and participation in society.” The Court went on to conclude “that a State Party cannot invoke gender equality in order to ban a practice that is defended by women—such as the applicant—in the context of the exercise of the rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms.” This is a notable instance in which the Court gives particular deference to the narrated experience of Muslim women. See SAS v. France, App. No. 43835/11, §§82, 119 ECHR 2014. 36 On how secularization has shaped individual and institutional religious experience see Sandberg (2014). 37 Yildiz and Verkuyten (2012), p. 360.

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constructively participate in public life, they must develop a new faith that is properly Europeanized and above all liberalized. The project of theological reformation aims to encourage an Islam that can embrace what Samuel Huntington describes as the core “Western concepts” of “individualism, liberalism, constitutionalism, human rights, equality, liberty, the rule of law, democracy, free markets, the separation of church and state.”38 This requires, among other things, changing the substance of inherited belief. The question of Islam’s compatibility with Europe thus turns on the capacity of Islam to become something different. One way in which this project is advanced is by exerting control over how Islam is taught, studied, and experienced. Hendrik Vroom describes this in terms of “[facilitating] the free development of Islamic theology in Europe and the education of imams and muftis, the jurists who interpret religious law.”39 The aim is to transform Islam by ensuring that those who teach and interpret it are attentive to European culture and norms. One such instance is a German scheme to teach Islam in schools, which Germany’s Education Minister Annette Schavan defended on the grounds that it will “get Islam out of the backyards and make it more transparent.”40 Schavan also argued that German universities should have a role in guiding Muslims to develop “a theology that maintains the substance of their belief and translates it into a modern context. The universities can develop a historical-critical method for dealing with the Koran.”41 The aim, quite simply, is to prepare Imams “to deal with their religion from a scientific, and also critical, point of view.”42 Comparable developments have occurred in France, where private Muslim schools have opened with some even receiving state contracts. Does this represent a departure from laïcité in favor of a new French multiculturalism, as some have argued?43 Does it evidence a fracturing of secularism in order to open space for religious communities to express their identity in public? Perhaps this initiative does require complicating established understandings of law and religion in France, but we should hesitate to view it as somehow inaugurating a nascent commitment to fostering religious pluralism. In the end, the policy is consistent with laïque commitments in that it offers a mechanism to liberalize and control Islam by bringing it within the purview of the secular state. Although more subtle than the ban on head and face coverings, the force of law is likewise employed here to manipulate the relationship between persons and Islam. It is not a celebration of Islamic identity and particularity so much as an expression of suspicion.

38 Huntington

(1993), p. 40. (2010), p. 34. 40 “Germany’s education minister says full veil hampering integration,” BBC Monitoring Europe (July 26, 2010). 41 “German universities to train Muslim imams, teachers,” Reuters (October 14, 2010). 42 “Germany’s education minister says full veil hampering integration,” BBC Monitoring Europe (July 26, 2010). 43 Akan (2009), p. 238. 39 Vroom

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Debates over Islamic law have also unfolded in the shadow of Euro-Islam. Islamic law holds a particularly important symbolic role in the negotiation of Europe’s relationship to Islam. Most importantly, Islamic law is seen as composed of unchanging juridical norms derived from Divine authority. Muslims are obliged to follow rules for which there is no basis of external critique. As the European Court of Human Rights asserted in the case of Refah Partisi v. Turkey, the “sharia … faithfully reflects the dogmas and divine rules laid down by religion.” It is “stable and invariable” and affords no space for “pluralism…or the constant evolution of public freedoms.”44 According to this understanding of Sharia, Islamic law claims Muslims in a way that makes it impossible to be a full citizen in a liberal democratic order. It is not only that the substance of Islamic law is incompatible with human rights norms, but that Islamic law cuts off Muslims from more thoroughgoing participation in public life. Transforming Islam into a properly liberal and democratic faith requires, in some necessary sense, not only freeing the individual from unscientific and uncritical beliefs, but from the grip of law itself. Loyalty to law must give way to other loyalties. Such themes informed debate about religious legal pluralism that took place in the UK following Archbishop Rowan William’s lecture on “Civil and Religious Law in England.”45 The otherness of Sharia law, that is its very foreignness, makes it a problematic source of authority. Along these lines, one commentator has argued that “[t]he underlying problem is that sharia law reflects male-dominated Asian and Arabic cultures. It cannot therefore be accepted as a legally valid basis even for settling private disagreements in a country like ours, where our law embodies the equal legal status of everyone, regardless of race, gender or religion.”46 There continues to be extensive and often thoughtful debate about how the state should position itself in relation to Islamic law, especially private Sharia councils in which Islamic law is applied. While there have been proposals for banning or regulating Islamic tribunals, as well as proposals for giving greater recognition to religious law under certain circumstances, the debate evidences an overarching discomfort with granting too much legitimacy or space to religious law.47 This reflects a fear of what Islamic law represents. The position Williams advanced, in which offering qualified recognition to religious law helps sustain particular forms of communal identity, runs against the impulse to control Islam. Williams frames religious legal pluralism as a way to push back against a monistic secular order but, for many others, the specter of the Sharia fuels the need to strengthen secular oversight. Fidelity to Islamic law and fidelity to the secular law are framed as being in deep tension. Making Muslims into citizens requires rending them from the normative grip of the Sharia. In this 44 Refah Partisi (The Welfare Party) and Others v Turkey, App. Nos. 41340/98, 41342/98, 41343/98,

41344/98, §123 ECHR 2003. 45 Williams (2008), pp. 262–282. 46 Green (2009), p. 5. 47 “The independent review into the application of sharia law in England and Wales,” Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty (February 2018).

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way, closing off space for religious law is linked more generally with the project of promoting Euro-Islam. It is important to emphasize that the task of cultivating a Euro-Islam is not only imposed on Muslims from the outside. Leading Muslim thinkers have pursed similar work. As Bassam Tibi writes that, “To paraphrase Martin Luther King, I have a dream of a European Islam.” Tibi goes on to describe this Euro-Islam as a “secular European Islam.”48 There is, of course, nothing intrinsically problematic with thinking anew about the meaning of Islam. Traditions, including religious tradition, are living insofar as they respond to the particular questions and demands that arise from embeddedness in a time and place. Religious meaning and religious identity are always being shaped by the dynamics of history. In this instance, Europe presents propositions to which Islam must respond (just as Islam presents propositions to which Europe must respond). At the same, one might be troubled by the manner in which European law and policy are used to impose new forms of meaning onto Islam. The project of transforming Islam as a religious tradition on these terms undermines its capacity to sustain a way of being, grounded in the “traditions, rituals, texts, discourses, and collective memories” of the community.49 And this is precisely what such policies aim to do. They do not exclude the Muslim from public, at least not in a straightforward way. Yet by advocating for a faith that is secularized, individualized, and cut off from traditional sources of authority, Euro-Islam alters the experience of being Muslim as well as the terms on which one can be a faithful Muslim citizen. Euro-Islam aims to bring forth a faith that ceases in some sense to be authoritative. It accomplishes this by creating cleavages between the individual and the community. With the weakening authority of tradition, individuals are freed to be unencumbered selves. In Grace Davie’s oft-referenced phrase, the experience of faith in modernity can be described in terms of “believing without belonging.”50 That is, religious belief is increasingly divorced from belonging to a community of believers. Part of the experience of religion in modern secular society is that it becomes individualized, with the loss of authoritative traditions and institutions creating space within which persons construct their own patterns of belief.51 Euro-Islam envisions an Islam that likewise is able to separate the individual and the community, believing and belonging. It is often charged that Islam has not yet developed a full “theology of the individual.”52 This reflects a simplistic view of Islamic thought but becomes explicable once one recognizes that the underlying concern is political rather than theological. The concern is not that Islam lacks an adequate account of individual selfhood but one in which the self is liberal and free. Changing theological experiences of the self is thus designed to strengthen the political allegiance of Muslim communities. 48 Tibi

(2010), p. 158. (2013), p. 1. 50 Davie (1990), pp. 455–469. 51 It should be noted that the individualization process is not merely something imposed on Islam but is also happening natively within the faith. See Kaya (2010), p. 51. 52 LaFranchi (1992). 49 Cesari

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The state can paradoxically control Muslims more easily once they understand and experience themselves as free individuals. The use of law to resist Islam such as through bans on clothing, and the use of law to transform Islam through promoting an individualized faith, share a common impulse to undermine Islam’s tradition-forming capacity. Both move to erase Islam as a formative authority within European life by changing the way Muslims express and experience faith. Both move to further integration by placing Islam under the control of the liberal secular order. Driving this are assumptions about the terms on which Islam must be engaged and the terms on which integration must be achieved. Under the premise of emancipation—emancipating women from oppressive religion, emancipating public space and institutions from the thick presence of religion, and emancipating Islam from its own false understandings—seeks to fundamentally restructure the place and meaning of Islam. At base, this response represents a refusal to acknowledge Islam and engage in dialogue. Muslims are to be refashioned and disappeared so that a genuine encounter becomes unnecessary. Yet, by refusing to engage Islam, Europe has also refused to engage itself. The ongoing challenge of Islam has encouraged the mythology of a strong and secular Europe that cannot in the end offer an effective basis for the peaceable integration of Muslim communities.

3 Islam and the Problem of Europe John Finnis has proposed that it might be appropriate for “citizens of countries whose Muslim population is increasing very rapidly by immigration and a relatively high birth rate” to “ask themselves whether it is prudent, or just to the children and grandchildren of everyone in their country, to permit any further migratory increase in that population, or even to accept the presence of immigrant, non-citizen Muslims without deliberating seriously about a possible reversal—humane and financially compensated for and incentivized—of the inflow.”53 Removing Muslims offers one way of dealing with—or, better yet, avoiding—the problem of Islam, but it is an unhelpful and unrealistic way to address Europe’s current failures. It is also undesirable. Islam is going to remain part of the European social fabric and, based on demographic projections, will have an ever larger imprint. The challenge is not to devise ways of preserving “Europe” by removing the alien within but to find ways of constructively and effectively realizing a genuine encounter across difference. If peace is possible, on what terms can it be realized? How can Muslims be integrated? On what terms can and should Islam be liberalized? Much of the focus has been on managing the problem of Islam, an approach that encourages thinking about law and policy as tools to resist and transform Islam. Yet by focusing on perceived defects of the Muslim other, inadequate consideration is given to interrogating assumptions about Europe. A conception of Europe is defined as normative, with governing commitments to secular human rights the givens to which Islam must 53 Finnis

(2009), pp. 439–440.

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adapt. Addressing the challenge of Islam has, if anything, further concretized belief that there exist stable European values. The turn to law to challenge and transform the Muslim thus arises from a need to defend existing norms against a transformation occurring within Europe. The problem with framing the matter in these terms is that it ignores ways in which Europe also presents obstacles to the realization of peace. Even more so, it allows Europe to remain willfully blind to its own condition and culture, as if the engagement with Islam should only be unidirectional. In the end, the impulse to erase the Muslim other, and to strip the individual from the grip of religion and tradition, arises not from difficulty “accepting and adjusting” to a new sociological reality, as if Europe knows what it wishes to preserve.54 Rather, Europe aims to erase the Muslim because Islam serves as a vivid, often embodied, reminder of that which is already absent. In other words, the refusal to encounter Islam as a human reality has as much to do with Europe’s lack of self-confidence as it does the threat Islam poses to European values. The crisis in Europe comes as much from within as without. The problem of Islam reveals the problem of Europe. While Islam is often presented as the cause of crisis, it is more a mirror that reveals what Europe has become. In this respect, Islam does not threaten European values so much as show the void at the heat of Europe’s cultural, political, and juridical orders. In particular, Islam discloses the hollowness in a Europe that is increasingly unwilling and unable to embody a determined sense of collective meaning. Thus without minimizing the challenges of addressing the Muslim minority, this issue is in important respects subsidiary to a different challenge that has little to do with Islam as such. This other more fundamental challenge is to understand the implications of what Pierre Manent terms Europe’s “post-political” environment. For Manent, the post-political is characterized by Europe’s lack of “power to gather us toward the common action we all feel necessary.” There are many explanations for Europe’s “diminished capacity,” as Manent puts it, including the decline of the nation state and shared sources of collective commitment.55 However, under these conditions, Islam will continue to pose a challenge that cannot easily be resolved. Unless Europe better knows itself, the engagement with Islam will continue to be defined by unproductive tension. Islam has generated conflicting responses within European political life. On one hand, the perceived threat of Islam has provoked a turn to universal norms as the ground of Europe. Secular human rights and Christian civilizational values operate as countervailing forces that can manage and circumscribe the meaning-making capacity of Islam. Islam represents a strong and monolithic tradition which must be met with an equally totalizing response.56 Against Islam, Europe constructs the illusion of possessing its own determined sense of civilizational order. 54 Khan

(2007), p. 19. (2016). 56 Du Plessis (2018), p. 516, notes that, “Many religious adherents will also be seen as radical since the beliefs that they hold are usually intrinsically connected to their identity and human dignity, and are fervently maintained.” 55 Manent

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At the same time, the European response to Islam reveals the underlying vacuity of these countervailing values. The very fact that Islam is received as threat underscores the extent to which Europe has abandoned claims to a strong and particularistic identity at the level of culture and state. What is the Europeanness that Islam purports to disrupt? What are the commitments by which Europe determines whether and on what terms Muslims should be integrated into collective life? The anxiety arises because Islam, in its particularity, embodies a tradition that stands for something. However simplistic and caricatured an account of Islam might undergird this anxiety, Islam nevertheless presents a vision of the self and society that Europe itself no longer sustains. Islam thus threatens to fill the very void Europe that has created through its own movement away from Christian roots. Manufactured appeals to human rights and Christian culture are not genuine appeals to universal systems of meaning but manufactured attempts to speak something out of the void. All that finally remains, however, is a procedure-based liberalism that encounters Islam not culture to culture but law to individual. The European response to Islam has taken the form of neither acceptance nor rejection. Elite liberal opinion has difficulty being outrightly critical of Islam, for this would betray confidence in the very idea of Europe as a political community organized on the ideals of openness, pluralism, secularism, and human rights. It would intimate that Europe maintains a set of constitutive beliefs by which to establish terms for critically encountering Islam. As Manent pointedly puts the matter, Islam “must be accepted without either reservation or question in order to verify that Europe is indeed empty of any national or religious substance that might get in the way of human universality.”57 At the same time, Islam cannot simply be embraced on its own terms because of the ways in which the tradition exists at points of tension with the these same liberal ideals. Thus rather than engaging Islam directly as a living tradition, European law has sought to disarm Islam by stripping it of meaning, isolating individuals from the community, and transforming the nature of practice and belief. This is neither hospitality nor hostility, embrace nor exclusion, but an effort to pull Islam into the same hollowness that defines the European condition. It aims to change Islam from a position of weakness into a position of weakness. By not knowing itself, all that Europe can muster is a push to strip Islam of its particularity, and to push Muslims towards adoption of a more anodyne modern faith. Europe is threatened by strong religion that projects meaning and certainty. It is threatened by groups and communities, which are the transmitters of meaning across time. All law can finally tolerate is a detraditionalized and de-particularized self that is severed from the weight of such influences. Considering the issue from this perspective reveals religion to be a subsidiary issue in Europe’s negotiation with Islam. That is not to minimize the extent to which this is a religious issue. The legal debate is properly framed in terms of religious accommodation and religious freedom. At the same time, it is inapposite to view this on Huntingtonian terms as a clash between Christian and Islamic civilizations,

57 Manent

(2016).

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as much of the political discourse often does.58 Rather than viewing the conflict over Islam as a clash between religiously-based civilizational forms, it is better understood as reflecting tension within Europe over what defines Europe. Reframing debate thusly alters our understanding of what is most fundamentally at issue and might, indeed, provide opportunity for identifying new modes of potential resolution. The most basic consideration is not Islam’s compatibility with European values, but whether Europe has the cultural resources to meaningfully accommodate Islam. Religion is an important part of such an assessment, but not as the central dynamic in a civilizational clash. The issue is not whether religion is an obstacle to peace because its feeds narratives of civilizational decline. What demands consideration is whether, in the absence of religion as a cultural denominator, Europe retains the possibility to receive the religious other. Along these lines, Europe’s troubled engagement with Islam raises the issue of whether a secular order can truly receive the stranger and whether a human rightsbased liberalism can, under prevailing conditions, achieve an authentic and sustainable peace amidst difference. If anything, Europe’s legal wrestling with Islam reveals less the promise than the potential limits of appeals to human rights. Europe presents itself as an open society committed to promoting an account of religious freedom which, in the noted phrasing of the European Court of Human Rights, is part of the “the pluralism indissociable from a democratic society.”59 Neutral and universal human rights are commonly framed as the most effective framework to advance such a pluralism. The idea that religion and violence are inextricably linked remains part of what William Cavanaugh calls the “conventional wisdom of Western societies” and undergirds the belief that liberal politics (and perhaps also liberal faith) are necessary for political peace.60 However, the inability of Europe to address Islam on these terms reveals the contradictions and blind spots at the heart of the human rights project. The revival of strong religion has upended confidence in the proposition that the modern state can manage religion and religious difference through the mechanisms of secular human rights. To be clear, this is not a challenge unique to Europe nor to Islam.61 Islam’s role has been to provoke a crisis that has long been pregnant but which nevertheless remained somewhat occluded. Could a different form of liberal human rights sustain a genuine religious pluralism? Pessimistic observers might maintain that the prospects for achieving such a liberalism are unlikely under 58 One problem concerns the extent to which it is coherent to speak of a clash of civilizations along religious lines when, as Bernard Lewis (2003), p. 14, notes, many majority Muslim countries are “still profoundly Muslim, in a way and in a sense that most Christian countries are no longer Christian”?. Huntington might respond that civilizations, as he defines them, are religious even when secularized. See Roy (2007), p. 59. 59 Kokkinakis v. Greece, App. No. 14307/88, 260 ECHR §31 (1993). Even though the Court frames religious freedom on these terms, it has consistently failed to actualize religious freedom in cases involving Muslims. See Calo (2010), pp. 261–280. 60 Cavanaugh (2009), p. 3. 61 For an analysis of the interplay between Islam and the secular state outside the west see Agrama (2012).

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regnant cultural conditions.62 Liberalism itself is not up to the task. Yet, the American experience with Muslim immigrants raises interesting questions about how different liberal legal orders negotiate integration and religious difference. While there are any number of explanations for why the United States has more successfully integrated Muslims communities, the disposition of American law towards religion is an one factor worthy of further comparative examination. If existing norms and practices have proven inadequate, then what is the alternative? It is in light of this question that we approach theologian John Milbank’s provocative albeit cryptic argument that “only a hegemonically Christian outlook, and not a secular one, can accord to Islam respect as Islam.” Milbank adds that “a renewed Christendom is, I believe, far better for Islam than a secular polity (which is likely in the long term to deny most of its crucial group rights.”63 This statement was made in response to Archbishop of Canterbury Rowan Williams’s lecture on Sharia law and religious law, in which the Archbishop defended recognizing religious law within the secular legal regime. Milbank’s broad point seems to be that the multiculturalist project Williams envisions, if indeed this represents a proper reading of what Williams has endorsed, is ultimately inadequate because the other can only be accepted as a collective other from a place of cultural self-understanding. More specifically, the Muslim other can only be respected as a Muslim from within a theological framework capable of according respect to religion. Particularity and pluralism are not antitheses but mutually enhancing dynamics. Pluralism pursued from a position of nowhere will ironically generate social forces that seek peace through the destruction of difference. Others have made similar claims. Pierre Manent, for instance, has argued that Islam will never find acceptance “in a vacuum” but “only within a nation that has the spiritual and intellectual resources to be generous without being complacent.” Phillip Blond and Adrian Pabst have argued that “the real reason for Europe’s failure to integrate Islam is the European commitment to secularism” and that “what other faiths require for their proper recognition is the recovery of the indigenous European religious tradition—Christianity.”64 These claims strike a different tone than the appeals to a revivified Christian society discussed earlier. One emerges from a position of strength and the other from weakness, one appeals to Christianity as a source of openness and the other opposition. There is resistance to all forms of this discourse, as the very language of Christian society strikes many as not only archaic but by definition aggressively exclusionary. Joseph Weiler has resisted such a characterization, arguing that a Christian Europe “does not mean a Europe for Christians.”65 For Weiler, attentiveness to the Christian past makes it possible to have an open present. It is unlikely that the debate will become anything more than 62 Along

these lines, Deneen (2018), p. 18, has recently argued that, “Liberalism has ruthlessly drawn down a reservoir of both material and moral resources that it cannot replenish.” 63 Milbank (2010), p. 138. 64 Blond and Pabst (2008). 65 “Christianity is Not a Private Affair,” Interview with Joseph Weiler, Traces Magazine (July 2003), available at http://archivio.traces-cl.com/july03/christian.html. Weiler has been criticized for failing “to provide any theoretical justification of his conception of pluralistic tolerance and of his criticism

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a site of theoretical reflection given the overall state of European Christianity. However, this flurry of attention to Christian identity signals an emerging willingness to link Europe’s failure in dealing with Islam to defects in Europe’s cultural life.

4 Conclusion The secular logic that informs institutions like the European Court of Human Rights has not brought peace. If anything, it has fomented tension between European principles and Muslim practices. The experience of Europe’s dealing with Islam illustrates well Tariq Modood’s claims that “secularism pure and simple…appears to be an obstacle to pluralistic integration and equality.”66 The integration which law seeks is an integration ultimately based not on pluralism but sameness. This might generate a certain kind of peace, but it is not a peace that respects difference. It is a peace that comes at a the price of violence. Muslims are permitted to be citizens only to the extent they become something other than themselves. That Islam has been targeted in these ways reveals the extent to which it challenges the atomizing and detraditionalizing impulses of Europe’s secular order. Ongoing difficulties with realizing religious diversity in law for Muslims reveals the need to rethink the sources of tension and the potential terms of resolution. There is reason for concern and pessimism. It might be the case that, under present conditions, Europe will continue to wrestle with Islam in frustratingly indeterminate ways. Islam will remain a resident alien, neither accepted nor rejected, but manipulated and controlled. Moving towards a genuine religious peace will require new approaches, new understandings, and new resources. It must begin with a turning inward that allows seeing Islam as a symptom that discloses a deeper set of challenges confronting Europe.

References Agama HA (2012) Questioning secularism: Islam, sovereignty and the rule of law in modern Egypt. University of Chicago Press, Chicago Akan M (2009) Laïcité and multiculturalism: the Stasi report in context. Br J Sociol 60(2):237–256 Blond P, Pabst A (2008) Integrating Islam into the West. The New York Times (4 Nov) Caldwell C (2009) Reflections on the revolution in Europe: immigration, Islam, and the West. Doubleday, New York Calo ZR (2010) Pluralism, secularism, and the European Court of Human Rights. J Law Relig 26:261–280 Calo ZR (2018) Law, religion, and the detraditionalization of Europe. In: Giles J, Pin A, Ravitch F (eds) Law, religion, and tradition. Springer, Cham, Switzerland, pp 135–151 of secularism as the proper principle to determine the relationships between state and churches.” Men´endez (2004), p. 12. 66 Modood (2010), p. 35.

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Cavanaugh WT (2009) The myth of religious violence. Oxford University Press, New York Cesari J (2005) Islam, secularism, and multiculturalism. In: McLoughlin S, Cesari J (eds) European Muslims and the secular state. Routledge, London, pp 53–67 Cesari J (2013) Why the West fears Islam: an exploration of Muslims in liberal democracies. Palgrave Macmillan, New York Davie G (1990) Believing without belonging: is this the future of religion in Britain. Soc Compass 37(4):455–469 Deneen P (2018) Why liberalism failed. Yale University Press, New Haven Douthat R (2005) A Muslim Europe? Atlantic Mon 295(1):58–59 Du Plessis G (2018) The European struggle with religious diversity: Osmanoglu and Kocabas v. Switzerland. J Church State 60(3):503–525 Ferri M (2017) The freedom to wear religious clothing in the case law of the European Court of Human Rights: an appraisal in the light of states’ positive obligations. Relig State Soc 45(3– 4):186–202 Figel J (2017) Culture, intercultural dialogue and the role of religion. Eur View 6(1):65–70 Finns J (2009) Endorsing discrimination between faiths: a case of extreme speech? In: Hare I, Weinsten J (eds) Extreme speech and democracy. Oxford University Press, Oxford/New York, pp 430–441 Green DC (2009) Editor’s introduction. In: Macon D (ed) Sharia law or ‘one law for all? Civitas, London Hellyer HA (2009) Muslims of Europe: the “other” Europeans. Edinburgh University Press, Edinburgh Hourani A (1989) Islam in European thought. The Tanner Lectures on Human Values, delivered at Cambridge University, Jan/Feb 1989. Available at https://tannerlectures.utah.edu/_documents/ a-to-z/h/hourani90.pdf Huntington SP (1993) The clash of civilizations? Foreign Aff (Summer):22–49 Huntington SP (1997) The clash of civilizations and the remaking of world order. Touchstone, New York Kaya A (2010) Individualization and Institutionalization of Islam in Europe in the age of securitization. Insight Turkey 12(1):47–63 Khan MAM (2007) Islam and the New Europe: the remaking of a civilization. Glob Dialogue 9(3/4) LaFranchi H (1992) Reconciling Islam and the West. Christ Sci Monit (Apr 1) Laitin D (2010) Rational Islamophobia in Europe. Eur J Sociol 51(3):429–447 Lewis B (2003) The crisis of Islam: holy war and unholy terror. Phoenix, London MacEoin D (2009) Sharia law or “one law for all”?. Civitas, London Malik M (2001) Islam in Europe: quest for a paradigm. Middle East Policy 8(2):100–115 Manent P (2016) Repurposing Europe. First Things (April). Available at https://www.firstthings. com/article/2016/04/repurposing-europe McCrea R (2007) Limitations on religion in a liberal democratic polity: Christianity and Islam in the public order of the European Union. LSE law, society and economy working papers 18/2007. Available at http://www.lse.ac.uk/law/working-paper-series/2007-08/WPS182007McCrea.pdf12 Menéndez AJ (2004) A pious Europe? Why Europe should not define itself as Christian. Centre for Europe studies, University of Oslo, working paper no. 10/04 (July 2004). Available at https://www.sv.uio.no/arena/english/research/publications/arena-working-papers/2001-2010/ 2004/wp04_10.pdf Milbank J (2010) Shari’a and the true basis of group rights: Islam, the West, and liberalism. In: Ahdar R, Aroney N (eds) Shari’a in the West. Oxford University Press, Oxford, pp 135–157 Modood T (2010) Multicultural citizenship and the Shari’a controversy in Britain. In: Ahdar R, Aroney N (eds) Shari’a in the West. Oxford University Press, Oxford, pp 33–42 Ozdemir C (2004) Europe’s awkward embrace. Foreign Policy (Jan/Feb) Ramadan T (2004) Western Muslims and the future of Islam. Oxford University Press, Oxford

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Humanity as the Ground for Universal Human Rights in Islamic Law Recep Sentürk ¸

Abstract A legal maxim in Islamic law states that “The right to inviolability (‘is.ma) is due for humanity (¯adamiyya)”. The right to inviolability includes inviolability of the right to (1) life, (2) property, (3) religion, (4) mind (expression), (5) family and progeny, as well as (6) honor and dignity. Universalist Muslim jurists share this view from different schools of Islamic law. In particular, all jurists from the H.anaf¯ı school subscribe to this view. From this perspective being human is sufficient to have human rights regardless of innate, inherited and gained attributes such as sex, religion, race and nationality. This article explores the thought of Muslim jurists who took humanity as the sufficient ground for human rights and the arguments they used to justify it by deriving from classical Islamic law books. It will also provide a historical survey about how this view was implemented in Islamic history from India to the Balkans under Islamic law. Following it will discuss the reforms in Islamic law during the late Ottoman period (1839–1918). It will conclude by proposing how the present Muslim legal and political discourse can be re-connected to this universalist human rights tradition to overcome the challenges for human rights in the Muslim world today.

1 Introduction This article explores the thought of Muslim jurists who took humanity as the ground ¯ for human rights and the arguments they used to justify it. Adamiyya and ‘is.ma are the two key concepts in classical Islamic law for human rights discussions. The former (¯adamiyya) means “humanity” while the latter (‘is.ma) means “inviolability”. The humanist or universalist Muslim jurists state that “inviolability is due for humanity” (al-‘is.ma bi-l-¯adamiyya). But why? Below, I will address two interrelated questions: What is a human being? Why should he have the right to inviolability? The first question is about Islamic theological anthropology while the second is about Islamic R. Sentürk ¸ (B) Ibn Haldun University, Istanbul, Turkey e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_8

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human rights law. I argue that Islamic anthropology prepares the conceptual ground for the universal human dignity and inviolability. I will demonstrate this by driving from the Qur’¯an, the sayings of the Prophet (h.ad¯ıth; pl. ah.a¯ d¯ıth) and the theological classics of Islam. I will then talk about how Islamic human rights law served as the basis for diversity management system in Islamic history, in particular in India during the Mughal period and the Ottoman Empire. I will conclude by drawing attention to the challenges in the present Muslim world before human rights and what needs to be done to overcome them. Ab¯u H.an¯ıfa (d. 767), one of the most prominent jurists in Islam and the founder of H.anaf¯ı school of law, defined law as the knowledge of the self about his rights and duties.1 But what is a human being and why should he be entitled to rights and duties? Ab¯u H.an¯ıfa does not bother with defining the self. His usage of the self in the definition of law reflects a jurist’s approach to the self because jurists take the concept of human being or self as given without discussing it. There is a similarity in the way jurists as well as majority of the social scientists approach the self in Islam and the modern world: they simply avoid facing this difficult question and take it as given but build assumptions on it. The jurists leave the study of self to other disciplines, such as theology and philosophy, which Ab¯u H.an¯ıfa called the “greater law” (al-fiqh al-akbar).2 From this perspective, the self is the subject of the “greater law”,3 but the study of its rights and duties is the subject of law. Besides discipline of the “greater law”, there is another branch of Islamic law, the “inner law” (al-fiqh al-wijd¯ani or fiqh al-b¯atin), which exclusively focuses on human ontology, the self and the spirituality.4 It is commonly known as tas.awwuf or sufism which focuses on the inner side of human existence and the internal dimensions of human actions. Those who specialize in this discipline and practice it are called sufis.

1 “Al-fiqh ma‘rifat al-nafs m¯ ¯ isa¯ r¯ı (2010), pp. 68–69. For a general a lah¯a wa m¯a ‘alayh¯a”, see al-Aqh

. . introduction to Islamic law, see Hallaq (2009). 2 Literally translated as the “greatest science”. For a reasonable, albeit slightly outdated, translation of Ab¯u H.an¯ıfa’s treatise Al-fiqh al-akbar, see Wensinck (1932), pp. 188–197. For a more recent translation, including extensive commentary, see Ibn Yusuf (2007). 3 The Greater Law (al-fiqh al-akbar) evolved in later centuries into Islamic philosophical theology (kal¯am). Some Muslim theologians and philosophers share the view that a human being is a thinking animal (al-h.ayaw¯an al-n¯a.tiq) which may be traced back to Greek philosophy. For more on the influence on Greek thought on Arabic philosophy and theology see Gutas’s seminal study (1998). 4 In his book The Revival of the Religious Sciences (Ihy¯ a’ ‘ul¯um al-d¯ın), al-Ghaz¯al¯ı deals with the human self in great detail. For al-Ghaz¯al¯ı, there are words that are interchangeably used to denote the true self of a human being: nafs, ‘aql, qalb and r¯uh. These are signifiers which signify the same subject: the knowing and willing subject; the one who is addressed, awarded and punished by God. These words are also used for other meanings to denote other objects. For instance, nafs is used for the source of animal desires; ‘aql is used for knowledge and the faculty of knowledge in the heart; r¯uh is used for life. The part of the Ihy¯a’ that deals with these themes in detail is translated into English by Skellie (Al-Ghazzali 2010).

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Fiqh Islamic Law

Al-Fiqh al-Akbar Theology and Philosophy

Usūl al-Fiqh Methodology and Hermeneutics

Furū′ al-Fiqh Practical Law

Fiqh al-Bātin (law of internal life) Sufism

Fig. 1 Four branches of Fiqh (Islamic law)

For sufis, the knowledge of the self is a primary goal in itself. A very rich and detailed discussion exists in the sufi literature5 which is beyond the scope of this paper.6 There is yet another branch of Islamic law, the methodology of law (us.u¯ l al-fiqh), which focuses on the methodological and philosophical issues of law. The methodology of law literature conceptualizes human beings as the one who is addressed (mukh¯atab) by God and the one who is held responsible (mukallaf ) by God. Below I will demonstrate how some of the scholars of Islamic law addressed these issues and linked it with the issue of human rights (Fig. 1). Studying the self comes with its epistemological and methodological difficulties and challenges in particular regarding the subject and object relationship. This is because in the effort of a human being to know himself or herself, both the object and the subject are one. Put more plainly, the knowing and the known are the same. This is inescapable because human beings are reflexive creatures as they always think about themselves. For Muslims, knowledge of the self is mandatory for every Muslim. The Qur’¯an states that lack of the knowledge of self is a punishment from God to those who forget God: “Do not become like those who forgot their Lord and the Lord made them forget their selves.” (The Qur’¯an 59:19). One can see that both the Qur’¯an and Prophet Muhammad makes a direct connection between knowledge of the self and the knowledge of God. They mutually require each other. The same way, Muslim jurists argued for centuries, as I will demonstrate below, that the very concept of human being in Islam require human rights. In Islamic law, majority of the jurists agree that al-‘is.ma bi-l-¯adamiyya. Literally translated it means “right to inviolability comes with humanity”. I translate this into plane English as follows: I am therefore I have rights. From this perspective, being human constitutes 5 The sufi approach to theological anthropology emanates from a practical concern: the purification

of the soul (tazkiyat al-nafs). They have a unique way for the knowledge of the self and purifying it which may be called “spiritual anthropology”. It incorporates the traditionalist epistemology based on divine revelation used by muh.addith¯un and the rational epistemology used by the fuqah¯a, mutakallim¯un and philosophers but goes beyond it to reach illumination in the heart (kashf ) or opening the eye of the heart through pious practices. 6 For an excellent introduction to sufism see Karamustafa (2007). On specialized sufi literature see particularly chapter four, pp. 83–113.

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the sufficient ground for human rights regardless of the innate, inherited and acquired qualities one may have. This legal maxim7 is a proposition with two key concepts: al-¯adamiyya and al‘is.ma. Because of my interest in human rights I have been focusing on the concept of ‘is.ma and its legal implications in Islamic law according to various schools of law as well as its implementations throughout Muslim history from India to Andalusia. This was similar to the other scholars of human rights who avoid answering the question of what is a human being. This is a strategic decision they make because they are aware that when they try to address this question they face a great diversity of conflicting answers deriving from divergent secular opinions in philosophy or theological anthropology emanating from different denominations and religions. Yet strikingly all agree that human beings should be inviolable merely because they are human beings. That means all agree on the ethical and legal implication of being human but they disagree on what is it to be human. In other words, there is an almost universal consensus that being human is a legitimate ground for enjoying human rights despite the fact that each school of philosophy or theology attribute different meaning to being human. This strategy works very well in the field of human rights because it can successfully bring a Christian, Jew and Muslim who follow Abrahamic religions together with a Buddhist and Hindu as well as secular humanists. These groups agree on the legal maxim that humanity serves as a ground for human rights despite the fact that they all have different opinions about being human. The authors of the UN Human Rights Declaration have also adopted this strategy.8 Later declarations by the EU followed the same strategy. It can also be observed in the alternative declarations from Africa, Latin America, Far East, and the Muslim world.9 Similarly, there has been another contest among lawmakers about the scope of the concept of a human being. One can say that in the West the scope of the concept of a human being gradually evolved until it became an all-inclusive concept. In Islamic legal discourse, a¯ damiyya has been used as an inclusive concept to indicate all human beings from the very beginning of Islamic law. This is strikingly different than the expanding concept of human in the modern western legal discourse. Prior to the UDHR, all human rights documents and declarations in the West attributed humanity only to a segment of human beings, usually excluding lower classes, women, people in the colonies, and colored people. This is because the privileged classes and groups denied the under-privileged groups and classes’ legal personality. It is only in the UDHR, the concept of human meant inclusively all human beings as the UDHR granted legal personality as a human right to all human beings.

7 On

legal maxims (al-qaw¯a’id al-kulliyya), see Kızılkaya (2018). how the UDHR was drafted, see Morsink (1999). 9 See my forthcoming book, Alternative Human Rights Declarations. 8 On

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2 Grounding Human Rights: Legal Reasoning in Classical Islamic Jurisprudence In this section, I will survey across centuries the ideas of the major Muslim jurists who made humanity the ground for the human rights in Islamic law. This will also help me to demonstrate the justifications they used for it. The attempts to justify human rights in Islam, I will demonstrate, followed the methodology outlined by the methodology of Islamic law (us.u¯ l al-fiqh). The methodology of Islamic law uses both rational evidence and the evidence derived from the Qur’¯an and the sayings and practice of Prophet Muhammad (d. 632)10 which are called h.ad¯ıth. There are four schools of law in Islam: H.anaf¯ı, Sh¯afi‘¯ı, M¯alik¯ı and H.anbal¯ı.11 There are also Shi’ite schools of law. However, I will focus below only on the H.anaf¯ı view because it clearly subscribes to universal human rights. In my earlier research, I comparatively analyzed the views of Islamic schools of law on human rights.12 Muslim jurists from the H.anaf¯ı school unanimously accepted that “rights are due for humanity”. This doctrine is attributed to a great jurist from the eight century, namely Ab¯u H.an¯ıfa (699–767),13 the founder of the H.anaf¯ı school of law. According to this doctrine, all human beings are entitled to the right to inviolability for being human which includes the right to the life, property, religion, mind, family and progeny, and honor. Some of the Muslim jurists from later generations who shared this universalist vision of Ab¯u H.an¯ıfa went even further and argued that protection of these rights is the very objective of Islamic law (maq¯as.id al-shar¯ı‘a).14 For them, the purpose of Islamic law is to protect human rights and the legitimacy of a legal and political system depends on its ability to produce this outcome. Ab¯u H.an¯ıfa’s universalist vision on human rights survived through the jurists from the H.anaf¯ı school of law who subscribed to this view until the collapse of the Ottoman Empire in 1920.15 Among the most prominent ones are Ab¯u Zayd alDab¯us¯ı (d. 1039), Ibn M¯aza (d. 1141), Ab¯u Bakr al-Sarakhs¯ı (d. 1090), ‘Al¯a’ al-D¯ın al-K¯as¯an¯ı (d. 1191), Burh¯an al-D¯ın al-Margh¯ın¯an¯ı (d. 1197), Abdulaziz al-Bukh¯ari ¯ ın (d. (d. 1330), Kam¯al al-D¯ın ibn al-Hum¯am (d. 1457), Muh.ammad Am¯ın ibn ‘Abid¯ 1836), Abd al-Ghan¯ı al-Mayd¯an¯ı (d. 1881).16 Below I will survey their works in chronological order by direct reference to their works.

10 On

the life of Prophet Muhammad, see Lings (1983). H.add¯ad (2007). 12 For a comparative analysis of the views of Muslim jurists on human rights, see Sentürk ¸ (2013), pp. 290–314. Also see Sentürk ¸ (2002), pp. 39-69. 13 Ab¯ u H.an¯ıfa (Num¯an ibn Th¯abit ibn Z¯ut.a¯ ibn Marzub¯an) lived in Iraq, the city of Kufah. His students recorded his views to preserve as books. See Uzunpostalcı (1994), pp. 131–138. 14 For more on maq¯ as.id al-shar¯ı’ah, see Kamali (2008), particularly pp. 123–140. 15 See Sentürk ¸ (2013), pp. 290–314. 16 For biographical notes on these scholars one can consult the TDV Islâm ˙ Ansiklopedisi published between 1988 and 2013. 11 See

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Ab¯u Zayd al-Dab¯us¯ı (d. 1039) from the eleventh century argued that all human beings are created or born with human rights such as freedom and legal personality among others: A child of Adam (human being) is created only and only with this covenant with God and the right to legal personality (dhimma); it is impossible to think that he could have been created otherwise. A human being is created only and only with a capability to be accorded with legal/public rights (huq¯uq al-shar‘); it is impossible to think that he could have been created otherwise. Likewise, a human being is created free and with his rights; it is impossible to think that he could have been created otherwise. The reason why these honoring gifts (kar¯am¯at) and legal personality (dhimma) are given to a human being is because he is responsible to fulfill the “rights of God” (huq¯uq Allah).17

According to Dab¯us¯ı, God’s rights on people (to be worshipped and obeyed) cannot be fulfilled unless human beings are granted human rights in particular freedom and legal personality. Freedom is a prerequisite for worship to God because imposed, enforced or predetermined actions would not count as worship. Because human beings are created to worship God out of their free will, it would be impossible to think that human beings are created without freedom. Likewise, because human beings are responsible towards God in terms of following His will and applying His commands, it would be impossible to imagine that they do not have legal personality which is a prerequisite to have rights and responsibilities. Therefore, according to Dab¯usi, human rights are a must for God’s plan to be realized in creating human beings. Without human rights, human existence would be meaningless. Following jurists like Ibn M¯aza, in Islamic law human rights are extended to after death. This is observable even in the Cairo Declaration for Human Rights in 1980 which states in article four that “Every human being is entitled to human sanctity and the protections of one’s good name and honour during one’s life and death” and “The state and the society shall protect one’s body and burial place from desecration”.18 Ab¯u Bakr al-Sarakhs¯ı (d. 1090), another well-known jurist from the eleventh century argued that every human being is born with three fundamental rights: inviolability, freedom, and property. It is striking to see the concept of born rights in Sarakhs¯ı who lived during the eleventh century. Upon creating human beings, God graciously bestowed upon them intelligence and the capability to carry responsibilities and rights (i.e. dhimmah or legal personality). This was to make them ready for duties and rights determined by God. Then He granted them the right to inviolability, freedom and property to let them continue their lives in such a way that they can perform the duties they have shouldered. Then these rights to carry responsibility and enjoy rights (dhimma), freedom and property exist with a human being when he is born. The insane/child and the sane/adult are the same concerning these rights. This is how the proper person-hood is given to him when he is born for God to charge him with the rights and duties when he is born. In this regard, the insane/child and sane/adult are equal.19 17 Al-Dab¯ us¯ı (2001),

p. 417. Organisation of Islamic Cooperation (OIC), Cairo Declaration on Human Rights in Islam (1990), accessible through the University of Minnesota Human Rights Library (http://hrlibrary.umn. edu/instree/cairodeclaration.html, last accessed August 19, 2018). 19 See al-Sarakhs¯ı (1984), pp. 333–334. The Arabic text reads: “Li-anna All¯ ah ta‘¯al¯a lamm¯a khalaqa al-ins¯an li-haml am¯anatihi akramahu bi-l-‘aql wa-l-dhimma li-yak¯una bih¯a ahlan li-wuj¯ub 18 See

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According to Sarakhs¯ı, all human beings must have three rights: inviolability, freedom and property. Otherwise it would be impossible for them to perform the duties God assigned them. God created human beings for a purpose and equipped them with the necessary skills such as intelligence and the rights such as inviolability, freedom and property so that they can achieve this purpose. Sarakhs¯ı makes it clear that there is no difference between human beings regarding these rights, even the children and the insane people have these rights because they are also human beings. Sarakhs¯ı highlights that human rights begin by birth and no human imperfection or disability may be used to usurp them. Sarakhs¯ı introduced the concept of “born rights” in his writings when he said that “Then these rights to carry responsibility and enjoy rights (dhimma), freedom and property exist with a human being when he is born.” This may be considered one of the earliest if not the earliest emergence of the clearly defined and documented concept of born rights. Islamic law goes even further and considers the embryo and the small children also an inviolable human being.20 ‘Al¯a’ al-D¯ın al-K¯as¯an¯ı (d. 1191), a well-known H.anaf¯ı jurist, argues that rights are due either for their own sake or for the sake of being a means for other desired outcomes. For him the inviolability of a human being is due for its own sake (h.urma li-‘aynihi21 ). However, he argues that inviolability of property is due for the sake of serving to the inviolability of human life. Therefore, we can conclude that according to K¯as¯an¯ı, the right to property is justified because it is needed by the right to life (h.urma li-ghayrihi). From this perspective, no external justification for human inviolability is needed because it is good in itself. However, external justification is needed to justify the right to property as it is needed for the protection of life. Burh¯an al-D¯ın al-Margh¯ın¯an¯ı (d. 1197), another prominent jurist from twelfth century, also states clearly that “the right to inviolability is due to humanity (al-‘is.ma bi-l-¯adamiyya).22 Margh¯ın¯an¯ı is the author of one the most respected books in the H.anaf¯ı School of Law titled, al-Hid¯ay¯a. ‘Abd al-‘Az¯ız al-Bukh¯ar¯ı (d. 1219), from the thirteen century, also follows the same tradition and argues that every human being has the right to three things: inviolability of life (‘is.ma), freedom (h.urriyya), and property (m¯alikiyya).23 It is evident that Bukh¯ar¯ı reiterates the three human rights his predecessors have been defending since the tenth century onwards. Kam¯al al-D¯ın ibn al-Hum¯am (d. 1457), from the fifteenth century, also accepts that every human being has the right to inviolability. However, there is something striking huq¯uq All¯ah ta‘¯al¯a ‘alayhi, thumma athbata lahu al-‘is.ma wa-l-h.urriyya wa-l-m¯alikiyya li-yabq¯a fa-yatamakkana min ad¯a’i m¯a hummila min al-am¯ana, thumma h¯adhihi [al-hurriyya wa-l-isma wa-l-malikiyya] al-am¯ana wa-l-h.urriyya wa-l-m¯alikiyya th¯abita li-l-mar’i min h¯ınin y¯uladu, almumayyiz wa ghayr al-mumayyiz f¯ıhi saw¯a’un, fa-kadh¯alika al-dhimma al-s.a¯ lih.a li-wuj¯ub al-huq¯uq f¯ıha th¯abit lahu min h¯ınin y¯ulad yastaw¯ı f¯ıhi al-mumayyiz wa ghayr al-mumayyiz”. 20 On the rights of children in Islamic law, see al-Ustr¯ ushan¯ı (2013). 21 See al-K¯ as¯an¯ı (1996), VII, p. 349. 22 See al-Margh¯ın¯ an¯ı (2000), II, p. 852. For more on Margh¯ın¯an¯ı’s conception of the inviolability of rights (al-‘is.ma), see Sentürk ¸ (2013), pp. 299–302. 23 See al-Bukh¯ ar¯ı (1997), XV, 322.

