Humans could discern the law from what was most divine within them, i.e., their intellect (nous). As Plato wrote, “Of all studies, that of legal regulations provided they are rightly framed, will prove the most efficacious in making the learner a better man; for were it not so, it would be in vain that our …
By looking at the historical paths of Greece, Israel, Christianity, and Islam, Brague’s The Law of God compares each civilization’s conceptions of law and divinity. For the Greeks, the law was divine because it was a perfect expression of a natural order; for the Jews and Muslims, the law was divine because it was revealed by God; and for the Christians, the law was similar to the Greek’s conception but required a personal relationship with God that went beyond legislation. The modern period represented a departure from the Christian conception of the divine law and later a rejection of the notion of any divinity in law. Law for the modern was the rule that a human community gave unto itself, considering only ends that it proposed to itself, and did not require external sources, whether it be the divine or the cosmos.
These two ideas of law and divinity are the two sources for divine law in Western civilization, as Leo Strauss noted: “This notion . . . the divine law, it seems to me is the common ground between the Bible and Greek philosophy. The common ground between the Bible and Greek philosophy is the problem of divine law. They solve that problem in a diametrically opposed manner” (LG, 24). Whereas the Greeks resorted to reason as articulated in philosophy for their understanding of the divine law, the religious were dependent upon the sacred texts of faith. This dual source of the divine law raises questions about preference, superiority, and the relationship between these two sources—the so-called “theologico-political problem” (or “theio-political,” as Brague prefers)—that covers not only the political but also the ethical and economic aspects of human behavior (the “theio-practical”) (LG, 7 & 256).
Confronted with the “theio-political” problem, each pre-modern civilization provided its unique solution. But it was modern Western civilization that challenged the assumptions of the divine law. The emergence of the will as the source of law, the model of the scientific laws of nature, and the changed relationship between commandment and counsel all accounted for a revolutionary understanding of the nature of law that dispensed with the divine (LG, 262). The law of modern society lacked the divine dimension and was presented as a path of emancipation from primitive sacrality. The result was one where the state was no longer bound by anything except its own will, what Stephen Toulmin has referred to as the hidden agenda of modernity (LG, 263).1
In this article, I revisit Brague’s account of the “theio-political” problem as encountered by both classical Greek and modern Western civilizations, with specific attention paid to the concept of nature. According to Brague, nature is a repository for both the divine and the law for the Greeks—a position that is contrary to Leo Strauss’s and, therefore, deserves closer examination. But, according to Brague, over time, this conception of nature became radically transformed with its elimination of the divine from law. What ac- counted for this change is only loosely sketched in Brague’s book and also requires further exploration. I hope to accomplish both of these tasks and hopefully shed more light on Brague’s and our own understandings of the divine law.
Nature, Nomos, and the Divine
According to Brague, there are three possible relationships among the divine, political power, and the law. The divine could either 1) affect political power directly and the law indirectly, as in Greece; affect the law directly and political power indirectly, as in revealed religions; or 3) affect neither, as found in the modern Western solution (LG, 15). In pre-philosophical classical Greece, the solution adopted was the first one, where the divine could be a model of behavior but was not “an efficient cause” of it (LG, 13). Although the divine legitimized political power in the form of kingship, it did not legislate human practice. The king was the source of the law, but the law itself was not divine (LG, 14–7, 20). The result was that legislative activity was not necessarily connected with the divine: it was separate and, therefore, could be independent of it.
This separation between law and divinity was an evolving process that began with Homer and was completed by Aristotle (LG, 20). Initially, the origin of all normative behavior was divine in origin, as evident when Homer spoke of Zeus conferring the king the scepter and judgment. Although this gift permitted the king to rule, it did not dictate a type of behavior. Solon and Demosthenes also viewed the polis as resembling a divine order and the law as an invention and gift from the gods, but, like Homer, did not conceive of the divine directly legislating human practice. Finally, the dramatists, particularly Sophocles in his Theban trilogy, wrote of the divine origins of law as visibly manifested to humans and permanent in nature.
