Nomos, Nature, and Modernity in Brague’s The Law of God (Part Three)

Kant’s conception of God was the author of divine commandments. Human obligation towards one’s fellow being started from these commandments, which Kant called “statutory commandments.” But the actual legislators of moral commandments were human beings themselves: God was the author of divine legislation, but moral legislation was self-created and self-directed by human conscience.

The Emptying of Nature

Strangely, Strauss appears to be more of a modern than a classicist in his understanding of nature as a forerunner to positivism. According to Brague, the concept of nature underwent a transformation that not only banished divinity from itself but also expelled divinity from the concept of law. The modern period is characterized as a period where humans became fully autonomous in their ethical, economic, and political actions. The law no longer required divinity: it was legislated by and for human beings.

Mathematics, and to a lesser extent, the natural sciences, became the model of causality and, later of nature itself. For Brague, Descartes was the first thinker who sought to understand nature as a mathematical entity: nature was conceived of as laws instead of rights (LG, 234). The law of nature was one of motion without telos: there was no prime mover with which nature sought unity (LG, 234).27 With the rise of “scientific law” mathematical physics, both the concepts of nature and law moved away from an Aristotelian ontology to a scientific causality. By the time of the sixteenth century, the law was understood as natural in the sense it was a type of motion that was neither violent nor accidental; as Hooker wrote, “That which doth assigne unto each thing the kinde, that which doth moderate the force and power, that which doth appoint the forme and measure of working, the same we tearmed a Lawe” (LG, 235).

Coinciding with the change in the concept of nature was the change in the concept of divinity. Descartes still required a God for his law of nature to work, but it was a God characterized by its omnipotence rather than by its teleology: “The lawgiver of nature is freed from His own laws” (LG, 235). Descartes asserted that “it is God who has established the laws of nature [as eternal mathematical truths], as a King establishes laws in his Kingdom,” with such a law of nature “inborn in our minds, as a king would establish law in the hearts of his subjects if he had power enough to do so” (LG, 235). The law of God therefore was the law of nature, making the normative and the descriptive one and the same, but removing nature’s teleological drive towards the divine.

By the time of Hobbes, the law of nature still was the law of God, but it had become plural. This shift from the singular to the plural removed the notion of a universal order and was replaced by a universal science of constant and observable relations. This new science no longer searched for causes or, as Auguste Comte wrote, “the inaccessible determination of causes—that is, for the constant relations that exist between observable phenomena” (LG, 235). God was re-conceived as the clock-maker deity and eventually became superfluous to any claim to observe the regularities that exist in nature. The notion of the “laws” of nature was replaced in the nineteenth century by mathematical equations or vaguely-formed principles. Nature thus was no longer understood as the general laws of God, whether singular or plural, but as a phenomenon of uniform motion that was regular, observable, and ultimately purposeless.

Law in the strict sense was no longer conceived of as natural and, therefore, was entirely human, as Spinoza claimed: a law is “a prescribed rule of conduct (ratio vivendi) that man prescribes for himself or that he prescribes for others with some aim in mind” (LG, 238). Montesquieu continued in Spinoza’s footsteps with his Esprit des lois, where he remarked, “Laws, taken in the broadest meaning, are the necessary relations deriving from the nature of things. Law in the general is human reason insofar as it governs all people of earth” (LG, 238–9). The law was entirely a human invention. If there were any association of divinity attached to the law, it was the result of clever people; as Montesquieu wrote, “Any law, without which [society] could not exist, becomes by that token a divine law” (LG, 240). Earlier, Machiavelli had made a similar observation about how civil authority required divine authority regardless of its truth. The divine was the recourse of clever people who wanted to establish laws that went beyond what was commonly accepted. Although the law was not divine, it still needed divinity not because it was true but rather because it provided the foundational legitimacy for the state (LG, 240).28

According to Brague, Austin was the last example of one who resorted to a notion of divinity to support his theory of legislation. In The Province of Jurisprudence Determined, Austin asserted that “the divine law is the measure or test of positive law and morality,” with God defined as “the intelligent and rational Nature which is the soul and guide of the universe” (LG, 240). However, humans recognized the divine law not as something revealed but rather as derived from the principle of general utility, for positive law was “fashioned on the law of God as conjectured by the light of utility” (LG, 240–1). What was commonly demanded was what God had demanded. By invoking God as the standard of positive law and equating Him with the principle of general utility, Austin did not have to appeal to the “ambiguous and misleading” law of nature (LG, 240–1).