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in his thought that universal human rights are justified by the rational arguments but not by the scriptural evidences from the Qur’¯an and the h.ad¯ıth. He writes: “The idea that human beings have the right to inviolability because of their humanity is a rational argument (dal¯ıl ma‘q¯ul)”.24 In order to better understand this, we need to have a look at the types of arguments used in Islamic law. The methodology of Islamic law accepts two types of argumentation: scriptural and rational. They are not mutually exclusive as they are simultaneously used side by side in Islamic legal reasoning. ¯ ın (d. 1836), from the nineteenth century Damascus, Muh.ammad Am¯ın ibn ‘Abid¯ stated clearly that “every human being has sanctity (kar¯ama) even if he is a nonMuslim (al-¯adam¯ı mukarram shar‘an wa law k¯afiran).25 With this statement Ibn ¯ ın makes it clear that religion is not a ground for discrimination with regard to ‘Abid¯ human rights because humanity is commonly shared by the members of all religions. ¯ ın makes a distinction between the ways in which the right to life and the Ibn ‘Abid¯ right to property are justified. He argues that the right to the inviolability of property is grounded on necessity. He argues that initially no one had the right to property. However, later it was accepted as a universal human right because without the right to property economic life is impossible.26 Abd al-Ghan¯ı al-Mayd¯an¯ı (d. 1881), a jurist from the late-nineteenth century Damascus, also stated that “a human being is inviolable by virtue of her existence” (al-hurr ma‘s¯um bi-nafsihi).27 By stating this, he means that the universal human inviolability is good in itself and thus does not need any other external justification. It also means that being human alone is sufficient to be qualified to have the right to inviolability; human beings would not need any other qualification to enjoy human rights other than being human. Thus far, I surveyed in chronological order until the late nineteenth century the views of Muslim jurists from different parts of the Muslim world who accepted the universal human rights and developed arguments to justify them. In the next section, we will have a look at the practice of Prophet Muhammad (571–632) whose sayings and practice laid the ground for Islamic law.

3 Grounding Human Rights: Scriptural Reasoning from the Qur’¯an and the H . ad¯ıth Above I have demonstrated how Muslim jurists approached the issue of universal human rights. Here I will explore the roots of universal human rights in the Islamic scriptures, the Qur’¯an and the h.ad¯ıth, the sayings and practice of Prophet Muhammad. 24 Al-Hum¯ am

(1315), IV, p. 356. ¯ ın (1994),V, p. 58. ‘Abid¯ 26 Ibid., IV, pp. 159–165. 27 Al-Mayd¯ an¯ı (1963), IV, p. 128. 25 Ibn

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3.1 The Qur’¯an on Universal Human Rights The Qur’¯an is the primary source of Islamic law to be followed by all Muslims. Therefore, it is important to highlight the role of the Qur’¯anic scripture in providing a solid ground for human rights in Islamic law. The issue of human rights in the Qur’¯an is a very large issue but here I will briefly draw attention only to three most important rights mentioned in the Qur’¯an: right to life, right to property and right to freedom of religion. The Qur’¯an makes it repeatedly clear that human life is sacred and inviolable. “And do not take any human being’s life—[the life] which God has willed to be, sacredotherwise than in [the pursuit of] justice” (Qur’¯an 17:33). The following verse in the Qur’¯an makes killing a person equal to killing humanity as a whole: “Because of this did We ordain unto the children of Israel that if anyone slays a human being-unless it be [in punishment] for murder or for spreading corruption on earth-it shall be as though he had slain all mankind; whereas, if anyone saves a life, it shall be as though he had saved the lives of all mankind” (Qur’¯an 5:32). The Qur’¯an allows killing only in a defensive war or for punishment to murder. Other than that, violating the right to life and killing a human being is considered a cardinal sin and crime punishable in this world by retaliation or in the Hereafter by eternal Hellfire. Similar to the right to life, the Qur’¯an states clearly that the right to property is also inviolable: “O you who have attained to faith! Do not devour one another’s possessions wrongfully—not even by way of trade based on mutual agreement— and do not kill one another: for, behold, God is indeed a dispenser of grace unto you!” (Qur’¯an 4:29). The Qur’¯an allows trade but bans interest because it sees it as a violation of the inviolability of property. The Qur’¯an perceives freedom of religion as a universal human right and bans compulsion in religion: “There shall be no compulsion in [acceptance of] the religion. The right course has become clear from the wrong. So, whoever disbelieves in false deities and believes in God has grasped the most trustworthy handhold with no break in it. And God is Hearing and Knowing” (Qur’¯an 2: 256). Islamic law was founded on these as well as other similar verses in the Qur’¯an which laid the ground for universal human rights. This is because, needless to say, the Qur’¯an is the primary source of Islamic law before the h.ad¯ıth (the sayings of Prophet Muhammad) and the Sunna (the practice of Prophet Muhammad). Now we can have a brief look at this second source.

3.2 The Medina Document or the Medina Constitution Prophet Muhammad signed a treaty or a pact with the tribes in the city of Medina after his immigration to Medina from Mecca in 622. This pact, which was signed by all the tribes from different religions including Jews and polytheists, is also known

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as the Constitution of Medina and is claimed to be the first written constitution in the world.28 This treaty may be seen as a prototype for a modern constitution because it brought together all the existing groups in Medina and built consensus among them regardless of their tribal and religious affiliation and granted them equal human rights at the individual level. At the communal level, each community was granted complete freedom in its internal legal and religious affairs. Yet they agreed to act together in their external affairs in particular in making peace and declaring war. The Medina treaty established a legal model which may be characterized as “legal pluralism” because it allowed each community to practice its civil law in regulating its internal affairs. This was parallel to religious pluralism including Muslims, Jews and polytheists. One of the extremely significant contribution of the Medina treaty is that it created a “nation” (in Arabic umma) out of the diverse people who lived in Medina despite their racial, tribal and religious differences. This was invention of a new identity above the existing conventional tribal and religious identities in Arabia around that time. The prerequisite to become a member of the ummah was nothing other than accepting the terms of the Medina treaty or constitution as there was no racial or religious precondition. There is another striking feature of the treaty as it operates at three levels: individual, community and the state. These levels may be called micro (individual), meso (community) and macro (state) levels. It talks about the rights and duties of individuals at the individual level. At the communal level, it talks about the rights and duties of communities and their relations with the state. It is important to draw attention to the meso-level rights or the community rights which is missing in the modern western discourse of rights today. The pluralist political, legal and religious model Prophet Muhammad established in Medina is extremely significant to understand how Muslim states practiced human rights at the individual and communal levels throughout history in a large geography expanding from India to Balkans and Andalusia. This is because later Islamic states followed the Medina model Prophet Muhammad set up as an example (Sunna) to be followed by the subsequent generations of Muslims.

3.3 The Farewell Sermon of Prophet Muhammad The well-known Farewell Sermon of Prophet Muhammad (571–632) laid the foundation of universal human rights in Islam.29 Prophet Muhammad gave this sermon at 28 For

an overview of various approaches to the Medina Document, see Lecker (2004), Wellhausen (1889), pp. 65–83, Gil (1974), pp. 44–66, Hamidullah (1975), Denny (1977), pp. 39–47, Serjeant (1964), pp. 3–16, Goto (1982), pp. 1–17, Rubin (1985), pp. 5–23, Arjomand (2009), pp. 555–575 and Rose (2009), pp. 1–29. 29 On the Farewell Sermon and its relations to human rights, see Sentürk ¸ (2013), pp. 293–295.

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the top of his camel in 631 at the square of Arafat in the desert of Arabia near Mecca to a large of group of believers who gathered there for annual pilgrimage. Three statements in this sermon constituted the very foundations of Islamic law pertaining freedoms. They are very relevant for human rights even today: 1. The first statement on right to life, property and honor: O People, just as you regard this month, this day, this city (i.e. Mecca) as inviolable (haram), so regard the life, property and honor of every one as inviolable (haram).

The first and the most important statement in the Farewell Sermon is about universality of human inviolability. It makes it clear that all human beings have right to life, property and honor. Prophet Muhammad explained the inviolability of life, property and honor by bringing to the minds of his audience the sacredness of the pilgrimage time and the holy places where the pilgrimage took place. This is because it was the age-old custom of Arabs to respect the life, property and honor of everyone during the time of pilgrimage and also in the sacred temple, the Ka‘ba, in Mecca. Prophet Muhammad used an excellent strategy by expanding the existing limited concept of human inviolability to all times and spaces. He made all the times equal to the times of sacred pilgrimage times and all the spaces similar to the sacred Ka‘ba (presently called al-Masjid al-H . ar¯am) regarding human inviolability. He emphasized three most fundamental rights (life, property and honor) which are considered still the most important rights among human rights. 2. The second statement on the rights of women: O People, it is true that you have certain rights with regard to your women, but they also have rights over you.

This statement is about gender equality regarding the rights and duties between men and women. It is still considered as one of the most fundamental human rights. 3. The third statement on equality and abolishing racism: O People, all mankind is from Adam and Eve. An Arab has no superiority over a non-Arab, nor does a non-Arab have any superiority over an Arab; a white has no superiority over a black, nor does a black have any superiority over a white; [none have superiority over another] except by piety and good action.

This statement is about equality of races. During the time of Prophet Muhammad Arabs saw themselves superior to blacks. However, Prophet Muhammad opposed this well-established racial supremacy and abolished it. He did so by reminding that all human beings are the children of Adam and Eve. The Farewell Sermon includes details references to rights and duties. However, we wanted to draw attention to the most important ones manifested in three statements. The first statement may be seen as the very core of human rights in Islamic law while the remaining two statements may be seen as explanations of it as the second statement is about gender equality and women’s rights while the third statement is about racial equality. From the three quotations from the Farewell Sermon, we can conclude three major constitutional or legal principles for today’s law and policy makers: First,

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Islam recognizes the right to inviolability of life, property and honor of all human beings without any distinction based on inherited or innate qualities such as race, gender, class or religion. Second, Islam grants men and women equal fundamental rights; it sees them equal before the law and accepts that they have rights on each other. Third, Islam strictly bans racial discrimination. These statements are legally binding statements for Muslims. This is because Muslims call the sayings of Prophet Muhammad h.ad¯ıth (pl. ah.a¯ dith) which has biding power in Islamic law. H.ad¯ıth is the second source of Islamic law after the Qur’¯an. Thus, the Farewell Sermon of Prophet Muhammad is not an ordinary speech or preaching. The statements in the Farewell Sermon of Prophet Muhammad are not alone as they are repeatedly confirmed and supported by his many similar antecedent and subsequent statements and actions. They are today recorded in the h.ad¯ıth literature and easily available to researchers. Furthermore, as I demonstrated above, the first source of Islamic law, the Qur’¯an, also has many verses to the same effect. My purpose here is not to provide a complete survey of the Qur’¯anic verses and all the relevant h.ad¯ıth but merely to draw attention to the contemporary implications of the Medina Constitution and the Farewell Sermon on human rights discourse and practice in history and today.

4 The Practice: Classical and the Late Ottoman Experiences The concept of human rights outlined in the Qur’¯an, the H . ad¯ıth and the classical texts of Islamic law did not remain as a utopia but it has been put in practice by Muslim states throughout history in a large geography expanding from India to the Ottoman Empire to Andalusia and Balkans. The Ottoman Empire (1299–1920), which ruled a myriad of ethnic and religious groups in Europe, Asia and Africa for several centuries, was a cosmopolitan empire. So was the Mughal Empire (1526–1761) that reigned most of India and Pakistan as it ruled Hindus and Buddhists. Thus, these two experiences are excellent examples for the universalism of human rights in Islam. The Ottoman experience—along with the Andalusian experience—provides us with an excellent example about how Jews and Christians were treated, and by extension how they would be treated today, under Islamic law. Likewise, the Mughal experience in India provides an example about how Buddhists and Hindus were treated, and by extension how they would be treated today, under Islamic law. It is commonly known that Muslims respect Christians and Jews as the People of the Book (Ahl al-Kit¯ab) and see them as part of the Abrahamic family of religions. Therefore, they are treated favorably by Islamic law. What is less known is the status of the non-Muslims who do not belong to Abrahamic religions and thus are not part of the People of the Book. There are abundant studies on the rights of People of the

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Book under Islamic law but the rights of the non-Abrahamic religious communities are understudied if not completely neglected. Therefore, I think the Mughal experience demonstrates beyond doubt the universalism of Islamic law and human rights in Islam because Hindus and Buddhists are not from People of the Book, i.e. they do not belong to a monotheistic Abrahamic religion. Yet they were given the same rights as Christians and Jews were given in other parts of the Muslim world at that time. Similar to Hindus and Buddhists, Zoroastrians in Iran from the very beginning were also granted the same human rights although they did not follow an Abrahamic monotheistic religion. Ottomans established a “diversity management system” called the millet system30 which may serve as a source inspiration even today because, in my opinion, at the age globalization the most pressing problem is diversity management today. The millet system was based on semi-autonomous religious communities brought together under Ottoman Caliph-Sultan. These religious communities included in the classical period three major millets: Islamic millet under the Caliph-Sultan, Orthodox millet under the Orthodox patriarch, and the Jewish millet under the Chief Rabbi. It is striking that the leaders of all these major religious communities lived in Istanbul. The followers of these millets were called dhimm¯ı and the tax they paid was called jizya. The millet system was based on equality of citizens at the domain of universal human rights but not at the domain of legal rights. This system worked very well until the nineteenth century. In the second half of the nineteenth century, the ‘ulam¯a’ raised a new question: Would it be possible to expand the equality at the domain of human rights to the domain of legal rights as well? The answer of the religious scholars was positive. Consequently, in 1856 the millet system was brought to an end as the Ottoman Sultan abolished the dhimmi status and the jizya tax by a royal decree and introduced universal citizenship for everyone under Ottoman rule.31 Earlier, the slavery was also abolished in 1847 by Sultan Abdülmecid. These reforms in Islamic law and political system were based on a policy advice from a group of scholars headed by the Ottoman Shaykh al-Isl¯am. In 1879 Ottomans adopted the constitutional and the parliamentary system with the approval of the Ottoman ‘ulam¯a’ and had several elections prior to the defeat of the Ottoman Empire in 1918. The Ottoman parliament was closed by the British army after it invaded Istanbul. Some of the parliament members were non-Muslims such as Christians and Jews. More specifically, the nineteenth century Ottoman legal reforms in Islamic law established the following norms: (1) Slavery is abolished and it is no longer legitimate and applicable; (2) Dhimmi status is no longer legitimate and applicable: all citizens are equal; (3) Jizya tax is no longer applicable: all citizens pay equal amount of taxes regardless of their religion; (4) Constitutional system is compatible with Islam;

30 On 31 See

the Ottoman Millet System, see Braude and Lewis (1982). Yıldız (2002), pp. 75–117.

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(5) Parliamentary system is compatible with Islam; (6) Non-Muslims may be elected to parliament in an Islamic state; (7) Electoral democracy is compatible with Islam. Because this legacy of Ottoman practice and reforms have been forgotten by the Muslims today, the question about what to do with the dhimmi status and the jizya tax linger around in the modern Islamic discourse. For the contemporary Muslim thinkers and policy makers, there is a lot to learn from the late Ottoman legal reforms.

5 Challenges Muslim World Face Today The human rights heritage I outlined above—both at the theoretical and practical levels—has little manifestation today in the Muslim world. There is a rupture and discontinuity in the human rights discourse and practice in the Muslim world since beginning of secularization, westernization and modernization which resulted in replacing the Islamic human heritage with the western human rights discourse. Muslims no longer produce human rights discourse but import it from the West without any grounding in the Islamic legal culture. I call this phenomenon “human rights dependency”. Some Muslims are aware of it and they seek to rejuvenate Islamic discourse on the human rights but they face many challenges today. The first challenge is that the long and rich conceptual and practical legacy of universal human rights in Islamic law and history are not known today to Muslim intellectuals and policy makers. This deprives human rights discourse from getting grounded in Islamic worldview. In particular, the H.anaf¯ı jurisprudence is very valuable in this regard. The second challenge is that there is no middle class in some of the Muslim majority countries. If there is no middle class in a society, there would be no group to stand for human rights. The third challenge is that there is no rule of law and due process in some of the Muslim countries. The fourth challenge is that some Muslim countries are economically and politically dependent on other countries. The fifth challenge is that some of the powerful Western countries disregard human rights violations and at times even support them in the Muslim world at times when it conflicts with their interests. By doing so, not only they undermine human rights practice in the Muslim world but also they make human rights discourse lose its convincing power and legitimacy in the eyes of Muslim populations. Consequently, they weaken any Muslim effort to advocate human rights in the Muslim world.

6 Conclusion Human rights in Islamic law are characterized by three features. First, Islamic law recognizes human beings as the subject to whom rights are accorded solely by virtue of being human. Second, these rights are not contractual as they are not granted by

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the state in exchange of fulfilling citizenship duties. Third, these rights are enforced by the state power and there is remedy in case of violation of these rights. These three features make the concept human rights in Islamic law very similar to the concept of modern human rights. It is rooted in the Qur’¯an, and the sayings and practice of Prophet Muhammad which were used by Muslim jurists in subsequent generations as the sources of Islamic law. This vast and long heritage, which is not commonly known today, was elaborated in the works of great Muslim jurists and was put in practice by Muslim states from the tenth to nineteenth centuries. It was Ottoman ulama and rulers who reformed the concept and practice of human rights in Islam by introducing equal citizenship to make it on par with the modern western norm during the second half of the nineteenth century. Yet in the Muslim world today, there is little manifestation of the Islamic heritage of human rights neither in discourse nor in practice. This is due to the westernization of law in the Muslim world. Even the Islamist intellectuals and politicians are disconnected from the concept of universalist human rights outlined above. In the present Muslim world, it is a great challenge to bring back humanity as the ground for human rights.

References ¯ . is.a¯ r¯ı H. (1431/2010) Sharh. samt al-wus.u¯ l il¯a ‘ilm al-us.u¯ l. In: Ramadh¯an M (ed), D¯ar ibn Al-Aqh al-jawz¯ı, Riy¯adh Al-Bukh¯ar¯ı M (1997) Kashf al-asr¯ar ‘an us.u¯ l fakhr al-Isl¯am al-bazdaw¯ı, al-Baghd¯ad¯ı M (ed) D¯ar al-kit¯ab al- ‘arab¯ı, Beirut Al-Dab¯us¯ı A (2001) Taqw¯ım al-adilla f¯ı us.u¯ l al-fiqh, D¯ar al-kutub al-‘ilmiyya, Beirut Al-Ghaz¯al¯ı M (2010) Marvels of the heart: science of the spirit. In: Skellie W (ed), Fons Vitae, Louisville Al-K¯as¯an¯ı ‘A (1996) Bad¯a’i‘ al-s.an¯a’i‘ f¯ı tart¯ıb al-shar¯a’i’. D¯ar al-Fikr, Beirut Al-Margh¯ın¯an¯ı ‘A (2000) Al-hid¯aya sharh. bid¯aya al-mubtad¯ı, Tamir M, Hafiz H (eds), D¯ar al-sal¯am, Cairo Al-Mayd¯an¯ı H (1963) Al-lub¯ab f¯ı sharh. al-kit¯ab, Cairo Al-Sarakhs¯ı M (1984) Us.u¯ l al-sarakhs¯ı. Kahraman Yay, Istanbul al-Ustr¯ushan¯ı, Majd al-D¯ın Ab¯u al-Fath. Muh.ammad b. Mah.m¯ud b. al-H.usayn (2013) J¯ami‘ Ah.k¯am al-S.igh¯ar (ed. Osm¯anh¯an T¯ımûrh¯an Al¯ımof, Muslim Rizq¯ı At¯a’) Tashkent: Dar al-Sharq li alNashr Arjomand S (2009) The Constitution of Medina: a sociologic interpretation of Muhammad’s acts of foundation of the Umma. IJMES 41:555–575 Braude B, Lewis B (eds) (1982) Christians and Jews in the Ottoman Empire. Holmes & Meier Publishers, New York Denny F (1977) Ummah in the Constitution of Medina. JNES 36:39–47 Gil M (1974) The Constitution of Medina: a reconsideration. IOS 4:44–66 Goto A (1982) The Constitution of Medina. In: Orient: report of the society for Near Eastern Studies in Japan vol 18, pp 1–17 Gutas D (1998) Greek thought, Arabic culture: the Graeco-Arabic translation movement in Baghdad and early ‘Abb¯asid Society (2nd-4th/8th-10th centuries). Routledge, London

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H.add¯ad GF (2007) The four Im¯ams and their schools: Ab¯u H.an¯ıfa, M¯alik, al-Sh¯afi’¯ı, Ah.mad. The Muslim Academic Trust, Cambridge Hallaq W (2009) An introduction to Islamic law. CUP, Cambridge Hamidullah M (1975) The first written constitution in the world: an important document of the time of the holy Prophet, 3d edn, Lahore ¯ ın M (1994) Radd al-muh.t¯ar ‘al¯a al-durr al-mukht¯ar sharh. tanw¯ır al-abs¯ar, D¯ar al-kit¯ab Ibn ‘Abid¯ al-‘ilmiyya, Beirut Ibn al-Hum¯am M (1315) Sharh. fath. al-qad¯ır ‘al¯a al-hid¯aya sharh. bid¯aya al-mubtad¯ı, al-Mat.ba‘a al-kubra al- ‘arab¯ı, Bul¯aq Ibn Yusuf A (ed) (2007) Im¯am Ab¯u H.an¯ıfa’s Al-Fiqh al-Akbar explained. White Thread Press, California Kamali M (2008) Shari’ah Law: an introduction. Oneworld, Oxford Karamustafa A (2007) Sufism: the formative period. University of California Press, Berkley Kızılkaya N (2018) Hanefi Mezhebi Ba˘glamında ˙Islam Hukukunda Külli Kaideler. Litera Yayıncılık, Istanbul Lecker M (2004) The Constitution of Medina: Muh.ammad’s first legal document. The Darwin Press, Princeton Lings M (1983) Muhammad: his life based on the earliest sources. The Islamic Text Society, London Morsink J (1999) The Universal Declaration of Human Rights: origins, drafting and intent. University of Pennsylvania Press, Philadelphia Rose P (2009) Muhammad, the Jews and the Constitution of Medina: retrieving the historical kernel. Der Islam 86:1–29 Rubin U (1985) The ‘Constitution of Medina’: some notes. Studio Islamica 62:5–23 Sentürk ¸ R (2002) Âdamiyyah and ‘Ismah: the contested relationship between humanity and human rights in classical Islamic law. ˙Islâm Ara¸stırmaları Dergisi 8:39–69 Sentürk ¸ R (2013) Human rights in Islamic jurisprudence: why should all human beings be inviolable? In: Hertzke A (ed) The future of religious freedom: global challenges. Oxford University Press, New York, pp 290–314 Serjeant R (1964) The ‘Constitution of Medina’. Islamic Q 8:3–16 Uzunpostalcı M (1994) Ebû Hanîfe. TDV ˙Islâm Ansiklopedisi 10. Güzel Sanatlar Matbaası A. S, ¸ Istanbul, pp 131–138 Wellhausen J (1889) Muhammads Gemeinordnung von Medina. Skizzen und Vorarbeiten 4. G. Reimer, Berlin, pp 65–83 Wensinck A (1932) The Muslim creed: its genesis and historical development. CUP, Cambridge Yıldız M (2002) “1856 Islahat Fermanına Giden Yolda Me¸sruiyet Arayı¸sları: Uluslararası Baskılar ve Cizye Sorunuma Bulunan Çözümün ˙Islami Temelleri,” in Türk Kültürü ˙Incemeleri Dergisi 7, ˙ Istanbul 2002, pp. 75–117

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Peace and Religious Beliefs in International Jurisprudence

The Sollen as Otherwise than Being. Notes on Hermann Cohen, Hans Kelsen and Emmanuel Lévinas Alberto Puppo

My enthusiasm for Judaism is rooted in my conviction of the ethical validity implied in our idea of God. My understanding of Judaism stands within the context of my scholarly work. Hence I feel particularly fortunate that prior to my presentations of more extensive works on the ideas of Judaism I had the opportunity to demonstrate the place of Judaism within a philosophical system. I do not entrust the guidance of my Jewish consciousness to the instinct of loyalty, loyalty to one’s own religious denomination or tribe, but to philosophical methodology, in as far as it is my share (Hermann Cohen).a Of course, the Jew is really the only man in the Christian world who cannot take war seriously, and therefore is the only genuine “pacifist.” (…) the Jewish people stands outside the world, which does not yet possess it; by living the eternal peace, it stands outside of a warlike temporality; by resting at the goal that it anticipates in hope, it is separated from the march of those who draw near to it in the toil of centuries. Its soul, which is satiated in the beholding of hope, withdraws from toil, action, fighting for the world (Franz Rosenzweig).b The visage of being that shows itself in war is fixed in the concept of totality, which dominates Western Philosophy. Individuals are reduced to being bearers of forces that command them unbeknown to themselves (Emmanuel Lévinas).c

Abstract A crucial Kelsenian thesis was the criticism of the dualist thesis according to which the State exists before the law. It is against this theory that he wrote his first great book, Hauptprobleme der Staatsrechtslehre. In the Foreword to the a This

is an excerpt from a letter written by Cohen in December 1904 to Frankfurtloge, translated to English by Bruckstein (2004), p. XXX. b Rosenzweig (1921), p. 351. Here and after, the year refers to the original edition, but the pages refer, when it is included in the list of references, to the English edition. c Lévinas (1961), p. 21. A. Puppo (B) School of Law, ITAM, Mexico City, Mexico e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_9

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second Printing, Kelsen recognises that his main intuitions had perfectly been developed by Cohen. Cohen’s ethics helps to understand the distinction between Sein and Sollen. Kelsen explicitly said that such distinction cannot be the object of conceptual analysis; they are elementary concepts. What I will suggest is that such elementary concepts can be analysed on the basis of Cohen and Lévinas’ ethics. By virtue of the contribution of Lévinas, it is possible to keep the distinction out from the realm of neo-kantian postulates, and to give to the Sollen an ethical dimension. The Sollen is not only a category necessary to describe positive law in normative terms; it is also central—as otherwise than being—in order to explain the concept of humanity. International law, conceived as Sollen, does not need to exist. International law can be conceived as a divine command. Only when the individuals assume their responsibility, humanity, not only in the pure ethical relation with the Other, but also in social terms, does emerge. My main point is that the concepts of Sollen and Humanity are inseparable, to the extent that a human being, in his biological dimension, makes himself a human subject when he responds to (and not just conceives) the natural world in normative terms, a world in which he/she is a responsible subject.

1 Introduction Why another work on Kelsen? It is imperative to start with an answer to such preliminary question. Kelsen has been the object of a waste literature: analytical legal theorists, international legal scholars, political philosophers and critical legal scholars have deeply analysed his works and little new can probably be said.1 The real novelty can only consist in the establishment of some connection poorly explored, or not explored at all. My purpose here is to take seriously some classic criticisms developed essentially by the classical analytical “team”,2 as well as to contribute to an actual debate on the conception of normativity implicit in Kelsen’s legal theory.3 I will assess Kelsen’s theory from the perspective of what is actually called the contemporary and messianic philosophy of Judaism, largely constructed on the basis of the German-Jewish philosophy of the early XX century.4 To what criticisms am I referring to? The main source of a long list of criticisms is the notion of basic norm as the ultimate source of validity qua bindingness. The problem, with the notion of basic norm and the notion of validity qua bindingness, is that the introduction of such elements seems to contaminate a positivist theory with a priori/metaphysical/moral ingredients.

1 In

spite of this, there is an increasing literature on Kelsen’s work and life. Just as an example, see these recent edited books: Duarte d’Almeida et al. (2013), Telman (2016), and Langford et al. (2017). 2 See Ross (1998). 3 See Paulson (2012), where he discusses Raz’s thesis. 4 See Bouretz (2003) and Nordmann (2017).

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From another point of view, there are many doubts about the neutral character of what Kelsen says on legal monism and peace: here the criticism is that when defending monism, despite his efforts, Kelsen shows a clear ideological posture, hardly compatible with the purity of his theory.5 If I am right, it is possible to propose a reading of the basic norm according to which peace is conceptually—or, more precisely, metaphysically even if not ontologically— linked to law as conceived in the Pure theory of law. Such reading does not come without a price, but it is a price that only dogmatic Kelsenians and primitive positivists would not pay. But, above all, in no way this reading makes of Kelsen the kind of natural law theorist he permanently struggled against, that is, the natural legal theorist believing that the Reason can be the source of legal norms. Before starting, a disclaimer is necessary: as I am not a philosopher of Judaism, nor a philosopher of religion, but just a perplexed analytical philosopher, I do not pretend to argue for some truth regarding Judaism or religions. On this side of my work, I will just trust in several works on ethics, religion and God. If someone simply rejects any philosophical approach based on such a discourse, she can easily discredit my project. If someone is dogmatically Kelsenian, she will also easily qualify it as “heretic”. But people taking seriously both The Pure Theory of Law and some ethical worries about contemporary problems could hopefully be curious and find some useful insights for further investigations. Following Emmanuel Lévinas, I will conceive Judaism as a philosophical category,6 so that my reference to it, I assume, does not presuppose any cultural membership or religious belief. In that, I think I am engaging myself on the path of some French philosophers, as Jean-François Lyotard and Maurice Blanchot.7 The authors who accompany me on this adventure are two authors considered as important representatives of the philosophy of Messianic Judaism, but not only: Hermann Cohen (1842–1918) is considered as the father of neo-Kantism (school of Marburg); Emmanuel Lévinas (1906–1995) is considered as the representative of a new conception of philosophy, since he erected ethics as the first philosophy (stealing the place to ontology), and above all he proposed a response to the central question about what makes human beings “humans”, an answer that is ethical rather than ontological. The path taken by Lévinas—based on the relation I/You—was precisely opened by Cohen. But, more interestingly, the path opened by Cohen was the path making of Judaism a key piece in a philosophical system. Both philosophers were

5 Such criticisms come both from international legal scholars—see von Bernstorff (2010)—and legal

theorists—see Luzzati (1999). 6 According to Nordmann (2017), p. 131, “Since the 1930s Lévinas develops a reflection on Judaism

envisaged not from a historical, sociological or religious perspective, but as a philosophical category”. On the basis of what he wrote on his “Carnet de captivité (1940–1945)”, he seems to consider the categories of Judaism and the Heideggerian Dasein as alternative philosophical starting points (see pp. 131–133). All the translations from French, Italian, Spanish or German, when an English translation is not included in the list of references, are mine. 7 On these French philosophers, and their relation with Lévinas and Judaism, see Nordmann (2017), pp. 155–157.

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not, somehow schizophrenically, at the same time western philosophers and Jewish thinkers: precisely because they considered Judaism from the standpoint of the philosophical reflection, they achieve the purification of Judaism from any mythical and onto-theological element. In that way, Judaism is not more a question of religious beliefs but of philosophical categories and method.8 The relationship between the two authors is not direct in the sense that Lévinas was not a disciple of Cohen; but a third philosopher assured, in some way, the continuity between Cohen and Lévinas’ thought: Franz Rosenzweig (1886–1929) was very close to Cohen and his presence was extraordinary in the first of Lévinas’ great works: “We were impressed by the opposition to the idea of totality in Franz Rosenzweig’s Stern der Erlosung, a work too often present in this book to be cited”.9 The second disclaimer is about my treatment of Kelsen’s huge work. My reconstruction of Kelsen is essentially based on a selection of texts that can be perceived as ad hoc. Given the impossibility to be exhaustive, I tried to be original. I decided to join the earliest and the latest Kelsen: from the Foreword to the Second Printing of Hautprobleme, the Allgemeine Staatslehre, and Das Problem der Souveränität to the General Theory of Norms.10 My choice is based on an intuition: the classic Kelsen (probably best represented by the second edition of the Pure Theory of Law, the General Theory of Law and State, and the Principles of International Law11 ) is perfect for dogmatic Kelsenians, both the legal theorist and the international scholar. In the mentioned classical books, his theory is fully expressed as the apex of a long maturation. What I am interested in is precisely what is more freely expressed, because it was not written in order to defend his theory, or because it was essentially a set of reflexions on norms, and not a coherent theory of law. Not only: in his last book—as well as in his lectures at Berkeley12 —he constantly treats together moral, legal and religious norms, as opposite to natural law. The paper is divided in three great parts. I first analyse the relation between Hermann Cohen and Kelsen; I will suggest that Kelsen is much more Cohennian than he would ever admit (Sect. 2).13 The words of my colleague Ulises Schmill, remembering a long conversation with Kelsen in Berkeley, have to be quoted: “I 8 The demonstration of this point is the central topic of Nordmann (2017). On the new way discovered

by Cohen, see Gibbs (2004), p. ix: “Rosenzweig hails him as a Columbus (and I would, as a Copernicus), and claims that Cohen was the first truly Jewish philosopher who discovered a new route, a new thinking. Like a Columbus, it is Cohen who discovered the new possibility and exigency of thought, discovering a land for the voyages not only of Lévinas and Rosenzweig, but also of Buber and Benjamin and, in different ways, of Scholem, Strauss, Pines, and many others”. 9 Lévinas (1961), p. 28; he refers to Rosenzweig (1921). 10 See, respectively: Kelsen (1923, 1925, 1928a, 1979). 11 See, respectively: Kelsen (1967, 1945, 1952a). 12 See Kelsen (1952c). 13 On this I clearly disagree with many opinions according to which such influence has ben overestimated. See Bobbio (1977), p. 179, where he affirms, on one hand, that the relation between Kelsen and the Kantian Critique of Pure Reason was a “mere flirtation”, and, on the other and, he proudly recall that “the name of Cohen has not been cited even once in the second edition of the Pure Theory of Law”. I also disagree with those—see Merle (2007), p. 134, thinking that Kelsen was too little neo-Kantian for “its rejection of any idea of progress towards an ideal”.

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heard from his lips that he considered the Ethics of Pure Will (…) by Hermann Cohen as a very important book, from which he, Kelsen, had learned many things, more than what he could express at that moment”.14 My point here is that to follow Cohennian’s ethics would have been compatible with Kelsen’s moral relativism and would not have meant a compromise with natural law theories. I will then analyse the distinction between Sein and Sollen, in order to shed some light on what Kelsen said about State and International law (Sect. 3). Finally, I will provide a Jewish reading of the basic norm, essentially on the basis of Lévinas’ ethics (Sect. 4). My suggestion will be that the Sollen can be understood as “otherwise than being”. Applied to the question of the relation between Law and State, Lévinas allows to affirm that the realm of Sollen (otherwise than Being) is the realm of Peace, as well as the realm of Sein is the realm of War.15 My strong thesis is that God’s will is not just a useful analogy but precisely the fictitious will which meaning is the Kelsenian basic norm.

2 Kelsen, Cohen and Normative Science: Notes on Religion, Natural Law and Moral Relativism In a first section (Sect. 2.1), I will start by spending some words about the place religion occupies in Kelsen’s theoretical world and about his prima facie absolute rejection of any religious insights. Then I will reconstruct the way Kelsen recognises the influence exerted by Hermann Cohen as well as the reasons why he rejects Cohen’s ethics. My aim, in the following section (Sect. 2.2), is to show how Kelsen’s arguments are based on a substantial misconception of Cohen’s ethics, especially with respect to the accusation of being a natural theorist.

2.1 Kelsen on Religion and Cohen’s Theory The neuralgic point of my approach is the presence—it does not matter if it was because of some influence—of Hermann Cohen in Kelsen’s work16 ; such a presence is a fact, recognised by Kelsen himself. Beyond this mainstream point, to my knowledge, nobody—among legal theorists—took Cohen’s philosophy as a whole, that is, a philosophy in which neoKantism is not separable from the philosophy of Judaism, in which the theory of knowledge is not separable from ethics and ethics is not separable from Judaism 14 Schmill

(2004), p. 117.

15 I think this is the main worry of Lévinas’ philosophical and ethical engagement, to the extent that

this theme appears in one of the first philosophical work as well as in the last works. See Lévinas (1935) and Lévinas (1984). 16 Such plausible influence was exerted, above all, by the two first volumes of Cohen’s System of Philosophy: Cohen (1902, 1904).

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as a philosophical category. In a very interesting way, Novak stated that the relation between Cohen and Kant is analogous to the relation between Aquinas and Aristotle: Although students of the history of philosophy tend to think of Hermann Cohen as a Kantian (indeed, the restorer of Kant to the center of philosophical attention in Germany in the middle of the nineteenth century), his philosophical following of Kant was certainly not slavish. His relation to Kant comes closest, it seems to me, to Aquinas’ relation to Aristotle. That is, Cohen revived and transformed Kant’s philosophy much the same as Aquinas revived and transformed Aristotle’s philosophy. This is important to bear in mind because Cohen’s God idea is where he makes his most fundamental break with Kant.17

Does any legal philosopher ignore that the Thomist tradition is Christian? A reason that explains such a different treatment is obvious: Aquinas was the philosophical voice of, say, a positive dominant morality; Cohen was mostly conceived as the greater philosophical voice of German idealism, believing in a possible assimilation of Jews in an academic context of anti-semitism.18 So it is easily explainable why philosophers in general did have some kind of pudor leading to ignore the Jewish dimension of Cohen’s philosophy. The real question is: can the more aseptic neoKantianism be really understood without a whole approach including the philosophy of Judaism? I do not look for an answer. I just proceed to an obvious statement: the academic opinion about religion has radically changed from the Middle-Age to the XXth Century. Any religious engagement, after the Enlightenment, is perceived as suspicious; that probably explains the success of “secular religions”. Given the “excommunication” of religious reflection from the philosophical discourse, the religious sensibility opened a new path in the realm of politics, with a result that—if Kelsen is right19 —was a disaster for both political theory and religions. Despite not being the object of my work, it seems to me important to spend some words about Kelsen’s Secular Religion. One of the main criticisms Kelsen addressed to the tenants of secular religions is that the idea of a religion without God is nonsensical. But it is also interesting to note that one of the plausible reasons having justified the decision to not publish the book was precisely that Kelsen was not completely sure that he had used an adequate concept of religion. His analytical method, the importance given to the conceptual framework, could perfectly explain why, at least during his life, he refused to be associated to that book. Probably, the reason was not that the criticism to secular religions was wrong; the reason was that such criticisms were partially based on a concept of religion he does not trust in anymore.20 On another hand, a recent analysis of Kelsen’s book under the framework provided by the concept of transcendence suggested the presence, in the Pure Theory, of a ‘thin transcendent’ dimension: “‘thin transcendence’ – reference to a transcendent

17 Novak

(1995), p. 54. Attademo (2003). 19 See Kelsen (2011). 20 See Métall (1969), p. 91. 18 See

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realm that is not ontologically warranted – is a fair characterization of what at least Kelsen’s idea of the Grundnorm tries to convey”.21 I will return to the notion of transcendent realm not ontologically warranted, because precisely Lévinas claims for a concept of God not contaminated by Being, that is, a pure ethical—and not onto-theological—conception of God: “to hear a God not contaminated by Being is a human possibility no less important and not less precarious than to bring Being out of oblivion in which it is said to have fallen in metaphysics and in onto-theology”.22 Summarising some starting points: (a) Kelsen does not have a very clear idea about the concept of religion; (b) religion is a matter of transcendence, but transcendence can be thin; (c) transcendence is thin when it is not compromised with a given ontology; (d) God can be conceived as “ontology-free”; the transcendent character of God can be thin; (e) the basic norm has a thin transcendent character. Such starting points, just showed as facts, facts of philosophical discourses, seem to me strong enough to justify a genuine—without methodological prejudices— analysis of Kelsen’s theory from a religious and/or an ethical perspective. Not a secular religion, because if religion is somehow relevant in order to understand some difficult parts of the Pure theory of law, it is a religion with God, but not a God that is, neither in this world nor beyond this world, neither a human God nor a beyond-the-world Being: a God otherwise than Being. This last sentence, voluntary hermetic, invites to the next point: the reason Kelsen invoked to reject Cohen’s ethics. Such reason, as I will try to show, is not a reason at all, but a prejudice of a generation of legal theorists. Not only Kelsen, but all the legal theorists claiming the positivist character of their conception of law, rejected without due process any claim phrased in non-empirical terms. Kelsen himself was a victim of such blind rejection, particularly by Alf Ross that in a very famous text23 qualified Kelsen as quasi-positivist for admitting in his theory some kind of a priori: the basic norm. Legal theorists are always a product of their time. So—under the influence of logical positivism—religions, a priori, natural law, metaphysics, and probably ethics in general, were nonsensical activities ranged in the same box. To be a relativist seems to have represented the more important credential in order to take a philosopher seriously. Kelsen’s relativism probably was the strongest reason he had against Cohen’s ethics. But before analysing the judgment Kelsen formulated on Cohen (as a natural law theorist), the words by which Kelsen himself recognised the importance of Cohen have to be integrally quoted. In the second edition of the Hautprobleme, Kelsen wrote: It is by way of Hermann Cohen’s interpretation of Kant, in particular Cohen’s Ethics of Pure Will, that I arrived at the definitive epistemological point of view from which alone the correct employment of the concepts of law and of state was possible. In 1912 (…) a 21 van

Roermund (2015), pp. 113–114. (1978a), p. xlii. 23 Ross (1998). 22 Lévinas

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review of Main Problems appeared in which my book was recognized as an attempt to apply the transcendental method to legal science, and this brought to my attention the wideranging parallels that existed between my concept of legal will and Cohen’s views, which at that time were not known to me. I came to appreciate as the consequence of Cohen’s basic epistemological position–according to which the epistemic orientation determines its object, and the epistemic object is generated logically from an origin (Unsprung)–that the State, in so far as it is the object of legal cognition, can only be law, for to cognize something legally or to understand something juridically means nothing other than to understand it as law.24

Kelsen confirmed it in the famous letter to Renato Treves, explicitly referring to his theory of the basic norm: What is essential is that the theory of the basic norm arises completely from the Method of Hypothesis developed by Cohen. The basic norm is the answer to the question: What is the presupposition underlying the very possibility of interpreting material facts that are qualified as legal acts, that is, those acts by means of which norms are issued or applied? This is a question posed in the truest spirit of transcendental logic.25

But in the same Letter, Kelsen firmly distinguishes his position from Cohen’s: What actually distinguishes the Pure Theory of Law from the Cohennian legal philosophy is that Cohen, in this field, was not in a position to overcome the natural law theory, primarily because he was simply unfamiliar with the positive law and with what he correctly invoked as ‘the fact of legal science’. (…) He was unable to forgo the assumption of a contentually constituted, materially determined a priori. With reference to those positive norms determining social life, he could not rest content with purely formal categories of a priori validity. For that would inevitably have led to ethical relativism, something that Cohen–exactly like Kant on this point–was not prepared to accept, if only because of his religious convictions. Thus, the Cohennian legal philosophy, like Stammler’s, is a theory of natural law, not a theory of positive law, which alone is, in the ideal system of the Kantian philosophy, the proper counterpart to the theory of nature qua experience.26

When Kelsen recognises the influence Cohen had exerted on his theory, he also precise that beyond such influence there was a great difference between Cohen and him. The main point is that Cohen, as Kant, was still compromised with natural law theories. Kelsen adds that the reason for such impossibility of distance from the natural law tradition was probably Cohen’s religious commitment. The allergy philosophers have with any reference to religion is evident so far as Edel27 —in what probably is the best work on the relation between Cohen and Kelsen—when quoting what Kelsen says about his difference with Cohen, does omit the reference Kelsen makes to Cohen’s religious convictions.

