Law and counsel

Modern Age, Wntr, 2009 by Ralph C. Hancock

"... the untrue assumption that man as man is thinkable as a being that lacks awareness of sacred restraints ..."

--Leo Strauss, On Tyranny

Remi Brague undertakes no less than to sort out the relationship between the notion of "divinity" and that of "law." He pursues this question, not mainly by a sustained philosophical analysis or the close analysis of pertinent texts (though his inquiry of course involves philosophical thinking and textual exegesis), but by a broad-gauged comparative examination of the configuration of the divine with respect to the legal in Judaism, Islam, and Christianity. And he alerts us at the outset that he aims to displace, not only the conventional "grand narrative" of "secularization" (the idea of a sort of natural drift towards the emancipation of the political from the religious), but at a deeper level, the formulation of the question in terms of a "political-theological problem." This term comes directly from Spinoza, and evokes the thought of writers from Varro to Carl Schmitt, as Brague notes. He chooses not to note, however, that the term has recently been made famous, or infamous, by Leo Strauss, and thus that Strauss (whose work Brague knows intimately) is a key interlocutor in his project.

Brague argues that the term "political theology" preemptively narrows the question of the relation of the divine to the legal in at least three ways. (1) First, the "logos" in theology takes it for granted that the divine is "to pass through the prism of discourse." Second, "theo" indicates not the general notion of the divine but a personal God or gods. Finally, "political" privileges just one domain of the practical (the government of the city) over the other two: ethics (self-government) and economics (the government of the household). In order to overcome or think beyond this threefold preemptive narrowing, Brague proposes the neologism "theio-practical." Brague's history of the theio-practical problem is magisterial in its command of materials from various traditions and languages, and the reader is asked to follow a bewildering number of twists and turns through considerations of the writings of authors major and minor. Still, the book has a central argument, and it finally intends no less than to illuminate the basic character of the modern world, the world defined by a "rupture with the premodern relationship with the law," a world in which law is supposed to have no relation with the divine but is "quite simply the rule that the human community gives itself."

Some vague notion of divinity, Brague shows, appears to be coeval with humanity. Such a notion is generally, but not always, associated with the notion of power, though the extension of this divine power to political and legal realms is far from straightforward or automatic. Such an association between divinity and legal authority, when it happens, can take one of two main forms, or appear as a mixture of these: law can be associated with the divine as its origin, and/or as its intrinsic characteristic. The first alternative will become dominant among the Greeks, and be taken up by Greek philosophy, whereas the latter will be articulated by the three great revealed religions. The Christian appropriation of Greek philosophy involves some combination of the two forms, as we shall see.

The Greek gods did not make laws; divinity thus entered into law only through an indirect, regulatory function. The philosophers sought to appropriate this regulatory function by identifying divinity with the intellect. Plato, in his Laws, exceptionally proposed a theology as the state's foundation, but he did not imagine that such a theology could be revealed in a book by a God.

The religions of the book are also the religions of divine law in the strongest sense: man's life is to be governed by rules revealed by God and available in a text. The Jews had only a brief experience under their own kings, after which they found themselves most often under alien sovereigns, and their political sensibility was characterized mainly by nostalgia for an earlier nomadic liberty. Without the power to live politically under their own laws, Jewish political thought was not practical and concrete but was projected upon a messianic future. Thus, Jewish history has not encouraged the development of properly Jewish political thinking: the category of the political is "laminated" between a pre-political and quasi-anarchic liberty and the meta-political longing for a messianic king. The practical life of Judaism is that of "a law without a state."

The political situation of Islam is in a way opposite to that of Judaism: Islam entered history in a political guise, and the political dimension is central to Islam's identity. Brague minces no words here: Islam is about conquest from the outset. Mohammed is both prophet and king, and the moral and social are understood as one block. But this is not at all to say that Islam has been successful in giving effect to this political essence; on the contrary, political power and religious authority in fact parted ways early in Islamic history, leading to a tendency to "nomocracy," the rule of disincarnated religious laws, in some respects parallel to Judaism. But the separation of religion and politics is merely circumstantial in Islam and has never been able to find a doctrinal foundation.