Austin’s notion of divinity was so vague that the contents of it could be arranged by humans to suit themselves, while at the same time he discarded the notion of nature as a standard and thereby also the requirement that humans subject themselves to it. Previously, the concept of nature had been stripped of any idea of divinity; now, it had been emptied of any notion of mathematical and logical causality to which humans would have to submit themselves. All that remained was an entity to be prodded and exploited by humans for the principle of general utility. The scientific method and the instrumentalization of the divine had emptied nature of any meaningful content for either law or human beings.

The Emptying of Divinity

If nature had become emptied of any meaningful content, then the divine would have transformed from Aristotle’s prime mover to Kant’s legislator. The elimination of divinity’s magnetic attraction for nature, as informed by nous, would result in a deontological ethics of self-imposed duties. According to Brague, this transformation started with the Protestant Reformation, with Luther’s return to St. Paul’s polemic concerning faith alone against the law. Although Luther redirected the polemic against the Roman Catholic Church with an understanding of grace as the unmerited favor of God, he also emphasized the law as being an essential aspect of Christianity, such as in his teaching of the two kingdoms (LG, 242).29 Christianity came to be perceived in juridical categories, with Jesus known as the Lawgiver, to both the defenders and critics of Christianity.

The tendency to place law at the center of religion found its culmination in the works of Kant, who re-conceptualized ethics as commandments. The moral law that commanded someone, with no hope to appeal, has no need of a source, even if that source were God Himself (LG, 243). Morality consequently did not rest on a religious foundation—in fact, religion rested on the foundation of morality. Kant wrote of “the recognition of all duties as divine commands, not as sanctions, i.e., arbitrary and contingent ordinances of a foreign will, but as essential laws of any free will as such.” However, “even as such, they must be regarded as commands of the Supreme Being, because we can hope for the highest good (to strive for which is made our duty by the moral law) only from a morally perfect (holy and beneficent) and omnipotent will; and, therefore, we can hope to attain it only through harmony with this will” (LG, 243). Like Strauss, Kant required a type of “faith” in an omnipotent God and in the immortality of the soul in order for his philosophy to operate.

Kant’s conception of God was the author of divine commandments. Human obligation towards one’s fellow being started from these commandments, which Kant called “statutory commandments.” But the actual legislators of moral commandments were human beings themselves: God was the author of divine legislation, but moral legislation was self-created and self-directed by human conscience. The moral commandments required the statutory commandments to clarify certain matters, such as the worship of God, but ultimately they were from the human and not from the divine. Religion was nothing “but laws” for Kant—a simple appendix to morality (LG, 244). The divine had been reduced to law, and the functional source of that law resided in human conscience.

After the French Revolution, the connection between divinity and law resurfaced, but in a historical context. The historical study of law arose in reaction to the fabricated juridical rules born of the French Revolution that Burke had criticized. This school of thought emphasized the organic development of law as a historical process. Brague concentrates on three thinkers to represent this turn in Western thought: Henry Sumner Maine in England, Johann Jakob Bachofen in German Switzerland, and Numa Denis Fustel de Coulanges in France. Believing in the notions of progress and evolution, these three thinkers pushed divinity back to its primitive origins and reduced it to a phenomenon from which humans had escaped in order to pursue a purely rational and systematic law for modern Western civilization.