24 Kelsen

(1998), pp. 15–16. (1933), p. 174. 26 Kelsen (1933), p. 173. It is interesting to note that, concerning the lack of knowledge of positive law, Cohen (1904, p. 324) formulated the same criticism against Kant: “But of course Kant did not take into account the connection with the law; it was not his aim. Thus he also did not recognise in the self the task of the moral person that the law developed through the concept of the juridical person”. 27 Edel (1998), p. 199. 25 Kelsen

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2.2 The Fragility of Kelsen’s Arguments Against Cohen The fragility of Kelsen’s arguments is two-folds. Firstly, he does not distinguish between different natural law traditions. Secondly, being aware of Cohen’s religious commitment, he does not investigate whether and how such commitment is relevant in Cohen’s ethics. A first point to note here is that natural law has not the same meaning in Christian and Jewish traditions,28 and above all, that the “natural” dimension of natural law can be interpreted in, at least, two radically different ways. The natural law tradition that Kelsen—as well as many positivists—rejects is the tradition having highly influenced the mainstream discourse of XIXth century legal science. I refer to what is usually known as rationalism, having in Grotius, Kant, Locke, Hegel, etc. some of the most influent figures. According to the rationalist natural law theories, the Reason, as the source of natural law, is at the same time the source of normative force and the source of the normative content of legal norms. Using Kelsen’s vocabulary, according to such natural law theories, a legal norm is valid if its content can be deduced from the basic norm. The principle of derivation of a norm from another norm is static, not dynamic. What counts is the content of the norm, not the fact that its production has been authorised by another norm belonging to the system. Hence the problem with natural law is more precisely a problem with the importance natural legal theorists attribute to the static derivation of norms. Precisely for this, Kelsen would have been no problem with the qualification of its theory of the basic norm as a natural law theory: “if one wish to regard it as an element of a naturallaw doctrine despite its renunciation of any element of material justice, very little objection can be raised; just as little, in fact, as against calling the categories of Kant’s transcendental philosophy metaphysics because they are not data of experience”.29 According to Kelsen, a legal system is essentially dynamic, so that in no way a norm can be valid just because it has some content. It is not the reason that makes law, but the will. Kelsen dedicates to this point several and very interesting pages of his General Theory of Norms, at the moment of explaining his distinction between Sein and Sollen, and above all when he criticises philosophers having confused them, from Plato to Aristotle to Kant.30 This criticism is hardly applicable to Cohen: in his last book, Religion of Reason Out of the Sources of Judaism,31 he clearly rejects the idea that Reason can be the source of the content of whatever norm. Religious norms, as any norms, can only have a social source, that is, a text, eventually connected with a metaphysical ground of validity, as God’s will. But, using a typical Kelsen’s sentence, a norm is always the meaning (Sinn) of an act of will. The content of norms comes from the interpretation of legal sources, not from the knowledge provided by the abstract reason. The reason 28 Novak

(2004). (1928b), p. 437. 30 Kelsen (1979), pp. 63–82. 31 Cohen (1919). 29 Kelsen

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is the source of concepts, but not of the norms whose knowledge is allowed by the transcendental assumption of these concepts. When God enters in a natural law theory, a new perspective can be adopted. Nothing is naturally good or wrong. The good is what God orders to do, and the bad is what God forbids. In meta-ethics, such difference is reflected by the distinction between naturalist and no-naturalist descriptivism. So the source of any obligation can be God’s will and not some “natural property”, or any “human nature”.32 Consequently, if we conceive natural law theory as a theory believing in the existence of natural principles imposing universal and static legal obligations to individuals, it is obvious that Kelsen has to reject it. But it is not obvious at all that there is not another meaning, another way of refusing, using a Dworkinian terminology, a plain-fact conception of law.33 So there is, at least, a third possibility, between the rationalist natural law theories and the empirical positivist theories.34 Not all metaphysical approaches are naturalist approaches. At least from Kant, the expression “constructivist metaphysics” entered in the common philosophical vocabulary. Such metaphysics shares with any metaphysics the idea that there is something prior to experience but such a priori is not independent of experience, given that it is precisely its condition of possibility. It is not an a priori conditioning the content of legal positive norms, it is just an a priori conditioning the legal knowledge, that is, the knowledge of some portion of the factual reality in terms of legal norms. A legal norm is just a relation, the relation described by the concept of imputation: a legal consequence is imputed to a factual condition, where the factual condition is always a human conduct. If A, then B ought to be. The ought (Sollen) is the category of legal knowledge. But the aprioristic character of the Sollen says nothing about the content of any actual and positive obligation. Neither the content, nor the concept itself of Sollen can be derived from anything belonging to the realm of Sein. This is the mistake of any theory based on natural law, usually qualified as naturalistic fallacy. About the content, the only answer is that such content is relative, contingent. In this sense, Kelsen relativism is fully preserved. But Kelsen’s position about the Sollen as category is in no way relativistic. The only form to describe social relations in normative terms is by assuming such a priori category. So the question of the Sollen can be understood as a part of both a theory of knowledge and an ethical theory, precisely in the terms of Cohen’s system of philosophy. The explicit Cohennian influence Kelsen recognised is related to his theory of knowledge; but he does not explicitly recognise the ethical character of Sollen. Of 32 For sure the relation between God’s law and natural law was a central issue in Grotius’ reflection. There is no place here to go further on this topic; my only purpose is to problematise the rejection by Kelsen of Cohen’s normative philosophy because of his subscription of natural law theories. On this Grotius’ reflection, see Leben (2016). 33 See Dworkin (1986). 34 This third possibility is analysed, and rejected, with an explicit reference to the interpretation of Kelsen proposed by Raz, by Paulson (2012).

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course, even if he does not recognise the ethical dimension of his theory, such dimension was precisely the focus of many attacks coming from other positivist scholars. According to Kelsen, that a norm is valid means that it derives from another valid norm and ultimately from the basic norm; but it means also that the norm has to be respected, that the human conduct imposed by the valid norm is fully obligatory.35 This meaning of validity is precisely rejected by Ross, Hart, and a large majority of positivist scholars.36 According to a positivistic mainstream view, to say that a norm is valid only means that it belong to a legal system, and in no way that it has to be observed, that it is genuinely binding.37 My point here is that Cohen, independently of his real influence on Kelsen, can be very useful in order to neutralise some classic criticisms against the Pure Theory and, more generally, to rethink some crucial points of Kelsen’s theory. About the question of the real influence, I fully agree with the ambiguities Edel38 identified in Kelsen’s words. I think two points have to be recalled: first, what Kelsen says seem to prove that more than a real influence there was a surprisingly coincidence between the intuitions of both philosophers; that means that the real influence started to operate after Kelsen recognised the similarity between what he elaborated (without knowing Cohen’s work) and Cohen’s system of philosophy; secondly, the similarity is not really with the Kantian Cohen, but with the Cohennian Cohen: that means that the work explicitly mentioned by Kelsen, the Ethic of Pure Will, was the first piece of a system of philosophy substantially far from Kantian philosophy, and probably more Platonist than Kantian. So, paradoxically, such influence reveals more the Platonist side of Kelsen’s theory than the Kantian one. For sure, the correct way is just to say: starting from the knowledge of this important book, Kelsen wasn’t Kantian nor Platonist: he was essentially Cohennian. But it cannot be ignored that the Cohen influencing Kelsen was not yet really Kantian. My very thin point here is that the Cohennian move from Kant to Plato39 is probably a move toward Maimonides and finally toward a system of philosophy completely inscribed in the Jewish philosophical tradition and significantly away from the philosophy of Kant.40 The real fight probably is between the very influential Thomist natural law tradition and a Jewish-Platonist natural law tradition. Here it seems to me very interesting to note how Kelsen reconstructs the mistakes of Plato and Aristotle when he analyses the philosophies having misconceived the fundamental 35 The

main argument developed by Paulson (2012) in order to reject the thesis of justified normativity—attributed to Kelsen by Raz—is precisely grounded on the relativisation of the importance, in Kelsen’s theory, of the notion of validity qua bindingness. 36 See Ross (1959) and Hart (1961). 37 On this question, for a comparative analysis of Hart and Kelsen, see Puppo (2011). 38 Edel (1998), pp. 197–199. 39 On the Cohennian critical idealism and its relation with Plato, see Poma (1997), especially chap. 4. 40 An aspect of Kantian philosophy is nonetheless rescued by Cohen as characteristic of a Jewish and prophetic ethics: the concept of humanity. Cohen’s regret, as perfectly summarised by Beiser (2018), p. 274, was that “Kant had no idea about the Old Testament prophets, about their messianic ideals, about their dreams for the future of humanity”.

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distinction between Sein and Sollen. In my view, the argument against Plato41 is the less convincing or, putting this in another way, only Plato’s approach can be reinterpreted (or substantially revised), as probably Cohen and Lévinas did, in a way compatible with both the Jewish ethics and the Pure Theory of Law. My provocative question here is the following: if before knowing Cohen’s work Kelsen elaborated very similar ideas, and if such ideas were not really Kantian, is it plausible that some Kelsenian intuitions about the Law and the Theory of Law, were influenced by the same tradition? I am perfectly aware that this is the realm of conjecture, but I do not pretend to demonstrate anything. I can reformulate my point in a thinner way: is it plausible that some Kelsenian intuitions about the Law and the Theory of Law can be interpreted under the light of the same tradition Cohen called into the German philosophical debate, that is, a tradition consisting in a Jewish reading of Plato?42 The first argument against my hypothetical reading seems to be the explicit reference to Cohen’s religious beliefs that, according to Kelsen, probably explained the impossibility for Cohen to embrace moral relativism, so that the latter remains trapped in the cage of natural law theories. But this Kelsenian opinion is at least ingenuous, because precisely his relativism, under the influence of logical as well as legal positivism, is probably the proof of a dogmatic attitude. To be a relativist at the age of logical positivism is pretty much the same than to be a believer at the MiddleAge. Hence my point is that relativism, natural law and religion, are all terms having a very particular—and potentially distorted—meaning at the time Kelsen wrote. As pointed out by Putnam in his work on Wittgenstein and Judaism: to consider religion as essentially “prescientific thinking,” as something that must be simply rejected as nonsense after “the Enlightenment,” is itself an example of a conceptual confusion for Wittgenstein, an example of being in the grip of a picture. It is not that Wittgenstein was against enlightenment (without the capital E); it would be more accurate to say that he attacked the antireligious aspect of the “Enlightenment with a capital E” in the name of enlightenment itself. 43

Kelsen is surely not relativist in the sense that “whatever works” or that we have no argument to justify that some conduct is better, in moral terms, than another. He is just aware that it is not a question of objective values and/or universal truths; but the same word “objective”, for a Neo-Kantian, is meaningless. The only objectivity is provided by the knowledge; the only objectivity is the unity the theorist projects on social reality, on humans conducts. The strong meaning of Kelsen relativism is precisely a meaning fully dependent from the enemy: natural law theories based on the possibility of knowing, by the simple use of reason, objective, natural and universal moral values. 41 Kelsen

(1979), chap. 17, I, pp. 63–66.

42 I am not ignoring the fact that Kelsen (1952b), when he approached the study of biblical sources,

inscribed his analysis in what could be considered the Spinozian tradition. In fact, his study aims to demonstrate the internal contradictions characterising the prophetic discourse. 43 Putnam (2008), pp. 11–12.

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The Kelsenian claim of the unity and unicity of the legal system seems to me not so relativist. There is only one legal system, one basic norm, one chain of validity. The real relativist is the pluralist, not pretending to establish some kind of unity between very different domestic legal systems. But Kelsen is still relativist, and only that matters, because he never renounces to the idea that legal norms can have any substantive content. So that Nazi law is perfectly a legal system, even if its fundamental principles are violations of the basic principles of natural law or some other source of morality. But even on this point, a legal system, to exist, has to include, at least, a norm conferring normative power. So, even if it is completely indifferent if the delegation is to a King, a democratic Parliament or to someone hazardously chosen, such delegation, such authorisation, must exist if we want to speak of a legal system. By the way, both aspects, the specific content of any norm and the generic content (what kind of norm?) are completely produced by the legal normative knowledge. So that all is really relative and contingent, nothing is necessary. Nevertheless, if the legal science does exist, as a fact, then at least a power-conferring norm has to exist, not in the reality, but in the system—constructed by the legal normative science—providing the knowledge of social reality in normative terms. In Cohen’s words, the only truth is “the truth of cognition”.44 The only reality is the reality of the legal scientific discourse. This is the factum, according to Cohen, of ethics.45 This is the factum, according to Kelsen, of a pure theory of law. Is the choice of a given reconstruction morally indifferent? Is the choice of taking as basic norm the basic norm of international law morally indifferent? Kelsen repeatedly says, during his classic period, that from an epistemological point of view it does not matter what the origin is; what matters is that there is one unique origin: he clearly distinguishes what happens in the domain of legal knowledge and what should or could happen in the domain of moral and political preferences.46 But, even if the legal scientist has nothing to say about such political alternatives, he is fully aware that the international foundation means peace, and the national foundation means imperialism and war. If legal science is really a neutral fact, the pure theorist can just register how basic norm is at work; he has nothing to say about which basic norm should be assumed. What kind of intellectual task the activity establishing a relation between a given normative construction and a given international phenomenon (war or peace) is? Who is really engaged in this task? As mentioned in the Introduction, Kelsen’s early works—inspired by the Wolff’s notion of civitas maxima47 —seem not so neutral: he clearly connects the theory of knowledge he proposes, an objectivist theory, to the concepts of humanity and peace; so that, as the only conception of knowledge allowing the legal normative knowledge is the objectivist one, it derives from this that the pacifist alternative is not equivalent to the imperialist one. According to the first Kelsen, the possibility of a pure theory of law is, essentially, an ethical question, as ethical was the Wolff’s notion 44 Cohen

(1904), p. 87. (1904), p. 63. 46 See Kelsen (1960), p. 346. 47 See at least Kelsen (1925, 1928a). 45 Cohen

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of civitas maxima. In Kelsen’s words: “Wolff deserves the merit of first recognizing and expressing the primacy of the international legal order from the standpoint of a pure theory of law”.48 In the next section, I will reconstruct what Kelsen says, in his classic phase, about the theory of Bellum Justum, a masterpiece of the natural law tradition. The ambiguities that still characterise Kelsen’s classic discourse largely seem to demonstrate that the early Kelsen is still alive in the US, and do justify the reading I will suggest in the last section, where I will strongly connect Kelsen’s legal theory—and specifically the distinction between Sein and Sollen—with Levinas’ ethics.

3 Kelsen and the Theory of Bellum Justum: The Sein of the State Versus the Sollen of International Law The place peace occupies in Kelsen’s theory, and in Kelsen’s worries, seems inconsistent with his relativism, or at least suspicious given the purity of his theory.49 In this section, I will first reconstruct two central points in Kelsen’s theory, the identity thesis between law and State, and the monist thesis on the relation between domestic and international law (Sect. 3.1); after that, I will propose a reading grounded on the distinction between Sein and Sollen (Sect. 3.2).

3.1 The Theory of Just War and the Legal Nature of International Relations A long tradition of scholars denied that international law is law. Such thesis has been defended with different nuances50 ; despite these nuances, the need of demonstrating its falsity has played an important role in the construction of legal theories, or international legal doctrines, peace-oriented, especially the Kelsen’s one. There is a strong link, in Kelsen’s theory, between the existence of international law as law, and the possibility of peace. I will just say—for the moment—“a strong link”, without any further precision because such link, depending on the point of view adopted, can be conceived as conceptual, functional, moral, or any combination of them: it is not clear how morally compromised the claim is. What is clear is the connection he establishes between the theory of just war and the existence—or the scientific possibility—of international law. Kelsen’s strategy is evident when he analyses, in the General Theory of Law and State, the problem of war—and particularly the theory of bellum justum—, and he 48 Kelsen

(1928a), p. 249. Paz (2012), von Bernstorff (2010), and Puppo (2015). 50 For a precise reconstruction, see Lauterpacht (2011), pp. 408–411. 49 See

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raises the question, internal to law, of the relationship between international and domestic law.51 According to Kelsen, there are two interpretations, incompatible between them, regarding the relationship between war and law: an interpretation does not adhere to the doctrine of bellum justum; the other does adhere to the doctrine of bellum justum. When faced with making a choice, “objective science is not able to decide for or against one or the other”.52 However, given that the first interpretation must assume the inevitable consequence of not considering international law as authentic law, we must choose the second interpretation only because it accepts that international law is law: “It is not a scientific but a political decision which gives preference to the bellum justum theory. This preference is justified by the fact that only this interpretation conceives of the international order as law”.53 This characterisation—establishes Kelsen—seems adequate given the evolutionary tendency of international law. In effect, even if the primitive character of international law is admitted, if the evolution of national law is taken as an example, “there can be little doubt that the international law of the present contains all the potentialities of such an evolution [toward the domestic model]; it has even shown a definite tendency in this direction”.54 Kelsen adds: “Only if such an evolution could be recognized as inevitable would it be scientifically justified to declare the bellum justum theory the only correct interpretation of international law”.55 As Kelsen’s scientific rigor cannot stay with this sort of prophecy, he clarifies that: “Such a supposition, however, reflects political wishes rather than scientific thinking. From a strictly scientific point of view a diametrically opposite evolution of international relations is not absolutely excluded”.56 Kelsen comes to a surprising conclusion because, even though he recognises that the tendency towards unity is not necessary, he claims to have demonstrated that international law can be considered law in the same sense domestic law is considered law; as a consequence, he establishes the epistemological relevance of the analysis of the relationship between international and domestic law, to which he dedicates a section of his General Theory of Law and State. A careful reader would surely note that Kelsen says “can”. But this possibility depends on a tendency that is no more likely than the opposite tendency. It seems that the acute observation of another Viennese mind perfectly captures the situation: “I can’t be making a mistake; and if the worst comes to the worst I shall make my proposition (Satze) into a norm (Norm)”,57 Kelsen’s Grundnorm, in its “as if” version, is perhaps a proposition whose truth Kelsen suspects (or accepts) he was mistaken about, but that it Ought to be truth. 51 Kelsen

(1945), pp. 395 ff. (1945), p. 341. 53 See Footnote 52. 54 See Footnote 52. 55 See Footnote 52. 56 See Footnote 52. 57 Wittgenstein (1969, para. 634). 52 Kelsen

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However, it is a fact that such a truth, or the possibility of it (in the future), is confirmed, reaffirmed, tirelessly, as a “mantra”, essentially written in the same terms from the first to the second edition of the Pure Theory. It all suggests that the evolutionist argument should be taken seriously. I will reproduce the argument as it was formulated in the first edition of the Pure Theory: Evolution in terms of legal technique, alluded to here, tends in the end to blur the distinction between international law and the state legal system. The result is that actual development of the law, directed as it is to increasing centralization, appears to have as its ultimate goal the organizational unity of a universal legal community–that is, the development of a world state. At the present time, however, there can be no talk of a world state (emphasis added).58

The theme of just war, key to the Kelsenian reasoning I have just reconstructed, is not a topic among others. Much of it, if not all, from the perspective of the Pure Theory, does depend on the possibility of conceiving the war as a sanction. Just war would be the sanction for war as an (illicit) act of aggression. If and only if we understand the war as a sanction applied by the international community against the States, then we can defend the legal character of the international legal system.59 Inasmuch international law is a set of conditional norms whose antecedent is an illicit act and the consequent is a sanction, Kelsen should recognise the incomplete character of international norms. An international legal norm, to be a norm in the full sense of the word, does require domestic law. The Kelsenian monist theory (in its epistemological version) is what allows us to assert the unity of international and domestic law and, given such unity, it is possible, within the same normative system, to complete the flawed international laws with the application of sanctions whose practical relevance—in other words, their coercion—necessarily depends on some norm belonging to the domestic legal system: The foregoing analysis of international law has shown that most of its norms are incomplete norms which require implementation by norms of national law. Thus the international legal order is significant only as part of a universal legal order which comprises also all the national legal orders.60

3.2 The Sollen of International Law as the Aufgabe of Legal Knowledge The analysis of the whole argument allows pointing out two dimensions permanently present and probably struggling in Kelsen’s view of international relations. The realist and positivist Kelsen perfectly knows how the world is, and how difficult is to go beyond the dogma of sovereignty. But another Kelsen—I avoid, at the moment, the 58 Kelsen

(1934), p. 111. (1934), p. 18. 60 Kelsen (1952a), p. 403. 59 Kelsen

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use of a specific qualification—is always ready to imagine some future in which the project of a universal or global legal community will be achieved. Between these two dimensions there probably is a third one, the perspective of the constitutional designer. The view about the future is not just an irrational hope; given the actual state of international relations, Kelsen is able to sketch out what kind of legal reforms can eliminate the gap between the hard belligerent reality and a future peaceful world. This third dimension, I guess, corresponds to (and somehow caused) the actual tendency in international legal theory, sometimes called critical positivism, or realist global constitutionalism: one of the more explicit tenants was Antonio Cassese and notably his latest book.61 I am not interested here in commenting each of these three dimensions. What is important is the existence of such three dimensions, and particularly the radical consciousness of the difference between the international legal context as it is, and a possible future for it. The question I will address is about the meaning of such “possible future”. The question is not about “how possible it really is”, but about the relation between the present and the “possible future”. Are they two points in the same time-line? Is it a question of progressive change or radical transformation? Are legal reforms a necessary tool or are they irrelevant? The same questions can be rephrased in the terms of the distinction between the Sein and the Sollen: is such transformation something possible in the realm of Sein? Is such transformation compatible with the perseverance of the Being of actual States? In order to think about it, the criticism, by Kelsen, of the dualist thesis on the relation between State and law is extremely relevant. According to a mainstream dualist conception,62 the State exists before the law, and then, once the law has been created, the State freely decides to submit itself to legal obligations. If there is not such thing called ‘international law’, the dualist theory is more than plausible. And, if there is an international legal order, it is more plausible to conceive the State as a mere set of spheres of validity of legal norms, legal norms whose source of validity is necessarily international. The following point is the more theoretical and genuinely Kelsenian: the distinction between the Sein and the Sollen. The Sollen is the specific nature of norms. More precisely the category of Sollen is the conceptual frame allowing the description of social reality in normative terms. The category of imputation plays the same role in normative sciences than causality plays in natural sciences. The content of a norm, a given conduct, can be observed or not. Given the norm forbidding murder, it is possible that people omit such conduct, or that people ignore the norm and kill. The fact that people observe the norm is not constitutive of the norm. Its Sollen derives from another Sollen; nothing in the realm of the Sein can be invoked in order to sustain the existence of a norm. Eventually—Kelsen did not deny this—the fact of a systematic inobservance or no application (the total lack of 61 Cassese

(2012).

62 Kelsen’s first doctrinal enemy is Jellinek’s theory of State. The criticism to such thesis is probably

the first great Kelsen’s contribution to legal science. See Kelsen (1923).

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efficacy) of a norm can reach to its no-existence, but the simple fact of some Sein cannot originate a Sollen. The distinction between Sein and Sollen is not the object of conceptual analysis. In Kelsenian words, we can think of the notion of Sollen what Moore thinks of the notion of Good.63 It is an elementary concept; we cannot explain it; we just know what the difference is, we can’t explain it but we don’t need to explain it. I will return to this point later. Applied to the monist thesis, this distinction provides some interesting insights. From a sociological perspective, or from the perspective of a given political theory, it is hardly deniable that the State, as a human organisation that centralises the monopole of coercive power, does exist in the realm of Sein. Given the same theoretical framework, it is also plausible, for instance, to affirm that there is not a Global State. The Global State belongs, conceptually, to the realm of Sein, but as something that “is not”. In Levinassian terms: the absence of something is just the negative manifestation of its Sein. In Kelsenian terms: the conceptual category necessary in order to affirm the non-existence of something, that something is not, is still the Sein. The same can be said about norms. A norm as a Sollen is the Sinn of an act of will. The sinn of a given act of will is a norm, even if such act of will has not been produced. Of course such a norm, without the corresponding “real” act of will, cannot be a norm belonging to a given positive legal order. But that not means that it cannot be a norm.64 In the realm of Sein, there are both existing and not-existing things. In some case, something not-existing today aspires to exist tomorrow. But, the no-existence today, the aspiration itself and the existence tomorrow, are all manifestations of Sein. In a secessionist situation the people or nation that claims its independence does not exist as a State, but everyone can represent its existence, as a State, in a possible future. So, the concept of State can help to describe something existing in the realm of Sein. Domestic legal systems can also be described as existing in such realm, as far as the positivist classical view conceived the law as a set of general commands promulgated by a sovereign (a man or a group of men) and to which the people (the subjects) generally obey. From this point of view, it is perfectly understandable that international law is not. If we adopt a Sein perspective, international law is not because there is not a global sovereign, there is not an international people or power. But the point is not here. Nobody, not even Kelsen, denies that such international community is not, that there is not a centralised global power using the force in order to guide the international social conduct. The real question is not whether international law is or is not. The real problem is philosophical; any understanding of law supposes a different conceptual framework: the Sollen and not the Sein. Therefore, to say that international law is can mean that international law, as Sollen, is. Hermann Cohen dedicated a big effort to explain

63 Kelsen

(1960), footnote to p. 5, para. I.4.b, omitted in the English edition. (1997) developed, in my opinion, the finest argument in this sense.

64 Caracciolo

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the Being of the Sollen65 : the Being of the Sollen of international law is the task of legal science. Legal normative science constitutes the concept of juridical person, and such concept is the basis for the Cohennian understanding of the concept of the I (Ich) or of the Self (Selbst)—he is not consistent when using these terms.66 The I is precisely conceived as a task, and not as a Kantian substance (as a given): The mistake which stuck in Kant’s concept of autonomy is that the self is thereby assumed and presupposed as a given being, already existing, as being; and in the moral action, as its manifestation, it should only be revealed and stated. That is the methodical mistake. The self is by no means already there, not even in its ideal form, before its manifestation; and it is not enough that it manifests itself, because it must first be produced. And it can only be produced by the legislation. In this and by virtue of this the action is constituted. (…) The action is no longer merely the unfolding of the self; but it is conditioned by the legislation, which is the legislation of the self, so that the self is conditioned by the law. So the selflegislation (Selbstgesetzgebung) is not the legislation from the self, but toward the self.67

The Self is only produced by knowledge. The task of normative knowledge is precisely to make possible the concept of I. The Kelsenian Sollen, as imputation of responsibility, is the way to become an I, an ethical I. Liberty is not, as in some dominant natural law tradition, the source of natural human rights; liberty is the fundamental concept without which the concept of responsibility would not be possible; but what makes the biological individual a human subject is not liberty, but responsibility. And any idea of responsibility is necessarily linked with the responsibility toward a “You”. The ideological, essentially pacifist, move is not a move in the field of political facts or political utopias, but a move in legal philosophy. The Cohennian Kelsen applies the transcendental method to positive law, so that the law appears as a normative construction, in which what counts as law depends ultimately on what the legal science captures on the basis of its normative knowledge. The conclusion according to which domestic and/or international social relations are normative does not depend on something happening in the realm of Sein; it depends on whether a legal science assumed the same normative category (Sollen) when describing them. Moreover, the relevant fact is not the existence of some norm, but the existence of some normative discourse. The most relevant Kelsenian point, in my opinion, is that, on the one hand, he does not affirm that it is necessary to assume the normative category of Sollen or the basic norm; on the other hand, he insists that it is undeniable that the normative discourse of legal science exists. It exists as a fact. In this sense the pure theory of law is a theory trying to explain some social fact, the fact of the normative discourse produced by legal scholars. Eventually, it is possible to accuse Kelsen of parochialism, as far as he is taking as relevant fact the continental legal discourse. Parochial or not, I will assume that, 65 See

Cohen (1904), pp. 370–371, where he affirms that the Is of the Sollen is precisely the Is of the task. 66 See Cohen (1904), p. 324, where he refers to the Ich—“The I (Ich) of ethics, however, is and remains a task (Aufgabe)”—, and p. 327, where he refers to the Selbst—“the self (Selbst) is merely a task”. 67 Cohen (1904), p. 321.

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following Kelsen, it is plausible to affirm the existence of a normative legal discourse. According to Cohen, ethics is precisely the science having as its object the normative legal discourse. Cohen clearly argues for an ethical conception of normative legal science. Legal science is compromised with its object. But, first question: what is the object? The object, according to the Cohennian critical idealism, is completely constructed by the scientist, so that there is nothing ready to know: “Die Einheit des Urteils ist die Erzeugung der Einheit des Gegenstands in der Einheit der Erkenntnis”.68 The creative function of judgments aims, above all, to create unity without negating diversity. In this sense, the central task of logic, in causal as well as normative sciences, is to unify: “Unification must not be taught as en event, whose fulfillment has been reached, but as a task and the ideal of a task, in the way only logic can posit such a task, and formulate such an ideal”.69 Knowing and unifying are in an important way inseparable: to know something is to unify, and to unify under one and the same conceptual category is to create the object of knowledge.70 If we assume that the central positivist thesis of epistemic neutrality is in danger, if we assume that the scientist is compromised with what she describes, a question still remains. With what, exactly, is he compromised? In the case of Cohen, he is simply compromised with the Sollen. Such compromise does not mean, or determine, any normative content. The compromise is with the idea of human duty, not with some particular duty. In this, Cohen, following the Talmudic tradition, is completely realist. There is nothing normative before the interpreter gives normative life to a text. In the next section, I will try to demonstrate that the link between the Pure theory of law and peace is metaphysical, and for the same reason it is not ideological. Maybe the price to pay in order to purify Kelsen’s pacifist claim from any ideological impurity, is constituted by the attribution to Kelsen of a clear theological dimension, but, following Lévinas, it could be a theological dimension without any concession to the onto-theology, and, as such, potentially compatible with the death of God celebrated by Nietzsche; a religious dimension, according to Cohen, that is essentially ethical; but an ethical dimension that is radically no-natural and potentially compatible with any specific normative content, that is, potentially relativist about the what, but religious about the how.

4 Kelsen, with Lévinas, Toward Peace: Basic Norm, God’s Will and the I-Thou Philosophy The notion of basic norm changed through Kelsen’s theory; in a first moment, it was conceived as a typical neo-Kantian notion: a logical-transcendental category, presupposed by legal science; in the last works, Kelsen rejected any possibility of a 68 Cohen

(1902), p. 56 (“The unity of Judgment is the production of the unity of the object in the unity of knowledge”). 69 Cohen (1902), p. 53. 70 Generally, on this aspect, see the very insightful analysis by Poma (1997), especially pp. 82–97.

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norm not being the Sinn of an act of will, and finally conceived the basic norm as the meaning of a fictitious act of will (Sect. 4.1); such changes suggest to analyse the plausibility of a theological interpretation, according to which the basic norm would be the meaning of an act of will that is not, to the extent that no human being can be identified as the author of such act of will. But as any act of will, even if its author cannot be human, the act of will which meaning is the basic norm should be directed to someone, a human being. The way in which Hermann Cohen conceives the normative relation between God and Moses, and the relation between the text and its normative contents, seems to help to understand Kelsen’s theory of norms and the nature of God, not contaminated by Being (Sect. 4.2); finally, the way in which Emmanuel Lévinas conceives the face of the Other—as the God commanding the human being—can help to construct a bridge between the basic norm, as ultimate foundation of the normativity of law, the Sollen, and the religious infinite responsibility (the task toward the Other, and toward peace) (Sect. 4.3).

4.1 The Basic Norm as the Meaning of an Act of Will Otherwise than Being According to the General Theory of Norms, the basic norm is a norm which is the meaning of an act of will that cannot be real: It is not a posited norm, posited by a real act of will, but a norm presupposed in juridical thinking, i.e. a fictitious norm (…). It represents the ultimate reason for the validity of all the legal norms forming the legal order. Only a norm can be the reason for the validity of another norm.71

There is an ambiguity in the idea of fictitious norm: It should be noted that the Basic Norm is not a hypothesis in the sense of Vahinger’s philosophy of As-If–as I myself have sometimes characterized it–but a fiction. A fiction differs from a hypothesis in that it is accompanied–or ought to be accompanied– by the awareness that reality does not agree with it.72

The first ambiguity is about the notion of hypothesis. Is Kelsen rejecting the Cohennian logic of origin and its Method of Hypothesis? Is the hypothesis in the sense of Vahinger the same than the hypothesis in Cohen’s theory of knowledge? I guess that they are not the same but I will not develop an argument on this because it would go beyond my scope. The second ambiguity is much more relevant. Is the absence of a real act of will what makes the norm fictitious? What is fictitious is clearly the act of will: there is nobody willing in the real world. There is not an imperative (as linguistic expression of the will). There is no doubt about that: the act of will is not real, so that, by definition, it is fictitious. But: does it mean that the norm is fictitious? 71 Kelsen 72 Kelsen

(1979), chap. 59, 1, C, p. 255. (1979), chap. 59, 1, D, p. 256.

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The norm does not belong to the realm of Sein. In the realm of Sein there are acts of will, human conducts eventually determined, causally, by the fear generated by the threat formulated by the commander… etc. But there are no norms. The norms appear only after the presupposition of the basic norm. In a strong sense, all the norms are the product of the normative knowledge provided by normative sciences, so that they are all, in a sense, fictitious.73 The only real difference is that when justifying the legal power of the first Constituent power, the legal science cannot identify, in time and space, an act of will having authorised the first Constituent of a positive legal system, or Moses, or whatever first normative authority: From the point of view of the Basic Norm, both a positive moral order and a positive legal order are a norm-generating complex [Erzeugungszusammenhang] inasmuch as the Basic Norm only specifies who is to posit the norms of the moral or legal order, i.e. only the ultimate norm-positing authority, without specifying the content of the norms to be posited by this empowered authority.74

Therefore, what is fictitious is the act of will, not the norm. The norm is just the norm, with its existence as Sollen; what happened in the world of Sein is in a significant way not so important. A more careful way of expressing the same point would be to say that it is a fictitious positive norm, and as such, at the moment of denoting the concept of positive norm belonging to the normative (legal or moral) system X, the basic norm would not be included in the semantic extension of the expression “positive norm belonging to the normative system X”. But if the norm is a Sinn (the intension, and not the extension, using the Carnap’s terminology) of an act of will, the problem of reference (Bedeutung) only concerns a given legal system. The basic norm is a real norm (real in the sense that it is a real Sollen, an entity belonging to the realm of Sollen), but it does not belong to any given positive normative system. It does not belong to any given normative system, but it is the ultimate foundation of any normative system. Kelsen develops his idea by giving several examples of moral, legal or religious normative systems. But if we couple the idea of basic norm with the monistic theory, it is clear that the basic norm is the ground of validity for any norm, whatever its specificity is (moral, religious, legal, domestic, international, etc.). I think it is here illuminating to use a distinction Novak borrowed from the Protestant theology: the basic norm could be the expression of the general revelation of God—the general revelation being “how the general authority of God become manifest in the world”75 ; the special revelation would consist in the concrete set of commands which objective is to regulate social life (of a nation or of the humankind, it does not matter). It is interesting to reconstruct the reason why Novak, from his strong

73 See

Comanducci (1998), p. 150. (1979), chap. 59, 1, E, p. 257. 75 Novak (2004), p. 244. 74 Kelsen

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religious perspective, considers that the only general revelation cannot produce the “cultural satisfaction that comes with special revelation and its tradition”76 : (…) general revelation of universalizable ethics is too abstract, too ‘thin’ to be the content of a complete human life in community: either in relation to God or in relation to fellow humans. Regarding God, at this general ethical level we are relating to God in a situation mediated by the image of God. But here is there not always the danger that God becomes for us nothing more than what Kant called a postulate of pure practical reason (…)? Is there not the danger that God becomes for us something like Levinas’s l’autrui, that “otherness” which keeps all fellow human “others” (les autres) out of our “totalizing” grasp?77

General revelation is compatible with moral relativism if we conceive it as the impossibility of true moral judgments. Any moral judgment is relative to its author, and refers, in the case of religious moral judgments, to a given special revelation. But the possibility of moral judgment is not relative: it is necessarily linked to the idea of Sollen. This is so, not only for moral judgment but also for legal judgment: in both, what matters is that a given human conduct ought to be. When speaking of the basic norm of a positive legal system, the natural factual reference is the existence of a text. The text is the typical example of what positivists called a social source. What do we perceive, in the empirical world, of the act of will that underlies the validity of the first Constitution? The datum is a Constitution as a text: what we know is a text. In the world of being the text is a set of sentences, that is, linguistic expressions conveyed by a written support. But this text only acquires a normative meaning once the legal science, through its interpretation, formulated it. Thereby the text, in itself, is a thing. Such a thing, before interpretation, is a meaningless thing. I think it is illuminating, in order to show how compatible general revelation and relativism are, to reconstruct, even if briefly, what Cohen says about the Torah.

4.2 God, the Text, and the Human Determination of Normative Contents What Cohen says about the Torah is of the most importance in order to understand the relationship between I and You and the nature of the basic norm as the source of all duties which, however, according to Kelsen, only authorises the first legislator. The first constituent is the creator of the first constitution, of the first text. No one, I suspect, believes that the words of the Old Testament have been written, in the world of Sein, by God. The writings are the work of human being having shaped in them the will of God. According to Cohen, the text is central, but its meaning is determined by the interpreters, who comment the text. There are no norms, nor is there a will of God that 76 Novak 77 Novak

(2004), p. 246. (2004), p. 244.

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supposedly created them, before their normative knowledge produced by a normative science. As recalled by Almut Sh. Bruckstein, According to Cohen, classical Jewish sources are texts whose immediate meaning is as absent as any immediate manifestation of God, yet whose presence is as commanding as the voice at Sinai. Cohen’s principle of origin demands “there can be no givens at the inception of thinking” [dem Ursprung darf nichts gegeben sein]. The same is true for the peculiar hermeneutics of the Jewish oral tradition: nothing must restrict the process of interpretation and commentary, precisely for the sake of the holiness of the divine teaching.78 The meaning of the text, or, as Cohen would say, the meaning of the source, begins to speak and thus comes to life with commentary. Cohen advocates the simultaneity of text and commentary, and therewith an ahistorical, but highly traditional, hermeneutical method. He claims that classical Jewish sources originate in commentary (…).79

If the more plausible influence on Kelsen was precisely exerted by the Cohennian logic of origin, it is intriguing that beyond the transcendental origin, the basic norm, a hermeneutical origin can be found. Both are normative science’s tasks; but from a transcendental point of view, the origin is just the conceptual origin, the a priori category of Sollen—with the basic norm as the first Sollen. As Cohen precised in the Introduction to his last work on the Religion of Reason, “even if I am referred to the literary sources of the prophets for the concept of religion, those sources remain mute and blind if do not approach them with a concept which I myself lay out as a foundation in order to be instructed by them and not simply guided by their authority”.80 From a positivistic legal point of view, the origin could be the interpretation, provided by the legal science itself, of a fundamental text. Legal science is an ambiguous concept, and in Kelsen we can find at least two dimensions of it: the dogmatic legal science interprets the sources of a given normative system, it originates their normative meanings, that is, it is the origin of positive norms; the general legal science corresponds to the pure theory of law. Kelsen describes it in the first sentences of the second edition of the Pure Theory of Law: The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal order. It is a general theory of law, not an interpretation of specific national or international legal norms; but it offers a theory of interpretation. As a theory, its exclusive purpose is to know and to describe its object. The theory attempts to answer the question what and how the law is, not how it ought to be. It is a science of law (jurisprudence), not legal politics.81

What many Kelsenians do question is whether the Pure theory is a theory of positive law or a theory of legal science (as science of positive law).82 In the second case, the factum of the Pure theory of law is the scientific discourse produced by legal science. The pure theory of law, as Cohennian’s ethics, is then a theory on/of 78 Bruckstein

(2004), p. XXXI. The author quoted Cohen (1902), p. 33. (2004), p. XXXII. 80 Cohen (1917), p. 4. 81 Kelsen (1960), p. 1. 82 See, at least, Vernengo (1986). 79 Bruckstein

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the possibility of such scientific normative discourse.83 The ambiguity in Kelsen’s terminology resides in the (no clear) distinction between a theory of positive law and a theory of a given positive law. When Kelsen speaks as neo-Kantian, he refers to the former, when he speaks as a positivist he refers to the latter. Schmill describes the transition from the former to the latter as the “empirification of philosophical problems”.84 Another interesting point is the implicit reference by Cohen to a kind of I/Thou relation between Moses and God, a relation that anticipates the path toward Lévinas: Jewish tradition has it that the written Torah was originally meant as a private, oral teaching for Moses alone, that it was conceived of in a strictly dialogical situation in which God spoke and Moses listened, and that Moses’ very sharing of his Torah with the people of Israel was a voluntary act, an act of personal kindness and generosity.85

So, if it is a fact that God was not the writer of the Torah, what Moses shared was a teaching whose empirical author was Moses himself, but whose moral authority came from God’s will. In order to obey Moses’ teaching, his teaching ought to be conceived as having a superior source, that is, as valid qua binding, precisely according to Kelsen’s theory. But if law is to intelligently order our interpersonal desires in such a way that the common good is properly served, how could that law be the product of the desires of any of those who need to be governed by it? Thus it must come from the will of someone not governed by it. Once there is an externally imposed law on our desires, here is a god of some sort or other. It would seem that we only want to obey someone generically different from and superior to ourselves.86

So the source of our responsibility cannot be something that is—something like us—, but something otherwise than being, radically other: the transcendent face of the Other, firstly represented by the face of God. But as God has not a face, according to Lévinas, God is showing his face each time we respond to the call for our infinite responsibility. Any face is God’s face, any human will is God’s will. As anticipated, Lévinas’s God is a God not contaminated by Being. Lévinas, in some sense, agrees with Nietzsche when he affirms that God is dead. But such statement deserves some further explanations. In the General Theory of Norms, the explanation of the concept of basic norm is constantly supported by references to God. The relevance of God is not, of course, in order to say something about legal positive systems. But the way in which a basic norm works is identical. God was also present at the moment of explaining the notion of Sollen, when Kelsen insists on the necessary relation between a norm and an act of will. Such act of will can be imaginary, as far as the will of God can be conceived from an atheist perspective. 83 According

to Métall (1969), p. 15, the expression itself “Pure theory of Law” was the result of the influence exerted by Cohen. 84 Schmill (2004), p. 130. See, on the distinction between dogmatic and pure legal science, pp. 127– 130. 85 Bruckstein (2004), pp. XXXIII–IV. 86 Novak (2000), p. 594.

