Part Three of a symposium on Rémi Brague’s The Law of God: The Philosophical History of an Idea (Chicago: University of Chicago Press, 2008). Read Part One. Read Part Two.

Excerpt from Modern Age 50:1 (Winter 2009)

Rémi 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 theo-logy 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.

Whereas Islam triumphed by warfare during the lifetime of its founder, Christianity’s first identity was that of a persecuted minority. When it became dominant in the Roman world, this, Brague argues, was through a Christian civil society’s conquest of the state, the reverse of Islam. While the temptation to identify imperial power with God’s kingdom was certainly present (as in Eusebius), the separation between temporal and spiritual realms was effectively at work in Christendom from the outset, in Byzantium as well as in the West. The idea of an original unity of the spiritual and the temporal from which a separation emerged only in modern times is, Brague is able substantially to demonstrate, a modern myth. This is not to say that this separation ever found a clear and definitive articulation, either theologically or institutionally (but then we are still looking for a definitive articulation of the “liberal” separation we now mostly take for granted). But the resistance of religious ideas and institutions to fusion with political power was always at work, and the articulation of the two spheres was the fecund task that drove the development of Christian political thought.

Under Christianity, the realms of religion and politics are distinct; would that they were separate—that is, would that they could be simply and finally separated. This is the drama, the agony perhaps, of Christian political thought and of its institutional development, as described in chapter 9, Brague’s historically richest, “Christianity: A Conflict of Laws.” Countering the prevalent myth of an original fusion, Brague deftly traces the historical effects of Christianity’s inherent resistance to absorption into the political realm. This resistance created throughout the medieval period a situation in which both religious and political authorities (eventually the papacy and the empire) recognized the legitimacy of the sphere occupied by the other within a divine economy but attempted to protect and expand its prerogatives at its rival’s expense. That is to say, each granted a real if subordinate status to the other within a world governed by God. The end of this rivalry based upon a certain implicit mutual respect is the end of the Middle Ages and the birth of the modern world. This end, in Brague’s telling, is precipitated by the “Papal Revolution.” In the context of the investiture controversy, the papacy was driven to claim a kind of absolute sovereignty grounded in its exclusive authority for the care of souls. The modern, “secular” idea of state sovereignty, first articulated as “the divine right of kings,” was a response to and a mirror image of these papal claims. The modern fable of a natural or simply rational “secularization” ignores the necessity of a prior claim (rivaling that of the papacy) to sacrality. Even the word “state” (“status”) in the modern sense appears first of all in ecclesiastical arguments. Brague’s argument thus seems to be that the “secular” (let us say, the effectively absolute authority of the human) could not have appeared “natural” to us if it had not first appeared as the counterassertion of the sacred.

A spokesman for secular naturalism might, however, respond to Brague’s argument by proposing that the contest of absolutisms in the late Middle Ages, while no doubt of historical interest, cannot be considered definitive of the essential character of modernity. Like Leo Strauss (not exactly, to be sure, a spokesman for secular naturalism), such a critic might argue that the “break” defining modernity is to be sought “on the plane of purely philosophic or rational or secular thought.”[2] The rational essence of modernity, on this view, must be distilled through an interpretive process that purifies it of the more or less accidental historical context of its genesis.

Chapter 14, “The Modern Age: The Destruction of the Idea of Divine Law,” is Brague’s response to the effort to liberate modernity from its history in the reaction against papal absolutism. This chapter, philosophically Brague’s richest, might be entitled, “The Tyranny of Autonomy.” Here he argues that what passes in the modern age for “autonomy” is not autonomous, since “the modern age did little but draw the consequences of decisions that had been taken long before.” He develops a compact and powerful critique of this specious and tyrannical “autonomy” upon the basis of an elegant and luminous discussion of the traditional or premodern relationship between “Law and Counsel,” that is, between “what an authorized will imposes and what wisdom recommends.” Once, “law bathed in counsel as in a nourishing environment.” The Right and the Good, one might say (though Brague does not use these terms), were inseparable, even equiprimordial, each informing and elevating the other. The autonomy or “internal rule” of a being was understood, Brague explains, “not as submission to the rule that a subject gives himself,” but as “coincidence with the rule that constitutes all things as they are.” This formula of Brague’s might, however, seem to give final priority to the Good, in the manner of classical political rationalism: law would ultimately serve counsel, and so the best counselor would embody or represent the highest law. But if “the rule that constitutes all things as they are” does not fall within the compass of human intelligence and/or human responsibility, then the ascendance of the Good over the Right, of Counsel over Law, would never be complete: a revealed command would always be necessary to lift Counsel above its incomplete grasp of the Good—though the command of Law would, for its part, always remain “bathed in counsel.” This is the delicate balance that Brague wishes to recover or to articulate: if “a man [ultimately] loves himself only for the sake of God” (cf. Bernard of Clairvaux), this divine charity is somehow continuous with the love that man as a natural being has for his own good.