Maine modeled his historical method after the natural sciences and concluded that the idea of the natural originated in the need to find principles to integrate foreigners, who had no legal status, into ancient Rome (LG, 245–6). The Roman ius gentium was combined with the Greek notion of physis to solve this problem, with the family as the starting unit for law. Although religion never appeared as a theme, it did surface as something associated with law throughout his works, particularly with canon law. Maine recognized that the divinity prescribed certain laws; however, the divinity in his overall account was something from which humans and the law should escape. The history of law was one of the individual liberating himself over time from various group units to his autonomous, independent self. Bachofen conceived of history progressively but differently in content when compared to Maine: history was the march from a maternal and material principle to the paternal and immaterial ones (LG, 246–7). Initially, there was one great law that governed all of humankind, and this one great law was associated with the religion of Mother Earth and Her notion of equality. This law of equality was older than the positive law of the state but has now been supplanted by the paternal and immaterial law of humankind’s historical progress. Like Maine, Bachofen recognized the divine origins of the law and also dismissed it as a relic of a primitive and no longer needed civilization.

Coulanges also concurred with Maine and Bachofen that the law was initially religious, with the familial existing before the civic (LG, 246–7). No human invented the law: the law was presented to humankind without being sought. A direct and necessary consequence of religious belief, the law applied itself to the relations among all people. The ancient law was never explained, written, or taught: it was learned in the religious rituals of a people. Contrary to Rousseau’s contention, the law was not the work of a legislator but was imposed on the legislator. However, Coulanges, like the others, argued for the inherent limitations in the ancient law and rejected it for a more progressive—rational and systematic—account of law for the civilization of his day.

Conclusion

The emptying of the conception of divinity reduced God to human conscience and later to primitive civilization, while the emptying of the conception of nature reduced its teleology to Austin’s entity of ambiguity and purposelessness. The emptying of these concepts yielded a positivist (or what Brague calls “sociological”) study of both legal and religious phenomena (LG, 248). Setting aside all claims of the validity of the object he studies, the positivist reduces notions of divinity, nature, and law to mere opinions. The irony is that the positivist can follow the development and path of these opinions, but he himself is unable to leave any mark on history because he has nothing to say about the truth of what he is studying.

Strauss seems to be following the positivist’s path, although he would reject the claim that he only wrote about opinions. Rather, it would appear that Strauss believed the positivist program would yield objective truth claims, such as a theory of natural rights, which would have no essential need for divinity. Strauss’s criticism of Weber, the great sociological positivist, was that he “never proved that the unassisted human mind is incapable of arriving at objective norms.”30 For Strauss, natural right could be discovered by the unassisted human mind, i.e., without divinity, if only one were able to pursue this aim for his entire life. This claim is a genuine possibility and, as Brague has traced in his book, represents where we are today. Whether this project is possible is something on which Brague refuses to comment.

Where Brague and Strauss disagree is in their interpretation of Greek philosophy. For Brague, nature was a repository of divinity for the Greeks, a position that is contrary to Strauss’s. An examination of Aristotle’s physei dikaion and its related concepts of physis, nous, phronesis, and spoudaios suggest that Brague’s interpretation is more accurate than Strauss’s. However, Brague’s account of physis is also deficient because he fails to note its dual teleological structure: it seeks to realize its own essence as well as its unity with the prime mover. Brague’s neglect of the prime mover as related to the Greek concept of physis, and his neglect of Aristotle more generally, has been remedied by my analysis of Aristotle’s account of nature and its relationship to the modern notion.

Notes

27. Brague recognizes this change in the conception of nature in terms of its teleology, thereby making his neglect of Aristotle’s “right by nature” all the more perplexing.

28. As Brague later notes, this explains why both Rousseau and the French Revolution sought a return to the sacrality of the laws when establishing a new regime.

29. For example, Brague cites Zwingli as one who returned to Old Testa- ment Law in his Protestant Christianity. Strangely, Brague neglects Calvin, who would be the best example and evidence of this argument.

30. Strauss, Natural Right and History, 70.

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