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But something has to be said about the meaning of the atheist perspective. If atheism is the belief according to which God does not exist, atheism is not a position against God, but just against the statement that God exists, as Being. Nietzsche can be taken as a very good example of reactive atheism: according to him, what is dead is a certain conception of God, namely the Christian God, a God with is ontotheological foundation and its institutional dimension, the Christian Church. But Nietzsche seems to be open to the possibility of another God. According to Calvin O. Schraq: The proper name for Nietzsche’s atheism (…) is “reactive atheism.” (…) If not a negation of God in every sense conceivable, (…) it calls for a negation of the concept of a supernatural being in classical theism as well as a negation of the God of cultural Christianity. He is quite positive in his assessment of the original Hebraic concept of God and sees the so-called progression of the concept of God from the “God of Israel” to that of the “Christian God” as a retrogression. The most regrettable error of the Christian concept of God is that it portrays a denatured and enfeebled god, a deity divested of power. At this juncture it is tempting to fill the space opened by the negation of the Christian-baptized Greek-inspired deity with a new concept of God as the superlative exemplar of the will of power.87

I think two points have to be highlighted: the first is the association between the Christian God and the Greek world and its naturalism.88 It is such a combination that generates the strong tradition of natural law against which Kelsen mostly writes. The second point is the accent posited on the will. On the one hand, the God that is, easily identified with the nature or substituted by the reason; on the other hand, a God as Pure will, a God commanding his people and/or humanity, but also a God empowering humans whose human commands are valid norms (that is, binding) precisely because of the Pure will of God. What matters if God does not exist? What exists in the juristic consciousness of God’s will. Why God’s will and not just an imaginary of fictitious will? Because, retaking a Wittgenstein intuition, the narrative of legal science has traditionally been a narrative informed by God, so that the idea of God’s will works as a good image, a useful guide to the normative life, or to life tout court.89 But also because—as pointed out by Novak in the text quoted above—no human (equal) can pretend the authority to impose duties. The Pure will or the will of power—I am not saying that they are the same—are perfectly coherent with what Kelsen repeats several times in the General Theory of Norms: the will is not oriented to a conduct, to a Sein, but to a Sollen. I will that some conduct ought to be, I do not will the conduct itself, because nobody has the power to determinate someone else’s conduct. The commander expresses his will, the addressee understands such command as a valid norm, and then he addresses to himself the same command: “The one who command (or who posits a norm)

87 Schraq

(2002), pp. 46–47. About Nietzsche speaking of the God of Israel, he refers to The Antichrist. 88 According to Cohen (1904), p. 14, such association was achieved by Stoicism. 89 I borrow the expression from the title of Putnam’s book. See Putnam (2008).

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wills something; the one who is commanded (or whose behavior is decreed to be obligatory in a norm) ought to do something”.90 That is the reason why only humans can be the addressees of norms, and not animals or plants,91 incapable of normative power. So the will is essentially the will directed to the power of the addressee, the normative power of self-obligation. For a person can only will his own behaviour. A can only will that the other person is to do something. That is the difference between willing directed to one’s own behaviour and willing directed to the behaviour of another person. In the case of an act of will directed to the behaviour of another person (i.e. in the case of a command), the meaning of one person’s command is not the other person’s behaviour, but the Ought of the other person’s behaviour commanded in the command.92

According to Kelsen, such power of self-obligation is the only meaning in which we can speak of moral autonomy.93 A subject is autonomous because he is responsible, the addressee of a command imposing a duty: Morality is not autonomous in the sense that general norms are valid only if they are posited by the individual whose behaviour they concern; for general norms originate in custom of are posited by outstanding personalities such as Moses, Jesus, and Muhammad, and to that extent morality is heteronomous. But morality is autonomous in the sense that these general norms can be applied to concrete cases only through individual norms which the individual addresses to himself in recognition of the general moral norm (...).94

This is precisely the opposite of the (Kantian) classic thinking according to which the subject is responsible because of his moral autonomy. This is a Copernican revolution in ethics, completely achieved in Lévinas’s ethics.

4.3 From the Transcendental Postulate of Basic Norm to the Ethical Experience of God and Peace According to Lévinas,95 in the relation I-You, it is not a word that commands, but the face of the Other. The commanding is the Other. Because I recognise—or, more precisely, I respond to—his command, I am not a plant or an animal, but human. The presence of the face is pre-original. It is a step further than the logic of origin Kelsen borrowed from Cohen. The logic of origin is a master peace in a theory of normative knowledge: the origin has to be presupposed, the basic norm has to be presupposed. But before any conceptualisation, according to Lévinas, we can have the experience of the normativity of the Other, source of our infinite responsibility. 90 Kelsen

(1979), chap. 8, VII, p. 28. (1979), chap. 8, VIII, p. 29. 92 Kelsen (1979), chap. 11, V, p. 44. 93 See Footnote 91. 94 Kelsen (1979), chap. 12, p. 48. 95 In this section, my reconstruction of Lévinas’ though is essentially based on Lévinas (1978a). 91 Kelsen

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The normative science conceptualises such pre-original Saying, transforming it in a set of Saids: first the concept of Sollen, then the normative contents reconstructed by normative scientists. The Sollen can be just a conceptual category, and so it is possible to avoid any further investigation. It is in this sense that Kelsen always says that it is not necessary to presuppose the basic norm. If it is the case, it is difficult to not interpret Kelsen’s pacifism as an ideological move. Nevertheless, the phenomenological ethics proposed by Lévinas provides the missing piece in order to link the concepts (or the ethical experiences) of peace and norms (Sollen), on one side, and the concepts (or the ethical experiences) of war and reality (Sein) on the other. For the moment it is instructive to start with the way Lévinas traces the origins of his idea of God in both a Jewish and a Christian philosophers: From Buber’s and Marcel’s first description of it, the word God is pronounced, as if it shed light upon the space in which the rectitude of the dialogue can take form. You par excellence. ‘Eternal’ you, offering itself to invocation rather than observation or experience: an invisible God. The pronoun you is not put in place of some noun to designate a substance: a this or a that that would in addition be qualified as you. Here the nominative of the noun is left behind by the vocative, which is not the denomination of beings. The thesis with which Buber’s I and Thou opens affirms that the I-You relation is not reducible to the I-It. The you does not presuppose the that. A logical paradox, a counter-natural figure, that way in which the you does not rest on a that in the neutrality of the ‘there is’ is the opening up of a dimension in which to mean does not refer to being. God is conceived of outside the world or beyond being, in dis-inter-estedness.96

If Buber probably is who made famous the I-You philosophy,97 the way he conceives the relation is still too much Kantian, and useless for legal purposes: he conceives the I and the You as equals, and the responsibility as a matter of reciprocity.98 Instead of this, for both Cohen and Lévinas the I-You relation is radically asymmetrical as the relation between God and humans or the one between the legal commander and the commanded. The last sentence of Lévinas’s quotation does contain in a nutshell my whole argument: the “dimension in which to mean does not refer to being”, is precisely the normative dimension of the Kelsenian Sollen as the meaning of an act of will. Such world, the world of Sollen is precisely beyond being, not just a different form of being: incommensurable with the Sein; in a thin sense, the Sollen transcends the Sein. Finally, according to Lévinas, the world of Being is the world of interests requiring satisfaction. It is known that Kelsen rejects the dominant conception of subjective legal rights based on the notion of interest, and that he replaces it by a conception 96 Lévinas

(1978b), p. 94. Buber (1937), considered, according to the English translator, as “one of the epoch-making books of our generation” (p. V). As recalled by Putnam (2008), p. 61, even if the English title of Buber’s book was, and still is, I and Thou, there was no reason for using Thou instead of You. For that reason inside the book the Thous was replaced by Yous. 98 The same deep difference exists between the very famous contemporary moral philosopher Darwell and Lévinas. See Barber (2008). 97 See

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based on the duty: I have a subjective right if and only if someone else has the correspondent duty and there is an authority competent to eventually order the use of force against him. The priority given to subjective rights over duties becomes disastrous (for peace) when natural rights are imputed to States. The first natural right of a State is its sovereignty and the ius ad bellum that is implicit in it. As any natural right, its source is something existing in the realm of Sein. The link, in Kelsen, between the Sollen of law and peace, as well as between the Sein of State and war, has been perfectly reconstructed by Reut Paz: (…) although Kelsen stressed that the manner in which the law, as a coercive legal technique, is to be used remains a political unscientific decision, he opted for ‘legal pacifism’ together with the principle of bellum iustum. Kelsen united pacifism and his legalism to the extent that the two become identical: there cannot be peace without there being ‘law’, and there cannot be ‘law’ without the postulate of peace. Because the consequence of accepting the primacy of state sovereignty over international law serves the political ideology of imperialism, then the embrace of the politics of pacifism should be, according to logic only, the ideological choice. Legal pacifism is Kelsen’s ethical answer to the dichotomy between international law and sovereign state nationalism; objectivism and subjectivism, etc.99

Reut Paz bases her statement on what Kelsen says in his great work on sovereignty: The legal unity of mankind (Menschheit), which is only provisionally divided in states formed in a more or less arbitrary way, is the civitas maxima as an organization of the world (Organisation der Welt): this is the political core of the legal hypothesis of the primacy of international law (Primate des Völkerrecht). But this is, at the same time, the fundamental idea of pacifism, which represents, in the field of international politics, the opposite of imperialism. For an objectivistic conception of life, the ethical concept of the human being is the concept of humanity. In the same way, for an objectivistic legal theory (Objektivistische Rechtstheorie) the concept of law is identical with the concept of international law and, precisely for this reason, an ethical concept (etischer Begriff ).100

Lévinas’s ethics allows to the substitution of the abstractness of a transcendental postulate by the concreteness of the ethical experience, the Totality of the civitas maxima by the Infinity of the human subject and his responsibility. Despite Kelsen’s good intentions, or Cohen’s religious rationalism,101 peace cannot be achieved by legal science. Peace is not just a matter of knowledge. In Kelsen, the link between the theory of knowledge and peace is explicit in several works of the 1920s as the Lecture102 deeply analysed by Langford and Bryan whose conclusion is that the “assertion of the primacy of international law is a ‘particular application’ of an objective theory of knowledge”.103 99 Paz

(2012), p. 223. (1928a), p. 319, quoted by Paz (2012), pp. 223–224. About Christian Wolff and his concept of civitas maxima, see also Kelsen (1928a), pp. 249–250. 101 Gibbs (1992), pp. 177 ff, clearly reconstructs “the distance between Cohen’s rational idealism and Lévinas’ phenomenology”. 102 Kelsen (1926). 103 Langford and Bryan (2013), p. 101. 100 Kelsen

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In this idealistic work,104 as well as in the almost contemporary General Theory of State, Kelsen seems to adopt a kind of I-You perspective. In fact, the Sovereign I is the protagonist of a very original page: (…) there is an image (Bild) – more than an image – of that subjectivist theory of knowledge (subjektivistischen Erkenntnistheorie) that, in order to understand the world, does start from the own I (eigenen Ich), and does not succeed in going beyond the own I, as far as the I constitutes the entire sensible world, the nature, as representation; and the whole world of values can only be understood as the will of that I, thus extending the very sovereign I into a universe, unable, however, to understand the other subjects, the no-I (Nich-Ich), having the same claim of sovereignty, the “you” who also aspires to become an I and, therefore, the center of the universe, because it is incapable to honor its claim of sovereignty; as the unity is grounded on the I, the I is the unique. The exclusivity of sovereignty (Ausschließlichkeit der Souveränität), the uniqueness of the sovereign State-I (Einzigkeit des souveränen StaatenIch), is the analogy, more than the analogy, of the inescapable solipsistic consequence of subjectivism.105

Such a strong connection between the theory of knowledge and the ethical dimension of law as the law of humanity was sharply posited by Cohen as an essential element of his critical idealism and his criticism to naturalism, politics and religious metaphysics.106 The idealist Kelsen, instead of the neutral posture he exhibits in his classical works, argues for a clear conceptual link between the primacy of international law and the existence itself of law and legal knowledge: We have the image, the model valid for the legal world (Rechtswelt) provided by the hypothesis of an international legal order (Weltrechtsordnung) – based on the objective character of the law – within which the various legal-state orders constitute coordinated and equivalent communities, but (…) not “States” in the sense of comprehensive orders of sovereign subjects, as they are dominated by a superior unit, by the totality of the civitas maxima, the only sovereign. Without wishing, by this, to make a choice between the two world views (Weltanschauungen), it must be emphasized that the subjectivist conception of law (subjektivistische Rechtsanschauung) must lead, finally, to the negation of law in general, and thus of the legal knowledge (Rechtserkenntnis), of legal science (Rechtswissenschaft).107

The “I”, the “State”, “interests”, are all manifestations of Being. Their affirmation means the negation of law, not only international law, but of any kind of norms, that 104 I

am aware that the traditional periodisation proposed by Paulson (1999) ranges this period in the classic phase of Kelsen’s theory. It is probably a mistake because in the 1920’ works, Kelsen has not yet renounced to make explicit his pacifist engagement. In this sense, I agree with Heidemann’s periodisation, criticised by Paulson. Heinemann precisely gives some kind of autonomy to the period 1922–1935. He calls this period “transcendental”, because of the influence of neo-Kantianism, but I prefer to call it “idealist”, in the sense that Kelsen is not yet submitted to the pressure of empiricisation. In this sense, as Schmill suggested to me, in order to find the more transparent Kelsen, it is such a period that the reader has to pay attention to. It is a shame that there are not English translations of many of the works of this period. 105 Kelsen (1925), p. 131. I respected the use of quotation marks made by Kelsen in the German edition. 106 Cohen (1904), pp. 309–311. 107 Kelsen (1925), pp. 131–132.

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is, of any kind of human responsibility. Because the responsibility does not originate in the autonomy of self, but in the Other. This priority of the Other, as source of responsibility, is a key piece in Lévinas’ conception: The responsibility for the other can not have begun in my commitment, in my decision. The unlimited responsibility in which I find myself comes from the hither side of my freedom, from a “prior to every memory,” an “ulterior to every accomplishment,” from the non-present par excellence, the non-original, the an-archical, prior to or beyond essence.108 The present is a beginning in my freedom, whereas the Good is not presented to freedom; it has chosen me before I have chosen it. No one is good voluntarily.109 There is a paradox in responsibility, in that I am obliged without this obligation having begun in me, as though an order slipped into my consciousness like a thief, smuggled itself in, like an effect of one of Plato’s wandering causes. (…) In consciousness this “who knows where” is translated into an anachronical overwhelming, the antecedence of responsibility and obedience with respect to the order received or the contract. (…) the first movement of responsibility (…) consists in obeying this order before it is formulated.110 To reduce the good to being, to its calculations and its history, is to nullify goodness. (...) The human subject – me – (…) is not an avatar of nature or a moment of the concept (…). It is not a question of assuring the ontological dignity of man, as though essence sufficed for dignity, but of contesting the philosophical privilege of being, of inquiring after what is beyond or on its hither side.111

What Lévinas says about the antecedence of responsibility with respect to the order received, does give force to the Kelsenian idea according to which the basic norm is the source of validity (bindingness) without saying anything about the content of norms, about which the actual positive norms of a given normative system are. I can understand something as a command, as a norm, because I am already obliged. What I need to know, in the social realm of a legal positive system, is how to obey, how to be responsible in the face of the Other without breaking my duty toward the Third. The Third, in Lévinas, ensure the transition from a pure ethical relation to a legal (but still ethical) relation: Responsibility for the other man is, in its immediacy, certainly prior to all questions. But how does it oblige, if a third party disturbs that exteriority of two people, in which my subjection qua subject is a subjection to my neighbour? The third party is other than the neighbour, but also another neighbour, and also a neighbour of the other, and not just his counterpart [semblable]. What am I to do? What have they already done to one another? Which one comes before the other in my responsibility? What are they, then, the other and the third party, in relation to one another? Birth of the question.112

As summarised by Robert Gibbs, Lévinas recognized that the relation to another person also involves a relation to a third person, and to other others. Justice requires that we balance and calculate, making finite our 108 Lévinas

(1978a), p. 10. (1978a), p. 11. 110 Lévinas (1978a, 13). 111 Lévinas (1978a), p. 18. 112 Lévinas (1984), p. 142. 109 Lévinas

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infinite responsibility to each other. The third instigates reasoning, laws, the state, and the courtroom, where the judge then presides over the procedures that publicly measure what is due to each party.113

But the foundation of State, as necessary in order to measure human responsibility, cannot be the liberal State conceived on the basis of its freedom—its sovereignty— as well as of the freedom of its citizens. Such liberal and bourgeois State cannot promise peace, because, primarily, its task is not to achieve peace, as eternal duty, but to protect States’ and individuals’ Beings.

5 Conclusion In a text written eight years after Otherwise than Being, the radiography of the reality and the human task are so clearly expressed by Lévinas that I will just quote him: That history of a peace, a freedom and well-being promised on the basis of a light that a universal knowledge projected on the world and human society—even unto the religious messages that sought justification for themselves in the truths of knowledge—that history is not recognizable in its millennia of fratricidal struggles, political or bloody, of imperialism, scorn and exploitation of the human being, down to our century of world wars, the genocides of the Holocaust and terrorism; unemployment and continual desperate poverty of the Third World; ruthless doctrines and cruelty of fascism and national socialism, right down to the supreme paradox of the defense of man and his rights being perverted into Stalinism.114 It will no longer be a question of the bourgeois peace of the man who is at home behind closed doors, rejecting that which, being exterior, negates him. It will no longer be peace in conformity with the ideal of the unity of the One that all alterity disturbs.115 Peace as relation with an alterity, irreducible to a common genus in which, already contained in a logical community, it would be only a relative alterity. Peace thus independent of all appurtenance to a system, irreducible to a totality and as if refractory to synthesis. The project of a peace different from the political peace discussed above. An ethical relation that would thus not be a simple deficiency or privation of the unity of the One reduced to the multiplicity of individuals in the extension of the genus!116

The fragility of Kelsen’s idealist argument for peace is the link between the notion of Civitas Maxima and humanity. The Lévinas’ move would be welcomed by the late (irrational 117 ) Kelsen because, in an important way, humanity is approached by Lévinas according to a phenomenological method. Humanity is not membership in (the Totality of) Civitas Maxima, but an ethical experience, beyond the essence of the State, even of a Global State. Without denying the political engagement Kelsen himself never denied, the main point of my work is the conceptual connection between the distinction between Sein 113 Gibbs

(2006), p. 402. See also Diamantides (2007), pp. 182–183. (1984), p. 132. 115 Lévinas (1984), p. 136. 116 Lévinas (1984), pp. 137–138. 117 See Losano (1985). 114 Lévinas

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and Sollen with the distinction between war and peace, between ontology and ethics. Lévinas marked a breakdown in the history of the western philosophy, the end of onto-theology, in order to rescue humanity from the myth of (liberal and rational) human progress. Of course, there is no room for a crossed-fertilisation between Kelsen and Lévinas. But the line unifying Lévinas and Cohen (essentially a line passing through Rosenzweig), and the sharing of the same international and political context, essentially the II WW, justifies such a reflection. Cohen’s ethics is useful at the moment of understanding the Pure Theory of Law, but Lévinas’ ethics is useful at the moment of understanding the link between the Pure Theory of Law and the Kelsenian struggle for peace. One possible outcome of my work is that, in the very “frequent” reconstructions of philosophical Jewish Messianism, Kelsen could have his place, with or without the agreement of dogmatic Kelsenians. Therefore, the ambiguous reference to a possible evolution of international relations should not be understood as a possible evolution in the same timeline, as a causal historical progress. What ought to be seem to be partially independent from what occurs in the realm of Sein. The human subject as conceived by Lévinas, nevertheless, as radical passivity and infinite responsibility, is not irrelevant for the Sein, to the extent that the real world is the only place in which the face of the Other, or God, can require and eventually obtain the human conduct causally necessary to preserve humanity against destruction. Returning to Kelsen: the kernel of law is the imputation of responsibility; only a monist conception of law can open to the idea of a universal responsibility, according to which each human being is potentially responsible—including being, legally speaking, not-guilty—for each illicit conduct. But the first responsible man is also the first authorised man, so that to be responsible is, above all, the power to be responsible, a power only human beings can pretend. According to the Lévinas’ conception of Messianism, such conjunction of responsibility and power, related to the universality of human suffering, is the key in order to understand why each human being, as juridical person, should act as if she were the Messiah: And in concrete terms this means that each person should act as he were the Messiah. Messianism is therefore not the certainty of the coming of a man who stops History. It is my power to bear the suffering of all. It is the moment when I recognize this power and my universal responsibility.118

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Kelsen H (1952c) What is justice? Bernard Moses Memorial Lecture, May 27, 1952. University of California, Berkeley. http://www.language.berkeley.edu/SA_MP3files/SA0361/001_1.mp3 Kelsen H (1960) Reine Rechtslehre, 2nd ed. Deuticke, Vienna. English edition: Kelsen H (1967) Pure theory of law, 2nd edn (trans: Knight M). University of California Press, Berkeley Kelsen H (1979) Allgemeine Theorie der Normen. Manz, Viena. English edition: Kelsen H (1991) General theory of norms (trans: Hartney M). Clarendon, New York Kelsen H (1998) Foreword to the second printing of main problems in the theory of public law. In: Paulson SL, Litschewski Paulson B (eds) Normativity and norms, critical perspectives on Kelsenian themes (trans: Paulson SL, Litschewski Paulson B). Clarendon Press, Oxford, 1998, pp 3–22 Kelsen H (2011) Secular religion: a polemic against the misinterpretation of modern social philosophy, science and politics as ‘new religions’. Edited from the estate of Hans Kelsen by Robert Walter, Clemens Jabloner and Klaus Zeleny. Springer, Wien/New York Langford P, Bryan I (2013) Hans Kelsen’s concept of normative imputation. Ratio Juris 26:85–110 Langford P, Bryan I, McGarry J (eds) (2017) Kelsenian legal science and the nature of law. Springer, Heidelberg/New York Lauterpacht H (2011) The function of law in international community (1933). Oxford University Press, Oxford Leben C (2016) Hebrew sources in the doctrine of the law of nature and nations in early modern Europe. Eur J Int Law 27(1):79–106 Lévinas E (1935) De l’évasion. 2nd edition: Fata morgana, Montpellier, 1982. English edition: Lévinas E (2003) On escape (trans: Bergo B). Stanford University Press, Stanford Lévinas E (1961) Totalité et infini: essai sur l’exteriorité. Martinus Nijhoff, La Haye. English edition: Lévinas E (1979) Totality and infinity: an essay on exteriority (trans: Lingis A). Martinus Nijhoff, The Hague/Boston/London Lévinas E (1963) Difficile liberté. París, Albin Michel, 1976. English edition: Lévinas E (1990) Difficult freedom (trans: Hand S). The John Hopkins University Press, Baltimore Lévinas E (1978a) Autrement qu’être ou au-delà de l’essence. Martinus Nijhoff, La Haye. English edition: Lévinas E (1997) Otherwise than being, or beyond essence (trans: Lingis A). Kluwer, Dordrecht Lévinas E (1978b) Le mot je, le mot toi, le mot Dieu. Le Monde. English edition: The word I, the word you, and the word god (trans: Smith MB). In: Lévinas E (1999) Alterity and transcendence. The Athlone Press, London, pp 91–96 Lévinas E (1984) Paix et proximité. Les Cahiers de la nuit surveillée, 3. English edition: Lévinas E (1999) Peace and proximity (trans: Smith MB). In: Lévinas E (1999) Alterity and transcendence. The Athlone Press, London, pp 131–144 Losano MG (1985) La teoría pura del Derecho: del logicismo al irracionalismo. Doxa. Cuadernos de Filosofía del Derecho 2:55–85 Luzzati C (1999) Más allá de Kelsen. Monismo y pluralismo en el derecho internacional. Doxa. Cuadernos de filosofía del derecho 22:134–170 Merle J-C (2007) La conception du droit de Hermann Cohen et de Hans Kelsen. Revue germanique internationale 6:123–134 Metall R (1969) Hans Kelsen. Leben und Werk, Deuticke, Wien Nordmann S (2017) Levinas et la philosophie judéo-allemande. Vrin, Paris Novak D (1995) The election of Israel: the idea of the chosen people. Cambridge University Press, Cambridge Novak D (2000) Law: religious or secular? Va Law Rev 86(3):569–596 Novak D (2004) Is natural law a border concept between Judaism and Christianity? J Relig Ethics 32(2):237–254 Paulson SL (1999) Arriving at a defensible periodization of Hans Kelsen’s legal theory. Oxford J Legal Stud 19(2):351–364

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Paulson SL (2012) A ‘justified normativity’ thesis in Hans Kelsen’s pure theory of law? Rejoinders to Robert Alexy and Joseph Raz. In: Klatt M (ed) Institutionalized reason: the jurisprudence of Robert Alexy. Oxford University Press, Oxford, pp 61–112 Paz RY (2012) A gateway between a distant god and a cruel world. Martinus Nijhoff, Leiden/Boston Poma A (1997) The critical philosophy of Hermann Cohen (trans: Denton J). Suny Press, Albany Puppo A (2011) Acceptation et normativité: la force du devoir dans le discours juridique. Aracne, Roma Puppo A (2015) El monismo internacionalista kelseniano: las acrobacias de un positivista en el circo del iusnaturalismo pacifista. Revista Telemática de Filosofía del Derecho 18:35–66 Putnam H (2008) Jewish philosophy as a guide to life: Rosenzweig, Buber, Levinas, Wittgenstein. Indiana University Press, Bloomington/Indianapolis Rosenzweig F (1921) Stern der Erlösung. Kauffmann, Frankfurt am Main. English edition: Rosenzweig F (2005) The star of redemption (trans: Galli BE). The University of Wisconsin Press, Madison Ross A (1959) On law and justice. University of California Press, Berkeley Ross A (1998) Validity and the conflict between legal positivism and natural law. In: Paulson SL, Litschewski Paulson B (eds) Normativity and norms, critical perspectives on Kelsenian themes. Clarendon Press, Oxford, 1998, pp 147–163 Schmill U (2004) Algunas influencias de Hermann Cohen en Hans Kelsen. Isonomía 21:117–155 Schraq CO (2002) God as otherwise than being. Toward a semantic of the gift. Northwestern University Press, Evanston Telman JDA (ed) (2016) Hans Kelsen in America—selective affinities and the mysteries of academic influence. Springer, Dordrecht van Roermund B (2015) Kelsen, secular religion, and the problem of transcendence. Neth J Legal Philos 44(2):100–115 von Bernstorff J (2010) The public international law theory of Hans Kelsen: believing in universal law. Cambridge University Press, Cambridge Vernengo R (1986) Kelsen’s Rechtssätze as detached statements. In: Tur R, Twining W (eds) Essays on Kelsen. Clarendon, Oxford, pp 99–108 Wittgenstein L (1969) Uber Gewissheit (On certainty), eds Anscombe GEM, von Wright GH (trans: Paul D, Anscombe GEM). Basil Blackwell, Oxford, pp 1969–1975

From Rosa Luxemburg to Hersch Lauterpacht: An Ostjüdische Heritage in International Law? Reut Yael Paz

Abstract By coupling two very different Ostjüdische—East European Jewish–protagonists—this contribution unpacks possible implications of the rather invisible relationship between East and West in international law. Because it has always been the Western “civilised nations” versus their “backward territories” that may start in the East but stretch when, and if necessary, to include any uncivilised Other, the East/West dichotomy is reminiscent of other structural oppositions vital to the liberal discipline of international law (i.e. law versus politics; theory versus practice, concreteness versus normativity etc.). The comparison between Rosa Luxemburg, the firebrand of German Socialism, and Hersch Lauterpacht, one of the most important international lawyers of the 20th century, facilitates understanding the conditions under which the East/West ruptures, upon their concealed nuances and differences, might have shaped the emergence of the modern corpus of international law.

1 Introduction The Ostjüdische/East-European Jewish tradition remains subsidiary1 to the betterknown presence of German-speaking Jews in the international legal profession.2 1 Ostjuden/Westjuden are terms that cover the subdivision of Ashkenazi Jews between Eastern and Western Europe. As Steven E. Aschheim phrases it: “The existence of the ghetto, as myth and reality, colored profoundly the fate and disposition of emancipated Western Jewry. The ‘Ostjude’ and ‘German Jew’ were archetypal representations of the dichotomy, major actors in a new kind of confrontation marked by both tension and creativity mirror opposites that remained bound to each other. Whether negatively or positively conceived, idealised or despised, the Ostjude was regarded as the ‘real’ Jew and the living model of Ur Jewishness lost to German Jewry. For Germans, both Jew and non-Jew, the inhabitants of the Eastern ghettoes kept alive the historical memory of ‘the Jews’. Their power as cultural symbols made them essential ingredients of German Jewish self definition. Their changing image reflected the complex and contradictory face of the German Jewry itself” (Aschheim 1982, p. xvii). 2 For more on the impact made by German-speaking Jewish scholarship, see Paz (2012).

R. Y. Paz (B) Public Law, International and European Law, Faculty of Law, Justus-Liebig-Universität Gießen, Giessen, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_10

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While individual Ostjüdische legal protagonists are explored, there is still too little comparative reference to a joint historical context that unpacks if, how, and to what extent a specific Ostjüdische tradition shaped the discipline of international law.3 The following contribution attempts to fill this gap by focusing on Rosa Luxemburg (1871–1919), the firebrand of German socialism, and Hersch Lauterpacht (1897– 1960), one of the most important international lawyers of the twentieth century. It is beyond the limits of this contribution to establish a detailed comparative framework for Luxemburg and Lauterpacht, especially given the depth of attention each scholar receives individually.4 Instead, the following contribution briefly unpacks how certain aspects of the unique social context of racial ambiguities in terms of geography, nationality, religion, and cultural boundaries that both Luxemburg and Lauterpacht inherited from their Ostjüdische ancestry binds them to a lineage of critically minded Jews who transcended national, ethnic, and religious particularism and worked towards a cosmopolitan and intellectual legal culture. Examining these two protagonists together not only assists in confining both the historically charged term Ostjüdische and the complexities of international law; it also works the other way around: limiting the investigation of these two protagonists to their East-European context makes comparison between their rich biographies manageable. Furthermore, a comparison between Luxemburg and Lauterpacht facilitates an unpacking of the conditions under which religious, cultural, and historical Weltanschauungen might have shaped the emergence of the modern corpus of international law. Whereas their “Jewish condition” was composed of internal attachments and external pressures—especially due to their marginalization from European nation-statism (i.e. modernity’s new religion)—which “forced” them to become legal cosmopolitans,5 their cosmopolitan approaches are different, if not entirely opposite. Apart for their singular agencies, their different cosmopolitanism might be the result of the generational, geographical, and gender differences that may have assisted them in personifying two wide-ranging international legal extremes from Luxemburg’s universal revolutionary socialism to Lauterpacht’s international liberal legal completeness.

3 A recent attempt to unpack some of these aspects is Sands (2016), which links the lives and works

of both Hersch Lauterpach and Raphael Lemkin to their shared city of origin, Lwów. Rosa Luxemburg, see for instance: Laschitza (2010), Bronzer (2010), Kautsky (1929), HolstVan der Schalk (1937) and Frölich (1940, 1991). For more on Hersch Lauterpacht, see Lauterpacht (2010), Paz (2012), Koskenniemi (1997). 5 For more on the relationship between the Jewish condition and cosmopolitanism, see Paz (2012), p. 26. 4 For

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2 Jews and International Law Between East and West Focusing on these two protagonists necessitates a more general understanding of the structural—albeit invisible—relationship that the East/West dichotomy has with the discipline of international law on the one hand and its link to Jewish history on the other. Today, the differences between Europe’s East and West are not visible in international law.6 In fact, just as the definition of Europe itself changes according to necessity, so do its East/West frontiers.7 This abstractness only augments the multifaceted but equally vague relationship between East and West within Europe, not to mention the diverging ways in which Western Christian monotheism—also through international law, one of its secular façades—meets its “Eastern” Other, which can be “in” and “out” of Europe simultaneously.8 The East/West dichotomy is reminiscent of the structural opposition between the “private” and “public” vital to the discipline.9 It is difficult to maintain a mutually exclusive divide between the East and the West, since the two concepts constantly collapse into each other and thus also mean very little in isolation.10 In brief, the 6 Antony

Anghie, one of the leading experts on Third World Approaches to International Law (TWAIL), argues, for instance, against European imperialism and colonialism without necessarily defining what is meant by “Europe”. Instead, he negates the definition of Europe, so that “Europe” is everything that “non-Europe” is not. For more, see Angie (2004), pp. 102–109. 7 Historical attempts to define Europe are, of course, impossible to recount in the present context. It suffices to keep in mind the somewhat vague conceptualization of what was understood to be Europe at the end of the nineteenth century: Europe is the physical and spiritual space that can be traced back to Greece and Rome. It was consolidated at Westphalia and then extended to other spheres of influence. In international legal terms prevalent in the nineteenth century, Europe consisted of a few Christian nations mainly in Europe and in America that made up a family of advanced nations with particular habits and ideas. See more in Koskenniemi (2001) p. 49. 8 There are many examples of such included/excluded Others in Europe and its East/West inarticulate divide (i.e. in addition to the European Jews and the Roma-Sinti minorities, one ought to include the Ottoman Empire but also the Modern Republic of Turkey and the Russian Empire as well as the Soviet Union and/or Russia today). It is noteworthy to see how these Others usually represent an intersectionality between a geographical marginality—which is always measured by a fluctuating Western centrality—together with a religious difference, Orthodox Christianity included. See more in Paz (2017). 9 For more on how dichotomies work within the law, see Koskenniemi’s (2005, pp. 46–47) description of the legal profession as insoluble “ascending/descending” liberal dyad structured between theory and practice, concreteness and normativity, law and politics, apology and utopia, public and private, etc. The international legal doctrine is “forced to maintain itself in constant movement from emphasizing concreteness to emphasizing normativity and vice versa, without ever being able to establish itself permanently in either position… [Ultimately this is] explained by the contradictory nature of the liberal doctrine of politics”. 10 As Roberto M. Unger argues, the modern society is an artifact that is combined with the liberal goal of freeing society from structures of dependence and authority. Ergo, a modern society’s aim is to also salvage a measure of subjectivity (Privacy) and intersubjectivity (Public) from rigid rules: for more on these dichotomies, see Davis (1990). For more on how this divide is represented in the work of cosmopolitan internationalists, see Paz (2011), pp. 863–873.

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East/West divide is central to the international legal profession: it has always been the Western “civilised nations” versus their “backward territories” that may start in the East but stretch when, and if necessary, to include any uncivilised Other.11 That there is always another “East” for the “West” to find made it easier, if not altogether exotic, to advance one’s career in the then new and modern cosmopolitan profession.12 Similarly, less notice is given to the historical East/West tensions in Jewish communities today, even though these divisions were arguably revitalised later—with some differences—in Palestine/Israel and the United States.13 This is drastically different to the rather obsessive attention this divide has been given since at least Heinrich Heine’s time.14 The European Enlightenment, together with the Jewish emancipation, involved a particular appropriation of East-European Jews by Western Jews and Christians alike.15 Analogously to the way in which the East has been traditionally commandeered by the West, the Ostjude symbolised the permanently slower developing sister of the Westjude,16 while venerating its “authentic” and “untouched” religious existence. The Ostjüdische tradition challenged Western prejudices by similarly contested terms, albeit somewhat differently to the more conventional conundrums between the East/West. The Westjüdische path, especially in the Ostjüdische perspective, may

11 For more on the problematic relationship between East and West, also in international law, see Allain (2004), pp. 391–404. 12 Benjamin Disraeli was the first to note in his renowned novel Tancred (1847) that “the East is a career”. For more on how this unravels, see Paz (2017). With regards to an international legal career, I follow Martti Koskenniemi’s argument and consider the establishment of modern international law as a profession after the creation of international legal associations and institutions in the last third of the nineteenth century. See Koskenniemi (2001), pp. 54, 65, and 79. 13 The East/West rifts, and definition of what exactly the East and the West mean, altered dramatically over the years, particularly in these three geographical places and spheres of influence. That the “Easterners”—whoever they included (i.e. the Mizrahim and/or Sfaradim)—differed from the West remained constant. 14 Informatively, for Heine there were two images of non-Western Jews. One was based on Sephardic Spanienbild and the other on the Ghettoised “dreadful monument of the Middle Ages” Jews. See more in Aschheim (1982), pp. 6 and 185. 15 Western European supremacy works through a two-fold construction: First, Western Europe remained “the place of Europe’s greatest and richest and oldest colonies, the source of its civilization and languages, its cultural contestant, and one of its deepest and most recurring images of the Other”. Second, the East is something that “can be discussed and analysed as the corporate institution for dealing with the Orient – dealing with it by making statements about it, settling it, ruling over it” (Said 2003, pp. 1, 3, and 6). See more in Paz (2017). 16 Given that it is virtually impossible to determine where the boundaries between East/West lie, it is impossible to determine the exact location from whence the Ostjudische tradition originates. Generally, the Ostjuden were considered Yiddish-speaking, pious Ghettoised communities. From the Enlightenment onwards, the Ostjuden were increasingly caricatured in literature, the arts, and the sciences. As Brenner (1998) p. 10, phrases it: “Since the late eighteenth century, an elite of intellectuals and policy makers had called on the Ostjuden to become less Jewish and to ‘regenerate’ themselves into a group ‘more like the Germans’”.

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have led to greater economic and professional successes17 ; it remained, however, confined to an inevitable and tragic pariah status.18 Western Jews gave up their God and community for the sake of “civilization’s progress” although they were never embraced by their “enlightened” Christian compatriots.19 While the depth of these rifts cannot be underestimated, European Jews knew from experience that in the final analysis East/West mattered less than being Jewish, particularly because Jewish minority status cut through all European empires alike, including the frailer Russia and Austro-Hungary and developing Prussia/Germany.20 The East was bound to the West in sickness and in health. Given the unprecedented legal contributions by European Jews—East and West alike—it is important to also examine the nuanced experiences of such East/West raptures against the international legal discipline and the identity of its Jewish practitioners.21 Pausing to consider these tensions and their possible implications by coupling two ostensibly very different protagonists is demanding: does Luxemburg’s socialism/communism have anything to do with Lauterpacht’s liberal legal internationalism? Not only is there almost no association between these two scholars,22 but can the vivid creativity, prolific writing, and political commitment of such a “scandalous” woman also be compared with the academic performance, however devoted, of an enlightened bourgeois professor?

3 “I, Crooked Westjude” Versus the “We Authentic Ostjuden”23 Unlike Franz Kafka, who confessed to being “a crooked Western” German-speaking Jew, Luxemburg and Lauterpacht shared a stronger sense of “we”. Their shared 17 For

more, see Slezkine (2004), and Elon (2004). more on the Westjüdische Pariah, see Arendt (1944), pp. 99–122. 19 In contrast to their Ostjüdische cultural and religious rigour, social solidarity, and communal selfesteem, the Westjuden were the permanent outsiders. As Sinkoff (2004) pp. 1–2, phrases it: “What distinguished the Polish Jews from others was their vitality… (they) were the demographic source of all modern East European Jewry, innovated many of the religious and cultural movements that shaped the Ashkenazi Jewry in the Diaspora throughout the nineteenth and twentieth centuries”. 20 See more in Aschheim (1982). 21 Exact numbers for German-speaking universities can be found in Paz (2012), pp. 2–3. For statistics in Vienna, where most Galician Jews received their legal degrees, see pp. 96–97. 22 Interestingly, the names of both seem to appear together in a review of Susan Marks’ edited volume, International Law on the Left: Re-examining Marxist Legacies (2008) by Messineo (2008), pp. 662– 664. Messineo, rather en passant, seems to mention the two in discussing at least three articles in the edited volume. Whereas Luxemburg is mentioned in her understanding of Marx who saw “the rule of law and bourgeois political freedoms to be essential in the path to emancipation”, Lauterpacht’s “powerful arguments against all sorts of ‘realism’ (and in favor of ‘enlightened’ judicial activity)” is also resorted to. 23 “Ich Krumme Westjude” (I bended/crooked West-Jew) was how Franz Kafka addressed himself in one of his letters to Brod. See Brod and Kafka (1989), p. 336. 18 For

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“we” was sturdier than their clear generational differences24 and the geographical distance between their origins in two collapsing empires.25 This made a difference in their internalisation of the external demands for imperial changes at the end of the nineteenth century when the Jews—East and West alike—arguably believed that any plausible solution to their minority status depended on Germany, its language, history, and culture. Not only was it a growing economic, political, and social centre, it also remained, for better or worse, the birth place of their Haskalah/Enlightenment.26 Rosa Luxemburg, who became a naturalised German citizen, exemplifies this perfectly.27 “The best brain after Marx”,28 was born in Zamo´sc´ , a small Shtetl/town between Lublin and Lwów (Lemberg) that was 50% Jewish by the beginning of the 1900s. Her family was cosmopolitan, educated, and middle class.29 The youngest of five, Rosa became the source of everyone’s love, particularly after hip disease kept her home for a year (and limping for the rest of her life).30 Apart from being fluent in Polish, German, and Russian, Rosa must have spoken the jüdisch-deutsche (Yiddish) language, although she scorned it.31 The family moved to Warsaw in 1873, probably for better work and education possibilities.32 Her childhood was filled with Polish and German culture and literature.33 Approximately 20 years later, Hersch Lauterpacht was born into a middle-class Jewish family in a town called Zolkiew, located in Galicia, very close to Lwów.34 Similarly to Rosa’s father, his father was a timber merchant. Hersch had a sister and a brother, who was a lawyer. When Lauterpacht turned 13, the family moved to Lwów so that Hersch could receive a better education than the one available in his small 24 Rosa

Luxemburg was 26 years older than Hersch Lauterpacht. where Rosa was born, was in part of Poland that was under the harsh absolutism of imperial Russia while Hersch was born in Lwów, now in western Ukraine, which after the First Partition of Poland (1772) became the capital of the Kingdom of Galicia and Lodomeria in the Austro-Hungarian Empire. 26 See more in Paz (2012), pp. 45–82. 27 Her naturalisation followed her marriage to a family-friend Gustav Lubeck, in 1897. 28 This is how Franz Mehring, Marx’s friend and first biographer, describes Luxemburg. See, for instance, Frölich (1940), p. 4. 29 Her grandfather was a timber trader who travelled frequently to Germany, where his sons also attended commercial schools. See more in Frölich (1940), p. 22. 30 Despite her constant writing, Luxemburg communicated relatively little about her own childhood. These are notes taken from her family’s exchanges (Frölich 1940, p. 23). 31 If it is true that Rosa’s mother (Lina Löwenstein) wrote to her in Yiddish, it means that she could read the Hebrew alphabet. Of her Zamo´sc´ compatriot, Isaac Leib Peretz (1852–1915) the famous Yiddish writer, she said “Peretz, that lunatic, who has the temerity to insult Heine with translation from the beautiful German language to that old-Swabian dialect, corrupted by a smattering of Hebrew words and garbled vernacular Polish” (Luxemburg quoted in Kirsch 2011). 32 As Annelies Laschitza (2010), p. 35, describes it, the family wanted to live in a more open and cosmopolitan environment that was not composed solely of Yiddish-speaking orthodox Ostjuden. 33 Given that her mother was an eager reader of the Bible, it is easily assumed that Rosa was also at home with the Bible. See Frölich (1940), p. 24. 34 Historically, Zolkiew was notorious for its lively Jewish community and for its publications of Hassidic, Mishnaic, and Talmudic discussions of religious laws. 25 Zamo´sc ´,

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town. His childhood atmosphere appears to have been of deep Jewish nationalism and love of literature.35 Both Rosa and Hersch shared clear Ostjüdische sentiments from the margins of a divided Poland: they both grew up in a Jewish environment that implied authentic national minority status and shared a relatively stable early socialization of knowledge.36 Importantly, their sense of self was not threatened by the complex demands of the outer world, nor did they feel like outcasts, rootless, or dislocated. Although their relationship to their Ostjüdische heritage varied, they accepted their circumstances without delusions. The firmness of their primary socialisation of knowledge energised their nuanced universalist approaches similarly, particularly given that their families had the means to enable superior educations for them in gymnasiums and then higher education at German-speaking/Western universities. Hersch is reported to have been a brilliant student in Lwów’s humanist Gymnasium, where he was also a member of an organised group of young Jews whose goal was self-education in numerous topics such as Zionist history and the geography of Palestine. Rosa instead joined the Polish left-wing Proletariat Party a year before she passed her Matura.37 Notwithstanding their contextual differences, Luxemburg and Lauterpacht developed their intellectual orientation as Ostjuden in law faculties of German-speaking universities: Rosa completed her doctorate degree in law and political science in Zurich around the time Hersch was born. Hersch finished his doctorate in law and political science in Vienna under Hans Kelsen in 1922. This is important because “in a significant sense, much of the way we speak about international law has been received from German public law… No legal tradition in this period compares with the German in depth, complexity, or sense of urgency of its questions”.38 Luxemburg’s primary commitment was the international socialist revolution, which originated with the Polish proletariats who remained of sentimental importance

35 This

is taken from Paz (2012), pp. 151, and 161.