But the clear separation between law and divinity emerged only after the dual process of the de-sacralization of knowledge into philosophy and of kingship into democracy (LG, 19). Human law (nomos) was freed of its divine origins and normative direction. However, nomos was still rooted in human mores and norms, and it was accompanied by the notion of justice (dike), a gift of divine origins from Zeus to humans, but which, like kingship, did not legislate human conduct (LG, 20). Democratic governance became possible with these two concepts of nomos and dike, for neither the content of the law nor the qualities of justice were dictated by the divine. Both nomos and dike permitted democratic citizens to govern themselves with “all the rules approved and enacted by the majority in an assembly whereby they declare what ought and what not ought to be done” (LG, 20).
Philosophers introduced the concept of nature (physis) and situated nomos in relation to it: the law was either in opposition to nature, and therefore pure convention, or in accord with it, and therefore expressed the natural law. For philosophers, this notion that divinity operated within this relationship made divinity no longer associated with the anthropomorphic gods but with an abstract understanding of nature. For example, Heraclitus spoke of the “need to distinguish between the gods and the source from which they hold their divinity, or, to put it differently, between the divine and what of the divine is crystallized in one concrete figure or another, such as the Olympian gods” (LG, 23).2 Separated from its gods, the idea of divinity became associated with nature and nature, in turn, became associated with law (LG, 23–4).
Humans could discern the law from what was most divine within them, i.e., their intellect (nous). As Plato wrote, “Of all studies, that of legal regulations provided they are rightly framed, will prove the most efficacious in making the learner a better man; for were it not so, it would be in vain that our divine and admirable law (nomos) bears a name akin to intellect (nous)” (LG, 24). Aristotle also concurred: “He therefore that recommends the law (nomos) shall govern seems to recommend that God and intellect (nous) alone shall govern, but he that would have man govern adds a wild animal also” (LG, 24). Through their nous, humans were able to uncover the origins of nomos.
Thus, the notion of divinity in Greece was associated with anthropomorphic gods, nature (physis), and human intellect (nous). As human law became conceptually separated from divinity, starting from Homer and ending in Aristotle, divinity also shifted from the gods to human intellect and to nature itself. But freed from its anthropomorphic origins, the law still remained rooted in a notion of the divine, with divinity re-conceptualized as nature. The Greek divine law consequently became the expression of a permanent structure of the natural order that was to be discovered by the human intellect (LG, 29).
Reason, Revelation, and Nature
Brague’s confluence of nature and divinity as the basis of nomos and nous runs contrary to a position held by Leo Strauss and, therefore, requires closer attention. Like Brague, Strauss argued that the Greeks used intellect (or what he preferred to call “reason”) to understand the world; but, unlike Brague, this cognitive faculty was not rooted in the divine.3 Strauss believed that reason was autonomous and completely independent of the divine, as opposed to someone like Aquinas, who wrote that “the very light of natural reason is a participation of the divine light” and “natural law is the participation of the eternal law in the rational creation.”4 Brague’s interpretation of the Greek philosophy follows in this tradition, whereas Strauss held a clearer separation between reason and revelation where wisdom could only come through “the unassisted human mind.”5
According to Strauss, natural reason—“the human mind which is not illumined by divine revelation”—proceeded from sensation, logical reasoning, and an awareness (noesis) that “is never divorced from sense perception and reasoning based on sense perception.”6 The objects of natural reason presumably were non-spiritual ones, the “experiences as can be had by all men at all times in broad daylight,” and eventually would be systematized in order to create a set of sense-based, logically consistent propositions about reality.7 This characterization of Greek philosophy, particularly of Plato and Aristotle, not only rejected the evidence of reason’s being divinely inspired as Brague has presented, but it made Greek philosophy a forerunner of positivism.8 In Strauss’s hands, Greek philosophy resembled Spinoza’s project “of modern science according to its original conception—to make the universe a completely clear and distinct, a completely mathematizable unit.”9
Strauss’s theory of natural right was rooted in a conception of nature that was objective (accessible by a reason based on sense perception) and independent of the divine. Such a theory dispensed with divinity for only natural things where its principles revealed which natural things were consistent with the whole of reality, thereby raising them to the level of ethics or “rights,” and which natural things were inconsistent with the whole of reality and therefore should be discarded. But in order to proceed on this quest, one must have faith to philosophize that the whole of reality is intelligible and rational and that it can reveal to us the right way of life.10 Like Kant, whose philosophical project ultimately relied upon a type of faith, Strauss likewise must start his inquiry with a belief that the whole of reality can be known by human reason.