36 Their shared Ostjüdische context implies a similar socialization of knowledge. More specifically,

their Ostjüdische “homebound socialization”—composed of family and early childhood impressions that willy-nilly assign an identity to the individual—implied a solid, homogenous, and stable environment. In brief, social knowledge happens within the dialectical interaction between (a) primary and secondary levels of socialization and (b) the constant competition between different secondary-level socializations and their respective reality-defining agencies. Such knowledge of “facts” and “proto-typical ideas” is passed on to successive generations. This inheritance is the source-fountain for scientific investigation: the more complex this inheritance, the more demanding the secondary level of education has to be. See Berger and Luckmann (1967), pp. 129–180. Any social struggle between competitive ways of thinking and/or lifestyle choices—typical of contemporary industrial societies—can be tolerated so long as the primary level of socialisation is firmly established. Things get more dangerous when the individual’s identity is threatened by different tribulations, especially in the primary level of socialization (Ibid.). 37 Matura is the name of the final high-school exam used in Austria. 38 Koskenniemi (2011), p. xxxiv.

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to her throughout her life.39 After all, she was working for the liberation of Poland from the age of 16, becoming a founding member of the Marxist Social Democracy Party of the Kingdom of Poland and Lithuania (SDKPiL) and acting as the main contributor to the party’s paper (Sprawa Robotnicza). From at least the completion of her 1897 dissertation, “The Industrial Development of Poland” (Polens industrielle Entwicklung), onwards, she was convinced that the independence of Poland was impossible due to the interdependencies between the Russian and Polish economies. Luxemburg studied in Switzerland because it hosted the only German-speaking universities that admitted women at the time.40 Despite Rosa’s doctor of law degree (graded magna cum laude and published in 1898) Luxemburg never became a lawyer and/or legal scholar partially because of the intersectionality between her gender and racial background, which barred her from legal practice and/or a university career. This must have been difficult given the importance Luxemburg attributed to education for the proletariat, which was one of her most cherished goals in theory and practice. In addition to her dedicated teaching in Berlin’s Social Democratic Party,41 Luxemburg believed revolutionary socialism would enable the proletariat to both establish class-consciousness and self-educate. According to Luxemburg, the imperial parasitism of global capitalism needed to be addressed first and foremost; thus, fighting bourgeois political-economic institutions trumped and formed legal normative orders.42 Universal revolutionary socialism was not merely the only way to face but also to overthrow imperialism and global capitalism. A true socialist democracy protected every individual freedom of religion, speech, press, assembly, and consciousness. Somewhat paradoxically, achieving these freedoms depended on active mass and democratic participation.43 How practical and safe it was to leave individual rights and freedoms in the hands of revolutionary masses seems to remain unanswered in her work. In other words, it may be clear that for Luxemburg the masses, through their strenuous political actions outside parliament, made sure their governmental representatives served their 39 In

fact, she remained the founding leader of the SDKPiL until her death. enrolling as a philosophy, mathematics, botany, and zoology student in 1889, in 1892 she swapped to jurisprudence where, mainly under Julius Wolf (1862–1937), she seems to have studied everything under the sun: international law, general constitutional law, and insurance law. In 1893 she also enrolled in political science. There she studied economics with a focus on finance, economics, and stock-market crises. She also studied general administration and history, in particular the Middle Ages and the history of diplomacy since 1815. See more in Nettl (1965), p. 74. 41 Despite some gender-related difficulties, Luxemburg commenced teaching the course on economics and an introduction to the economic teaching of Karl Marx in 1907 at the SPD Party School set up in 1906. See more in Frölich (1939/1991), p. 157. 42 For more on how Luxemburg’s novel understanding of imperialism is rooted in Marx’s historical materialism, see Sutcliffe (2002). 43 “Socialist democracy must proceed step by step out of the active participation of the masses; it must be under the direct influence, subjected to the control of complete public activity, it must arise out of the growing, political training of the mass of the people” (Luxemburg 1967, pp. 25–70, and 78). 40 After

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democratic interests. It is less straightforward to understand how the same masses secured the freedoms and rights of the individual, who was a part and parcel of those masses to begin with. As an Ostjudische woman in early-twentieth-century Germany, Rosa Luxemburg had experienced first-hand the high price individuals—the socially marginalised most of all—paid in revolutionary moments. Her argument that the road to victory necessarily follows many defeats that are both inevitable and instructive remains somewhat feeble.44 While this gives her socialist approach a certain relentless optimism,45 her understanding of the situation was, in fact, more realistic: Luxemburg knew Europe could decline into barbarity. Indeed, her warning cry against barbarity—that perhaps remained inarticulate until the rise of Hitler—was repetitive46 : “The overturning of the socialist hopes of the broad masses was perhaps the most dangerous feature of the decent into barbarism”.47 Ergo, instead of capitalism, imperialism, and totalitarianism, Luxemburg sought the internationalisation of the proletariat’s socialism.48 This belief became radicalised following defeats in Germany. Thus, while her early childhood experiences thrust her towards socialism, being barred from practicing and/or teaching law implied that her legal studies helped her (somewhat similarly to Marx’s) refine her international structural theory of economics instead. Either way, the intersectionality between Judaism and gender necessarily galvanised her radical political commitment to international socialism. Luxemburg’s soft spot for Polish nationalism is reminiscent of Lauterpacht’s Zionism, which was neither a hobby nor a professional choice.49 If Luxemburg grew into Polish socialism, Lauterpacht grew into Jewish nationalism.50 His passion for justice seemed to have energised both his commitment to Zionism and, more evidently,

44 In 1919, after the failure of the Spartacus uprising in Berlin and just before her brutal assassination, Luxemburg (1919), p. 267, wrote: “The whole road of socialism – so far as revolutionary struggles are concerned – is paved with nothing but thunderous defeats. Yet at the same time, history marches inexorably, step by step, towards final victory!”. 45 Socialism “forged a link in the chain of historic defeats… future victories will spring from this ‘defeat’” (Ibid.). 46 Such an alternative was a clear and present danger of “the triumph of imperialism and the destruction of all culture, and as in ancient Rome, depopulation, desolation, degeneration, a vast cemetery” (Luxemburg 1915, p. 204). 47 Frölich (1939/1991), p. xviii. 48 “Imperialism, the last phase of life and the highest development of the political world rule of capitalism, is the common deadly enemy of the proletariat, the struggle against imperialism is at the same time a struggle for political power within the state, the decisive conflict between socialism and capitalism” (Rosa Luxemburg, “Juniusbroschüre”, in Politische Schriften II, p. 154). 49 Unlike Luxemburg’s embrace of socialism inter alia as an international attempt to deal with the particularity of the national, ethnic, and of course, the Jewish question, Lauterpacht assumed the habits of a “new Jew”, which implied being educated, modern, enlightened, and secular “from within”. For more on these modalities, see Shapira (1998), pp. 155–174. 50 As Elihu, his son, phrases it, for Lauterpacht, it was “Zionism in its earliest form – a belief in the importance of the establishment of a Jewish National Home in the land of Israel that had for so long played a central part in Jewish history” (Lauterpacht 2010, p. 423).

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to law, which became international over time.51 In 1919, at the age of 22, Lauterpacht was sent to the University of Vienna to study law. He never lived in Lwów again.52 His Viennese doctoral thesis, The International Mandate in the Covenant of the League of Nations, which expressly supported the wish to develop Palestine into a Jewish homeland, was associated with legal realism.53 Realism was soon abandoned after his arrival in England.54 From then onwards, Lauterpacht publicly kept away from any (national) politics, focusing instead on his international normativemoral approach by advocating relentlessly for private law analogies55 and bringing principles of natural law into English academic circles.56 In 1937, after his appointment as Whewell Professor of International Law at Cambridge University, Lauterpacht became one of the most consistent guardians of the cosmopolitan tradition in Western legal liberalism. Because moral goodness was a single unit, the law also had to be “one”. Ergo, Lauterpacht’s approach idealised legal normative completeness and absolute justice. In fact, he maintained that justice is ineffectual if it is neither universal nor complete and fails to protect the human rights of the individual.57 His understanding of law as a comprehensive whole guided his scholarship and judgeship at the International Court of Justice until his premature death in 1960. The price of his cosmopolitan internationalism was embracing Western liberalism with its inherent limitations and paradoxes.58 It was Western liberalism that

51 McNair

(1961), pp. 98–103, supposed that “his prominence and success at this early time (with Zionist activities) were due to his passion for justice, his devotion to the relief of suffering, his transparent earnestness, and his gift of persuasion, both in writing and in speech”. 52 Lauterpacht commenced “Jewish humanitarian activities” after his arrival in Vienna, tasks carried out alongside his legal studies. He became a representative of Jewish schoolchildren and students in dealing with the education authorities. He was also active in setting up the World Federation of Jewish Students, for which Albert Einstein acted as the honorary president. See more in Paz (2012), p. 164. 53 In his dissertation, he rejects “private law analogies in any form” because these “endanger the independence of international law and fail to recognize its particularity” (Ibid, pp. 239–240). 54 His “early Viennese flirtation with realism was important for him to develop a better awareness of the value and weaknesses of the ethical position. He knew that repeating, interpreting and invoking the ethical way cannot be enough. Instead of reiterating the centrality of the individual for a moralsbased community, he chose to promote a number of basic rights on which international justice could be based; he subsequently turned to legal scientism for the necessary formal requirements” (Ibid.). 55 His LL.D dissertation for the University of London, Private Law Sources and Analogies of International Law (1927), which was to become his first publication, signals a new stage in Lauterpacht’s intellectual development (Ibid.). 56 Lauterpacht was the first to bring natural law to England, an aspect of much significance considering the homogeneity and stolidness of English society during the first three decades of the twentieth century (Ibid.). 57 As soon as WWII ended, Lauterpacht published a highly influential book dedicated to the development of international human rights law in the mid-twentieth century; see Lauterpacht (1945). In 1950, he was one of the first to speak more religiously about human rights; see Lauterpacht (1950). 58 See Koskenniemi 2005, pp. 46–47.

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enabled him to achieve the translation of natural moral goodness into the language of international law as a profession.59

4 Comparative Possibilities? Whereas these two phenomenal people deserve a far deeper comparison, it is clear that they share enough similarities: both Rosa Luxemburg and Hersch Lauterpacht come from the same region; while Rosa spoke Russian fluently and Hersch Hebrew, they both grew up speaking Yiddish, German, and Polish in small towns. Their social-economic conditions implied valuing education in theory and a solid highschool education that led them both to a German-speaking law faculty in practice. They both left their families behind and lived as naturalised émigrés throughout their lives.60 To a certain extent, this was a conscious choice, although justified differently. Leaving their (particular/national/ethnical) homes behind, they both set out to reach a different cosmopolitan future. Moreover, each in his/her own way constructed a singular, novel, and universal approach that they advocated tirelessly throughout their lives. Their approaches shared a substantial number of theoretical “friends” and “enemies”. The most important and worthy resemblance between their approaches lies in the importance they attributed to enlightened education, democracy, the empowerment of the individual, and the need to protect the personal security of the individual today for the sake of tomorrow’s new possibilities. Their shared “enemies” were most representations of nationalism, state sovereignty, and imperialism. Neither Rosa nor Hersch joined any contemporary theoretical/political “camp”: Rosa criticised every existing political force at her time from German socialists to Polish nationalists, Jewish Bundists, Bolsheviks, Mensheviks, and more. Lauterpacht left the German Realpolitik and/or pure positivist agenda behind and moved into an uncommon sphere at the time: natural law. Both believed in their self-chosen commitment, which they saw as the only coherent way to grasp the social reality. Lauterpacht’s legal cosmopolitanism—which highlighted, inter alia, An International Bill of Rights of Man (1945)—was denied Luxemburg altogether.61 Not only was she excluded from a legal career but she was also not entitled to sustain classical 59 “On the one hand, Lauterpacht regards the nationalist, exploitative face of imperialism as “the most ruthless economic exploitation of native peoples, maintained by the despotic rule of military administration”. On the other hand, he admires the “liberal tradition in British foreign policy” that abolished slavery and the Congo Free State and led to treaties to protect the natives. Lauterpacht saw these activities as marking a progressive turn in the doctrine of the subjects of international law which became concrete in the League’s Mandates system” (Koskenniemi 1997, p. 230). 60 In 1928, with the birth of his son Elihu Lauterpacht, Hersch accepted England as his home. See Paz (2012), p. 187. 61 Lauterpacht’s “omission of any attempt to redress the legal inferiority of women and the inequalities of aliens” were the “greatest weakness” of this book (Philip Jessup quoted in Lauterpacht 2010, p. 255).

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liberalism’s inherent paradoxes, especially when compared with Lauterpacht, who could, for instance, teach girls international law while simultaneously deciding on his wife’s hairstyle and nail polish.62 Any expression by (the diehard feminist) Luxemburg, was, and still is, reinterpreted with the utmost scrutiny. Being “a self-hating Jew” is hardly the worst of the accusations made about Luxemburg.63 As Alexandra Kemmerer phrases it: “Rosa Luxemburg is not a marginal but, rather, a marginalised, protagonist in the history of twentieth-century political thought”.64 That she remains a legendary figure—particularly in comparison to Hersch Lauterpacht, whose fame is mostly known to international lawyers—probably says more about the (lack of) prominence of international law, and Rosa’s staggering political commitment rather than the serious appreciation of Luxemburg’s scholarly contributions.

5 International Cosmopolitanism Between East and West—Conclusions Although much talk today is dedicated to the decline of the international legal profession,65 even a brief comparison between the two scholars avails a fresh look into the limits but also future possibilities of the discipline. Lauterpacht’s fame, at least in international legal circles, especially after WWII, is necessarily linked to his Western liberal agenda, which in turn, is also interconnected to the ensuing bipolarity of the Cold War era.66 This, as such, is tied to the earlier ideological battles fought and/or lost by different Marxist “camps” in which Rosa Luxemburg played a major role. Be that as it may, her conceptualization of the universal embraces the politics of Marxian economics and remains essential to international law, particularly because the whole discipline is structured on the pseudo-separation between law and politics, East and West. Like all international legal practitioners, both Luxemburg and Lauterpacht were trapped in the professional demand to resolve the national versus international, particular versus the universal, and indeed the public versus private spheres. Their Ostjüdische condition enabled them to manage this dichotomy rather successfully by creating different cosmopolitan agendas suitable for the questions posed by their twentiethcentury conditions. Through their Ostjüdische context, they already stood at the 62 See

more in Paz (2011), p. 867. more on the recent debates on the wrongful accusation of Luxemburg of Jewish self-hatred, see Jones (2016). 64 Kemmerer (2016), pp. 853–864. 65 In fact, Martti Koskenniemi’s book title, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2004), considers the year of the profession’s designated fall to also be the year Hersch Lauterpacht passed away. 66 As Schwebel (1987), p. xiii, described, Lauterpacht “attainments are unsurpassed by any international lawyer of this century”. Not to mention that The Function of Law in the International Community (Oxford, 1933) became the “the most important English-language book on international law in the twentieth century” (Koskenniemi 2011, p. xlvii). 63 For

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crossroads of several cultures. Through the power of their wills and imagination, they managed to lift themselves above the peculiarly uprooted roots of their original community. Their Jewish backgrounds—which in Rosa Luxemburg’s case intersectioned with a gender difference—implied an existential and almost habitual need to reconcile the social/political/religious particularity of being Jewish and/or a woman with the universality of being an East European and later English and/or a socialist. Their contexts helped both navigate the discipline’s internal East/West divide because it mirrored their own particularised ways into the universal. This assisted in establishing the nuanced Ostjüdische tradition in international law.

References Allain J (2004) Orientalism and international law: the middle east as the underclass of the international legal order. Leiden J Int Law 17:391–404 Angie A (2004) Imperialism, sovereignty and the making of international law. Cambridge University Press, Cambridge Arendt H (1944) The Jew as Pariah: a hidden tradition. Jewish Soc Stud 6(2):99–122 Aschheim SE (1982) Brothers and strangers: the East European Jew in German and German Jewish consciousness. Wisconsin University Press, Madison Berger PL, Luckmann T (1967) The social construction of reality: a treatise in the sociology of knowledge. Doubleday & Company Inc, New York Brenner DA (1998) Marketing identities: the invention of Jewish ethnicity in Ost und West. Wayne State University Press, Detroit Brod M, Kafka F (1989) Eine Freundschaft, Bd. II: Briefwechsel. Fischer, Frankfurt am Main Bronzer SE (2010) Rosa Luxemburg: a revolutionary for our times. Pennsylvania State University Press, University Park Davis C (1990) Society and the critic of modernity. In: Lovin RW, Perry MJ (eds) Critique and construction: a symposium on Roberto Unger’s politics. Cambridge University Press, Cambridge Elon A (2004) The pity of it all: a history of the Jews in Germany, 1743–1933. Kinneret-Zmora Bitan Publishing House, Israel Frölich P (1940) Rosa Luxemburg: ideas in action. Pluto Press, London Frölich P (1991) Rosa Luxemburg: Gedanke und Tat (Paris 1939). Europäische Verlagsanstalt, Hannover Holst-Van der Schalk HR (1937) Rosa Luxemburg: ihr Leben und Wirken. Jean Christophe-Verlag, Zürich Jones RC (2016) Actually Rosa Luxemburg was not a self-hating Jew. Tablet Magazine 26.08.2016 available at https://www.tabletmag.com/scroll/211906/actually-rosa-luxemburg-was-not-a-selfhating-jew Kautsky L (1929) Rosa Luxemburg. Ein Gedenkbuch. E. Laubsche Verlagsbuchhandlung, Berlin Kemmerer A (2016) Editing Rosa: Luxemburg, the revolution, and the politics of infantilization. Eur J Int Law 27(3):853–864 Kirsch A (2011), Red Rosa. Jewish review of books. Available at https://jewishreviewofbooks.com/ articles/209/red-rosa/ Koskenniemi M (1997) Lauterpacht: The Victorian tradition in international law. Eur J Int Law 8(2):215–263 Koskenniemi M (2001) The gentle civilizer of nations: the rise and fall of international law, 1870– 1960. Cambridge University Press, Cambridge Koskenniemi M (2005) From apology to Utopia. The structure of international legal argument. Cambridge University Press, Cambridge

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Koskenniemi M (2011) The function of law in the international community: introduction. In: Hersch Lauterpacht E (ed) The function of law in the international community (1933), 2nd edn. Oxford University Press, Oxford Laschitza A (2010) Rosa Luxemburg. Im Lebensrausch, trotz alledem: Eine Biographie. Aufbau Verlag, Berlin Lauterpacht E (2010) The life of Hersch Lauterpacht. Cambridge University Press, Cambridge Lauterpacht H (1945) An international bill of the rights of man. Columbia University Press, New York Lauterpacht H (1950) International law and human rights. Archon Books, Connecticut Luxemburg R (1915) The crisis of social democracy. In: Luxemburg R (2010) Scott HC, Le Blanc P (eds) Socialism or barbarism: the selected writings of Rosa Luxemburg. Pluto Press, London Luxemburg R (1919) Order prevails in Berlin. In: Luxemburg R (2010) Scott HC, Le Blanc P (eds) Socialism or barbarism: the selected writings of Rosa Luxemburg. Pluto Press, London Luxemburg R (1967) The Russian revolution. In: Luxemburg R (ed) The Russian revolution and Leninism or Marxism? University of Michigan Press, Ann Arbor McNair A (1961) Hersch Lauterpacht: 1897–1960. Proc Br Acad 47:98–103 Messineo F (2008) Review of Susan Marks’ edited volume, International law on the left: re-examining Marxist Legacies. Camb Law J 67(63):662–664 Nettl P (1965) Rosa Luxemburg. Köln, Berlin Paz RY (2011) Between the “Public” and the “Private” (review of Elihu Lauterpacht’s The life of Sir Hersch Lauterpacht). Eur J Int Law 22(3), 1:863–873 Paz RY (2012) A gateway between a distant god and a cruel world: the contribution of Jewish German-speaking scholars to international law, Leiden. Brill Martinus Nijhoff Publishers, Leiden/Boston Paz RY (2017) “If I forget thee, O Jerusalem”: religion, international law and Jerusalem. In: Koskenniemi M et al (eds) International law and religion: historical and contemporary perspectives. Oxford University Press, Oxford Said EW (2003) Orientalism. Penguin, London Sands P (2016) East West Street: on the origins of “Genocide” and “Crimes Against Humanity”. W&N, London Schwebel SM (1987) International arbitration: three salient problems, Hersch Lauterpacht memorial lectures. Cambridge University Press, Cambridge Shapira A (1998) New Jews old Jews. Am Oved Publishers Ltd, Tel Aviv Sinkoff N (2004) Out of the Shtetl: making Jews modern in the Polish Borderlands. Brown University Press, Hanover, N.H Slezkine Y (2004) The Jewish century. Princeton University Press, Princeton Sutcliffe B (2002) How many capitalism? Historical materialism in the debates about imperialism and globalism. In: Rupert M, Smith H (eds) Historical materialism and globalisation: essays on continuity and change. Routledge, New York

Law, Secularism, and the Evolution of the ‘Human’ in International Legal Discourse and Global Governance Joanna K. Rozpedowski

Abstract Historical records establish that before 1700 the concept of ‘religion’ as separate from that of ‘society’ or ‘politics’ was non-existent. As such, a ‘religious’ foundation for political transformation or military intervention was inseparable from its social basis; the temporal intermingled with the divine. Separation of the church and state is a relatively modern invention, scholars argue, and the wars preceding it were fought with religious sentiments present and largely intact. In a world so designed, religion regulated war, designated who and what constituted a causus belli or a ‘just cause’ for waging war, and stipulated terms and conditions of engagement and ultimately of peace itself. When the Spanish and the Portuguese embarked on the conquistadorian missions in the New World, Pope Alexander VI, himself, saw to it that the plunder and extermination of the natives that followed be veiled in the ‘just war’ rhetoric. In the 14th century, however, with the balance of power shifting from Popes to Kings and, in the 17th century, with the inauguration of the concept of the state arranged according to a legal and constitutional order, the notion of the secular took a firm root in the European political consciousness issuing subsequently in a revolutionary turn away from naturalism toward positivism and social constructivism. The following paper traces the development of the concept of secularization and evolution of the juridico-political discourse and of the ‘human’ subject in international law along with its social ramifications, while also paying attention to the lessened influence—if not an altogether commanding decline—of the religious or divinely inspired laws, which emphasized harmony and peaceful cohabitation of all beings. In so doing, I shall seek to hint at a gradual humanization of international law and accompanying judicialization of politics, whereby customarily absolute sovereign prerogatives and incontrovertible ‘acts of state’ have become subjects of increased scrutiny, legal qualification, and accountability. Furthermore, I shall trace the historical evolution of the cosmopolitan sensibility and the conception of human subjectivity to which it gave rise under international law and, in so doing, delineate the evolving human-centered, as opposed to the traditionally state-centered,

J. K. Rozpedowski (B) School of Government and International Affairs, Durham University, Durham, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_11

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understanding of international law, international adjudication, and their cumulative impact on state behavior and global governance.

1 Introduction Nor will it be one law at home and a different one at Athens, nor otherwise tomorrow than it is today; but one and the same law, eternal and unchangeable, binding all peoples and all ages; and God, its designer, expounder and enactor, will be, as it were, the sole and universal ruler and governor of all things.

So writes Cicero in De Legibus, enacting next to Aristotle’s Politics and Plato’s Republic, one of the earliest conceptions of the law. For Cicero, true law is eternal law unchangeable and inseparable from the Divine Mind, which orders all things in accordance with reason and nature. To disobey the commands of the law is to turn ones back on nature—the essence of one’s very being; but to obey it, is to be set free. What Plato, Aristotle, and Cicero set in motion more than two thousand years ago still resonates with the moderns. The unity and harmony of the State, the nature and purpose of justice, its realization and equality before the law resound today not merely as old and tried Graeco-Roman residues of once formidable thought, but as essential building blocks of Western civilization and contemporary jurisprudence. Some even argue that “our contemporary jurisprudence cannot be comprehended fully without reference to its ancestry” and it is precisely the “universal significance of the classical Roman jurists” that ensures “their permanent worth” for the modern-day society, irrespective of however much the aforementioned modern-day society would desire to wish its natural law roots away and establish itself as a fully advanced, scientific, and wholly secular order unbridled by the metaphysical ‘baggage’ or religiously-inspired understanding of the universe. In what follows, I want to trace the development of the concept of the secular and its evolution in the juridico-political discourse. I shall then follow with a description of an evolving understanding and recognition of the ‘human’ subject in international law and the social ramifications such recognition carries. I will proceed by first paying attention to the lessened influence—if not an altogether commanding decline—of the religious or divinely inspired laws, which emphasized harmony and peaceful cohabitation of all beings. Second, I shall seek to hint at a gradual humanization of law and accompanying judicialization of politics, whereby customarily absolute sovereign prerogatives and incontrovertible ‘acts of state’ have become subjects of increased scrutiny, legal qualification, limitation, and accountability. At last, I shall trace the historical development of the cosmopolitan sensibility and the conception of ‘human’ subjectivity to which it gave rise under international law and, in so doing, delineate the evolving human-centered, as opposed to the traditionally state-centered, understanding of international law, international adjudication, and their cumulative impact on state behavior and global governance.

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The aforementioned trajectory does not mean to imply that secularization and humanization of law are mutually constitutive, co-occurring, and co-dependent developments but rather a consequence of an often chaotic and not always linear process of law articulation in the midst of perverse incentives and temptations of power. History, as will be shown, is replete with destructive trends and riveting but altogether disappointing fits and starts where the arc of progress tends towards peace, industry, humanity as much as towards aggression, oppression, and violence.

2 Foundations When the social contract theorists spoke of the pre-political condition of men as solitary, poor, nasty, brutish, and short, they responded to the anarchy of meanings and conflicting social imaginaries of their highly volatile times. The 16th and 17th centuries in which the ideas of Hobbes, Locke, and Rousseau germinated and developed witnessed upheavals of norms, mores, and conscience. Religiously inspired moral dicta of the thoroughly Christianized Middle Ages, which had been used to navigate the high seas in search of distant lands and colonies, justified the extension of imperial reach, deepen economic dependence and consolidated a firm control over and regulation of trade routes, would also result in accumulation of immense wealth and consequent social stratification on the European continent. Just as the Magna Carta displaced the Divine Right of Kings four centuries earlier, the new Law of the peoples promised a novo ordu seculorum steeped in scientific discipline, progressive improvement of material conditions sustaining life, and harmonious coexistence. The post-Newtonian age held man to be the measure of all things, diviner of things on earth and in the heavens above, the giver of law and subject of historical forces. Government based on the consent of the governed promised to establish concord by constitutional means and protect individual rights to ‘life, liberty, and the pursuit of happiness’. Where once blind dogma served the interests of the few, enlightened self-interest now promised to guide the many. A thorough democratization of the notion of the secular order untethered from both the King and the Pope launched an era of formal equality before the law, offering myriad freedoms couched in the lofty language of popular sovereignty safeguarded by a representative form of government. It was the fate of men to reverse the Augustinian trajectory and in being born a citizen of this world, one became an alien in the City of God and at home in the city of men.1 But, “What does it mean to say that we live in a secular age?” and what gives our lives the moral and spiritual shape, what defines our duties, lays down the law, and serves as a primordial ‘source’ of the self? In his A Secular Age and “Western Secularity”, Charles Taylor recounts the conditions, which fundamentally redefined human being’s relationship with nature and the social order. The transition from the transcendent to the immanent and temporal dates back to the Reformation and its 1 St.

Augustine (1988), p. 633.

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aftermath, when “certain functions, properties, and institutions were transferred from the church control to that of laymen”.2 This marked the transition, Taylor observes, from the conception of the good steeped in Christian ethics to that of a “new postGrotian idea of a society formed of and by individuals in order to meet their needs for security and the means of life”3 and thus a turn from the notion of divine perfection to that of an earthly search for material perfectibility. Descartian rationalism paired with Newtonian certainty obscured religious authority requiring that all laws dictating movement of the planets and men be purged of superstition. Institutional order, too, had to become retrofitted to meet the demands of this Copernican revolution in the codes and mores of the social order. A paradigm shift across Europe dictated that the state be given secular reasons for its existence in the form of a social contract backed up by positive laws and that the supreme morality ordering behavior be that of liberty. Kantian injunction of Sapere aude! or “Have courage to use your own understanding!” encapsulated the sentiments of the time. Thus, “the secular is never just the absence of religion, or its privatization, or its waning” as the popular lore has it, “it is a cumulatively and dialectically achieved condition”,4 a dynamic process which involves “new constructions of identity, social imaginary, institutions, and practices”.5 In practice, great efforts were made to make the state self-sufficient and morally independent from religion ceasing thus the foundational myths of cuius regio, eius religio while putting in place constitutional guarantees that divorced religion from politics, the enchantment of spirituality from the art of government. Washington’s newly independent colonies and established albeit post-revolutionary European republics alike, experimented with their separate but co-existent persuasions, codifying laws relegating the religious-spiritual to the private realm and advancing the rational-scientific credo in the public craft of statehood. The formidable task before the architects of the new socio-political-legal order, then, was to determine how a system of objectively valid norms could be established without recourse to metaphysical and metalegal authorities of God and His commands and what forms should politically legitimate constitutions, authorizing custom and regulating legislative and executive procedures, take. The art of government inevitably led to an interpretative exchange between Natural Law theorists and Positivists about the sources of law, general norms, and competencies that newly codified constitutional orders and popularly elected parliamentary bodies should adopt. Doctrinal arguments notwithstanding, another consequential tradition has re-emerged to claim its space in the legal tradition hoping to influence relations and regulate conduct between peoples and nations.

2 Taylor

(2011). Footnote 2. 4 Calhoun, et al. (2010), p. 25. 5 Brown (2010), p. 89. 3 See

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3 Cosmopolitan Thought and International Law There are two stories to be told about the international system. One of socio-political gravity intently focused on the works of Aristotle, Plato, Hobbes, Locke, Rousseau, Marx, Weber and Habermas that collectively comprise the social contract tradition. The other, legal by design, invokes the likes of Grotius, Pufendorf, de Vattel, Kant, and Kelsen. And although much theoretical analysis of the above has already been done elsewhere (see The Gentle Civilized of Nations by Martti Koskenniemi6 ), the following section will attempt to draw attention to the significant assumptions which are undergoing change as a result of increasing emphasis on the human subject him or herself and therefore, a turn away from divine sovereignty and the right of kings to that of humanity. A remarkable transformation in the experience of being human, writes Steven Pinker in The Better Angels of Our Nature,7 is underway. Modernity, with its infusion of individualism, cosmopolitanism, reason and science has replaced tribalism and orthodox traditionalism, which left a legacy of crime, genocide and war. The preceding two thousand years of recorded history, which Pinker invokes, show evidence of crucifixions, mutilations, beheadings, exterminations, wife-beatings and child abuse. One look at Rwanda, Bosnia, Syria, Egypt, and Europe of the 20th and 21st centuries brings a distinctively human and therefore an exceptionally violent history of the species to its full, often lamentable, actualization. It is not an accident that the great mind of the French Enlightenment thought, Blaise Pascal, simultaneously condemned and sympathized with the human lot: What a chimera then is men! What a novelty, what a monster, what a chaos, what a contradiction, what a prodigy! Judge of all things, feeble earthworm, repository of truth, sewer of uncertainty and error, the glory and the scum of the universe.8

In The Man Who Laughs, Victor Hugo, on the other hand, warned his character Homo the wolf of the precariousness of the human condition, counseling him to: “Above all things, do not degenerate into a man” (1888). Like the writings of Darwin and Hobbes, who pondered deeply the underlying causes of man’s enfeebled and reprobate nature, Pinker’s ambitious study merits attention of social scientists and scholars of international politics as it meticulously documents evidence of a decline in brutal practices that defined inter-personal and inter-state relations of the last two millennia. Historically, (i) tribal warfare was nine times as deadly as war and genocide in the 20th century, (ii) the murder rate in medieval Europe was more than thirty times what it is today, (iii) slavery, sadistic punishments, and frivolous executions were unexceptionable features of life for millennia before their sudden abolishment, (iv) wars between developed countries have vanished, (v) rape, battering, hate crimes, deadly riots, child abuse, cruelty to 6 Koskennieni

(2001). (2011). 8 Blaise Pascal quoted in Pinker (2011). 7 Pinker

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animals are substantially down.9 Worlwide battle deaths per 100,000 people in colonial, interstate, and civil conflicts have also substantially declined in the last seventy years. If human nature has not substantially changed, Pinker wonders, how can we account for the considerable decline of violence? Delving deeply into the “inner demons” that incline human beings toward sadism and tribalism and the “better angels” that drive them away, Pinker is able to suggest that the institution and spread of (i) government, which in a legislative and often punitive sense is capable of controlling human impulses by putting forth laws aimed at controlling or regulating a state, its organization, and its people. (ii) Literacy, which allows literate subjects to evolve their emotive capacities for understanding the distant other, acquire competencies in different subjects, converse and engage with the world beyond their geographic confines. (iii) Trade which emphasizes bargaining and deal-making as opposed to plundering allowing for specialization and promotion of buying and selling of goods and services on the market of exchange. Lastly, (iv) cosmopolitanism, which allows human beings to question and ultimately debunk toxic ideologies and inhumane “isms” of their times. Collectively all four have gradually and decisively tempered antagonistic impulses and brutal inclinations that plagued human civilizations. It is the last of the variables, which Pinker identifies, cosmopolitanism, that is of interest and great import to the present discussion. Cosmopolitan, as a moral construct and a normative ideal inaugurated by the Stoics in the Hellenistic era, proposes that: (i) every human being possesses an intrinsic worth and moral entitlement to human rights, merely by being human. (ii) This moral worth and entitlement must be recognized and respected by others. And finally, (iii) the state, as the primary reference point for human identity and political personality, must be seen to exist for the sake of the individual being and not vice versa.10 The moral realm of humanity is therefore owed first and foremost allegiance.11 Richard Brett in “Did the Stoics Invent Human Rights?”12 provides an analysis of a Stoic notion of community and the position of the much-revered wise citizens to the rest of the human order. Although, his meticulous study of the ancient texts reveals an elitist disconnect between the human horde and the supreme sagacity of the few wise men, the notion of moral advancement and human dignity inaugurated there find their full expression in the life lived in harmony with natural law and rights derived therefrom. The broad extrapolations of the human universal condition imbued with a cosmological perspective initiated by classical Greece and bracketed by Platonists, Aristotelians, and the Stoics, enabled/proffered a view of human life 9 See

Footnote 7.

10 It might be worth reflecting here on Martin Heidegger’s idea of the “standing-reserve”. According

to the philosopher, the citizen is to be treated instrumentally, as a means to an end, a “standingreserve” ready to take up arms and shed blood in the name of the state’s short and long-term objectives. 11 Held (2005). 12 Brett (2012).

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as contingent upon two distinct orders: (i) the Order of Nature (cosmos), evidenced in practical activities revolving around the annual cycle of seasons, and the monthly changes of tides; (ii) order of society (polis), evidenced in the administration of cities and collective enterprises ensuing in a politically organized unit, the city-state. The belief that the “structure of Nature reinforces a rational Social Order” led to a manifest presupposition of a link between nature and social artifice, between cosmos and polis and thus to an eventual philosophical fusion of orders into a single unit, cosmopolis. The eighteenth century witnessed the introduction of the second conception of cosmopolitanism, when the term weltburger or world-citizen emanated from and defined the Enlightenment thought. Immanuel Kant’s insistence on cosmopolitan right as human capacity to present oneself and be heard within and across political communities, and the imagined orbis pacificum uniting European commonwealths under one government laid the foundation for dialogue without constraint. Kant upholds that an ethical and political community can be established and freely entered into by all moral agents. Such an establishment will hold “humanity as an end in itself” and thus mediate between the concept of inner moral duty towards others and the demands of the external public law through the means of a categorical imperative. The imagined Kantian community of free wills promises to culminate in a moral world in which agents, apart from considering their personal values and private projects, remain committed to and respect the moral personality of others, which subsequently leads to a general public morality that adequately advances the values of all. The political agent, on Kantian account, instead of being “enwrapped in itself as if it were the whole world, understands and behaves itself as a mere citizen of the world”13 and recognizes the totality and interrelatedness of other human beings, Kant’s revered union of wills thus defined and consolidated the parameters of moral order and the cosmopolitan rights and constituted the first modern articulation of the political cosmopolis. The pacification of violent human tendencies can be attributed to slowly evolving tacit and explicit norms of civilized behavior, standards of empathy and ethics, selfcontrol, cooperation, growing awareness of Jeffersonian “self-evident truths” and the emergence of liberal democracy that embraces and nurtures citizen’s impulse towards equal representation and justice.14 “The rise of cosmopolitanism in the 17th and 18th centuries deserves part of the credit for the Humanitarian Revolution”.15 The age of scientific reason and literary and philosophical enlightenment resulted in humanism and liberalism previously unseen. Even Shakespeare will infer that “people who are different from us in many superficial ways—their gender, their race, their culture—are like us in fundamental ways.16 Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed 13 Kant

(1978), p. 128. (2011), p. 180. 15 See Footnote 14. 16 Pinker (2011), p. 181. 14 Pinker

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by the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?17

And Samuel Johnson will invite his reading audience to “let observation, with extensive view,/Survey mankind, from China to Peru;/Remark each anxious toil, each eager strife,/And watch the busy scenes of crowded life”. Rousseau’s romantic predilections urge the “great cosmopolitan souls” to stand as “paragons of compassion” to “surmount the imaginary barriers that separate Peoples” and “include the whole human Race in the benevolence”. More fundamentally, still, John Finnis in his Natural Law and Natural Rights (1980) makes fundamental assertions concerning basic values which social orders deem universally sacrosanct. Thus, All human societies show a concern for the value of human life; in all, self-preservation is generally accepted as a proper motive for action, and in none is the killing of other human beings permitted without some fairly definite justification. All human societies regard the procreation of a new human life as in itself a good thing unless there are special circumstances. No human society fails to restrict sexual activity; in all societies there is some prohibition of incest, some opposition to boundless promiscuity and to rape, some favour for stability and permanence in sexual relations. All human societies display concern for truth, through education of the young in matters not only practical (e.g. avoidance of dangers) but also speculative or theoretical (e.g. religion) …. And all societies display a favour for the values of co-operation, of common over individual good, of obligation between individuals, and of justice within groups. All know friendship. All have some conception of meum and tuum, title or property, and of reciprocity. All value play, serious and formalized, or relaxed and recreational, All treat the bodies of dead members of the group in some traditional and ritual fashion different from their procedures for rubbish disposal. All display a concern for powers and principles which are to be respected as suprahuman; in one form or another, religion is universal.18

4 Laws of War and Their Normative Social Contract Implications The insertion of international legal discourse and a corresponding concern for the general welfare of humanity gave rise to the internal reevaluation of the meaning of the social contract itself and the value of human life. Up to now, the social contract tradition justified subjective sovereign assessment of external threat and mandated and vindicated externalization and projection of power by violent means and the use of force. It is not an accident that much ink has been spilled over the course of the two millennia on the question of just war and the moral bases for its wager. Since their inception, the guidelines regulating conduct in war as a function that states perform to meet the requirements of the social contract, i.e. (i) to protect the integrity of 17 See

Footnote 16. (1980), pp. 83–84.

18 Finnis

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the state and (ii) ensure the security of its citizens, have moved in the progressively humanizing direction. The rules and principles of the law of armed conflict (LOAC) thus find their origin in (i) the Declaration of Paris of 1856; (ii) the Declaration of St. Petersburg of 1869; (iii) the Hague Peace Conferences of 1899 and 1907; (iv) the Geneva Protocol of 1925; (v) the Geneva Convention of 1929; (vi) the Four Geneva Conventions of 1949; and (vii) Two Additional Protocols of 1977. Collectively, they constitute the jus in bello rules that govern conduct during armed conflict and delineate moral limits on the use of force, set out principles for the treatment of individuals in the course of war, and minimize unnecessary suffering and the use of excessive violence. Alongside jus ad bello, or laws pertaining to the circumstances surrounding the initiation of conflict, the actors involved and their respective legal and moral justifications for the use of military power, jus in bello, aims to define the parameters and set restrictions on the conduct of war. Both sets of rules fall under the domain of public international law and hold humanity at the center of legal and moral concern. The Jus in Bellum as the body of law pertaining to the control of conduct during war takes its inspiration from the Old Testament and Koran, which, as scholar claim, provide the earliest articulation of the appropriate relationship between the “victors and the vanquished”.19 Respectful treatment of captured soldiers and civilians according to established rules of war was also a matter of considerable concern for the Seventh Century Babylonians.20 And the Fourth Century Chinese military general and philosopher, Sun Tzu, in his work The Art of War considered “treatment and care of captives, and respect for women and children in captured territory”21 of significant importance to a civilized and humane conduct of warfare. Arbitrary declarations of war without just cause for the purposes of “avenging of injuries, punishing wrongs, and returning what was wrongfully taken” was conceived by St. Augustine to be contrary to the natural order tailored for the purposes of preserving “peace of mortal things”.22 The ad bellum principles calling for a just cause to war and proper authority in declaring it remained the cardinal sphere of concern for early Christian theologians, prompting Thomas Aquinas to reflect more expansively on the inner demons propelling nations to war with one another. For him, as much as for St. Augustine, thus, inward dispositions of rulers and soldiers engaged in the business of war mattered a great deal. A lawful war, writes Aquinas in his Summa Theologiae, waged with a legitimate authority and a just cause “may be rendered unlawful by wicked intent”23 where “the desire for harming, the cruelty of revenge, the restless and implacable mind, the savageness of revolting, the lust of dominating”24 adds St. Augustine, reveal an utterly malevolent propensity and cruel and vindictive inner

19 Bovarnick

et al. (2011), p. 11. et al. (2011), p. 22. 21 See Footnote 19. 22 Sharma (2008), p. 11. 23 Thomas Aquinas—Summa—IIaIIae 40, in Sharma (2008). 24 Sharma (2008), p. 14. 20 Bovarnick

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character, which must be avoided. Francisco Suarez, a Spanish Jesuit priest, philosopher and theologian, would emphasize and prioritize the right manner of waging war (debitus modus) over right intention, giving rise to questions of the appropriate conduct in war, with which jus in bello has since concerned itself. Any sovereign, therefore, who takes his nation to an unjust war, Emer de Vattel concluded in his 1797 Law of Nations, is guilty of a crime against the enemy, whom he attacks, oppresses, and massacres, without cause: he is guilty of a crime against his people, whom he forces into acts of injustice, and exposes to danger, without reason or necessity,—against those of his subjects who are ruined or distressed by the war,—who lose their lives, their property, or their health, in consequence of it: finally, he is guilty of a crime against mankind in general, whose peace he disturbs, and to whom he sets a pernicious example.25

A brief genealogy of just war theory suggests that its origins are deeply rooted in Christian ethics, which have been informed by a tradition of natural law, that is, a collection of normative precepts and universal principles whose authority is “absolute, immutable, and universal for all times and places” and whose source rests in other than human invention, that is in (i) nature, (ii) Supreme Being; or (iii) human reason. Cicero would therefore claim that “true law is right reason in agreement with nature; it is of universal application, unchanging and everlasting … to curtail this law is unholy, to amend it illicit, to repeal it impossible”.26 Such inadmissibility of challenge permitted the natural law theory, and alongside it, the jus gentium (the law of the people) and jus civile (the civil law), to continue to evolve and flourish. With “peace and well being of the community”27 in mind, “the obligation of government was to protect the natural rights to life, liberty, and possessions”.28 To this important facet of jurisprudence has been added a consideration for a doctrine of human rights as a rationale for just war, which today, as Walzer argues, can constitute the only consequential motivation worth fighting for and the “most effective limit on military activity”.29

5 The New Versus the Old World Order The scarcity of rules governing the use of force and conduct of war from antiquity to the Middle Ages, however, made itself apparent in unregulated practices of enslavement, trade in human capital, use of poisoned weapons, and indiscriminate appropriation and seizure of territory. The era of the just war doctrine, dominant in

25 Vattel

(1797), p. 586. (2002), p. 3. 27 Hayman (2002), p. 4. 28 Locke (1998), p. 303. 29 Walzer (2000), p. 304. 26 Hayman

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the medieval international system, conditioned the rights and duties of the belligerents on “the justice of the cause for which they waged war”.30 As long as the war (i) was conducted with justa causa or a just cause, i.e. in self-defense or to avenge past injuries; (ii) it was sanctioned by a lawful authority; and (iii) based on the right intention of belligerent parties, the means utilized could only be limited by what was necessary to achieve the desired purpose.31 The Treaty of Westphalia of 1648 and the inauguration of the modern state system did away with the just cause doctrine and considered the wager of war to be “a sovereign entitlement of every state”.32 With inviolable prerogative to wage war, the cruelty and devastation that followed, with time, awakened the international community’s public conscience. The turning point came in 1859, when the “miserable fate of the wounded left on the battlefield”33 after the Battle of Solferino fought between the French, Sardinian and Austrian armies, propelled Henry Durant to articulate general principles aimed at humanizing the battlefield. The enthusiastic response of the European nation-states to Durant’s proposals of (i) giving “a legal protection to the military wounded in the field” and (ii) creation of national societies who were to prepare in peacetime all the material and personnel needed in war”34 resulted in gradual formalization of “non-derogable protections for the victims of war”35 formally collected and codified after World War II under four respective Geneva Conventions, jointly referred to as Geneva Law. Thus, the Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field (GCI), intended to obligate states engaged in armed conflict to “respect, protect and aid wounded and sick military personnel without adverse discrimination”.36 The Geneva Convention on Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea (GCI) extended GCI land warfare protections to wounded, sick and shipwrecked personnel at sea and took protective note of hospital ships. The Geneva Prisoners of War Convention of 1949 (GCIII) defined the status of troops taken prisoner of war and, finally, the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (GCIV) aimed at the protection of the civilian population from the ravages of war. “The International Red Cross was created in 1870 to alleviate suffering in war”.37 The proliferation of non-international conflict in the decades following the end of World War II, gave rise to Two Additional Protocols of 1977, which “strengthen the protection of victims of international (Protocol I) and non-international (Protocol II)

30 Kolb

and Hyde (2012), p. 22. Footnote 30. 32 See Footnote 30. 33 Kolb and Hyde (2012), p. 38. 34 Kolb and Hyde (2012), p. 41. 35 Bovarnick et al. (2011), p. 20. 36 See Footnote 33. 37 Detter De Lupis (1987), p. 123. 31 See

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armed conflicts and place limits on the way wars are fought”.38 The Two Protocols extend protections: (i) to civilian medical and religious personnel, (ii) of cultural objects and places of worship, (iii) of hospitals, medical ships and aircraft.39 While the Geneva Law represents “the passive side of the same coin (what the protected persons should not suffer), the Hague Law “expresses the active side of the coin (what the military may do)”40 under conditions of armed conflict. The prohibition on certain means and methods of combat (including weapons, tactics, and targeting decisions), which are considered excessive, is the primary aim of a body of rules collective referred to as the law of the Hague. In addition to the Declaration of Paris of 1856, which abolished privateering and regulated the relationship between enemy ships on the high seas,41 the Declaration of St. Petersburg of 1869 was among the first documents to articulate “the legitimate aims of warfare” and set out limitations on the means of its conduct.42 The Hague Conventions of 1899 and 1907 explicitly forbade the use of “poisoned weapons, or arms or projectiles which would cause unnecessary suffering, or the refusal of quarter”43 and defined the “rights and duties of belligerents in occupied territories”.44 Additionally, Article 22 of the Hague Convention IV states that “the means of injuring the enemy are not unlimited”45 and the injunction applies to all theatres of war and mediums of combat: land, sea and air. Moreover, specific treaties and protocols aim to limit or prohibit the use of weapons which cause suffering disproportionate to military objectives and military necessity. The 1923 Geneva Protocol prohibits use of poisonous and asphyxiating gas; the 1993 Chemical Weapons Convention prohibits production, stockpiling, and use of chemical weapons; the 1925 Geneva Protocol prohibits use of biological weapons and the 1972 Biological Weapons Convention prohibits their production and stockpiling; the 1980 Certain Conventional Weapons Convention prohibits or restricts the use of weapons which cause indiscriminate suffering, such as, laser weapons, mines, booby traps, or explosive remnants of war; and the 1954 Hague Cultural Property Convention seeks to preserve and protect cultural property in the event of armed conflict.46 Moreover, the 1998 Rome Statute on the International Criminal Court (itself, not an implicit part of the LOAC) expands upon the

38 International Red Cross. The Geneva Conventions of 1949 and their Additional Protocols. http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overviewgeneva-conventions.htm. 39 See Footnote 38. 40 Kolb and Hyde (2012), p. 41. 41 International Red Cross. Declaration Respecting Maritime Law. Paris, 16 April 1856. http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId= 10207465E7477D90C12563CD002D65A3. 42 Kolb and Hyde (2012), p. 53. 43 Starke (1963), p. 423. 44 Kolb and Hyde (2012), p. 54. 45 Bovarnick et al. (2011), p. 19. 46 Bovarnick et al. (2011), p. 20.

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provisions of the LOAC, and aims to repress and penalize the occurrence and perpetration of international crimes, including war crimes,47 ensures that States abide by international humanitarian law, and provides new guidelines for the scope and methods of war and use of force under public international law. The law of armed conflict consists thus of a set of practical and clearly defined principles, which seek to strike a balance between humanity and military necessity. They are, the principle of: (i) distinction (GPI, Arts. 48, 52)—armed forces must distinguish between combatants and civilians; (ii) proportionality (HR IV, Arts. 22, 23; GPI, Arts. 57, 51(5)(b) of Additional Protocol)—excessive use of force is in violation of LOAC; (iii) military necessity (H IV, Art. 23(g)—to make the opponent submit, reasonable use of force is permitted; (iv) limitation (HR IV, Arts 22, 23; GP I, Arts. 35(1), 57, Additional Protocol 1)—means and methods of warfare are not unlimited and unnecessary suffering and superfluous injury are prohibited; (v) humanity (GC I-IV, Art. 12; Article 4 of Additional Protocol II)—belligerents are to treat protected persons with respect; (vi) good faith and reciprocity—between opponents is a customary principle of warfare and good faith must be shown in the interpretation of the LOAC.48 In toto, the above reflects an evolving moral landscape, which puts emphasis on individual subjects as entities proper of public international law. In sum, the fundamental purpose of the modern-day laws of armed conflict, derived from rich and varied historical disputations among venerable scholars, is to prevent unnecessary suffering, avoid unmitigated escalation of force and spread of conflict, protect civilian objects from indiscriminate targeting or annihilation, and protect civilian population and non-combatants and hors de combat from sustaining damages to the mind and body during armed struggles. The principles of law and the realities of combat, however, often conflict and require proper and judicious balancing by both the military and civilian personnel directly involved in the pursuit of and conduct of war. Moreover, developments in the normative bases of the twenty-first century framework of the Responsibility to Protect (R2P) call into question the indivisible sovereign authority and appeal to humanitarian conscience for the right to intervene in the name of preserving humanity from harm at the hands of the state. The duty and responsibility to protect the most vulnerable strata of non-belligerent civilian population in times of egregious human rights violations brought about by the inevitable fog of war, also provides the international community and international courts with urgent and ample opportunities for moral and legal refinement of the just war doctrine with a view to further theorization and grounding in reason and law of the modern-day humanitarian-intervention mandate. It is not an accident that the rise in cosmopolitan consciousness combined with government and literacy, as Harvard sociologist Steven Pinker contends, has led to the gradual and steady pacification of human society. His sophisticated and data-rich study has shown death rates from conflict falling from 15% per annum to 3% per annum. This does not mean to do

47 Kolb 48 Kolb

and Hyde (2012), p. 55. and Hyde (2012), pp. 45–49.

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away with conflict entirely, but merely to suggest the ‘civilizing’ effects of the above on human proclivities towards violence. In view of morally obliging and often legally obligating cosmopolitically-oriented treaties, States can no longer sustainably maintain that “might makes right” for, as Henri Rolin observed, “the public judgment that falls upon public acts has become more severe, more enlightened, more honest”49 and certain juridical notions hold public and private conscience at bay. Crystallization of this cosmopolitan moment in international law came in 1815 when Pasquale Fiore, having recognized the force of elevated European humanitarian-liberal intuitions, subject to “the movement of incessant progress and history”, in “European international law” aimed to transcend them by contending that “the unity of the human species conduces to the recognition that the empire of legal rules that are applicable to all forms of human activity in the Magna civitas, must be universal”.50 His dualistic view of the world, divided among the civilized51 and the barbaric nations, nevertheless gave rise to the notion of a juridical community—“this community is already a product of civilization. To the extent that it expands to savage countries, it gives rise to needs and interests that unite the civilized nations with barbaric or other peoples less advanced in the path of progress”.52 The momentum of progress, for Fiore, required “the spread of liberal political institutions, protection of individual rights, freedom of trade, interdependence and the civilizing mission”, and ultimately, a confederation of states “becoming increasingly bound to act through conferences, treaties and dispute-settlement procedures”.53 Acting in the zeitgeist of the times, Kelsen suggested a pyramidal hierarchy of law’s norms, grounding the system of laws in a basic norm, or Grundnorm, from which all others are derived. In its traditional conception, norms are regulatory mechanisms that standardize how individuals are to behave. Thus, a norm “is an ought proposition; it expresses not what is, or must be, but ought to be”54 in certain conditions. For Kelsen, creation of legal norms is authorized by other legal norms. Judges, therefore, do not create norms de novo, but derive them from other norms already in operation, which match or respond to the particular circumstances of a case before them. Constitutional norms or treaty norms are the “higher” expressions of law, which authorize the creation of lower ones. The ultimate Grundnorm confers validity upon all other norms derived therefrom. In every legal order, therefore, a hierarchy of ‘oughts’ is traceable to a fundamental Grundnorm. For Kelsen, municipal and international law have the same subject matter in common—the dominant Grundnorm—which is essentially human centered and aims at the legal protection of human rights. Since, for Kelsen, the fundamental Grundnorm of international law is encapsulated by the principle of pacta sun servanda (“agreements must be kept”), 49 Rolin

in Koskenemmi (2001), p. 79. in Koskenemmi (2001), pp. 54–55. 51 Meant in the Kantian sense as a state of cultivation of human faculties manifested in diplomacy and popular conscience. 52 Koskenemmi (2001), p. 56. 53 Koskenemmi (2001), p. 57. 54 Kelsen (1957), pp. 235–244. 50 Fiore

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this implies that every international treaty in force “is binding upon the parties to it and must be performed by them in good faith”.55 State parties to it, cannot, therefore, invoke municipal laws as justification for failure to live up to the spirit and obligations of international agreements, especially when the good of the human person conceived in terms of rights threatens to be compromised.

6 Humanization of International Law When in 1948, only three years after the conclusion of the most pernicious conflict of the twentieth century, the framers of the Universal Declaration of Human Rights transcribed the words, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”,56 they could not have known that the wounded but recalcitrant international state system, and the entrenched but capricious interest-driven political environment would effectively mute their full symbolic, cosmopolitan, and legal weight until the dawn of the new millennium. Gradually, however, as the importance and condition of sovereignty and territorialization as casus belli in international relations were undermined and diminished by the processes of economic and political globalization, the normative foundations of the legal order have begun to shift from state-sovereignty-oriented approaches and its traditional emphasis on security, territory, borders, and statehood, to human-beingoriented approaches57 that focus on the security of persons and peoples, creating, in an otherwise confrontation-prone socio-political milieu, a space for an enlightened orbis pacificum, which holds perpetrators of crimes offensive to human conscience and dignity to the highest possible legal and moral standard. Contemporary scholars of international law discourse contend that it is increasingly difficult to “miss the (implicit) connection between the said emerging jurisprudence and the ongoing process of ‘globalization of law’ driven by a variety of international courts and court-like bodies in fields as diverse as international trade, international law of the sea, international criminal justice, and of course international human rights”.58 Permeating the relocation of authority from state bureaucracies to supranational judiciaries is a characteristic ethic of humanitarianism, which is distinct from previous spurs of selfless humanitarian compassion in that it is for the first time (i) institutionalized, (ii) organized, and (iii) part of governance. The international community, according to Michael Barnett, has come to increasingly recognize acts of violence as “causeways for benevolence”,59 thus treating 55 Vienna

Convention on the Law of Treaties (1969). http://legal.un.org/ilc/texts/instruments/ english/conventions/1_1_1969.pdf. 56 The UN Declaration of Human Rights, Article 1. http://www.un.org/en/documents/udhr/. 57 Teitel (2011). 58 Pentassuglia (2009), p. 13. 59 Barnett (2011), p. 23.

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massacres, international and civil wars, war crimes, crimes against humanity, and war-induced famines as “calls to alms”.60 Moreover, advances in military technology and logistics of military strategy, “furthered the desire of the international community to expand the laws of war and provide more protections and relief to civilians”.61 Yet such beneficent largesse on the part of humanity could not have occurred spontaneously and without a chartered institutional trajectory of law articulation, interpretation, and enforcement. Alongside the first pangs of cosmopolitan enlightenment exemplified by compassionate recognition of human need and suffering across the globe and the growing internationalization and institutionalization of humanitarianism—which provided normative foundations for action—the rise of a supranational legal regime with its novel emphasis on human security and protection of individual human beings has begun to play a decisively transformative role in the discourse and practice of international relations. The Declaration of Human Rights, the Geneva Convention, the International Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights are but a few examples of multilateral legal instruments which allow, “humanity to assert itself through law” and seek civil and criminal accountability for overt transgressions of “the universalizable content of the core humanity law norms”62 through a global institutional order.63 Naturally, this emerging humanitarian-cosmopolitical turn identified by scholars has amplified the importance of supranational judiciaries, such as the International Criminal Court and the European Court of Human Rights, in “furthering the humanity-based scheme of jurisdiction that follows the person”.64 As “state-sovereignty-oriented approaches have been gradually supplanted by human-oriented approaches”, Teitel notes, the evolution of the international and cosmopolitan legal regime, which emphasizes “the primacy of individual responsibility” as well as “protection and preservation of persons and peoples”, has come to the fore in both domestic and international political and legal discourse. Concurrently, it is recognized that a more resolute recognition of human rights and cosmopolitan approaches by supranational judicial bodies must therefore co-evolve alongside such paradigmatic and sacrosanct norms as state sovereignty, monopoly on the use of force, and the superior prerogatives of state 60 See

Footnote 59. Footnote 59. 62 Teitel (2011), p. 7. 63 An array of international and regional courts and tribunals exists for the purpose of administering justice in accordance with international law, such as: Central American Court of Justice; the InterAmerican Court of Human Rights; Court of Justice of the Andean Community; Court of Justice of the EFTA; Benelux Court of Justice; Court of Justice of the EU; the European Court of Human Rights; the International Tribunal for the Law of the Sea; Eastern Caribbean Supreme Court; Caribbean Court of Justice, ECOWAS Community Court of Justice; COMESA Court of Justice; African Court of Human and People’s Rights; East African Court of Justice; International Criminal Tribunal for Rwanda; Special Court for Sierra Leone; Special Tribunal for Lebanon; International Court of Justice; International Criminal Court; Permanent Court of Arbitration; International Criminal Tribunal for the Former Yugoslavia; Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal), to name a few. 64 Teitel (2011). 61 See

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security. Subjecting “acts of state” to the rule of law and skewing the balance of power in favor of the individual is a symptom of the increasingly rights-oriented cosmopolitan gaze. This gaze is increasingly sympathetic to creating conditions for peace. There is an increased recognition that today’s conflicts end with a negotiated peace settlement that aims to (i) transform society from one that is violence-prone into one that recognizes and seeks political means for the resolution of domestic and inter-state disputes. There is an emphasis on reform and reconstruction of institutional frameworks of governance to encourage social dialogue, reconciliation of differences, negotiation over future socio-political arrangements, prevention of conflict over political exclusion and social marginalization. Lastly, emphasis is also put on creating sustainable domestic rather than externally imposed institutions with durable impact that are capable of outliving formal cessation of conflict or external interventions. Waging of war today requires a just cause, right intention, discrimination between civilian and military objects, and proportionality. For the sake of full restoration of individual dignity, humanity and legal personality of those adversely affected by the dehumanizing machinery of modern warfare, post-conflict scenarios must ensure a stable and lasting peace settlement, vindication of rights, inclusion, compensation, accountability, and punishment.

7 Humanity, Social Contract, and Positive Accounts of Law While the procedural hierarchy and processes of international law are affirmatively positive in character, the inspiration underlying the principles of law are steeped in common morality originating in and deriving from the natural law tradition. The early natural law tradition maintained “(1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings. Further, it holds that (4) the good is prior to the right, that (5) right action is action that responds nondefectively to the good, that (6) there are a variety of ways in which action can be defective with respect to the good, and that (7) some of these ways can be captured and formulated as general rules”.65 Aquinas and Hobbes were the early paradigmatic proponents and articulators of this view. Jus cogens law, in particular, congeals morality into norms that find expression in conventional sources of international law. Thus, laws prohibiting violations against the dignity of the person, crimes of aggressions and violence against civilians, and ‘atrocities that deeply shock the conscience of humanity’, stem from a natural law (lex naturalis) tradition which upholds the inherent value of the human being and assesses her actions on the basis of their compliance and adherence to practical rationality or reason.

65 The Natural Law Tradition in Ethics, Stanford Encyclopedia of Philosophy. https://plato.stanford.

edu/entries/natural-law-ethics/.

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While legal theorists such as H. L. A. Hart do not reject the above contention, Hart proceeds to assert however that there is no necessary connection between law and morality or between a legal system and morals. While moral, political, and social values are desirable features of a system of law, their absence does not invalidate it. In other words, morality is not constitutive of law and does not impose constraints on its content. On his account, a wicked law can be as valid as a good and upstanding one as long as it functions to achieve proscribed ends. Judgments weighing questions of justice or humanity on ethical grounds presuppose an underlying reference to natural law or morality and are in stark opposition to the positivist school of thought, which merely ‘posits’ the law on the basis of decisions that are in adherence with legal rules emanating from precedent. It is possible to imagine that a system of laws so understood, is a system of laws which also comforts those who wish to do it harm. For as long as procedures are followed and rules obeyed, the positivist school of thought will not deign to (pre) judge the result on any grounds other than adherence to the rule. Thus, as long as a superior sovereign entity exists to command obedience to law, Austin contends, the law itself is but a habit and part and parcel of the community’s social life. What therefore makes a legal system valid according to Hart? On the one hand those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.66

In sum, as long as rules do not seek to satisfy common morality (albeit, they may often coincide with morality) and the rule making or adjudicating authority enforces the rules, the criteria for a valid legal system have, on Hart’s account, been met. While morality may enter legal reasoning, judicial decisions or law created on the basis of morality will not constitute settled law. Legal skills and reference to source materials not reliance on moral standards ought to define the work of authoritative legal entities. The moment moral reasoning enters adjudication, positivists contend, new law on a given issue in question is created. It is possible to imagine, however, that an unmitigated amount of discretion may also give rise to laws that were not pre-existing and have been enacted as a result of judicial activism qua discretion, which required a judge to read into the substantive contents of the case, at the time the case arose before the court. In certain situations, a judge may also decide that of all available rules none are sufficient to resolve the case and therefore require an application of a set of standards—not previously foreseen by or inscribed in law—that yield the correct or reasonable judgment and without which a judicial decision would be blatantly unfair. Certain cases will require application of judicial discretion, if they fail to fit neatly under existing legal rules.67

66 Hart 67 A

(1994), p. 113. view maintained by Ronald Dworkin.

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8 The Natural Law Response Yet, “law’s social function is a normative and dynamic one: it seeks to structure and guide actions. These essential characteristics are seen most readily in the (sibling) processes of legal interpretation, adjudication, and rule production”.68 On this account, laws dispossessed of their moral context, on natural law’s account, lack the authority necessary to dictate right conduct in accordance with reason, principles of justice and fairness. Constitutional orders are replete with language of morality commanding that virtue and excellence inhere in the republic and reside in the hearts of its representatives. For this purpose, procedures of impeachment have been enacted in domestic legal orders to guard against unsound conduct and have been based on solid principles of morality that guard against scandalous behavior, which would put public order in disrepute. Edmund Burke in his 1788 impeachment address of Warren Hastings stressed law’s function in safeguarding honor and virtue and warned against deviations of power from established truths. We have no arbitrary power to give, because arbitrary power is a thing which neither any man can hold nor any man can give. No man can lawfully govern himself according to his own will—much less can one person be governed by the will of another. We are all born in subjection—all born equally, high and low, governors and governed, in subjection to one great, immutable, preexistent law, prior to all our devices, and prior to all our contrivances, paramount to all our ideas and to all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the universe, out of which we cannot stir. (…) This great law does not arise from our conventions or compacts; on the contrary, it gives to our conventions and compacts all the force and sanction they can have: it does not arise from our vain institutions. Every good gift is of God, all power is of God; and He who has given the power, and from whom alone it originates, will never suffer the exercise of it to be practiced upon any less solid foundation than the power itself.69

In his indictment of Hastings, Burke pointed to the high crimes and misdemeanors of which the defendant stood accused and which reverberated beyond the letter of the law affecting public morality and integrity of the political community itself as well as the supreme authority of the British Parliament. The self-declared “despotic prince” of subjugated Asia in his use of “arbitrary power”, Burke asserts, has betrayed the trust of Parliament, dishonored national character, subverted laws, rights, and liberties of the people of India “whose properties he has destroyed; whose country he has laid waste and desolate”.70 Lastly, Burke declares: “I impeach him in the name and by virtue of those eternal laws of justice which he has violated. I impeach him in the name of human nature itself, which he has cruelly outraged, injured and oppressed, in both sexes, in every age, rank, situation, and condition of life”.71 Similarly, James Madison in Federalist 57 weary of the degeneracy and absolutisms of power, set a high premium on the internal morality of duty and aspiration 68 Armour

(2017). (1788). 70 See Footnote 69. 71 See Footnote 69. 69 Burke

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of a constitutional republic, whose continuity was to be assured through obedience to elemental principles of civility and virtuous conduct of its public officials in line with universal truths and eternal laws of nature. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.72

The drafters of the Federalist Papers stressed virtuous aspects of the presidency veiled in nobility. The office elevates the man, Madison argued, where “duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people”.73 The common thread permeating the institution of a well-ordered constitution is reason’s moderation of desire and passion restrained by law. The Kantian transcendent rule of right reason and Aristotelian golden mean between human proclivities toward excesses of authority set limits on governmental overreach of power and fickleness and volatility of the ruled. Similarly, international law’s forefathers Vitoria, Suarez, Grotius, and Pufendorf embedded the ‘law of nations’ in the natural law theory. Ethics, theology, moral philosophy steeped in Christian tradition constituted the starting points in the construction of a system of rules rooted in metaphysical norms. Thus, “natural law supplies only the general framework of legal principles’ of which there are three, according to Friedman, “sanctity of obligations, duty to repair unlawfully done harm, and respect for authority”.74 It is from these sources, Friedman insists, that “positive law is derived, both in its foundations and its objects”.75 The pursuit of the common good, which is the object of positive law, must have a moral basis, Friedman, Le Fur and Ripert claim; its function, therefore, lies in the determination of general commands or sanctions supplied by natural law and developed in accordance with rational will and law.76 Proponents of natural law tradition point to the affinity between natural law and positive law. Natural law supplies intuited objective and universal moral dicta77 and judgments, while positive law, informed by circumstance born of diverse cultures, translates, incorporates and adapts them accordingly. In The Morality of Law (1964), Fuller takes stock of the constituent components and aspirations of the legal system in accordance with the natural law tradition. He distinguishes between two types of morality that are to assist in drawing distinctions 72 Madison

(1788). Footnote 72. 74 Friedman (1967), p. 154. 75 See Footnote 74. 76 See Footnote 74. 77 The philosophy of values posits that “values” are “real, objective and autonomous essences (Wesenheiten) which can be intuitively experienced and apprehended by man and therefore constitute a source of obligation”. See Friedman (1967), p. 197 (see also Aristotle, Hartmann, Pascal, Scheler). 73 See

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between law and morals. The first he calls a morality of aspiration and the second a morality of duty. The first aims at the Good Life or life of “excellence, of the fullest realization of human powers”.78 The second prescribes “what is necessary for social living”79 through recognized bonds and relationships of equal reciprocity. Finnis echoes Fuller’s sentiments. By ‘positing’ law with a view to nature and reason, “for the sake of the standing needs of the good persons in community”80 it becomes possible to separate power from its vicariousness, capriciousness, and opportunism, to endow it with purpose, to assess any deviation therefrom on both moral and legal grounds, and permit it, as Finnis puts it, “the opportunity to affect, for good, the common life”.81 Law’s essential purpose, for Fuller, is the achievement of “social order through the use of rules that guide behavior”.82 By ‘subjecting human conduct to the governance of rules’ requires that those very rules have a value-laden moral purpose, or inner morality. The legal system on this reading for Fuller is a moral commitment83 and not merely a propagation of gratuitous concepts and procedures. Such a system will require: (i) that there be rules of general character for controlling and directing human conduct; (ii) that they be promulgated, published, and publically known; (iii) the laws must not be retroactive but prospective in application; (iv) they must be clear, coherent, intelligible, and understandable; (v) the laws must not logically contradict each other and be consistent with one another; (vi) and not require, demand, or command the impossible or constitute an unwarranted interference with individual liberty; (vii) laws must be constant through time and not subject to frequent or sudden changes; and finally, (viii) there must be congruence between official action and the law in an interpretative and cooperative manner in order to maintain legality.84 It is the cooperative nature of the lawmaking enterprise—the moral/immoral, just or unjust communication, reconciliation and reciprocity between all parties involved—the lawgiver and citizen—that stands in contrast to the unidirectional positivist account of law that insists on a one-way projection of authority which is to emanate, as Austin noted and Fuller disputes, from an authorized source and impose itself on the citizen.85 A legal norm, intrinsic to a legal ordering of the community, gives “normative direction to citizens”.86 The system of law must expressly require and ascertain predictability 78 Fuller

(1964), p. 5. (1964), p. 6. 80 Finnis (1980), p. 275. 81 See Footnote 80. 82 Legal Positivism. Internet Encyclopedia of Philosophy. https://www.iep.utm.edu/legalpos/. 83 Natural law theory denies the doctrine of separation of law and morals. On this reading, laws, statutes, proclamations cannot be legally valid if they are morally illegitimate and if they should be so [invalidly] enacted, they cannot hold a legitimate sway or power over those subservient to them. 84 Fuller (1964), pp. 46–91. 85 Fuller (1964), p. 192. 86 Finnis (1980), p. 283. 79 Fuller

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and specificity, stability and formal definitiveness in order to have practical utility and command authority as well as act as a coherent and reliable guide to and arbiter of social behavior.

9 From Domestic to International Legal Order As in any other area of law, international law is vitally dependent on the authority of rules. Two kinds of rules are relevant: (i) rules of recognition, and (ii) rules of law. Domestic legislatures are responsible for issuing, passing, codifying the laws of recognition for use within their delimited constitutional orders. Rules of recognition at the international level have more amorphous origins and can be defined by “multiple parallel rulemaking processes”87 including source materials, case-law, treaties, and court decisions. Rules of law through (a) constitutive rules specify and regulate types of conduct preferred, allowed and prohibited as well as define actors and situations involved, and (b) specify, through consequential rules, how violations and harms will be redressed.88 In the absence of one centralized regulatory mechanism for rule-making and rule-articulation, the institutional architecture in the form of regulatory bodies, regional commissions, international arbitration boards, international courts, consultative bodies, and the United Nations apparatus currently in place, generate—in consultation with state governments—regulations that promote and encourage particular practices and dissuade from others under agreed-upon framework, treaties, and treaty law. While rule making at the international level is highly structured and process-oriented, it does aim to focus attention, enable wide-ranging input, and facilitate consensus on most challenging trans-boundary questions that require reflection on the most basic and fundamental values and approaches a global society ought to promote through law.89 One of the perennial problems encountered by natural law tradition is the identification of those fundamental norms that ought to elicit universal consent. The proponents of New Haven School, who sought to advance “the basic values of human dignity or a free society in order to achieve a more peaceful, abundant, and just world – world community of human dignity”90 made one such bold attempt. Borrowing liberally from ethical philosophers, the school’s representatives prescribed

87 Peterson

(2017), p. 457. Footnote 87. 89 See Mullerson (2002), p. 7: “Law is never an end in itself. It is an instrument for achieving or preserving certain ends. If we take today’s international law, those ends encompass general purposes such as peace, economic development, a clean environment, the fight against terrorism and for human dignity, rational exploitation of renewable natural resources as well as quite concrete objectives such as building dams and guaranteeing access to the sea for landlocked states. This is the content or context of international law and neither is really formal”. 90 Chen (2015), p. 15. 88 See

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eight categories of values that add clarity to international law and constitute the foundation for “what people cherish”,91 they are: “respect, power, enlightenment, wellbeing, wealth, skill, affection, and rectitude”.92 Since legal rules only make sense when placed in appropriate context, the New Haven School also called for a broader embrace of “parochial interests and cultural biases” or, in other words, adoption of the “standpoint” of “citizens of the world community”.93 Critics allege, however, that the presupposed consensus and universality masks Western value-imperialism and post-World War II American idealism. As a response to both positivists, who assert value-neutrality, and natural law and New Haven School theorists, who assert values to determine legality—the New Stream approach attempted to make room for debate about the underlying presuppositions, “hidden ideologies, attitudes, and structures of international law” in order to “expose contradictions or antinomies”.94 Postcolonial, Marxist and feminist critiques have labeled the system as tainted with interests and power dynamics of European imperial and colonial authorship, already unabashedly asserted by realists approaches to both law and international relations, and are therefore saliently reflective of a Thrasymachian contention about law and justice, which sees law not as an aspiration or excellence to be cultivated, but as an advantage to be gained by the stronger. By the same token, “western policy preferences,” even human rights themselves, constitute an impediment to economic development and “are often seen as a means of preventing other countries from getting what Westerners have achieved, in some cases by disregarding the very principles that they now advocate for others”.95 Structure, process and function-oriented analyses, too, must face an increasingly complicated political-legal landscape and create a tenable architecture for adjudicating matters of international relevance. By providing bold outlines and appropriately weighing and balancing the normative and positive basis of law-articulation and adjudication, might assist in breaking new ground on hotly contested contemporary problems in both international relations and international law. Having thus worked out what positivist and naturalist persuasions fundamentally maintain about a legal system and the ends it serves—and what their critics allege— it is important now to examine the extent to which law’s credibility can be ensured not only through its reliance on value-laden assertions but also purely instrumental functions it has been vested with fulfilling at, both, the domestic and international level.

91 Chen

(2015), p. 16. Footnote 91. 93 See Footnote 91. 94 Murphy (2012), p. 15. 95 Trimble (1990), p. 818. 92 See

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10 Kelsen and the Pure Theory of Law While humanization of law requires moral starting points, secularization of law— understood in terms of objective rules dispossessed of normative content dictated by theological concerns or religious mores—led Hans Kelsen to propose a third— “pure”—approach to law. The pure theory of law or “science” of law, according to Kelsen, naturally commands that its practice and underlying theory attempt to “answer the questions of what the law is and how the law is made, not the questions of what the law ought to be or how the law ought to be made”.96 Thus a necessary connection must be drawn, not only as both natural law theory and positivism insist, between law and morality (or lack thereof) but also between law and fact. Mindful of the preceding assertions of natural law theorists arguing from an inherent inseparability of law and morality and the positivist antithesis positing a necessary separability of law and morality, Kelsen defends the intuitive notion that the content of norms must be intimately connected to the act or faktum or certain choice of behavior itself. He writes: “The norm which confers upon an act the meaning of legality or illegality is itself created by an act, which, in turn receives its legal character from another norm”.97 Norms on this reading “authorize” or “command” certain behaviors or “acts of will”, they are consequentialist in as much as they stipulate what “may” or “can” happen when an act of will is being executed. For Kelsen, therefore, norms are not prescriptive in an “ought”—sense of the word, but deeply embedded in the human psychology (expressed in motive or inclination) and nuances of language. Norms, so understood, do not bear any resemblance to moral sanctions typically laden with metaphysical understanding of the world. For the Kelsenian, a norm to be valid, however, it must be effective—it must correspond to this world, apply itself to its realities and limitations, and form expectations that parallel and coincide with the times. For Kelsen, however, a legal norm does not lose its validity “if it is not wholly effective”.98 It suffices on Kelsen’s account that a general legal norm be regarded as valid only and to the extent to which “the human behavior that is regulated by it actually conforms with it, at least to some degree. A norm that is not obeyed by anybody anywhere, in other words a norm that is not effective at least to some degree, is not regarded as a valid legal norm”.99 Thus, it is not the will of God that makes acts good or bad and norms derived therefrom absolute, but the human will alone which enacts the norms and so renders them valid or invalid insofar as they are able to regulate and sanction human behavior with and in relation to other human beings. For Kelsen, a social order works as long as individuals within that order are incentivized by rewards and repelled by punishments. This is different from an ideal of social cohabitation expressed by the Judeo-Christian tradition where love of God and fellow men is an inherent good, 96 Kelsen

(2002), p. xxi. (1967), p. 4. 98 Kelsen quoted in Beyleveld and Brownsword (1986), p. 240. 99 Ibid., p. 241. 97 Kelsen

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a good in itself, a self-motivating other-regarding act encouraged irrespective of external rewards and done even in the absence of tangible conditions for reciprocity. Furthermore, in a world so conceived, the prospect of retributive justice (in this world) need also not exist. This is not so for Kelsen. The social order constituted by a system of norms congealed into law must be (i) shaped by human behavior and (ii) constituted by a coercive element to deter acts detrimental to society. A penal sanction that attaches itself to the non-observance of prescribed behavior is a constituent element of the social order called law. Kelsen warns against jeopardizing the “methodological purity of the science of law” by ignoring the “bar that separates it from natural science” and by failing to clearly separate it from ethics, which hinders further distinctions that must be made between law and morals.100 Debates concerning the naturalistic and positivist foundations of law that shape our understanding of the social order and determine their primacy may be compared with other disputations from the realm of astronomy. Kelsen, himself, invokes Max Planck’s observation, which says: “If we start from a reference system that is firmly connected with our earth, we must say that the sum moves in the sky; but if we transfer the reference system to a fixed star, then the sun does not move”.101 Starting points and originative assumptions made about fundamental and foundational causes that serve as our reference points in the natural law and positivism debates and the relationship between national and international law can be said to possess the very characteristics Planck presupposes. Theory of relativity commands, Kelsen argues, that both systems and “corresponding modes of viewing things are equally correct and justified”.102 Yet it is the function of the Pure Theory of Law or the science of law to describe them “without postulating or justifying either”.103

11 Conclusion To the discontent of many committed realists and staunch positivists, states today operate in an indubitably ethical environment influenced by a revival of the cosmopolitan tradition, whose central tenets uphold that: (a) individuals are the fundamental units of moral concern and ought to be regarded as one another’s moral equals; (b) whatever rights and privileges states have, they have them only in so far as they thereby serve individual’s fundamental interests; (c) states are not under a greater obligation to respect their individual member’s fundamental rights than to respect the fundamental rights of foreigners. According to cosmopolitans, individual’s basic entitlements are independent of political borders, and states have authority to the extent that they respect and promote those entitlements. There should be no doubt, therefore, that “the notion of the rule of law has come to occupy an important place 100 Kelsen

(1967), p. 59. (1967), p. 345. 102 Kelsen (1967), p. 346. 103 Kelsen (1967), p. 347. 101 Kelsen

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in the scale of values” and that the Courts have become an indispensible moral and legal voice in ascertaining that Conventions and Treaties propounding respect and adherence to human rights are honored by states and that the laws constitute “an effective guide to action, that they are adequately publicized, reasonably clear and prospective rather than retrospective in effect”.104 The juridical revolution in human rights since 1945 and a steady recognition of cosmopolitan norms and orchestration of transnational laws have had a significant, practical impact on states. It is now a common occurrence that (i) international legal rulings routinely trump domestic legal rulings; (ii) the rules of international declarations, treaties, and legal custom inform the rules of domestic constitutions; (iii) international legal rulings becomes cited precedents in domestic legal cases and judgments; (iv) state leaders are increasingly made individually accountable, through supranational courts, for the government and its use or misuse of power.105 Underlying the debates on human rights is the question of dignity.106 In Christopher McCrudden’s “In Pursuit of Human Dignity: An Introduction to Current Debates” we find the concept interposed among the most prominent political debates. “The power of the concept of human dignity is unquestionable”, McCruddent contends, “It appears to present a simple command to all of us: that we (individually and collectively) should value the human person, simply because he or she is human”.107 It is thus the foundation of all human rights and remains a salient feature of the language and theorization of international legal instruments that echo cosmopolitan sentiments of the Stoic and Enlightenment thought. The Charter of Human Rights underscores that: Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and guaranteed by law. Their protection and promotion are the first responsibility of government. Respect for them is an essential safeguard against an over-might state. Their observance and full exercise are the foundation of freedom, justice and peace.

There exists, therefore, in all procedural legal criteria and principles an “inner morality” of the law, which establishes “a necessary conceptual connection between law and morality”108 and which revolves around the essential personhood of the human subject. The evolution of the international juridical space for contestation and rightsarticulation and the development of cosmopolitical legal norms have prompted a recognizable shirt from realpolitik steeped in self-serving interests to humanitarian cosmopolitanism. This has issued in a turn away from the state prerogative of selfdefense to the responsibility to prevent and protect resulting in a repudiation of ethics 104 See

Footnote 103. (2011). 106 It is important to note that dignity in legal and philosophical language remains a conceptually contested concept. Both, the utilitarian and deontological views compete for recognition and suggest themselves in different periods of the concept’s historical evolution. 107 McCrudden (2013), p. 2. 108 Reidy (2007), p. 58. 105 Beardsworth

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based on exploitation and instrumentalization of the human subject and citizen and a reinforcement of an ethics of care over human beings qua persons. Central to the stepped-up interest in human rights prosecutions is the learned human capacity of having one’s conscience offended by the atrocities perpetrated against the human person and her essential human dignity. Torture, murder, and disappearance are collectively deemed as acts of violence that the heads of state are capable of executing against their citizen subjects and foreign nationals, increasingly with less and less impunity. In the words of Jurgen Habermas: History has become mobilized; it is accelerating, even overheating, the new problems are shifting old perspectives and, what is more important, opening up new perspectives for the future [and new] points of view that restore our ability to perceive alternative courses of action.109

Not only the “separation of ‘rights’ from ‘belonging’ or membership in the state from political membership in the nation”110 offers a fresh perspective on the political status and existential meaning of citizenship, but individual access to protective norms that reach beyond the nexus of territoriality and nationality and encapsulate rights to bodily integrity, life, and freedom from persecution, and rights to peoplehood111 have come to impose new demands on the international legal jurisprudence and the regime of supranational courts, who are ever more eager and ready to embrace their responsibilities to protect and prevent any violations of the said rights. “We can see legalization as a tool for shaping state behavior”112 where, according to Teitel, conflict is judicialized and politics are humanized. In legal theory, rights are seen in the light of interests “protected by law and supported by a legitimate justification (or ‘just claim’)”,113 which impose a set of obligations or explicit duties upon the state in their recognition and satisfaction. Rights in the context of human rights theory are conceived as: (i) the absence of prohibitions; (ii) direct permissions; (iii) correlates of active and passive duties; (iv) claims; and (v) immunities.114 It is believed that protection of rights runs parallel to the protection of certain goods, without which the very existence of human beings and their flourishing would be imperiled. Thus, inherent dignity of human-beings, bases of equality and non-discrimination, free choice-making and development, and free association are found to be fundamental elements of the human condition and legitimately entitled to protection. The two primary sources of international law: treaties and custom, progressively imbue the person with an unprecedented legal power and access to international civil and criminal law institutions and processes, issuing in a true cosmopolitan moment unbound from peculiarities of citizenship status or prerogatives of state power. 109 Quoted

in Jacobson (1997), p. 107. (1997), p. 107. 111 Teitel (2011), p. 52. 112 Teitel (2011), p. 35. 113 Pentassuglia (2009), p. 39. 114 See Footnote 113. 110 Jacobson

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The Political/Religious Dimension of Dramatic Social Events

Blake’s Dialectical Theism Bernard Wills

Abstract This paper argues that Blake articulates a subtler conception of the divine than the usual opposition between atheism and theism allows: one having affinities with mystical traditions in the West and East as well as with post-modern ‘atheologies’. Blake expresses this position through a constructed mythology that persistently subverts our conceptions of an ‘ontological’ God distinct from humanity who occupies the top rung of a hierarchical ladder. Blake’s ‘image’ of the divine is that of a unity in difference of opposed ‘faculties’ represented by mythological/allegorical characters such as Orc, Luvah, Tharmas and Urizen. These characters also represent our own human faculties so that our image of God (the four faculties or ‘Zoas’ in proper balance) is at the same time paradigmatic for understanding ourselves as humans. Indeed, Blake’s theology is radically Christian in the sense that it fuses theology and anthropology into a single account of the divine/humanity of Christ.

1 Introduction One does not need to speak very long to a secular humanist before one is challenged to define the word ‘god’. Indeed, not so long ago I was challenged in this way by a committed atheist and given only 50 words to answer in! I assume this was on the assumption that anything worth saying can be said briefly and if god-talk can’t be put in a nutshell that is all the evidence needed that it is inherently worthless. Well, I suppose some can rise to such a challenge: certainly, Anselm’s ‘that than which a greater cannot be conceived’ is both admirably curt and profoundly suggestive. Discourse however is both expansive and contractive; the Rabbi in the legend can certainly summarize the Torah while standing on one foot but the ramifications of his pithy commentary can be explored indefinitely.

B. Wills (B) Chair of Humanities, Grenfell Campus Memorial University, Corner Brook, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_12

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In the present essay I wish to explore the significance of god-talk in a way that is expansive rather contractive. ‘God’ may be simple for the science of theology yet the Scholastics tell us that he is the archetype or form of all that is and if this is so he is implicated in our attitudes to a whole host of phenomena: what you think god is like and what you think the world is like often go hand in hand. Thus, God is for literature a polyvalent symbol covering a host of concerns and values. Representations of the divine in literature, whether in Aeschylus, say, or Milton considered from one angle are somewhat lacking in conceptual rigor (they have to be in order to be representations!). From another angle however they have a richness and range of implication from which philosophers and theologians can draw an endless supply of inspiration. In this essay I want to explore the conception of God in the work of William Blake. When people use the word god they can be surprisingly specific in what they mean by it. Here is what Richard Dawkins, for instance, means by god: “a superhuman, supernatural intelligence who deliberately designed and created the universe and everything in it, including us”.1 I’m sure Dawkins would not object were I to say that this definition is very much in the vein of 18th century Deism. I do not wish to engage right now in a direct philosophical critique of this notion. I am struck, though, by the fact that for one great writer, a man we might in fact describe as a religious genius, the notion of a superhuman designer is as far away from the Christian and biblical god as one could possibly get. Indeed, it is not too strong to say that for Blake the deistic watchmaker god of Paley (the deity whom secular humanists spend so much of their time and effort rejecting!) is not God at all but his traditional antithesis Satan. On Blake’s view God is not ‘superhuman’ but has, and indeed is, the human form in an eminent degree. Nor is god ‘supernatural’ for nature, as modern Newtonian science sees it (and we in the west have long known no other nature) is only a projection of our fractured and disintegrated human consciousness. There is, in itself, no law governed, mechanical nature for the watchmaker god to be outside of. Indeed, for a convinced Berkeleyan (such as Blake appears to have been) the notion of ‘what is in itself’ is problematic.2 For both Secular Humanists and traditional theists it is easy to conclude that Blake is simply talking nonsense. Certainly, he does not fit in the categories by which they generally define their differences from each other. Is Blake a theist? Not in the sense of positing a transcendent creator who is somehow ‘outside’ the world. Is he an atheist? If so then he is an atheist for whom divinity can be spoken of as fully humanized or humanity spoken of as divine with equal truth. In other words, Blake can be regarded as a radical Christian who finds in the incarnation a standpoint that renders any facile opposition of atheism and theism moot. Theology is anthropology and vice versa. To put it bluntly, Blake’s standpoint is Christianity shorn of religion. There are no 1 Dawkins

(2008), p. 31. read and annotated Berkeley’s Siris and from the tenor of his comments, which for once avoid polemic and sarcasm, he seems to have been reasonably pleased with it. These notes however come from later in Blake’s life and his idealism may well have found its confirmation in Berkeley rather than its point of departure.