Although Brague would agree with Strauss that the Greeks believed nature was intelligible and rationally structured, he would disagree with Strauss that nature was independent of the divine. For Brague, both nature (physis) and reason (nous) are consubstantial with the divine. Now that we know both thinkers’ positions, the question that confronts us is how to resolve this impasse. I propose to look at Aristotle’s account of nature, particularly his “right by nature” (physei dikaion), to see whether divinity is associated with nature and thereby reveal to us which thinker has a more accurate understanding of Greek philosophy.
The selection of Aristotle, as opposed to Plato, makes understanding the Greek conception of nature easier since Aristotle’s known writings are all treatises instead of dialogues: we can somewhat avoid the whole deciphering exercise that Strauss’s esoteric thesis would demand.11 The focus on Aristotle’s right by nature is also important because it had become the basis for Strauss’s and other thinkers’ theories of natural rights and consequently raises questions about the origins of such theories. But more importantly, Aristotle was the last of the great Greek philosophers where the separation between human law and divinity as expressed in anthropomorphic gods would be the greatest, according to Brague’s argument.12 If the concept of divinity did indeed shift from the gods to nature in the history of Greek thought, as Brague contends it did, then we should find the fullest manifestation of this shift in the last great Greek thinker, Aristotle.
Notes
1. The disappearance of the theio-political problem has caused some to view it as an accomplishment of modern Western civilization that needs to be protected by the continual elimination of religion from public life. The question confronting us today is whether humans can continue to exist without a reference to the divine: “Are we liberated or on the path to suicide?”
2. For more about the anthropomorphic gods and their relationships to humans and law, refer to Eric Voegelin, Order and History, Vol. II: The World of the Polis, ed. Athanasios Moulakis (Columbia, MO and London: University of Missouri Press, 2000).
3. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 87–8.
4. Thomas Aquinas, Summa Theologiae, I.12.11; I-II.91.2.
5. Leo Strauss, “What is Political Philosophy?” and Other Studies (New York: Free Press, 1959), 13; “The Mutual Influence of Theology and Philosophy,” Independent Journal of Philosophy 3 (1979), 115; Natural Right and History, 163.
6. Ibid., also Strauss, “Mutual Influence,” 122.
7. Strauss, “Mutual Influence,” 116–7.
8. For example, Aristotle wrote in Nicomachean Ethics (1103a, 1177b, 1178a) that the highest element of the soul was a site of both human reason and the divine. However, Strauss argued in Persecution and the Art of Writing (Glencoe, IL: Free Press, 1952) that classical philosophers employed esoteric devices in their writings to protect themselves from political pressures, especially when discussing truths that may have been unpopular, such as the non-existence of divinity. Since a great deal of literature already has been devoted to this subject, this article will not delve into the validity of Strauss’s esoteric thesis, which is made all the more difficult to ascertain since Strauss himself did not make clear whether he was writing
9. Strauss, “Mutual Influence,” 116-7.
10. Ibid., 118.
11 Cf. n. 8.
12. Strangely, Brague pays more attention to Plato than Aristotle in his section. My focus on Aristotle should remedy this neglect.
Originally published in The Political Science Reviewer.
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