2 Blake

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doubt those who find this a congenial standpoint and hold that the faster the Christian revelation ceases to be ‘religious’ the more true to itself it becomes. Others may find a dangerous temptation to idolatry in Blake’s anthropocentrism which certainly seems to elevate the human in the most radical way. My purpose in this essay is not to say whether Blake is wrong or right (whatever these terms mean when applied to such fundamental matters). Rather, my purpose is to question the adequacy, too easily assumed, of our standard conceptions of god as an ‘entity’ occupying the top rung of the existential ladder and standing in a determinate relationship to the physical creation and to us as part of it. Blake is an excellent writer to raise this question with for any attempt to locate or define his god or circumscribe his function in this way is doomed to failure.3

2 Blake’s Conception of God We may begin by approaching this question negatively. Though he is reticent on what god is Blake has quite a bit to say about what god isn’t or, to put it another way, what is false and dangerous in our usual way of conceiving the Deity. There is one character in Blake’s poems who consistently thinks he is god: Urizen. In other contexts, he appears as Satan. To muddy things further he is also the god of Milton’s Paradise Lost and, by extension, of mainstream Christian theism. I also suspect he is the king of England. Finally, he is the ‘creator’ or demi-urge who in Gnostic mythology contrasts with ‘the father’ or hidden depths of the deity. In Blake’s First Book of Urizen we find out quite a bit about him. Before I examine this work however I need to point out one thing. Blake does not pin the original fall of humankind on Urizen or ‘your reason’. He is not the primary source of evil but is, befitting his nature, merely reactive to it. The original disturbance in the primal human (Albion or as we might call him Adam) comes from desire not reason. It is Luvah (the ‘lover’) who falsely assumes

3 What

for instance does Blake mean by his assertion, made many times in the course of his work, that God is the ‘Poetic Genius’ or the human imagination? Does he mean this reductively, as if he meant that God only exists as we imagine him? Robert Ryan in his essay “Blake and Religion” (2003, p. 163) considers this a possible reading. Of course, if Blake meant something this specific and this reductive one would think his language would make that clearer. That God is a noble figment of our imagination is an easy thing to say and hardly requires the paradoxical discourse that Blake in fact employs. Ryan (2003, p. 163) himself finds elsewhere that Blake’s language implies an ‘ontological gap’ between human imaginings and the life of eternity. For this reason I tend to view Blake in Pantheist or, more accurately, Panentheist terms. Human imagination, our capacity for self-projection in a word or image, is the divine word or imagination in us, that in which we ‘live move and have our being’ rather as a fish moves in the medium of water. Dialectically this entails that any discourse on God would shade into discourse about humankind and vice versa and this fluidity of language, this instability of determinate meaning is just what we find in Blake. On this point a detailed comparison of Blake and Heraclitus would be interesting.

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the faculty of rational control in the human person for himself.4 As in Plato’s myth of the charioteer in the Phaedrus the desiring principle usurps the synthesis of limit and un-limit that should constitute the human person. The result is ruin and chaos in which reason (Urizen), passion (Luvah), imagination (Urthona or ‘earthowner’) and sensation (Tharmas or ‘Thames’) fall into disharmony and disarray. These ‘living creatures’ or fundamental components of the human person manifest in our fallen world as Satan, Orc, Los and the passive fluid medium of the fallen Tharmas (think Thales’ water!).5 It is in this state of psychic disintegration that we form of images of divinity. It is important before we proceed to realize the universality of Blake’s claims. Blake is not just concerned with the vices of confessional religion (though that is a significant component of his critique). Urizen is the god of religion, true, but he is also the god of science, the god of moralism, the god of modernity and anything else that suppresses ‘living form’ in the name quantitative abstraction. He is all of these things insofar as each one is made an object of idolatry. To put it briefly, he is the unholy trinity of Deistic religion, Newtonian science and puritanical morality. Blake views all three of these phenomena as interconnected: modern science, modern religion and modern ethics are a garment without seams. Thus, there is an admirable synthetic breadth to Blake’s vision of a modern world gone literally mad, one in which madness might in fact be a form of sanity (a possibility suggested to Blake by William Cowper). So, on to Urizen. The human psyche in a state of disintegration fashions for itself a god in its own image. This image is one of power and control for, of course, these are the two things we lack when faced with the chaotic flux of experience. Urizen thus plays a compensatory role in the psyche: an image of power, order and authority. Divided from desire by the fall, his abstract rationality is concerned with ‘horizons’, boundaries or limits that protect us from the unformed or indefinite: “Times on times he divided & measured, space by space in his ninefold darkness unseen, unknown”.6 Thus, as the god of Genesis he sets the physical limits of creation freezing flux into form. As the god of law and morality he sets the legislative limits of action by propounding external constraints to desire.7 As the god of modern science he subjects living things to the external boundaries of objectivized time and space: the abstract vacuum of pure quantity that levels all particulars to the mathematics of 4 Milton, in Blake (1988), 34, 38–39. Blake’s poems were never published in standard print editions

till almost the 20th century; as before that they existed in prints taken from copper plates, the first number refers to the plate number and the second refers to the individual lines. 5 For a lucid explanation of these and other allegorical personages in Blake one may consult Ostriker’s notes in Blake, the Complete Poems (Ostriker 1978). Also helpful is Damon (1988). 6 Book of Urizen, in Blake (1988), 2. 7 The following from Nietzsche’s The Anti-Christ (1968, p. 11) is very much in the spirit of Blake: “A virtue must be our own self-invention, our most necessary self-expression and self-defense: any other kind of virtue is merely a danger. Whatever is not a condition of our life harms it: a virtue that is prompted solely by a feeling of respect for the concept of ‘virtue’, as Kant would have it, is harmful”. With all due respect to Blake and Nietzsche this is not, in fact, an accurate critique of Kant. Kant demands respect not for the ‘concept’ of virtue (as Nietzsche mischievously would have it) but for our own self-legislation as practical. This though is for another paper.

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matter in motion. There is nothing wrong about these things per se: religion, law and science are not intrinsic evils. They are however corruptible. The problem here is that in Urizen (and by extension in us) they are purely reactive. Urizen’s legislative activities are a compensation for his anxiety: he does not create freely but out of need. In particular, he seeks a pure identity and self-relation in a world constituted from the dialectical process of contraries. Thus, he would have a pure joy without pain, pure order without rebellion, a static existence without internal tension: “I have sought for a joy without pain, a solid without fluctuation”.8 Moreover he boasts of having written ‘books of eternal brass’ containing “Laws of peace of love of unity of pity, compassion, forgiveness…One command, one joy, one desire, one curse, one weight one measure, one king, one god, one law”.9 His boasting of one law, one god and one king is hollow however. He is forever fighting monsters who are nothing but the repressed expressions of his own desires. As a god image he is woefully incomplete. Urizen knows this of course but makes up for it with pure bluster: “I alone even I the winds merciless bound…strong I repelled the vast waves & arose on the waters a wide world of solid obstruction”.10 None of the other ‘Zoas’ are god either.11 Los, or poetry without rational order can only construct the fallen mortal body and the external division of the sexes as a limit to evil.12 He cannot free the creative potential of humanity. Orc, the spirit of rebellion, can only oppose the rigidity of Urizen as we shall see below. He cannot generate anything positive himself as the inevitable disappointment of revolutionary politics so tragically indicates. As for poor Tharmas he can perform no function at all. As the continuity of the self in feeling he faces the dilemma that he has no self to unify. In each case the ‘zoas’ fall into abstraction and self-division when taken in isolation from each other. To the extent that we elevate one of these principles above the other we are ourselves disordered and our religious, political and scientific ideologies become projections of our own malaise. The full image of the divine then is contained in Ezekiel’s image of the Divine chariot and its four ‘living creatures’. The consciousness of this unity comes about through a fall into division that manifests its underlying necessity negatively so that if we were to call this theism we should perhaps call it ‘dialectical’ theism as the divine is a harmony made of opposition in a manner that might remind us of Heraclitus.

8 Book

of Urizen, in Blake (1988), 10–11. of Urizen, in Blake (1988), 8. 10 Urizen might also be taken as a satire on the subject in modern philosophy; the Cartesian or Lockean ‘ego’ locked in its own self-referential realm and impermeable to an ‘outside’ whether personal or cosmic. Indeed, as Kittel suggests the self-enclosed nullity of Urizen’s consciousness may well be intended to suggest the tabula rasa of empiricism: an empty subject waiting to be filled passively with material impressions. See Kittel (1978), pp. 120–121. 11 Book of Urizen, in Blake (1988), 5. 12 Book of Urizen, in Blake (1988), 4–5. 9 Book

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3 Blake’s Prophecy and Dialectical Theism This point is well illustrated by Blake’s early prophetic work America. Blake’s America is his history of the Age of Revolutions. It is not however the sort of history we may be accustomed to: it is prophetic history which has certain features of its own. We need to attend to these if we are to make any sense of what Blake has written. Neither in its original Hebrew form nor in its modern Blakean form is prophetic history empirical history though it may be said to have an empirical base in current events. Prophetic history is poetic history. It is a form of apocalypse in the root sense of that word: an unveiling of the eternal spiritual world to human understanding. Its techniques are not those of the academic historian but of the mythological poet. Allegory, narrative and image are used to reveal the essential principles moving behind external events. These principles may be thought of as divine principles though they may also be thought of us persistent psychological tendencies that manifest in political events. As Blake tends to fuse the theological and the anthropological this distinction need not concern us overmuch: Urizen, for instance, is no more and no less the Gnostic demi-urge than he is a psychic force that makes for rigid, repetitive, mathematic order. Blake read the events of his era as manifesting the conflict between untrammeled desire and rational order in which desire is a demon and reason a tyrant. These are the political principles of rebellion and reaction. Further, Blake saw no direct resolution of this conflict in political action. To that extent, the agents in question are not able to resolve the conflict between them. Yet it would be wrong to conclude that Blake despaired of politics altogether. America suggests what Blake will later develop in more detail: the notion that there is a prophetic and Christian politics that transcends the opposition between rebellion and reaction. Such a politics would be revolutionary in the proper sense of overturning those forces which inhibit human flourishing. It would also be revolutionary in being a politics of forgiveness that renounced the stance of moralism and self-righteous anger. The temptation for any reader of America is to divinize one of Orc or Urizen. We have already seen with respect to Urizen that his abstract mathematicism is not a genuine confrontation with experience but a retreat from it. The reader might, however, take the revolutionary anger of Orc to be a viable substitute. This is especially so as Blake’s sympathies obviously lie with the revolutionary principle exemplified by America and France. Yet Blake’s sympathy for the Dionysian principle of disruption is carefully qualified. Orc appears in the beginning of the poem in chains.13 These chains are those of natural necessity rather than political tyranny because Orc is the force of natural desire and as such is not, for Blake, spiritual.14 This is reinforced later in the poem by the Guardian of Albion (an avatar of Urizen) who cannily describes 13 America,

in Blake (1988), 1, 10–20. perhaps we might say that his spiritual form cannot, by itself, liberate itself from nature. Orc can bring the heavens nearer but cannot grasp them as Blake demonstrates in his great lyric The Mental Traveler where we see the entire cycle only hinted at in the Preludium to America. As Bloom says (1963), p. 119, says: “The fourteen suns indicate Orc’s sexual maturity, but as they also take him half-way through a lunar cycle there is a hint that his impending liberation is condemned to be cyclical, not final. If Orc is reviving organic life, he will at last wane, for organic life is part 14 Or

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Orc as a serpent and his emergence as a rebirth and return of time upon itself.15 The implication is clear: the emergence of Orc is part of the cyclical patterns of nature, the ‘Satanic mills’ elsewhere derided by Blake. Urizen has a dragon-like form as well putting in question the distinction between them: as Andrew Lincoln points out the last sections of the poem systematically blur distinction with their images of snow and storm so that there is a clouding “of the stark political divisions produced in the early stages of the American conflict”.16 This is further indicated by the color scheme of the poem. In general, the color red is associated with Orc. Urizen is a leprous white. Yet there is at the same time a consistent confusion of this scheme. The Guardian of Albion burns red on several occasions as if the fires Orc were an aspect of his own nature. What is more, in a curious bit of astronomical myth-making, Orc is associated with the pagan god of war Mars which planet is conceived by Blake as the original center of the solar system.17 This means, I suggest, that War was the god of the ancient world prior to Hebraic and Christian revelation and identifies Orc as a potentially militaristic and nihilistic principle. All this entails that Orc is only a finite principle of liberation. He is the rejection of order by desire shaped and confined by order and as such he is as reactive as Urizen. He does not act of himself but in relation to the political and natural constraints that thwart him. He is not desire per se but the form natural desire takes in relation to external limit. To that extent he is not creative and indeed Blake depicts him as easily declining into the form of his opposite. This is Blake’s explanation of the failure of the American and ultimately French revolutions. Blake’s dialectical cast of mind is on full display here. Orc (as Luvah) is a principle of freedom, as indeed Urizen is, only within the context of the divine/human ‘fourfold’. We might think of his argument here in terms of Euripides’ Bacchae: the murderous Maenads are the monstrous face the god Dionysius shows to those who deny his reality. Excluded, the god takes on a vengeful character. This is Orc’s relation to his unfallen form Luvah. Imprisoned first in the confines of nature and then by the restrictive conventions of society he takes on a demonic, serpentine form. Luvah cannot be ejected from the circle of the self. Expelled he will simply take on a more destructive form. Yet the explosion of joy that comes with libidinal release is only temporary.18 As Lincoln ruefully points out: “Ultimately Blake can provide no satisfactory causal explanation of how the fires of Orc can triumph over the tears of Urizen”.19 The dead hand of order reasserts itself and the flame of rebellion becomes a flicker. The opening for freedom created by rebellion cannot be filled by it as any number of historical revolutions both in Blake’s day and ours attest.

of the wheel of births and deaths”. Indeed, the Guardian Prince of Albion, rather spitefully, points out this very thing in mocking his serpent-form. See Blake (1988), 9, 19–20. 15 America, in Blake (1988), 9, 10–20. 16 Lincoln (2012), p. 81. 17 America, in Blake (1988), 5, 1–7. 18 America, in Blake (1988), 16, 1–10. 19 See Footnote 16.

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Neither those who deify order not those who deify revolt are correct. A true revolution would be one where Orc and Urizen renounced their mutual antagonism and ceased to exist in their opposed, fallen forms. The necessity of such a reconciliation is the theme of Blake’s later epics which we cannot adequately examine here: suffice it to say for now that the restoration of the giant Albion (the archetypal man) must pass through these moments of mutual antagonism towards a functioning harmony of opposed determinations. The means of this is renunciation of the ‘satanic’ or isolated selfhood and crucial here is Blake’s demand that we renounce the stance of self-righteousness and moral rectitude. Blake goes to seemingly shocking degrees in his antinomian doctrine of forgiveness which tells us how crucial he believes the issue is.20 Yet behind his extreme rhetoric lies a solid insight. However much we may want to ‘impute sin’ to others we cannot overcome separate self-hood without renouncing our claim to belong to a class of ‘good’ beings opposed to a class of ‘evil’ ones. We cannot, as Paul himself saw, cling to righteousness as our own innate or inherent possession as this judgement divides us from others. Orc and Urizen can only become themselves if they renounce those finite aspects of themselves in terms of which they are opposed: at that point Orc becomes Luvah again and Urizen supplies not dead, external order but the rational structure or ‘bounded form’ necessary to deploy desire. This they cannot do while clinging to some purely personal sense of their own ‘rightness’: “Mutual forgiveness of each Vice, such are the Gates of Paradise”.21

4 Conclusions So far we learned how NOT to think of god. God cannot be conceived as one of our powers in abstraction from the others. However, if we turn to Blake’s positive doctrine on God we meet a problem. Blake says shockingly little on the subject. Little however is not nothing and enough is said to allow us to make some broad determinations. Firstly, God is manifest in the human and not otherwise: God is not ‘out there’ but is the deepest potential of the human self. Secondly, this is not meant in a reductive sense as if god was merely an aspect of the human and as if finite selves could now strut about the globe acting as deities.22 The deepest potential of the self 20 Jerusalem,

in Blake (1988), 2, 50, 24–30. the Sexes: The Gates of Paradise, in Blake (1988), Prologue. 22 Here I disagree somewhat with G. Harper’s assertion that: “Though more Greek than Christian, Blake’s strong emphasis upon the supreme being as a mere man (“God is no more”) is not characteristic of either Christian or Platonic theology”. See Harper (1961), p. 128. I don’t know why Harper should add the word ‘mere’ here as if for Blake there were anything ‘mere’ about Christ. At any rate Harper makes it clear elsewhere that Blake’s Christ is the logos or ‘place of forms’ postulated in the very first Christian theologies of Justin Martyr and the apologists Tatian and Athenagoras. As he says: “To Blake, Christ is the ‘first intellect’…form of forms…Christ is the ever present reality, the ‘living form … the human imagination, which is the divine body of the lord Jesus’. Many passages in Blake’s later works indicate that there was a clear relationship in his mind between Christ as the 21 For

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when realized puts us in relation to the trans or supra personal. In God we live move and have our being. Universal life flows in and through and out from us from the one to the many and back again. This is why Blake shifts back and forth from unity to plurality when he speaks of the divine. It is also why his discourse is centered on the person of Jesus who represents the eternal co-presence of God and humanity.23 To the extent that we unify the living powers within us we realize our own inner divinity. To the extent that we realize our divinity the divine becomes actual in us: it is a two-way process, a going out and a return to which both moments are essential. This has a pantheistic ring to it no doubt but the term is not really apt for Blake. God does not equal nature because nature or ‘generation’ as Blake calls it is a projection of our divided consciousness. For this reason Blake would be horrified by the thought of equating god with nature. Suffice it to say though that Blake does not accept a god who is a simple other to the human, a transcendental god of inaccessible mystery. His god is humanity realized as humanity is divinity expressed. Blake’s god exists in the dialectical movement between Divinity and Humanity, rather as the Platonic Eros has the being of a medium between time and eternity. In this Blake approaches the theosophical conceptions of the great Sufi thinker Ibn al Arabi for whom the ‘One’ realizes itself dialectically in the divine-human polarity (as this is exemplified in the paradigmatic humanity of the prophets and saints).24 This does not mean however that God is not a mystery in a deeper or broader sense than Blake’s polemical use of this term. God is in his own nature inexpressible and this is why the human is his expression. The upshot of this I think is that God is not representable as either an absent or a present object. He is not an object at all. Blake tells us this quite directly in The Four Zoas: “What are the natures of those living creatures the heavenly father only knoweth no individual knoweth or can know in all eternity”.25 The best reading I can give to this would be in accordance with Pascal’s statement that there is that in man which transcends man. Within us and about us lies the inconceivable fullness of life of which we can render only images, visible, spatial or temporal. God is that which is too intimate to us to grasp in a single representation: hence the necessity and the inevitable failure of poetry (even Blake’s own!). To this extent, Blake stands in the company of mystics of the order of Dionysius, Plotinus, all-encompassing form and Plato’s idea of the one and the many” (p. 88). In theological terms then, Christ is fully, archetypically human insofar as he is divine intellect or form of forms. 23 That Blake here annunciates the Christian notion of the incarnation is recognized by Ryan (2003), p. 161. Ryan continues however by noting that: “… Jesus was himself the living God, embodying in his divine humanity the fullness of the God-head” (p. 161). This radical Christological focus, inherited in part from Swedenborg, underlies much that is difficult in Blake’s conception of God for of course he has no answer to the question ‘What is God?’ other than pointing to the divine man Jesus. This gives his theology a monistic, indeed Unitarian cast. At the same time Ryan warns, correctly, that it is perilous to pin Blake down to any doctrinal formulation (p. 165) and, as we shall see below, there are in Blake Trinitarian traces that oppose the radical Christo-monism outlined by Ryan. In general, Blake’s assertions are opposed by counter assertions to which the reader must be alert. 24 See R. J. W Austin’s lucid account of Ibn Arabi’s thought in his introduction to the (very difficult) Bezels of Wisdom. Austin (1980), pp. 25–31. 25 Four Zoas, in Blake (1988), 9–13.

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al-Arabi, Eckhardt and a host of others.26 To some degree he did so consciously: the Autobiography of St. Theresa was by him read and approved. This is not to say that he agreed with them unreservedly. Nor is it to say that all of these figures would find humanism as radical as Blake’s congenial. Rather, if I may use a Blakean image, he stood both with and against them in the intellectual wars of Eden. If I may hazard an opinion however, it seems to me that some of the best analogies to Blake lie in the mysticism of the Sufis for whom the Prophet, say, is indeed the human form of the divine and whose greatest teacher, Mansour al-Hallaj, suffered martyrdom for proclaiming himself the truth.27 However, I would also suggest that Blake’s myths may be understood as a sort of ‘A-theology’ having affinities with eastern traditions of thought and with ‘post-modern’ theologies. Certainly however, he is a critic both of the ‘onto-theological’ deity of modern Christendom and of the secular humanism which transcribes all of its errors in desacralized form.

References Al-Arabi I (1980) The bezels of wisdom (trans: Austin RWJ). Paulist Press, Mawah Blake W (1988) The complete poetry and prose. In: Erdmann D (ed). Anchor Books, Toronto Blake W (1978) Blake complete poems. In: Ostriker A (ed). Penguin Books, London Bloom H (1963) Blake’s apocalypse. Victor Gollancz Ltd., London Damon SF (1988) A Blake dictionary. University Press of New England, Lebanon Dawkins R (2008) The God delusion. Houghton Mifflin Harcourt, London Harper G (1961) The Neoplatonism of William Blake. University of North Carolina Press, Durham Kittel HA (1978) Urizen and an essay concerning human understanding. In: Phillips M (ed) Interpreting Blake. Cambridge University Press, Cambridge, pp 111–144 Lincoln A (2012) Blake, America, and Enlightenment. In: Crosby M et al (eds) Re-envisioning Blake. Palgrave Macmillan, New York 26 Yeats

and Ellis (2003), p. 246, make the following observation: “… although the name of God occurs continually in the symbolic books of Blake, there is little philosophic exposition of his nature.” This is not surprising given the ‘symbolic’ nature of Blake’s books but Yeats and Ellis themselves offer a potentially fruitful way of understanding Blake’s scattered comments on this subject. They suggest that Blake’s human fourfold of “reason, emotion, sensation and energy” is a kind of trace of the Trinitarian structure of God which in itself transcends direct representation. Tharmas represents the unity or hidden essence of God while Urizen, Luvah and Urthona represent the procession of that unity into the persons of the Father, Son and Spirit. Doubtless no Orthodox theologian would make of the divine essence a fourth principle alongside the trinity of persons but Yeats and Ellis find Blake’s precedent in the heterodox mystic Jacob Boehme who speaks of the divine ‘mirror’ as the essence manifested in the Trinity of persons. See Yeats and Ellis (2003), pp. 246–250. Insofar as Tharmas represents the unified feeling of the fourfold prior to its division into specific faculties he may stand as a fair candidate for Boehme’s ‘mirror’. Whatever is the case I think we can go no further than this intriguing suggestion given Blake’s reticence on the topic. 27 Here though we come across a fundamental divide between Blake and the mystical tradition. Blake has a definite animus against any conception of the divine as infinite, or incomprehensible or formless. This is because of his obstinate focus on the humanity of the word which represents for him the perfection of bounded form. Darkness in religion as in painting blurred the glory of the divine image which Blake conceived as a positive revelation of beauty. We might view Blake’s Biblicism in a similar light: it is a verbal and visual artefact that embodies the “Great Code of Art”.

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Nietzsche F (1968) The Antichrist (trans: Kaufmann W). In: Nietzsche F (ed) The portable Nietzsche. Penguin Books, London Ryan R (2003) Blake and religion. In: Eaves M (ed) The Cambridge companion to William Blake. Cambridge University Press, Cambridge Yeats WB, Ellis J (2003) The works of William Blake, vol 3. Bernard Quaritch, London

Some Remarks on “Adulthood” in Walter Benjamin’s Experience and Poverty Daniel R. Esparza

Abstract There are reasons to believe that, when Walter Benjamin referred to childhood and adulthood in his Experience and Poverty, he had Kantian Unmündigkeit (the famous “self-incurred immaturity” Kant denounces in his Was ist Aufklärung) in mind. Also, in some other texts, Benjamin made it clear that he intended to work on this specific notion of “enlightened” autonomy through some of the basic tenets of Hamann’s metacritique of Kantian philosophy; that is, through an understanding of reason as being structurally narrative. What I try to do in this text is a reading of this essay, Experience and Poverty, as belonging to the tradition of the Enlightenment from such Hamannian perspective, which I understand is the cornerstone of Benjamin’s own Coming Philosophy. In sum, I argue Benjamin follows Hamann’s radicalization of the Enlightenment by stepping away from the prejudices Hamann himself thinks motivate Kant’s Critique of Pure Reason: a “prejudice in favor of mathematics and a predilection for purity”. I will try to do so while considering the alleged “adulthood” of our contemporary “sovereign” State-Nations.

1 Brief Methodological Remarks In the opening lecture to his course on the political theology of Saint Paul, Jacob Taubes tells the story of a student who handed him over a dissertation on Benjamin in which twenty percent of the associations were mistaken. The reason being, Taubes explains, those were all biblical associations. After reading some of it, Taubes told the student he needed to go to Sunday school and read the Bible before (or while) reading Benjamin. “And with the delicacy of the Benjaminites,” Taubes goes on, the student asked him “in what translation?”. Taubes replied “for you, any one will do”.1

1 Taubes

(2004), p. 4.

D. R. Esparza (B) Department of Religion, Columbia University, New York, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_13

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I understand Taubes’ reference to this characteristic delicacy of the Benjaminites—he wouldn’t say “Benjaminians,” nor “Benjaminists,” and it is not inaccurate to say Taubes was quite a Benjaminite himself—as being integral to the field of Benjaminian studies (if we can agree on saying there is already one). Rather than being ironic, I consider his remark is an invitation to adopt a certain artful subtlety I assume everyone who has read Benjamin has found is indispensable for the task. After all, it was Taubes who also said, in the same lecture, “there are things one has to treat like a priest”. Reading Benjamin, it seems, is one of them. I’m sure Fr. Johann Baptist Metz, who has built a significant part of his own theology based on Benjamin’s work, would wholeheartedly agree, both as a priest and as a Benjaminite. This priestly delicacy, I claim, is also classic Benjaminian heritage. We know from some passages we can find in the abundant correspondence Scholem and Adorno compiled, and from some testimonies shared by Scholem, that Benjamin himself understood his own work on philosophy and literary criticism as calisthenics that would later allow him to devote himself entirely to the commentary of Scripture. In fact, he would refer to his own writing and thinking—in a letter he sent to the Swiss writer, translator and critic Max Rychner on March 7th, 1931—as being “Talmudic”.2 And even if rabbis are certainly not priests (we can discuss the subtleties around the translation of the Hebrew “Kohen” into English and the current use of this word elsewhere), anyone who has taken a glimpse at rabbinic literature must have noticed rabbis certainly know how to read and argue delicately. Reading “delicately”, of course, is not an exclusive demand of Benjaminian literature, and almost every good text requires and deserves a certain kind of finesse from the reader, and I think I am far from being the first one to say Walter Benjamin’s writing is particularly demanding. I hope you agree with me when I say there is a distinctive “Benjaminian delicacy” Benjaminites spend years trying to develop. This is the reason I decided to adopt a certain fundamental prudence when asking questions to any of Benjamin’s writings. Like Taubes’ student, it is often the case one might just be misreading the text or, perhaps even more frequently, simply not understanding the many references that are at play in Walter Benjamin’s many writings. Even if it might seem not delicate at all but rather crass instead at first sight, such prudence has led me to ask the question on adulthood I would like to discuss in the following in the simplest of terms, hopefully avoiding dangerous oversights and plain confusion alike. I would like to apologize beforehand if these questions sound somehow childish—pun intended. I would like to wonder if is there such a thing as an explicit Benjaminian understanding of adulthood. Benjamin indeed wrote about adulthood and childhood more than once, but when I ask about the actual existence of a “Benjaminian understanding of adulthood” I am looking for something a bit less evident than that. Surely, there is plenty of recent, relevant scholarship on childhood and adulthood, but what I am trying to figure out is if Benjamin’s references to adulthood are related to the 2 See

Benjamin (1994), p. 372: “I have never been able to do research and think in any sense other than, if you will, a theological one, namely, in accord with the Talmudic teaching about the forty-nine levels of meaning in every passage of Torah”.

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Kantian exhortations one finds in Was ist Aufklärung; specifically, those claiming for the coming of age of mankind. I do think this is the case, and I will try to show why in the following. But why would we even ask Benjamin this question, when everyone knows Benjamin is the go-to author to discuss technical reproducibility and revolutionary messianism, and nothing more? I would like to begin by addressing this third concern, as I think Taubes’ anecdote can help us find a proper answer to it. I am under the impression there are, roughly speaking, basically two kinds of Benjaminites: revolutionaries and theologians. I know this is a straightforward, too crass simplification, and I apologize for it, but still this is somehow the case. Some authors speak of a third Benjaminian school, the “school of contradiction”, where one would find Tiedemann and Habermas. Of course, as the number of articles and books on Benjamin that have been published “has increased steadily for forty years to the point where it has become almost impossible to keep up with all relevant secondary literature”,3 it might be the case there are already five or seven kinds of Benjaminites, and one can easily think on scholars who are already working on, for instance, “materialist theology” and “theological materialism” alike. Eagleton’s description of Benjamin as a “Marxist rabbi”, for instance, immediately comes to mind. Also, in his lectures on Benjamin’s Theses, Taubes would refuse to side with either Adorno or Scholem, and even if he would eventually speak of Benjamin as a “mystical Marxist,”4 he is quite adamant when saying Benjamin’s Marxism is but an “illusory phase” the philosopher “lulled himself into”.5 But even if it is often the case the commentaries of the “theologians” (Taubes, Scholem, and Agamben in capite, but also Friedlander, and maybe Andrew Benjamin) are sufficient to decipher the many hidden meanings in most of Benjamin’s works, I want to argue there is a kind of Benjaminite that is some sort of a rara avis, a Benjaminite that is—as theologians would say—“already here but not yet”, and that I would like to broadly describe as “Kantian” or, even worse, “Romantic”. More specifically, Frühromantik. I have talked elsewhere about this Benjaminism to come6 and, since I consider it to be an integral part of the original Benjaminian philosophical project itself, but I will allow myself to briefly repeat the basic tenets of my position in this regard, as I think this will help me explain my intentions with this text. I have reasons to believe the Benjaminian project for a Coming Philosophy, as presented in Benjamin’s 1918 homonym essay, On the program of the coming philosophy, is indeed one of the many non finiti tasks of Benjaminian scholarship. This essay intended to perform “a great transformation and correction upon the concept of knowledge, oriented so one-sidedly along mathematical-mechanical lines.” Such 3 Dickinson

and Symons (eds) (2016), pp. 1–2. (2016), p. 175. 5 Taubes (2016), p. 169. 6 I had the privilege of presenting a conference entitled Walter Benjamin and the question of forgiveness: Vergeltung, Vergebung, Versöhnung in the Cátedra Walter Benjamin of the University of Girona, Cataluña, in June 2018, in which I address this issue, even if the development of this project is still, hopefully, in the making. 4 Taubes

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transformation, Benjamin claims, can be attained “only by relating knowledge to language, as was attempted by Hamann during Kant’s lifetime”.7 This project, one can only assume, would entail a serious amount of delicate reading of Hamannian texts (and most likely, of Hegel’s writings on Hamann as well) alongside those of Benjamin. One of the many genealogies one might argue Benjamin belongs to—a love child as he was of so many uncommon marriages of different intellectual traditions—is one that goes from Kant, through Hamann, directly to Kierkegaard. When one remembers the first thing one reads in Kierkegaard’s Fear and Trembling is a quote from Hamann, one cannot help but wonder if this Kierkegaardian-Hamannian influence might be one of the reasons why Benjamin sometimes seems to be even better versed in Christian theology (Pauline theology in particular) than in Jewish thought.8 Pitifully, I don’t have time here to go into the many fascinating connections we could be able to find between Benjamin’s efforts and those of Hamann. This is also one of the tasks of the Coming Philosophy, I would say, and one I wish I could work on more thoroughly. But if I brought this to our attention it was because, as in the case of Taubes’ student and the Bible, I consider we Benjaminites-in-the-making often miss the many Kantian references in Benjamin’s work, probably because of an excessive focus on either revolutionary or theological interpretations of his writings. My main claim in this brief text is that (almost) whenever Walter Benjamin referred to either childhood or adulthood, he had Kantian Unmündigkeit (the famous “selfincurred immaturity” Kant denounces in his Was ist Aufklärung) in mind, and that he intended to work on the concept through a fundamental practical use of the basic tenets of Hamann’s metacritique of Kantian philosophy; that is, through an understanding of reason as being structurally narrative. There are deep reasons why Benjamin would do so, that are related to his unique understanding of redemption (and which Taubes in turn relates to psychoanalysis) that I will be able to address in the following just in passing. What I would try to attempt instead is a reading of some passages in a single Benjaminian essay, Experience and Poverty, as belonging to the tradition of the Enlightenment from such Hamannian perspective, which I understand is the cornerstone of Benjamin’s own Coming Philosophy, as I have already suggested. In sum, I argue Benjamin follows Hamann’s radicalization of the Enlightenment9 by stepping away from the prejudices Hamann himself thinks motivate Kant’s Critique of Pure Reason: a “prejudice in favor of mathematics and a predilection for purity”.10 Instead, a “radical” Enlightened project would be one that makes language “the only, first, and last organon and criterion of reason, with no credentials but tradition and usage”,11 as Hamann himself would put it.

7 Benjamin

(1918), pp. 107–108.

8 On the matter, cf. Dickinson and Symons (eds) (2016). In this book, an exceptional essay by Taubes

on Benjamin as a new Marcionite (which I have already cited) is included; also, see Jacobson (2003). Bayer (1988). 10 Hamann (ed) (2007), p. xviii. 11 Ibid., p. 207. 9 See

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I want to focus on Benjamin’s Experience and Poverty, a relatively short essay he published in December 1933, in Prague, because in it Benjamin discusses, among other things, our contemporary relationship with the ancient human practice of storytelling and, hence, with adulthood. I think Benjamin’s focus on storytelling is a practical application of Hamann’s understanding of language (and not mathematics) as being the organon of reason. It seems obvious Benjamin understands what makes an adult (that is, an Aufklärer, one who is “of age” morally and politically) is its capacity to use reason not mathematically nor mechanically but rather linguistically, narratively. The fact that those who came back from the Great War would rather not talk about it makes Benjamin question if the coming of age Kant proposed as the core of the Enlightened project is in fact possible. It was Peter Osborne who explained (correctly, in my opinion) “it is the first world war which provides [Benjaminian theology its] traumatic background”.12 It must be noted these were the same years (1927–1934) in which Benjamin was writing, on the one hand, on Kierkegaard and, on the other, on Mickey Mouse, toys, and children’s literature. I find this to be an exceptionally interesting framework (who else could put Mickey Mouse and Kierkegaard together?) to think on adulthood, childhood, and experience.

2 A Kantian Benjamin For obvious reasons, Benjamin relates adulthood to experience. This is definitely not one of the many unique contributions the genius of Walter Benjamin has made to the history of philosophy, as it seems to be a pretty obvious statement: adults have experience, while children and youngsters are “experiencing things” instead. But Benjamin is methodic enough to use, with that delicacy we have said is distinctive of Benjaminites (Benjamin included), two different German words to differentiate these two modes of experience; i.e., the experience of the adult from that of the non-adult. As the German Erfahrung refers not only to a specific experience—“my time in Sitges was eine schöne Erfahrung”—but also to the experience one gets out of doing something, often over a long period of time—“Benjaminites hat viel Erfahrung in the art of delicately reading these texts”—it is only natural Benjamin uses this word to refer to the experience of the adult. This is, in fact, the common German use of Erfahrung in everyday life. The German Erlebnis, on the other hand, while it keeps the very same reference to a single event one finds in Erfahrung as well, is often also exciting. Benjaminites might have viel Erfahrung in the art of delicately reading Benjamin, but sometimes they might not find their painstaking activity exciting enough to qualify as Erlebnis, no matter how young and enthusiastic they are. The “experience” in the text I will be commenting here, Experience and Poverty, is Erfahrung, as that is in fact the word Benjamin himself uses to name his essay, Erfahrung und Armut.

12 Osborne

(1995), p. 227.

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Even if most of the very early texts Benjamin wrote while still under the influence of Gustav Wyneken (founder of the Frei Schulgemeinde) and Henrich Rickert (one of the main NeoKantian philosophers of the Baden school13 ) refer to the experience of the adult in a somehow rebellious, almost adolescent tone (thus facing Erfahrung and Erlebnis as being at odds with each other) I would like to think I am one of those modern adults who are willing to “listen to the young,” and consequently I will argue Benjamin’s texts (in particular, his very early NeoKantian ones) are far from being mere juvenile tantrums. I will try to explain why. It was Scholem who wrote Walter Benjamin’s prose was only possible because it proceeded from the “thinking of a philosopher who became a narrator”.14 I consider Scholem’s remark is of the utmost importance, as it relates to Benjamin’s understanding of the figure of the storyteller and, consequently, to both adulthood and experience. How do adulthood, experience, and storytelling relate? I would say it is quite evident experienced adults are the ones in charge of telling stories to children. Benjamin would argue, though it would be more accurate to say they once were. Once upon a time, before the first world war, Benjamin writes in Experience and Poverty, “everyone knew precisely what experience was: older people had always passed it onto younger ones. It was handed down in short form to sons and grandsons, with the authority of age, in proverbs with an often long-winded eloquence, as tales; sometimes as stories from foreign lands, at the fireside. Where has it all gone? Who still meets people who really know how to tell a story?”.15 Before thinking on “where has it all gone” and start wondering whatever happened to the “authority of age” and our knowledge of “experience” (“everyone knew what it was,” says Benjamin, obviously implying that is not the case anymore), I would like to say a few more things about this “philosopher who became a narrator,” for two reasons. The first one is just an almost casual commentary that I nevertheless consider would allow us to think on Benjamin as belonging to traditions different from those we commonly associate him with (i.e., revolutionaries or theological); I hope this can help us stay alert enough to make associations we would otherwise, like Taubes’ student, overlook. The second one, because it relates directly to the question of adulthood, via storytelling. In The secret names of Walter Benjamin, Scholem suggests Walter Benjamin’s prose follows Schelling’s ideal of a narrative philosophy. “In Berlin Childhood around 1800,” Scholem continues, “such ideal is fulfilled in the most unsuspected way”.16 This is not an irrelevant observation. Saying Benjamin fulfills Schelling’s ideal of a narrative philosophy in fact allows us to understand Benjaminian literature as still belonging to the tradition of German Idealism, Schelling being one of its main figures, the midpoint between Fichte and Hegel. This might not be the adequate 13 It was Rickert who proposed the method of historical sciences should be added to the Kantian reflection on natural sciences, following Hamann’s remarks on the nature of Kantian reason; i.e., that reason can only constitute itself as such in language. 14 Scholem (2004), p. 17. 15 See Benjamin (1933), p. 731. 16 See Footnote 14.

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place to build yet another genealogy—Beatrice Hansen and Andrew Benjamin have already done that in a great collection of essays under the name of Walter Benjamin and Romanticism, but suffice it to say that even if Schelling saw Schiller’s ethical idealism with disdain, his proximity to Goethe is well documented. This allows us to understand Schelling as a figure standing somewhere in between Weimar Classicism and the Sturm und Drang movement, Goethe himself being the hinge uniting both. I consider Benjamin is heir to such interesting, delicate equilibrium, as his writings on Goethe and his ponderation of Hamann’s program suggest. Interestingly, in his commentary to his translation of Hamann’s Socratic Memorabilia, James C. O’Flaherty tells the story of a tea party once Goethe gave to honor Hegel, who had gone to Weimar to visit him. Although their basic philosophical positions couldn’t be any more at odds with each other, “the only subject on which they discoursed with obvious mutual pleasure was that of the life and work of Johann Georg Hamann”.17 In any case, according to Scholem, behind each of the fragments one finds in Berlin Childhood around 1800 “there is a philosopher and his vision; but, under the gaze of memory, his philosophy becomes poetry”18 ; the kind of “poetry” one could argue is to be found in the opening words of Benjamin’s Experience and Poverty: the treasure the sons of a dying man are supposed to find buried in a vineyard ends up being something one finds digging, but it is far from being a chest filled with old Spanish gold coins.19 Allow me to transcribe here Benjamin’s whole account of the story. These are in fact the opening lines of the essay: Our childhood anthologies used to contain the fable of the old man who, on his deathbed, fooled his sons into believing that there was a treasure buried in the vineyard. They would only have to dig. They dug, but found no treasure. When autumn came, however, the vineyard bore fruit like no other in the whole land. They then perceived that their father had passed on a valuable piece of experience: the blessing lies in hard work and not in gold.20

These are the kind of stories Benjamin says nobody knows how to tell anymore. One might reply: “nobody but Benjamin, who just told one, fulfilling Schelling’s program”. If nobody can in fact tell such stories nowadays, it seems to me, is irrelevant to our discussion. We are not wondering if the art of storytelling is forever lost, or if it is rather living its golden age. What interests us here is the fact that one would find this kind of stories in childhood anthologies, as this is the kind of experience (Erfahrung) adults would find worth passing on to younger generations. What makes Benjamin’s text, to use Osborne’s word, “tragically” interesting is that he claims contemporary adults seemingly only know one story, and that they would rather not share it, as it would only be able to tell “the experience of some of the most monstrous events in the history of the world”21 ; that is, the Great War.

17 O’Flaherty

(1967), pp. 17–18. Footnote 14. 19 Benjamin (1933), p. 731. 20 See Footnote 19. 21 See Footnote 12. 18 See

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People would return from the front, Benjamin says, in silence, “not richer but poorer in communicable experience”.22 “Never has experience been contradicted more thoroughly”, Benjamin continues. “Strategic experience has been contravened by positional warfare; economic experience, by the inflation; physical experience, by hunger; moral experiences, by the ruling powers”.23 I don’t mean to sound tragic myself, but the author’s account of the inter-war period sounds incredibly familiar, as it strikingly resembles our contemporary everydayness. But, that aside, I would like to draw our attention to the immediately following lines, as I consider here is where the “poetic”, “narrative” transformation of Kantian thought I argue is at play in Benjamin’s work can be found. This is Benjamin, I would say, clearly following Hamann’s directions. The paragraph goes as follows: A generation that had gone to school in horse-drawn streetcars now stood in the open air, amid a landscape in which nothing was the same but the clouds and, at its center, in a force field of destructive torrents and explosions, the tiny, fragile human body.24

A few paragraphs later, Benjamin continues: A complex artist like the painter Paul Klee and a programmatic one like Loos – both reject the traditional, solemn, noble image of man, festooned with all the sacrificial offerings of the past. They turn instead to the naked man of the contemporary world who lies screaming like a newborn baby in the dirty diapers of the present.25

I want to think Benjamin’s references to the “fragile humane body” and “the naked man of the contemporary world who lies screaming like a newborn baby in the dirty diapers of the present” are Kantian ones. In fact, the generation that now stands “in the open air, amid a landscape in which nothing was the same but the clouds” also is. This last image, I argue, is Benjamin’s opaque revisiting of the famous Kantian “starry heavens above me and the moral law within me” one finds in the Critique of Practical Reason. This is, I think, Benjamin’s ponderation of where has the Auflkärung project ended up because of its being “oriented so one-sidedly along mathematical-mechanical lines”. An “open air” substituting “the starry skies”, and a plain landscape substituting the “moral law within me” are the consequences of the mechanization of human experience as seen in the Great War. It is only logical that a generation whose moral experience has been contravened by the ruling powers cannot refer any longer to “heaven” but rather just to “air,” nor to one’s own interiority being able to host “the moral law”, as a “tiny, fragile human body” simply cannot be the vessel of such force.

22 See

Footnote 19. (1933), p. 732. 24 See Footnote 23. 25 Benjamin (1933), p. 733. 23 Benjamin

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3 Tutelage and Politics—Conclusions The notion of experience at play in Experience and Poverty (that of a knowledge that would have normally been passed on from one generation to the other through storytelling), as can be seen in the image of “the naked man of the contemporary world screaming like a newborn baby in the dirty diapers of the present”, I argue, tragically relates to Kant’s emancipation from self-incurred Unmündigkeit, a word commonly (and wrongly) translated simply as “tutelage”. Unmündigkeit is a more complex concept that refers to the impossibility to speak one’s own mind in an adequate, responsible, and sound way. This impossibility is what makes tutelage necessary. One is not allowed to vote until one reaches certain age, as it is assumed one cannot make proper public use of one’s own reason—that is, a political use of it—any earlier. I consider Benjamin’s question (“who still meets people who knows how to tell a story?”26 ) is but what remains of the Kantian Sapere aude (“dare to know!”) after experience has been contravened by unprecedented destruction. What would one “dare” knowing? It is no wonder “people […] long to free themselves from experience”,27 as Benjamin says. Those who silently came back from war simply wouldn’t dare telling the story of the massacre they were at a time victimizers and victims of, much less passing it on to younger generations, and “what poured out of from the flood of war books ten years later”, Benjamin says, “was anything but the experience that passes from mouth to ear. There was nothing remarkable about that”.28 This muteness Benjamin describes is, I argue, his rendition of Kantian Unmündigkeit: literally, not being able to speak for oneself. I think that what we find in these images is Benjamin’s take on how the original Kantian Enlightenment project went astray: the attempt to abandon our self-incurred immaturity led not a resolved and courageous use of one’s intellect without the direction of another, but rather to muteness. As the semantic field of the Greek logos suggests—unlike in the German Vernunft, “muteness” must be here understood as the absolute negation of a public use of reason. Moreover, according to Benjamin, this is a voluntary, willful, purposely self-incurred (Selbstverschuldet, as in the Kantian text) rejection of such use: Poverty of experience [Erfahrungsarmut]. This should not be understood to mean people are yearning for new experience. No, they long to free themselves from experience; they long for a world in which they can make such pure and decided [rein und deutlich] use of their poverty—their outer poverty, and ultimately also their inner poverty—that it will lead to something respectable.29

Even if the adult Walter Benjamin describes belongs to the generation “which from 1914 to 1918 had to experience some of the most monstrous events in the 26 See

Footnote 19. (1933), p. 734. 28 See Footnote 23. 29 See Footnote 27. 27 Benjamin

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history of the world”,30 one could hardly argue our conditions are that different. I don’t refer here to what has been said to be a “piecemeal world war”, although that might be the case. For now, I would simply argue that just as the experience of that generation was contravened by “a tremendous development of technology”31 which brought over mankind “a completely new poverty”32 (both poverty of experience and the experience of radical poverty), the ongoing contemporary effort to abandon our self-incurred immaturity, to use our own resources “without the direction of another”,33 often takes the shape of yet another contravention: that of a giving up on politics understood in clear and distinct Enlightened terms; that is, an abandonment of our public use of reason. I agree with Oswald Bayer when he says Hamann never intended to give up on the Enlightened project, but rather correct it, and I would add those were precisely Benjamin’s intentions as well. Benjamin presents the very same Kantian proposal, yet as a question, and in the negative: why would the ones who came back from war want to give up on their recently acquired muteness? Why wouldn’t one want to dream on the existence of Mickey Mouse instead, a life “full of miracles that not only surpass the wonders of technology, but make fun of them”?34 I have said before Benjamin intended to transform the Kantian project, “by relating knowledge to language, as was attempted by Hamann during Kant’s lifetime”.35 One of the many observations Hamann includes in his Metacritique of the Purism of Reason—his response to Kant’s first critique—is that a partly misunderstood, partly failed “purification of reason” consisted in trying to make it “independent of all tradition and custom and belief”.36 One could argue our propensity to think on politics in terms of “revolutions,” “re-foundations”, “progress”, and “change” stems from this disregard for tradition, institutions, and forms just because these have been too often understood as forms of an apparently no longer needed tutelage, now that our State-Nations are finally “adult”. The rhetorical reiterations of “sovereignty” and “independence” one finds elsewhere in contemporary politics, in my opinion, bear witness to this fact. This is, of course, the question of populism. Far from being a pledge for conservative traditionalism, I would say Benjamin’s is an appeal for a certain healthy political skepticism. I would like to finish by suggesting Benjamin understood our coming of age not as a goal but instead as a tendency, a striving, that should guide political action in general. Eventually, the abandonment of the tutelage tradition provided, which Benjamin presents as “lessons of experience being passed on to us”,37 brought forth 30 See

Footnote 19. Footnote 23. 32 See Footnote 23. 33 One reads in Kant’s What is Enlightenment? 8:35: “Unmündigkeit ist das Unvermögen, sich seines Verstandes ohne Leitung eines anderen zu bedienen” (Immaturity is the inability to use one’s mind without the guidance of another). 34 Benjamin (1933), p. 735. 35 See Footnote 7. 36 Hamann (ed) (2007), p. 207. 37 See Footnote 19. 31 See

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“the naked man of the contemporary world who lies screaming like a newborn baby in the dirty diapers of the present”38 instead. The coming of age of mankind, the era of emancipation from all authority (including that of the State), the promises of perpetual peace (Kant’s Ewigen Frieden, precisely) found in communism, economic welfarism, the overcoming of class struggle, progress, social democracy, fascism, or even in the all-too-abrupt arrival of technological modernity, made us “not richer but poorer in communicable experience”.39 Benjamin’s suggestion seems to be we must be paradoxically guided out of Unmündigkeit, just like the dying father guided his sons sending them to work on the vineyard without explicitly telling them to do so, and Taubes led his student to read the Bible. The movement that goes from tutelage to independence, from looking for a treasure to making a vineyard bear fruit cannot simply be provoked—as in the classic accentuation of the differences within the system—or forced through sheer will—as in our current relationship with technology and other forms of naïve voluntarism one finds in political slogans anywhere—but rather simply worked into, passing on our political experience to one another. I would say Benjamin, in the end, is simply advocating for a more delicate public use of reason. This delicateness is indeed a radical political stance that avoids the dangerous polarizing oversimplifications of our current global political climate.

References Bayer O (1988) Zeitgenosse im Widerspruch: Johann Georg Hamann als radikaler Aufklärer. Piper, Berlin Benjamin W (1918) On the program of the coming philosophy. In: Bullock M, Jennings MW (eds) (1996) Selected writings, vol 1 (1913–1926). The Belknap Press of Harvard University Press, Cambridge (Mass)/London, pp 100–113 Benjamin W (1933) Experience and poverty. In: Jennings MW et al (1999) Selected writings, vol 2, part 2 (1931–1934). The Belknap Press of Harvard University Press, Cambridge (Mass)/London, pp 731–736 Benjamin W (1994) Correspondence 1910-1940. University of Chicago Press, Chicago Dickinson C, Symons S (eds) (2016) Walter Benjamin and theology. Fordham University Press, New York Hamann JG (2007) Writings on philosophy and language (Haynes K, ed and trans). Cambridge University Press, Cambridge Jacobson E (2003) Metaphysics of the profane: the political theology of Walter Benjamin and Gershom Scholem. Columbia University Press, New York O’Flaherty JC (ed) (1967) Hamann’s Socratic memorabilia: a translation and commentary. Johns Hopkins Press, Baltimore Osborne P (1995) The politics of time: modernity and the avant-garde. Verso, New York Scholem G (2004) Los nombres secretos de Walter Benjamin. Trotta, Madrid Taubes J (2004) The political theology of Paul. Stanford University Press, Stanford Taubes J (2016) Walter Benjamin—a modern marcionite? In: Dickinson C, Symons S (eds) (2016) Walter Benjamin and theology. Fordham University Press, New York, pp 164–178

38 See 39 See

Footnote 25. Footnote 19.

The Dreyfus Affair and the Rise of Political Religion in France Anna Budzanowska

and Tomasz Pietrzykowski

Abstract The accusation and conviction of Alfred Dreyfus was one of the most shameful events in the history of the European judiciary and a great political scandal, which took place in France at the end of the 19th century and absorbed people in the rest of Europe. Many key figures in the so call Dreyfus affair were opponents of the parliamentary values, human rights, secular republic and promoted the strong reactionary feelings especially in the army and clericals group. The conflict over the Dreyfus case to a large extent consolidated two opposing visions of the state—the reactionary and the republican one—as well as helped to establish their underlying ideological narratives. The clash of values revealed by the Dreyfus affair has left the French democratic landscape deeply divided into the secular, republican side and the conservative right advocating the public role and influence of religion and allied with the religious communities. Ultimately it has led to the replacement of the old principle l’Église au pouvoir by the French doctrine of laïcité and implement the French model of the separation of religion and public domain. This social division and its underlying ideological narratives have been dominating the European political life ever since and to a large extent shaped the modern democracies all over the continent.

1 The Conviction and Trial of Alfred Dreyfus The Alfred Dreyfus case is one of the best-known and most shameful events in the history of European judiciary. It was not only a tragic legal mistake, but also a great political scandal, which drew immense attention of people in France and the rest of Europe—especially, as it had been an unfortunate result of a number of coincidental factors (it has also continued to inspire analyses of various different phenomena as analogous in this or that respect to what the point of the Dreyfus case actually

A. Budzanowska (B) · T. Pietrzykowski University of Silesia, Katowice, Poland e-mail: [email protected] © Springer Nature Switzerland AG 2020 D. Bunikowski and A. Puppo (eds.), Why Religion? Towards a Critical Philosophy of Law, Peace and God, Law and Religion in a Global Context 2, https://doi.org/10.1007/978-3-030-35484-8_14

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was).1 The onset of the affair can be traced back to the spring of 1894, when the French counterintelligence service received a dossier indicating that a German spy had infiltrated the national army. A few months later, in September, the suspicions have turned to a particular body the spy was supposedly operating in—the General Staff. This information resulted in a psychosis of fear among Parisian generals, followed by a sense of urgency to find the traitor. The War Minister, General Auguste Mercier commissioned a thorough investigation, which was then led by Colonel Armand du Paty de Clam (much later, at the time of the Vichy Government, 1940–44, his son Charles was to act as the Commissioner for Jewish Affairs). Both A. Mercier and A. du Paty, were linked with the monarchist-clerical political group. Furthermore, General A. Mercier’s ultimate goal at the time was to eventually assume the position of the President of the Republic. He believed that a successful investigation of the espionage case could significantly advance his political career and bring him closer to achieving that goal. Conversely, a failure in this respect could mean an end to his political career. He was thus especially determined to uncover and publicly punish the traitor.2 Alfred Dreyfus proved to be the perfect candidate for a scapegoat. He was a 35year-old officer, with no aristocratic roots, hailing from the “new bourgeoisie” (or the so-called ‘nouveau-riche’). Additionally, he came from Alsace and he was a Jew. After having graduated the Military Academy, he started to work for the General Staff. He remained, however, quite unpopular with his superiors. In the end, the allegations he had been faced with him were based purely on an analysis of his handwriting. It was held to be similar to the one which an intercepted note by the spy had been written in. However, the opinions of the experts evaluating the evidence were far from unanimous. Thus, the key evidence of Dreyfus’ guilt would now hardly be considered fully reliable by any competent law practitioner. Despite these issues, however, Dreyfus was arrested in October 1894, and duly put before a military tribunal. The trial took place behind closed doors. Apart from the evidence produced before the judges, military counterintelligence officials supplied a confidential document (disclosed neither to the accused, his defence, nor the general public), claiming that the evidence against Dreyfus is undeniable—yet the crucial evidence cannot be revealed to the public opinion, due to matters of national security.3 As a consequence, Dreyfus was found guilty and sentenced to imprisonment on Devil’s Island, in French Guiana, where he was never expected to return from.4 Dreyfus’ degradation, as well as his public condemnation, took place in the presence of a large crowd of Parisians, in a humiliating spectacle. The legal case itself

1 The

Affair has also continued to inspire analyses of various different phenomena as analogous in this or that respect to what the point of the Dreyfus case actually were—as e.g. Begley (2009). 2 Thomas (1961). 3 For more on the significance of the transparency in the operations of the public administration and the perils of its shortcomings, see Bogucka and Pietrzykowski (2012), pp. 188–194. 4 Reinach (1911).

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seemed to be open and shut. However, in actuality, it had only just started and was to continue over the course of the next twelve years. What followed was a number of further trials and political battles.5 The press got involved in the fiery debate of whether Dreyfus was actually guilty of espionage or rather a victim of conspiracy, due to his Jewish origin and the growing pressure to find a party to blame and display before the nation as a living testimony to the competence of the army. The growing suspicions towards the proceedings and lack of credible evidence against Dreyfus made many politicians and right-wing intellectuals determined to defend the honor and prestige of the army as the last institution rising above ordinary political controversies, able to unite the nation. Both the political scene and the French nation in general were effectively subject to polarization of opinions to an unprecedented degree.6 The ramifications of the Dreyfus case became so extensive that it cast a number of social groups against one another: Catholics against Jews, anti-clericals against the Church, Republicans against nationalists. It aligned the whole Republican Left with the Dreyfus camp in opposition to the antiDreyfusard circles including the pro-military, the monarchist right, as well as the extreme, nationalist Right.7

2 The Polarization of Society into Two Political Camps At the time we refer to the political situation remained highly unstable. The period of the Third Republic was seen as a period of a weak state, lashed with numerous political crises and economic scandals.8 The French still remembered the military defeat of the lost Prussian War in 1871, which resulted in France losing Alsace and Lorraine. The political and ideological dissonance within the society was growing. Thus, during the first few decades of the Republic, the army was considered to be a desperately needed symbol of national unity and pride.9 Withal, the need to prove its ability to resist infiltration by the enemy and display effective detection and elimination tactics to counteract foreign espionage was enormous. French officers were prepared to do anything to satisfy the expectations of their superiors in this respect. It is chiefly for this reason, that the case of an alleged German spy in the General Staff was to be wrapped up quickly and successfully. The ultimate effect, however, turned out to be just the opposite. After Dreyfus was sentenced and sent to Devil’s Island, a shift occurred—the very head of the military counterintelligence service was replaced. The newly appointed chief—Colonel Georges Picquart disclosed new, embarrassing facts suggesting that the evidence against Dreyfus had largely been fabricated, and the judges manipulated 5 Chapman (1972); the title includes important analyses of the legal and military issues of the Affair. 6 Albert

(1972). (1996). 8 Rémond (1982). 9 Mayer and Reberioux (1984). 7 Cahm

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and that Dreyfus was actually the victim of political ambitions of a military group and anti-Semitic sentiments of some influential personalities in the army and the government.10 Moreover, Colonel Picquart discovered that the actual spy was not Alfred Dreyfus, but another individual—Mayor Charles Marie Ferdinand WalsinEsterhazy. When G. Picquart decided to disclose his findings, his superiors decided to cover up the case and pressured him to remain silent in order to avoid the risk of political turmoil and personal consequences of an open admission that an innocent man had been prosecuted and publicly deemed a traitor. Despite the efforts of state institutions in an attempt to cover up the truth, some outlets of public opinion gradually ceased to believe in the official version of the Dreyfus case. The well-known article I accuse! by Emil Zola, published in one of the new Paris press titles “L’Aurore” on January 13th 1898, was a prominent voice calling for revisiting the case, which painted a vivid picture of an organized state conspiracy which had not only sentenced an innocent officer and publicly condemned him, but continued to keep him imprisoned overseas. Zola could have chosen simply to lend moral support to the Dreyfus cause rather than expose himself to the trauma of a libel trial, but because he surely knew the power of the press on public opinion he decided to engage. His involvement reflected his genuine outrage over the unfair treatment of an innocent man: (…) We are horrified by the terrible light the Dreyfus affair has cast upon it all, this human sacrifice of an unfortunate man, a “dirty Jew.” Ah, what a cesspool of folly and foolishness, what preposterous fantasies, what corrupt police tactics, what inquisitorial, tyrannical practices! What petty whims of a few higher-ups trampling the nation under their boots, ramming back down their throats the people’s cries for truth and justice, with the travesty of state security as a pretext. It is a crime to lie to the public. It is a crime to poison the minds of the meek and the humble, to stoke the passions of reactionism and intolerance, by appealing to that odious anti-Semitism that, unchecked, will destroy the freedom-loving France of the Rights of Man. It is a crime to exploit patriotism in the service of hatred, and it is, finally, a crime to ensconce the sword as the modern god, whereas all science is toiling to achieve the coming era of truth and justice. (…) Truth and justice, so ardently longed for! How terrible it is to see them trampled, unrecognized and ignored! (…) I repeat with the most vehement conviction: truth is on the march, and nothing will stop it. Today is only the beginning, for it is only today that the positions have become clear: on one side, those who are guilty, who do not want the light to shine forth, on the other, those who seek justice and who will give their lives to attain it. (…) I have but one passion: to enlighten those who have been kept in the dark, in the name of humanity which has suffered so much and is entitled to happiness.11

The day after Zola’s article a number of scholars and academics signed a petition denouncing the illegalities of the 1894 court martial and questioning its findings. The public opinion and political scene were each consequently split into two opposing camps.12 The first one consisted of the anti-Dreyfusards. This group included representatives of the general staff, supported by politicians from the monarchist-clerical party. The most important figures here were: Maurice Barrès, Charles Maurras, Edouard 10 Byrnes

(1969). (1898). 12 Duclert (2006), Harris (2010b), p. 107. 11 Zola

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Drumont, Henri Rochefort, Ferdinand Brunetière; politicians: Auguste Mercier, Godefroy Cavaignac, Félix Faure and Jules Méline. They firmly held the opinion that the Dreyfus affair was the enemy’s effort to discredit the French army. They believed that even if Dreyfus was actually innocent, the good of the individual human being should not be placed above the value of the unity of the state. This narration was further enhanced by strongly anti-Semitic content matter. The anti-Semitic moods were not only present in certain political parties, as well as the army, but also quite prominent within certain groups of writers and journalists.13 This approach to the Dreyfus case contributed to the emergence of new forms of nationalism on the extreme Right, in particular that of the Action Française, Charles Maurras and anti-Semitic daily “La Libre Parole” led by Edouard Drumont.14 Nationalists were fixated on the idea that a conspiracy against Catholicism was in operation—and the most obvious culprits were the Jews.15 The other side of the sociopolitical spectrum gave birth to the Dreyfusard camp. It was not, however, as homogeneous. The most important figures included: politicians such as Georges Clemenceau, Jean Jaurès, Henri Poincaré, Pierre Waldeck-Rousseau, writers Emil Zola, Leon Blum, Anatole France and Emil Duclaux. In opposition to the anti-Semitic overtones of the campaign against Dreyfus, they also advocated for the significance of individual rights over collective considerations, social goals or the general good of the nation. The Dreyfusards called for the trial to be revised in order to examine the actual evidence and avoid the risk of castigating an innocent person to the political ends of the ruling elites. One of the outcomes of the affair was bringing the Left back to power in France for a decade after 1899. Further consequences include the consolidation of the Republic and the completion of the process of the separation of church and state. In the public debate, the social sensitivity and republican values manifested by E. Zola were directly juxtaposed against the nationalism represented by M. Barrès and Ch. Maurras.16 There were two visions of the state—the conservative and the republican one. In the future, these two camps would hence choose two different political directions—one of them in collaboration with the Nazis. As Hanna Arendt has put it: The Dreyfus Affair in its political implications could survive because two of its elements grew in importance during the twentieth century. The first is hatred of the Jews; second, suspicion of the republic itself, of Parliament, and the state machine. The larger section of the public could still go on thinking the latter, rightly or wrongly, under the influence of the Jews and the power of the banks. Down of our times the term Anti-dreyfusard can still serve as a recognized name for all that is antirepublican, antidemocratic and anti-Semitic. (…) The France fell because there were no real Dreyfusard in it, people who would preserve faith that the Third Republic defense of democracy and freedom, equality and justice. After 40 years

13 Sternhell

(1978). (2014). 15 Wilson (1982). 16 Sternhell (1972). 14 Budzanowska

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The Republic finally fell into the arms of the old clique of Dreyfus opponents, always the backbone of the army and at a time when she had few enemies but almost no friends.17

3 The Emergence of Opposing Ideological Narratives The Dreyfus affair can also be considered a manifestation of how the polarization of the society and intense political conflict may contribute to the development of the political scene. Many ideological divisions that would dominate the public life for the approaching century would inadvertently come to light as a result of the case. Thus, “Dreyfus” became a founding myth for two major political narratives. The process of their formation pushed down the question of the truth about the facts of the Dreyfus case to a secondary position. The coherence and impact of the leading narrative would grow to be the foremost concern for both poles of contention. The problem of which of the political narratives would turn out to be more powerful and able to exert the influence on society replaced the interest in the truth of who the actual guilty party was in the proceedings and if and in what respects the legal trials were actually carried out fairly and brought just outcomes. The polarized discourses became tools for mobilizing public opinion around given political values and goals. Facts were soon turned into building blocks of merely instrumental relevance, used as means to support general worldviews represented in public debate.18 The Dreyfus case is thus an interesting model showing how mechanisms of democracy are based on their founding myths used to create and sustain political conflict. It is those mechanisms that organize society around certain narratives built around sets of symbols. The underlying issues and connotations of the Dreyfus accusation touched upon the heritage and symbolism of national unity. Based on these fundamental elements, a narration was created for each of the camps. At that time, the collective memory of the French was still strongly affected by the memory of the lost Prussian War in 1871. Effectively, it was the army became one of the highest and most important symbols of French identity—the symbol of a nation. This is why the slogan of the nationalist anti-Dreyfusard camp was “defend the honor of the army”. The second element of their ideology was built on yet another symbolically essential notion—the protection of religious heritage in French state tradition; and the symbol protected in this case was the Catholic Church. Unfortunately, as a consequence of these attitudes, Jews were excluded from all areas of public life and French society.19 As the Dreyfus affair was unfolding, it gradually affected—with striking depreciation—the value of truth in public discourse. It seemed that the authorities had all the necessary ability to hide facts and, effectively, build a modified or manipulated

17 Arendt

(1973), p. 132. (2010a), p. 217. 19 Leblois (2011). 18 Harris

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image of them.20 In general terms, a big political conflict may trigger processes that encourage decision-makers to defend their positions independently of any disclosed or proven facts, evidence, or arguments. This in turn creates the kind of mechanism leading to the marginalization of the meaning of truth, or as in the case of Dreyfus, of individual justice. This is a phenomenon undoubtedly present in contemporary democratic systems, in which hot ideological disputes tend to lead to social polarization and brutalization of political life. Governments, as well as other state institutions, are often involved in such conflicts, becoming instruments, or even parties in the struggle of opposing ideas and groups representing them.21 Furthermore, due to special powers and capabilities created by the organized state apparatus, it proves an extensively useful tool for those who control it to create and defend facts supporting the narrative they need to mobilize their supporters.22 The price for this is often, as in the case of Dreyfus, concealing or deforming the truth or miscarriage of individual justice done in the name of the “greater good”.

4 The Effects on the Place of Religion in the French Political Life The consequences of the Dreyfus affair were significant, not only for the stats of the Catholic Church in France and the position of religion in French public discourse.23 Catholics had paid heavily for the sins of their ideological defenders.24 The hostility of the radical governments against the politically engaged hierarchs of the Church were proportionate to the endorsement of the latter to conservative parties and ideologies. The cause leading to this explosion of animosities was linked to the revolution of 1789, which emancipated the Protestants and the Jews—but for the Catholics this process had almost been equal to total annihilation. The antagonism between the Right and radical republicans continued to simmer throughout the 19th century. This time was a demanding one for the Catholic Church in France. The heirs of the revolutionaries of 1789, namely, militant atheists, formed a cause on common grounds with the Protestants and the Jews—against the political influence of the Catholics. As a result, these anti-Catholic groups started gaining both prominence and social power. This provoked resentment and anti-Semitism in

20 The secret service became “a common fake factory”, putting great efforts to maintain the accusation against Dreyfus; see Read (2013), p. 196. 21 On political neutrality as a value of public administration, see Bogucka and Pietrzykowski (2012), p. 200. 22 On the danger of turning state and law into the primary instrument of oppression as one of the key ideas behind the modern Western legal culture, see Pietrzykowski (2014). 23 Dansette (1965). 24 Capéran (1948).

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the opposing parts of the social milieu, even more so since the nationalists created the slogan “France for true Frenchmen”.25 Among the nationalists, the belief in a conspiracy to destroy France’s Catholic identity and tradition was a widespread one. The idea was cultivated by a number of leading intellectuals within the group.26 In their theories, the most easily identifiable enemies of France were the Jews. This resentment was further fueled by the fact that many of them were extraordinarily rich and talented. They were represented in the top ranks of the judiciary, the press, the market as well as prominent in financial institutions. In many cases, racial or religious distinctions overlapped with economic inequalities, bolstering jealousy and suspicions in the worse-off circles of the society. The members of economic and social elites were often of Alsatian origin and spoke, like Dreyfus, with a German accent. Hence, it was easy to make them targets of a campaign of hate and accusations, unifying large groups of the society against its hidden enemies who were held responsible for all the failures and misfortunes which made the lives of ordinary people so difficult.27 In this context, the atmosphere fostered by the anti-Dreyfusard campaigns could be seen as an eruption of barbarism in one of the most civilized of European countries.28 In the long run, the Dreyfus affair and its aftermath had considerable effects on the state’s policy towards religion. It is important to note that Catholics were present in both camps. It is key, however, to note that the Dreyfus affair was a consequence of growing anti-Semitic attitudes. As it was running its course, Catholic bishops formally respected the principle of neutrality and non-intervention, with even the Church hierarchy declaring that: “it is not for the Church to intervene in the debate, it is for the French courts to examine and decide on the question and we shall bow to their verdict”. And yet, almost a third of the anti-Semitic books published in France between 1870 and 1894 were written by Catholic priests, with even more being written by lay intellectuals close to the Church and striving to defend its position. Additionally, in many stages of the affair, a position of passive neutrality was, in fact, support of the anti-Dreyfusard camp, trying to prevent the case’s revision and keep it closed. In other words, the attitude of the Church was in many respects in striking contradiction with the public outrage towards the injustice and proliferation of lies sponsored by the government and the political camp supporting its policy. In a lot of ways, it was for this reason that French Catholics aligned themselves with national extremists. Besides the common attitude of the French priests forced to obey the papacy and ministry within the hierarchical structure of the Catholic Church was an additional ballast. Undoubtedly, the turn of this century was for the Catholic Church a period as difficult as that of the Revolution of 1789. The principle of sovereignty of the nation had become the new foundation of the French state. As one of the leading ideas of the Great Revolution, it resulted in ruling out any Papal interventions in French internal affairs. It broke the link between the French 25 Lecanuet

(1930). and Sirinelli (1986). 27 Boussel (1960). 28 Cahm (1994). 26 Ory

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Church and the Vatican. The traditional alliance of the throne and the altar had been overturned. The process of secularization and laicization took many decades and its pace fluctuated over time. The advent of its conclusion, however, can be seen at the beginning of the 19th century in the ultimate aftermath of the chains of events brought about by the Dreyfus affair. It was Pierre Waldeck-Rousseau, and later Emilie Combes, who made the Catholic religion responsible for the villainy of a dozen or so officers who had conspired to keep Dreyfus in prison on Devil’s Island. It worked well as a pretext to pass laws dissolving Catholic orders and schools. The final step of the process was the famous Act on the Separation of Church and State passed in December 1905. The separation was one of the projects meant to end conflicts sparked by the Dreyfus affair.29 This law introduced the doctrine of laïcité and ultimately made France a modern, secular state. It did not aim to lay down rules of peaceful coexistence of various religions and cults, but rather to eliminate all manifestations of religion from the public domain. All of this took place in a society which, following the defeat in the war against Prussia, was virtually religiously homogenous. More than 90% of the French declared themselves to be Catholic.30 It is worth nothing, that the so-called “separation crisis”, which dominated French politics in the years 1899–1905, was brought about by the Dreyfus affair and projects for secularization of the 3rd Republic’s educational system, initiated in the years 1880–1886. As a result of the reforms advanced by such statesmen as J. Ferry and later R. Waldeck-Rousseau, as well as E. Combes, Catholic educational congregations remained a common practice in the colonies and French overseas territories.31 In 1875, the 12,000 catholic schools in existence would educate approximately the same number of pupils as public schools (that is, about 2.5 million) while in 1913, only 300 congregational schools remained in operation.32 The polarization of the attitudes present in French society during the Dreyfus affair would have a considerable effect on the republican program of education adopted in schools several years earlier.33 One of the lasting consequences was the emergence of new political formations—leagues, gathering politically active citizens. They brought together people with a common cause, letting them strive for their aims and values to be realized in the public domain, irrespectively of their party affiliations.34 In February 1898, the refusal of the revision of the Dreyfus case, as well as the acquittal of Esterhazy, gave birth to the Ligue des droits de l’homme. It gathered the politicians of the Dreyfusard camp and sought to defend citizens’ rights as well as the values passed down by the 1789 Revolution. It also strongly endorsed the policy of secularization and spoke for depriving the Church of privileges stemming

29 Kedwark

(1965). (1948). 31 Mayeur (1991). 32 Olivesi and Nouschi (1995). 33 Lattes (1998). 34 See Footnote 8. 30 Dansette

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from its relation with the state. In response to that political movement, in December 1989, right-wing circles set up an anti-Dreyfusard organisation of the same kind—the Ligue de la patrie française.35

5 Charles Maurras and the Rise of Anti-modernist Political Catholicism Right-wing political organizations belonging to the anti-Dreyfusard camp were typically fond of militarism and were strongly aversive toward Jews. Furthermore, they believed in the need to maintain tradition and restore the Catholic heritage of the French nation. Their goal was a revival of the national spirit involving the return to the strong alliance between the state and institutionalized Catholic religion. These views were reflected in such publications as the “La Cocarde” journal, especially in the period between September 1894 and March 1895. At that time, the magazine was managed by M. Barrès, with one of the leading authors being Charles Maurras. The latter soon became a champion of the anti-Dreyfusard camp and the most important architect of its ideological foundations. It was on the pages of “La Cocarde” that the nationalist synthesis was created. It managed to combine a variety of apparently opposite ideas, stemming from not only conservative, right-wing roots but also recent socialist and anarchist streams of thought. Maurras’ presence loomed large in this creation. The subjects he touched upon included such issues as religious revival (himself becoming one of the most vigorous apologists of Catholicism). His sole objective, however, was the political utility of the Catholic faith and the importance of the institution of the Church for the maintenance of tradition and social cohesion. This proved to be a matter of intense dispute within the anti-Dreyfusard camp. The main opponents were Maurras—on one side, and M. Pujo and H. Vaugeoisa, with their colleagues from the organization Union pour l’action morale—on the other. The mentioned Maurras’ adversaries subscribed to the idea of preserving religious inspiration for political arrangements, but rejected Catholicism.36 For Maurras, the Catholic faith was the religion of power and tradition also strongly related to the intellectual heritage of ancient France. As he argued: The Catholic Church, The Church of Order – these two were so synonymous to us that we would say ‘a Catholic book’ to say ‘a book of beauty, classical, written in accordance with common reason and the ages-old custom of the civilized world.37

Furthermore, it had built up a long-lasting and influential institution that has subsisted for centuries. According to his views, religion was necessary for the existence

35 Rioux

(1977). (1965). 37 Maurras (1906), p. 61. 36 Vandromme

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and stability of a political society, as it was essential for preserving national awareness; it was religious tradition on which the core of national identity was founded and able to remain intact over centuries. Many devout Catholics—both among clergymen and laity—did not feel comfortable with the ideas so openly combining religion with current political objectives. Maurras and his associates were therefore faced with fierce criticism, even in the social circles closest to the French church. On 16 February 1892, Pope Leo XIII issued the encyclical Au milieu des sollicitudes addressing French Catholics. It included a clear endorsement of their joining of the operations of the secular, republican state (ralliement): Various political governments have succeeded one another in France during the last century, each having its own distinctive form: the Empire, the Monarchy, and the Republic. By giving one’s self up to abstractions, one could at length conclude which is the best of these forms, considered in themselves; and in all truth it may be affirmed that each of them is good, provided it lead straight to its end – that is to say, to the common good for which social authority is constituted; and finally, it may be added that, from a relative point of view, such and such a form of government may be preferable because of being better adapted to the character and customs of such or such a nation. In this order of speculative ideas, Catholics, like all other citizens, are free to prefer one form of government to another precisely because no one of these social forms is, in itself, opposed to the principles of sound reason nor to the maxims of Christian doctrine. (…) Political power is not found in all nations under the same form; each has its own. This form springs from a combination of historical or national, though always human, circumstances which, in a nation, give rise to its traditional and even fundamental laws, and by these is determined the particular form of government, the basis of transmission of supreme power. (…) Thus the wisdom of the Church explains itself in the maintenance of her relations with the numerous governments which have succeeded one another in France in less than a century, each change causing violent shocks. Such a line of conduct would be the surest and most salutary for all Frenchmen in their civil relations with the republic, which is the actual government of their nation. Far be it from them to encourage the political dissensions which divide them; all their efforts should be combined to preserve and elevate the moral greatness of their native land.38

The Pope hoped that it would encourage a part of the French political right to abandon their efforts to restore monarchy in France, effectively making the attitude of state institutions towards Catholicism more benign. All of this was, in fact, meant to impede the further processes of secularization of the French public domain. That attempt, however, turned out to be unsuccessful. At the turn of the 19th and the 20th centuries, the French state waged a political war against the Catholic Church. The Dreyfus affair became its additional fuel and substantially accelerated the course of events, which resulted in the ultimate victory of the laïcité doctrine.39 The antireligious positions of the most prominent leaders of the Dreyfusard camp brought about a strong counter-reaction of the right-wing pro-Catholic activists, including their ideologist, one of the most important—Charles Maurras. They conceived that when religion was under political attack, their duty was to defend it. According to Maurras: 38 Leo

XIII (1892). (1955).

39 Chapman

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if nationalism is complete, if it is logical, it practically leads to the defense of religion and society. Religious defense and the defense of society do not, in turn, lead directly to national defense – or only lead to it in a secondary, distant and unsatisfactory way.40

Arguably, it was in this way that the position towards the Dreyfus case, including the guilt or the ethical defensibility of his imprisonment, became largely derivative of the general attitude towards the proper place of religion in the public domain. More importantly, though, the vigorous defense of the Church became a consequence of the anti-religious policy of the Dreyfusard camp. Over the course of the political turmoil sparked by the Dreyfus affair, the anti-Dreyfusards made Catholicism the very foundation of the viability of the state.41 Interestingly enough, it was publically known that Maurras, being a leading defender of the public position of the Catholicism and the Church, was at the same time a declared atheist. The Church did not accept his doctrine and remained critical to both his personal attitude and his political ideas.42 Nonetheless, Maurras continued to advocate the political privileges of the Church in France, in particular when it faced the wave of intensive attacks by the Waldek-Rousseau government formed in 1899, and later on, when the radicals won the 1902 election, by the government led by Emile Combes. In 1904, legislation against religious orders and schools was implemented. It was then that the government broke the concordat with The Vatican signed by Napoleon in 1801. Finally, in December 1905, the parliament passed the act of separation of church and state. Radically anti-Catholic policy was continued by all subsequent French governments until the First World War when it was relaxed after 25 thousand Catholic clergymen voluntarily enrolled in the military, together with thousands of nuns who joined the army to assist in running military hospitals. More than 1/5 of them perished during the war operations. This patriotic sacrifice of the Catholic clergy, in a time of ultimate need changed, albeit for short time only, the spirit of the (anti-) religious policy of the French republican governments. Maurras and the rest of anti-Dreyfusard camp following him claimed that an essential merit of the Catholic church for the French society in the 19th century was the defense it provided against the drive towards liberating individuals from moral and social duties and expanding the catalogue of their rights. The Church kept emphasizing the dimension of duties of a man toward his fellows and thus helped prevent the disintegrating processes launched by the ideas of unlimited freedom and individualism. In a sense, as Maurras’ argument went, organized Catholicism opposes and trumps spontaneous Christianity because: External order does not end the concept of Catholicism, its harmony goes further (…) The rules governing within an organization are found in the strictness of critical choices, rational opinions, that the logic of the dogma dictates the faithful. Hierarchy, on which majestic authorities rest, strictly applies. Everything that a person can receive from the faith of the Church, they receive proportionally, according to the degree of importance, usefulness and goodness. Nothing in the world can compare with this body, made up of such simple 40 Maurras

(1909), p. 459. (2001). 42 Dimier (1926), pp. 85–86. 41 Prévotat

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principles, subject to one idea – that all those who agree to respect this greatness can never make excuses that they have gone astray because of ignorance or unawareness.43

For him, Christianity was a symbol of chaos while he identified Catholicism with an idea of order matching the needs and traditions of the French society. In fact, his approach to a religious public policy, endorsed by the anti-Dreyfurian camp used to oppose the government’s ideas of separation of the church and state, had deep antiChristian roots.44 Marraus claimed that the Christian conceptions of justice and mercy were ultimately Jewish and related back to anarchist and other social-revolutionary theories. On this basis, he proposed to distinguish between Catholic and non-Catholic Christianity. According to him, the latter was advanced by reformative “sects”, which he blamed for promoting anarchist and nihilist attitudes.45 Reformed churches were, for him, the instigators of revolution. They were responsible for instilling in the human mind the acceptance for the idea of realizing one’s own individual objectives, despite all tradition, hierarchies or institutional constraints. It was the first step toward undermining social order and its organic structure. The final stage of the same chain of events, as he claimed, would then have been a replacement of a community by a mass of atomized individuals, which actually constituted the destruction of a nation. Maurass was convinced that: by reminding the masses of such notions as states, homeland and authority, the Church saves the individual from setting themselves on an altar. …Individualism was excluded in the name of love for a person, and those whom the Church calls the least of its brothers and sisters have received a privileged treatment in it, given it does not make them proud, and the principle of subordination will not bring about a rebellion.46

Catholicism, in turn, Maurras considered to involve discipline and codified tradition. These were the values which, over centuries, had become the main fabric of Western societies, underlying their stability and coherence. In this view, the Catholic Church was not a guardian of faith. It was, above all, the guardian of civilization. It was the Church that protected the values that turned a barbarian into a human being—a genuine man or a person. This latter role is, in fact, much more important for Maurras. As he claimed: “I am more of a papist than a Catholic, and more of a pagan than a papist. But of these are the same, if we look at it the right way”.47 This is why the truth or falsity of the solely religious beliefs or dogmas were irrelevant to both his praise and defense of the institution of Church and its central role in public life and political arrangements. This theory of the national and social role of Catholic religion gave birth to his leading doctrine of the integral nationalism— défense religieuse—défense sociale—défense nationale.48 The idea of the pro-Catholic religious policy propagated by Maurras not only became an important part of the ideology of the anti-Dreyfusard camp in the French 43 Maurras

(1912), p. 58. (1958). 45 Maurras(1906). 46 Maurras (1906), p. 60. 47 Maurras (1912), p. 60. 48 Maurras (1937). 44 Juillard

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politics, but also found supporters among top clergymen of the Church. One of them, Ludovic Billot—a Jesuit and professor of dogmatic theology wrote about the ideologist: How not to rejoice at the fact that nowadays we receive a testimony of the will to oppose and fight the worst enemies of Catholicism from a man who is outside the Church. This gift, no doubt coming from outside, brings a purely human, Catholic order, it is a real pearl for the Church. This gift is contained in La Politique religieuse by Maurras. In this book we will find pages that will remain the most beautiful of all those that have so far been written out of respect to the Catholic Church by apologists who are outside of it. This is the most precious gift among all, because the Catholic Church has been described as a civilization in the full sense of the word, and, in addition, all hostile action aimed at it has received the mark of barbarity.49

The circle of his close friends and allies at that time included the Archbishop of Lyon—Cardinal Sevin, curial Cardinal Louis Billot, as well as prominent members of the Dominican order, such as George de Pascal, Jacques Vallée, GarrigouLagrange and—the novitiate master Notre-Dame-de-Ligue, Dom Besse. Another one of his supporters—father Humbert Clérissac, managed to attract the young Raisa and Jacques Maritain to his ideas, and later—Henri Massis. But for Maurras the most valuable ally was Cardinal Umberto Benigni—the publisher of the anti-modernist journal “Corrispondenza di Roma”, as he was a close associate of Cardinal Merry del Vala—the Vatican’s Secretary of State under Pope Pius the Xth. Apart from the ideas of Charles Maurras, which had dominated the antiDreyfusard camp, there was another interesting concept of a religious policy emerging from the debates and political turmoil resulting from the Dreyfus affair. It was a social movement called Sillon, led by Marc Sangnier. Its views tended towards a Christian-democratic ideological orientation. Overtime, Sillon evolved into a political party of a leftist-republican character. When the separation crisis erupted, its approach was distinctly different than the one of Maurras and the anti-Dreyfusard camp. However, their position was not well received by the Vatican’s top hierarchs. Sangnier and his Sillon were perceived as person and movement unable to take a clear stance in respect to the wave of anti-Catholic hostilities brought about by the policies of the governments headed by R. Waldeck-Rousseau and É. Combes.50 Such was the case even when, following the implementation of the separation of church and state law in 1905, the policy of the cataloguing of nationalized goods which had previously belonged to the Church was implemented. In course of that operation not only numerous incidents of profanation of places of worship occurred, but in many cases, the faithful, trying to defend their temples, would fall victims to violence. Sillon condemned these acts of violence, but endorsed the very idea of separating the church from the state. The situation was the subject of a famous public exchange between Marc Sangnier and Charles Maurras. In contrast to the ideological leader of the anti-Dreyfurian camp, Sangnier argued that Catholicism should not only approve the Republic and 49 Pègues 50 Sorlin

(1913), p. 342. (1966).

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democracy, but also actively engage in their development. Such unconditional acceptance of the idea of democracy and of republican values provoked a counter-reaction from advocates of the radically conservative Catholic doctrine based on Papal dogmas. The open political engagement of Sillon, as well as its growing inclination to associate itself with the ideas of the left made the Vatican suspicious and worried about the orthodoxy of the movement. Finally, in 1910, Pope Pius Xth condemned and excommunicated Sillon for overstepping the limits of accepted interpretations of Catholic dogmas. Ironically, several years later, the same happened to Stallion’s main adversaries— namely Charles Maurras and his supporters. However, it should be emphasized that despite his controversial views, Maurras remained under the personal patronage of the Pope for many years. Pius X took an unequivocally favorable approach to the ideologist. The Pope, an opponent of modernism, appreciated his activity, recognizing his contribution to defending the principles of authority, Catholic values and social order. He also held the Pope Pius X in high esteem. A deep admiration for the Pope was born after the proclamation of the Pascendi Dominici Gregis encyclical letter. He regarded him as a great spiritual leader, a brother in battle, not afraid to declare war on the modernist trends and their supporters. But in 1927, Pope Pius XI condemned Maurras’ atheism and his naturalist conception of man as well as his instrumental approach to the church as an ideological foundation of monarchy. Furthermore, Maurras was accused of distracting the youth from apostolic and purely religious engagement, and instead turning them towards political activism pursuant to his slogan “la politique d’abord”.51 Prophetic to himself he wrote under the influence of Pius X’s condemnation of the Sillon movement an analysis of the Church’s actions against “unruly and disobedient”: If there are dark forces, the Church will arrange them in such a way, that the goodness of power contained within them will bear all its fruits; if these fruits are good, it [the Church] will strengthen their power, or even use it for its own purposes. If our world were created differently, one could change it in a different way. Reconciling with the world order simplifies and shortens the work. Denying or debating its order is a waste of time. Catholicism has never used its powers to fight the laws of nature. Radical reformers and supporters of revolution did not spare the advice to take a different path, without any caution, but one by one, they were excommunicated.52

Today, the reasons behind the Maurras and Sillon excommunication seem almost completely forgotten, together with the fierce debates accompanying their emergence, development and collapse. It is interesting, however, to revisit some of the main issues of the controversies surrounding the question of religious policies, the instrumentalization of faith and congressional institutions, as well as the beneficial and harmful aspects of the role that religion may play in social and political life.

51 Pope 52 See

Pius XI (1927). Footnote 37.

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6 Conclusions The Dreyfus affair turned out to be the catalyst for the process of political entrenchment of the deep worldview split in French society. The consequences of that process were significant for the position of the Catholic Church in the French state as well as the place of religion in French society and public discourse. The secularization of the government institutions and political discourse that followed was to a large extent an aftermath of the ideological tension sparked by the conflict over the injustice done to Captain Alfred Dreyfus. The fervent defense of the institutions consolidated the political alliance of religion, military, and political forces trying to preserve the conservative model of society and state. However, the bewildering indifference they demonstrated towards the falsely accused individual throughout the whole Dreyfus affair seriously compromised moral credibility of their case. It may have even helped to foster counter-attitudes determined to constrain political influence of the powerful, and potentially oppressive, institutions. As a consequence, the strict separation of church and state carried out by the 1905 Act has embedded anti-clericalism into the solid and long-lasting heritage of the Great French Revolution inscribed in the constitutional principles of the Third Republic. Thus, the fate of one man’s trial and redemption inextricably intertwined with the whole nation’s struggle to delimit the domains of the religious and the political.

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